The indictment pie served to Martha Shoffner over the past few days, and the impeachment talk that has followed, brings up an interesting wrinkle of Arkansas constitutional law: the two procedures for removal of a sitting constitutional officer.
Under Arkansas Constitution Art. 15, sec. 2, the House issues the indictment (i.e. impeaches) and the Senate, with the Chief Justice of the Arkansas Supreme Court presiding, conducts the trial. Under that scheme, any of the officers listed in Art. 15, sec. 1, may be removed by vote of a 2/3 majority of the Senate. This is the more familiar form to most people, as it resembles impeachment proceedings under the U.S. Constitution.
There is a second, less-familiar form of removal, however, that applies only to a few, specific officers. Under section 3 removal, “the Governor, upon the joint address of two-thirds of all the members elected to each House of the General Assembly, for good cause, may remove the Auditor, Treasurer, Secretary of State, Attorney General, Judges of the Supreme and Circuit Courts[,] and Prosecuting Attorneys.”
This second kind of removal has never been used, as far as I can determine. [Ed. note: I stand corrected on this part. See Update 2, below.] Since the adoption of the 1874 Constitution, this provision has only even been referenced in a few reported cases — Weems v. Anderson, 257 Ark. 376 (1974); Brewer v. State, 189 Ark. 492 (1934); Speer v. Wood, 128 Ark. 183 (1917). None of those cases attempts to apply Art. 15, sec. 3; they just mention it in passing as an additional form of removal from office.
Thankfully, the language of Art. 15, sec. 3, actually predates the 1874 Constitution. The original 1836 Arkansas Constitution used similar language in Art. 4, sec. 27, which allowed for the removal of certain judges. Interpreting that provision a few years later, the Supreme Court explained:
Should the judiciary corruptly assume powers not belonging to that department, or should they, through interested motive, and for wicked and nefarious purposes, refuse to exercise powers expressly enjoined by the Constitution, then the Judges are liable to an impeachment for malpractice or misdemeanor in office, and for reasonable cause, which does not furnish sufficient ground for impeachment, the Governor may, upon the joint address of two-thirds of both houses of the Legislature, remove them from office.
Hawkins v. Governor, 1 Ark. 570 (1839) (emphasis added).
This decision, and the language of the 1836 constitution, make it clear that the “good cause” required for this kind of removal need not rise to the level of cause that would allow the House to indict the officer in question. It only requires “reasonable cause,” and the Hawkins went on to define this as “any gross, flagrant, and palpable impropriety of official conduct, not amounting to corruption.” It would take an alarming level of delusion for someone to argue with a straight face that Ms. Shoffner’s actions have not met this standard.
But what about that “joint address” part?
Currently, the specific phrase only appears in the Constitution in Art. 15, sec. 3, and this language was mirrored in a 2009 act, codified as Arkansas Code Annotated sec. 15-3-104, that made the director of the Natural Resources and Economic Development Authority subject to removal from office upon the Governor’s “joint address of a majority of the membership of both houses.” The 1836 Constitution does not expound on the meaning either.
As I see it, there are two possible interpretations of the phrase, “upon the joint address” as it is used in this provision. The first is that the Governor may tell two-thirds of each chamber that he has good cause to remove one of the listed officers. Such an interpretation, however, would be illogical. After all, the “good cause” required under Art. 15, sec. 3, is lower than the level of cause needed for impeachment under sec. 2. It would hardly make sense to say that, where the evidence was insufficient to support an indictment in the House, the Governor could remove a duly elected officer merely by telling 2/3 of each chamber that he was going to, while an officer facing a higher level of evidence against him could only be removed after being charged by the House and getting a supermajority in the Senate.
The second interpretation, which I believe is the correct one, is that the Governor may remove one of the listed officers for good cause once he has been asked to do so by two-thirds of each chamber. I base this conclusion on a number of things:
1. This reading makes logical sense, as described above. Possible removal on a lower level of proof should contain a higher level of protection for the officer being removed.
2. While obsolete now, the word “address,” as used here, has a particular meaning: a request to the executive by the legislature to remove a judge for unfitness. This meaning is in perfect accord with the way “joint address” was used in the 1836 Constitution, and, while the drafters of the 1874 document appear to have expanded the applicability beyond judges, the specialized meaning of “address” as a noun in this context still makes the most sense. This interpretation is bolstered by the title of the section — Officers removable by Governor upon address — which would mean, correctly, “officers removable by Governor upon request by the legislature.”
3. This interpretation is most loyal to the syntax of the provision. The provision gives the Governor the ability to remove certain officers, but it does not require him to do so. (“May” is permissive; “shall” is discretionary.) Reading the adjective clause to impose an additional duty on the Governor before he can exercise a discretionary power is nonsensical, as it is hard to conceive of a scenario where a Governor would satisfy the “joint address” condition, then choose not to exercise his discretionary power to remove. On the other hand, saying that he may exercise the discretionary power if and when the legislature requests does not suffer from the same illogical construction.
Given Ms. Shoffner’s actions and the outcry against her staying in office, it would be wonderful to conclude that the Governor could remove her simply by telling 2/3 of the legislature that he was going to do so. Unfortunately, it seems exceedingly clear that such a reading is not what the section actually envisions.
UPDATE 2: Prof. Stephen Smith from the University of Arkansas pointed me in the direction of a law review article that he wrote in 1978, “Impeachment, Address, and the Removal of Judges in Arkansas: An Historical Perspective.” Arkansas Law Review, 32 (1978): 253-268. In the article, Prof. Smith noted:
On May 18, 1977, the Joint Interim Committee of the Arkansas General Assembly adopted Interim Resolution 77-1, providing for an investigation and determination of whether “good cause” existed to remove from office by the process of joint address Judge Means of the Seventh Judicial District. News reports called the investigation “unprecedented” and noted that the procedure of joint address [. . .] had never been used in the Document’s 103-year history. Counsel for the judge appeared before the committee and challenged the authority of the committee and the constitutionality of the joint address provision[.] The committee, on the advice of the Attorney General, determined that it was on firm constitutional ground and began the first legislative investigation of a judge under our present Arkansas Constitution.
Judge Means resigned his seat before the joint address process was completed, so that explains the lack of much discussion in the statutes or caselaw about the process. The joint address procedure has not been tried since 1977, and the last time prior to 1977 that it was employed was in the 1870s. All of which is to say, using the process against Ms. Shoffner would not be the first time it had been used, but it would be the first time in a long time.
UPDATE: Adding support to the interpretation I’ve offered here, a fellow law nerd passes along an article, written in 1914, that talks about removal of judges by legislative address as embodied in the 1790 Massachusetts constitution. From that article:
The course of procedure followed the usual method governing legislation. A petition was introduced for the removal of the judges. The petition was referred to a committee[, who] then sat and heard the evidence for and against removal, together with the arguments of counsel; after which in due time they reported to the legislature. This report, of course, had to be acted upon by both house and senate. If the committees favored removal they said so at the end of their reports; then they further recommended that a joint committee, consisting of two members from the senate and five from the house, be appointed to present the address to the governor. Full reasons for the removal were given in the report of the committee, and dissenters were allowed to file a report of their own. When the house and the senate adopted the report, the address was taken by this special committee to the governor. In the case of Judge Loring the address read as follows: “The two branches of the legislature in general court assembled respectfully request that your Excellency would be pleased by and with the advice and consent of the council to remove Edward Greeley Loring from the office of judge of the probate court for the County of Suffolk. ”
When the address went to the governor, therefore, it consisted merely of a request for removal of the judge, and did not state any reasons as did the report of the legislative committee. The governor, after the receipt of the address, presents the question of removal to the council, and if the council and the governor favor it the latter issues a writ of removal, sending a message to the legislature to inform them of the fact that removal has taken place.