January 30, 1981

Mr. James K. McAtee 
Secretary 
Department of Public Safety 
118 West Capitol, Room 206 
Pierre, South Dakota 57501

Official Opinion No. 81-6

Proof of Service Requirements

Dear Mr. McAtee:

You have requested an official opinion from this office based on the  following factual situation:

FACTS: 

The Department of Public Safety, Driver Improvement Program identifies those individuals who are either unable or unwilling to drive safely. Actions against these unsafe drivers are initiated by the Department with several forms which are currently sent by certified mail at an annual cost of $12,850.

Based on the above facts, you have asked the following question:

QUESTION: 

Is an affidavit, made before a person authorized to administer an oath, by the person depositing the notice in the U.S. mail, stating the address to which the notice was addressed, that the same is the last known address of the person to be notified and that notice was mailed by first class mail with sufficient postage thereon, sufficient proof of service to fulfill the requirements of 'notice by mail' as used in SDCL 1-26-29?

SDCL 1-26-29 states, in relevant part: 

No revocation, suspension, annulment, or withdrawal of any license is  lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license.

SDCL 15-6-5(b) states, in relevant part: 

Service by mail shall be by first class mail and is complete upon mailing.  An attorney's certificate of service, the written admission of service by the party or his attorney or an affidavit shall be sufficient proof of service.

SDCL 15-6-5(b) clearly states that service by mail shall be by first class mail.  Proof of service by an affidavit stating the name of the person to be notified, his last known address, that the notice is being sent by first class mail, postage prepaid, the date of the mailing and the notarized signature of the person who mails the notice would certainly be sufficient.

It is my opinion that the 'notice by mail' mentioned in SDCL 1-26-29 is not notice by certified mail but rather is service by first class mail with some appropriate proof of service, either an attorney's certificate of service, the admission of the party served or an affidavit.

Respectfully submitted,

Mark V. Meierhenry
Attorney General