May 24, 1990

Ms. Mary G. Keller Beadle County State's Attorney P.O. Box 97 Huron, SD 57350

OFFICIAL OPINION NO. 90-19

Costs for emergency mental commitments

Dear Ms. Keller:

You have requested an official opinion from this Office in regard to the following factual situation:

FACTS:

A resident of County A was found in County B to be in need of emergency mental illness commitment. Involuntary emergency commitment proceedings were initiated in County B. No hearing was held in County B, as the patient was transported to the Human Services Center in Yankton where the necessary hearings took place. The part-time state's attorney in County B sent a bill for services to County A. County A declined to pay.

Based upon these facts, you have asked the following question:

QUESTION:

Is a state's attorney in a county where an emergency mental illness commitment is initiated entitled to reimbursement for services from the county of residence of the patient?

Emergency commitment of mentally ill persons is addressed in SDCL ch. 27A-10. SDCL 27A-10-1 states that the immediate treatment of a mentally ill person is to be initiated by a petition to "the chairman of the county board of mental illness where such allegedly mentally ill person is found." (Emphasis added.) The residence of the individual at that stage of the proceeding is immaterial, as the immediate goal is the proper treatment of the mentally ill person.

The duty of the state's attorney concerning mental illness proceedings can be found in SDCL 27A-9-4, which reads as follows:

In any proceeding for involuntary commitment or detention, or in any proceeding challenging such commitment or detention, the state's attorney for the county in which the proceeding was initiated shall represent the individuals or agencies petitioning for commitment or detention and shall defend all challenges to such commitment or detention.

Thus, it is the duty of the state's attorney to pursue the commitment of mentally ill persons, including emergency commitment.

Another statute pertinent to this discussion is SDCL 27A-10-2, which reads as follows:

After examination of an application filed under @ 27A-10-1, the chairman of the county board of mental illness may order the apprehension and transportation to an appropriate facility of an allegedly mentally ill person who meets the criteria set forth in 27A-10-1.

Expenses incurred in apprehension and transportation of the allegedly mentally ill person shall be paid by the referring county, subject to reimbursement by the county ultimately proven to be the county of residence or if a nonresident of the state, by the state of South Dakota.

SDCL 27A-10-2 is pertinent not for what it includes as a reimbursable expense, but what it does not include as a reimbursable expense.

SDCL 27A-10-2 allows reimbursement for the "apprehension and transportation" of the allegedly mentally ill person. That section is silent as to any costs incurred by the state's attorney's office in pursuing the commitment for the allegedly mentally ill person. Further, "apprehension and transportation" does not in its normal sense encompass duties performed by the state's attorney pursuant to the commitment procedures.

SDCL 27A-9-15 addresses the payment of fees for attorneys appointed to represent the alleged mentally ill person. That section directs the county of residence to pay the attorney appointed to represent the alleged mentally ill person. By contrast, there is no specific statute directing reimbursement for state's attorneys.

Therefore, I am of the opinion that a state's attorney cannot be reimbursed for services rendered during an emergency commitment procedure under SDCL ch. 27A-10. The answer to the question presented is no.

I have further reviewed Title 27A of the South Dakota Codified Laws, Mentally Ill Persons, and find no statutes which would authorize the reimbursement for state's attorneys concerning these matters. Essentially, pursuing mental illness commitments is a duty of the state's attorney's office much as it is a duty of the state's attorney's office to prosecute criminals. These duties are inherent in the office of a state's attorney, and not subject to reimbursement. To allow reimbursement in such a situation would be to sanction double reimbursement; the state's attorney would receive a salary from the county for his or her services, and an additional reimbursement for mental illness proceedings. This double reimbursement was not intended by the Legislature when it passed the mental illness laws.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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