STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

November 8, 1968

Richard A. Duncan
State's Attorney, Hughes County
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-40

County District Courts acting as municipal judges or police magistrates. Place to file records and hold court as such municipal judge. Municipality furnishes clerk when Municipal Court is held at municipally furnished courtrooms.

Dear Mr. Duncan:

You have requested an official opinion relative to Chapter 145 of the Session Laws of 1968, which provides for the jurisdiction of certain Municipal Courts and Police Magistrate Courts in certain counties within this state.

You have submitted the these questions to be answered:

"1. Does such statute mean that the records and documents will be physically transferred from the City Hall to the Courthouse and the County Clerk of Courts, or does it mean the records will be left at the City Hall, but under the jurisdiction of the District County Judge?

"2. SDC 1960 Supp. 32.0713 has not been repealed. Does this mean that the Municipal Court, though conducted by the District County Judge, will continue to sit at the City Hall?

"3. If the Court shall continue to sit as a court at the City Hall, will the city furnish a clerk of court for such court?

QUESTION 1

It is my opinion that the records and documents of Municipal Court shall remain at the City Hall, and need not be transferred to the Courthouse for filing as records of such County District Court with the County Clerk of Courts.

You will notice Section 1 of Chapter 145 of the Session Laws of 1968 transfers the jurisdiction of the Municipal Court and Police Magistrates within those counties to which such statute is applicable. Section 2 does not provide that it affects all actions, but it affects all actions pending in Municipal Court at the time such jurisdiction is assumed by the District County Court. Section 1, itself having provided that "any and all fees, fines, deposits and penalties arising from actions pertaining to municipal ordinances shall be credited and paid to the municipality as provided in SDC 1960 Supp. 32.0709, and all acts amendatory thereof, except the filing fees, if any, for such actions which shall be retained by the clerk of the courts in which such matter is pending."

In this situation, and when the Legislature itself has been silent as to the practical matter as to the storage of records and documents appertaining to municipal courts (as well as police magistrates) actions, it seems logical that because the only thing transferred is the jurisdiction of the judge of a court, or a particular court, is affected by the Act, that such records be retained at the City Hall, even though the matter is disposed of by the District County Court.

QUESTION 2

It is my opinion that it is impossible to give a definite "YES" or "NO" answer to this question.

As I have stated, the statutes provide for the transfer of jurisdiction from what is designated a "municipal judge" or a "police magistrate," in certain counties, such county district court acts as either a "municipal judge" or as a "police magistrate" therein.

It is apparent from the amendments of statutes appearing in Chapter 143 of the Session Laws of 1968 that in the ordinary county, the Commissioners must furnish a courtroom for the county district courts in each county in his district. (One exception being that such may be furnished in his own home city when he does not reside at the county seat.)

Thus, we have a situation where the county is furnishing a courtroom for the county court, and also under the unrepealed statute-SDC 1960 Supp. 32.0713 the municipalities must furnish a courtroom for the Municipal Judge and Court.

In this situation, it is my opinion that it is for the individual County District Judge to determine where he will hold Municipal Court. He can hold such at his rooms in the Courthouse, if such is located within the city previously having a Municipal Court presided over by a Municipal Judge. Likewise, he can determine to hold court in the courtroom furnished for the Municipal Court, for the reason that the jurisdiction of such court still exists, but the statute provides in those certain counties, the office of Municipal Judge is occupied by the District County Judge.

In either of such instances, I do not believe that as long as the Municipal Court proceedings are held within the community previously having a Municipal Court, that any justifiable complaint could be raised that the Judge was holding court in an unauthorized place. (As to this interesting facet of the law, your attention is called to the following decisions in neighboring jurisdictions: WHALLON v. INGHAM CIRCUIT COURT (1883) 51 Mich. 503, 16 NW 876; FRANK v. CARROLL COUNTY (1895), 96 Iowa 158, 64 NW 768; CODY v. CODY (1898), 98 Wis. 445, 74 NW 217; STATE v. RICHARDS (1905), 126 Iowa 497, 102 NW 4391; SELLECK v. CITY OF JANESVILLE (1898), 100 Wis. 157, 75 NW 975, 41 LRA 563, 69 Am. St. Rep. 906; BELL v. JARVIS (1906), 98 Minn. 109, 107 NW 547, 8 Ann. Cas. 938; McINTOSH v. BOWERS (1910), 143 Wis. 74, 126 NW 548, and STATE EX REL ADAMS v. RIGG (1958), 252 Minn. 283, 89 NW 2d 898.)

It may well be at some future time a county district court may be holding municipal court at either of the places I have designated-either at its own courtroom as County Court, or at the Municipal Court courtroom, and a party to such action may object to holding court at such particular place. Unless the Legislature, prior to such objections, clarifies this particular point and authorizes Municipal Court to be held exclusively at the County Courthouse, or at the Municipal Courtroom, or authorizes the Judge himself to determine where to conduct such Municipal Court, because of such objection, there may be a question submitted which must be left to the final determination of our Supreme Court. There seems little doubt that in the absence of any such objection that the holding of Municipal Court at either place of itself will amount to more than a non prejudicial irregularity at the best.

QUESTION 3

It is my opinion that if the District County Court maintains Municipal Court (or Magistrate Court) at the courtrooms furnished by the municipality, such municipality should furnish the clerk of such court.

Section 1 of Chapter 144 of the Session Laws of 1968 provides that in those cases where the District County Judge also acts as Municipal Judge, the municipality must share in the payment of the salary of the Judge. By such limitation it is apparent that any other expenses connected with the operation of such Municipal Court is either paid pro-rata by all the counties making up such county court district, or by the municipality involved.

Logic would suggest that as such prosecutions in municipal court are to enforce municipal ordinances, that any additional expenses relating thereto should be paid exclusively by the municipality.

Respectfully submitted,

Frank L. Farrar
Attorney General