August 19, 1977

Mr. Max Gors, Secretary 
Department of Commerce and
  Consumer Affairs 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 77-70

Effect of placing chapter 153 of the 1976 Session Laws in chapter 20-13

Dear Mr. Gors:

You have requested an official opinion from this office based upon the following factual situation:

FACTS: 

In 1972, the South Dakota Legislature passed the South Dakota Human Relations Act.  This act originally prohibited discrimination on the basis of race, color, creed, sex, religion, national origin or ancestry.  Covered areas were employment, education, labor unions, property rights, public services, housing accommodations and public accommodations.  Public accommodations was therein defined. SDCL 20-13-23 specifically defines what is prohibited and lists the same bases listed above.

Based on the above facts, you ask the following question:

QUESTION:

By the enactment of SDCL 20-13-23.1 to 20-13-23.3, inclusive, are the division and Commission on Human Rights authorized to process complaints of discrimination on the basis of blindness or physical disability in the area of public accommodations?

Chapter 25 of the 1977 Session Laws in effect codifies the placing of the above-cited law in the South Dakota Human Relations Act chapter.  This, in my opinion, necessarily means that the rule of construction afforded by SDCL 2-14-11 is available to the codified provisions of SDCL 20-13-23.1 to - 23.3, inclusive.

The above does not necessarily mean, however, that the Human Rights Commission is authorized to process all complaints of discrimination on the basis of blindness or physical disability in public accommodations.  An analysis of SDCL 20-13-23.1 to -23.3, inclusive, indicates that nowhere are the terms discriminatory or unfair practices used.  Pursuant to SDCL 20- 13-39, complaints are to be filed by persons aggrieved by a discriminatory or unfair practice.  “Discriminatory or unfair practices” as defined by SDCL 20-13-1(14) are limited to certain acts which, because of race, color, creed, religion, sex or national origin, result in denials, limitations or impairments of certain rights. “Blindness” and “physical disability” are not included in the definition of “discriminatory or unfair practices.”

By contrast, SDCL 20-13-30 allows complaints to be filed with the Commission for violations of the chapter.  Certainly the provisions of SDCL 20-13-23.1 to -23.3, inclusive, are now part of chapter 20-13.  Accordingly, I have to conclude that such complaints are capable of being heard by the Commission under 20-13-30 procedures.  SDCL 20-13-29 does not, however, authorize the Commission to hear complaints presented under the authority of that statute.

Although the penalty for violation of SDCL 20-13-23.1 to -23.3, inclusive, is a misdeameanor, it is not inconsistent for the Commission to have authority to hear complaints under SDCL 29-13-20 and attempt conciliation or other authorized remedial actions which necessarily must fall short of criminal prosecution.  I doubt this bifurcated system is what the Legislature intended when considering those provisions, but this is my view of what has been established.

In summary, I do not believe that the addition of SDCL 20-13-23.1 to -23.3, inclusive, to chapter 20-13 has changed the definition of unfair or discriminatory practices to allow the Commission to generally equate the prohibited practices of SDCL 20-13-23.1 to -23.3 with these definitions. Its inclusion in the chapter does, however, have to be seen as having application to procedures and actions authorized by statutes such as SDCL 20-13-30 which speak of noncompliance with the chapter's provisions. Noncompliance with SDCL 20-13-23.1 to -23.3, inclusive, is by definition noncompliance with the provisions of chapter 20-13.

Respectfully submitted,

William J. Janklow
Attorney General

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