Why Not Ask the AG (Marty Jackley)?

Why Asking the Attorney General for an Opinion on Road District Flat Fees May Be a Mistake

For those wondering why some of us are hesitant to request an official opinion from Attorney General Marty Jackley regarding the legality of the flat “special maintenance fee” being charged by many road districts, here is the concern.

South Dakota follows Dillon’s Rule, which means local government bodies like road districts only have the powers expressly granted by the Legislature. SDCL 31-12A-21 clearly states that road districts may “levy taxes and special assessments.” That is it. There is no third category for a flat fee.

Yet many districts have been imposing a uniform $500 (or similar) flat fee for years, calling it a “special maintenance fee” and having counties collect it on the tax rolls. The main justification they point to is the collection language in SDCL 31-12A-23. However, that section is a collection tool, not a power-granting tool. It assumes the charges were already lawfully created under 31-12A-21.

Attorney General opinions are often pragmatic. AG Jackley has shown a tendency to defer to long-standing local government practices, especially when counties have been collecting the fees without challenge for over a decade. There is a real risk that an AG opinion would simply say the practice is acceptable under the broad “charges for service” language – effectively cementing the status quo and making it harder for landowners to challenge the fee in the future.

It is important to understand: An Attorney General opinion is not a court ruling. It is advisory only. It does not have the force of law. While it can be influential, it is not binding on a court.

If we truly want clarity on whether these flat fees are legal, the proper path is through the courts — not an advisory opinion from an elected official who is up for election. Anyone pushing hard for an AG opinion right now should be asked: Are you seeking truth, or are you trying to lock in the current practice before a court can review it?

Those of us who believe the flat fee exceeds the statutory powers granted in 31-12A-21 should be prepared to take the issue to circuit court and, if necessary, appeal. Yes, that is more difficult and expensive. But it is also the only way to get a binding interpretation of the law rather than an opinion shaped by politics or bureaucratic inertia.

The Legislature gave road districts narrow powers for a reason – to protect landowners from overreach. We should insist that those limits be respected.