September 12, 1977

Mr. Edmund J. Baer, Supervisor 
Office of Correctional Services 
Board of Charities and Corrections 
Foss Building 
Pierre, South Dakota 57501

Official Opinion No. 77-78

Exercising control of discipline over youth on “After-Care” supervision from Training School by “detaining” them

Dear Mr. Baer:

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

FACTS: 

The State Training School has a supervision program for juveniles known as “After-Care.”  The philosophical approach of the Office of Correctional Services is that our staff when performing “After-Care” supervision for juveniles is an extension of the Training School staff.  “After-Care” supervision is the conditional release of a youth from the State Training School into the community for rehabilitation purposes.  The corrections agent in cooperation with the State Training School and youths will establish the conditions of the “After-Care” supervision and make recommendations to the Board of Charities and Corrections for termination of such “After-Care” supervision.

Based on the above facts you ask the following questions:

QUESTIONS: 

1.  Do the local corrections agents have the authority over an individual on “After-Care” to lock him up for discipline reasons or to return him to the training school? 
    
2.  If the answer to no. 1 is yes, in what manner can this be exercised? 
    
3.  Legally, where do our agents stand with this type of supervision in exercising control and discipline? 
    
4.  What continued authority does the sentencing judge have after the youth has been released on “After-Care” supervision? 
    
5.  Do the parole agents under the Office of Correctional Services fall under the present definition of being a law enforcement officer?

IN RE QUESTION NO. 1:

In regard to your first question concerning the authority of your agents to exercise control over the person of the youth “After-Care” supervision, I believe that your agents can exercise reasonable control including detention over such persons.  The institution under the Board of Charities and Corrections which has been given the custody of such a delinquent child does, in my view, have the authority to maintain reasonable controls over that person as part of the treatment program at the training school and as well, while in the community, prior to being released, on programs such as “After-Care.”  See SDCL 24-9-6, 24-9-10, 26-8-38 and 26-8-44.  It is my view, however, that any such physical detention while on “After-Care” should not be imposed without a due process hearing if the detention period exceeds 48 hours. SDCL 26-8-23.1, Morrissey v. Brewer, 33 L.Ed.2d 484 (1972).  If 48 hours is not a long enough period of time to enable a transfer to be made back to the training school or other similar correctional institution, the parole agent can extend the detention period a reasonable time to enable such transfer to be made.  In this regard, the 48-hour cutoff period is not to be seen as an absolute.  The point is here, however, that a reasonable good faith necessity for detention can probably be justified; abuse of such detention, however, can only lead to legal problems.

One must also remember in this regard, that SDCL 26-8-29 forbids any child under fifteen years of age being incarcerated in any common jail or lockup.  This provision does apply to physical detention in the “After-Care” setting.

IN RE QUESTION NO. 2:

In regard to your second question, it is my understanding that your major concern is whether or not the juvenile sentencing judge needs to be conferred with before such detention can be affected. It is my opinion in this regard that so long as the physical detention does not exceed the above-noted limitations, it is not necessary to get permission for such action from the sentencing judge.  If it is possible to contact the sentencing judge on this sort of matter before taking corrective action, it would seem to me to be a desirable measure.  Because of the wide variance in factual circumstances, however, this will undoubtedly not always be possible.

IN RE QUESTIONS NO. 3 AND 5:

In regard to your third question, I believe it is obvious that there can be no guarantees to your agents not having problems in taking actions such as detaining delinquents on “After-Care.”  All it takes to bring a lawsuit, of course, is a person willing to go to the trouble of starting one.  There are, however, several legal theories which I believe support the right of the state and their agents to exercise reasonable supervision over such persons on “After-Care” and to take appropriate steps to carry out this state function. Much, of course, will depend on the factual situation in any particular controversy.

First of all, there is the concept of governmental immunity which says basically that the state cannot be sued without its consent.  Although older South Dakota cases recognize that this immunity principle also extends to state officers and employees engaged in the performance of their official duties, some recent decisions from the federal courts in this district indicate that the federal courts do not favor sovereign immunity and will not apply it to cases where a public employee is sued individually.  This does become a matter of concern to public employees, but it is not determinative of the issue.  All it means is that the sovereign immunity defense is not available; the plaintiff will still have to prove his case against any public employee being sued.  My view is that if the parole agent was acting in a reasonable manner and in a capacity within the scope of his authority, a lawsuit brought against him here will not prevail.

A second area of interest in this regard is the matter of insurance coverage.  SDCL 3-19 provides for possible state financial assistance in the event of a claim or action being instituted against employees for acts occurring within the scope of their employment.  The 1977 Legislature raised the level of compensation here from $3,000 to $10,000.  Indemnity in excess of $10,000 for any liability of a state employee could be presented as a claim to the Legislature.

SDCL 3-5-5.1 further provides for the purchase of a blanket bond covering all state employees.  This blanket bond provision may be of some interest and value to a state employee being sued in his official capacity.

Finally, there is the matter of public employee liability insurance.  The state presently has one such policy that specifically covers named law enforcement officers.  Another policy covers state employees generally, with certain areas such as medical malpractice and the South Dakota Highway Patrol being excluded.  The obvious question is, therefore, are your parole agents law enforcement officers?

SDCL 23-21-7 defines the term “peace officer.”  I do not believe your parole agents are included within this general definition. (See SDCL 26-7- 9.)  SDCL 23-3-27 defines “law enforcement officer” as being any employee or officer of this state or any political subdivision thereof and who is responsible for the prevention and detection of crime and the enforcement of the criminal or highway traffic laws of the state.  SDCL 22-1-2(20) further defines “law enforcement officer” for certain purposes within the new criminal code.  It appears to me that neither definition makes your parole officers “law enforcement officers.”  I believe this conclusion also answers your fifth question.

IN RE QUESTION NO. 4:

In regard to your fourth question concerning the continuing authority of the sentencing judge over the juvenile on “After-Care,” I believe that the judge does have continuing jurisdiction.  In the 1977 Legislative Session, SDCL 26-8-49.1 was amended to exclude the following language: 
    
Such court may within that period make further disposition of the child to become effective upon his discharge by the board.

SDCL 26-8-41.1 now provides: 
    
No boy or girl shall be committed to any institution under the control of the board of charities and corrections for a longer term than until he or she shall have attained the age of twenty-one years, but the board of charities and corrections by its order may at any time discharge a boy or a girl from such institution as a reward of good conduct, upon satisfactory evidence of reformation, or release the boy or girl for “After-Care” services and supervision until discharged.  Ten days prior to making such a disposition, the board shall send a notice to the committing court of its intent.

SDCL 26-8-50 provides: 
    
The court shall also have power to make all orders relative to children committed by such court in order to apply the benefits of this chapter to such children, and for the purpose of reclaiming such children the court may send its process into any county in this state.

In addition to SDCL 26-8-50, SDCL 26-8-51 and -52 also seem to me to support the conclusion that the sentencing judge can re-enter a case and make appropriate orders even after the child may have been sent to the custody of the training school.  The transfer of custody to the training school does not negate these provisions of law.  The omission of the above-cited language from SDCL 26-8-49.1 may well have been intended to keep the court out of the corrections process at the training school, but without further change to the above-cited statutes the courts' position remains.  Thus, the answer to your question appears to be that the court does have the ability to re-enter the case and make appropriate orders even after the child has been sent to the training school.  This authority does not necessarily mean, however, that sentencing judges will generally interfere and meddle with the training program approved by the Board of Charities and Corrections.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:jo