At The Conglomerate today, David Zaring, an Assistant Professor of Legal Studies at Wharton School of Business,  posts a table showing which U.S. Supreme Court Justices are/have been the heaviest users of legislative history in determining the meaning of statutory language. The graphic isn’t very good, but you can dope out most of it. The post also contains a link to his paper, co-authored with David Law, Professor of Law and of Political Science at Washington University in St. Louis.

We’re a little late in picking this up, but the Blog of Legal Times reported the “faceoff” between Second Circuit Judge Guido Calabresi and Seventh Circuit Judge Frank Easterbrook at the Federalist Society’s annual debate luncheon held a few days ago. Not much new here, but a fair summary of each judge’s position.

LLB is now officially a high class blawg. We traded in our wordpress.com domain name for a new one that’s all ours: www.legislativelawbulletin.com. Also, you may contact your erstwhile editor at a new e-mail address: editor -at- legislativelawbulletin.com. We now waiting for an offer from Google.

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).

I’m back after a tiring but somewhat exciting legislative session in Texas and the resulting aftermath. It is my hope to begin posting at least two times a week, if not more. I will be counting on Kevin and Zac to hold me to this schedule even tho both of them should be studying and not reading blawgs.

I will have a longer post about the Texas Senate’s adoption of its rules for the 81st Legislature and the controversial decision to exempt “voter identification” legislation from the 2/3rds rule. In watching the proceedings this afternoon and evening, I was struck by the almost-absolute inability of Senators and the Presiding Officer to observe regular legislative procedure. The experience was similar to watching a high school middle school student council meeting. Having closely observed the Senate since the late 1980s, but not so much of late, I was very surprised.

Light blogging thru the holidays. Enjoy yourselves!

Not strictly legislative law today, but it’s close.

The Associated Press is quoting defense counsel for embattled Illinois Gov. Rod Blagojevich as saying that the governor will not appoint anyone to the U.S. Senate seat left vacant by President-elect Barack Obama. The governor’s spokesman neither confirmed nor denied that was the governor’s present intention. And the idea of taking the appointment from the governor and instead punting to a special election seems dead, since the Illinois Senate cancelled a vote on the idea and then adjourned.

The status for now is that the governor will not make an appointment, he has not yet been impeached, and there is no clear path to passing legislation for a special election. So how does Illinois get a new U.S. Senator by January?

Blago does the little side-step, temporarily.

The Illinois Constitution contains a mechanism to permit Blagojevich to temporarily step aside, permit the Lieutenant Governor to make the appointment, and then resume his office. “Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by notifying the Secretary of State and the Acting Governor.” Ill. Const. art. V, § 6(c).

This procedure has apparently never been used. See Calvin Bellamy, Presidential Disability: The Twenty-Fifth Amendment Still an Untried Tool, 9 B.U. Pub. Int. L.J. 373, 387, 396-397 (2000). But that doesn’t mean it couldn’t be tried, especially under these circumstances where his pre-appointment actions are alleged to be criminal. Obama has already resigned, and Illinois currently only has one vote in the U.S. Senate. Use of this constitutional “side-step” provision would permit the vacancy to be filled now, while removing the appearance of any impropriety in the appointment process. And since Illinois Lieut. Gov. Pat Quinn and Blagojevich don’t exactly see eye-to-eye now (if they ever did), it seems that Quinn’s appointment would not be seen as delivering on any promises allegedly extracted by Blagojevich from prospective candidates.

There is a third way to resolve this crisis, if the principal figure decides he wants to. Time will tell.

**Update below.**
The financial management of the Pedernales Electric Cooperative has been the focus of countless newspaper articles, legislative hearings and at least one lawsuit. The Austin American-Stateman reported today on the release of a 390-page report by an outside consultant that “offered a sweeping indictment . . . of the utility’s old regime and a critical portrayal of former General Manager Bennie Fuelberg while raising new questions about past actions by former executives and insiders.”

Senate Business & Commerce Chairman Troy Fraser, the cooperative’s chief legislative critic, told the paper that “[n]ow it’s time to put people under oath.”

Now, the paper didn’t say, and the Horseshoe Bay Republican didn’t elaborate on, who would be administering the oath or in what forum. Let’s assume, however, that the Senator meant that he would be calling those “former executives and insiders” to testify under oath before his committee. And although the paper didn’t say so, it earlier reported on the pending criminal investigation. So, let’s assume for a moment that a parade of coop executives and insiders are called before the committee next year.

Friendly advice to those called: You might want to show up, assert that what you are about to say will incriminate you, and tell all.

Why? Because Texas law provides that you cannot be “indicted or prosecuted for any transaction, matter, or thing about which the person truthfully testified or produced evidence.” Tex. Govt. Code § 301.025(c). The privilege is absolute; it applies regardless of whether the witness testified under subpena or voluntarily. Op. Tex. Atty. Gen. No. M-206 at 2 (1968). A witness must answer truthfully and responsively for the immunity to apply. Id.

This privilege is provided because “[a] witness called . . . by a legislative committee does not have a privilege to refuse to testify to a fact” by asserting the witness’s Constitutional rights against self-incrimination. See Tex. Govt. Code  § 301.025(a). The only way the Legislature can take away those rights is by providing the absolute immunity from criminal proceedings. Ferrantello v. State, 256 S.W.2d 587, 594  (Tex. Crim. App. 1952).

The statute makes sense because it permits adequate inquiry by the legislature by removing the self-incrimination obstacle. Consider allegations of prosecutorial misconduct, such as failing to refrain from prosecuting or threatening to prosecute a charge that a prosecutor knew was not supported by probable cause or other conduct involving dishonesty, fraud, deceit, or misrepresentation or otherwise constituting obstruction of justice. A witness must be able to testify fully and freely about the prosecutor’s actions without worrying that the prosecutor would attempt to imidate him with prosecution on trumped-up charges.

Perhaps this seems like letting a wrong-doer off easy, and that will surely be the result at least once, and might be the result here. However, the Legislature can often act much faster than the courts or even the Executive branch. As the branch closest to the people and directly responsible to them like none other (even considering our elective plural executive or our elective judiciary), the Legislature is in an unique position to remedy the situation at the coop. Since legislative changes to the coop’s governance and operations are  needed, the Legislature needs a full record of the misdeeds and wrongdoing in order to craft its enactments accordingly. The absolute immunity thus aids the Legislature in providing quick, effective relief to citizens. For that, the tradeoff is worth it.

UPDATE: A reader asks some good questions I will briefly answer. The first question is “Do you have to be called to testify to be covered by the privilege?” The answer is no, you do not have to be called by the committee; your presence may be voluntary and the privilege applies. The second question is “What if you just sign up as a witness,and start blabbing the truth after saying what you’re about to say possibly will incriminate you, do you get immunity?” Probably not, since the incriminating testimony needs to be in response to a question by a committee member that is relevant to the proceedings. For example, I don’t think immunity applies to a person confessing to a murder when appearing before House Ways & Means to discuss the franchise tax. The third question is “Has a legislator ever called a witness explicitly so that the witness can get immunity (in an effort to help that person avoid prosecution)?” While this is almost like trying to prove a negative, I do not have any notes where someone has made this allegation.

The Boston Globe notes GOP vice presidental nominee Sarah Palin’s response to a second grader’s question about the duties of job she seeks: “But also, they’re in charge of the United States Senate, so if they want to, they can really get in there with the senators and make a lot of good policy changes that will make life better for Brandon and his family and his classroom. And it’s a great job and I look forward to having that job.”

While technically the vice president could function as the Senate’s equivalent of the Speaker of the House and exert major influence over legislation and policymaking, senators would have to grant her that power. And historically, senators have refused to do it.

For example, the Vice President generally has no independent right to address the Senate from the chair absent unanimous consent or other indulgence of the Senate. Riddick, Senate Procedure at 1390, 1391-1392. It is true that the Vice President has made “long statements from the chair” in the past. Id. at 1391. An examination of those precedents show that the statements were made by Vice President Alben Barkley, who was held in high esteem by his colleagues since his days as Senate leader under Roosevelt. The seminal episode demonstrating this came during World War II when he famously resigned his post as leader because he could not support FDR’s veto of a tax bill. After he voted with his colleagues to override the veto, they re-elected him as leader. There may be other times when the Vice President spoke at length of the chair, but I cannot readily locate them in the Senate’s published precedents.

Unlike Tom Craddick, Palin could not attempt to control debate by refusing recognition because the Senate Rules require the Vice President to recognize the first Senator who asks the chair for recognition. U.S. Sen. R. XIX  § 1(a) (providing that “[w]hen a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him“) (emphasis added.)

Further, Palin cannot exert control over policymaking because she has no role in appointing the Senate committees that have the greatest control over shaping policy thru legislation — the Senate itself appoints committees and committee chairs by a resolution embodying the selections of the majority and minority party caucuses. See id. at R. XXIV § 1.

Finally, I would note that Lyndon Johnson, who went from powerful majority leader to figurehead vice president, asked his former colleagues to allow him to be the “permanent presiding officer” of the Senate Democratic Caucus in 1961 in an attempt to keep operating as a “super-leader.” The request was approved by less than unanimous consent after bitter debate showing that the senators didn’t like the idea and Johnson gave up trying to lead the Senate as vice president.

If Lyndon couldn’t do it, I doubt Sarah can.