STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 28, 1975

Mr. Peter J. Buttaro
Brown County State's Attorney
Brown County Courthouse
Aberdeen, South Dakota 57401

OFFICIAL OPINION NO. 75-182

Payment of court costs for indigent defendants

Dear Mr. Buttaro:

In your request for an official opinion, you state:

The Magistrate Court Judge in the Fifth Judicial Circuit has been appointing counsel for indigent defendants who have allegedly breached city ordinances. The City Commission has refused to pay for indigent counsel fees and the Brown County Commission on several occasions has paid the fees.

Based upon this brief factual situation, three questions have been submitted:

1. What governmental subdivision - the city or the county -should be charged with the payment of indigent counsel fees for violations of city ordinances?

The exact same question was presented to my predecessor for an official opinion in 1969. See Opinion No. 69-59. It was his opinion "that the fees and expenses of an attorney appointed to represent an indigent for violation of a city ordinance is payable from the funds of the municipality whose ordinances allegedly have been violated." In quoting an earlier official opinion pertaining to a related question, my predecessor stated:

Logic would suggest that as such prosecutions in municipal courts are to enforce municipal ordinances, that any additional expenses relating thereto should be paid exclusively by the municipality. (See Opinion No. 68-41.)

It is my opinion that the 1969 ruling of my predecessor is proper and dispositive of this question. Thus, a city must bear the expenses and fees of an attorney appointed to defend an indigent defendant charged with violating a city ordinance.

2. If it is your opinion that the city is obligated to pay these fees, is the city obligated to reimburse the county for fees already paid to appointed counsel in city ordinance cases?

With respect to this question, it is well settled that where the governing body of a political subdivision approves a claim with full knowledge of all the facts, in the absence of fraud or collusion, it cannot subsequently recover back the money paid. 64 C.J.S. Municipal Corporations § 2185, p. 1028. Therefore, it is my opinion that the county cannot recover back the money already paid for attorney fees for indigent defendants charged with the city ordinance violations.

3. If the above question is answered affirmatively, how far back in time is the city obligated to pay for these fees?

In view of my answer to the second question, this question is moot.

Respectfully submitted,

William Janklow
Attorney General

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