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CHAPTER 7-16

STATE'S ATTORNEY

7-16-1      Election at general election--Oath and bond--Licensed attorney required.
7-16-2      Judicial appointment of acting attorney in event of absence, inability, or disqualification--Fees.
7-16-3      Appointment, qualifications, and powers of deputy attorneys.
7-16-4      Deputy for desertion and public welfare laws in large counties.
7-16-5      Salaries of deputies.
7-16-6      Employment of counsel to assist state's attorney in trial--Employment of state's attorney or deputy in proceedings outside county.
7-16-7      Employment of special investigative agents--Qualifications--Compensation--Records.
7-16-7.1      Employment of paralegal and secretarial assistance.
7-16-8      Opinions and advice to county officers--Fees.
7-16-9      Prosecution and defense of actions for state and county--Proceedings outside county or in federal court.
7-16-9.1      Examination of cases where offender committed or released on bail.
7-16-10      Prosecution of preliminary informations before magistrate.
7-16-11      Attendance and advice to grand jury--Issuance of process.
7-16-12      Repealed.
7-16-13      Prosecution of actions by public authorities for child support.
7-16-14      Actions against county commissioners for misconduct in office.
7-16-15      Continuation of prosecution or defense after change of venue.
7-16-16      Reimbursement of traveling expenses incurred on official business--Mileage allowances.
7-16-17      Reimbursement of expenses outside county.
7-16-18      Extra fees for official business--Representation of private parties--Judicial office--Full-time state's attorney.
7-16-19      Full-time position--Private practice prohibited.
7-16-19.1      Part-time state's attorney--Office at business address authorized.
7-16-20      Duplicate receipts issued for fines, penalties, and costs received.
7-16-21      Deposit and accounting for fines, penalties, and costs received--Failure to account as theft.
7-16-22      Action on attorney's bond for recovery of money received.
7-16-23      Fees and costs in addition to salary--Full-time state's attorney.
7-16-24      Consolidation of office of state's attorney to create office of regional prosecutor.
7-16-25      Establishment of office of regional prosecutor--Notice requirement--Option to withdraw from or modify agreement--Election of state's attorney.
7-16-26      Agreement to create office of regional prosecutor--Specifications of office.
7-16-27      Election district for office of regional prosecutor.
7-16-28      Election of state's attorney for office of regional prosecutor--Oath of office, bond and eligibility requirements.
7-16-29      Application of chapter.
7-16-30      Amendment or modification of regional prosecutor agreement--Existing and future terms.
7-16-31      Residency requirements for state's attorney in counties with low population.


     7-16-1.   Election at general election--Oath and bond--Licensed attorney required. A state's attorney shall be elected in each organized county of this state at each general election, who shall qualify by taking the oath of office and giving a bond as provided by law.
     No person shall be eligible to the Office of State's Attorney who is not duly licensed to practice as an attorney and counselor at law by the Supreme Court of this state.

Source: RPolC 1903, § 9271/2; RC 1919, § 5997; SDC 1939, § 12.1301; SL 1965, ch 27, § 1.


     7-16-2.   Judicial appointment of acting attorney in event of absence, inability, or disqualification--Fees. The circuit court, whenever there shall be no state's attorney for the county or when the state's attorney is absent or unable to attend to his duties or is adversely interested or disqualified, may appoint, by an order to be entered in the minutes of the court, some duly licensed attorney and counselor at law to perform for the time being the duties required by law to be performed by the state's attorney and the person so appointed shall thereupon be vested with all the powers of such state's attorney for that purpose; and the circuit court shall, by an order in the minutes of the court, fix his fees therefor, which amount shall be allowed by the board of county commissioners and when so ordered by the court shall be deducted from the salary of the state's attorney. Nothing in this section shall be so construed as to give the court power to permanently fill vacancies in such office.

Source: SL 1883, ch 43, § 7; CL 1887, § 434; SL 1889, ch 59, § 1; RPolC 1903, § 934; SL 1905, ch 90; RC 1919, § 6004; SDC 1939, § 12.1304.


     7-16-3.   Appointment, qualifications, and powers of deputy attorneys. The state's attorney may appoint one deputy or limited deputy who shall be a duly licensed attorney and counselor at law having the qualifications required of state's attorneys, and if authorized by the board of county commissioners by resolution duly entered upon its minutes, the state's attorney may appoint one or more additional deputies or limited deputies, each of whom shall likewise be a duly licensed attorney and counselor at law having the qualifications required of state's attorneys. During such deputyship the person so appointed shall be vested with all the powers of the state's attorney, subject to the control of the state's attorney. A limited deputy shall be vested with only those powers specifically delegated by the state's attorney in writing at the time of his appointment, shall serve at the pleasure of the state's attorney and be under his supervision and control.

Source: SL 1891, ch 108, § 1; RPolC 1903, § 935; SL 1917, ch 191; RC 1919, § 6005; SL 1921, ch 398; SL 1927, ch 194; SDC 1939, § 12.1305; SL 1941, ch 31; SL 1985, ch 50, § 1.


     7-16-4.   Deputy for desertion and public welfare laws in large counties. In all counties with a population of more than fifteen thousand as shown by the last federal census, the state's attorney shall appoint, and the board of county commissioners must allow a proper compensation as set by a judge of the circuit court for one deputy or limited deputy state's attorney who shall be responsible to assist in the enforcement of the desertion and public welfare laws of this state.

Source: SDC 1939, § 12.1305 as added by SL 1963, ch 42; SL 1985, ch 50, § 2.


     7-16-5.   Salaries of deputies. The salaries of the deputy state's attorneys shall be paid in the same manner that the salary of the state's attorney is paid each month.
     No deputy state's attorney shall be entitled to receive any salary under the provisions of this section, unless the state's attorney shall, at the same time, attend to and perform the duties of his office as provided by law.
     The board of county commissioners may in its discretion allow such compensation for the deputies as it shall deem proper.

Source: SL 1891, ch 108, § 1; RPolC 1903, § 935; SL 1917, ch 191; RC 1919, § 6005; SL 1921, ch 398; SL 1927, ch 194; SDC 1939, § 12.1305; SL 1941, ch 31.


     7-16-6.   Employment of counsel to assist state's attorney in trial--Employment of state's attorney or deputy in proceedings outside county. In all criminal cases and in civil cases if the county is a party, if two or more attorneys are employed by the defendant in a criminal case or by the opposite party in civil cases the board of county commissioners may employ counsel to assist the state's attorney in the trial of the cases at the compensation that is agreed upon between the board and counsel. In civil cases or administrative proceedings outside the county if the county or any county officers are named as parties, the board of county commissioners or county officers, if bringing suit in their official capacities or if sued in their individual or official capacities, may employ the county's state's attorney, deputy state's attorney, limited deputy state's attorney or any firm, association or corporation with whom the state's attorney, deputy state's attorney or limited deputy state's attorney is affiliated, to prosecute or defend the actions, and compensation in addition to the state's attorney's salary may be paid for the legal services.

Source: SL 1901, ch 93, § 1; RPolC 1903, § 944; RC 1919, § 6014; SDC 1939, § 12.1306; SL 1983, ch 44, § 2; SL 1985, ch 50, § 3.


     7-16-7.   Employment of special investigative agents--Qualifications--Compensation--Records. The board of county commissioners may by resolution recorded in their minutes, authorize the state's attorney to employ one or more special agents, either continuously or temporarily, to serve upon authorization of the attorney general or his designee, whose duty it shall be to assist the state's attorney in the investigation of crimes. The state's attorney shall inform the attorney general or his designee when special agents are employed or terminated. A special agent shall be a certified law enforcement officer and shall be under the control and direction of the state's attorney. The board of county commissioners, by resolution, shall set a per diem or hourly salary for special agents for actual time worked which shall be paid by the county upon presentation of itemized vouchers approved by the state's attorney. The state's attorney shall maintain offense, investigative and cancellation reports on matters in which he employs special agents in a form substantially similar to those forms used by the division of criminal investigation.

Source: SL 1921, ch 398; SL 1927, ch 194; SDC 1939, § 12.1305; SL 1941, ch 31; SL 1968, ch 14; SL 1979, ch 44.


     7-16-7.1.   Employment of paralegal and secretarial assistance. A state's attorney may employ a paralegal assistant and secretarial assistance as is necessary for the efficient operation of his office. The employment of assistance is subject to prior approval of the board of county commissioners, who shall determine the compensation that the employees receive.

Source: SL 1982, ch 68.


     7-16-8.   Opinions and advice to county officers--Fees. The state's attorney shall give opinions and advice without fee to the board of county commissioners and other civil officers of his county, if requested by the board or officers, upon all matters in which the county is interested or relating to the official duties of the board or officers. However, a part-time state's attorney may receive a fee in addition to the state's attorney's salary for legal services rendered pursuant to contract in behalf of the county or county officers in civil cases and administrative proceedings outside the county, pursuant to § 7-16-6 or to a board or commission acting pursuant to chapter 46A-10A.

Source: SL 1883, ch 43, § 4; CL 1887, § 430; RPolC 1903, § 930; RC 1919, § 6000; SDC 1939, § 12.1302 (1); SL 1983, ch 44, § 5; SL 1986, ch. 378, § 2.


     7-16-9.   Prosecution and defense of actions for state and county--Proceedings outside county or in federal court. The state's attorney shall appear in all courts of his county and prosecute and defend on behalf of the state or his county all actions or proceedings, civil or criminal, in which the state or county is interested or a party. No state's attorney is required to appear in courts outside his county to prosecute and defend on behalf of the state or his county, any action or proceeding, civil or criminal, in which the state or county is interested or a party, except as required under § 7-16-15. If a part-time state's attorney appears in courts outside his county or in federal courts to represent the state or his county, he may receive extra compensation for the legal services pursuant to § 7-16-6.

Source: SL 1883, ch 43, § 2; CL 1887, § 428; RPolC 1903, § 928; RC 1919, § 5998; SDC 1939, § 12.1302 (2); SL 1983, ch 44, § 6; SL 1985, ch 51.


     7-16-9.1.   Examination of cases where offender committed or released on bail. Each state's attorney shall inquire into and make a full examination of all the facts and circumstances of every case where an offender is committed to jail or released on bail.

Source: SL 1895, ch 64, § 6; RCCrimP 1903, § 210; RC 1919, § 4706; SDC 1939 & Supp 1960, § 34.1504; SDCL, § 23-20-8; SL 1978, ch 164, § 8.


     7-16-10.   Prosecution of preliminary informations before magistrate. It shall be the duty of the state's attorney, when requested by any magistrate of his county, to appear on behalf of the state before any such magistrate and prosecute all preliminary informations on behalf of the state of which such magistrate shall have jurisdiction.

Source: SL 1883, ch 43, § 3; CL 1887, § 429; RPolC 1903, § 929; RC 1919, § 5999; SDC 1939, § 12.1302 (4).


     7-16-11.   Attendance and advice to grand jury--Issuance of process. It shall be the duty of the state's attorney whenever required by the grand jury to attend them for the purpose of examining witnesses in their presence or of giving them any advice on any legal matter, and to issue subpoenas or other process to compel the attendance of witnesses.

Source: SL 1883, ch 43, § 11; CL 1887, § 438; RPolC 1903, § 932; RC 1919, § 6002; SDC 1939, § 12.1302 (5).


     7-16-12.   Repealed by SL 1985, ch 52.


     7-16-13.   Prosecution of actions by public authorities for child support. It shall be the duty of the state's attorney to commence and prosecute forthwith all actions and proceedings, civil or criminal, brought by the authorities charged with the support of any legitimate or illegitimate child for the recovery and enforcement of support for such child, including actions commenced under chapter 25-9A.

Source: SDC 1939, § 12.1302 (7) as added by SL 1963, ch 41.


     7-16-14.   Actions against county commissioners for misconduct in office. It shall be the duty of the state's attorney to begin and prosecute a civil action or actions on behalf of the county against the county commissioners, or any one or more of them, for malfeasance in office, misappropriation of public funds, or other misconduct whenever there is reasonable cause therefor and he shall be requested so to do by a written petition signed by fifteen resident taxpayers of the county.

Source: SL 1897, ch 116, § 1; RPolC 1903, § 931; RC 1919, § 6001; SDC 1939, § 12.1302 (3).


     7-16-15.   Continuation of prosecution or defense after change of venue. Whenever the venue is changed in any criminal case or in any civil action or proceeding in which his county or the state is interested or a party, it shall be the duty of the state's attorney of the county where such criminal case was commenced, or of the county interested in such civil action or proceeding, to appear and prosecute such criminal case and to prosecute or defend such civil action or proceeding in the county to which the same may be changed.

Source: SL 1883, ch 43, § 2; CL 1887, § 428; RPolC 1903, § 928; RC 1919, § 5998; SL 1927, ch 193; SDC 1939, § 12.1302.


     7-16-16.   Reimbursement of traveling expenses incurred on official business--Mileage allowances. The state's attorney and the state's attorney's deputies and special agents are entitled to receive from the county the necessary traveling and hotel expenses while traveling for the purpose of making investigations and attending to the duties of office either within or without the state. The county treasurer shall pay the expenses upon the presentation of itemized vouchers approved by the state's attorney. If the state's attorney, the deputy, or special agent used a personal motor vehicle, the person is entitled to receive not more than the state rate for each mile necessarily traveled.

Source: SL 1921, ch 398; SL 1927, ch 194; SL 1933, ch 70; SDC 1939, § 12.1305; SL 1941, ch 31; SL 1968, ch 14; SL 1978, ch 52, § 2; SL 2016, ch 44, § 28.


     7-16-17.   Reimbursement of expenses outside county. If the state's attorney of one county is requested to go to another county or from one part to another part of the county to transact any business as state's attorney, the state's attorney shall be paid by the county the amount of the necessary expenses in transacting the business in addition to the salary fixed by the county board.

Source: SL 1883, ch 43, § 6; CL 1887, § 433; RPolC 1903, § 938; RC 1919, § 6008; SDC 1939, § 12.1307; SL 2016, ch 44, § 29.


     7-16-18.   Extra fees for official business--Representation of private parties--Judicial office--Full-time state's attorney. Other than fees payable for child support enforcement services upon request of the Department of Social Services under a cooperative agreement with the board of county commissioners, fees payable upon request of the Department of Social Services under a cooperative agreement with the board of county commissioners under the Violence Against Women Act, 42 USC 3796gg et seq. as of January 1, 1997, and fees payable under contract for representation of the county or its officers in civil cases and administrative proceedings outside the county pursuant to § 7-16-6 or fees payable for representation of a board or commission acting pursuant to chapter 46A-10A, the state's attorney may not receive any fee or reward from or on behalf of any prosecutor or other individual for services in any prosecution or business to which it is the state's attorney's official duty to attend, nor be concerned as attorney or counselor for either party, other than for the state or county, in any civil action depending on the same state of facts upon which any criminal prosecution commenced, but undetermined, shall depend. No state's attorney, while in office, is eligible to hold any judicial office. A full-time state's attorney, as defined by § 7-16-19, is not entitled to receive the fees payable for child support enforcement services or services under the Violence Against Women Act provided herein, nor is a full-time state's attorney entitled to extra compensation for representing the county or its officers in civil cases and administrative proceedings outside the county provided herein or for representing a board or commission acting on drainage matters.

Source: SDC 1939, § 12.1307; SL 1977, ch 64, § 1; SL 1983, ch 44, § 3; SL 1986, ch 378, § 3; SL 1997, ch 46, § 1.


     7-16-19.   Full-time position--Private practice prohibited. In any county of over fifty thousand population and any other county where the board of county commissioners so designates, the state's attorney shall be a full-time position and the state's attorney may not be counsel or attorney in any action, civil or criminal, in the courts of this state except when acting on behalf of the county or the State of South Dakota.

Source: SDC 1939, § 12.1301 as added by SL 1965, ch 27, § 1; SL 1972, ch 39, § 2; SL 1982, ch 62, § 2; SL 2016, ch 44, § 30.


     7-16-19.1.   Part-time state's attorney--Office at business address authorized. The state's attorney of a county not employing a full-time state's attorney may maintain the Office of State's Attorney at the state's attorney's regular business address. The board of county commissioners may provide the state's attorney an allowance for fixed office overhead expenses in lieu of furnishing office space at the courthouse.

Source: SL 1982, ch 67; SL 2016, ch 44, § 31.


     7-16-20.   Duplicate receipts issued for fines, penalties, and costs received. The state's attorney, whenever any money for fines, forfeitures, recognizances, penalties, or costs is received, shall deliver to the officer or person paying the same, duplicate receipts, one receipt shall be filed by the officer or person in the office of the county treasurer.

Source: SL 1883, ch 43, § 8; CL 1887, § 435; RPolC 1903, § 933; RC 1919, § 6003; SDC 1939, § 12.1308; SL 2016, ch 44, § 32.


     7-16-21.   Deposit and accounting for fines, penalties, and costs received--Failure to account as theft. The state's attorney shall pay over to the county treasurer all money received as the state's attorney within ten days after it is received. The state's attorney shall file with the county auditor a complete list of the amount so paid showing all fees and costs received in civil actions in which the county is the successful party, as well as all fines, recognizances, forfeitures, penalties, or costs received by the state's attorney. The state's attorney shall specify the name of each person from whom money was received, the particular amount paid by each person, and the cause for which each payment was made. A state's attorney who neglects to account for or pay over the money received as required by this section is guilty of theft.

Source: SL 1883, ch 43, §§ 9, 10; SL 1885, ch 45, § 1; CL 1887, §§ 431, 436, 437; SL 1889, ch 60, § 3; RPolC 1903, §§ 937, 939, 940, 945; RC 1919, §§ 6009, 6010; SDC 1939, §§ 12.1308, 12.9913; SL 1981, ch 43, § 7; SL 2016, ch 44, § 33.


     7-16-22.   Action on attorney's bond for recovery of money received. The county treasurer, in the treasurer's official name and capacity, shall cause an action to be instituted upon the bond of the state's attorney for the recovery of the money so received and unpaid by the state's attorney.

Source: SL 1883, ch 43, § 10; CL 1887, § 437; RPolC 1903, § 940; RC 1919, § 6010; SDC 1939, § 12.1308; SL 2016, ch 44, § 34.


     7-16-23.   Fees and costs in addition to salary--Full-time state's attorney. Other than fees for child support enforcement services made upon the request of the Department of Social Services to a state's attorney under a cooperative agreement with the board of county commissioners, fees payable upon request of the Department of Social Services under a cooperative agreement with the board of county commissioners under the Violence Against Women Act, 42 USC 3796gg et seq. as of January 1, 1997, and fees payable under contract for representation of the county or its officers in civil cases and administrative proceedings outside the county pursuant to § 7-16-6, a board of county commissioners may not give or pay any fees or costs to a state's attorney as part of a salary or in addition to a salary. However, each board shall participate in the costs of the prosecution and enforcement by the state's attorney of support obligations against any responsible parent, whether of a civil or criminal nature, on a fee for service basis with the Department of Social Services. The fee is paid to the state's attorney in addition to any other compensation of the state's attorney for the performance of other public duties. A full-time state's attorney, as defined by § 7-16-19, is not entitled to receive the fees payable for child support enforcement services or services under the Violence Against Women Act authorized by this section nor is a full-time state's attorney entitled to extra compensation for representation of the county or its officers in civil cases and administrative proceedings outside the county pursuant to § 7-16-6.

Source: SDC 1939, § 12.1308; SL 1977, ch 64, § 2; SL 1978, ch 59; SL 1983, ch 44, § 4; SL 1997, ch 46, § 2.


     7-16-24.   Consolidation of office of state's attorney to create office of regional prosecutor. Any board of county commissioners may by resolution propose to consolidate the office of state's attorney with any other county or counties to create an office of regional prosecutor. The board of county commissioners may negotiate and enter into an agreement concerning the services and functions of the office of the regional prosecutor.

Source: SL 1996, ch 54, § 1.


     7-16-25.   Establishment of office of regional prosecutor--Notice requirement--Option to withdraw from or modify agreement--Election of state's attorney. Any board of county commissioners entering into an agreement establishing the office of regional prosecutor shall give notice before January first of the year of the next general election in which the state's attorney would be elected. Any party to the agreement may give notice of its intent to withdraw from the agreement or to modify the terms of the agreement at any time before January first of the year of the next general election in which the regional prosecutor would be elected. Any county withdrawing from such an agreement, and not entering another, shall proceed to the election of a state's attorney.

Source: SL 1996, ch 54, § 2.


     7-16-26.   Agreement to create office of regional prosecutor--Specifications of office. Any two or more counties entering into an agreement to create an office of regional prosecutor may specify the following:
             (1)      The duties of the regional prosecutor on matters such as civil and criminal matters;
             (2)      The precise organization, composition, and nature of any separate legal or administrative entity created thereby together with the powers delegated thereto;
             (3)      The purposes, powers, rights, objectives, and responsibilities;
             (4)      The manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget therefor;
             (5)      The rate of compensation and the method of reimbursement for expenses;
             (6)      The location of the office;
             (7)      The permissible method or methods to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such partial or complete termination; and
             (8)      Any other related matters.

Source: SL 1996, ch 54, § 3.


     7-16-27.   Election district for office of regional prosecutor. For purposes of §§ 7-16-24 to 7-16-30, inclusive, the election district for the office of regional prosecutor includes the total election boundaries of each county entering an agreement for merging the functions of the state's attorney.

Source: SL 1996, ch 54, § 4.


     7-16-28.   Election of state's attorney for office of regional prosecutor--Oath of office, bond and eligibility requirements. A state's attorney shall be elected for each office of regional prosecutor of this state every fourth year during the general election, who shall qualify by taking the oath of office and giving a bond as provided by law. No person is eligible to the office of regional prosecutor who is not duly licensed to practice as an attorney and counselor at law by the Supreme Court of this state.

Source: SL 1996, ch 54, § 5.


     7-16-29.   Application of chapter. The provisions of chapter 7-16 shall generally apply to any attorney elected to represent the office of regional prosecutor.

Source: SL 1996, ch 54, § 6.


     7-16-30.   Amendment or modification of regional prosecutor agreement--Existing and future terms. A regional prosecutor agreement may be amended or modified as to the existing term only with the consent of all counties that are party to the agreement and the serving regional prosecutor. A regional prosecution agreement may be amended or modified as to the future terms only with the consent of all counties that are party to the agreement.

Source: SL 1996, ch 54, § 7.


     7-16-31.   Residency requirements for state's attorney in counties with low population. In any county with a population of less than five thousand persons, no state's attorney is disqualified from holding office for failure to be a resident of that county if the state's attorney is a resident of a county which is contiguous to the county in which the state's attorney holds such office.

Source: SL 2004, ch 69, § 1.


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