Internal Research Memorandum

(prepared by OLRGC law clerk)1 RE: DATE: Interpretation of "high crimes" and "misdemeanors" language in the Utah Constitution, Article VI, Section 19 August 1, 2003

ISSUES PRESENTED: 1. What do “high crimes” and "misdemeanors" mean, as those terms are used in the Utah Constitution, and, more particularly, what did they mean in 1896 when the Utah Constitution was adopted? 2. Have federal or other state courts tried to define those terms for purposes of impeachment, or have they declined to do so because questions relating to the impeachment process are political questions? 3. Is there a difference in meaning between “high Crimes and Misdemeanors,” as used in the United States Constitution, and “high crimes" and "misdemeanors,” as used in the Utah Constitution? BRIEF ANSWERS: 1. The terms “high crimes” and "misdemeanors" in the Utah Constitution very likely have the same meaning as those terms in the United States Constitution because the language in the Utah Constitution appears to have been taken directly from the U.S. Constitution, and there is no case law defining the language from before 1896. The meaning of the terms is very likely going to be left up to the state Legislature because they undertake the impeachment proceedings, and what constitutes a "high crime" or "misdemeanor" is a political question the courts are not willing to touch. 2. Federal courts have not made any attempts to define “high Crimes and Misdemeanors” because the impeachment process involves political questions in which they do not feel they should be involved. On the other hand, one of four situations exists in most states: (1) the “high crimes and misdemeanors” language continues to exist in the constitution but the state courts have not defined the terms; (2) the state constitution contains language that is different than the “high crimes and misdemeanors” language, either because it was never there or it was amended; This memorandum was prepared in 2003 for internal use by OLRGC. It has not been extensively proofed or updated since it was prepared. As an internal document not intended for wide distribution, it does not meet our usual standards for documents distributed to legislators. 1

(3) the constitution contains the "high crimes and misdemeanors" language and the state courts have not defined the language; however, the constitution lists some other offenses along with “high crimes and misdemeanors” that would result in impeachment, suggesting that those are some of the offenses that are similar to “high crimes and misdemeanors;” or (4) the state constitution has the "high crimes and misdemeanors" language, and the state courts have made an attempt to better define the language (this applies to only two states–Florida and Nebraska). 3. Technically speaking, there are not any differences between the “high Crimes and Misdemeanors” language in the U.S. Constitution and the similar language in the Utah Constitution. However, practically speaking it depends upon who is interpreting the language. It seems that, because the interpretation of the language has been determined by federal and most state courts to be a political question, the interpretation is dependent upon political variables that are difficult to predict. Thus, because the Legislature in Utah might view the political question of what are “high crimes" or "misdemeanors” differently than the U.S. House of Representatives, there may be a difference in meaning. DISCUSSION: 1. Meaning of “high crimes" and "misdemeanors” language when the Utah Constitution was adopted The meaning of the “high crimes" and "misdemeanors” language when the Utah Constitution was adopted in 1896 appears to be the same as the meaning of that language in the United States Constitution. In Utah’s Proceedings: Constitutional Convention, 1895, there are no debates or discussions about the language in question. This suggests that the committee in charge of the impeachment language took it directly from the U.S. Constitution and implemented it without objections from any of the members of the convention. Had the language been an issue, there would have likely been some amount of debate or discussion to clarify its meaning. Thus, to discover the elusive meaning of the language, I reviewed federal case law from before 1896. Again, there are no definitions of “high Crimes and Misdemeanors” and only a few cases that even cite the language. Hence, it is very likely that the language in the Utah Constitution was taken directly from the U.S. Constitution, and that it meant the same thing in the Utah Constitution as it did in the U.S. Constitution. The meaning seems to be whatever the legislature says it is, principally because they are the ones that conduct the impeachment proceedings. The courts are very reluctant to opine about what they feel is a legislative political question. 2. A. Federal courts' treatment of “high Crimes and Misdemeanors” language

There are no concrete definitions or interpretations of the “high Crimes and Misdemeanors” language in Article II, Section 4 of the United States Constitution. There are not any cases that attempt to define the terms, though there are some fairly universal ideas about 2

what the founders intended this language to mean. The difficulty with these expositions is that they do not come with citations to anything, case law or otherwise, so they seem to be universally recognized, even though no one can state for sure where they came from, or give any authoritative citations for them. In relation to impeachment, it is generally believed that “high crimes and misdemeanors” involve conduct that entails an abuse of power or a serious breach of trust, or that in some other manner the conduct demonstrates an official’s unsuitability for office–whether the conduct undertaken is criminal in nature or not.2 This general idea about what “high Crimes and Misdemeanors" means is open to several interpretations. The core question is who undertakes the interpretation of what is a “high crime" or "misdemeanor?” In Nixon v. United States, the United States Supreme Court strongly suggested that issues arising out of the impeachment process bear on political questions that are to be resolved by the House and Senate rather than by the judiciary.3 Thus, the Court’s statements lead to the conclusion that the meaning of “high Crimes and Misdemeanors” is unlikely to be resolved by the federal courts because it involves a political question to be resolved by the legislative branch. B. Other state courts' treatment of “high crimes and misdemeanors” language in their constitutions Many states do not have any case law that discusses the interpretation of the “high crimes and misdemeanors” language, which could be attributed to either a lack of that language in their constitution, or a desire to leave the interpretation of the language to the legislative branch because of political question concerns. On the other hand, there are a few states that cite specific language of “high crimes and misdemeanors” in cases, but choose not to define or to even discuss what the language might mean. Moreover, there are a few states that do not define the language specifically, but that do have other offenses in their constitutions that are listed along with the “high crimes and misdemeanors” language, which suggests that, because they are listed, they are very probably considered by those states to be high crimes and misdemeanors, or offenses very close to them. Finally, only in Florida and Nebraska can we find case law in which the judiciary defines “high crimes and misdemeanors.” In some states, where court decisions have referred to the "high crimes and misdemeanors" language of their constitutions, the constitutional language was later amended to become only more vague. For example, in an 1892 case the Supreme Court of Hawaii cited the Hawaii Constitution, which at the time specified five offenses that merited impeachment along with other "high crimes and misdemeanors." The other offenses were “theft, bribery, perjury, forgery and embezzlement, the conviction of any of which disqualifies [one] from holding any
2 3

50 Am. J. Comp. L. 405, 416-418 (2002). 506 U.S. 224, 233-235 (1993). 3

office of honor, trust or profit under the Government. . . .”4 However, the Hawaii Constitution was amended in 1978, eliminating the five specified offenses, as well as the "high crimes and misdemeanors" language, and replacing it with, “The governor and lieutenant governor, and any appointive officer for whose removal the consent of the senate is required, may be removed from office upon conviction of impeachment for such causes as may be provided by law.”5 Similar changes have been made in Alabama, Kentucky, and Louisiana. This move toward language that is more vague has not been explained very thoroughly, if at all, but presumably it is to give the impeaching body more flexibility in determining what offenses qualify for impeachment on a case-by-case basis. These states do not seem to want to be bound by any language that is too specific. There are still a few states that have maintained more specific language like that of Hawaii before its constitution was amended. Virginia's constitution adds "corruption" and "neglect of duty" to "malfeasance" and "high crimes and misdemeanors."6 However, there is no case law in Virginia that defines any of the terms more fully. In West Virginia, the constitution includes "maladministration," "corruption," "incompetency," "gross immorality," "and "neglect of duty," along with the "high crimes and misdemeanors" language.7 Even so, like Virginia, West Virginia does not have any case law that defines these terms more precisely. Both the Florida and Nebraska supreme courts have defined one or both of the terms. The Supreme Court of Florida stated, “As applied to impeachment, ‘misdemeanor in office’ may include any act involving moral turpitude which is contrary to justice, honesty, principles or good morals, if performed by virtue or authority of office.”8 (The constitution of Florida only includes the misdemeanors portion of the "high crimes and misdemeanors" language usually found together in constitutional provisions, and thus "high crimes" is not defined.) The Supreme Court of Nebraska stated, “[A]n impeachable high crime or misdemeanor is in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest. . . .”9 Though these definitions do help one determine what Florida and Nebraska consider to be "high crimes and misdemeanors" worthy of impeachment, they are still quite subjective and vague. Consequently, they leave the question of whether the

4 5 6 7 8

In the Matter of Qualifications of Voters, 8 Haw. 589, 590 (Haw. 1892). Haw. Rev. Stat. Const. Art. III, § 19 (2003). Va. Const. Art. IV, § 17 (2003). W. Va. Const. Art. IV, § 9 (2003).

In re Investigation of a Circuit Judge of the Eleventh Judicial Circuit of Florida, 93 So. 2d 601, 605-606 (Fla. 1957).

State v. Douglas, 349 N.W. 2d 870, 884 (Neb. 1984). 4

offense merits impeachment still to the impeaching body, namely the House of Representatives, in virtually every situation. 3. Meaning of “high crimes" and "misdemeanors” in Utah Constitution versus the meaning in the U.S. Constitution Technically speaking, there are not any differences between the “high Crimes and Misdemeanors” language in the U.S. Constitution and the "high crimes" and "misdemeanors" language of the Utah Constitution, because the impeachment language in the Utah Constitution appears to have been taken directly from the U.S. Constitution. However, practically speaking, the meaning depends upon how the Utah House of Representatives interprets that language.


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