Can the Governor be removed from office if he is convicted by Franklin District Court

        Can the legislature override the Kentucky Constitution?                       

             By Stan Billingsley, Senior Editor of LawReader.com


    The Herald-Leader newspaper, and WAVE television in Louisville have reported (incorrectly we believe) that Chief Justice Joseph Lambert has ruled that Governor Fletcher enjoys absolute immunity from prosecution.  As stated in the accompanying article posted by LawReader, our reading of the decision in which the Chief Justice placed a footnote, concludes that one cannot correctly say that the Chief Justice made such a ruling.Lambert made a comment in a footnote to the effect that there was a strong argument for that proposition. He did not make that theory part of his official ruling.  One can read into his comment what they wish, but this footnote did not commit the Chief Justice on this subject. However, if the Governor is convicted we don’t agree with the Chief Justice that there is indeed a “strong argument? that the Governor would enjoy immunity from impeachment based solely on a conviction by the Franklin District Court. If there is an argument about such immunity it is not found in the Kentucky Constitution.

    In this comment we will explore this theory a bit further.

Can the Governor be impeached and removed from office if he is convicted of a statute passed by the General Assembly? 

One of the offenses for which the Governor was indicted provides in the penalty provision that a party who is convicted shall be removed from office.

First let us examine the provision of the Kentucky Constitution regarding impeachment. There are three sections that are relevant to this discussion:

1) Kentucky Constitution – Section 66 – Power of impeachment vested in House.
The House of Representatives shall have the sole power of impeachment.?

2) Kentucky Constitution – Section 67 – Trial of impeachments by Senate.

  “All impeachments shall be tried by the Senate. When sitting for that purpose, the Senators shall be upon oath or affirmation. No person shall be convicted without the concurrence of two-thirds of the Senators present.?

3) Kentucky Constitution – Section 68Civil officers liable to impeachment — Judgment — Criminal liability.

The Governor and all civil officers shall be liable to impeachment for any misdemeanors in office; but judgment in such cases shall not extend further than removal from office, and disqualification to hold any office of honor, trust or profit under this Commonwealth; but the party convicted shall, nevertheless, be subject and liable to indictment, trial and punishment by law.

    These Constitutional provisions spell out a process where the House “indicts? a public official of a charge which they believe justifies impeachment, but the Senate must then conduct a “trial? of the official.

Technically, a public official is “impeached? by the vote of the House, but he is not punished or removed from office until he has been convicted by the State Senate.

      Under the misdemeanor charge pending against Governor Fletcher, the legislature has added a provision that says the official convicted under that criminal charge is to be removed from office. This procedure if followed to the letter, would mean that the legislature has bypassed Sections 66 and 67 of the Kentucky Constitution.

However, Section 68 adds language that qualifies Sections 66 and 67.

Section 68 says: ““The Governor and all civil officers shall be liable to impeachment for any misdemeanors in office; but judgment in such cases shall not extend further than removal from office,..?

The first clause in that language permits any civil officer to be ?liable? to the impeachment process for any misdemeanors committed while he is in office.  The next clause says  “judgment in such cases shall not extend further than removal from office?.

The issue then becomes what does judgment mean in the context of this section. We suggest that it refers to a judgment of impeachment, and not a judgment of the District Court. The limiting language “shall not extend further than removal from office? means that if a public official is impeached by the legislature, he cannot be fined or imprisoned by action of the legislature in rendering their impeachment “judgment?.  The impeaching bodies of government can remove a civil officer from office, but they cannot also impose a criminal penalty.

The next sentence in Section 68 says: “the party convicted shall, nevertheless, be subject and liable to indictment, trial and punishment by law. “ This sentence means that the civil officer is not immune from prosecution in the courts. This means that the Governor does not enjoy “absolute immunity? from prosecution for a criminal offense. The term “convicted? refers to the final action of the State Senate.  The impeachment process and the criminal process are two separate and distinct procedures, and they both co-exist.  Clearly, the conviction of a public official by a court cannot result in the automatic removal from office, the removal from office power is reserved solely to the impeachment process. 

 After reading Section 68 we cannot find a “strong argument” for the proposition that a Governor enjoys “absolute immunity” either from impeachment or criminal conviction.

    Nothing in Section 68 says a civil officer cannot be “indicted, tried or punished by law? until after the impeachment process.  To say that a civil official enjoys immunity from prosecution prior to his impeachment, is a theory that is not spelled out in Sections 66, 67 or 68.  Perhaps there will be a future court ruling to that effect…but there is no such ruling at this point to that effect. 

The situation where a civil official has been convicted by a criminal court and sent to prison but still remains “in office? and still receives a salary is not a novel occurrence. History has presented a number of factual instances where this very thing has occurred.

    It is well known that a constitutional provision overrides any act adopted by the legislature which conflicts with the constitution.  The judiciary is only empowered to consider whether any act of the legislature is “unconstitutional? (See: Marbury v. Madison). The judiciary does not have the constitutional authority to remove a constitutional officer.

A conviction by a public official by a court results in the imposition of a criminal penalty. That official can only be removed from office by the exclusive impeachment process set out in the Constitution. This procedure requires the legislature to impeach and to try the public official. This power of impeachment is not granted to the judiciary.

   If a governor is convicted of any offense, or if he displeases the legislature on a political issue, or if his competency is questioned, then the legislature may avail themselves of the impeachment process. But Sections 66 and 67 provide the exclusive means of removal from office. Nothing in the law requires the legislature to impeach a civil official who is convicted for a violation of the law by a court.

Therefore, the potential conviction of Governor Fletcher (or any future public official ) who are subject to impeachment, may indeed be impeached, but the exclusive process set out in Sections 66 and 67 must be followed. 

This means, we believe, that any conviction of a public official only sets up a possible basis for removal from office, and any interpretation that would suggest that the legislature can pass a statute that ignores Sections 66 and 67 is incorrect and not well founded in the law.

    The Kentucky Constitution in Section 68, clearly says a public official is not immune from criminal prosecution.  Nothing in the Kentucky Constitution says a public official, even the Governor, is above the law or immune from punishment for criminal acts.    But the penalty or sanction of removal from office is quite a different matter…and we conclude that any conviction by the Franklin District Court cannot be interpreted to automatically remove Governor Fletcher from office.  Such an interpretation would clearly violate Sections 66 and 67 of the Kentucky Constitution. Such an interpretation would mean that the Legislature could ignore the Kentucky Constitution at will.

We concede that a Governor may pardon a public official.  Many argue that he can even pardon himself. We leave those issues to others to discuss. Nevertheless, we can see no basis for the proposition that a conviction of the Governor of a criminal offense, acts to automatically remove him (or any other elected official) from office. Such a conviction only acts to provide a possible basis for removal from office by the formal impeachment process.

When one considers the primacy of Constitutional provisions, it is clear that the legislature cannot properly adopt a statute that bypasses the mandatory removal process.

   An interesting question remains unanswered by this discussion.   Can a Governor who pardons himself thereby provide himself with immunity from impeachment?  Such a theory would be a stretch and we will leave that issue for another day.

 

 

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