In a move possibly as historic as its conviction and removal from office last June of killer Attorney General Jason Ravnsborg, the South Dakota Senate has again overturned the will of the voters and removed, albeit temporarily, Senator Julie Frye-Mueller (R-30/Rapid City). On a 27-6 vote, the Senate suspended Senator Frye-Mueller and convene a Select Committee on Discipline and Expulsion to investigate as yet unspecified indecorous behavior imputed to the now powerless Rapid City Senator.
Frye-Mueller’s trouble began yesterday when Senate President Pro-Tempore Lee Schoenbeck (R-5/Watertown) removed Frye-Mueller from the Local Government and Health & Human Services committees. No one has yet said on the record what exactly Frye-Mueller is accused of doing that provoked Senator Schoenbeck to yank her from her two committees, but Frye-Mueller confirmed today that the fuss has something to do with a conversation she had earlier this week with a Legislative Research Council staffer. Bob Mercer reports the conversation was allegedly about vaccines; Frye-Mueller tells Austin Goss the conversation was not about the covid vaccine but was about Governor Noem’s favorite word: “It’s a sad day in America when advancing freedom becomes a crime.”
At the opening of today’s Senate meeting, the Senate secretary announced that Senator Schoenbeck had appointed Senator Jessica Castleberry (R-35/Rapid City) to the Local Government vacancy and Senator Al Novstrup (R-3/Aberdeen) to the HHS vacancy.
Then, after reports and messages, the first motion of the day, a motion to suspend the rules from Senator Herman Otten (R-6/Tea) and Senator Mike Rohl (R-1/Aberdeen), delivered a one-two punch. The first part was expected, calling for the committee to investigate Frye-Mueller and consider discipline. The second part was an unprecedented bombshell: “and to immediately suspend Senator Julie Frye-Mueller from exercising any rights or privileges as a senator pending the outcome of the investigation.”
If Frye-Mueller’s fellow Freedom Caucus mugwumps were any good at Senatoring, they’d have parly-pro’d the heck out of this motion. Otten and Rohl were pretty clearly logrolling two very different motions. Convening a Select Committee on Discipline and Expulsion does not require suspending the rules; the process is laid out clearly in the Senate Rules, Chapter 8, Section 1:
Any two Senators may by written motion first delivered to the president pro tempore move for the establishment of a Select Committee on Discipline and Expulsion to investigate the conduct of any other Senator. Upon being seconded, the motion is debatable, and passage of the motion requires a majority vote of the members-elect [South Dakota Senate, Senate Rules, Chapter 8, Section 1, excerpt, retrieved 2023.01.26].
Suspending a Senator is a whole nother matter. Suspending a Senator most definitely does not appear any where in the Senate or Joint rules for this Session, so it requires at least a motion to suspend the rules and take this drastic and unprescribed action. Suspending the rules requires a two-thirds vote. You can’t meld two motions that require different size votes into a single motion. At the very least, Otten and Rohl needed to divide their motion: call for the investigatory committee, which can pass with 18 votes, then call for the suspension which requires at least 24 votes.
But the question of whether the Senate has the power to suspend a member goes beyond the question of suspending the rules. The South Dakota Constitution, Article 3 Section 9, empowers the Senate and the House to judge the “qualifications” of their own members. However, Article 3 Section 3 defines the “qualifications” each chamber can judge as the age, residency, citizenship, and voting eligibility of each member. The Constitution says nothing about being able to temporarily forbid a Senator from participating in committees, speaking on the floor, and casting votes, even pending an investigation into wrongdoing.
Article 16 on impeachment doesn’t help. Article 16 Section 3 does not include legislators among the officials subject to impeachment. Article 16 Section 4 does provide for removal of officers not subject to impeachment “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,” but that’s removal, not suspension. Elected Attorney General Jason Ravnsborg was subject to impeachment, and Article 16 Section 5 says impeached officials are suspended while awaiting their Senate trial. No comparable clause for suspending Senators under investigation exists in the Constitution or in law (Title 2, on the Legislature, specifically). I would argue that suspending an elected official—annulling the will of the people, even temporarily—needs to flow from an explicit authorization in the Constitution that provides for the election of that official, not merely a statute and definitely not merely a suspension of the rules by one chamber of the Legislature.
But the Freedom Caucus lacks the legal acumen to come up with such arguments on the spot. Instead of immediately challenging the motion, Frye-Mueller and her allies sat evidently dumbfounded while Senate President and Lieutenant Governor Larry Rhoden opened the floor for discussion of this double motion.
Go to 59:10 in SDPB’s video of today’s Senate action to see what happened:
Senate Majority Leader Casey Crabtree (R-8/Madison) rose first (with a Ravnsborgianly askew necktie to stammer that the motion arose from a lot of serious thought” from Republicans and Democrats in the Senate. That was all the Majority Leader had to say to justify this extraordinary action.
Those 60 seconds were not enough for any of Frye-Mueller’s Freedom Caucus to compose a coherent objection. Into this vacuum, President Rhoden injected his concern with a question to Senator Crabtree:
I understand the motion before us is to suspend the rules. Suspending the rules does not suspend us from the obligation to follow state law or common sense. Can you cite to me in law or by what authority it’s proper for this chamber to strip the voting rights from a duly elected member of this body? [Senate President Larry Rhoden, question from the chair, South Dakota Senate, 2023.01.26]
Senator Crabtree redirected the question to lawyer Senator Schoenbeck. Senator Schoenbeck had this ready response:
I don’t have a statute in front of you. I don’t need one. The rules, as LRC has explained to me, is that we have the ability to protect the decorum of the body, and this motion is appropriate. It provides for a due process opportunity. It does not remove the Senator from office. It’s what any employer would do similarly situated if addressing these issues. It’s a suspension [Senator Lee Schoenbeck, response to the chair, South Dakota Senate, 2023.01.26].
I would much rather agree with Lee Schoenbeck than with Larry Rhoden. I’m pretty sure Schoenbeck is smarter by three-quarters than Rhoden. But President Rhoden is absolutely right to ask what law or authority supports this impeachment-like action, and Schoenbeck is wrong in almost every way in his response. To suggest he doesn’t need a law to undo the will of the people is false and, surprisingly for Schoenbeck, Trumpistly arrogant. The motion does not provide a due process opportunity for the suspension—Frye-Mueller is out of the Senate, unable to speak for her constituents, right now, without any of us knowing why. And neither Schoenbeck nor the Senate as a whole is Frye-Mueller’s employer; the people of District 30 and South Dakota are—which is all the more reason Schoenbeck, Crabtree, and everyone else should stop pussyfooting around and tell the voters what Frye-Mueller did, so the voters may decide whether they need to demand Frye-Mueller’s resignation and whether Schoenbeck’s suspension of their will is justified.
The one nail on which Schoenbeck may hang his headhunting hat is the “protecting decorum” claim. “Decorum” sounds thin (poorly tied neckties weren’t grounds for removing Ravnsborg, and they aren’t grounds for removing the cravatorily challenged Crabtree), but there it is, not explicitly cited by Schoenbeck but written in the Joint Rules, Chapter 1A on Decorum, Section 10: “The presiding officer may have any member temporarily removed in order to preserve order and decorum.”
But Schoenbeck reads Joint Rule 1A-10 wrong. This rule does not empower the Senate as a body to vote to suspend a member. This rule does not state that two members may move to suspend a fellow member for breaching decorum. This rule instead authorizes the presiding officer of the Senate to eject any unruly Senator by his own edict. And Joint Rule 1A-10, with its reference to the “presiding” officer and read in context with the entire chapter on decorum (see for best example Joint Rule 1A-1, empowering the presiding officer to clear the galleries or lobbies to preserve order and decorum) refers specifically to decorum while there is a meeting of the Senate over which an officer may preside.
At the time Otten and Rohl’s unjustified motion to suspend the rules and Frye-Mueller was read and opened for debate, no breach of decorum was taking place. Frye-Mueller was seated her desk on the Senate floor, causing no disruption. Even had she done so, even had she started bawling and throwing pocket Constitutions at Schoenbeck as he gave his incorrect response, no motion was in order; the only proper response prescribed by the rules would have been for President Rhoden to direct the Sergeant at Arms to escort the unruly Senator from the chamber until she recomposed herself.
But Frye-Mueller was not violating the decorum of this afternoon’s meeting. The presiding officer had no grounds upon which to remove he from this afternoon’s meeting.
After a pregnant pause, Presiding Officer Rhoden recognized Senator Tom Pischke (R-25/Dell Rapids) for further remarks. Pischke rose from his seat, right next to Frye-Mueller, and made none of the above procedural points. Instead, he complained that the motion to suspend the rules would allow the investigative committee to proceed according to its own special rules instead of the rules approved unanimously by the Senate at the beginning of Session. He let slip that Frye-Mueller’s troublesome conversation was with a female LRC staffer—”At this moment, we have a she-said-she-said situation.” He said the Senate needed to take more time to gather facts and information… which seems to miss the point that no matter how much time the Senate might take or how many facts it might gather, the Senate has no authority to suspend a member for an alleged, unspecified, and as-yet uninvestigated breach of decorum. Pischke did get to the point that the Senators “are going down the road of taking away the voting rights of all the people of District 30.” “We’re talking about lawsuits here,” warned Pischke.
Senator Frye-Mueller then rose and said she had not been presented with any information to explain what provoked the motion to suspend her, “and yet I understand all of you saw it in caucus.” She said, “I know there’s an agenda behind all this,” and at the end of her speech she said it seemed the Senate was putting its rules aside “for a purpose,” but Frye-Mueller left that agenda and that purpose unsaid. Amidst some empty sputtering, she asked members to vote their conscience. “I have always gotten along with the people in the LRC and tried to get along with all of you.” Not exactly a stirring defense, and definitely not the technical parliamentary protest that this moment required.
Hearing no further remarks, President Rhoden had finally gathered enough thoughts to say the rules were written to keep the Senate within the boundaries of the law and the Constitution. He said this motion denied the accused due process. He said suspending a Senator before any investigation or hearing puts “the cart before the horse”. He thus ruled, after allowing the motion to be debated, that the motion was out of order.
Frye-Mueller’s Freedom Caucusers weren’t wielding parliamentary procedure, but Senator Schoenbeck was. Seemingly anticipated by Rhoden, Schoenbeck appealed to ruling of the chair. A majority stood to support Schoenbeck’s challenge (notably not standing in the SDPB screen cap: Senators Wink, Wheeler, Novstrup, Schoenfish, and Stalzer, along with Frye-Mueller and Pischke), and Rhoden called for a vote.
Suspending the rules requires 24 votes. This motion got 27:
- Yeas: Bolin, Bordeaux, Breitling, Castleberry, Crabtree, Davis, Deibert, Diedrich, Duhamel, Hunhoff, David Johnson, Klumb, Jack Kolbeck, Steve Kolbeck, Larson, Maher, Mehlhaff, Nesiba, Novstrup, Herman Otten, Reed, Rohl, Schoenbeck, Schoenfish, Stalzer, Tobin, and Wheeler
- Nays: Beal, Frye-Mueller, Brent “B.R.” Hoffman, Pischke, Wink, and Zikmund
- Excused: Foster and Wiik
Rhoden’s declaration of the passage of the motion was not accompanied by any order to the Sergeant at Arms to remove the suspended Frye-Mueller, who appears to have walked out under her own power. The Senate went straight to debating feckless SCR 602, in which the Senate voted 30–3 to celebrate the Alito Court’s stripping women of their reproductive rights. Had the only member of the Freedom Caucus remaining on the Senate floor, Senator Pischke, been quicker on the uptake, he might have noted the irony of that vote coming right after the Senate’s own vote to strip a woman of her Legislative rights. But we got no such treat. Only sponsor Jim Bolin (R-16/Canton) and opponent Reynold Nesiba (D-15/Sioux Falls) spoke to the resolution, and after the SCR 602 vote (for which Frye-Mueller is rather incorrectly listed as “excused”) , the Senate sped through housekeeping and adjourned at 2:30 p.m. Central for its three-day weekend.
Senators Schoenbeck and David Wheeler (R-22/Huron) will spend their three-day weekend writing rules for the upcoming hearing, which Schoenbeck intends to conclude by the end of next week:
Republican Sen. Lee Schoenbeck told KELOLAND News that he and Republican Sen. David Wheeler will work this weekend on rules that he hopes can be presented to the Senate on Monday when legislators return to the Capitol.
Schoenbeck serves as Senate president pro tem and is the chamber’s highest-ranking member. He said he also intends on Monday for a select committee to be appointed that will quickly hold a hearing where Frye-Mueller can present a defense.
He wants the committee to finish within 48 hours and deliver recommendations to the full Senate, with the matter wrapped up no later than Thursday or Friday. The committee could recommend that she be expelled, censured, disciplined or exonerated. Should she resign, the committee would be dismissed [Bob Mercer, “SD Senate Disciplinary Action May Start Monday,” KELO-TV, 2023.01.26].
Schoenbeck and Wheeler worked together crafting rules for Ravnsborg’s impeachment trial last spring. They shouldn’t need to craft rules for the Frye-Mueller discipline/expulsion committee: the Senate Rules already spell out how that committee should proceed. How many of those rules the committee investigating Frye-Mueller will follow will be seen shortly. Perhaps the most important rule to retain lies in Senate Rule S8-2: “All meetings of the Select Committee on Discipline and Expulsion are open meetings in like manner to any other Senate committee meeting. All meetings shall be webcast and archived in like manner to any other Senate committee hearing.” The Senate earned public confidence in its conviction and removal from office of Jason Ravnsborg by ensuring that the public saw all the evidence necessary to demonstrate that Ravnsborg had forfeited the public trust. If the Senate is going to establish a precedent for suspending one of its own members prior to any due process, it had better tell the public, exactly and fully, what extraordinarily bad behavior by the accused Senator justifies this extraordinary punishment that sent Julie Frye-Mueller home this afternoon without the voting power District 30 voters gave her.