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Part Two The South Dakota Constitution and Commentary, Art.XVI Impeachment and Removal from Office

From: The South Dakota State Constitution

Patrick M. Garry

Content type:
Book content
Product:
US Constitutional Law [USC]
Series:
Oxford Commentaries on the State Constitutions of the United States
Published in print:
01 June 2014
ISBN:
9780199926671

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

(p. 233) Article XVI  Impeachment and Removal from Office

There have been two proposals to repeal this article. The first was rejected by the voters on November 5, 1974, and the second was rejected on November 2, 1976.

Section 1  Power of Impeachment in House—Majority Required

The house of representatives shall have the sole power of impeachment.

The concurrence of a majority of all members elected shall be necessary to an impeachment.

Both the 1974 and 1976 proposals to repeal this section would have incorporated similar provisions in Section 13 of Article III.

Section 2  Trial of Impeachments—Presiding Officer

All 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. No person shall be convicted without the concurrence of two-thirds of the members elected. When the Governor or lieutenant governor is on trial the presiding judge of the Supreme Court shall preside.

Similar to the 1974 and 1976 proposals to repeal Section 1, the proposals to repeal Section 2 would have incorporated similar provisions in a new Section (p. 234) 13 of Article III, with the exception that there would have been no requirement that the chief justice preside at a trial of the lieutenant governor and no requirement to put senators on oath.

Section 3  Officers Subject to Impeachment—Grounds—Removal from Office—Criminal Prosecution

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 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. The person accused whether convicted or acquitted shall nevertheless be liable to indictment, trial, judgment and punishment according to law.

The 1974 and 1976 proposals to repeal this section would have incorporated in a new Section 13 of Article III certain provisions authorizing the legislature to determine the manner, procedure, and causes for impeachment. Also to be included in that new Section 13 of Article III would have been provisions similar to those contained in the present Section 3, limiting the effect of a judgment on impeachment and permitting further prosecution.

As the supreme court held in an early case, this section does not prohibit a governor from removing at his pleasure the insurance commissioner, since Sections 3 and 4 of Article XVI apply only to the officers named in the constitution (State ex rel. Ayers v. Kipp, 1898).

Section 4  Removals of Officers Not Subject to Impeachment

All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance or crime or misdemeanor in office, or for drunkenness or gross incompetency, in such manner as may be provided by law.

Both the 1974 and 1976 proposals to repeal this section would have incorporated into a new Section 13 of Article III a sentence providing:

Other proceedings for removal from public office may be provided by law or this constitution.

According to the South Dakota Supreme Court, the power of the governor to remove state officers may be exercised only for the causes specified in the constitution and relevant statutes (Craig v. Jensen, 1938). However, when reviewing a governor’s removal of a state officer for cause, the supreme court should not substitute its judgment for that of the governor and should sustain the governor’s action if there is any competent evidence tending to support that action (Craig v. Jensen, 1938).(p. 235)

Section 5  Suspension of Duties Between Impeachment and Acquittal

No officer shall exercise the duties of his office after he shall have been impeached and before his acquittal.

The 1974 and 1976 proposals to repeal this section were rejected by the voters in a general election.

Section 6  Lieutenant Governor Not to Try Governor

On trial of an impeachment against the Governor the lieutenant governor shall not act as a member of the court.

The 1974 and 1976 proposals to repeal this section were rejected by the voters in a general election.

Section 7  Service of Copy of Impeachment Before Trial Required

No person shall be tried on impeachment before he shall have been served with a copy thereof at least twenty days previous to the day set for trial.

The 1974 and 1976 proposals to repeal this section were rejected by the voters in a general election.

Section 8  Impeachment Twice for Same Offense Prohibited

No person shall be liable to impeachment twice for the same offense.

The 1974 and 1976 proposals to repeal this section were rejected by the voters in a general election.(p. 236)