# Title 44 — Offices and Officers

## Chapter 44-10 — Removal by Judicial Proceedings

### § 44-10-01. Additional proceedings - Removal from office.

In addition to the proceedings mentioned in chapter 32-13 and chapters 44-02, 44-08, and
44-11, and apart and distinct from any other criminal action or proceedings, the provisions of
this chapter are adopted to obtain a judgment of removal from office.
### § 44-10-02. Accusation by grand jury - Causes for removal.

An accusation in writing against any district, county, township, city, or municipal officer,
school board member, or any state officer not liable to impeachment, except a representative in
Congress and a member of the legislative assembly, for misconduct, malfeasance, crime, or
misdemeanor in office, or for habitual drunkenness or gross incompetency, may be presented
by the grand jury to the district court of the county in or for which the officer accused is elected
or appointed. When the proceedings are against a state officer not liable to impeachment, the
accusation may be presented by the grand jury of the county in which the officer resides or in
which the officer has an office for the transaction of official business.
### § 44-10-03. Form of accusation.

The accusation must state the offense charged in ordinary and concise language without
repetition and in such manner as to enable a person of common understanding to know what is
intended.
### § 44-10-04. Service of accusation by judge and state's attorney - Filing original.

After receiving the accusation, the judge to whom it is delivered forthwith shall cause it to be
transmitted to the state's attorney of the county except when the state's attorney is the officer
accused. The state's attorney shall cause a copy thereof to be served upon the defendant and
shall require by written notice of not less than five days that the defendant appear before the
district court of the county and answer the accusation at a specified time. The original
accusation then must be filed with the clerk of court.
### § 44-10-05. Defendant must appear and answer accusation.

The defendant must appear at the time appointed in the notice and answer the accusation,
unless for sufficient cause, the court assigns another day for that purpose. If the defendant does
not appear, the court may proceed to hear and determine the accusation in the defendant's
absence.
### § 44-10-06. Defendant's answer.

The defendant may answer the accusation either by objecting to the sufficiency thereof or of
any article therein, or by denying or admitting the truth of the same.
### § 44-10-07. Objections for insufficiency by defendant.

If the defendant objects to the legal sufficiency of the accusation, the objection must be in
writing but need not be in any specific form, it being sufficient if it presents intelligibly the ground
of the objection.
### § 44-10-08. Denial of accusation may be oral.

If the defendant denies the truth of the accusation, the denial may be oral and without oath
and must be entered upon the minutes.
### § 44-10-09. Objections to sufficiency of accusation overruled - Answer.

If an objection to the sufficiency of the accusation is not sustained, the defendant must
answer the accusation forthwith.

### § 44-10-10. Conviction on plea or trial.

If the defendant pleads guilty, the court must render judgment of conviction against the
defendant. If the defendant denies the matters charged or refuses to answer the accusation, the
court immediately, or at such time as it may appoint, must proceed to try the accusation.
### § 44-10-11. Trial by jury.

The trial must be by a jury and must be conducted in all respects in the same manner as the
trial of an information or indictment for a misdemeanor.
### § 44-10-12. Judgment on conviction.

Upon a conviction, the court must pronounce judgment that the defendant be removed from
office. To warrant a removal the judgment must be entered upon the minutes, assigning therein
the causes of removal.
### § 44-10-13. Process for witnesses.

The state's attorney, or other person appointed to prosecute, and the defendant,
respectively, are entitled to such process as may be necessary to enforce the attendance of
witnesses as upon a trial of an information or indictment.
### § 44-10-14. Appeal from judgment of removal.

From a judgment of removal, an appeal may be taken to the supreme court in the same
manner as from a judgment in a civil action, but until such judgment is reversed the defendant is
suspended from office. Pending the appeal the office must be filled as in case of vacancy.
### § 44-10-15. Proceedings to remove state's attorney.

The proceedings provided for in this chapter may be had on like grounds for the removal of
a state's attorney, except that the accusation must be delivered by the judge to the clerk of the
district court, and by the clerk to such person as may be appointed by the judge to act as
prosecuting officer in the matter. The prosecuting officer is authorized and required to conduct
the proceedings.
### § 44-10-16. Other accusations - Delivery by judge to state's attorney.

When an accusation in writing and verified by the oath of any person is presented to the
district court, alleging that an officer or school board member within the jurisdiction of the court
has been guilty of charging and collecting illegal fees for services rendered or to be rendered in
that officer's or school board member's office, or has refused or neglected to perform the official
duties pertaining to that officer's or school board member's office, or has been rendered
incompetent to perform said duties by reason of habitual drunkenness or other cause, the judge
of the court to whom it is delivered must transmit the accusation to the state's attorney of the
county, or in case it is against the state's attorney of the county, the accusation must be
delivered as provided by section 44-10-15.
### § 44-10-17. Accusation - Notice to appear - Service on defendant.

The state's attorney of the county, or person appointed to prosecute, must cause a copy of
the accusation to be served upon the accused and, by written notice, must require the accused
to appear before the court at a time specified, not more than twenty days nor less than five days
from the time the accusation was presented, and answer said accusation.
### § 44-10-18. Hearing - Evidence - Determination of issues.

On the day named in said notice or on some subsequent day not more than thirty days from
that on which the accusation was presented, to be fixed by the judge, the court must proceed to
hear the accusation and evidence offered in support of the same, and the answer, if any is
made, and the evidence offered by the party accused. The court may try and determine the
issues unless the accused requires that they be submitted to a jury.

### § 44-10-19. Jury called on request.

If a jury is required as provided in section 44-10-18, the court forthwith, in a summary
manner, must cause a jury to be impaneled and the matter submitted to it. Challenges must be
allowed and the trial conducted in the same manner as a trial by jury in a civil action.
### § 44-10-20. Proceedings on trial of court case - Costs - Appeal.

If the charge is tried by the court, it shall proceed as upon the trial of a civil action by the
court. The decision of the court or the verdict of the jury must be "guilty" or "not guilty". Costs
must be awarded as in a civil action. If the accused is found guilty, either by the decision of the
court or by the verdict of the jury, the court shall render judgment that the accused be removed
from office, and for the costs of the action. A statement of the case may be settled and an
appeal taken as provided by law in a civil action. The court in its discretion, if the accused is
found guilty, may award treble costs against the accused. If the court finds that the accusation
was made without probable cause, it must tax the costs of the prosecution and trial against the
complainant.
### § 44-10-21. Proceedings do not bar criminal prosecution.

Nothing contained in this chapter may be construed to prevent any officer from being
proceeded against for a crime or public offense in the manner which may be provided by law for
proceeding against any other person accused of a crime or public offense, nor to limit the power
of the court to remove such officer from office, upon conviction, when authorized by law to do
so.
