Story Time- The State’s Attorney
The fluorescent lights of the Union County State’s Attorney’s office hummed in near silence, save for the rhythmic clicking of the air conditioning kicking on. Eleanor Vance sat back in her leather chair, her gaze fixed on the glowing monitor. The spreadsheet showing the county’s budget was open, but she wasn’t seeing numbers. She was seeing a looming political disaster and a moral quandary wrapped in a quarter-century of bureaucratic inertia.
For twenty years—maybe more—the county had operated on a system that was, at best, legally ambiguous, and at worst, a clear violation of state law. It all centered on the Road Districts and their ‘special assessments.’
Eleanor tapped her pen against a yellow legal pad, the website URL she’d been given scribbled near the top: UnionCountyWatchdog.org.
The problem began with a citizen, a retired engineer named Marcus Thorne, who had too much time and a keen eye for detail. Marcus hadn’t just complained; he had done his homework, cross-referencing county filings with the South Dakota Codified Laws (SDCL).
Marcus argued that the annual charge imposed by the road districts wasn’t a lawful “special assessment” because it was a flat fee charged to every property owner, regardless of actual benefit received. A special assessment, by legal definition, must be proportional to the special benefit the property receives from the improvement. This was essentially a hidden property tax, levied without the proper procedural safeguards of public hearings, published notices, and votes.
Eleanor had initially deferred to the County Auditor, Bob Gunderson, when Marcus first raised the alarm. Bob, a man nearing retirement with a deep aversion to change, had smoothly dismissed the complaint. “It’s a special maintenance fee, Ellie,” he’d said, using the colloquial term reserved for their private conversations. “It’s always been this way.”
They had pointed Marcus to SDCL Chapter 9-43, the general chapter governing “Special Assessments in Municipalities.” Specifically, they mentioned SDCL 9-43-138, which refers to “special assessments for maintenance.”
Eleanor opened a new browser tab and navigated to the official state legislature website, pulling up the relevant statute. The text of SDCL 9-43-138 was brief: “A governing body may provide for the use of special assessments for the perpetual maintenance, operation, reconstruction, and repair of the improvements benefited by the original assessment” [1].
The Auditor’s office hung their hat on that single statute. See? It says ‘special assessment’ for ‘maintenance’. We are good.
But Marcus Thorne was persistent. He had correctly pointed out a critical distinction. The road districts operated under a different set of statutes, primarily SDCL Title 31, which deals with Highways and Bridges. SDCL 31-12A-21 was the key statute here, defining a road district’s limited powers: “The district board may impose a levy pursuant to § 10-12-30 or a special assessment pursuant to chapter 9-43 or 31-12A” [2].
A road district could impose a levy (a general tax) or a special assessment. It could not impose a “special maintenance fee” if that fee didn’t actually qualify as one of the two legal mechanisms allowed.
This was the crux of the issue. If the “special maintenance fee” was legally a “special assessment,” it was voidable because the road districts had never followed the due process requirements of public notification, hearings, and evidence of special benefit as outlined in SDCL 9-43 and related case law.
And if it wasn’t a “special assessment,” then the road districts were simply charging an illegal fee not authorized by their governing statutes.
Eleanor leaned back further, the chair squeaking. The scale of the administrative cleanup was staggering. Twenty years of illegal fees across multiple districts in Union County. The amount of work required to rectify the situation—notifying residents, potential refunds, setting up the correct procedures for future assessments—would bring the Auditor’s office to a halt for months. The political fallout would be immense.
She had told Bob Gunderson they should just ignore Marcus Thorne’s demands. It was easier. But now, Marcus had created a website. He wasn’t aggressive or threatening; he was simply publishing facts, emails, and letters exchanged with the county, along with his meticulous legal analysis. Her name was mentioned prominently in several recent posts as the person currently advising the county to maintain the status quo.
Eleanor Vance was planning to run for reelection. This website was a ticking time bomb.
She thought through her limited options, each one feeling like a different flavor of poison.
Option 1: The Cease and Desist Gambit
She could threaten Marcus Thorne with a cease and desist order. She could claim defamation, harassment, or some obscure administrative code violation. But the website was purely informational, publishing correspondence that was arguably public record anyway. Marcus had been careful. “We have nothing to hide,” the site claimed in its ‘About Us’ section, “and publish all official correspondence unedited.”
If she tried to shut him down, he would just publish her legal threat, demonstrating her office’s attempt to stifle transparency. This would almost certainly backfire, generating more interest in the story and making her look like a petty bureaucrat trying to hide a scandal.
Option 2: The Head-in-the-Sand Approach
She could ignore the website and hope it faded away. Union County was small. Local politics were often fueled by personal relationships rather than deep dives into property tax law. Maybe nobody would read it.
But the engineer was persistent. He was talking to local newspaper editors and county commissioners. All it took was one reporter picking up the story, and suddenly, “Eleanor Vance Allows Illegal Taxes in Union County” would be the headline just as campaign season began. The risk was that voters might become aware of her participation in the ongoing unlawful action, potentially costing her the election and her professional reputation.
Option 3: The Private Practice Escape Route
She could decide not to run for reelection at all. She could pivot to private practice, focusing on estate law and family matters. She’d have to hope that potential clients didn’t run a quick Google search for her name and find the UnionCountyWatchdog.org website detailing her final decisions as State’s Attorney. This felt like conceding defeat before the fight had even begun.
Option 4: The Doubling Down Strategy
“We have done nothing wrong, and this resident is ignorant of the laws.” This was the easiest public position. It relied on the complexity of the law to confuse the average citizen.
She could issue a formal statement doubling down, arguing that the “special maintenance fee” mentioned in SDCL 9-43-138 was the supreme authority and that road districts, by reference, were allowed to use this mechanism as they currently were. She would ignore SDCL 31-12A-21’s specific requirements or interpret the term “special assessment” loosely.
This position was legally weak and relied heavily on judicial deference to established administrative practice. If Marcus Thorne found a lawyer willing to take the county to court, this argument would likely collapse. South Dakota case law strongly emphasizes due process in taxation. In Matter of Appeal of All Saints Parish, the South Dakota Supreme Court affirmed the necessity for clear statutory authority for any tax or assessment, stating, “Taxing statutes are construed strictly in favor of the taxpayer and against the taxing entity” [3]. Doubling down would be a high-stakes gamble if challenged in court.
Option 5: The Path of Compliance
The final option was the hardest: admit the mistake and help the county get into compliance with the law. This would involve leadership and courage, but it might just be the best political and ethical move in the long run.
She would need to decide which legal path was correct:
- Acknowledge the fee is a special assessment and enforce the rules: She would declare that all road districts must immediately follow the rigorous procedures of SDCL Chapter 9-43. This means holding public hearings, publishing legal notices in local papers, assessing the actual benefit to each property (meaning no more flat fees), and securing approval. The administrative burden would be high, and some districts might fail to justify their assessments.
- Acknowledge the fee is not a special assessment and enforce the rules: She would declare that road districts cannot use a “special maintenance fee” at all under SDCL 31-12A-21. Instead, they must use a general levy (a standard property tax rate based on assessed value) or a true special assessment. This would require the county to fundamentally change how they fund road maintenance, likely leading to a massive shift in the local tax structure and significant public outcry from those who would now pay more in general taxes.
Either compliance route meant months of chaos, angry phone calls to her office, and explaining decades of error to furious constituents.
Eleanor looked at the list of options on her pad. The hum of the air conditioner seemed louder now. The clock on the wall ticked inexorably forward, moving closer to election season.
What should she do?
Citations
[1] SDCL § 9-43-138.
[2] SDCL § 31-12A-21.
[3] Matter of Appeal of All Saints Parish, 2003 SD 148, 672 N.W.2d 281, 287 (S.D. 2003).