STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 27, 1969
T. F. Martin
State's Attorney, Brookings County
Brookings, South Dakota 57006
OFFICIAL OPINION NO. 69-59
County District Courts: responsibility for facilities and equipment, fees and expenses of counsel appointed for indigents charged with municipal ordinance violations, jurisdiction of District County Court as such and as municipal court
Dear Mr. Martin:
You have requested my official opinion based upon the following factual situation:
"By virtue of the creation of District County Courts, and the selection of Brookings County as his administrative county, it has been necessary to remodel and furnish a suite of rooms for the District County Judge in the Brookings County Courthouse.
"Likewise, because of the population of the City of Brookings, the District County Judge, in pursuance to Ch. 145, Laws of 1968, will act as the Municipal Judge or Police Magistrate for the City of Brookings."
Based upon this factual situation, you have submitted four separate questions you have asked me to answer.
Question 1: Are the expenses of remodeling and refurnishing the courtroom and chambers for the District County Court in the Brookings County Courthouse chargeable solely to Brookings County, or may such expenses be included in the District County Court budget and chargeable, pro rata to all of the counties comprising such District County Court District?
QUESTION 2: Is office furniture and reference material and more particularly the new South Dakota Compiled Law, which will be kept within Brookings County, chargeable solely to Brookings County, or may such be prorated between all of the counties within the District County Court District? These two questions, in my opinion, were answered by my predecessor in his opinion of December 17, 1968, directed to Carl K. Anderson, a District County Judge-elect. As my predecessor pointed out, Section 13 of Chapter 143, Session Laws of 1968 require the county of his residence to furnish proper facilities, either at the courthouse, or if such judge be a nonresident of the county seat, at the place outside the county seat, that he chooses. Likewise, all of the counties within such district, of which he is not a resident, must furnish proper facilities for the transaction of business in such other counties. The duty and responsibility of furnishing such facilities (and to equip the same) falls solely upon the individual county within such district.
However, there are certain "non duplicating" items, such as a law library, judicial robes, and the like, which ordinarily need not be furnished by each county. As to these items, the costs should be borne by all of the counties comprising such county court district.
The mere fact Brookings County has been designated the administrative district, of itself, does not affect the opinion of my predecessor. The administrative county is selected in order to have a place to file a budget, and to make the officials of one county responsible to collect such costs from all counties within the district. Terms of court must be held in each county in the district (see Sections 14 and 15 of Chapter 143, Laws of 1968).
You will also notice that my predecessor has stated that the determination of what equipment, supplies, and facilities each county shall supply is left to the sound discretion of the District County Judge, not to either the State's Attorney or the Commissioners of the several counties comprising such district. I am in accord with this principle.
QUESTION 1 must be answered: Brookings County solely is responsible for the cost of remodeling and refurnishing the courtrooms and chambers in the Brookings County Courthouse for the District County Judge.
QUESTION 2 must be answered: As I have previously stated, I am in accord with my predecessor's ruling that the determination of what equipment, supplies, and facilities must be furnished by each individual county in the district, and what equipment, supplies and facilities are to be furnished collectively by all counties within the district is left to the sound discretion of the District County Judge.
You can appreciate that this office cannot lay down any hard and fast rules governing the exercise of this discretion. Each of the several district county judges will have to determine the proper method of conducting his office procedures. Each, of course, is charged with the duty of periodically covering each county in his district; because of the variation of sizes in such districts, it is apparent that the procedures of each district county judge will vary as to the proper method of performance of judicial duties.
As my predecessor pointed out, the items necessary for such court to properly function may be roughly classified as "duplicating" and "non-duplicating" items. If a particular district county judge has a small, compact district, he may find it proper to hold hearings in the counties outside of his "home" county, but return to his resident office to decide the points of law raised in such proceedings. Undoubtedly in such an operation his secretary or court reporter will perform his duties at the "resident office" of such judge. Under such a practice, it would seem that the typewriters and allied equipment, while located in but one county, is being used for the benefit of the entire district. Under such circumstances, the judge, within his discretion, could properly determine that the typewriter, a stenographer's desk and such equipment were, in fact, "non-duplicating" items, and the costs thereof are properly chargeable to the counties within his district. On the other hand, some of the county court districts are large, covering extensive territory. The judge of such district county court may find that the distances involved require him to engage in study, dictation, and other processes necessary to perform his duties in more than one county. His determination as to desks, typewriters and the like may require each county to furnish such items.
QUESTION 3-If counsel is furnished to indigents in pursuance to SDC 1960 Supp. 34.1901 (also SDCL 1967 23-2 Sections 1 through 3), as amended by Chapter 147 of the Session Laws of 1968, for violation of municipal ordinances, are the fees and expenses of such court-appointed attorneys chargeable solely to the county, or is such chargeable back to the municipality whose ordinance allegedly has been violated?
It is my 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 the opinion of December 17, 1968 to Carl K. Anderson, my predecessor suggested that any stenographic help necessary for a particular hearing would be an expense to be borne by the particular county in which such hearing was held. In an earlier opinion, dated November 8, 1968, addressed to State's Attorney Richard A. Duncan, in discussing the municipal court activities of the District County Court, it was said:
"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."
It is my opinion that these rulings of my predecessor are consistent one with the other, and are proper. Therefore, as stated, if an attorney is appointed to defend an indigent charged with a municipal ordinance violation, the costs and expenses of such attorney must be borne exclusively by the municipality.
You can appreciate, however, that when an indigent is charged with a statutory violation, whether the District County Court sits as an examining magistrate, or a judge trying such statutory violation on the merits, the costs and expenses of an attorney appointed to defend such indigent must be borne exclusively by the county wherein such crime allegedly was committed.
QUESTION 4: In civil actions, is the District County Judge's jurisdiction limited to those instances where service of summons may be affected within the particular county, or is such District Court's jurisdiction statewide? We can appreciate that while the authorization of District County Courts is constitutional (Sec. 19, Article V of the South Dakota Constitution, as amended by the vote of the electors in 1966) the Constitution still provides (Sec. 20, Article V) that other than its original jurisdiction, county courts shall have "such other civil and criminal jurisdiction as may be conferred by law."
We can further appreciate that the amendment of SDC 32.0907 (SDCL 1967 16-9-10 and 16-9-13) by Section 11 of Chapter 143 of the Session Laws of 1968, other than eliminating the population requirement of a particular county, for all practical purposes merely added the word "district" before "county court" in the statute.
We must also appreciate that in providing for District County Courts, the Legislature has not amended the procedure in county court. See SDC 33.27 (now SDCL 1967 15-31). Without embarking into a lengthy discussion, it is apparent that the constitutional provision in authorizing "such other civil and criminal jurisdiction as may be conferred by law" in the county courts is referring to legislative grant of such jurisdiction. The Legislature has provided the "jurisdiction" of the county courts. In its amendments to affect the District County Court System authorized by the constitutional amendment, it did not enlarge such jurisdiction. The only affect of such statutes is to provide that a single judge may act as a county court in more than one county. When so acting in a particular county, he has no more jurisdiction, as a district county judge, than did the old "county judge" he replaced.
Jurisdiction of the county courts-whether you call such county court or district county court-acting as such is governed by SDC 33.2704 and 33.2705 (SDCL 1967 15-31-4 and 5), Briefly, these provisions require:
1. If a defendant is a resident of the county where the action is brought, summons may be served outside the county in any case.
2. If action is brought on a joint contract, obligation or liability, against two or more persons and summons has been served on a defendant in the county where the action is brought, it may be served upon any other defendant outside the county. (Notice the special provisions in regard to promissory notes also included in SDC 33.2704 (SDCL 1967 15-31-5).)
3. When a defendant is a foreign corporation maintaining an agent for service of process within South Dakota, such agent may be served with summons in the county in which he resides as though the summons were served within the county in which the summons was issued.
Subject to the above stated principles, there seems no question that the rationale of Benedict v. Johnson (1893) 4 SD 387, 57 NW 66 applies, and summons issued out of a county court must be served within the county where issued.
While you have not inquired regarding the Municipal Court Jurisdiction of the District County Court, your attention is called to K & S Sales Co. v. Sorenson (1931) 59 SD 239, 239 NW 185 wherein under statutes similar to those still existing it was held that a municipal court does not obtain jurisdiction over a defendant served with process without the county. The basis for such decision is that SDC 32.0912 (SDCL 1967 16-11-35) provides that the jurisdiction of every municipal court shall be coextensive with and limited to the county in which the city is situated. Attention should be called to SDC 33.2804 (SDCL 1967 15-32-3) wherein service may be had upon a "joint" defendant outside the county, when one of the defendants has been served within the county.
Respectfully submitted,
Gordon Mydland
Attorney General
