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).

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)

...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).

● 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.”

“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.”