April 8, 1976
Mr. Mark Kratochvil
Deputy State's Attorney
Brookings County
Brookings, South Dakota 57006
OFFICIAL OPINION 76-39
Duty of State's Attorney in tax appeals
Dear Mr. Kratochvil:
Your request for an opinion states that a certain taxpayer in Brookings County received an adverse decision from both Brookings County and the State Board of Equalization and is now appealing that ruling in Circuit Court in Brookings County. You have enclosed a copy of the Notice of Appeal and Complaint.
The question you ask is whether the office of Brookings County State's Attorney is required to represent the defendant (State Board of Equalization) in this action.
SDCL 10-11-43 provides:
Any such person, firm, corporation, taxing district, governmental subdivision or agency interested as described in §10-11-42 may appeal from the decision of the state board of equalization to the circuit court of the county in which the property which is the subject of the action is situated, and which appeal shall be taken in the same form and manner as appeals are taken from the decision of the board of county commissioners to such court.
Those with standing to appeal under SDCL 10-11-42 include:
Any person, firm or corporation, public or private, feeling aggrieved by the action of the county board of equalization relative to the assessment of its property or any taxing district or governmental subdivision or agency in which such property is located, . . .
The scope of the statutory duty of the state's attorney pursuant to SDCL 7-16-9 has been the subject of a number of opinions by my predecessors in office. (1959-60 AGR 377; 1937-38 AGR 522, 533, 1927-28 AGR 56.)
As to the matter of the requirement for a State's Attorney to prosecute appeals from courts within his county, our Supreme Court in the case of State vs. Marshall County, 14 S.D. 149, said, in part, as follows:
1959-60 AGR 378 summarizes the interpretation given thereto as follows:
It will be seen from the provisions of this section (SDC 12.1302 (2)) [now SDCL 7-16-9] that the State's Attorney is only required to appear in the Circuit Court of his own County and prosecute and defend on behalf of the state or his county all action or proceeding civil or criminal in which the state or county is interested or a party, . . . no duties are therein imposed upon the State's Attorney in the prosecution of the action in the Supreme Court . . .
There is no question that this action is of interest to the county and state. The ultimate decision reached in the case will have a direct monetary effect on the county. As is stated in 1937-38 AGR 533, wherein it was held that the state's attorney was required to advise on tax matters, "the collection of taxes is one of the most important functions of the Government."
The issue which your question implies is whether a state's attorney has a duty to represent defendants who are state employees (i.e., State Board of Equalization) rather than county employees. Again referring to SDCL 7-16-9, the key issue is whether the "action or proceeding" in the county is one in which the county or state is interested. The parties may be diverse as is evidenced by the language of SDCL 10-11-42 and 10-11-43, hereinbefore cited.
In addition, SDCL 10-11-44 authorizes an appeal to the circuit court directly from a decision by the county board of equalization. In such a situation, it is my opinion that the state's attorney must represent the county (1937-38 AGR 533) and the county board which is composed of the county commissioners and county auditor. Therefore, to reach a different conclusion, merely because an aggrieved party has chosen the alternative procedure of SDCL 10-11-43 would result in an inconsistent and absurd result.
The answer to your question is YES. The state's attorney has the duty to defend the action on behalf of Brookings County.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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