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).

Josh Chafetz, guest-blogging at The Volokh Conspiracy, continues his series on the constitutionality of resignations by members of the U.S. House of Representatives with this post. UPDATE: And part V is here. ANOTHER UPDATE: Chafetz responds to commentors today.

Josh Chafetz, guest-blogging at The Volokh Conspiracy, has three separate posts on whether the Constitution permits Representatives in Congress to resign their seats. Looks like my stack of law review articles to read has justs grown. (Apparently he’s a smart fellow from Houston whose dad teaches at U. of H. Just because he’s from Texas does not move his article to the top of the list, though.)

Edward Still at Votelaw has a brief item this morning pointing out this story on Pennsylvania’s “bonusgate” that details how e-mails between House employees are being used to prove the prosecution’s case, including obtaining the indictments. (The prosecution’s press release includes links to the grand jury reports). While the candor expressed in the e-mails is both startling and disturbing in their honesty, I am wondering about the part legislative privilege might play once the case goes to trial if the defense tries to suppress some of the e-mail evidence.

You see, the incriminating e-mails were obtained by “[Attorney General Tom] Corbett’s agents [who] combed through thousands of e-mails between staffers, lawmakers and others within the legislative branch.” How did the AG obtain “thousands of e-mails” without implicating the state’s constitutions speech and debate clause?

In Pennsylvania, legislators, “for any speech or debate in either House[,] they shall not be questioned in any other place.” Pa. Const. art. II, sec. 15. This protection extends to records concerning “activity [that is] an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Parsons v. Pa. Higher Educ. Assistance Agency, 910 A.2d 177, 187 (Pa. Cmmw. 2006) (emphasis added). Both Houses have constitutional authority to “ prescribe by law the number, duties and compensation of the officers and employees of each House[.]” Pa. Const. art. III, sec. 17.

This issue was discussed by the D.C. Circuit in its opinion in the William Jefferson case, where the FBI conducted a full search of a congressional office in the Rayburn House Office Building. The D.C. Circuit agreed with Jefferson’s argument that the mere review of legislative documents implicates the Federal Speech and Debate clause because, to determine which documents were covered by the search warrant, the FBI had to review documents that certainly related to legislative acts of the legislator. And while mere copying of electronic material was permissible, that material could not be reviewed until the legislator had a chance to assert his privilege under the clause.

Jefferson’s case involved looking for records related to Jefferson’s personal business interests that, it was alleged, Jefferson was advancing through his office as a representative. In Pennsylvania, the case relates directly to the management and control of legislative employees, a wholly legislative act within the jurisdiction of the House and thus one designed to be protected by the state’s speech and debate clause. This appears to me to be a distinction with a difference. The indictment does seems to reflect this understanding because it alleges that the conduct furthered the private gain of seeking and obtaining elected office.

I’m not surely exactly how this would play out in the criminal trial on a motion to suppress. The Jefferson court seemed to suggest that the remedy was some kind of exclusion based on the Fourth Amendment once an indictment is handed down. I confess that I haven’t looked at this issue at all. If someone else has, I’d appreciate hearing their thoughts.

Of course, I am not advocating that criminal activity by legislators should be privileged or unreviewable. I am merely saying that there should be some safeguards to allow legislators to fully and freely do the jobs they were elected to do without fear of having the AG or the Governor looking over their shoulder the whole time. As Akhil Reed Amar pointed out in discussing the FBI raid on Congressman William Jefferson’s official office, there should be “special safeguards above and beyond warrants [that] should apply when there is a particularly high risk that various papers will implicate confidential information of innocent third parties—as is likely when a newspaper office is searched, or an attorney’s office, or a priest’s office. I suggested that such searches should be conducted by special judicial masters or magistrates, who would prevent roving executive eyes from snooping into papers that are irrelevant to the investigation at hand.” Since the purpose of speech and debate clauses is to ensure the legislature’s independence free from harassment by the executive and judicial branches, it would seem that there should have been in place some safeguard before the Pennsylvania Attorney General rifled thru thousands of e-mails between legislators, their staff and constituents. Anyone who has worked in a legislative office understands the needs for privileged communication, especially with constituents who disclose personal information. This is definitely one to watch.