South Dakota Broker Associate Exam — All Questions

How is the South Dakota Real Estate Commission composed?

• a.Seven members appointed by the Governor, five active brokers and two public members
• b.Five members elected by South Dakota licensees, four brokers and one public member
• c.Nine members appointed by the Legislature, six active brokers and three public members
• d.Five members appointed by the Governor, three active brokers and two public members✓

SDCL 36-21A-13 creates the commission and fixes its makeup in three sentences: "The commission consists of five members appointed by the Governor. The members may not all be of the same political party. Three members shall be active real estate brokers; two shall be members of the public." Nothing in the chapter gives licensees a vote, so an elected body is not how the seats are filled; the appointment power belongs to the Governor alone. The Legislature does not appoint either, and the total is five rather than seven or nine. The two lay seats matter on the exam because they are what keeps the regulator from being a body of brokers judging brokers, and the political-party sentence is a second check on the same risk.

How long is a South Dakota Real Estate Commission member's term, and how many consecutive full terms may one member serve?

• a.A four-year term, and no more than two consecutive full terms
• b.A three-year term, and no more than three consecutive full terms✓
• c.A three-year term, with no limit on the number of consecutive terms
• d.A five-year term, and no more than three consecutive full terms

SDCL 36-21A-14 sets a three-year term for members appointed after July 1, 2005, and states that "No member may serve more than three consecutive full terms." The four-year figure is the historical term the same section preserves only for members appointed before July 1, 2005, so it describes an appointment no sitting member now holds; a five-year term appears nowhere in the chapter. An unlimited number of terms is ruled out by the sentence just quoted. The section also provides that a member appointed to fill a vacancy serves only the unexpired portion of that term and that the partial appointment "is not considered a full term," which is why a member can outlast three calendar cycles without breaking the limit.

What does South Dakota law require before the Real Estate Commission can exercise its duties and powers at a meeting?

• a.A majority of the commission, acting on a majority vote of the members present✓
• b.All five members, acting on a unanimous vote of the full commission
• c.A majority of the commission, acting on a two-thirds vote of the members present
• d.The three broker members, acting on a majority vote of the broker members

SDCL 36-21A-15 supplies both halves of the answer: "A majority of the commission, in meetings duly assembled, may perform and exercise all of the duties and powers of the commission. Actions of the commission shall be taken upon a majority vote of those members present." A unanimity requirement would let one absent or dissenting member stop the regulator, which is the opposite of what a quorum rule is for. The two-thirds figure is borrowed from other bodies and is not in this chapter. Reserving action to the broker members would defeat the two public seats created by SDCL 36-21A-13. ARSD 20:69:02:02 adds that the commission may act by mail ballot or conference telephone call and that either counts as a meeting.

A court grants the South Dakota Real Estate Commission an injunction against a person practicing without a license. What does the court then do?

• a.Award the commission triple the compensation earned in the transaction
• b.Award the commission its attorney fees and investigation costs✓
• c.Order the commission to bear its own costs of investigation and suit
• d.Refer the matter to the attorney general for criminal prosecution

SDCL 36-21A-91 authorizes the commission to bring injunction actions for unprofessional conduct, for violations of the chapter as an alternative to criminal proceedings, and against anyone practicing real estate without a commission license. Its final sentence is the operative one: "In any action where an injunction is granted, the court shall award the commission attorney fees and costs of the investigation and proceedings." The word is shall, so fee-shifting is not discretionary and the commission does not absorb its own costs. Treble compensation is a private remedy the chapter does not create. Automatic referral for prosecution is also wrong, because the same section provides that "The commencement of one proceeding by the commission constitutes an election" between the civil and criminal routes.