Incompetence and criminality
The issue of competency, and incompetent office holders, certainly was addressed by the convention. The danger of incompetent judges in particular was raised repeatedly (though the issue of judges sharing pornographic emails wasn’t a concern in 1872).
The dangers of incompetency in 1872 largely meant growing senility.
Delegate William Darlington told the convention, for example, “We are to assume, in the first place, that the people will elect competent officers and honest men. We must assume that. There may be cases where men will become incompetent or become criminal after election, and when this should be ascertained by a careful inquiry, not by one House alone, but by both, and two-thirds unite in saying that an officer thus elected by the people is no longer worthy to hold the office, then give the power to remove. But the danger, it seems to me, of subjecting any officer elected by the people to remove for caprice, if you please, for the body that may say he must be removed, may do it from caprice; or to say that any officer shall be removed by one portion of any other body without some safe check upon the body that can remove, is confiding a power which, it seems to me, is more important than you have ever confided to them before.”
The issue of a single legislative body removing an elective office holder of any rank became increasingly contentious, and was tabled by the convention several times.
On the 77th day of the convention, on March 28, 1873, Dalington rose to tell the convention, “The constitution now provides that all civil officers shall be impeached and removed from office for misbehavior or infamous crime. A provision now exists, and it is proper that it should exist, for removal of officers who shall be found incompetent, or whose continuance in office would be prejudicial to the public interest, although they may not be convicted of any infamous crime or misdemeanor within the meaning of the Constitution. All civil officers may be impeached. The term is well understood.
“The House of Representatives shall have the sole power of impeaching and the Senate shall try, and it shall acquit or condemn,” Darlington continued. “But for other offenses, not necessary to resort to impeachment in order to cure, it has always been a provision of the Constitution that they may be removed by the governor upon the address of two-thirds of each branch of the General Assembly….
“While we provide that the Governor and Lieutenant Governor and all judicial officers are liable to impeachment and removal, and necessarily so, yet there are a vast number of officers to whom it seems proper to apply a more speedy remedy; yet it should not be applied without due consideration, nor without the check which the judgment of one House of Assembly shall have upon the other. All officers elected by the people are thus to be treated.
“They may be impeached, it is true, but it may happen that it may become necessary to remove an officer more speedily than trial by impeachment may accomplish. Take for instance your office of State Treasurer, who will be elected by the people. Immediately upon his election he may be discovered to be totally unfit for the office, or he may have designs upon the treasury, by removal of its funds, and for which his security may be inadequate or insufficient as a remedy, and it may be important that he be removed, and promptly; but I would not give it to the Senate alone to remove him.
“I would say that whenever the representatives of the people in each branch of the Legislature, two-thirds concurring, shall require the Governor to remove an officer it shall be his duty to remove him promptly, without waiting for the tedious, troublesome and expensive method of impeachment. The safety of the public interest may require prompt action. We are bound to suppose that extreme cases may arise. So with regard to your Auditor General; he has vast power. He is elected by the people. He may pass an account through his office, which may take millions of dollars from the Treasury. It should be in the power of the representatives of the people and the executive to remove him promptly, and if anything serious should be wrong. Thus I would make every officer removable, whether elected by the people or appointed.” (see Volume 3, page 231.)
Darlington, who served as chairman of the convention’s Education Committee, lost the fight that both houses of the legislature should vote to remove an office holder on an emergency basis.
But Darlington’s point that an elected state treasurer and auditor general should be included in the long list of “lower tier” office holders who should be removed in an emergency seems to have contributed to the final outcome of the 1873 constitutional change.
Even so, nowhere was the attorney general mentioned as an officer who could, or should, be removed on emergency basis by the senate.
In the case of Attorney General Kathleen Kane, GOP state senators and her other political opponents advance the spurious claim that the suspension of her law license makes her suddenly incompetent or otherwise unfit to hold office.
But this supposed “incompetence” was, arguably, artificially manufactured by her political enemies on the court and elsewhere. She is certainly not a victim of sudden senility.
Moreover, as I’ve pointed out elsewhere, 22 other states do not require their attorneys general to be licensed members of the bar. Nor is the U.S. attorney general, or justices of the U.S. Supreme Court, required to be members of a state bar.
By the same argument used against AG Kane, all those office holders would be “incompetent” and unfit to hold office too.
Time has come for review
On June 9 1873, the final approval of the constitutional changes recommended by the Impeachment and Removal committee were put to convention delegates for vote.
Sections 1, 2 and 3, relating to impeachment in the House, and trial in the Senate, and officers liable for impeachment, passed easily.
Also passing easily was the first sentence of Section 4: “All officers shall hold their offices only on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime.”
But the last sentence of Section 4, allowing for direct removal of lower-tier elected officers “for reasonable cause, after due notice and full hearing,” which is now causing turmoil in the 21st century, continued to cause consternation in 1873. They kept stumbling over this troubling sentence in 1872-3 as we’re now stumbling over it in 2015.
Committee chair George Biddle, of Philadelphia, rose to complain, “I move to amend by striking out the words, ‘full hearing.’
“I think it is a mistake to leave these words in the paragraph,” Biddle said. “There is no objection to giving notice; but it seems to me that every time the Senate or two-thirds of the Senate make an address to remove an incompetent officer, to provide that he have a full hearing is to make this section entirely useless. Let him have notice; let him have such a hearing as may be necessary; but if a ‘full hearing’ is to be the equivalent of a trial, it will just re-introduce what we’re trying to get rid of. We are trying to provide a speedy remedy for the removal of incompetent men, and you might just as well try to impeach these incompetent officers as to give them a full hearing. Give them a fair chance, but do not require them to have a hearing.” (see Volume 5, page 226.)
With that, Delegate Henry Palmer, of Luzerne, Monroe and Pike Counties, rose to tell the convention, “I must object to this (Biddle’s proposed) amendment. I suppose the time will never come, I sincerely hope it never will, in the Commonwealth of Pennsylvania, when a man shall be removed from any office of honor, trust, or profit without an opportunity to be heard in his own defense. This amendment seems to be altogether in violation of the principles of our institutions — to try and convict and sentence a man without giving him a chance to be heard.”
Delegate Charles Hunsicker, of Montgomery County, months earlier had told the convention, “I desire the right to trial and that I do not desire to lodge in any person, however respectable or conservative, the right of removal without cause, and without giving the accused a fair and full hearing and an impartial trial, but I am afraid this amendment will produce a very objectionable result. I think a two-thirds or three-fourths vote of each House will produce very cumbersome machinery, and I would prefer that a derelict official should be removed after a full and fair hearing, by a vote of the Senate or House alone. I think it would be absurd to stop the whole business of legislation in the event of an impeachment of an ordinary official, by requiring a vote of both Houses to secure a removal from office.” (see Volume 3, page 232.)
More remarkable, delegate John Broomall, of Chester and Delaware Counties, pointed out, “I have some doubts about the propriety of putting in the word ‘hearing,’ as it stand in the proposition now proposed to be adopted, ‘after a full hearing.’ I think the phrase had better be, ‘after due notice and an opportunity to be heard.’ It might happen that the accused will say nothing, and then, according to the terms of the proposition, you never could remove him.” (Volume 3, page 233.)
But this was the wording accepted in 1873, and re-ratified in our current state constitution.
Delegates in 1873 pointed out that all this a legal mess waiting to happen, and that the state judiciary would likely, at some future time, be forced to rule on the constitutionality of any “direct address” removal attempt.
Almost a century and a half later, that time may finally be at hand.
Bottom line
Where does this leave Attorney General Kathleen Kane?
Should the state Senate invoke Article VI, Section 7, she will clearly be entitled to a “full hearing,” akin to a full impeachment trial, and not limited to the “very narrow and limited question” of her law license, as Sen. Scarnati proposes.
Even more astonishingly, as Delegate Broomall suggested in 1873, Attorney General Kane presumably could simply write an opinion that, due to her pending criminal trial, she or any other defendant so situated need not appear at the Senate’s “full hearing,” and since there will be no “full hearing,” as demanded by the clause before removal, the Senate’s action would be nullified, “and they could never remove her.”
Moreover, Kane could appeal the entire suspect procedure to Commonwealth Court.
Direct address or removal as proposed in Section 7 falls squarely under the constitutional provisions of impeachment, even as the standing committee that drafted it in 1873 was titled the “Impeachment and Removal from Office Committee.”
Legal challenges to impeachment are few and far between.
That’s because impeachments ordinarily are considered “non-justiciable political questions.”
“The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political … then the court will refuse to hear that case. It will claim that it doesn’t have jurisdiction. And it will leave that question to some other aspect of the political process to settle out,” wrote professor of government John E. Finn in 2006.
In the federal system, impeachments are covered by Article 1, sections 2 and 3 of the U.S. Constitution:
Article I, section 2 of the Constitution states that the House “shall have the sole power of Impeachment,” and,
Article I, section 3 provides that the “Senate shall have the sole Power to try all Impeachments.” Since the U.S. Constitution placed the sole power of the impeachment machinery in two political bodies, it qualifies as a political question.
Court challenges therefore are scant.
One rare exception was the 1990s case, Nixon v. United States, in which impeached federal judge Walter Nixon persuaded the U.S. Supreme Court to hear his appeal, raised on the procedural grounds that the full Senate did not hear his case as required by the constitution.
Even so, Judge Nixon lost his appeal.
The court’s opinion held that the judiciary may not review the impeachment and trial of a federal officer because the Constitution gave the Senate the “sole power to try all impeachments.”
I bring this point up because the Pennsylvania constitution reads:
“The House of Representatives shall have the sole power of impeachment.”
Under the current mess of the Pennsylvania constitution, sloppily cut-and-pasted together as it was over a century of careless revisions, AG Kane arguably has a rare, justiciable constitutional impeachment question, or several.
In Kane’s case, the state Senate is attempting a “back door impeachment,” in violation of the sole powers vested with the state House of Representatives, and to which the attorney general was not intended by framers to be subjected.
Whether Attorney General Kathleen Kane can get Commonwealth Court to take the case before proceedings begin in the Senate is another question.
Saving that, if a jury finds Kane guilty, the House of Representatives could impeach her, or remove her from office under the first line of Section 7.
EDITOR: Bill Keisling is the author of We All Fall Down: A Chronicle of an Impeachment Foretold, an account of the impeachment of Justice Rolf Larsen.
