STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 10, 1969

Mr. Richard Bogue
State's Attorney, Lincoln County
Canton, South Dakota 57013

OFFICIAL OPINION NO. 69-86

Jurisdiction of Justice Court over juveniles

Dear Mr. Bogue:

You have asked the question as to whether juveniles over sixteen may be tried in Justice Court as adults, or whether they must be brought before the District-County Court as a juvenile for violations of the game laws (SDCL 1967 Title 41); purchase, possession or consumption of intoxicating (SDCL 1967 35-9-2) or non-intoxicating beverages (SDCL 1967 35-9-4); driving while intoxicated (SDCL 1967 Ch. 32-23); and reckless driving (SDCL 1967 32-24-1 and 32-33-4l. The desire to have these violations handled in Justice Court is a reasonable and understandable one. Unfortunately, this procedure does not seem possible as the law now reads.

SDCL 1967 26-11-1 does, as you pointed out, allow prosecution of a minor as an adult for motor vehicle violations which are cognizable by a justice of the peace. Driving while intoxicated and reckless driving are motor vehicle violations, but are not cognizable by a justice of the peace (SDCL 1967 16-12-9). The other violations mentioned above are in many instances cognizable by a justice of the peace, but they are clearly outside the exceptions to Title 26, both by virtue of 26-11-1 and 26-8-7 (1968 Supp.), which defines a delinquent child:

"SDCL 1967 26-11-2 provides that 'If the arrest be for any other offense [than specified in 26-11-1] such child shall, instead of being taken before a magistrate or a municipal court, be taken directly before the county court; or if such child is taken before a magistrate or a municipal court upon complaint sworn out in such court or for any other reason, it shall be the duty of such magistrate or municipal court to transfer the case to the county court and the officer having the child in charge to take the child before that court and in such case the court may proceed to hear and dispose of the case in the same manner as if such child had been brought before the court upon petition originally filed therein, as provided in Chapter 26-8'"

As originally published, SDCL 1967 26-11-4 provided that:

"The county court may in its discretion, in any case of a delinquent child permit such child to be proceeded against in accordance with the laws that may be in force in this state governing the commission of crime or violation of city or town ordinances. In such cases the petition filed under Chapter 26-8 shall be dismissed."

This would seem to indicate that the District-County Court could, in a legitimate exercise of its discretion, transfer all violations enumerated by you back to Justice Court as a matter of policy. Such practice would have simplified matters considerably. However, the 1968 Legislature saw fit to amend 26-11-4 to read that such transfer may take place only after a transfer hearing (SL 1968, Ch. 164, S10). This would indicate an intent to prevent the indiscriminate transfer of such offenses as you have outlined here into Justice Court.

It is my opinion, therefore, that minors charged with the offenses you list must be taken before the District-County Court, but that the language of SDCL 1967 26-11-2 allows you to dispense with the petition under the circumstances indicated. If, after the necessary transfer hearing, the Court, in its discretion, transfers the minor back to Justice Court, it would be unnecessary to dismiss the petition for the obvious reason that none had been filed. Although this allows you to dispense with the petition in many instances, it would appear that the long range answer to your problem is legislative in nature, by amendment to SDCL 1967 26-8-7 and 26-11-l.

Although rendered before our so-called "new juvenile code" was adopted, you may find an opinion published as 1943-44 AGR 48 helpful. This reaches a similar conclusion on a similar question.

Respectfully submitted,

Gordon Mydland
Attorney General