South Dakota Attorney General Opinions
Free plain-English summaries of attorney general opinions issued in South Dakota, with full citations and the original source on every page.
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When the South Dakota Parole Board counts how many felony convictions an inmate has for purposes of computing parole eligibility, does it look at the date of conviction, the date of offense, or the date of sentence? And how should it count a suspended imposition of sentence that was later revoked because of a new felony?
Date of conviction, in most cases. The AG concluded that SDCL 24-15-5 and 24-15A-32 turned on whether the trial court entered separate judgments under SDCL 23A-27-4 or specifically used 'separate tran…
Were South Dakota pardons issued by the Governor between 1995 and 2002 automatically sealed from public view, or could the Secretary of State release them under the open records law?
It depended on which kind of pardon. The AG concluded that SDCL 24-14-11 only sealed pardons that went through the chapter 24-14 Board of Pardons and Paroles process. A pardon issued under the Governo…
Could the South Dakota State Auditor set a cutoff time after which late-arriving wage garnishment summonses would not attach to an already-printed state employee paycheck, so the payroll system could be fully automated?
Not under existing statutes, but the Legislature could add one. The AG concluded that SDCL 21-18-12 and 21-18-40 fixed garnishee liability at the moment a summons was served, so neither the Auditor no…
If sponsors filed the text of a South Dakota constitutional amendment with the Secretary of State after one gubernatorial election but gathered signatures and submitted the petition after a later gubernatorial election, which election's vote count sets the signature threshold?
The later election. The AG read Article XXIII, Section 1 to require 10 percent of 'the total votes cast for Governor in the last gubernatorial election,' measured at the time the petition was submitte…
If a person moves to South Dakota for a 12-month contract job but keeps voting and paying taxes in their home state, can they get a South Dakota concealed pistol permit after 30 days?
No. The AG concluded that the 30-day county-or-municipal residency requirement in SDCL 23-7-7.1 required actual residency, not just temporary physical presence. A contract worker who kept voting regis…
After two South Dakota school districts merged under a reorganization plan that locked in residency requirements for school board members, could the new board dissolve those representation areas on its own? Could voters force the change by petition? And could the board pick a single polling place for the new district?
The board could not act unilaterally, but voters could force a change. The AG concluded that no statute authorized the new board to dissolve residency requirements or representation areas on its own, …
If a South Dakota homeowner lives in one unit of a duplex or triplex and rents out the others, can the property still qualify for the 20 percent owner-occupied property tax credit? What about a single-family home with a rentable basement apartment?
No to both. The AG read SDCL 10-13-39 as covering only houses, condominium apartments, townhouses, townhomes, and manufactured or mobile homes assessed as a single unit. Duplexes and triplexes are by …
Are the annual unclaimed-property reports that South Dakota businesses file with the State Treasurer open to public inspection, and can the Treasurer charge the public for copies?
Mostly yes. The AG concluded that the reports were public records under SDCL 1-27-1 because the Uniform Unclaimed Property Act required the Treasurer to keep them, but Social Security numbers, federal…
Can a South Dakota school board member-elect also serve as Assistant Director of a cooperative educational service unit (the Black Hills Special Services Cooperative) where the school district is a member of the cooperative, contracts for services from the cooperative, and pays the cooperative for those services?
No. The positions are incompatible under both SDCL 13-43-1 (if the Member-Elect is a certified teacher she is 'drawing public money as a teacher' from a public-financed multi-district education progra…
If a South Dakota county has spent public money grading and plowing a private driveway for 20+ years, does that turn the driveway into a public road? Can a county post a road as 'minimum maintenance' to skip plowing or graveling? And what duty does a county owe section-line roads it never officially adopted?
No to the first question. The AG concluded that even decades of public spending could not convert a private driveway into a public highway under SDCL 31-3-1, because the statutory definition of 'highw…
Does the South Dakota Family Farm Act's ban on corporate hog confinement facilities (SDCL 47-9A-13.1) prohibit a cooperative corporation, whether foreign or domestic, from owning or operating a hog confinement facility or a swine farrowing facility?
No. The Family Farm Act's definition of 'corporation' in SDCL 47-9A-2(2) is limited to entities under the South Dakota Business Corporation Act (SDCL chapters 47-2 to 47-9) and limited liability compa…
If a SD landowner did not return a county classification questionnaire in 1992, had his land reclassified from agricultural to non-agricultural for the 1993 tax year, paid the higher 1993 taxes in 1994 without protest, and later asks for an abatement and refund under SDCL chapter 10-18, can he get it?
No. The SDCL chapter 10-18 abatement procedure is available only for the six narrow categories listed in SDCL 10-18-1 (entry error, valuation-included improvements that did not exist, exempt status, n…
Can the Shannon County Board of Commissioners conduct business if fewer than three of its five members attend a meeting, given the long travel distances to meetings in Hot Springs, and what options exist when assembling a quorum is impractical?
No business can be conducted without a quorum. A three-member quorum is required for the five-member board, and three affirmative votes are needed to take any official action. The board's option for h…
After the 1994 Legislature passed HB 1255 pushing back the deadline for the Secretary of Revenue to withhold personal property tax replacement funds for nonagricultural assessment violations, can a South Dakota county commission pass a resolution rolling back agricultural land assessments to 1993 levels?
No. HB 1255 only delayed the withholding start date for nonagricultural property to 1995. It did not change the agricultural date, did not authorize any rollback, and did not modify the true-and-full-…
When the 1994 South Dakota Legislature passed SL 1994 ch. 19 directing removal of the Edwin Blashfield mural 'The Spirit of the West' from the Governor's Reception Room, did that statute override the Capitol Complex Restoration Commission's general preservation duties for historic areas, and can the painting be left in place covered by draperies if physical removal would damage it?
SL 1994 ch. 19 controls over the general preservation statutes in SDCL chapter 5-15 because it is both more specific (about this mural) and more recent (1994). The statute requires the painting be tak…
When South Dakota police take a minor into custody, can they share information about the minor with a Department of Social Services caseworker or with school officials involved with the minor, given that SDCL 26-7A-27 bars disclosure of juvenile law enforcement records to 'the public'?
Yes, with limits. The term 'public' in SDCL 26-7A-27 means the general undifferentiated community, not government agency personnel who have a particularized interest in the child. DSS caseworkers and …
If a sitting South Dakota county commissioner is appointed to a vacant seat in the State Legislature, can the person hold both offices at the same time until the county commissioner term ends?
No. The offices of state representative and county commissioner are incompatible. The Legislature has plenary constitutional authority over counties under S.D. Const. art. IX, § 1, including the power…
When the SD Legislature created the Office of Administrative Hearings under SDCL chapter 1-26C in 1994, did that new chapter override or abrogate the existing hearing procedures the Division of Insurance had been following under SDCL title 58 and chapter 1-26?
No. SDCL 1-26C creates a new structure (the Office of Administrative Hearings and statewide Administrative Law Judges) but does not abrogate existing procedures unless they specifically conflict. Insu…
When a cable company, the Welcome Wagon, a church, or anyone else asks a South Dakota city for the names and addresses of its water and sewer customers, does the city have to release the list, and can the city charge for it?
Yes, the city must allow inspection of subscriber name-and-address lists. Names and addresses alone do not invade privacy here, similar to electric and telephone subscriber lists. The city has no auth…
When a SD local government wants to piggyback on another local government's competitive bid under SDCL 5-18-18, can it change the specifications, buy a newer model, ignore a trade-in that was part of the original bid, or convert a trade-in bid into a cash-only purchase?
Limited. Any variance from the original bid must be non-material (substantial compliance with the original specs). A newer model is fine if its specs do not materially vary from the original. A trade-…
Can an agent for an out-of-state bail bondsman walk into a South Dakota county jail, demand custody of an inmate (held on a local DWI warrant) who jumped bond in the other state, and take that inmate back across state lines without ever going through a SD judge?
No. SD has priority of jurisdiction while the inmate faces local SD charges, so the bondsman cannot demand release. Even after SD releases the inmate, SDCL 23A-43-29 requires the bondsman to deliver t…
What kinds of long-term commercial leases can the South Dakota Commissioner of School and Public Lands enter into for the Human Services Center campus at Yankton, including leases to governments, nonprofits, and private developers, and how long can the leases run?
Under SDCL 5-1-7.2, the Commissioner may grant 'subsidiary' commercial or forestry leases on school and public lands beyond traditional agricultural, grazing, and mineral leases, but only after promul…
May a Crooks city alderman simultaneously serve on the city common council and on the municipal planning and zoning commission? The common council hears appeals from planning and zoning decisions, so the alderman would in effect be voting on appeals from his own commission decisions.
No. SDCL 9-14-16 prohibits an alderman from holding any other office under the municipality. Membership on the planning and zoning commission is a 'public office' under the *Griggs v. Harding County* …
When a South Dakota school district reorganizes and some of its property moves to a new district, does that property still owe its share of capital outlay certificates the old district issued before the reorganization?
Yes. Capital outlay certificates issued under SDCL 13-16-6.2 are 'bonded indebtedness' for purposes of SDCL 13-6-82, so the lands originally taxed for them stay liable after reorganization. The county…
In a joint school and city election in South Dakota, can a school board candidate withdraw from the ballot after the filing deadline has passed?
Generally no, with one narrow exception. When the school district and the municipality jointly hold an election under SDCL 13-7-10.1, the municipal election rules in SDCL Chapter 9-13 control, not the…
If a customer presents a valid South Dakota concealed pistol permit to a federally licensed firearms dealer, does that exempt the sale from the federal Brady Bill's five-day handgun waiting period?
Yes. South Dakota's concealed pistol permit, issued only after a background check under SDCL 23-7-7.1, meets the Brady Bill's § 102(a)(1)(C) exemption criteria. A buyer presenting a SD permit issued w…
If the county commissioners in South Dakota want a light bar and county decals put on the sheriff's county-owned car for safety and identification, and the sheriff doesn't want them, can the commissioners buy the equipment and force the sheriff to use it?
Commissioners can buy and install the equipment under SDCL 7-12-12, but they cannot force the sheriff to use it. South Dakota law gives county commissioners no general authority over the sheriff's ope…
If a sitting city commissioner pleads no contest to embezzlement and the judge finds her guilty but suspends the imposition of sentence (no formal judgment of guilt entered), is she automatically disqualified from holding city office?
No. A suspended imposition of sentence under SDCL 23A-27-13 is not a 'conviction' for voter-disqualification purposes because the court never entered a judgment of guilt. The commissioner remains a qu…
When South Dakota launches motor voter registration in 1993, can the Social Security number that the DMV already has on file from the driver's license application automatically be reused on the voter registration card without asking the applicant separately, or does the applicant need to consent?
The applicant needs to consent. The 1993 SD AG concluded that nothing in the National Voter Registration Act or federal Privacy Act authorized the involuntary use of a SSN for voter registration; the …
If a South Dakota city council passes something labeled a 'resolution' to join a regional solid waste district, and the mayor vetoes it, can the council override the veto with a two-thirds vote, the way it can override the veto of an 'ordinance'?
Yes when the action is legislative in substance. The 1993 SD AG concluded that South Dakota's veto-override statutes (SDCL 9-19-10 and 9-19-11) apply only to ordinances, but the courts look to substan…
When a South Dakota city is closing its old sanitary landfill and building a new solid waste transfer station, can it pay for the transfer station by issuing utility revenue bonds under SDCL 9-40-1, or are those bonds limited to traditional sewage systems?
Yes. The 1993 SD AG read SDCL 9-40-1's phrase 'sewage and other domestic, commercial and industrial wastes' broadly to cover solid waste, not just sewage that flows through sewer pipes. Limiting the l…
If a buyer and seller record a 'notice of contract for deed' (not the full contract) with the South Dakota register of deeds to keep the purchase price private, does the register still have to certify the transfer to the secretary of revenue, and does the recording have to include a certificate of value form?
Yes to both. The 1993 SD AG read SDCL 7-9-10 as requiring the register of deeds to certify a notice-of-contract recording to the secretary of revenue, county auditor, and director of equalization just…
Does the student member of the South Dakota Board of Regents have to satisfy the rule that no two regents may reside in the same county, where student regents typically register to vote in the college town like other students?
No. The student regent's qualifications are set by SDCL 13-49-6.1, not by the general regents statute SDCL 13-49-2. The specific student-regent statute controls, and it does not impose a one-regent-pe…
Can a South Dakota legislator (or anyone from the public) see how many jobs a REDI Fund loan recipient created, what hourly wages those jobs pay, and what benefits are included?
The number of jobs created is public. Company-specific wage and benefit data is confidential under SDCL 1-16G-11 because it qualifies as financial information about a business operation. The Board of …
If South Dakota law requires one of the trustees of a county hospital to be a 'legally-qualified physician or nurse,' does that person have to hold an active medical license, or does an inactive license satisfy the rule?
An inactive license is sufficient. The 1993 SD AG read the statutory phrase 'legally qualified' as different from 'licensed.' A physician or nurse who has met the licensure requirements of SDCL ch. 36…
A South Dakota taxpayer lives in Township B but owns property in Township A (both in the same county and school district). He did not appeal his Township A property assessment to the Township A local board of equalization when it was sitting. Can he now appeal directly to the county board of equalization, or has he lost his appeal rights?
He can appeal directly to the county board. SDCL 10-11-27 requires complaints to be made to the local board first, except that a 'nonresident of the taxing district' may be heard without a prior local…
Can a South Dakota school district let children attending a preschool operated by a local church ride the public school buses to and from preschool, if the buses are not rerouted and the public-school students are also riding?
No, on two independent grounds. The 1992 SD AG concluded that simultaneous public and private use of a school bus was not authorized by the statutory scheme (SDCL 13-24-20, 13-29-1, and 49-28-2(1) rea…
When the South Dakota Department of Transportation sells state-owned railroad property, the law gives the lessees and abutting landowners 60 days' notice and a right to purchase at appraised value, except for sales 'for railroad purposes.' What does 'railroad purposes' mean, and when does a buyer get to skip the notice-and-purchase-right requirement?
A sale is 'for railroad purposes' only when the buyer will continue to run a railroad on the right-of-way being sold. If the line has been abandoned and the buyer plans any other use (recreational tra…
If a South Dakota drainage district was formed in the 1910s or 1920s under the old drainage laws and is still functioning, does it have to file its vested drainage rights with the register of deeds before the 1992 deadline, or are the pre-1985 districts exempt?
No filing required. The 1991 SD AG concluded that a drainage district that was functioning or making assessments in the three years before July 1, 1985, and is therefore preserved under SDCL 46A-10A-4…
If a campground owner in South Dakota already holds a state campground license from the Department of Health, does the operator also need a separate county temporary campground permit during events like the Black Hills Motorcycle Classic?
Yes. Under SDCL 7-18-21, enacted in 1991, a county may require its own temporary campground permit for fairs, carnivals, or similar gatherings even when the operator already holds a state campground l…
South Dakota voters added a state-lottery clause to the state constitution in 1986. The clause permitted the Legislature to authorize a state lottery, provided the lottery was 'regulated, controlled, owned and operated' by the state. The Legislature then passed video lottery in 1989. Here was the puzzle: the actual video lottery machines were owned by private licensed operators (bars, lounges, convenience stores), not by the state. The state owned only the central control computer system to which all machines had to connect. Was that enough 'state ownership' to satisfy the constitutional clause? Governor Mickelson wanted a written AG opinion before video lottery rolled out fully.
Yes. AG Mark Barnett (in an unusual AG-issues-constitutional-opinion exception) concluded that the video lottery scheme was constitutional under Article III, § 25. The state did not need a proprietary…
Can a South Dakota city charge people outside the city limits more for water and sewer than it charges in-town customers? Does the city have to set those rates by ordinance, or can it just sign a separate contract with each outside customer? And can the city charge commercial users a higher rate than residential users?
Yes to charging non-residents more, yes to commercial vs. residential differentials, and rates had to be set by ordinance (not by individual contracts). The AG concluded that South Dakota cities could…
After the 1990 Legislature added SDCL 43-4-22(18), which exempts transfers 'for which no consideration was given' from the real estate transfer fee, is an exchange of one parcel of land for another parcel of land still subject to the transfer fee, or is it now exempt?
Still subject to the fee. AG Tellinghuisen ruled that exchanging one parcel of land for another parcel is a transaction with consideration (each parcel is the consideration for the other), so SDCL 43-…
If a city has a platted street showing a 60-foot right-of-way but the actual paved street is narrower, can the city widen the street to the full 60 feet without doing a new survey and plat?
Yes, no new survey needed. If the original plat showing the 60-foot right-of-way was duly dedicated to and accepted by the city, the public is considered to have accepted the entire dedicated width. E…
Can the Pennington County treasurer accept monthly installments on delinquent real-estate property taxes (in exchange for not starting tax-deed proceedings), and can the Pennington County sheriff accept installments on delinquent mobile-home taxes after the treasurer has issued a distress warrant?
Treasurer: yes, but only when the county commissioners have first authorized partial payments under SDCL 10-21-7. Sheriff: no, never. Once the treasurer hands the sheriff a valid distress warrant, the…
A state employee who flies on a state-purchased ticket accumulates frequent flier miles in the employee's personal account. The 1982 AG had said this was illegal under then-SDCL 4-3-4. SDCL 4-3-4 has been repealed and replaced by SDCL 4-3-4.2, and the airlines no longer require the original ticket to claim award travel. Can a state employee now use the frequent flier credits for personal travel?
Yes. AG Tellinghuisen overruled the 1982 opinion. Frequent flier miles are not 'emoluments or perquisites' of state employment because (1) the state pays nothing extra for them, (2) the airline (a thi…
When an emergency mental illness commitment is started in one county for a person who actually resides in another county, can the state's attorney in the county where the proceedings began send a bill for his or her legal services to the patient's home county?
No. SDCL 27A-10-2 reimburses 'apprehension and transportation' costs back to the county of residence, but does not list the state's attorney's services among reimbursable costs. SDCL 27A-9-15 reimburs…
South Dakota's 1988 Legislature repealed SDCL 10-10A, removing the separate assessment for severed mineral interests, so surface owners are now assessed on the full value. The 1989 tax freeze (Senate Bill 121) capped 1989-payable taxes at the 1988 levy. Does assessing surface owners on full value violate the freeze, or does it qualify as the Section 4 'change of use' exception?
Neither. The full-value assessment of surface owners does not violate the freeze because the freeze caps dollars of tax, not assessed value; the surface owner cannot be taxed at more than the 1988 dol…
Does SDCL 23A-40-7 allow the Davison County Board of Commissioners to issue a bid for a professional services contract under which a single attorney or law firm would handle the bulk of indigent defense representation in the county, rather than (a) creating a public defender's office or (b) using case-by-case court appointments at hourly rates?
Yes, with caveats. AG Tellinghuisen ruled that SDCL 23A-40-7's three statutory methods (public defender office, court-appointment plan, or combination) accommodate a bid-based professional services co…
Clay County petitioners ran short of valid signatures to put a county commissioner size change on the ballot before the deadline. Could later signatures carry over to the next primary? Could circulators be paid? Did unsigned-by-circulator petitions count? And when could a signer take their name off the petition?
Mostly yes, with one no. The AG concluded that original signatures expired when the petition missed its primary election window and the underlying petition became a nullity, but signatures gathered af…
A nonprofit hospital's administrator lived in a home the hospital had owned since 1967. The county discovered the residence had never been on the tax rolls and tried to add it. The hospital says the home is exempt as charitable property; the Director of Equalization says SDCL 10-4-9.3 only exempts property used for health-care services. Who is right?
The home was still exempt. AG Tellinghuisen concluded that the 1986 amendment to SDCL 10-4-9 did not strip charitable hospitals of the parsonage-style exemption recognized in the 1934 Scottish Rite Te…
Can South Dakota county officials use county funds to cover their travel, food, and lodging while lobbying the Legislature on county issues?
Yes, with conditions. County officials traveling to Pierre to provide legislative testimony or information on bills affecting county government are discharging official duties under SDCL 7-7-3 and 7-7…
Can the South Dakota State Board of Medical and Osteopathic Examiners discipline a physician for sexually harassing prospective employees and having sex with a patient, even though SDCL 36-4-30 does not specifically list those behaviors? And can the Board's investigators access patient medical records under SDCL 36-4-22.1, which only specifically mentions drug records?
Yes to both. SDCL 36-4-29's general grant of authority over 'unprofessional or dishonorable conduct' is not limited by the specific list in SDCL 36-4-30; the listed examples are illustrative, not exha…
When a South Dakota auditor catches the Department of Revenue applying tax laws inconsistently or retroactively, what can the auditor do? Who actually has the legal authority to adjust or write off taxes, and is the Secretary of Revenue required to write down the reasons for changing a tax assessment? Can tax laws even be applied retroactively?
The Secretary of Revenue and the Director of the Audit Division of the Department of Revenue had broad statutory authority to adjust tax audit amounts based on their interpretation of the law, subject…
In South Dakota, can the public hunt on a section line where the farmer has planted crops? Can they drive on unimproved section lines? When does a section line count as 'improved' enough to allow hunting? And if a landowner fences off a section line, what can a frustrated hunter or traveler actually do about it?
The public can drive on any section line that has not been formally vacated, even if the farmer has crops on it. The public can hunt on a section line if it has been 'improved' (anything done to facil…
The 1987 Legislature created the Department of Labor Employees Retirement Board to administer a retirement program established under SDCL 61-2-15. What is the scope of the Board's authority? Does it merely oversee the Department of Labor's administration of the plan, or does it actually administer the plan itself, including investment decisions, eligibility determinations, contribution and benefit amounts?
The Board administers the plan, fully. AG Tellinghuisen ruled that the 1987 Chapter 386 transferred the entire administrative authority from the Secretary of Labor (under SDCL 61-2-16) to the new Boar…
A Grant County resident died in a car crash in Codington County. The Codington County coroner ordered an autopsy. Which county had to pay the pathologist's $610 bill: the county where the person lived, or the county where they died and the autopsy was ordered?
The county whose coroner ordered the autopsy paid the bill. Under SDCL 23-14-9.2, autopsy fees were paid from the general fund of the county whose state's attorney or coroner had ordered the procedure…
Can a small South Dakota tourism town like Keystone use the proceeds from an additional 1% municipal sales tax adopted under SDCL 10-52-8 to buy, build, and maintain city parking lots to support local businesses and tourism?
Yes. The Town of Keystone could use SDCL 10-52-8 sales-tax funds for a municipal parking lot because that infrastructure clearly promoted the town and its tourist attractions. AG opinions had previous…
I bought a car in South Dakota in 1984 when there was no excise tax on used cars between SD residents, moved to Alaska for two years, and now I'm back trying to re-register. Can SD make me pay the excise tax now even though I never owed it before?
Yes, SD can charge the tax. The motor vehicle excise tax under SDCL Chapter 32-5B is paid 'on any registration which follows a sale' of the vehicle. The tax law in effect at the time of registration c…
When a South Dakota school district, county, or city wants to invest extra cash, can it just buy shares of a mutual fund that holds U.S. Treasury bonds? Or does it have to actually own the Treasury bonds itself?
It had to own the bonds itself. The AG concluded that SDCL 4-5-6 authorized political subdivisions to invest in U.S. government securities and securities guaranteed by the federal government, but only…
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Attorney general opinions in South Dakota are written by the South Dakota Attorney General's office in response to questions from state agencies, legislators, and prosecutors. They are not binding like court decisions, but courts and agencies treat them as persuasive guidance on how state law applies. Every opinion above has a plain-English question and short answer, plus a link to the full original text.