February 11, 2004
BURDEN OF PROOF FOR IMPEACHMENT
By: Christopher Reinhart, Associate Attorney
You asked about the burden of proof used for impeachment in Connecticut.
The Connecticut Constitution does not specify a burden of proof 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 only use of the impeachment process in Connecticut involved Probate Judge Kinsella in 1983-1984. The House and Senate did not vote on the substance of the impeachment articles and did not establish a burden of proof to be used since Judge Kinsella resigned before the House took final action on the committee's recommendation. The resolution presented to the House by the investigative committee stated that, “It is sufficiently clear that respondent Kinsella has engaged in impeachable conduct so as to justify a trial before the Senate…” (House Resolution No. 17). The House debates and investigative committee proceedings do provide some discussion of the burden of proof and the approach the committee and House took. This can provide some guidance but their value may be limited. Discussions or actions in one case do not necessarily bind the legislature in other cases.
Discussion in the House on this issue was limited. Rep. Tulisano, reading from his committee notes, stated that something more than the normal burden of proof, but something less than the beyond a reasonable doubt standard, was appropriate, mentioning the clear and convincing standard. Other legislators spoke about the House's role in terms of finding probable cause, finding sufficient evidence to warrant a trial in the Senate, or acting as a grand jury. This includes Representatives Shays, Gelsi, Frankel, Tulisano, and Jaekle.
The April 28, 1984 meeting of the investigatory committee provided a discussion of the committee's role. Committee Counsel Zeldes responded to a question from Rep. Jaekle about the burden of proof by saying that he thought this was more of an issue for the Senate and stated that the committee acted like a grand jury and that it should determine if there is sufficient evidence to justify putting someone on trial in the Senate. The members discussed this issue and the “political” judgment involved in the process. This includes Representatives Frankel and Tulisano. At the committee's May 1, 1984 meeting to adopt the committee's report, Rep. Tulisano stated that the committee's burden of the sufficiency of evidence was met and Rep. Bertinuson stated that the committee worked through the issues of impeachable conduct and weighing evidence and described the committee as crossing over “that difficult line to define.”
The committee's Final Statement of Information also states that: “To enact Articles of Impeachment against respondent, 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.”
The Connecticut Constitution does not specify a burden of proof for impeachment. The constitutional provisions on impeachment state:
1. “The House of Representatives shall have the sole power of impeaching” (Article 9, Section 1).
2. “All impeachments shall be tried by the Senate. When sitting for that purpose, they shall be on oath or affirmation. No person shall be convicted without the concurrence of at least two-thirds of the members present. When the governor is impeached, the chief justice shall preside” (Article 9, Section 2).
3. “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 the state. The party convicted, shall, nevertheless, be liable and subject to indictment, trial, and punishment according to law” (Article 9, Section 3).
In House floor debate explaining the resolution establishing the Kinsella investigative committee, Rep. Cibes explained, “In view of the silence of the Connecticut Constitution, and in view of the silence of any debates on this matter, ultimately the power to determine what the standard for impeachment will be, must lie with the House of Representatives itself. 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, pp. 2852-3)
Speakers during the House debates considered the House's role as finding probable cause, finding sufficient evidence to warrant a trial in the Senate, or acting like a grand jury.
Rep. Shays, during the debate to adopt the resolution creating the investigatory committee, stated that, “This body must decide not now, but in due time, whether probable cause exists for a trial in the Senate…” (House Transcript, April 27, 1983, p. 2854). Similarly, Rep. Gelsi stated that, “This House had a responsibility. A responsibility to investigate if there was probable cause and we voted to do that. The committee that was responsible for that has reported back to us that they felt there was probable cause and were recommending that we vote to go for impeachment with a trial in the Senate.” (House Transcript May 4, 1984, p.49)
Other speakers talked about the sufficiency of the evidence to place Judge Kinsella on trial in the Senate.
1. Rep. Frankel: the committee's objective “was not the determination of guilt or innocence. We did not seek to achieve a verdict. Rather we sought to agree upon a recommendation, concerning whether sufficient evidence existed to justify the commencement of impeachment proceedings.” (House Transcript May 4, 1984, p.3)
2. Rep. Tulisano: “We have sufficient evidence to present to the Senate, we believe, to indicate that a breech of trust occurred.” (House Transcript May 4, 1984, p. 11)
3. Rep. Frankel: “Our job is to look into the facts and to find out if we could recommend to the House that after reviewing all of the facts there was sufficient evidence to warrant a trial. 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.” (House Transcript May 4, 1984, p. 47)
4. Rep. Jaekle: “And so we could have debated the resolution before us to decide whether my conclusion based on the evidence would have you conclude the same thing, that abuses of power occurred or there was sufficient evidence to place him on trial.” (House Transcript May 4, 1984, p. 88)
5. Rep. Frankel: “It is up to the members of this House in impeachment proceedings, not to determine if there is guilt or innocence. It is up to this chamber as part of that remedy to determine if there is sufficiently clear evidence to warrant a trial in the Senate…So if indeed, this House agrees with the committee that this man should be removed from office, or that this House believes there's probable cause that he should be removed, then the remedy has in effect, occurred” [by his resignation]. (House Transcript May 4, 1984, p.101-102)
Rep. Tulisano discussed the sufficiency of the evidence but also mentioned a burden of proof. Reading from his committee notes during the floor debate, he stated:
...as a committee our job is not to finally judge or make a determination as to Judge Kinsella's fate, but determine whether or not there has been sufficient evidence to lead one to believe that he should be removed from office, with regard to the individual, parenthetically at this point in time.
If those facts were proven, proven not beyond a reasonable doubt, as in a criminal proceeding, because this is not a real criminal proceeding, but proven to an extent something beyond which is normally used, something like clear and convincing, further read on, 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 (House Transcript, May 4, 1985, p.109).
IMPEACHMENT COMMITTEE DEBATE
Two meetings of the investigatory committee also provide discussion of the committee's approach to this issue. At the committee meeting on April 28, 1984, committee members discussed the committee's role and asked questions of Committee Counsel Jacob Zeldes.
● Rep. Jaekle asked Mr. Zeldes whether the burden of proof was beyond a reasonable doubt, clear and convincing evidence, or preponderance of the evidence.
● Mr. Zeldes discussed the Senate's role and the committee's role:
“…Professor Black at Yale Law School has written a book on impeachment and he discusses in some length the burden or the degree of proof that's necessary at the Senate level. He suggests that even at the Senate level which is the trial itself, that the burden be less than beyond a reasonable doubt for criminal standard, but perhaps more than the normal civil standard of preponderance. Now, in a rough situation this body is not the trier of ultimate fact. This body, in my view, is only determining whether or not there is sufficient evidence before you to justify putting him on trial. You could view that, in a sense, as a probable cause determination that a grand jury or a charging body might make. My view is that you shouldn't really try to go into that focus but to emphasize, is there enough evidence to place him on trial, and that's not a precise standard; this whole area of impeachment is-has a good deal of imprecision about it. So the real test I would urge you to apply is on the totality of the facts before you and the specific articles that we have suggested or any that you may suggest, is there sufficient evidence to place him on trial before the Senate.”
● Mr. Zeldes later stated, “I think…the degree of proof that you should be satisfied with that is not as great as the degree of proof that the Senate will have to be satisfied, and the question remains with respect to the dual phase of your question, is there enough to place him on trial.”
● Rep. Frankel responded to Mr. Zeldes' comments:
“…I think you're saying, as I understand it, one: we're going to have to look for a course of conduct that is serious enough to constitute, in our judgment, impeachment, and therefore, we will have to determine if certain things are true…we can't merely accept everything that's before us as true for purposes of sending it along; we're going to have to look at those things to see if we accept that there is enough truth to them to accept that and then we add that other actions and if all those together, in our judgment, come up with a serious course of conduct, but that the problem I'm having is the degree of proof in accepting any single fact as true or not true…and whether a certain fact is true or not is very critical and I think you suggest for the purpose of the Senate something less than one degree but greater than a preponderance would be appropriate for the Senate…”
● Mr. Zeldes responded:
“I think that—my—the best answer…is in the nature of probable cause determination of fact but that it should be stronger than the traditional probable cause…whether you feel that it's sufficiently true that he should be placed on trial on the Senate floor. It doesn't mean you're the ultimate fact-finder on that if the Senate may—the Senate requires a higher degree and your question is is there sufficient certainty he should be placed on trial. For example, if you think that it's significant as we have suggested, that he was—threatened, in a certain matter as the record indicates…you must evaluate whether based on those evaluations there is sufficient evidence to place him on trial after that one fact. And of course, you have the added concern, about what is the significance of that fact in the course of conduct of the administration of the Donaghue estate. Did it lead, as the council concluded, to part of a totality of circumstances whereby a judge allowed his close friend to take over a $30 million estate.”
● Rep. Frankel suggested that the committee agree on the standard, then “go through the facts as would a jury, to see if those facts first of all, are to be believed or not to be believed and we'll be the trier of facts in part; and then we'll take those facts and apply them against the standard we established, hopefully we'll have established, to see whether the conduct falls within that standard.”
● Mr. Zeldes stated: “I would just caution you 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.”
● Rep. Tulisano questioned Mr. Zeldes about the political nature of the process: “…would you agree that it is in fact the political—our political judgment which is most important in impeachment? Rather than those other kinds—that is in fact a political decision under what you –what I've read is the history of impeachment because of its peculiar nature of public service.“
● Mr. Zeldes responded, “I think you're right…but I think it's important, and I'm sure you understand it, but it's important that the public (inaudible) it's not political in the partisan sense.” He later added: “The term that I used was political in the sense that it's created by the impeachment clause and its judgment. I think that would be from my point of view, from what I perceive is the public's point of view, the most devastating thing that this procedure could develop into would be a purely partisan approach to it, and that, I think, is different than 'political' in the sense we used it in our report in the sense that the framers or early writers…used it. I think that 'political' here is used in a much broader sense and not in any way used as a partisan political sense. I think it would have a devastating effect on the public if it were a partisan resolution.”
At the May 1, 1984 committee meeting debating the adoption of the committee's report, Rep. Tulisano stated his view of the report: “But I think that our burden dealing with sufficiency of evidence presented before us as to determine whether or not it's believed by the trier of facts is sufficient, then I believe the activities, if proven, would fulfill what we believe the allegations contained in the report to justify impeachment. Therefore, I think the motion should go forward.”
Rep. Bertinuson also discussed the process the committee took:
“We did not have a black and white definition of what did somebody have to do to be impeached. 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. I think we weighed a lot of pieces of evidence and to say at what point the scales tipped over to the point where I felt and I think we could begin to feel as a group that it had gone over that difficult line to define, I think we clearly came to that point. Came to, at least for each one of us, what had to be in the last analysis, a very individual decision, but a decision that clearly flowed from the group's action and I, too, concur with the report.”
COMMITTEE'S FINAL STATEMENT OF INFORMATION
The investigatory committee's Final Statement of Information also described the role of the House: “To enact Articles of Impeachment against respondent, 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 adds 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.”