I. INTRODUCTION 159 II. THE OFFENSES 161 III. IMPEACHMENT IN SOUTH DAKOTA 164 IV. THE ESSAYS IN CONTEXT OF THE PROCEEDINGS 169 V. CHOICES MADE DURING THE RAVNSBORG IMPEACHMENT 173 A. TIMING OF THE PROCEEDINGS 173 B. STANDARDS OF REVIEW 175 C. THE MEANING OF "IN OFFICE" 178 D. PROCEDURAL AND EVIDENTIARY RULES 180 E. THE PRECEDENTIAL VALUE OF THESE CHOICES 182 F. PEDESTRIAN DEATHS 184 VI. CONCLUSION 186
I. INTRODUCTION
In September 2020, South Dakota's Attorney General Jason Ravnsborg was driving on a rural highway when he struck and killed a pedestrian, Joseph Boever. (1) After pleading guilty to two criminal misdemeanors, Ravnsborg was impeached, convicted, removed from state office, and barred from holding it again. This was South Dakota's first impeachment of a constitutional officer (2) It is also a rare instance where an officer was impeached despite his party's overwhelming control of both houses in the legislature. (3)
To chronicle this historic first, the South Dakota Law Review is publishing this special issue containing ten essays authored by those directly involved with the impeachment. These essays contain first-hand accounts of the proceedings, add important context to the legislative record, and provide lessons and analysis that may be useful if and when the next impeachment occurs.
This essay introduces the special issue by describing the factual and procedural background for Ravnsborg's impeachment, providing a brief summary of each author's contribution, and offering several reflections on the broader importance of South Dakota's first impeachment. Part II outlines the events that transpired before, during, and after Ravnsborg's vehicle struck and killed Joseph Boever. Part III discusses the basic contours and historical background of the South Dakota Constitution's impeachment provision. Part IV introduces the ten essays in this issue, charts the procedural history of the Ravnsborg impeachment, and explains the part each author in this special issue played in the process. Part V includes our reflections on choices made about the Ravnsborg impeachment and their significance for South Dakota. South Dakota's first impeachment proceedings were merely the South Dakota Legislature's initial attempt to liquidate the meaning of the state's impeachment provision (4)-and several participants conceded they might not have done it right. These efforts nevertheless revealed much about South Dakota's constitution, its legislature, and what is necessary to protect South Dakotans from harm done by state officials.
II. THE OFFENSES
In fall 2020 when news broke of South Dakota's Attorney General killing a pedestrian, some South Dakotans were understandably shocked and concerned; others did not think too much of it. After all, South Dakota has some similar prior experience with high-level politicians causing death while driving vehicles on South Dakota highways. In 2003, then-Congressman and former-Governor William Janklow was convicted of manslaughter after killing a motorcyclist. (5) Janklow, to his credit, resigned from office without much fuss. (6) Ravnsborg, however, took a different route, steadfastly defending his choice to remain in office even as pressure mounted to resign. (7)
The facts surrounding Ravnsborg's case were more complicated and contested than in Janklow's. Ravnsborg was driving at night on U.S. Highway 14, returning home from a political event, when he struck Boever, (8) who was walking along the highway's shoulder holding a flashlight. (9) Ravnsborg apparently did not see Boever, or saw him too late, even though other drivers on the highway that evening had observed Boever and the illuminted flashlight. (10) Ravnsborg might have been distracted by his cellphone. A forensic report suggested he was not on his phone at the time of the incident but had used it a minute or two prior. (11) Districted driving, especially with smart phones, plays an increasing role in pedestrian deaths in the United States. (12) Even if Ravnsborg was not using his phone, he acknowledged he was generally preoccupied with work as he diove home that evening. (13)
Ravnsborg's testimony about the incidentc ontained multiple inconsistencies. He initially reported he was in the middle of the road at the time of the incident, but the evidence showed the impact occurred when he was on the shoulder-both sets of wheels having crossed over the rumble strips. (14) Ravnsborg also first said he was not sure what he hit, (15) but then later said he thought he hit a deer. (16) Certainly, confusion during a nighttime collision is understandable. Even hitting a deer at night on a rural highway can be a shocking, (17) though common, (18) experience.
What was less understandable-especially for many in the media, public, and legislature-was how Ravnsborg could remain unaware that he had hit a person until the next morning. (19) After the collision, Ravnsborg drove for several hundred feet before pulling over. (20) He then called 911, identifying himself as the Attorney General. (21) The Hyde County sheriff came to assist and loaned Ravnsborg his personal vehicle, which Ravnsborg drove home to Pierre that night, before returning to the scene the next morning. (22) Only then-the next day-did Ravnsborg find Boever's body in the ditch. (23) After the body was found, investigators joined the scene and Boever's glasses were found inside of Ravnsborg's car. (24)
One further problem was Ravnsborg's apparent attempt to use his office to influence subsequent events. Ravnsborg immediately identified himself to first responders as the Attorney General, which he had apparently done with previous incidents. (25) Later, he used official letterhead to issue a defensive public statement about the incident. (26) And finally, shortly before being interrogated during the ongoing investigation, Ravnsborg pnvately asked agents from the Division of Criminal Investigations questions about cell phone and data in an apparent attempt to get a leg up. (27) During the Senate trial, Ravnsborg's counsel downplayed this behavior, stating, "Imagine if the standard was untruths. We would see many, many, many more of these kinds of proceedings." (28)
The essays in this special issue reflect a general discomfort with these "untruths" and the surrounding facts. Question marks rarely appear in legal writing, yet several authors express uneasiness by posing questions that remain unanswered. Others' feelings go beyond discomfort. Some authors believe Ravnsborg knew what he hit. They point to the evidence-especially Boever's glasses in the back seat of the vehicle and Ravnsborg's behavior and communications immediately after the incident-to suggest he was aware from the start he had likely killed someone.
Yet the law often requires more than mere likelihood. This is reflected in the decision State's Attorneys Emily Sovell and Michael Moore made to charge Ravnsborg with three Class 2 misdemeanors: driving while using a cellphone, illegal lane change, and careless driving. (29) Many were perplexed as to why a second-degree manslaughter charge was not also added. Boever's family expressed concern that this amounted to preferential treatment. (30) But, as Sovell and Moore explained, manslaughter requires "recklessness," and they were not convinced this could be proven beyond a reasonable doubt. (31) Ultimately, Ravnsborg pled guilty to driving while using a cellphone and making an illegal lane change and was ordered to pay a $1,000 fine. (32)
Unsurprisingly, Ravnsborg subsequently received pressure to resign.33 Surprisingly, he steadfastly refused to do so (34) Had Ravnsborg simply stepped down like Janklow before him (35) South Dakota likely would not have seen its first impeachment proceedings (36) Instead, twenty-one months after causing Boever's death, Ravnsborg had been impeached, convicted, removed from office, and barred from holding it again. (37)
III. IMPEACHMENT IN SOUTH DAKOTA
The South Dakota Constitution outlines the general framework for impeachment proceedings in Article XVI. Like most such provisions at the state and federal level^ South Dakota splits the process into two stages. (39) In the first, the House decides, based on a majority vote whether to impeach the officer. (40) In the second, the Senate essentially serves as a jury and must convict by a two-thirds majority to remove the officer. (41) Then another vote is held to bar the officer from holding-future office. (42)
Unlike the United States Constitution, (43) South Dakota's voting thresholds are based on the number of members elected instead of members present. (44) Only certain officials can be impeached: "The Governor and other state and judicial officers" are "liable to impeachment," while "county judges, justices of the peace and police magistrates" are not (but can be "removed" for comparatively lesser offenses). (45) South Dakota's grounds for impeachment include "drunkenness, crimes, corrupt conduct, or malfeasance or misdemeanor in office." (46) The state constitution also prohibits officers from exercising their duties between an impeachment and trial in the Senate. (47) Finally, it notes an officer cannot be made "liable to impeachment twice for the same offense," (48) and that "whether convicted or acquitted," the officer is subject "to indictment, trial, judgment and punishment according to law." (49)
There is little in the way of state judicial or historical precedent applying these provisions. (50) The only previous occasion on which the South Dakota Legislature considered impeachment was in 1917, when the House ultimately voted against impeaching Judge Levi McGee. (51) Direct evidence of the impeachment provision's original meaning is similarly lacking. (52) South Dakota faced a slow path to statehood, (53) and there were several constitutional conventions before South Dakota became a state in 1889. As Professor Patrick Garry has summarized, most of the drafting at both the 1885...
