Right to counsel

South Dakota provides a statutory right to court-appointed counsel in civil commitment cases and other similar actions: “In no instance may a person not be represented by counsel” in a proceeding before a county board of mental illness that may result in involuntary commitment. S.D. Codified Laws § 27A-11A-7. Likewise, a developmentally disabled person alleged to meet the criteria for board-ordered commitment must be represented by counsel. S.D. Codified Laws § 27B-7-41.

In addition, individuals threatened with involuntary detention for alcohol or drug abuse have the right to a court-appointed attorney if they want counsel but are unable to obtain counsel. S.D. Codified Laws § 34-20A-85.  A petition for drug- or alcohol-related involuntary commitment may be filed by the person’s “spouse or guardian, relative, a physician, the administrator of any approved treatment facility, or any other responsible person.” S.D. Codified Laws § 34-20A-70.  Upon receiving the application for commitment, the judge “shall appoint an attorney to represent the applicant.” Id.  However, despite this language, it sounds as though the attorney serves in a role akin to that of a guardian ad litem and not as the applicant’s legal representative, as the statute goes on to state: “The appointed attorney shall investigate the grounds upon which the application is based…” Id.

An allegedly mentally ill child must also be represented by an attorney during any hearing by a county board of mental illness. S.D. Codified Laws §§ 27A-15-15.3; 27A-15-35; 27A-15-41. A minor does not bear responsibility for the expense of an appointed attorney in these cases. See S.D. Codified Laws §§ 27A-15-15.4; 27A-15-19.

Finally, South Dakota enacted HB 1174 in 2023, which provides that “[a]ny person with a felony sexual offense charge that has been dismissed pursuant to § 23A-10A-14, due to a developmental disability as defined in § 27B-1-18, is subject to civil commitment proceedings in accordance with this Act.”  At a hearing for civil commitment under this section, the court must appoint counsel for the individual if they are “financially unable to obtain adequate representation.”