June 2, 1986

The Honorable Sheldon R. Songstad 
South Dakota Legislature 
Box 47 
Sioux Falls, South Dakota 57101

OFFICIAL OPINION NO. 86-19

Immunity of the South Dakota State Fair Commission

Dear Senator Songstad:

You have requested an official opinion from this office concerning whether the South Dakota State Fair Commission created by SDCL ch. 1-21 and the individuals comprising the Commission are immune from suit in South Dakota  pursuant to the doctrine of sovereign immunity.

The South Dakota Legislature has enacted SDCL 21-23-15 through 17 conclusive.  Those statutes provide: 

21-32-15.  The state of South Dakota, through the commissioner of administration, may obtain and pay for public liability insurance to the extent and for the purposes considered expedient by the commissioner for the purpose of insuring the liability of the state, its officers, agents or employees. 

21-32-16.  To the extent such liability insurance is purchased pursuant to §  21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued. 

21-32-17.  Except as provided in §  21-32-16, any employee, officer or agent of the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability damages brought against him in either his individual or official capacity.

In 1985, the Governor of South Dakota requested an advisory opinion of the South Dakota Supreme Court relative to the constitutionality and construction of the statutes set out above. Specifically, the Court was asked: 

Has the Legislature in enacting SDCL 21-32-17 constitutionally extended  to executive, legislative, and judicial employees, officers or agents of the state, including members of state boards and commissions, immunity from suit or liability for damages brought or sought against them in either their individual or official capacity for ministerial or discretionary acts committed while acting within the scope of their employment, agency or duties? 

In re Request for Opinion #15187, 379 N.W.2d 822, 824 (S.D. 1985).

In responding to that question, the Supreme Court reviewed the judicial history of sovereign immunity in South Dakota.  Following this review the Court stated: 

The legislature has now spoken on the subject [sovereign immunity]; our prior 'judge-made' law has been overruled and SDCL 21-32-17 now defines the scope of sovereign immunity. 

Id. at 825.  The Court went on to hold: 

Immunity under SDCL 21-32-17 is granted to members of State Boards and Commissions to the extent that they are employees, officers or agents of the state. Id. at 826.

Accordingly, since by virtue of SDCL 1-21-1 the State Fair Commission is clearly an agency of the State created by the Legislature, it falls squarely within the terms of SDCL 21-32-17 and its immunity or the immunity of its  individual members is defined by that statute.

Some concern has been expressed regarding whether the provisions of SDCL 1-21-7 could be construed as a waiver of immunity for the State Fair Commissioners.  This statute provides: 

The state fair commission as such shall have the power of a body corporate to sue and be sued, to contract and be contracted with; to purchase, hold, and sell property; and to erect buildings in connection with the state fair.

In the first place, the statute set out above addresses itself solely to 'the State Fair Commission as such' when it functions as 'a body corporate.'  At the very most, that language allows actions based on contract with the State Fair Commission, as opposed to individual commissioners, to proceed in court.

Second, the South Dakota Supreme Court has on two occasions addressed the effect of similar language and concluded that the 'sue and be sued' clause does not constitute a waiver of sovereign immunity from tort liability.  In Guillaume by Guillaume v. Staum, 328 N.W.2d 259 (S.D. 1982), relating to school districts in South Dakota the Court held: 

In the absence of statute waiving sovereign immunity from tort liability, statute authorizing a school district to sue and be sued did not create a cause of action in tort.  SDCL 13-5-1. 

Id. at 260.  Almost identical language is found in SDCL 13-49-11 relating to the State Board of Regents regarding which the Supreme Court held:  

Statute permitting board of regents to 'sue and be sued' did not, in the absence of statutory authority expressly waiving sovereign immunity, create cause of action in tort against . . . board.  SDCL 13-49-11. 

Kringen v. Shea, 333 N.W.2d 445, 446 (S.D. 1983).  There is no distinction between the sue and be sued language as addressed to school districts or the Board of Regents and there should be no basis for a different construction of this language in the State Fair Commission setting.

Third, in the event the argument is raised that in some manner the state is acting in a proprietary function in the operation of the South Dakota State Fair through the State Fair Commission, it appears that prior holdings of the South Dakota Supreme Court have foreclosed that possibility as well.  In High Grade Oil Company v. Sommer, 295 N.W.2d 736 (S.D. 1980), the Supreme Court noted: 

This court has recognized the rule that as to the state there is no distinction between governmental and proprietary functions. 

295 N.W.2d 738 citing State v. Board of Commissioners, 53 S.D. 609, 632- 633, 222 N.W. 583, 593 (1928).  Since our Court has previously held that the State itself, as opposed to local subdivisions of government, always acts in a governmental as opposed to a proprietary function, there simply are no openings in the wall of sovereign immunity surrounding the State, its officers, and employees.

There is of course one major exception to this entire doctrine. As noted by the South Dakota Supreme Court in its most recent opinion on the matter: 

This immunity, however, does not protect individuals from liability for actions under 42 U.S.C. §  1983 or other federal statutes that protect federally guaranteed rights. 

(Citations omitted.)  In re Request for Opinion, 379 N.W.2d 822, 825 (S.D. 1985).  Except for the exception noted above and a further exception premised upon acts of employees or agencies outside the boundaries of the State of South Dakota, my answer to your question is that the State Fair Commission, its commissioners, officers, and employees are immune from suit in any case in which sovereign immunity is raised as a defense.

Respectfully submitted,

Mark V. Meierhenry
Attorney General