THE RULE OF LAW AND ONE SENATOR'S VIEWS ON THE IMPEACHMENT TRIAL OF SOUTH DAKOTA ATTORNEY GENERAL JASON RAVNSBORG.

• Date: 22 June 2023
• Author: Johns, Timothy R.
• Published date: 22 June 2023

I. INTRODUCTION

Much has been said lately in the media that the actions of all men are subject to the rule of law. Of it, United States President Dwight D. Eisenhower said two things that sum it up well. First, that "[t]he clearest way to show what the rule of law means to us in everyday life is to recall what has happened where there is no rule of law." (1) And second, that

the rule of law does more than ensure freedom from high-handed action
                by rulers. It ensures justice between man and man however humble the
                one and however powerful the other. A man with five dollars in the
                bank can call to account the corporation with five billion dollars
                in assets--and the two will be heard as equals before the law. (2)
                

South Dakota Attorney General Jason Ravnsborg was tried by the South Dakota State Senate on June 21,2022, in its chambers located in the State Capitol, on two articles of impeachment. (3) At the conclusion of the trial, the Attorney General was found guilty of both articles and was therefore removed from office. (4) By a separate vote, the Senate also decreed that the Attorney General was disqualified from holding any office of trust or profit under the State. (5) Based on my viewpoint of the law and facts, I voted "not guilty" on each of the articles of impeachment, but I joined with the majority on the question of whether the Attorney General should be barred from holding any future State office when I considered all evidence in a light most favorable to the guilty verdicts. This article is one senator's view of the rule of law as it applied to the evidence adduced.

II. LAW OF THE CASE UNDER THE SOUTH DAKOTA CONSTITUTION AND THE RULES PASSED BY THE SENATE

Alexander Hamilton, in Federalist no. 65, wrote of impeachment trials of public officials, stating that

[a] well-constituted court for the trial of impeachments is an object
                not more to be desired than difficult to be obtained in a government
                wholly elective. The subjects of its jurisdiction are those offenses
                which proceed from the misconduct of public men, or, in other words
                from the abuse or violation of some public trust. They are of a
                nature which may with peculiar propriety be denominated POLITICAL
                as they relate chiefly to injuries done immediately to the society
                itself. (6)
                

There are three sections in Article XVI of the South Dakota Constitution that speak directly to the impeachment process of constitutional officers. Section 1 provides that the "house of representatives shall have the sole power of impeachment." (7) The constitution does not, however, provide much guidance for the senators as to how they should view the evidence or the role they will play in trying a constitutional officer. In Section 2, it simply directs that "[a]ll impeachments shall be tried by the senate. When sitting for that purpose the senators shall be upon oath or affirmation to do justice according to law and evidence." (8) And in Section 3, it states the grounds. (9) It reads that

[t]he Governor and other state and judicial officers, except county
                judges, justices of the peace and police magistrates, shall be liable
                to impeachment for drunkenness, crimes, corrupt conduct, or
                malfeasance or misdemeanor in office, but judgment in such cases
                shall not extend further than to removal from office and
                disqualification to hold any office of trust or profit under the
                state. (10)
                

The Senate also passed Senate Resolution 702, which established the procedure the trial would follow and the form of the verdict for each article, which read, "Shall the Senate sustain the____article of impeachment against Attorney General lason Ravnsborg and remove him from the office of Attorney General." (11) It did not, however, set forth any definitions of any of the words or phrases used in the constitution that state the grounds for removal of office. Those were left to the attorneys for the respective parties to address in their closing arguments and to the members of the Senate, when in their debates on the floor prior to their votes, they stated their rationale for the positions they were taking on the two articles. Nor did the resolution state any burden of persuasion that the prosecution of the articles was required to meet even though there was case precedent from our supreme court, State ex rel. Steffen v. Peterson} (2) that had adopted the clear and convincing standard. (13) Steffen did not involve impeachment under our constitution but did address removal from public office pursuant to South Dakota Codified Law section 3-17-6. (14) That statute provides that "[a]ny officer of any local unit of government may be charged, tried and removed from office for misconduct, malfeasance, nonfeasance, crimes in office, drunkenness, gross incompetency, corruption, theft, oppression, or gross partiality." (15)

Since there was no precedent interpreting the provisions of South Dakota Codified Law section 3-17-6, the court looked to other authorities, which recognized the significance of removal from office. It quoted with approval from Kemp v. Boyd} (6) "Removal of public officers from office is a drastic remedy,... and statutory provisions prescribing the grounds for removal are strictly construed." (17) It then went on to state that the remedy provided by removal statutes is heroic in nature and relatively drastic where the usual method of removing officeholders is by resort to the ballot. (18) And finally, the court held that because of its drastic nature, "[e]vidence in a removal action must be 'clear, satisfactory and convincing.'" (19)

III. HOUSE OF REPRESENTATIVES RESOLUTION 7002 CHARGING THE ARTICLES OF IMPEACHMENT

House Resolution 7002 was entitled, "A RESOLUTION, Providing for Impeachment of Jason Ravnsborg, Attorney General of State of South Dakota, for certain crimes and for malfeasance in office." (20) It recited several findings of significance before it introduced the two articles of impeachment. They are: WHEREAS, Attorney General Ravnsborg committed certain crimes while operating a motor vehicle, which led to and directly caused the death of South Dakota resident Joseph Boever, and which Attorney General Ravnsborg pleaded no contest to at his criminal trial; and

WHEREAS, in Attorney General Ravnsborg's conduct following the criminal acts, he, acting in his individual capacity and as attorney general, made numerous misrepresentations and misstatement of fact to law...