May 8, 1986

Mr. John R. Steele 
Aurora County State's Attorney 
Post Office Box 577 
Plankinton, South Dakota 57368

OFFICIAL OPINION NO. 86-17

County liens

Dear Mr. Steele:

You have requested an official opinion based on the following facts:

FACTS: 

The defendant 'X' was charged with the crime of attempted sexual contact with a child (apparently as provided in SDCL 22-22-7).'  The court appointed an attorney to represent the interests of the child victim, 'Y.' 'X' entered a plea of guilty to the charge and was sentenced to a term in the state penitentiary and was incarcerated to serve that sentence.  'X' was represented by retained counsel. The attorney for 'Y' submitted a statement for his services to the court, who approved the same, and ordered the statement paid by Aurora County.  The county paid the attorney for 'Y' for his services.  The court made no provision in the sentence imposed on 'X' requiring him to pay for the legal services furnished to 'Y.'

On the basis of those facts, you have asked the following questions:

QUESTIONS: 

1.  Should the county auditor file a lien against 'Y' and her parents for the amount paid to 'Y's' attorney? 

2.  Should the county auditor file a lien against 'X' for the amount paid to 'Y's' attorney?

IN RE QUESTION NOS. 1 AND 2:

South Dakota statutes specifically authorize appointment of an attorney for a minor under several factual situations.  SDCL Ch. 23A-40 authorizes appointment of counsel for indigent defendants in a criminal action, and creates a lien on the property of any person, including the parents of a minor child, for whom legal counsel has been appointed.  SDCL 15-6-17(c) provides for appointment of a guardian ad litem for a minor who is a party to civil litigation. SDCL 26-10-17 requires appointment of counsel for any minor child alleged to be abused or neglected, in any judicial proceeding.  SDCL 26-8-40.8 provides the court system shall assume responsibility for a minor under its legal custody, and for reimbursement by persons liable for the care and support of the minor.  SDCL 26-8-22.2 authorizes appointment of counsel for a minor alleged to be delinquent or in need of supervision.  None of these specific provisions apply to your fact situation.

Parents support obligations, set forth in SDCL Ch. 25-7, require  '. . . necessary maintenance, education, and support of the child . . .'  What may or may not be included within the term 'necessaries,' as that term applies to support obligations, is discussed at length in 59 Am.Jur.2d p. 55 Parent and Child, Sec. 55.  Authorities are divided as to what, if any, attorneys fees are within that classification.

Circuit court jurisdiction is defined at SDCL 16-6-8, and includes  'chancery as well as common law jurisdiction.'

It is my opinion that the court had the inherent power to appoint the attorney for 'Y' and to order the county to pay the fees of that attorney.  It is my further opinion that, had the court chosen to do so, the court could have made reimbursement of the county for those fees part of the sentence in the form of costs, or as a condition for suspending some part of the sentence.  The court not having done so, there appears to be no obligation at this time to pay the same.  Attorneys fees under these circumstances are not clearly 'necessaries' required to be furnished by a parent.  No authority is readily apparent for the court to order 'Y' to pay such fees.

It is, therefore, my opinion that, as to both Question No. 1 and Question No. 2, the answer is 'No.'

Respectfully submitted,

Mark V. Meierhenry
Attorney General