Category: State Legislative Proceedings

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Can Virginia Lieutenant Governor Fairfax Be Impeached? It’s Complicated.

As I wrote a post recently regarding whether Virginia governor Ralph Northam could be impeached for a racist photo that appeared on his medical school yearbook page decades earlier (I said no), I temporized regarding a more difficult hypothetical. Suppose that after an individual has assumed office, it comes to light that he committed a serious crime, such as murder or rape, years before taking office and completely unrelated to his political life? Note that this question has implications for whether a president can be indicted because, if a president can neither be indicted nor impeached for some serious criminal offenses preceding his time in office, it means that he would be effectively immune from accountability for the remainder of his term.

Thanks to Virginia lieutenant governor Justin Fairfax (good job, Virginia), this hypothetical has come to life. Fairfax is accused of two separate sexual assaults, both of which long preceded his time in office. Fairfax denies the allegations. A member of the Virginia House of Delegates has announced that if Fairfax does not resign, he will introduce an impeachment resolution as early as Monday. This raises the question whether the allegations against Fairfax are grounds for impeachment.

This is not an easy question. In his recent book, Professor Michael Gerhardt, one of the leading scholars on impeachment, discusses the hypothetical of a presidential candidate “who lied about committing a murder during the campaign but then later is discovered to have been responsible for that crime.” Michael J. Gerhardt, Impeachment: What Everyone Needs to Know 56 (Oxford U. Press 2018). Gerhardt notes the recent case of federal judge Thomas Porteous, who was impeached by the House and convicted by the Senate in part based upon lying during the confirmation process about corrupt behavior as a state judge. (We also discussed the Porteous case here).

Continue reading “Can Virginia Lieutenant Governor Fairfax Be Impeached? It’s Complicated.”

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Can Governor Northam be Impeached?

No.

Perhaps I should elaborate. Article IV, section 17 of the Virginia Constitution (adopted in 1971) provides: “The Governor, Lieutenant Governor, Attorney General, judges, members of the State Corporation Commission, and all officers appointed by the Governor or elected by the General Assembly, offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments.”

This language is identical to that contained in the Virginia Constitution of 1902, except that the latter referred to the “State” rather than the “Commonwealth.” The reference to “high crimes and misdemeanors,” language also contained in the U.S. Constitution, dates back to the Virginia Constitution of 1830, which provided: “The Governor, the Judges of the Court of Appeals and Superior Courts, and all others offending against the State, either by maladministration, corruption, neglect of duty, or any other high crime or misdemeanor, shall be impeachable by the House of Delegates; such impeachment to be prosecuted before the Senate, which shall have the sole power to try all impeachments.”

It is clear that Governor Northam has not committed “malfeasance in office, corruption or neglect of duty.” This leaves “other high crime or misdemeanor” as the only charge that conceivably could be brought against him for the offending conduct (which, in case you have been under a rock for the past 48 hours, consists of offensive and racist photos on his medical school yearbook page in 1984).

The term “high crime and misdemeanor” as used in the U.S. Constitution is broad and, as we have discussed before, not necessarily limited to conduct while in office. There is precedent for the proposition (again, at the federal level) that conduct predating the office in question may constitute a high crime or misdemeanor if the misconduct related to a different office and/or can be causally linked to the gaining of the current office. Thus, for example, if an officeholder were to attain office by corruptly rigging an election, there is a strong argument that this could provide the basis for impeachment and removal.

In Northam’s case, one would have to argue that his failure to reveal his prior misbehavior, decades prior to his election as governor, constituted a fraud on the electorate that resulted in his attaining the governorship. Not only would that mean that every untruth told during a political campaign would be potentially impeachable, but that an officeholder could be impeached simply for failing to volunteer damaging information.

To be sure, impeachment has both legal/judicial and political attributes, and the latter is reflected in the “awful discretion which a court of impeachments must necessarily have” such that it “can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favour of personal security.” The Federalist No. 65 (Hamilton). But to extend that discretion so far as to encompass any distasteful behavior at any point in an officeholder’s life would be to disregard entirely the judicial aspects of the proceeding and to make impeachment little more than a measure of political popularity.

It is difficult to draw a precise line as to when conduct preceding an officeholder’s tenure should be considered potentially impeachable. But non-criminal conduct that occurred decades before taking office cannot be close to that line.

 

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Virginia Supreme Court Takes on Speech or Debate

The Virginia Supreme Court recently issued a decision in Edwards v. Vesilind, No. 160643 (Va. Sept. 15, 2016), a case involving the application of the Virginia constitution’s speech or debate clause to a subpoena for documents directed to Virginia state senators and the Division of Legislative Services (DLS), a legislative agency that provides legal and other research services to the Virginia General Assembly. The subpoena, which arose from a lawsuit alleging that certain state house and senate districts violated the Virginia constitution, sought written communications and other documents related to the legislature’s formation of these districts, including documents that discussed (1) compactness, population and other criteria used to form the districts; (2) the role played by partisan or incumbent-protection considerations; and (3) the process of preclearance through the Virginia attorney general.

The Virginia senators and DLS objected to the subpoenas based on the Virginia speech or debate clause, which provides “Members of the General Assembly . . . for any speech or debate in either house shall not be questioned in any other place.” The trial court, however, narrowly construed this privilege as applying only to “purely internal legislative communications solely among legislators, and between legislators and legislative staff.” Moreover, it defined “legislative staff” as “legislative assistants and/or aides who are employed and paid by the individual legislators, a legislative committee, or the legislature as a whole.” It found DLS and its employees to fall outside these parameters and therefore held that agency entirely unprotected by legislative privilege. It further found that the senators could not withhold communications with DLS, political consultants or other third parties.

The trial court’s ruling was certified for direct appeal to the Virginia supreme court because of the importance of the questions presented, which were ones of first impression concerning the scope of the Virginia speech or debate clause. The supreme court’s ruling as to the scope of the privilege and who may invoke it is also of wider interest because it construed the Virginia clause as co-extensive with the federal Speech or Debate Clause. As the court noted, the language in the Virginia constitution is derived from the federal Clause, and “[b]oth provisions afford similar protections because they are based on the same historical and public policy considerations.” Slip op. at 8.

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A Tenuous Recess Appointment in Virginia

An interesting recess appointment issue has arisen in the Commonwealth of Virginia. Article VI, section 7, of the Virginia constitution provides that justices of the state supreme court, who serve for 12 year terms,  “shall be chosen by the vote of a majority of the members elected to each house of the General Assembly.” Under Article V, section 7, the constitution also provides that “[t]he General Assembly shall, if it is in session, fill vacancies in all offices which are filled by election by that body.”

The governor, however, has the “power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision.” Va. Const., art. V, § 7. This includes making temporary appointments to fill supreme court vacancies when the General Assembly is not in session: “Gubernatorial appointments made to fill vacancies in offices which are filled by election by the General Assembly . . ., made during the recess of the General Assembly, shall expire at the end of thirty days after the commencement of the next session of the General Assembly.” Id.

These provisions came into play earlier this year when a sitting justice of the Virginia Supreme Court (LeRoy F. Millette, Jr.) announced his retirement effective at the end of July. Because the General Assembly was not in session, Governor McAuliffe recess appointed Fairfax Circuit Court Judge Jane Marum Roush to fill the vacancy on a temporary basis. No one disputes that this was within the governor’s power under the above-cited provisions.

Matters became more complicated, though, when McAuliffe called a special session of the General Assembly to consider revising the state’s congressional districting map, which had been struck down by the federal courts. See Va. Const., art. IV, § 6 (“The Governor may convene a special session of the General Assembly when, in his opinion, the interest of the Commonwealth may require . . . .”). The General Assembly convened on August 17, 2015, pursuant to the governor’s call.

Once the special session convened, the General Assembly undeniably had the power to elect a “permanent” (i.e.. for the remainder of the 12-year term) replacement for Justice Millette. Republicans in the legislature attempted to elect another judge to fill the seat, but this move was blocked in the senate. The senate then voted to adjourn sine die. The house, however, neither adjourned nor consented to the senate’s adjournment.

Everyone agrees that when the General Assembly convened on August 17, it commenced the “next session” of the General Assembly following Roush’s recess appointment. Thus, the thirty-day clock started on August 17, and Roush’s appointment expired on September 16.

The controversy centers on whether the senate’s vote to adjourn sine die has ended the General Assembly’s special session. If not, the General Assembly remains in session and retains the power and responsibility to fill the seat that Judge Roush had temporarily occupied.

This is the view of the speaker of the Virginia House of Delegates. In a letter to the governor, the speaker relies primarily on the following provision of the Virginia constitution: “Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days.” See Va. const., art. IV, § 6. This “clear, unambiguous and emphatic” language, according to the speaker, establishes that the senate cannot unilaterally end the General Assembly’s session. Thus, the senate’s adjournment sine die was ineffective and the General Assembly remains in session. Under the speaker’s position, the General Assembly’s session would not end until both houses agree to adjourn or until “dissolution by the efflux of their time,” which would presumably occur at the beginning of the new legislative session in 2016. Cf. House Rules and Manual § 590 (Jefferson’s Manual of Parliamentary Practice).

The governor’s position, explained by his counsel Carlos L. Hopkins, is otherwise. Hopkins maintains that the senate’s adjournment sine die was effective. His primary argument is that the adjournments clause relied on by the speaker applies only to regular sessions, not to special sessions. As an additional (or possibly alternative) ground, he contends that “the lack of continuous activity or remaining business before the General Assembly argues against the body continuing to remain in session.”

Based on the legal position that the General Assembly was no longer in session, the governor gave Roush a second recess appointment after her first one expired.

Key to assessing these competing claims is understanding the history of the relevant provisions of the Virginia constitution and their relationship to the corresponding provisions in the U.S. Constitution. I do not purport to be an expert on the Virginia constitution, but I am well acquainted with the law and practice of recess appointments at the federal level (click on the “Recess Appointments” category to the right if you don’t believe me).

This background plus the research set forth below convinces me that the Virginia adjournments clause applies to special sessions and thus the senate’s adjournment on August 17 was ineffective. The argument that the General Assembly is no longer in session because it has ceased to conduct any business is somewhat stronger, but, for the reasons set forth below, the better view is that the General Assembly remains in session. Accordingly, Governor McAuliffe’s second recess appointment of Judge Roush appears to be invalid.

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Delegate Morrissey and the Voters Who Love Him

So when we left off our discussion of Virginia Delegate Joseph Morrissey (D-Henrico turned I-Prison), I noted:

All of this is likely academic as the voters will probably not take up Morrissey’s case as a cause celebre ala Wilkes. But it should be noted that Wilkes was a famous libertine and some of his expulsions were based on his authorship of a pornographic parody that scandalized British society of the time. So you never know.

It’s always a good idea to qualify your predictions so subsequent events don’t make you look like a fool. As it happens, Morrissey’s constituents (at least those who bothered to show up in a low turnout election) were perfectly happy to keep him as their representative in Richmond, even though it means he will be commuting from a jail cell to his seat in the oldest continuous lawmaking body in the Western Hemisphere.

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But They Can Still Vote While Intoxicated, Right?

According to several news accounts in the last week, a Minnesota student group is working to end “legislative immunity from drunk driving arrests.” Apparently someone believes that Minnesota state legislators are immune from arrest for DWI based on Article IV, section 10, of the Minnesota Constitution, which provides that “members of each house in all cases except treason, felony and breach of the peace, shall be privileged from arrest during the session of their respective houses and in going to or returning from the same.”

This language is nearly identical to the Arrest Clause in the U.S. Constitution, from which it is undoubtedly derived. I am pretty sure that a federal legislator would have no Arrest Clause protection from a DWI arrest, and it is unclear why anyone thinks that a Minnesota legislator would be entitled to assert such a privilege.

Except that the professor for the students in question says she “witnessed a clearly drunken legislator last year bragging about his immunity from DWI arrests in a St. Paul bar last year.”

Well, how much more proof do you need?

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We Have Another Tie!

This time in Wisconsin, where a Republican state senator (facing a recall election in June) has resigned, leaving the Senate split at 16-16.

Unlike Virginia, Wisconsin has no constitutional provision providing for the lieutenant governor (or anyone else) to break ties.  Nor, apparently, is there any statute that says what happens in this situation.

According to NCSL’s website, this leaves two options: (1) a negotiated agreement between the parties and (2) a coin toss.

A coin toss sounds good, but would they be able to agree on which coin to use?

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Bolling Memorandum on Breaking Ties in the Virginia Senate

Virginia Lieutenant Governor Bolling has issued this ruling on his power to break deadlocks in the Virginia Senate. In brief, Bolling concludes that his power to vote includes organizational matters such as determining rules of procedure and voting on officers. However, he also finds that he lacks the power to vote on final passage of certain matters, such as appropriations bills, tax bills and state constitutional amendments, for which the Virginia Constitution requires the vote of a “majority of the members elected to each house.” The Lieutenant Governor, Bolling reasons, is not an elected member of the Senate and therefore cannot break ties on a final vote on such matters.