Topic:
IMPEACHMENT; CONSTITUTIONAL LAW;
Location:
IMPEACHMENT;

OLR Research Report


January 26, 2004

 

2004-R-0134

IMPEACHABLE OFFENSES

By: Christopher Reinhart, Associate Attorney

You asked about the standard for impeachment in Connecticut in terms of impeachable conduct or offenses.

SUMMARY

The Connecticut Constitution, Article 9, Section 3 states: “The governor, and all other executive and judicial officers, shall be liable to impeachment; but judgments in such cases shall not extend further than to removal from office and disqualification to hold any office of honor, trust, or profit under this state. The party convicted, shall, nevertheless, be liable and subject to indictment, trial, and punishment, according to law.”

The constitution does not provide a standard for impeachment. According to research conducted for the impeachment investigation for Probate Judge James Kinsella, there is no discussion of the impeachment provisions in official or unofficial accounts of the state's constitutional convention.

The Connecticut Supreme Court declined to address the issue of an appropriate standard, but stated that as to the question of what conduct is an impeachable offense, “it is for the Senate to determine and define the ambit of article ninth, 3, with regard to charges brought before it. We trust that in making this interpretation the Senate will be guided by the historical antecedents of the impeachment and removal process as well as interpretations of similar constitutional provisions that have been made by other courts and by legal scholars” (Kinsella v. Jaekle, 192 Conn. 704, 730 (1984)).

The only use of impeachment in Connecticut involved Probate Judge Kinsella in 1983-1984. These proceedings can provide some guidance on what is impeachable in Connecticut. But the value of these proceedings may be limited. Discussion of the standard of impeachable conduct in one case does not necessarily bind the legislature in other cases. And the Kinsella action provides only a single instance of the use of the impeachment provisions and not a line of cases establishing a certain practice. In addition, the House and Senate did not vote on the substance of the impeachment articles. The investigatory committee recommended two articles of impeachment against Judge Kinsella but the House voted to move the resolution to the foot of the calendar when the judge resigned. The House debated the motion and discussed impeachable offenses but did not vote on their substance.

The two articles of impeachment against Judge Kinsella adopted by the investigatory committee provide evidence of what legislators considered impeachable conduct. The articles charged that Kinsella's course of conduct “did abuse the power of, undermine the integrity of, and bring disdain upon the office and trust he held” when serving as judge in a particular case, providing false and misleading evidence relating to the case under oath, and “grossly disregarding the proper supervision and control” of employees and appointees and “refusing to cooperate with official investigations….”

Rep. Frankel, a member of the investigatory committee, stated in House debate what he considered impeachable conduct.

It is my belief that historically, and that there is ample precedent, that impeachable conduct is in fact a course of conduct which is improper, which is wrongful, and which makes an office holder unfit to continue to hold that office because it brings disdain upon that office and violates the public trust. I believe that is the standard, and I believe that is the standard which we should, if we ultimately consider the resolution before us, to look to.

I should also point out the standard ultimately would be adopted by the Senate, so the standard we come up with may not necessarily be theirs, and ultimately their standard would be the one against which Judge Kinsella, if it went along those lines, would have to stand up to.

In the debate, a number of representatives also commented on impeachment as a remedy for violations of the public trust and abuses of office, and a method of restoring the public trust. This includes Representatives Frankel, Jaekle, Van Nortstrand, Tulisano, Groppo, and Fox. Two representatives, Cibes and Jaekle, also discussed the issue of the integrity of office and conduct that brings disdain upon the office.

Debate at meetings of the investigatory committee also provided some discussion of impeachable conduct. Committee Counsel Jacob Zeldes, responding to a question, stated that the committee should look at whether “certain things amount to the type of abuse of power from which he should be removed and not be allowed to hold office.”

In a meeting, Rep. Frankel stated:

Impeachment by its very nature tests the fitness of a man or woman to continue in office and is best measured by the overall pattern of official conduct. But that is not to say that impeachment derives out of an accumulation of trivia. Each element of such a pattern must involve wrongdoing, although each element alone need not justify impeachment. So then the question before us as I see it: Do we here have such a course of conduct which undermines the integrity of the office of judge of probate; was it a course of conduct which involved wrongdoing by the abuse of the power of that office?

Other committee members discussed impeachment as a remedy for violations of the public trust and abuse of position. Rep. Jaekle emphasized that “…there is a special trust placed in the office of probate judge.” Rep. Bertinuson stated that the committee did not have a “black and white definition” of impeachable conduct but it gained an understanding although it “could not define it in black and white.” She stated that, “We knew what we meant by conduct that meant that a person should be removed from that office.”

The Kinsella investigatory committee's Final Statement of Information also provides historical research and recommendations on an impeachment standard. It finds that the absence of discussion at the constitutional convention “suggests what is implicit in Article 9 itself: in 1818, there was a general understanding about what constituted grounds for impeachment, and the Connecticut framers meant to incorporate that understanding into the state's first constitution.” Based on historical research, the report states that there “was a common understanding of the purpose of impeachment: to protect the state from abuse of power by its office-holders.” After reviewing provisions in other states, the report finds their variety of language “evidence that the state framers were groping to define what cannot be defined with precision.” The report states that it was the impeachment “mechanism, not any language of impeachable conduct, that guaranteed impeachment would be used only for serious misconduct in office.”

The report states that “…leading legal scholars in the early 19th century saw the imprecision in the language of impeachment standards as an inevitable outgrowth of the nature and purpose of the impeachment inquiry. The emphasis of the impeachment process has been on the significant effects of the conduct—undermining the integrity of office, disregard of constitutional duties and oath of office, abrogation of power, and abuse of the governmental process.”

The report further recommends how individual acts and courses of conduct should be viewed. It concludes that impeachment is probably inappropriate for one act alone unless “the one act by itself rises to the level of impeachable conduct” and it is inappropriate “to consider individual acts in isolation because impeachment by its very nature tests the fitness of a person to continue in office, and that is best measured by the overall pattern of his or her official conduct.” The report states, “Each element of the case thus must involve wrongdoing, but each element by itself need not justify impeachment.”

The report states that the main purpose of impeachment is “to repair harm to the state done by its office-holders' misuse of their positions of trust.” It finds that, “No more precise definition of impeachable conduct is possible, and Connecticut's decision to adopt no specific language still leaves it with a defensible standard based on the general understanding of impeachment in the early 19th century.”

The report concludes, “The issue for this committee, then, if this standard be accepted, is not whether a single act of respondent constitutes in itself grounds for impeachment but whether respondent's course of conduct…constitutes grounds for impeachment.”

ARTICLES OF IMPEACHMENT FOR JUDGE KINSELLA

The articles of impeachment included in the resolution by the committee in the Judge Kinsella case in 1984 are the only known examples of impeachment articles under the Connecticut Constitution.

House Resolution No. 17 included two articles of impeachment against Judge Kinsella.

1. Judge Kinsella “did abuse the power of, undermine the integrity of, and bring disdain upon the office and trust he held (1) by his course of conduct while serving as judge of probate in and incident to the matter of the Estate of Ethel F. Donaghue, Incapable and (2) by his course of conduct in furnishing under oath false and misleading evidence in official proceedings relating to the Estate of Ethel F. Donaghue, Incapable” and

2. Judge Kinsella “did abuse the power of, undermine the integrity of, and bring disdain upon the office and trust he held by his course of conduct in grossly disregarding the proper supervision and control of his employees and appointees and by refusing to cooperate with official investigations of the probate court and of his conduct as a judge of probate.”

HOUSE FLOOR DEBATE

On April 27, 1983, the House debated House Resolution No. 26, which established the committee to investigate Judge Kinsella. In that debate, Rep. Cibes explained that because the constitution and constitutional debates were silent on impeachment, the House must ultimately set the standard for impeachment but, “Right now, as opposed to ultimately, it will lie with the committee to evaluate potential standards, potential criteria, to recommend to the full House of Representatives, as well as to, as to the question of whether Judge Kinsella, in their view, violated those standards. That is, the committee will investigate both matters, it seems to me, of fact, and law.” (House Transcript April 27, 1983, p. 2852-3)

On May 4, 1984, Judge Kinsella resigned as the House prepared to debate the investigatory committee's recommended articles of impeachment. The House debated a motion to move the resolution to the foot of the calendar.

Rep. Frankel, a member of the investigatory committee, discussed what he believed constituted impeachable conduct in response to a question during the debate.

There is no definition for impeachment in our statute, nor is there any definition in our constitution. I believe the question of what is impeachable conduct is a question that the scholars have been debating for some time. I believe, however, that those of you who have reviewed carefully the earlier portion of the select committee's or rather counsel for select committee's final statement, will see a rather expansive explanation of what is suggested as the standard that we should have for impeachable conduct.

It is my belief that historically, and that there is ample precedent, that impeachable conduct is in fact a course of conduct which is improper, which is wrongful, and which makes an office holder unfit to continue to hold that office because it brings disdain upon that office and violates the public trust. I believe that is the standard, and I believe that is the standard which we should, if we ultimately consider the resolution before us, to look to.

I should also point out the standard ultimately would be adopted by the Senate, so the standard we come up with may not necessarily be theirs, and ultimately their standard would be the one against which Judge Kinsella, if it went along those lines, would have to stand up to (House Transcript, May 4, 1984, p.73).

Rep. Frankel also discussed his view on the role of the House in the impeachment process, “For it was not up to the House of Representatives to decide guilt or not, but merely to act like a grand jury and say we feel that his course of conduct was so improper and the facts that have been presented to us are sufficiently clear to warrant a trial in the Senate.” (p. 47).

Rep. Tulisano discussed his view of the committee's role, reading from his notes: “If those facts were proven…we must adjudge this proof in the case which showed that the judge engaged in such a course of conduct which is in its totality, together has brought disrespect to the office he holds. And that if proven, such activities on a whole, would amount to a betrayal of the public trust (p.109).”

A number of representatives commented on impeachment as a remedy for violations of the public trust and abuses of office, and as a method of restoring the public trust.

● Rep Frankel expressed the committee's unanimous opinion that Kinsella's resignation served “the purpose of the impeachment process” and that “the violation of the public trust which initiated the process has been repaired” and “…the office alleged to have been abused, has been vacated.” He stated that “the constitution has been abided, and in my opinion the public trust has been restored.” (p. 3-4). He later added that, “The process is in place for one purpose and one purpose only and that is to restore the public trust when an officeholder abuses it.” The purpose is not punishment “but removal from office in order to restore to the public the trust in that office.” (p.48)

● Rep. Jaekle stated that the resignation met the purposes of impeachment by “removal of one who has, as our committee has concluded, breeched their office, violated the public trust, abused the powers.” “The purpose is to remove that individual from office, so that no further violations could occur, as well as to repair the harm done to society by those violations having occurred.” (p. 6-7)

● Rep. Van Norstrand stated that “The issue is whether there has been a breech of a public trust….” He added, “Now we have somebody, whom, at least a committee of respected colleagues, has unanimously recommended, committed impeachable offenses. Those are not crimes. Those are breeches of the public trust….” (p. 8-10)

● Rep. Tulisano stated that, “We have sufficient evidence to present to the Senate, we believe, to indicate that a breech of trust occurred.” (p. 11)

● Rep. Groppo stated, “…I think the signal has been sent out to those in the judicial system that there is a process in place if you deliberately violate the public trust of your office.” (p. 80)

● Rep. Fox stated, “There was no question in my mind that he had violated his position of trust and had abused his power.” (p. 69)

Two representatives also discussed the integrity of office and bringing disdain upon the office. Rep. Cibes expressed his understanding of impeachment: “…that process would have led to the conclusion that Judge Kinsella either did or did not abuse the power of, undermine the

integrity of, and bring a stain upon the office and trust he held.” (p.52) Rep. Jaekle stated: “We have many findings. We found abuses of power. We found a course of conduct that brought disdain upon the office. We found in our opinion, and our recommendation, that there was enough to place the man on trial in the Senate.” (p. 87)

INVESTIGATORY COMMITTEE, MEETING DEBATE

Two committee meetings also provided debate on what constituted impeachable conduct.

At the committee meeting on April 28, 1984, committee counsel Jacob Zeldes, responding to a question from Rep. Tulisano, stated that the committee had to “find out if the acts were done” and whether the conduct is “likely to be of such the type that he should be placed on trial for this.” He added that the Senate would review both issues and the committee “…should be concerned with did he in fact do certain things, and did—do those certain things amount to the type of abuse of power from which he should be removed and not be allowed to hold office.”

Mr. Zeldes cautioned that “…you are people here that exercise as political officials in the state your judgment, and I would suggest that you might be going down the wrong path if you attempt to act as computers. It can't be done with mathematical certainty. There's going to have to be an element of judgment in these evaluations, and if you attempt to get too mathematically analytical it may lead you nowhere in your discussion.”

At the May 1, 1984 committee meeting to debate adopting the report, Rep. Frankel stated his opinion on impeachable conduct.

Impeachment by its very nature tests the fitness of a man or woman to continue in office and is best measured by the overall pattern of official conduct. But that is not to say that impeachment derives out of an accumulation of trivia. Each element of such a pattern must involve wrongdoing, although each element alone need not justify impeachment. So then the question before us as I see it: Do we here have such a course of conduct which undermines the integrity of the office of judge of probate; was it a course of conduct which involved wrongdoing by the abuse of the power of that office? It is to be remembered that impeachment is not to be equated with criminal wrongdoing for it is a process whose main purpose is to repair the harm to the state and to its people brought about by its officeholders when they misuse their positions of trust. The office of the judge of probate, whether it be in Hartford or in any other municipality, is a very important office in so far as the concept of trust, for trust is everything in connection with the office of judge of probate.”

Rep. Jaekle emphasized the specific nature of the role of a probate judge. He stated that “…while every officeholder in the state of Connecticut holds a public trust, there is a special trust placed in the office of probate judge. In connection with one's duties as probate judge, an individual is involved very intimately in one's private life and in one's private property.” He found the Judge Kinsella abused his power and violated the public trust, and “this public trust vested in probate judges is of a very high order.”

Rep. Bertinuson stated that the committee did not have a “black and white definition” of impeachable conduct.

I think we worked our way through in this committee to an understanding that was agreed to by all of us. Although, again, we could not define it in black and white. We knew what we meant by conduct that meant that a person should be removed from that office. Not only because of what he had done personally, but because of the violation of the office itself. So that the public who must rely on the person in that office would no longer feel that confidence.

COMMITTEE'S FINAL STATEMENT OF INFORMATION

Historical Research

The investigatory committee reported a Final Statement of Information to the House. The report presents historical research on impeachment. It discusses research on federal impeachment, the House Judiciary Committee's research involving President Nixon, Alexander Hamilton's statements, statements by the framers in state ratifying conventions, and impeachment provisions in other states to lead to an interpretation of Connecticut's provisions. The report reasons as follows.

1. There is no discussion of the impeachment provisions in the official and unofficial accounts of Connecticut's constitutional convention and this “suggests what is implicit in Article 9 itself: in 1818, there was a general understanding about what constituted grounds for impeachment, and the Connecticut framers meant to incorporate that understanding into the state's first constitution.”

2. “Most scholars had concluded that while indictable crimes can be grounds for impeachment, the framers of the federal constitution emphatically did not intend the phrase 'high crimes and misdemeanors' in the federal constitution to limit impeachment only to such crimes.”

3. After looking at impeachment provisions in other state constitutions, “It is no surprise that Connecticut and these other states would provide no explicit standard for impeachable conduct.” The terms used by states such as “maladministration” were “considered the functional equivalent of 'high crimes and misdemeanors'.” The language used in other state constitutions “confirms the impression that variations in terminology were insignificant.”

4. There “was a common understanding of the purpose of impeachment: to protect the state from abuse of power by its office-holders.” “The variations in language, and the lack of language in some states, are evidence that the state framers were groping to define what cannot be defined with precision.”

5. The mechanism of impeachment was shared with the federal government and most other states and it “was this mechanism, not any language of impeachable conduct, that guaranteed impeachment would be used only for serious misconduct in office.”

Suggested Standard for Impeachment

The report states that to adopt articles of impeachment, “the House must not only determine—with sufficient certainty to place respondent on trial—that the claimed conduct occurred, but that respondent's conduct constituted impeachable conduct.” It states that “…leading legal scholars in the early 19th century saw the imprecision in the language of impeachment standards as an inevitable outgrowth of the nature and purpose of the impeachment inquiry. The emphasis of the impeachment process has been on the significant effects of the conduct—undermining the integrity of office, disregard of constitutional duties and oath of office, abrogation of power, and abuse of the governmental process.”

The report further explains how individual acts and courses of conduct should be viewed and suggests avoiding referring to the standard as “impeachable offenses” or asking “what kinds of offenses are impeachable.” The report instead suggests using the terms “impeachable conduct” and “grounds for impeachment.” The report states that an offense is a singular act and conduct implies sustained activity. “The remedy for impeachable conduct, unlike criminal sanctions, is not cumulative with each new offense proved: one is removed from office only once.” The report makes several suggestions.

1. Impeachment is probably inappropriate for one act alone unless “the one act by itself rises to the level of impeachable conduct.”

2. It is inappropriate “to consider individual acts in isolation because impeachment by its very nature tests the fitness of a person to continue in office, and that is best measured by the overall pattern of his or her official conduct.”

3. Quoting remarks by John Labovitz about presidential impeachment, “The concept of an impeachable offense guts an impeachment case of the very factors—repetition, pattern, coherence—that tend to establish the requisite degree of seriousness warranting the removal of a president from office.”

4. “Each element of the case thus must involve wrongdoing, but each element by itself need not justify impeachment. This is also not to say that improper conduct in one instance should be used to infer improper conduct in an entirely unrelated instance. It is to suggest, however, that even as a matter of prosecutorial strategy, a series of related acts is likely to prove more persuasively worthy of impeachment than a series of unrelated acts.”

5. “Impeachment is a process whose main purpose is to repair harm to the state done by its office-holders' misuse of their positions of trust. No more precise definition of impeachable conduct is possible, and Connecticut's decision to adopt no specific language still leaves it with a defensible standard based on the general understanding of impeachment in the early 19th century.”

The report adds that, “Impeachment plainly addresses conduct that violates one's solemn promise to “faithfully discharge” the duties of one's office” (citing the oaths in CGS 1-25). A violation “undermines the constitution and the stability of the government it constitutes. A government which derives its legitimacy from the consent of the governed, a consent rooted in trust that office-holders will not abuse their fiduciary obligations, must be held to demand that its office-holders, both in appearance and in fact, conduct their positions in good faith.”

The report concludes, “The issue for this committee, then, if this standard be accepted, is not whether a single act of respondent constitutes in itself grounds for impeachment but whether respondent's course of conduct…constitutes grounds for impeachment.” Also, addressing the separation of powers argument involved with Judge Kinsella, the report states, “We urge, therefore, that this committee, in passing judgment, give proper recognition to the independence of the judiciary and make no recommendation based simply upon unpopular or erroneous decisions by respondent Kinsella.”

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