On the evening of September 12, 2020, South Dakota's Attorney General, Jason Ravnsborg, was returning to his home in Pierre from a political event in Redfield, when he struck and killed Joseph Boever, a pedestrian walking along U.S. Highway 14. (1) This occurred in Hyde County, a short distance west of Highmore. (2) During the following days and weeks, the accident and Governor Kristi Noem's demands that the Attorney General resign as a result of the accident were front page news throughout the state of South Dakota. (3)
The matter formally came before the legislature on February 24, 2021, when Representative Will Mortenson introduced House Resolution ("HR") 7001, which called for the Attorney General's impeachment. (4) HR 7001 was amended in the House of Representatives to provide that if the Attorney General was convicted, pled guilty or nolo contendere, or was acquitted in the pending Hyde County criminal cases, then the House of Representatives may evaluate whether articles of impeachment are necessary and proceed accordingly. (5)
At that time, I became interested in how the Office of Attorney General would be filled in case of impeachment or resignation. My legal research revealed what I thought was a strange anomaly in South Dakota law. The Attorney General is one of the "constitutional officers" elected by the voters. (6) The South Dakota Constitution's Article IV, Section 8 provides that except for the constitutional offices, the Governor can organize all executive and administrative offices into not more than twenty-five departments, and Article IV, Section 9 provides that these departments shall be headed by an executive who shall be appointed by the Governor with the advice and consent of the Senate. (7) Article IV, Section 3 provides: "Whenever a vacancy occurs in any office and no provision is made by the Constitution or laws for filling such vacancy, the Governor shall have the power to fill such vacancy by appointment." (8)
Under my interpretation of that provision of the South Dakota Constitution, if there is no provision in the constitution or laws for filling a vacancy, then the Governor can fill the vacancy by appointment without the advice and consent of the Senate.
I could find no constitutional or statutory provision for filling vacancies in the constitutional offices. It seemed peculiar to me that the administrative department positions could be filled or replaced by the Governor but only with the advice and consent of the Senate. However, the constitutional offices, which are provided for in the South Dakota Constitution and all of whom are initially elected by the voters of the state, could be replaced by the Governor without the approval of the Senate.
As a result of this discovery, I prepared and, on January 26, 2021, introduced Senate Bill ("SB") 112, which required that the replacement of constitutional officers be done with the advice and consent of the Senate. (9) SB 112 was very well-received and passed the Senate on February 2, 2021, by a vote of 32-2 and the House on March 3, 2021, by a vote of 54-14. (10) It has since been codified as South Dakota Codified Law section 3-4-3(1) which provides that vacancies shall be filled as follows:
The attorney general, secretary of state, state auditor, state treasurer, and commissioner of school and public lands, by the Governor with the advice and consent of the Senate. However, if a vacancy occurs in any of the offices listed in this subdivision while the Legislature is in recess, the Governor shall make a temporary appointment until the next session of the Legislature. (11)
Attorney General Ravnsborg subsequently pled guilty to two of the misdemeanor charges that had been filed against him as a result of the accident. (12) As a result, during 2021 and 2022 the South Dakota Legislature further considered the impeachment of the Attorney General. (13)
This was the first impeachment proceeding in the history of the state of South Dakota and required the legislature to consider issues that had never previously come before it. (14) Article XVI of the South Dakota Constitution provides the authority for impeachment and removal from office of some state executive and judicial officers. It provides:
The 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 judgement 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. (15)
The constitution requires a majority vote of the members of the South Dakota House of Representatives to impeach and a two-thirds vote of the South Dakota Senate to convict. (16) A state official must be both impeached and convicted in order to be removed from office. (17)
The impeachment process started with a special session of the legislature in November of 2021. (18) At that time the House of Representatives appointed a select committee to investigate the matter and make a recommendation to the House as to what action to take. (19) The Senate took no action at that time, as the Senate had to wait until the House made a decision on impeachment before the Senate would...
