June 1, 1978

Mr. David Gilbertson 
City Attorney 
513 First Avenue East 
Sisseton, South Dakota 57262

Official Opinion No. 78-25

Powers of Human Rights Commissions established under SDCL 20-12

Dear Mr. Gilbertson:

You have requested an opinion from this office regarding the following questions:

QUESTIONS: 

1.  Can a Human Rights Commission be created without giving it subpoena power in light of SDCL 20-12-6? 
    
2.  Does SDCL 20-12 give a Human Rights Commission the power to order restitution to a complainant where the Commission finds in the complainant's favor? 
    
3.  In light of SDCL 20-12, can a Human Rights Commission be granted the authority to handle complaints of alleged discrimination due to physical disability?

IN RE QUESTION NO. 1:

In regard to your first question, SDCL 20-12-6 provides: 
    
In the hearing of verified complaints, such a commission shall have the power and authority to subpoena and examine witnesses, administer oaths, take testimony, and require the production for examination of relevant books or papers and to take such affirmative action as in the judgment of such commission will effectuate its purposes.

It is my view that the above-cited statute states that once such a commission is established, it does have the subpoena power when hearing verified complaints.  The answer to your question is no.

IN RE QUESTION NO. 2:

In regard to your second question, I believe the provisions of section 20-12-5 are significant.  That statute provides: 
    
To effectuate the foregoing policy municipalities and counties may establish a commission on human relations which may act to disseminate information, to engage in and co-operate with persons or groups interested in similar objectives, to conduct public meetings and hearings, to mediate and conciliate in instances of alleged discrimination, and to initiate and hear complaints alleging discrimination with such investigation and inquiry as may reasonably appear necessary.

Nowhere in the above-cited statute do I find any authority for the commission to order restitution to a complainant where the commission would find in the complainant's favor.  The powers of the commission in section 5 are enumerated and appear to specifically exclude enforcement powers such as the power to order restitution. This sort of lack of enforcing power may make the effectiveness of such a commission more questionable, but I believe that in answering this question, one must follow the general rule that such a unit of local government would have only those powers specifically granted to it by the Legislature.  In view of the powers granted, I do not see and cannot infer any power to order restitution to a complainant.

IN RE QUESTION NO. 3:

In response to your third question, I believe the provisions of section 30- 12-4 are significant.  That statute provisions: 
    
Municipalities and counties shall have and are hereby granted power and authority to investigate any and all discriminatory practices based on sex, race, color, creed, religion, ancestry, or national origin, with respect to employment, labor union membership, housing accommodations, property rights, education, public accommodations, or public services.

In analyzing the above statutory language, I believe it is apparent that physical disability is not included in any of the specific areas of sex, race, color, creed, religion, ancestry, or national origin.  Those areas are the ones in which the Legislature has granted the power to such a commission to investigate discriminatory practices.  In my view, the authority of such a commission is limited to the investigatory powers granted to them by the Legislature which do not include investigation of discriminatory practices based upon physical disability.

The views expressed herein are not inconsistent with those expressed in Official Opinion 77-70 for the reason that this opinion deals with municipal and county commissions and their authority under Chapter 20-12; the former opinion dealt with the State Human Rights Commission and their authority under Chapter 20-13.  The statutory powers granted to these different entities are not identical and as a result discrimination on the basis of physical disability may be covered by one (Chapter 20-13), but not by the other (Chapter 20-12).

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:jo