PIERRE, S.D. (KELO) — There’s no consistent definition of residency in South Dakota laws, according to a new official opinion from the state attorney general.
State lawmakers have instead defined residency in various ways, depending on the purpose, South Dakota Attorney General Marty Jackley said.
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He said residency has different meanings whether for voting or for tuition rates or for hunting and fishing.
State Revenue Secretary Michael Houdyshell requested the opinion. That came after the Music and Vending Association of South Dakota last year sought a declaratory ruling on residency requirements for video lottery owners.
The South Dakota Lottery is part of the state Department of Revenue. Ali Schaefbauer is a staff attorney for the department. She met Thursday with the state Lottery Commission whose members oversee the lottery’s operation and said a special meeting might be needed because of the attorney general’s opinion.
The opinion isn’t binding but represents the official position of state government’s publicly elected lawyer. Houdyshell wanted Jackley’s answers to two questions.
The first question: Does the term “resident,” as used in SDCL § 42-7A-43, require the South Dakota Lottery to take steps beyond verification of a residential address to confirm whether an applicant for a video lottery operator license is a resident of the State?
Jackley said that resident wasn’t defined in that specific chapter of law. He then turned to the common meanings of resident.
“Considering these definitions, I conclude that ‘resident’ as used in SDCL ch. 42-7A means a person who lives in South Dakota and has chosen to make the state their permanent or continuous home,” Jackley stated. “Some may argue for a more specific definition of ‘resident,’ but if the Legislature had intended such a definition, it could have defined ‘resident’ in a more detailed way. It did not, and I am not at liberty to read additional items into the statute.”
He added, “Based on the above, it is my opinion that the Lottery is required to take those steps necessary to become ‘satisfied’ (as per ARSD §§ 48:02:02:01 and :02) that an applicant for a video lottery operator license lives in South Dakota and has chosen to make this state their permanent or continuous home.”
He continued, “You have indicated the application that perspective operators submit to the Lottery requires each applicant to provide their address, and to verify that they are a resident of South Dakota. By submitting the application, the applicant certifies that all the information provided is correct. You also state that the Lottery communicates with the applicant during the application process to ensure that all required information is provided. During this process, the Lottery may request a copy of an applicant’s driver’s license and may perform various database or internet searches to verify an applicant’s residential address. Those steps are reasonable efforts on behalf of the Lottery to become satisfied as to an applicant’s residency. If the application materials, or the application process, raise questions about an applicant’s status as a resident, further investigation may be required for the Lottery to be satisfied that the applicant is indeed a resident of South Dakota.”
The second question: Do the requirements of SDCL § 42-7A-43, pertaining to partnerships or corporations, apply generally to all similar business entities, or do those requirements apply only to partnerships and corporations?
Jackley answered, “State law authorizes the formation of partnerships (SDCL ch. 48-7A) and corporations (SDCL ch. 47-1A), as well as limited liability companies (SDCL ch. 47-34A), limited partnerships (SDCL ch. 48-7), limited liability partnerships (SDCL § 48-7A-1001), and limited liability limited partnerships (SDCL § 48-7-1106). The text of SDCL § 42-7A-43, however, only references ‘partnership[s]’ and ‘corporation[s],’ and is silent as to the statute’s application to the remaining legal entities.
“Based on the plain and clear language of the statute,,” he continued, “it is my opinion that the requirement of SDCL § 42-7A-43 is limited only to partnerships and corporations. I am not at liberty to read additional items into the statute. The statute has no application to other legal entities allowed to be organized under State law. If the Legislature intends for the statute to apply to those other entities, it must amend the statute to specifically reference them.
“I conclude that SDCL § 42-7A-43 requires the majority of the ownership interest of partnerships and corporations must be residents of South Dakota. The plain language of the statute does not place the same requirement on the ownership interest of other legal entities,” Jackley stated.
Schaefbauer indicated that the lottery’s administration is now deciding how to approach the question of residency, after receiving the attorney general’s perspective.
“When we get an application that might trigger some of this, we will rally and decide what to do,” she told the commissioners.
