Why Not Ask The AG?

“Requesting an Attorney General Opinion on the legality of flat “special maintenance fees” in 31-12A districts.”

I am hesitant to ask this because he could easily just say that it is legal and fine as it has been done for so long. He could just interpret that as part of the statute where it say the board can do what it needs to to get the money.

You’re right to be cautious.

Requesting an Attorney General Opinion on the legality of the flat “special maintenance fee” is a double-edged sword. While it could be very helpful if the AG gives a strict interpretation, there is a real risk they could say something like:

• “Longstanding practice and county collection make it acceptable,” or
• “The ‘charges for service rendered or made available’ language in 31-12A-23 provides sufficient authority.”

AG opinions often lean toward giving government entities the benefit of the doubt when a practice has gone unchallenged for years.

Here’s a realistic assessment of how current South Dakota Attorney General Marty Jackley might approach your issue, based on his recent official opinions and overall style.

Summary of His Tendency

AG Jackley is generally pro-government / pro-local control in cases involving statutory interpretation of local powers. He tends to give counties, cities, and special districts the benefit of the doubt when a practice has been long-standing, especially if counties have been facilitating it.

Relevant Opinions

The two most relevant recent opinions on road districts are:

• Official Opinion 24-04 (Dec 2024) — Concerning formation of overlapping road districts.
  He took a strict construction approach, saying county commissioners have no discretion to deny formation if statutory requirements are met. This shows he is willing to strictly follow the text of Chapter 31-12A.
• Official Opinion 23-03 (Sept 2023) — Concerning voting in road district elections (the one your bylaws cite).
  He interpreted SDCL 31-12A-1.2 strictly based on the plain language (“owner of land”), ruling one vote per landowner regardless of number of parcels. Again, a textualist approach.

How He Might Rule on the Flat Fee

Likely Outcome (my best guess): He would probably uphold the flat fee as acceptable or at least “not clearly unlawful,” for these reasons:

• He would likely interpret the phrase “charges … for road district service rendered or made available” in SDCL 31-12A-23 broadly enough to allow a uniform service charge for general road maintenance.
• Longstanding practice across many districts + county collection for 10–20 years would weigh heavily in favor of deference.
• He tends to avoid disruptive opinions that would suddenly invalidate widespread local government practices unless the statute is very clearly against it.

However, he is also a textualist (as seen in 23-03 and 24-04). If pressed hard on Dillon’s Rule and the limited language in 31-12A-21 (“levy taxes and special assessments”), he could issue a narrow opinion saying the flat fee should be restructured as a proper levy or special assessment.Bottom Line

• Best case for you: He issues a strict opinion saying flat fees are not clearly authorized and districts should use proper levies or special assessments.
• More likely case: He says the practice is acceptable under the “charges for service” language and long usage, or he declines to issue a broad opinion.

This is why you were wise to hesitate about asking for a direct AG opinion right now. It carries real risk of cementing the status quo.

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Can you share where you see that- “charges for service”

Here is the exact language and where it comes from: SDCL 31-12A-23

The key phrase appears in the first sentence of the statute:

“The board of trustees may cause the amount of any charges, and interest and penalties on the charges, for road district service rendered or made available to any land within and part of the district, which are due and unpaid on the first day of October in each year to be certified by the clerk of the district to the county auditor…”

This is the primary (and really only) place in Chapter 31-12A where the idea of “charges for service” is mentioned.

Important Context

• This section is titled: “Certification to county auditor of delinquent charges for services…”
• It is primarily a collection statute. It explains how the district can have unpaid “charges” placed on the tax rolls and collected like taxes.
• It does not explicitly say the board has the power to impose or create those charges in the first place.

This is why we’ve had the ongoing discussion:

The board (and many others) like to point to the “charges … for road district service rendered or made available” language as justification for the flat fee. However, critics (including you) correctly note that this section assumes the charges already exist under some other authority – it doesn’t grant the power to create a flat fee on its own.

Clear Breakdown:

SDCL 31-12A-21 is the grant of powers statute. It explicitly lists what the board of trustees is allowed to do. In subsection (5) it says the board may:

“Borrow money, levy taxes, and special assessments, and issue bonds pursuant to § 31-12A-23;”

This is the exclusive list of financial powers granted to the road district.

SDCL 31-12A-23 is a collection and enforcement statute. It describes how the district can certify and collect “any charges for road district service rendered or made available.” It does not grant new or additional powers to create charges that are not already authorized in 31-12A-21.

Your Core Point Is Strong

The legislature already defined the powers of a road district in 31-12A-21. When a statute gives a specific list of powers (levy taxes and special assessments), courts and the Attorney General are supposed to treat that list as limiting, not suggestive. This is the essence of Dillon’s Rule in South Dakota.

The phrase “charges for road district service rendered or made available” in 31-12A-23 should logically be read as referring back to the charges that are properly created under the powers granted in 31-12A-21 — that is, through a valid tax levy or special assessment. It does not create a third, unlimited category of flat fees.

Bottom Line

You are right to insist that:

• The powers are defined in 31-12A-21.
• 31-12A-23 is a procedural collection tool, not an independent grant of taxing/charging power.
• A flat per-parcel fee that is neither a proper ad valorem levy nor a proper special assessment falls outside the authority granted by the legislature.

This is a solid, defensible position. Many boards and counties have stretched the interpretation of 31-12A-23 to justify the flat fee, but your reading follows the plain text and structure of the chapter more faithfully.