May 23, 1988
Mr. John Slattery
Union County State's Attorney
Post Office Box 398
Elk Point, South Dakota 57025
Official Opinion No. 88-22
Additional compensation for part-time state's attorneys
Dear Mr. Slattery:
You have requested an official opinion from this Office in regard to the following factual situation.
FACTS:
Union County was recently sued by Sioux Valley Hospital of Sioux Falls, South Dakota for an indigency claim on a local resident. This action was filed in Union County and the Union County State's Attorney's Office was counsel of record. The trial court granted the county's motion to dismiss but now Sioux Valley has appealed the matter to the South Dakota Supreme Court.
Based upon the above facts, you have asked the following questions:
QUESTIONS:
1. Whether a state's attorney is entitled to additional compensation over and above current salary and budget to handle an appeal before the South Dakota Supreme Court pursuant to SDCL 7‑16‑9.
2. Whether the state's attorney is legally entitled to decline representation of the county on appeal if additional compensation is not provided pursuant to SDCL 7-16-19.
IN RE QUESTION NO. 1:
It is my opinion, that there is no provision under SDCL ch. 7-16 for a board of county commissioners to pay a part-time state's attorney extra compensation to defend the county on a state appeal of a civil action originating within the county's borders. SDCL 7-16-9 provides:
The state's attorney shall appear in all courts of this county and prosecute and defend on behalf of the state or his county all actions or proceedings, civil or criminal, in which the state or county is interested or a party. No state's attorney is required to appear in courts outside his county to prosecute and defend on behalf of the state or his county, any action or proceeding, civil or criminal, in which the state or county is interested or a party, except as required under § 7-16-15. If a part-time state's attorney appears in courts outside his county or in federal courts to represent the state or his county, he may receive extra compensation for the legal services pursuant to § 7-16-6.
SDCL 7-16-16 provides:
Whenever the venue is changed in any criminal case or in any civil action or proceeding in which his county or the state is interested or a party, it shall be the duty of such state's attorney of the county where the criminal case was commenced, or of the county interested in such civil action or proceeding, to appear and prosecute such criminal case and to prosecute or defend such civil action or proceeding in the county to which the same may be changed.
SDCL 7-16-6 provides:
In all criminal cases and in civil cases if the county is a party, if two or more attorneys are employed by the defendant in a criminal case or by the opposite party in civil cases the board of county commissioners may employ counsel to assist the state's attorney in the trial of the cases at the compensation that is agreed upon between the board and counsel. In civil cases or administrative proceedings outside the county if the county or any county officers are named as parties, the board of county commissioners or county officers, if bringing suit in their official capacities or if sued in their individual or official capacities, may employ the county's state's attorney, deputy state's attorney, limited deputy state's attorney or any firm, association or corporation with whom the state's attorney, deputy state's attorney or limited deputy state's attorney is affiliated, to prosecute or defend the actions, and compensation in addition to the state's attorney's salary may be paid for the legal services.
In addition to the above quoted statutory provisions, SDCL §§ 7‑16‑18 and 7-16-23 prohibit a board of county commissioners from providing a part-time state's attorney with extra compensation or fees for performing official business except: (a) fees for child support enforcement services upon request of the Department of Social Services; (b) fees payable under contract for representation of the county or its officers in civil cases; (c) administrative proceedings outside the county pursuant to § 7‑16‑6; or (d) fees payable for representation of a board or commission acting pursuant to Chapter 46A-10A.
Based upon review of the above statutory provisions, it is my opinion that a board of county commissioners is not allowed to provide a part-time state's attorney any additional compensation for activities performed within his official capacity. The board of county commissioners, however, has discretion to award extra compensation for those specifically designated tasks under SDCL § § 7-16-6, 7-16-18, and 7-16-23.
Under the facts you have provided me, it is also my opinion that the board of county commissioners is prohibited from providing you extra compensation under SDCL § § 7-16-18 and 7-16-23. The reason for this is that the civil case which is currently on appeal before the Supreme Court in Pierre, South Dakota, was initially filed within Union County's borders. In support of this determination, I rely upon SDCL 7-16-15 which provides that a state's attorney is still obligated to prosecute or defend civil actions or proceedings even though the case is transferred outside the county. Though this is not a change of venue case, it is a comparable situation. Under the unified judicial system the South Dakota Supreme Court is the Supreme Court for Union County as well as every other county within the State. See also, Simpson v. Tobin, 367 N.W.2d 757 (S.D. 1985). Although the Court's venue, or place of sitting, is in Pierre, it is the Supreme Court within each county.
IN RE QUESTION NO. 2:
It is my opinion, that a state's attorney, pursuant to SDCL 7‑16‑9, is required to defend or prosecute a civil action, which was initiated within his county, on appeal before the South Dakot a Supreme Court. My reading of SDCL 7-16-9 is that a state's attorney is required to prosecute and defend all actions or proceedings, civil or criminal in nature which are initiated in his county. Only when the action or proceeding is initiated outside of the state's attorney's county is representation optional. To interpret this provision any differently would mean that a county could effectively lose representation from its elected official upon every appeal of a civil case in which the county is the plaintiff or defendant. This, of course, would not apply to criminal appeals because pursuant to SDCL 1-11-1(1) the Attorney General is responsible for handling matters on behalf of the State before the South Dakota Supreme Court.
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
