Preventing Senator from Voting Illegal, But Senate Can’t Face Criminal Charges for Frye-Mueller Suspension

An eager and Legislatively attentive reader suggests that the Senators who voted to suspend Julie Frye-Mueller all violated South Dakota law.

My reader cites SDCL 2-4-6 and SDCL 2-4-7, which make it a crime to prevent legislators from doing their duties.

2-4-6. Preventing Legislature or members from meeting as felony: Every person who intentionally, by force or fraud, prevents the Legislature of this state or either of the branches composing it, or any of the members thereof, from meeting or organizing, is guilty of a Class 4 felony.

2-4-7. Preventing legislator from attending or voting as misdemeanor: Every person who intentionally, by intimidation or otherwise, prevents any member of the Legislature of this state from attending any session of the branch of which he is a member, or of any committee thereof, or from giving his vote upon any question which may come before such branch, or from performing any other official act, is guilty of a Class 2 misdemeanor.

Those statutes would certainly seem to be worth the attention of Frye-Mueller and her lawyer, fellow radical theocrat Steven Haugaard, in arguing against this suspension. Curiously, Frye-Mueller and Haugaard appear to be ignoring state law entirely in their legal defense and focusing strictly on the First Amendment question and more vague due process complaints that seem harder to apply to Senate management of its own rules (and which are getting nowhere with U.S. District Court Judge Roberto Lange, who yesterday rejected her call for immediate federal judiciary intervention but offered a full hearing next week, after the shouting about Boobgate in the Senate will likely be done and judicially moot).

Proving the felony violation of SDCL 2-4-6 would, as we would expect of a felony charge, be harder. The Senate certainly did not use force to remove Frye-Mueller from the chamber last Thursday. Whether the Senate used fraud is a sticky question of who knew what when about the facts of the Legislative Research Council employee’s complaint. Even if the LRC employee filed a false complaint, Senators could argue they were acting in good faith on a complaint they took to be truthful, and the prosecution would have the burden of proving otherwise.

Proving the misdemeanor violation of SDCL 2-4-7 would be much simpler—while we can’t call a formal vote “intimidation”, the Senate has clearly “otherwise” prevented Frye-Mueller from voting and performing other official acts.

However, these statutes do not apply to this suspension because they refer to “every person” who prevents a member from meeting or voting. No one person has prevented JFM from participating in Senate business; the Senate as a body voted to suspend her. The Senate as a body cannot be charged with a crime or punished in court.

Plus, Article 3 Section 11 of the South Dakota Constitution provides members of the Senate and the House with the same legislative immunity written into the United States Constitution (Article 1 Section 6). Police can’t arrest them during Session except for treason, felony, or breach of the peace, and they can’t be hauled into court for what they say in their chamber, including how they vote.

That immunity may be part of why Frye-Mueller didn’t sue Senate President Pro Tempore Lee Schoenbeck in state court, as the state court would cite that state legislative immunity as a key part of the separation of state powers (as key as the principle of letting the Legislature decide the qualifications of its own members that the South Dakota Judiciary has used to stay out of previous intra-Legislative squabbles).

And just to complicate things, even if Frye-Mueller thought she had a criminal case against the Senators who voted her off the floor for these few days, whom would she get to prosecute the case? Preventing a legislator from doing her business is a state crime, which should be prosecuted by the state, but the Senate already has the state, in the smiling silvery form of Attorney General Marty Jackley himself, defending Schoenbeck and the full Senate in federal court (see the January 31 Senate minutes for their vote to engage Jackley under SDCL 1-11-1.

My reader’s suggestion that the Senators who voted to suspend Frye-Mueller are all misdemeanants, if not felons, is worth considering, but I suspect the facts of the case and the principle of Legislative immunity will prevent any Senator from facing criminal charges for any Boobgate votes.