Interpretation of high Crimes and Misdemeanors language in the Utah Constitution, Article VI, Section 19. (2003RR0031)

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1 TO: FROM: RE: Bob Rees, Associate General Counsel Ryan Atkinson, Law Clerk Interpretation of high Crimes and Misdemeanors language in the Utah Constitution, Article VI, Section 19. (2003RR0031) DATE: August 1, 2003 ISSUES PRESENTED: 1. What does high crimes mean, and, more particularly, what did it mean in 1896 when the Utah Constitution was adopted? 2. Same question as to misdemeanors. 3. Have federal or other state courts tried to define those terms for purposes of impeachment, or have they declined to go there because questions relating the impeachment process are political questions? 4. Is there a difference in meaning between high crimes and misdemeanors, as used in the United States Constitution, and high crimes and misdemeanors... as used in the Utah Constitution? BRIEF ANSWERS: 1. [H]igh Crimes in the Utah Constitution very likely has the same meaning as high Crimes in the United States Constitution because the language in the Utah Constitution was taken directly from the U.S. Constitution, and there is no case law defining the language from before Usually, the meaning of the terms is very likely going to be left up to the state legislature because they undertake the impeachment proceedings, and it is a political question the Court s are not willing to touch. 2. The same can be said for Misdemeanors as was stated above for high Crimes. 3. Federal courts have not made any attempts to define high Crimes and Misdemeanors because the impeachment process involves political questions in which they do not feel they should be involved. On the other hand, state courts have most often done one of four things: (1) they have maintained the high Crimes and Misdemeanors language in their Constitutions but they have not defined the terms in their courts; (2) they have different language in their impeachment provisions than the high Crimes and Misdemeanors language, either because it was never there, or it was amended, and thus there is obviously no case law defining the language because it is not there; (3) they have the language, but have not defined it in case law however, their Constitution s list some other offenses along with high Crimes and Misdemeanors that would result in impeachment, suggesting that those are some of the offenses that are akin to high Crimes and Misdemeanors; or (4) they have the language, and they have 1

2 made an attempt to better define it in their case law, but this is applicable to only two states Florida and Nebraska. 4. Technically speaking, there are not any differences between the high Crimes and Misdemeanors language in the U.S. Constitution and the Utah Constitution. However, practically speaking it depends upon who is interpreting the language. It seems that because the interpretation of the language has been determined by the federal, and most state courts, to be a political question; the interpretation thereof is dependent upon political variables that are difficult to predict. Thus, because the legislature in Utah might view the political question of what are high Crimes and Misdemeanors differently that the U.S. House of Representatives, there may be a difference in meaning. However, that will be difficult to tell without a specific case in hand. DISCUSSION: I. Meaning of high Crimes and Misdemeanors when the Utah Constitution was Adopted The meaning of the high Crimes and Misdemeanors language when the Utah Constitution was adopted in 1896 appears to have the same meaning as that language in the United States Constitution. In Utah s Proceedings: Constitutional Convention, 1895, there are no debates or discussions about the language in question, which suggests that the committee in charge of the impeachment language took it directly from the U.S. Constitution, and implemented it without objections from any of the members of the Convention. Had it been an issue, there would have been some amount of debate and/or discussion to clarify its meaning. Thus, to discover the elusive meaning of the language I went to federal case law from before Again, there are no definitions of high Crimes and Misdemeanors, and only a few cases that even cite the language. Hence, it is very likely that the language was both taken directly from the U.S. Constitution, and that it meant the same thing in the Utah Constitution as it did in the U.S. Constitution. The meaning seems to be whatever the legislature says it is, principally because they are the ones that conduct the impeachment proceedings; the Court s are very reluctant to impinge upon what they feel is a legislative political question. II. Federal Court s Treatment of high Crimes and Misdemeanors Language There are no concrete definitions or interpretations of the high Crimes and Misdemeanors language in Article II, Section 4 of the United States Constitution. There are not any cases that make attempts to define the terms, though there are some fairly universal ideas about what the founders intended this cabalistic language to mean. The difficulty with these expositions is that they do not come with citations to anything, case law or otherwise, so they seem to be universally recognized, even though no one can state for sure where they came from, or give any authoritative citations for them either. In relation to impeachment, it is generally believed that high Crimes and Misdemeanors involve conduct that entails an abuse of power or a serious breach of trust, or that in some other manner demonstrates an official s unsuitability for office whether the conduct undertaken is criminal in nature or not. 1 This general idea about what high Crimes and 1 50 Am. J. Comp. L. 405, (2002). 2

3 Misdemeanors means is open to several multifarious interpretations. The core question is then; who undertakes the interpretation of what is a high Crime and Misdemeanor? In Nixon v. United States, the United States Supreme Court strongly suggested that issues arising out of the impeachment process bear on political questions that are to be resolved by the House and Senate rather than by the judiciary. 2 Thus, the court s statements lead to the conclusion that the meaning of high Crimes and Misdemeanors is unlikely to be resolved by the Federal courts because it involves a political question to be resolved by the legislative branch. III. Other State Court s Treatment of high Crimes and Misdemeanors Language in their Own Constitutions Many states do not have any case law that discusses interpretation of high Crimes and Misdemeanors language, which could be attributed to either a lack of that language in their Constitution, or a desire to leave the interpretation of the language to the legislative branch because of political question concerns. On the other hand, there are a few states that cite specific language of high Crimes and Misdemeanors in cases, but choose not to define or to even discuss what the language might mean. Moreover, there are a few states that do not define the language specifically, but that do have other offenses in their Constitutions that are listed along with the high Crimes and Misdemeanors language, which suggests that because they are listed, they are very probably considered by those states to be high Crimes and Misdemeanors, or offenses very close to them. Finally, only in Florida and Nebraska can we find case law in which the judiciary defines high Crimes and Misdemeanors. The Supreme Court of Florida stated, As applied to impeachment, misdemeanor in office may include any act involving moral turpitude which is contrary to justice, honesty, principles or good morals, if performed by virtue or authority of office. 3 The Constitution of the state of Florida only includes the misdemeanors portion of the high Crimes and Misdemeanors language usually found together in Constitutional language, and thus it is not defined. The Supreme Court of Nebraska affirmed, [A]n impeachable high crime or misdemeanor is on its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest... 4 Though these definitions do help one determine what Florida and Nebraska consider to be high Crimes and Misdemeanors worthy of impeachment, they are still quite subjective and vague, leaving the question of whether the offense merits impeachment still to the impeaching body, namely the House of Representatives in virtually every situation. Therefore, in no state is the high Crimes and Misdemeanors language defined as precisely as some would like. In fact, in many of the states that have case law that cite the high U.S. 224, (1993). 3 In re Investigation of a Circuit Judge of the Eleventh Judicial Circuit of Florida, 93 So. 2d 601, (Fla. 1957). 4 State v. Douglas, 349 N.W. 2d 870, 884 (Neb. 1984). 3

4 Crimes and Misdemeanors language in their Constitutions, the language has been amended to become only more vague. For example, the Supreme Court of Hawaii cited the Hawaii Constitution in a case in 1892, which then specified five offenses that merited impeachment along with other high Crimes and Misdemeanors, those being, theft, bribery, perjury, forgery and embezzlement, the conviction of any of which disqualifies [one] from holding any office of honor, trust or profit under the Government... 5 However, the Hawaii Constitution was amended in 1978, leaving out the five specified offenses, as well as the high Crimes and Misdemeanors language in favor of language which states, The governor and lieutenant governor, and any appointive officer for whose removal the consent of the senate is required, may be removed from office upon conviction of impeachment for such causes as may be provided by law. 6 Similar changes have been made in Alabama, Kentucky and Louisiana, and there may be more states that have made similar amendments. This move toward language that is more vague has not been explained very thoroughly, if at all, but presumably it is to give the impeaching body more flexibility in determining what offenses qualify for impeachment on a case by case basis. They do not seem to want to be bound by any language that is too specific, and though the high Crimes and Misdemeanors language is not overly specific, it still lends itself to some flexibility when it comes to interpretation. There are still a few states that have maintained some more specific language like that of Hawaii before their Constitution was amended. The Virginia Constitution adds corruption and neglect of duty to malfeasance and high Crimes and Misdemeanors. 7 However, they do not have any case law that defines any of the terms more fully than as provided in the Constitution. Additionally, in West Virginia, the Constitution includes maladministration, corruption, incompetency, gross immorality, and neglect of duty, along with the high Crimes and Misdemeanors language. 8 Even so, like Virginia, they do not have any case law that defines these terms more precisely. There are very likely other states that have offenses in their Constitutions that merit impeachment, whether they are listed along with high Crimes and Misdemeanors or not, and whether they are defined more precisely in case law or not. However, though there are very probably states that fall under this broad categorization none of them define high Crimes and Misdemeanors more explicitly; with the abovementioned exceptions of Florida and Nebraska. IV. Meaning of high Crimes and Misdemeanors in Utah Constitution Versus the Meaning in the U.S. Constitution Technically speaking, there are not any differences between the high Crimes and Misdemeanors language in the U.S. Constitution and the Utah Constitution, because the impeachment language in the Utah Constitution was taken directly from the U.S. Constitution. 5 In the Matter of Qualifications of Voters, 8 Haw. 589, 590 (Haw. 1892). 6 Haw. Rev. Stat. Const. Art. III, 19 (2003). 7 Va. Const. Art. IV, 17 (2003). 8 W. Va. Const. Art. IV, 9 (2003). 4

5 However, practically speaking, the meaning depends upon who is interpreting the language. It seems that because the interpretation of the language has been determined by the federal, and most state courts, to be a political question; the interpretation thereof is dependent upon political variables that are difficult to predict. For example, it is improbable that the House of Representatives would have authored and passed any or all of the articles of impeachment against President Bill Clinton if there had been a Democratic majority in the House versus a Republican majority. Thus, because the legislature in Utah might view the political question of what are high Crimes and Misdemeanors differently that the U.S. House of Representatives, there may be a difference in meaning. However, that will be difficult to tell without a specific case in hand. 5