STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
December 17, 1968
Carl K. Anderson
Elected District County Judge
First County Court District
Canton, South Dakota 57013
OFFICIAL OPINION NO. 68-49
Practical problems facing District County Court Judges
Dear Judge Anderson:
May I congratulate you on being elected to the office of District County Court Judge of the First County Court District. Because of the importance of your inquiries to all whom are elected to a similar position, I am taking the liberty of answering your questions in an official opinion. I am also of the opinion that these inquiries should be of the utmost interest to members of the South Dakota Legislature who may desire to furnish definite answers to some of these questions by way of legislation.
Before considering the seven (7) separate inquiries relative to the District County Court Judge, may I advise I have heretofore issued two opinions relative to County District Courts. These opinions are: Opinion dated July 19, 1968, addressed to Miss Alma Larson, Secretary of State; and an opinion dated November 8, 1968 addressed to State's Attorney Richard A. Duncan. I am forwarding copies of these opinions for your files.
QUESTION 1. WHEN DOES THE TERM OF COUNTY DISTRICT COURT JUDGES ELECTED IN THE 1968 GENERAL ELECTION COMMENCE?
The districting of the County Courts of this state was made possible only by virtue of the amendment of Sections 19 and 20 of Article V of the South Dakota Constitution, which the people accepted in the General Election of 1966.
The amendment of Section 19 specifically provides that such districting or redistricting "shall not work the removal of any county judge from his office during the term for which he shall have been elected or appointed." In view of this Constitutional provision, I must agree with you that by virtue of SDC 48.0311 the term of such District County Judge shall commence on the first Monday in January following election to such office. Such term is for four years and will run until the first Monday in January following the General Election of 1972, or until a successor to such office is elected and qualifies.
QUESTION 2. PLACE OF FILING, AND AMOUNT, OF OATHS AND BONDS OF COUNTY DISTRICT COURT JUDGES.
SDC 48.0301 provides: "Except when otherwise provided, all civil officers shall qualify substantially in the manner and form prescribed by this chapter." SDC 48.0302 requires an official oath to be taken and a bond filed by every person elected or appointed to any civil office, except members of the South Dakota Legislature.
The statutes relative to the District County Court are silent as to oaths and bonds; however, such is a "civil office," and an oath and bond are required. Compliance with SDC 48.03 is necessary.
In an opinion of my predecessor reported in 1943-44 AGR 22, it was held that the oath of office could be taken outside of the State of South Dakota as long as such oath was administered by a person authorized by South Dakota Statute to administer oaths. Likewise, it was held that the bond of such official could be forwarded with such oath of office. I concur in this opinion.
While it seems relatively ridiculous to require the District County Judge to file an oath and bond in every county comprising his district, the Legislature, by its silence, leaves each District County Judge in a quandry. Is filing in the "administrative county" sufficient, or should there be filing in each of such counties within the district?
In this situation, and to be safe, it is my suggestion that each District County Judge take an oath of office before any person who by SDC 1960 Supp. 48.0801 is qualified to administer such oath, and file such oath with the County Auditor of each county comprising his district. Along with the oath he should file a bond in the amount required by the County Commissioners of each separate county within his district (see SDC 48.0304) with each County Auditor of such counties with the district, and after approval, have such recorded with the Register of Deeds of the county as provided by SDC 48.03.
QUESTIONS 3 AND 4. BUDGETING AND EXPENSES OF COUNTY DISTRICT COURT DURING 1969.
By virtue of Section 1 of Chapter 144, Session Laws of 1968, which statute becomes effective January 1, 1969, each District County Judge designates one of the counties within his district as the Administrative County for such District Court. Such provides that on or before July 1, of each year, the District County Judge prepare a budget for his office. Such proposed expenses are paid pro-rata by the counties (and in certain instances municipalities also participate) within the district.
There seems little question that the District County Judge should designate such administrative county upon assumption of such office. However, such budget cannot be prepared until July 1969, and because of the time of its preparation, for all practical effect, such budget will not be effectuated until the next fiscal year-or 1970.
Certainly the Legislature did not intend that the District County Judge would operate without a salary or expenses during the year 1969. Otherwise, it seems illogical to believe that the Legislature expected the county of residence should bear all of the expenses of such office during 1969.
In this situation, and with an appreciation that every county should have budgeted for the County Court for 1969, each District County Court Judge should file a monthly claim for salary and necessary expenses with the County Auditor of the Administrative County. This County Auditor should compute the necessary pro-ration between the counties comprising the district and bill each of the counties for their monthly pro-rata share of the expenses of such district county court. It would follow, of course, in those districts where a municipality must share such costs, that such monthly billing be furnished to such affected municipalities.
QUESTION 5. STENOGRAPHIC HELP FOR DISTRICT COUNTY JUDGE This inquiry raises a serious question-who determines whether such District County Judge is entitled to stenographic, or other help, and who fixes the salary for such help? Perusual of the 1968 enactments to implement the District County Courts discloses no legislative assistance to answer these questions.
However, the Legislature, in its revision of the statutes relative to juvenile hearings (Chapter 164 of the Session Laws of 1968), in Section 16 has provided that:
"A verbatim record shall be taken of all adjudicatory hearings. A verbatim record shall not be required in any other hearings unless ordered by the Court."
The Legislature has required the District County Judge, unless he be satisfied that a tape recording thereof satisfies the statute, that some form of court reporting is necessary and required in all juvenile adjudicatory hearings. There are other matters within the jurisdiction of the Court which require transcription even without a positive mandate of statute.
There seems little question that in certain situations the District County Judge must have a court reporter. There seems little doubt that at other times, while perhaps not requiring a secretary that qualifies as a court reporter, the Judge will require stenographic help to transcribe letters, rulings and the like which are necessarily connected with the office.
Whether or not such assistance should be hired "full time" or only when the necessity requires; whether a full time stenographer should be hired, but in cases of a court reporter, hiring only on a "job" basis; and many more questions are such that do not lend themselves to either a "yes" or "no" answer, neither are they questions which can be properly answered by the County Commissioners of the several counties that make up the district. These questions can be answered only by the individual District County Court Judge. He must survey the necessities of his particular district and the demands that will be placed upon him as such Judge. He must exercise discretion in the matter to the end that he can adequately and properly perform the duties of such office and at the same time respect the financial problems of the counties within the district.
When the District Judge concludes that he cannot effectively perform the duties of a judge without such help, he has authority to employ the necessary assistants and fix a proper salary for such services. If such is fulltime help the expense should be borne by the counties in the district. In cases of the employment of a specific court reporter for a particular hearing, it would seem this expense must be borne by the particular county wherein such hearing is held.
QUESTION 6. WHAT MILEAGE PAYMENT MAY A DISTRICT COUNTY COURT JUDGE COLLECT?
You have suggested that the mileage for the District County Judge is ten cents a mile as set by SDC 1960 Supp. 12.1710, as last amended by Chapter 18 of the Session Laws of 1968. I agree with this conclusion that the mileage is ten cents a mile.
QUESTION 7. FURNISHING OF OFFICE SPACE, EQUIPMENT, SUPPPLIES AND OTHER ESSENTIALS FOR THE DISTRICT COUNTY COURT JUDGE.
Section 15 of Chapter 143 of the Session Laws of 1968 require each District County Court Judge to convene court at the courthouse or place designated at the county seat of each county within his district at least once each month.
Section 14 of the same act provides for the furnishing of chambers when the District County Judge does not reside in the county seat. It then provides as follows:
"Except in cases where chambers are furnished under the provisions of the preceding paragraph, it shall be the duty of the Board of County Commissioners in every county in the state wherein the District County Judge shall be a legal resident of such county, residing at the county seat, to provide such room or rooms and equip the same for the transaction of any county court business at the county seat of such county.
"It shall be the duty of the Board of County Commissioners in every county to furnish the District County Judge such office space, equipment, office furniture, and supplies as may be required for the proper discharge of his duties within the county."
This statutory authorization makes it clear that the District Judge must not only be furnished with proper facilities and supplies in the county of his residence, but such must also be furnished at the county seat of each county within his district.
There are certain supplies which it would seem should be furnished by the individual counties at each of the places provided for the court. These items should be furnished by the individual county affected. However, there are other items, such as the necessary law library, perhaps a judicial robe, and the like, which the judge may find necessary and essential to properly function, but which need not be duplicated in each of the counties of the district.
As to these nonduplicating items, it is my opinion that it would be unfair to require the resident county to furnish such items, which will be used in the entire district. After a budget can be executed, such will be paid for by the taxpayers of the entire district. Until such budget can operate, it is my opinion that the expenses for such items should be "billed" to the Auditor of the administrative county, for pro-rationing between all the counties in the district.
Because of the nature of such items, the determination of what should be furnished in each county and what may serve the entire district must be left to the sound discretion of each District County Judge.
Respectfully submitted,
Frank L. Farrar
Attorney General
