Yesterday I explained why the West Virginia Supreme Court’s impeachment ruling is unconvincing. That decision says that:
a) The West Virginia Constitution’s section on impeachment twice uses the phrase “according to law”;
b) Courts have jurisdiction to determine “the law” and the West Virginia Constitution allows people who have suffered a legal injury to seek protection from the courts;
c) Therefore, the courts have jurisdiction to enjoin an impeachment proceeding that in the court’s view are not following the law;
d) The proceedings aren’t following the law because the basis for the impeachment is violation of the state’s Code of Judicial Conduct.
This is wrong because:
- The West Virginia Constitution also says the legislature shall have the “sole power” of impeachment—which the court’s opinion entirely ignores;
- Impeachment has been, from time immemorial, been wholly a legislative matter, in which courts have virtually no authority;
- The phrase “according to law” refers in one instance only to the oath Senators may take, and oaths of that sort are typically not enforceable in courts, and in the other instance it refers only to what happens after an impeachment, not during;
- The provision of the constitution allowing people to seek protection from courts applies to those who’ve suffered an injury to person, property, or reputation, and that doesn’t apply to an impeachment, which isn’t any of those;
- Even if the court is right about everything else, the impeachment is still proper because the reference to the Code of Judicial Conduct is only one part of a long list of reasons for impeachment—reasons that add up to malfeasance, so that even if you deleted the reference to the Code of Judicial Conduct, the impeachment for malfeasance could still proceed—and the Court should, at a minimum, have limited itself to deleting the reference to the Code of Conduct, and then still allowed the impeachment to go forward.
Here I want to look at the precedents the court cites. As I mentioned, this is an unprecedented situation, so these prior cases aren’t much help to either side, but here goes:
Nixon v. United States: In 1993, the U.S. Supreme Court heard this case about whether the Senate could do an impeachment by a committee, rather than by the whole Senate sitting together. The judge being impeached argued that the Constitution, which says the Senate “shall have sole power to try all impeachments” forbade a committee procedure. The Supreme Court said it was a nonjusticiable political question. Like the West Virginia Constitution, the U.S. Constitution says that the Senate shall have “sole” power to try impeachments: “We think that the word ‘sole’ is of considerable significance,” the Court said. “Indeed, the word ‘sole’ appears only one other time in the Constitution—with respect to the House of Representatives’ ‘sole Power of Impeachment’…. The commonsense meaning of the word ‘sole’ is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted.” After citing the dictionary definition of “sole,” the Court noted that if judges could “review the actions of the Senate” in an impeachment it would be “difficult to see how the Senate would be ‘functioning ... independently and without assistance or interference.’”
The West Virginia Supreme Court, however, rejected reliance on Nixon, based on differences between the state and federal constitutions. True, the constitutions are different. But in this respect they are not: both constitutions use the word “sole” in precisely this same way. True, the West Virginia Constitution uses the word “sole” more than twice, which is different than the federal Constitution. But look at how it does so: Art. 8 sec. 1 of the West Virginia Constitution says “The judicial power of the state shall be vested solely in a supreme court….” In other words, the word “sole” is gives the courts the same exclusive power over judicial operations that it gives the legislature in impeachment. That suggests that the reasoning of Nixon is actually more applicable here, rather than less, and that the West Virginia Supreme Court was wrong to set it aside.
Incidentally, one reason why the court said it wouldn’t follow Nixon is because state constitution “may be more protective of individual rights than its federal counterpart.” Well, that’s certainly true. But an impeachment isn’t a matter of individual rights, since a person has no right to public office; impeachment doesn’t hazard life, limb, or liberty, and isn’t a criminal matter. So the greater-rights principle shouldn’t apply here.
In Nixon, Justice Souter, writing only for himself, said he could envision circumstances in which it would be proper for the Court to bar an impeachment: “If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply ‘a bad guy,’ judicial interference might well be appropriate,” he wrote, because this would be “so far beyond the scope of [the Senate’s] constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response.” Perhaps—but how that judicial proceeding should operate is a big question. First, being “a bad guy” is an impeachable offense, in my opinion, set let’s set that aside. What about the coin toss? The Constitution requires “concurrence of two thirds of the members.” That’s it. So I think even a coin toss would be acceptable under the U.S. Constitution. But let’s say it’s not. As Charles Black writes in his book, Impeachment, “the resources of rhetoric [are not] adequate to characterizing the absurdity” of the idea that judicial review would be available in an impeachment. “If you believe that, you’ll believe anything,” wrote Black. And he was right. But there are ways the courts could act other than judicial review. It could, for example, refuse to recognize, in other cases, the validity of the impeachment proceeding, or the Chief Justice could refuse to preside, etc. I don’t want to get into that here: the point is, there could be mechanisms other than judicial review of an impeachment by which the courts could, in Souter’s word, “respond” to an impeachment that was “so far beyond the scope” of the Senate’s actions. However that may be, even Souter recognized that nothing short of such extreme circumstances would warrant a judicial “response” and he was not clear that an injunction such as in the West Virginia case was the proper remedy.
In re. Petition of Judicial Conduct Committee—in my previous post I discussed this 2000 New Hampshire case, in which that state’s highest court said it did have jurisdiction regarding a subpoena issued by the legislature in an impeachment proceeding. That case did not involve an effort to bar a proceeding from going forward; it involved “the investigative power of the legislature,” instead. The court held that it did have jurisdiction to protect “persons whose rights are violated”—but it went on to say that “the impeachment of judges is demonstrably committed to the legislative branch,” and therefore—just like in Nixon—the case presented a nonjusticiable political question. This seems a weak support for the West Virginia court’s reliance, for reasons specified in my previous post.
Larsen v. Pennsylvania: this was a 1994 Pennsylvania Commonwealth Court decision seeking to enjoin the impeachment of a Pennsylvania Supreme Court Justice. Citing to several Pennsylvania cases, the court concluded—like the New Hampshire court—that it technically had jurisdiction, but that impeachment presented nonjusticiable political questions. What’s more, “where the courts have undertaken to examine legislative actions as justiciable questions, the Pennsylvania Supreme Court and this court were reviewing actions already theretofore taken by the processes of the legislative body.” By contrast, the Larsen case—like the West Virginia case—involved an effort to enjoin an impeachment from going forward. And the court simply couldn’t imagine how it could bar prosecution on the grounds that the bases for impeachment were somehow improper: impeachment, it said, “is committed by the Constitution to the Senate of Pennsylvania to an extent which clearly bars the courts from intervening with prior restraint. Impeachment…has been clearly set apart by the Constitution as distinguished from adjudications by the judicial branch of government, regardless of whatever powers the courts may have to interpret actions of the legislative body, by way of review, after they have been taken…. [C]ourts clearly have no power to intervene by injunction in advance of legislative action, any more than a court would have any power to enjoin, in advance, the enactment of a law appearing (to the courts) to be constitutionally invalid.” The West Virginia Supreme Court chose not to rely on Larsen because, again, of the West Virginia Constitution’s use of the phrase “according to law.” So whether you find Larsen compelling depends on whether you find the court’s interpretation of the “according to law” provision persuasive.
Finally, there’s Mecham v. Gordon, a 1989 Arizona case in which the governor sought a special action (that is, a writ) to delay an impeachment proceeding until criminal proceedings against him were completed. The Arizona Supreme Court said no. It emphasized the state constitution’s provision giving the legislature “sole” power of impeachment. “The power of impeachment is exclusively vested in the House of Representatives and the power of trial on articles of impeachment belongs solely to the Senate,” the Court said. “Trial in the Senate is a uniquely legislative and political function. It is not judicial.” The separation of powers provision forbade the courts from interfering. As for “due process”—an issue on which the West Virginia Court relied heavily—the court (rightly, I think) concluded that while “the Governor is entitled to ‘due process’…that concept does not protect the right to hold office as Governor,” because a person has no “property interest” in holding state office. (Contrast that with the West Virginia Supreme Court’s claim that the justices have a “right” to “reputation”—indeed, a right to their “pensions”!—that would be invaded by an impeachment and which the courts can intervene to protect!)
“Trial of impeachment articles in the Senate is not a criminal proceeding,” said the Arizona Supreme Court. “It is legislative. It is neither civil nor criminal in nature. It is brought for the sole purpose of deciding whether to remove and disqualify a state officer. The proceedings are neither under the control of the judiciary nor tried in a criminal court.” Yet the Court did not say the legislature can do anything it likes whatsoever. The governor like all people had constitutional rights, such as search-and-seizure rights, and “if…the impeachment trial endangers any of his constitutional protections, such as the sixth amendment right to a fair and speedy trial, then his remedy will be by appropriate motion in superior court.”
The West Virginia Court claimed that Mecham supported its position because the Arizona justices said that they could enforce procedural requirements such as the requirement that the House first vote on articles of impeachment. But that seems distinguishable from what’s going on in West Virginia, where the House did vote articles of impeachment—it’s just that the Court later claims that those articles are void, because they deal with violations of the Code of Conduct. Still, there’s one way in which this applies. The West Virginia justices noted that the legislature failed to make “findings of fact” as required by the articles of impeachment. Under the impeachment resolution, the West Virginia House Judiciary Committee was required to make findings of fact, and the Court notes that it failed to do so.
I think the West Virginia justices would have been much wiser to have played up this point in their ruling, and insisted that for this reason alone, the impeachment was invalid—but then, only to have done so after the fact. As the Pennsylvania court notes, an after-the-fact ruling is much different from enjoining a proceeding from going forward.
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