Posted by Jonathan Adler:
Can Dann Be Impeached or Removed?
http://volokh.com/archives/archive_2008_05_04-2008_05_10.shtml#1210251147
Scandal plagued Ohio Attorney General Marc Dann is holding firm and
refusing to resign. Indeed, he's [1]hired a political
opposition-research firm to assist in communications. Still, every
prominent political figure from Dann's own political party, including
the Governor, has said Dann must resign or face impeachment.
If Dann had any honor, he'd resign. That much is plain. But does that
mean he should be impeached? Has he even engaged in impeachable
offenses? The Ohio Constitition [2]provides that any state officer may
be impeached for any misdemeanor in office." The key question, it
seems to me, is what qualifies as a "misdemeanor."
Under one reading, this would require that an officer actually commit
a crime in order to be eligibe for impeachment. After all,
"misdemeanor" typically connotes a particular category of crime. I
find this reading implausible, however, as it would suggest that a
state officer can be impeached for committing lessor crimes
("misdemeanors") but not greater crimes ("felonies"). I suppose one
could argue that in most cases, the commission of a felony will
include the commission of a misdemeanor as a lesser-included offense,
but I still find this argument unpersuasive.
I find more plausible a reading of the Constitution that uses
"misdemeanor" in the traditional sense of meaning a "misdeed" or "an
instance of misbehavior." (See various definitions [3]here.) Under
this definition, Dann has clearly committed impeachable offenses, even
if one ignores his affair, including misleading investigators,
misappropriation and misuse of state resources, accommodating and
enabling misdeeds by his subordinates, and contributing to the
creation of a hostile work environment within the state AG's office,
among other things. And I am willing to bet more will be revealed by
pending investigations and litigation.
For more on whether Dann should be impeached, see this debate between
two Columbus Dispatch writers. ([4]Yes, [5]No).
Interestingly enough, under Ohio law, there is another way for Dann to
be removed from office. The Ohio Constitution [6]provides:
Laws shall be passed providing for the prompt removal from office,
upon complaint and hearing, of all officers, including state
officers, judges and members of the general assembly, for any
misconduct involving moral turpitude or for other cause provided by
law; and this method of removal shall be in addition to impeachment
or other method of removal authorized by the constitution.
The relevant [7]removal provisions of the Ohio Code provide for the
initiation of judicially administered removal proceedings upon the
filing of a complaint signed by a number of voters equal or grater to
fifteen percent of the votes cast in the last gubernatorial election.
Importantly, the [8]standard for removal incorporates a fairly broad
definition of official misconduct that would justify impeachment.
Section 3.07 of the Ohio Code provides:
Any person holding office in this state, or in any municipal
corporation, county, or subdivision thereof, coming within the
official classification in Section 38 of Article II, Ohio
Constitution, who willfully and flagrantly exercises authority or
power not authorized by law, refuses or willfully neglects to
enforce the law or to perform any official duty imposed upon him by
law, or is guilty of gross neglect of duty, gross immorality,
drunkenness, misfeasance, malfeasance, or nonfeasance is guilty of
misconduct in office. Upon complaint and hearing in the manner
provided for in sections 3.07 to 3.10, inclusive, of the Revised
Code, such person shall have judgment of forfeiture of said office
with all its emoluments entered thereon against him, creating
thereby in said office a vacancy to be filled as prescribed by law.
The proceedings provided for in such sections are in addition to
impeachment and other methods of removal authorized by law, and
such sections do not divest the governor or any other authority of
the jurisdiction given in removal proceedings.
Whether or not one believes Dann is guilty of a "misdemeanor"
justifying impeachment under the Ohio Constitution, it seems to me
that he is clearly guilty of "misconduct" as defined by the Ohio Code,
and vulnerable to a removal action. Initiating such an action would be
costly - requiring the collection of over 600,000 signatures -- and
placing Dann's fate in the hands of the judiciary could unduly
politicize that branch. Bipartisan impeachment proceedings would be
preferable to a citizen-initiated removal action, and a resignation
would be best of all.
References
1.
http://blog.cleveland.com/openers/2008/05/dann_hires_political_spokesman.html
2. http://www.legislature.state.oh.us/constitution.cfm?Part=2&Section=24
3. http://dictionary.reference.com/browse/misdemeanor
4.
http://www.dispatch.com/live/content/local_news/stories/2008/05/08/IMPEACH_YES.ART_ART_05-08-08_A1_4KA534L.html?sid=101
5.
http://dispatch.com/live/content/local_news/stories/2008/05/08/IMPEACH_NO.ART_ART_05-08-08_A1_4KA534J.html?sid=101
6. http://www.legislature.state.oh.us/constitution.cfm?Part=2&Section=38
7. http://codes.ohio.gov/orc/gp3.08
8. http://codes.ohio.gov/orc/gp3.07
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