July 21, 1978

Mr. John R. Steele 
Deputy State's Attorney 
Aurora County 
Plankinton, South Dakota 57368

Official Opinion No. 78-31

Poor liens

Dear Mr. Steele:

You have asked for an opinion based on the following facts:

FACTS: 

The Aurora County Commission has made it a practice to file “poor liens” pursuant to SDCL 28-14, against the property of those who receive treatment for alcoholism at County expense.  It seems that this is authorized by the statutes, SDCL 28-14-3, -5, and -7.

Based on the above factual situation, you have asked the following questions:

QUESTIONS: 

1.  Is the statute authorizing liens without notice and hearing constitutional under the line of cases beginning with Sniadach v. Family Finance Corporation, 395 U.S. 337 (1969), and Fuentes v. Shevin, 407 U.S. 67 (1972)? 
    
2.  If the statute is constitutional, is the imposition and recordation of such liens discretionary or mandatory? 
    
3.  If it is discretionary, in whom does the discretion rest (i.e. the County Commission or the Auditor)? 
    
4.  Does the lien allowable extend to counseling services, provided in the home of the recipient, when the recipient is not informed that either he or the County will be billed for such services?

IN RE QUESTION NO. 1:

In response to your first question, I do not believe it is appropriate for this office to take a position that a state statute is unconstitutional unless it is so plain and palpably unconstitutional that no reasonable doubt can exist on the matter. Accordingly, in view of this presumption of constitutionality, I would take the position that the South Dakota poor lien statutes are not unconstitutional.

IN RE QUESTION NO. 2:

With regard to your second question, I would refer you to the provisions of SDCL 28-14-7 which provide: 
    
It shall be the duty of the county auditor, immediately after issuing of county warrants or payment of cash, as the case may be, for the benefit of any poor person, to record the name of such poor person for whose benefit such warrants or cash were issued, the amount thereof, the purpose for which such warrants or cash were issued, together with the name of the fund from which such warrants or cash were drawn, all properly indexed, and to subsequently record in a like manner each additional payment made by the county for such poor person.  Such record shall be filed in the office of the register of deeds of the county in which such poor person resides, and in the county of his legal residence or last residence, if he is an inmate of any state institution or deceased.

It is my view that the imposition and recording of South Dakota poor liens is mandatory.

IN RE QUESTION NO. 3:

In view of the answer to your second question, it is not necessary to answer your third question.

IN RE QUESTION NO. 4:

It appears to me that under SDCL 28-14-3, counseling services would be included if they are rendered to an individual for support or maintenance as a poor person and paid for by the county. Further, it is my view that the lien would attach even though the individual or recipient was not informed of the fact that it would attach to the property.  Notice to the recipient of attachment in my opinion, is not required.

Respectfully submitted,

William J. Janklow
Attorney General

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