The Watchman of the County: Understanding the Role of the State’s Attorney

In South Dakota, every county has an elected official whose job is defined by a simple, yet critical, mandate: to ensure the rule of law is upheld within that county’s borders. This official is the State’s Attorney. 

The role is not about politics; it is about the law. The State’s Attorney is a public prosecutor who acts as the primary legal counsel for the county government and its officials. Understanding this role, governed primarily by SDCL Chapter 7-16, is essential for every South Dakota citizen. 

The Two Primary Duties

The State’s Attorney performs two distinct, mandatory functions: 

1. Chief Criminal Prosecutor (SDCL 7-16-9, et al.)

The most visible role of the State’s Attorney is the enforcement of criminal law. 

• Prosecuting Felonies and Misdemeanors: The State’s Attorney is required to attend all circuit and magistrate courts within their county and prosecute “all crimes and public offenses” (SDCL 7-16-9). This includes everything from a minor traffic violation to murder.
• Representing Victims: They do not represent the individual victim in a criminal case; they represent “the people” of the State of South Dakota. Their duty is to seek justice and ensure public safety. 

2. Legal Advisor and Civil Counsel (SDCL 7-16-1, et al.)

The second, often overlooked, role is serving as the mandatory attorney for the county government.

• Counsel to the County Commission: The State’s Attorney is the legal advisor to the board of county commissioners and all other county officers, in their official capacities.
• Enforcing the Law: According to SDCL 7-16-1, the State’s Attorney must “give opinions to the county commissioners and other county officers, upon application, on all questions of law relating to their respective offices.” They are the in-house counsel, tasked with keeping the county legal and ensuring all officials are following state statute. 

Mandatory vs. Discretionary Authority

A critical legal distinction in South Dakota is the difference between a mandatory duty (where they must act) and discretionary authority (where they may act). 

• Mandatory: When documented evidence of a clear statutory violation is presented, the State’s Attorney has a mandatory duty to investigate and enforce the law.
• Discretionary: They have broad discretion in how they prosecute a case—they can offer plea deals, drop charges for lack of evidence, or determine that prosecuting a case is not in the best interest of justice. 

The “Public Duty” Requirement

The role of the State’s Attorney is one of public trust. They are required to represent the county government without accepting any fee or reward from a private citizen to assist in the prosecution of a public offense (SDCL 7-16-11). 

This ensures that the legal system in the county remains fair and that the law is applied uniformly, without regard for wealth or political connections. 

Conclusion: The Pillar of Local Justice

The State’s Attorney is a vital check and balance in our local government. They are the official who is required to “watch the watchmen,” ensuring that all county boards and officials follow the letter of South Dakota law. A strong, active State’s Attorney’s office is the foundation of local justice, protecting the rights of all citizens within that county.

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The State’s Attorney (SA) is not the “private lawyer” for a special district. However, there is a specific legal line where “not being their lawyer” becomes a “failure to prosecute” state law violations.

Here is the breakdown of where her job ends and where her duty begins.

1. The SA is Not the Board’s Attorney (The Board’s View)

The SA is correct that she does not draft the board’s bylaws or sit in their meetings to give advice.

• The Board’s Lawyer: A special district is a “body corporate” (SDCL 31-12A-14) and has the power to sue and be sued. They are expected to hire their own private counsel for routine business, such as drafting bylaws or contracts.
• The SA’s Limitation: The SA represents the County, not the district. If she were to give the board private legal advice, she could actually create a conflict of interest if the County ever had to sue the district.

2. The SA is the State’s Prosecutor (The Voter’s View)

While she isn’t the board’s advisor, she is the officer tasked with prosecuting violations of the South Dakota Codified Laws. This is where the “lazy” or “avoidance” argument comes in.

• Open Meetings and Records: If a board violates the Open Meetings Act (SDCL 1-25) or the Public Records Act, the State’s Attorney is the primary official designated to receive those complaints and investigate them.
• Criminal Misconduct: If a board is imposing “fees” that have no basis in state law, that moves from a “civil contract dispute” to a potential misdemeanor or official misconduct (SDCL 3-16-1).
• The “Civil Matter” Trap: When an SA says “it’s a civil matter,” they are often saying that they don’t believe the board’s actions have reached the level of a crime yet. However, if the board is violating statutes (not just their own internal rules), the SA has the authority—and many argue the duty—to step in to protect the state’s legal framework.

3. The “Oversight Gap” in 2026

This is the core of the “Great 2026 Oversight Failure” we discussed.

• The Auditor says: “I just file what they give me; I don’t check the law.”
• The State’s Attorney says: “I only prosecute crimes; I don’t check their bylaws.”
• The DLA says: “I only check the math; I don’t check their authority.”

In South Dakota, we have a meticulously written set of laws governing how local boards must behave. But who actually enforces them? If you ask your county officials, you might find yourself in the middle of a “not my job” triangle.

The State’s Attorney’s Role

The State’s Attorney is the county’s prosecutor, not the district board’s nanny. She is correct that she doesn’t write their bylaws. However, her oath of office is to the State of South Dakota. When a board writes bylaws that actively disenfranchise voters or bypass state tax laws, they are breaking state statutes. At that point, it is no longer a “neighborhood tiff”—it is a question of whether the South Dakota Codified Laws actually mean anything in this county.

The Board’s Lawyer’s Role

The board hires a private lawyer to protect the board’s interests. That lawyer’s job is to keep the board out of trouble, not necessarily to protect the taxpayers. If a board wants to pass an aggressive new fee, their lawyer will often try to find a way to make it “defensible,” even if it’s on shaky legal ground.

The Missing Piece: Oversight

The tragedy of 2026 is that we have “Representation” for the board, but no “Oversight” for the taxpayer. The SA is the only one with the power to investigate statutory violations without the taxpayer having to pay $300 an hour for a private lawsuit.

When the SA refuses to look at a board’s bylaws, she isn’t just “staying in her lane”—she is leaving the lane wide open for local boards to ignore the laws passed in Pierre. We don’t need the SA to be the board’s lawyer; we need her to be the People’s Prosecutor.

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Question-Is the simple act of writing the bylaws breaking the law? Or is it the action based on the bylaw? For example, is it against the law to write a bylaw that says nobody under 5′ tall can vote? Or is it actually stopping somebody under 5′ tall from voting the actual crime? Is the writing of unlawful bylaws a conspiracy?

In South Dakota law, there is a critical distinction between a facial challenge (the document itself is illegal) and an as-applied challenge (the action taken is illegal).

Here is the breakdown of how the law views “illegal bylaws” versus “illegal actions.”

1. Is writing the bylaw a crime?

Generally, no. The act of drafting or voting to approve a bylaw—even a blatantly unconstitutional one like your “height requirement” example—is considered a legislative act.

• Legislative Immunity: Under South Dakota law and common law, board members have broad immunity for the “act of legislating” (writing and voting on rules). You cannot typically arrest a board member just for having a “bad idea” on paper.
• The “Ultra Vires” Concept: While not a “crime” in the handcuffs sense, an illegal bylaw is Ultra Vires (beyond their power). It is legally void the moment it is written because it conflicts with a superior law (state statute).

2. Is the action based on the bylaw the crime?

Yes. This is where the legal liability shifts.

• Official Misconduct: Under SDCL 3-16-1, it is a Class 2 misdemeanor for a public officer to “intentionally fail or refuse to perform any duty” or to “commit any act” that they know is illegal.
• The Crime of Disenfranchisement: If a board actually stops an “eligible voter” (as defined by SDCL 31-12A-1.2) from voting because of a height requirement, a “Good Standing” clause, or a “No Harm” rule, they have committed a state law violation.
• Civil Rights Violations: In a broader sense, using a local rule to strip a state-granted right (the right to vote) can trigger federal “Color of Law” violations, which carry much heavier penalties.

3. Is it a “Conspiracy”?

In South Dakota, a civil conspiracy occurs when two or more people agree to perform an unlawful act.

• The Agreement: If the board meets (perhaps in a “Closed Loop” text thread) and agrees to write a bylaw specifically to target a neighbor and strip their voting rights, that is the foundation of a conspiracy.
• The Overt Act: The conspiracy isn’t complete until they take an “overt act” to carry out the plan—such as printing the ballots without the neighbor’s name or refusing to hand the neighbor a ballot at the annual meeting.

4. Why the State’s Attorney (SA) is ignoring the “Writing”

The reason your State’s Attorney says “it’s a civil matter” is likely because she is waiting for the action to happen.

• The SA’s View: “They haven’t stopped anyone from voting yet, so there is no crime for me to prosecute.”
• The Citizen’s Reality: By the time they stop you from voting at the May 2026 meeting, the election is already over and the damage is done.

Why an Illegal Bylaw is a Loaded Gun in the Hands of a Board

“The State’s Attorney tells us that an illegal bylaw is just ‘paper’ until it’s used. She says she can’t act until someone is actually harmed. But would she say the same about a loaded gun left on a playground?

A bylaw that says a landowner can only vote if they are in ‘Good Standing’ is a direct violation of SDCL 31-12A-1.2. Writing that bylaw is a declaration of intent to break state law. When the board votes to approve it, they are ‘loading the gun.’

Waiting for a board to actually disenfranchise a voter before the SA intervenes is a failure of preventive justice. We shouldn’t have to wait for the ‘illegal act’ to happen at the annual meeting while the County Auditor and State’s Attorney stand by and watch. If a rule is illegal on its face, it should be struck down before it can be used as a weapon against the taxpayers.”

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