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CHAPTER 21-32

REMEDIES AGAINST THE STATE

21-32-1      Office of Commissioner of Claims created--Appointment of circuit judge to act.
21-32-2      Limitation of actions on claims against the state.
21-32-3      Filing of petition on claim for which no appointment--Certification to presiding circuit judge--Appointment of commissioner--Filing if claim arose, or petitioner resides, out of state.
21-32-4      Service of petition on attorney general--Answer and defense by attorney general.
21-32-5      Time and place fixed for hearing claim--Notice to attorney general.
21-32-6      Evidence received at hearing on claim--Adjournment of hearing.
21-32-7      Filing of commissioner's findings on claim against the state--Submission to Governor and Legislature--Findings advisory only.
21-32-8      State as defendant in actions involving property.
21-32-9      Service on attorney general in property action involving state--Appearance and representation of state.
21-32-10      Original action in Supreme Court on claim disallowed by state auditor--Filing of complaint.
21-32-11      Undertaking for costs filed by plaintiff in Supreme Court action.
21-32-12      Service of complaint and notice to plead on attorney general--Pleading by attorney general.
21-32-13      Trial of action in Supreme Court.
21-32-14      Execution not issued against state--Judgment certified to state auditor--Payment of damages.
21-32-15      Liability insurance--Purchase by state.
21-32-16      Waiver of immunity to extent of insurance coverage--Consent to suit.
21-32-17      Immunity of state officers, employees, and agents.
21-32-18      Service on attorney general required for waiver--Judgment void without service.
21-32-19      Payment of certain medical and property damage claims against state--Rules.
21-32-20      Sovereign immunity not waived.
21-32-21      Effectiveness of § 21-32-19.


     21-32-1.   Office of Commissioner of Claims created--Appointment of circuit judge to act. There is hereby created the Office of Commissioner of Claims. The presiding circuit judge for the county in this state in which an alleged claim on contract or tort against the state has arisen shall appoint a circuit judge from the circuit for the county in which the action arose lies to act ex officio as the commissioner.

Source: SL 1947, ch 156, § 1; SDC Supp 1960, § 33.4301; SL 1978, ch 157, § 1.


     21-32-2.   Limitation of actions on claims against the state. Action on any claim on contract or tort against the state shall be commenced within one year after same has arisen.

Source: SL 1947, ch 156, § 7; SDC Supp 1960, § 33.4307.


     21-32-3.   Filing of petition on claim for which no appointment--Certification to presiding circuit judge--Appointment of commissioner--Filing if claim arose, or petitioner resides, out of state. Upon the filing with the clerk of courts of the county in which such claim arose of a petition in form of a complaint duly verified, setting forth, among other things that the petitioner has a just and meritorious claim against the State of South Dakota for the payment of which no appropriation exists, the clerk of courts, upon payment of his fees, shall certify under his seal to the presiding circuit judge of the circuit in which such county lies the said petition whereupon the said presiding circuit judge shall appoint a circuit judge who shall act as such commissioner of claims as provided in this chapter. If the claim arose, or was otherwise reduced to judgment, in a jurisdiction outside of South Dakota, the petition shall be filed with the clerk of courts of the county where the petitioner resides or, if the petitioner does not reside in South Dakota, with the clerk of courts of Hughes County.

Source: SL 1947, ch 156, § 2; SDC Supp 1960, § 33.4302; SL 1978, ch 157, § 2; SL 1992, ch 167.


     21-32-4.   Service of petition on attorney general--Answer and defense by attorney general. Within five days after the filing of said petition with the clerk of courts the petitioner shall cause to be served upon the attorney general of the state, in the manner required for service of a summons in civil actions, a certified copy of such petition. Within thirty days after the service of such petition the attorney general may file with the clerk of courts his answer thereto; provided, the failure of the attorney general to file an answer shall not preclude him from participating in any hearing herein provided for and urging any defense or objection thereto he may deem proper.

Source: SL 1947, ch 156, § 3; SDC Supp 1960, § 33.4303.


     21-32-5.   Time and place fixed for hearing claim--Notice to attorney general. At any time after thirty days after the service of such petition upon the attorney general and upon ten days' notice by either party the commissioner shall fix a time and place for hearing said claim, due notice of which shall at least ten days prior to the day fixed for hearing be given in writing to the attorney general.

Source: SL 1947, ch 156, § 4; SDC Supp 1960, § 33.4304.


     21-32-6.   Evidence received at hearing on claim--Adjournment of hearing. At such hearing the commissioner shall hear and consider evidence in support or in opposition to such claim. The testimony presented at such hearing shall be under oath and such hearing may be adjourned from time to time as the commissioner may deem necessary to afford the persons interested a full opportunity to present all of the necessary, relevant, and pertinent facts in connection with the merits of such claim in conformity with the rules of evidence in civil proceedings.

Source: SL 1947, ch 156, § 5; SDC Supp 1960, § 33.4305.


     21-32-7.   Filing of commissioner's findings on claim against the state--Submission to Governor and Legislature--Findings advisory only. After the conclusion of such hearing, the commissioner shall prepare his findings, fully itemized, in respect to the amount of the claim or damages. Such findings shall be filed in the office of the clerk of courts of the county in which the petition was filed and a duplicate thereof filed in the Office of the Governor, who shall submit the same to the next session of the Legislature for consideration, compromise, settlement, or rejection by appropriate action. The findings of the commissioner shall be advisory only, and shall not be construed or considered as an acknowledgment of liability in any manner or extent on the part of the state.

Source: SL 1947, ch 156, § 6; SDC Supp 1960, § 33.4306.


     21-32-8.   State as defendant in actions involving property. In any and all actions to determine adverse claims to real or personal property, or involving the possession of real or personal property, or to foreclose mortgages or other liens upon real or personal property, or to partition the same, the State of South Dakota may be sued and made defendant in the courts of this state.

Source: SL 1919, ch 156, § 1; SL 1923, ch 141; SDC 1939 & Supp 1960, § 33.0403.


     21-32-9.   Service on attorney general in property action involving state--Appearance and representation of state. When the State of South Dakota is made defendant pursuant to § 21-32-8, service shall be made upon it by the service of a copy of the summons and complaint upon the attorney general, who shall represent the state in the action and protect its rights and interest, if any it has in said real or personal property and he may require the state's attorney of the county where said property is situated to assist him in such litigation.

Source: SL 1919, ch 156, § 2; SL 1923, ch 141; SDC 1939 & Supp 1960, § 33.0403.


     21-32-10.   Original action in Supreme Court on claim disallowed by state auditor--Filing of complaint. It shall be competent for any person deeming himself aggrieved by the refusal of the state auditor to allow any just claim against the state, to commence an action against the state by filing with the clerk of the Supreme Court in accordance with chapter 15-25 a complaint setting forth fully and particularly the nature of the claim.

Source: SL 1890, ch 1, § 1; RCCivP 1903, § 25; RC 1919, § 2109; SDC 1939 & Supp 1960, § 33.0604.


     21-32-11.   Undertaking for costs filed by plaintiff in Supreme Court action. At the time a complaint is filed pursuant to § 21-32-10, the plaintiff shall file an undertaking in the penal sum of five hundred dollars, with two or more sureties, to be approved by the state treasurer, to the effect that he will indemnify the state against all costs that may accrue in such action, and pay to the clerk of the Supreme Court all costs in case he shall fail to prosecute his action, or to obtain a judgment against the state; and thereupon the action shall be placed upon the calendar of said court.

Source: SL 1890, ch 1, § 1; RCCivP 1903, § 25; RC 1919, § 2109; SDC 1939 & Supp 1960, § 33.0604.


     21-32-12.   Service of complaint and notice to plead on attorney general--Pleading by attorney general. The plaintiff, within ten days after having filed the complaint and undertaking, pursuant to §§ 21-32-10 and 21-32-11, shall serve a copy of the complaint upon the attorney general and the state auditor, together with a notice to plead or answer thereto within thirty days after the service of such complaint and notice, exclusive of the day of service; and the attorney general shall thereupon be required to answer or plead within the time specified in such notice.

Source: SL 1890, ch 1, § 2; RCCivP 1903, § 26; SL 1913, ch 166; RC 1919, § 2110; SDC 1939 & Supp 1960, § 33.0604.


     21-32-13.   Trial of action in Supreme Court. The trial of such action shall be conducted in accordance with chapter 15-25 and any special rule or order made for trial of the particular case by the Supreme Court.

Source: SL 1890, ch 1, § 3; RCCivP 1903, § 27; RC 1919, § 2111; SDC 1939 & Supp 1960, § 33.0604.


     21-32-14.   Execution not issued against state--Judgment certified to state auditor--Payment of damages. No execution shall issue against the state on any judgment, but whenever final judgment against the state shall have been obtained in any action under §§ 21-32-10 to 21-32-13, inclusive, the clerk of the Supreme Court shall make and furnish to the state auditor a duly certified transcript of such judgment, and the auditor shall thereupon audit the amount of damages and costs therein awarded, and the same shall be paid out of the state treasury.

Source: SL 1890, ch 1, § 4; RCCivP 1903, § 28; RC 1919, § 2112; SDC 1939 & Supp 1960, § 33.0604.


     21-32-15.   Liability insurance--Purchase by state. The State of South Dakota, through the commissioner of administration, may obtain and pay for public liability insurance to the extent and for the purposes considered expedient by the commissioner for the purpose of insuring the liability of the state, its officers, agents, or employees.

Source: SL 1981, ch 169, § 1; SL 1984, ch 162.


     21-32-16.   Waiver of immunity to extent of insurance coverage--Consent to suit. To the extent such liability insurance is purchased pursuant to § 21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued.

Source: SL 1981, ch 169, § 2.


     21-32-17.   Immunity of state officers, employees, and agents. Except as provided in § 21-32-16, any employee, officer, or agent of the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity.

Source: SL 1983, ch 16, § 1.


     21-32-18.   Service on attorney general required for waiver--Judgment void without service. In order for waiver of sovereign immunity in § 21-32-16 to be effective in an action against a state official, employee, or agent; notice of the action shall be given to the attorney general as provided in § 15-6-4(d). The attorney general shall within thirty days after the receipt of service, sign and date the admission of service and mail it to the sender. Any judgment rendered in an action involving waiver of sovereign immunity pursuant to § 21-32-16 is void unless service has been made as provided herein.

Source: SL 1984, ch 144, § 2.


     21-32-19.   Payment of certain medical and property damage claims against state--Rules. The commissioner of administration may adopt rules pursuant to chapter 1-26 establishing a policy for the payment of, and may pay for, property damage and medical claims made against the state up to an amount of two thousand dollars. Any rules adopted by the commissioner pursuant to §§ 21-32-19 to 21-32-21, inclusive, shall provide for approval of claims by the attorney general prior to payment, require a release of all claims against the state or any employee or agent thereof arising from the incident, require a written statement of any state employee involved in an incident regarding the facts involved, allow payment only when the settled law of this state would impose liability upon the state or its employee in the absence of governmental or sovereign immunity and provide that any payment be reduced by any amount owed to the state or any of its agencies by the claimant.

Source: SL 1988, ch 183, § 1.


     21-32-20.   Sovereign immunity not waived. Neither §§ 21-32-19 to 21-32-21, inclusive, nor any rules promulgated thereunder may be deemed a waiver or alteration of the doctrine of governmental or sovereign immunity.

Source: SL 1988, ch 183, § 1A.


     21-32-21.   Effectiveness of § 21-32-19. The provisions of § 21-32-19 and any rules adopted thereunder are not effective while the state participates in the liability coverage program for public entities pursuant to chapter 3-22 or to the extent coverage is afforded under any contract of insurance the state may purchase.

Source: SL 1988, ch 183, § 2.


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