STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 14, 1970

AI A. Asher, Administrator
South Dakota Public Employees
Retirement System
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-50

District County Judge is not mandatorily a member of the South Dakota Public Employees Retirement System because one of the counties in his district elects to participate in such program. SDCL 3-12

Dear Mr. Asher:

You have requested my opinion in answer to this question:

Is it mandatory for a district county judge, one or more of whose counties has qualified to participate in the South Dakota Public Employees Retirement System, to be a member of such system?

You have advised that the trustees of the Public Employees Retirement System are of the opinion that as a district county judge cannot show he is within the exclusions from such act set forth in SDCL 3-12-20, if any of the counties within his district are participating in such retirement system, even if not all, such district county judge mandatorily is a member of such retirement system.

Prior to the amendment of the South Dakota Constitution in the General Elections of 1966, there was a county judge in each organized county of South Dakota. However, by the 1966 amendment of Section 19, of Article V of our Constitution, the Supreme Court of South Dakota was directed to promulgate rules of court, creating county court districts, with the approval of the Senate. The Constitution further provides that the Supreme Court, with the approval, may enlarge, change or reduce the counties comprising a county court district.

At the present time, South Dakota comprises sixty-four organized counties and three unorganized counties, attached to an organized county for judicial and administrative purposes. By virtue of Supreme Court Order No.1, 1968, approved by the Senate, there exists nineteen separate county court districts in South Dakota at this time. The number of counties comprising such districts range from one county to six counties. As I have stated, the makeup of such county court district is subject to change, by Supreme Court Rule, if such is approved by the Senate.

It is my opinion that while the county district judge acts as the county judge for each of the counties in his district, he, like the circuit judge in his district, or the Supreme Court in his district, is not a county employee or a county officer. The district county judge is a district officer. His salary is prorationed between counties, on a population basis, unless he also acts as a municipal judge within such district. In the latter case, his salary is apportioned between the counties and the cities for which he is municipal judge.

Because of the source of his salary, and with an appreciation that the counties comprising a district county judge may be changed, and the patent fact that he is not a county officer or employee, but is a district officer, leads me to the conclusion that there is no mandatory duty that he be a member of the South Dakota Public Employees Retirement System, merely because one of the counties within his district may elect to participate in such program.

Your specific question is answered NO.

Respectfully submitted,

Gordon Mydland
Attorney General