2016 North Dakota Century Code Title 44 Offices and Officers Chapter 44-09 Removal by Impeachment
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CHAPTER 44-09
REMOVAL BY IMPEACHMENT
44-09-01. Impeachments - Reasons - Officers subject.
The governor and other state and judicial officers of the state, except municipal judges, are
subject to impeachment, and may be impeached for habitual drunkenness, crimes, corrupt
conduct, malfeasance, or misdemeanor in office. The articles of impeachment may contain
charges and specifications, or either, predicated upon or on account of any crime, corrupt
conduct, malfeasance, or misdemeanor in office committed by the accused during any previous
term of the same office.
44-09-02. Commencement - Trial - Presiding officer.
The sole power of impeachment is vested in the house of representatives. A concurrence of
a majority of all members is necessary to the exercise thereof. All impeachments must be tried
by the senate sitting for that purpose, and the senators must be upon oath or affirmation to do
justice according to law and the evidence. When the governor or lieutenant governor is on trial,
the chief justice of the supreme court shall preside, or if the chief justice is disqualified or unable
to preside, then some other judge of said court must be selected by the senate. No person may
be convicted without the concurrence of two-thirds of the senators elected.
44-09-03. Impeachment - Origination - Prosecution - Articles.
Every impeachment must be originated by resolution adopted by the house of
representatives and the prosecution thereof conducted by at least five managers selected
therefor by the house. Such managers or a committee of the house must prepare the articles of
impeachment in accordance with the resolution of the house and submit them to the house for
approval. When approved the managers must present the same at the bar of the senate and
immediately deliver them to the presiding officer thereof. The house may authorize the
managers to employ counsel to assist them in the preparation and prosecution of the articles of
impeachment.
44-09-04. Form of articles of impeachment - Specifications.
The articles of impeachment must be divided into separate charges and specifications
thereunder. The charges must be numbered consecutively and separately and each must set
forth in a general way the facts claimed to constitute one of the offenses named in section
44-09-01. The specifications under each charge must follow it immediately and be numbered
consecutively. Each must set forth the facts claimed to constitute an offense of the kind named
in the charge under which it is placed. There may be as many charges and as many
specifications under each as the circumstances may require. No objection may be made on
account of the form of the articles of impeachment, and the same must be deemed sufficient in
substance if the allegations enable the accused to understand the nature of the accusations
against the accused, and enable the accused to make a defense.
44-09-05. Day for hearing - Notice to accused.
The senate, whenever articles of impeachment are presented to it by or on behalf of the
house of representatives, must assign a day for the hearing of the impeachment and inform the
house thereof. The day so assigned may not be earlier in the session than that at which the
completion of the business of the legislative assembly may be effected. All steps and
preparations necessary may be taken and made from time to time during the session to enable
the trial to begin immediately upon the completion of the business of the legislative assembly.
The president of the senate or other person presiding therein must cause a copy of the articles
of impeachment with a notice to answer the same, at the time and place appointed, to be served
upon the accused not less than twenty days before the day set for the trial.
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44-09-06. Service of notice.
The service must be made upon the accused personally, or if upon diligent inquiry the
accused cannot be found within the state, the senate, upon proof of that fact, may order the
notice to be served by publication or otherwise in such manner as it may deem proper. The
notice as published must require the accused to appear at the specified time and place to
answer the articles of impeachment. When the notice to the accused is served by publication or
otherwise than personally within the state, the articles of impeachment may be served upon the
accused by mail or otherwise as the senate may deem proper.
44-09-07. Procedure after notice.
If the accused does not appear, the senate, upon proof of service of the notice and articles
of impeachment in any manner provided in sections 44-09-05 and 44-09-06, as the
circumstances may require, of its own motion or for cause shown, may assign another day for
the hearing of the accused, or may proceed in the absence of the accused to trial and judgment.
44-09-08. Impeachment suspends officer.
No officer may exercise the duties of that office after the officer has been impeached and
before acquittal. Whenever upon the impeachment of an officer there is no one authorized by
law to perform the duties of the office and the senate shall by resolution declare that the public
service may suffer by reason thereof, the governor shall designate some suitable person to
perform the duties of the office until the end of the trial upon the articles of impeachment. The
person so designated shall receive the same salary, fees, and emoluments as such officer
would receive if not impeached. If the accused is acquitted, the accused must be restored
immediately to the office but if convicted, the office must be deemed vacant and must be filled
immediately as provided by law.
44-09-09. Organization of court - Powers.
The senate and each member thereof, unless excused for cause, shall meet at the senate
chamber on the day assigned to hear the impeachment and organize as a court for the trial of
the same. Such organization must be held and deemed to be perfected when the presiding
officer of the senate and all members thereof, not excused, have taken the oath or affirmation
prescribed. No member may sit in the trial or vote upon such trial until the member has taken
such oath or affirmation. The oath or affirmation must be administered by the secretary of the
senate to the presiding officer thereof and by the presiding officer to each of the members of the
senate. The senate sitting as a court upon the trial of an impeachment has the same power to
compel the attendance of its members as when engaged in the ordinary business of legislation.
44-09-10. Counsel for accused.
If the accused appears and is unable to procure the assistance of counsel, the president of
the senate, or other person presiding, shall appoint some suitable person to assist the accused
in the accused's defense. If the accused is served by publication and fails to appear, the
president of the senate, or other person presiding, shall appoint some person as counsel to
appear in the accused's behalf and make defense for the accused.
44-09-11. How accused may answer - Articles of impeachment.
If the defendant appears, the defendant may object in writing to the sufficiency of the
articles of impeachment or may answer the same in writing or by oral plea. Such plea must be
entered upon the journal. A plea of not guilty puts in issue every material allegation of the
articles of impeachment and the specifications thereunder.
44-09-12. Objections to the articles - Procedure.
If the accused makes objections to the sufficiency of the articles of impeachment and such
objections are sustained by a majority of the members of the senate, the decision must be
entered on the journal and no further proceedings may be had upon the articles. If such
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objections are not sustained by a majority of the members of the senate, the accused must be
ordered forthwith to answer the articles.
44-09-13. Impeachment - Objections overruled - Further proceedings.
If the accused, upon the overruling of the objections as provided in section 44-09-12, pleads
guilty to any or all of the charges or specifications, the senate must render judgment of
conviction against the accused. If the accused pleads not guilty or refuses to plead, the senate,
at such time as it may appoint, must proceed to try the impeachment.
44-09-14. Duty of secretary of senate.
The secretary of the senate in all cases of impeachment shall keep a full and correct record
of all proceedings. Said record shall be a public record. The secretary of the senate also shall
have power to administer all requisite oaths and affirmations.
44-09-15. Subordinate officers of the court of impeachment.
The senate sitting as a court of impeachment has power, from time to time, to appoint such
subordinate officers, clerks, and reporters as may be necessary for the convenient transaction
and dispatch of business, and at any time may remove such officers or any of them.
44-09-16. Process for witnesses.
The managers selected by the house of representatives and the person impeached and that
person's counsel, severally, are entitled to process for compelling the attendance of persons
and witnesses or the production of papers or records required for the trial of the impeachment.
44-09-17. Senate may make rules for trial - Subpoenas.
The senate sitting as a court of impeachment has full power and authority to establish such
rules and regulations for the trial of the accused as may be necessary, has power to adjourn
from time to time, dissolve when its work is concluded, and compel obedience to its process and
orders. Its process, including subpoenas, runs into every part of the state and may be served by
the same officers as other process or by any person authorized by the presiding officer of the
court to serve the same, and has the same force and effect as subpoenas from district courts in
criminal actions.
44-09-17.1. Depositions may be taken.
In any impeachment trial conducted before the senate of the state of North Dakota, the
testimony of any witness not a resident of the state of North Dakota and not amenable to
subpoena within the state of North Dakota at the time of such trial may be taken by deposition
upon the same notice, in the same manner and before any officer authorized to take depositions
in civil cases in the courts of the state, upon subpoena issued by the clerk of the supreme court
or the secretary of the senate, such subpoena must be issued upon the request of the
prosecution or defense or the attorneys for either of them. Any such deposition when
transcribed and certified by the officer taking the same must be by that officer filed with the
secretary of state of the state of North Dakota, and must be held by the secretary of state,
subject to examination by the board of managers, their attorneys, the impeached officer, and the
impeached officer's attorneys until the time of trial when it must, upon the request of the board
of managers, be delivered to the secretary of the senate. Any such deposition must be in such
manner as the senate may prescribe.
44-09-17.2. Corporations and limited liability companies to produce books and
records - Penalty.
All corporations and limited liability companies, and all officers, managers, agents, and
employees of all corporations and limited liability companies, licensed or authorized to do
business within this state by any licensing or supervisory authority of this state shall be required
to obey all subpoenas and orders to produce issued by the authority of the board of managers
at any place within the county where they may have their principal office or any other office
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which may have evidence, records and documents desired by the board of managers, whether
within or without the state, and in case of the failure or refusal of any such corporation or limited
liability company or any of its officers, managers, agents, or servants to obey any such
subpoena or order to produce, or to appear and testify under oath or affirmation concerning the
matters requested, the board of managers shall forthwith make a report of the facts of such
failure or refusal to the supervising or licensing authority of this state, and it shall thereupon be
the mandatory duty of such supervisory or licensing authority or officer to give said corporation
or limited liability company ten days' notice in writing by registered or certified mail of the
authority's or officer's intention to cancel the license or authority of said corporation or limited
liability company to do business within this state, and at the expiration of said ten-day period
said licensing or supervisory authority shall hear evidence only upon the question of the failure
or refusal to obey such subpoena or order to produce, and if the evidence shall show such
refusal or failure, the license and authority of said corporation or limited liability company to do
business in this state shall be forthwith canceled and revoked.
44-09-18. Privileges of court - Imprisonment.
The senate, while sitting as a court of impeachment, has all the powers and privileges
conferred upon it by the constitution as a house of the legislative assembly or the laws passed
in pursuance thereof, but imprisonment may not extend beyond the dissolution of the court of
impeachment.
44-09-19. Vote on charge - Conviction.
The vote upon the charges and specifications must be taken by yeas and nays, beginning
with the first specification under the first charge and continuing until all the specifications under
the first charge have been disposed of. A vote must be taken in the same way upon each
specification and all specifications and other charges in the articles of impeachment until they all
are disposed of. If two-thirds of the members elected concur in favor of a conviction upon any of
the charges or specifications the accused must be convicted, otherwise the accused must be
acquitted.
44-09-20. Upon conviction judgment entered by resolution.
If the accused is convicted, the senate, at such time as it may appoint, must pronounce
judgment in the form of a resolution entered upon the journal of the senate.
44-09-21. Adoption of resolution - Judgment of senate.
On the adoption of the resolution by a majority of the members present who voted on the
question of acquittal or conviction, it becomes the judgment of the senate.
44-09-22. Extent of judgment of conviction.
The judgment may be that the defendant be removed from office or that the defendant be
removed from office and disqualified to hold any office of trust or profit in the state.
44-09-23. Effect of judgment of conviction.
If a judgment of conviction is given, the defendant is disqualified from exercising any of the
functions of the office and from receiving the salary, fees, or emoluments thereof, and the office
must be filled for the remainder of the term as upon a vacancy.
44-09-24. Lieutenant governor impeached - Notice to house.
If the lieutenant governor is impeached, notice of the impeachment must be given
immediately to the senate by the house of representatives in order that another president may
be chosen.
44-09-25. Impeachment does not bar prosecution.
If the offense for which the defendant is impeached or convicted is also the subject of an
information or indictment, the information or indictment is not barred thereby.
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44-09-26. Court of impeachment - Compensation - Members - Counsel - Payment.
The presiding officer, except the chief justice when presiding, and members of the senate,
while sitting as a court of impeachment, and members of the house of representatives, are
entitled to receive compensation and expense reimbursement as provided in section 54-03-20
and mileage expenses as provided in section 54-06-09, while attending the court of
impeachment. The compensation of the secretary of the senate, sergeant-at-arms, and all
subordinate officers, clerks, stenographers, and reporters of the court and counsel employed to
assist the managers and counsel selected and employed by accused with respect to the
accused's defense in the impeachment trial, must be such amount as must be determined upon
by a vote of the members of such court; provided, however, that the amount paid to the counsel
employed to assist the managers and the amount paid to the counsel employed to assist the
accused must be equal. The office of management and budget, upon presentation of a
certificate signed by the presiding officer and secretary of the senate, shall pay from the general
fund the expense of the senate, and the compensation of the officers, clerks, stenographers,
and reporters and counsel under the provisions of this chapter.
44-09-27. Impeachment trial - Compensation of officers and witnesses - Payment.
The same fees must be allowed to witnesses, officers, and other persons serving process or
orders as are allowed for like services in criminal actions, but no fees can be demanded in
advance. Such fees must be certified and paid as provided in section 44-09-26 for the payment
of the senate officers, clerks, reporters, and counsel but subject to the right of the senate to
disallow all fees and charges which it shall deem unreasonable or unnecessary.
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