As some (or most) of you know, South Carolina Gov. Mark Stanford’s bizarre personal issues have prompted calls for the state’s legislature to impeach him. Those proceedings won’t begin this fall, as the South Carolina House Speaker last month punted that question until January when he ruled that the state House of Representatives cannot consider an impeachment resolution during a special session that wasn’t called with impeachment in mind.

In October, State Rep. F. Gregory (Greg) Delleney, Jr. , sought introduction and referral to committee a “[r]esolution calling for the impeachment of Governor Marshall Clement Sanford, Jr.” S.C. H.J., 118th Gen. Assembly, Reg. Sess., http://www.scstatehouse.gov/sess118_2009-2010/hj09/20091027.htm (Oct. 27, 2009). (I cannot find the resolution in the official state database, but the text was reported in the media. Impeachment Resolution Text, The State (Columbia, S.C.), http://www.thestate.com/politics/story/1001358.html (Oct. 27, 2009). ) His colleague Walton J. McLeod raised a point of order that the Chester Republican’s resolution was out of order pursuant to the so-called “Sine Die Resolution.” S.C. H.J., 118th Gen. Assembly, Reg. Sess. (Oct. 27, 2009). McLeod stated that the Sine Die Resolution did not specify impeachment as a subject matter that could be considered the House’s October session. Id. Since the subject could not be considered, the Little Mountain Democrat concluded, its introduction could not be considered. Id.

Delleney countered that his resolution was in order under the South Carolina Constitution, which grants the House sole authority to impeach and that a mere legislative resolution “could not limit the House’s authority to consider impeachment resolutions.” Id. Rep. Gilda Cobb-Hunter, a Cameron Democrat, backed up McLeod by arguing, among other things, that House precedents required the Speaker to hold an impeachment resolution out of order if the subject matter was not named in the Sine Die Resolution. Id. None of those precedents were stated or specified in the Journal. See id.

The Speaker, Robert W. Harrell, Jr., sustained the point of order and ruled Delleney’s resolution out of order. Id. While holding “that the House has sole constitutional authority to impeach the Governor,” the Charleston Republican also held that the House’s constitutional rule-making power could circumscribe the exercise of that authority. Id. He specifically held that the Sine Die Resolution, “adopted by a 2/3 vote of the House, established rules, procedures, and limits on what the House can take up in the extended session and that a resolution calling for the impeachment of the Governor was not included in what could be introduced.” Id. Finally, the Speaker added that Delleney’s resolution “could be introduced and referred to committee during the prefiling dates” for the regular session beginning in January 2010. See id.

This ruling seems out of line with the majority view on this question, which generally holds that impeachment presents a question of constitutional privilege that can be considered at practically any time. The South Carolina House has designated Mason’s Manual of Legislative Procedure as its “preferred parliamentary authority.” S.C. H. Rule 6.6 (2009). Mason’s Manual appears to be silent on the matter. The House also provided that it ” shall . . . be guided by parliamentary law as it may be collected from the best authorities[.]” S.C. H. Rule 6.6. The “best authorities would seem to include the practice of the United States House of Representatives as published by Hinds, Cannon, and Deschler. Those authorities agrees that an impeachment resolution presents a question of constitutional privilege that may be considered at any time.  See Deschler ch. 14, § 5.1; 3 Hinds § 2053. There is also authority that suggests that Speaker Harrell should have not sustained the point of order but should have submitted the question directly to the House for consideration. See Deschler ch. 14, § 5.3.

The Texas Supreme Court considered a similar question as that raised in South Carolina and held that the impeachment power was not circumscribed by constitutional limitations on subjects that could be considered during a special session. Ferguson v. Maddox, 114 Tex. 85, 263 S.W. 888, 891 (Tex. 1924). James E. “Pa” Ferguson was impeached and removed as Governor of Texas in 1917; as part of the Senate’s verdict, he was disqualified from holding further state office. Id. at 888. He then attempted to run for Governor in the 1924 Democratic primary but a Harris County district judge enjoined the State Democratic Executive Committee from placing Ferguson’s name on the ballot because of the Senate’s judgment of disqualification. Id. at 888-889. On appeal, Ferguson argued, among other things, that the House improperly adopted the articles of impeachment and the Senate improperly sat as a court of impeachment during a special session that was convened for the sole purpose of making an appropriation for The University of Texas. See id. at 889. He pointed out that Article  III, Section 40, Texas Constitution, limited the subject matter of  “legislation” considered during a special session to “those designated in the proclamation of the Governor calling such session[.]” See id. at 890.

The Court rejected this argument by observing that the impeachment process is a judicial, not a legislative, process and thus “does not, in the remotest degree, involve any legislative function.” Id. The House and Senate have a continuous existence throughout their respective terms. See id. at 891. Each House’s impeachment powers likewise “exist at all times.” Id. Any limitation related to the subject matter of legislation, then, simply does not apply to either House’s exercise of those powers. Id. (stating flatly that “the broad power conferred by [the Constitution] stands without limit or qualification as to the time of its exercise”).

The Speaker did not cite any authority other than the Sine Die Resolution for his ruling. To say that the House can adopt a rule degrading the high constitutional privilege of impeachment seems a little far-fetched. Also, that seems a thin reed when stacked up against the highly persuasive Congressional and Texas authority. I wonder if he didn’t have the votes to refer the resolution to committee for further investigation? Or if he was protecting his members from a vote that could be hard to explain? In either case, a more reasoned decision would have been helpful not only to the House, but to history.

Delleney returns the punt tomorrow when he reintroduces his resolution during the prefiling period for the January regular session. Robert Kittle, First Step in Possible Sanford Impeachment Happens Tuesday, http://www2.wspa.com/spa/news/state_regional/state_regional_govtpolitics/article/first_step_in_possible_sanford_impeachment_happens_tuesday/29676/ (Nov. 13, 2009).