Tuesday, May 06, 2008

Can Dann Be Impeached?

The short answer to the question posed is "yes." But you should know by now that this blog does not deal in short answers.

Impeachment in Ohio is governed by two constitutional provisions. The mode of impeachment is set forth in § 2.23:

    The house of Representatives shall have the sole power of impeachment, but a majority of the members elected must concur therein. Impeachments shall be tried by the senate; and the senators, when sitting for that purpose, 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 senators.
And § 2.24 describes who may be impeached.
    The governor, judges, and all state officers, may be impeached for any misdemeanor in office; but judgment shall not extend further than removal from office, and disqualification to hold any office under the authority of this state. The party impeached, whether convicted or not, shall be liable to indictment, trial, and judgment, according to law.
Modern Esquire and the Dispatch each point out that "misdemeanor" in this context means any misdeed in office. This is true for two reasons. First, that's the general understanding of what that language meant at the time. Second, there is essentially no judicial review of impeachments. An impeachable offense is whatever 2/3 of Senators say it is, with no appeal.

How can that be? Welcome to an obscure little pocket of constitutional law called the political question doctrine. The U.S. Supreme Court treats some issues as political questions and therefore outside the Court's jurisdiction. The Court set out a multi-part test for political questions in Baker v. Carr, but the most important one you need to know about is that the matte is one fully committed by the Constitution to one of the other two branches. The theory regarding impeachment is that the constitutions, both state and Federal, explicitly commit the question of impeachment to the legislative branch.

The U.S. Supremes stated unequivocally in Nixon v. U.S. (ironically not about President Nixon who resigned before being impeached but a judge named Nixon who objected to being impeached) that even procedural questions about impeachment are beyond the Court's reach. The current Ohio Supreme Court is likely to follow suit. It's generally a conservative court at political question is a generally conservative doctrine. A number of members of the Court has also spoken fondly of the more general principle of justiciability, most notably in the various dissents and concurrences of the various DeRolph decisions.

Having said all of that, we hope that the Senate will proceed with some caution on this matter. The nightmare scenario is the House Republican caucus writing articles of impeachment with some sort of poison pill that makes Democrats hesitant to vote on them. The articles should include the full scope of Dann's misdeeds -- simply impeaching him for boffing a subordinate would be a bit out of bounds, for instance.

They should also include misdeeds inimical to good government. If, for example, Dann is found to have lied about Utovich spending the night,1 that by itself is an awfully thin reed. I believed during the Clinton impeachment and believe today that perjury to cover up an affair to avoid embarrassment, while bad and illegal, is not the sort of misdeed that should bring about impeachment. It's a closer call here since his affair is a key part of the porn-set-minus-wiling-females milieu that was the Dann Attorney General's office.

Still, one hopes that Dann will be impeached based on a stronger list of misdeeds.

1No small number of pixels have been burned on this question already, but here's how it would go. Dann stated in his first statement that he did not recall Utovich spending the night. Then he "amended" that statement later and stated that she did on occasion. Fine, but if the evidence shows that she spent the night routinely because they were sleeping together, his first statement that he didn't remember isn't simply a slip of memory, it's a lie.


Jill said...

Case law on how legislatures have defined "misdeed in office" shows...what? :) Please don't tell me to look it up myself lol - I'm betting you already know the answer.

I can see Lisa Renee's concern here - if the legislators can decide on whatever they want to be the impeachable offenses, to say "smeared the good name of the Ohio" might not be much of a precedent we'd want to set.

What are your thoughts on what the offense could be?

Scott Piepho said...

That's the point. There is no case law because the courts will not review the bases of impeachment. My understanding is that nothing exists federally or in Ohio. There may be other states in which courts have reviewed either because they haven't given full weight to political question or because their constitutions vest the courts with some power of judicial review.

It's possible Ohio could look to other jurisdictions, but I stand by my prediction that the Ohio Supremes will declare it political question and leave it at that.

So again, an impeachable offense is what 2/3 of the Senate says it is.

Modern Esquire said...

Dammit, Pho, you beat me to the punch as I was literally writing the same analysis.

Impeachment is a political act, not a legal act, and therefore political doctrines apply, not legal standards.

The General Assembly is not an institution built on stare decisis, nor was it ever intended as such. It was intended to be a political branch which reflected the passions and desires of the public.

As such, the only check on unreasonable impeachment is the people. If the people disagree with the impeachment, they can vote the legislature out and (potentially) vote the impeached party back in. A good example of this was the Democratic gains after the Clinton impeachment.

And I think there's far better case against Dann than merely "smearing the good name of Ohio". I think you could argue that Dann committed nobnfeasance and misfeasance as it relates to this matter which would be sufficient for his removal under Ohio's unusual recall method.

I do disagree with Pho on one minor point, though. I do believe there could be judicial review of impeachment. If the General Assembly attempted to impeach a federal officeholder such as a Jim Traficant, the courts could step in and declare such proceeding unconstitutional.

But under the political question doctrine, I doubt courts will want to second guess the legislature on issues as to whether certain conduct meets the impeachment standard. It's a clear violation of the separation of powers doctrine, especially when you consider (as was the case in Nixon that impeachment is a check on the judiciary as well.

Also, Pho, I believe you miswrote earlier. Impeachment is whatever the majority of the House says it is. Whether such an impeachment is grounds for removal from office is whatever 2/3rds of the State Senate says it is.

And, no, I wasn't popular in law school. Why do you ask?

Scott Piepho said...


If we are to be truly fussy with our language we would say: "Impeachment is whatever a combination of half the House and 2/3 of the Senate say it is," since you need both votes.

I agree there is judicial review when it comes to conforming with the explicit constitutional provisions. Another example would be if the Senate came a vote shy and decided that close works in horseshoes and impeachment. The Court would presumably enforce the clear wording of the Constitution. On any question that allow the legislature some discretion, however, including grounds for impeachment, the Court is likely to keep its hands off.

And listen. You've won most of the "races to the keyboard" on legal questions in L'affaire Dann, and your analysis has been consistently excellent. You can allow me one small victory. :)

I meant to mention the check of the voters, so thanks for adding that. In this case it runs the other way as 2/3 of the Senate would be hard pressed to vote against impeachment even if the only grounds in the Articles were unpaid parking tickets.

Modern Esquire said...

Hey, I'm just bitter because you beat me to the punch. :)

Good analysis, of course, since you wrote everything I believe, too.

If Batchelder was looking for some standards in which the legislature should frame its impeachment powers, I'd recommend the standards of misconduct laid out in the recall statutes. That gives the legislature some political "safe harbor" and some yardstick in which future impeachment considerations could be measured.

That's not a requirement for impeachment, but if they framed the articles of impeachment under that standard, it's hard to argue that the legislature is abusing its power.

Scott Piepho said...

We are definitely channeling each other Modern. I was talking to the wife last night about the recall/removal statutes (yes, our pillow talk is law-related. Pity us.) and how it forsakes the term misdemeanor for more modern language like misfeasance and malfeasance.