Office of the Governor v. Select Committee of Inquiry
Office of the Governor v. Select Committee of Inquiry
Opinion of the Court
Opinion
The principal issue in this app
We reject the defendant’s jurisdictional claims. We further conclude that: (1) the governor is not categorically immune from the legal obligation to testify pursu
The defendant is a select committee of the House of Representatives, authorized originally on January 26, 2004, by virtue of House Resolution No. 702, and continued thereafter by various House actions, “to conduct a comprehensive investigation relating to misconduct by Governor John G. Rowland, and submit its findings and recommendations to the House of Representatives, including whether sufficient grounds exist for the House to exercise its power to impeach Governor John G. Rowland pursuant to Article Ninth of the state constitution.” On May 18, 2004, the defendant issued the subpoena in question in this case to the governor, ordering him to appear and testify before the defendant on June 8, 2004.
On June 8,2004, the plaintiff filed an application with the Chief Justice for certification and immediate appeal to this court pursuant to General Statutes § 52-265a, and requested an order setting an expedited briefing schedule for the appeal. In connection therewith, the plaintiff also filed an application for a stay of the subpoena until this court rendered a decision on the appeal. On June 10, 2004, the defendant filed its response in this court, specifically consenting to the plaintiffs request for an expedited briefing and hearing schedule and for a stay pending the appeal, “because the [defendant] believes that the public interest will best be served by this action being resolved expeditiously and without additional litigation . . . .” On June 10, 2004, the Chief Justice granted the plaintiffs application for an immediate and expedited appeal pursuant to § 52-265a. Following a scheduling hearing in this court on that date, the Chief Justice set the matter down for oral argument at 10 a.m., on June 18, 2004, and this court continued the stay of the subpoena until 5 p.m., on June 18, 2004. This
Certain facts and procedural history are undisputed. On January 26,2004, the state House of Representatives unanimously adopted House Resolution No. 702. That resolution authorized the creation of the defendant and ordered it “to conduct a comprehensive investigation relating to misconduct by Governor John G. Rowland, and submit its findings and recommendations to the House of Representatives, including whether sufficient grounds exist for the House to exercise its power to impeach Governor John G. Rowland pursuant to Article Ninth of the state constitution.” More specifically, under that resolution, the defendant was charged with the responsibility “to review and investigate the facts or circumstances relating to misconduct of Governor John G. Rowland; and . . . submit to the House of Representatives its findings and recommendations in the form of a final report, including, if it concludes such action is warranted, articles of impeachment describing the acts or omissions with which Governor John G. Rowland is charged.” Although the defendant initially was instructed to submit its final report “no later than April 14, 2004,” that date was later extended to June 30, 2004. The resolution also specified that the defendant had “all the powers of any committee of the General Assembly under [General Statutes § 2-46] ”
Following its inception, the defendant commenced an impeachment investigation pursuant to its authorizing resolution. It subpoenaed numerous witnesses for documents and deposed numerous persons. Other potential witnesses refused either to testify or to produce documents, invoking their constitutional privilege against self-incrimination. The defendant issued a subpoena duces tecum to the governor for numerous documents, to which neither the plaintiff nor the governor objected. Ultimately, the defendant issued the subpoena that is the subject of the present case, and the trial court proceedings and this appeal followed.
I
We first address several issues regarding questions of mootness and justiciability relating to this appeal and the trial court’s ruling, because they implicate both this court’s and the trial court’s subject matter jurisdiction. We conclude that the appeal is not moot, and that the matter is justiciable.
A
Mootness
The first question concerning the mootness of this appeal derives from the defendant’s obligation to report
Accordingly, on June 18, 2004, we heard and decided the present appeal. Because at that time the defendant was still in session, any question of mootness by operation of the passage of time, which might have occurred had this appeal been heard and decided at a later date, had been dispelled. The appeal, therefore, is not moot by virtue of the defendant’s time frame for reporting to the House of Representatives.
Also at the June 10 hearing, however, the defendant represented to us that, although it intended to invoke neither the capias nor the penal provisions of § 2-46 in the event that the governor refused to comply with the subpoena,
B
Justiciability
Having concluded that this appeal is not moot, we now consider the defendant’s various other claims regarding subject matter jurisdiction.
1
Judicial Review of the Legislature’s Impeachment Authority
The defendant claims that subject matter jurisdiction is lacking because, pursuant to our decision in Kinsella
We are mindful that this court’s decision in Kinsella represents, prior to today, the only time that we have had occasion to interpret the impeachment provisions of our state constitution; Conn. Const., art. IX, §§ 1 through 3; as they relate to our subject matter jurisdiction over controversies arising out of impeachment proceedings. Thus, the teachings of Kinsella inform our analysis of the issues presented in this appeal. In Kinsella v. Jaekle, supra, 192 Conn. 707-708, the council on probate judicial conduct, following a statutorily authorized investigation, issued its recommendation that the plaintiff, James H. Kinsella, the elected judge of the Hartford Probate Court, be censured publicly for his conduct in connection with certain matters over which he had presided. Despite the council’s decision not to recommend impeachment to the House of Repre
As the Kinsella committee began its work, Judge Kinsella commenced an action in the Superior Court, seeking to enjoin its activities on the ground that the proceedings violated his state and federal constitutional rights to due process of law. Id. In connection with that litigation, Judge Kinsella issued subpoenas to the defendants, two cochairmen of the Kinsella committee (cochairmen). Id. The cochairmen moved to quash the subpoenas, claiming that the legislature had been conferred with exclusive authority over impeachment proceedings and that the trial court lacked subject matter jurisdiction over the controversy and, further, that they enjoyed immunity from compulsory testimony pursuant to the speech or debate clause of the state constitution. Id., 708-709.
After the trial court rejected the cochairmen’s claims of jurisdictional infirmity, they appealed to this court and we consolidated that appeal with our consideration of certain other questions of law regarding the ongoing litigation that had been reserved for the advice of this court by the trial court. Id., 709-11. On appeal, this court concluded that the trial court had lacked subject matter jurisdiction over Judge Kinsella’s complaint because our state constitution had provided the legislature with exclusive jurisdiction over certain aspects of impeachment proceedings and Judge Kinsella’s challenge was directed toward legislative conduct within the exclusive jurisdiction of that body. Id., 711.
In reaching that decision, this court recognized two instances in which judicial review of controversies arising out of impeachment proceedings would be appropriate: (1) the legislative action was clearly outside the
Although we concluded that judicial review was unauthorized in Kinsella, the standard that we announced recognized that the legislative impeachment authority coexists with the principle of judicial review,
Turning to the present appeal, we now are called upon to consider a set of circumstances markedly different from the factual and legal focuses of Kinsella. Accordingly, although we reaffirm Kinsella within its analytical context, we recast, for application in the present case, the standard by which we consider the extent to which judicial review of impeachment proceedings against a sitting governor is authorized by our constitutional structure. More particularly, two factors compel our reformulation of the Kinsella standard: (1) the status of the party challenging the legislature’s exercise of its impeachment authority; and (2) the nature of the constitutional challenge being raised.
With regard to the first factor, our state constitution confers upon the legislature the impeachment authority over “[t]he governor, and all other executive and judicial officers . . . .” Conn. Const., art. IX, § 3. Although the legislative impeachment authority therefore extends by its plain terms to all executive and judicial officials, our constitution treats the exercise of the impeachment authority, as against the governor, uniquely. Specifically, the constitution of Connecticut, article fourth, § 18 (b), as amended by article twenty-
Under our constitutional scheme, the governor is the only official removed, albeit temporarily, upon the presentment of articles of impeachment by the House of Representatives and during the pendency of the Senate trial. For all other officials, removal from office takes place only after a trial in the Senate and conviction by that body. This distinction means that the initial impairment of the capacity to execute the duties of the office of governor takes place in the impeachment process one critical step before the point at which all other executive and judicial officials are impaired in the performance of their duties by means of removal from office, namely, at the point of formal accusation by the House, as opposed to the point of conviction by the Senate.
Although impairment does remain contingent upon presentment of articles of impeachment by the House of Representatives, the proximity and severity of this harm as compared to the potential impairment for all other executive and judicial officials suggests that, in order to be afforded a meaningful opportunity to chai
With regard to the second factor in Kinsella, we are mindful that, in that case, Judge Kinsella’s constitutional challenge to the legislative conduct was based on the procedural components of the due process clauses of the federal and state constitutions. As we indicated in that case, such a claim, by its very nature, could have passed from the realm of speculation to tangible harm only upon Judge Kinsella’s conviction in the Senate following a procedurally infirm trial, and we were unwilling to assume that either the House or the Senate would comport itself in that manner. Kinsella v. Jaekle, supra, 192 Conn. 731.
By contrast, the plaintiff in the present case has advanced a constitutional challenge based upon the separation of powers. We long have recognized that the separation of powers “is one of the fundamental principles of the American and Connecticut constitutional systems.” Stolberg v. Caldwell, 175 Conn. 586,
Unlike many other constitutional guarantees, violations of which require a showing of harm in order to entitle the victim of the violation to relief, a breach of the separation of powers principle is, contemporaneously, a constitutional violation and a tangible harm. In other words, action by one branch of government that violates the separation of powers is, in and of itself, a harm, in that the branch whose sphere of authority has been encroached upon has remained neither independent nor free from the risk of control, interference or intimidation by other branches. Id. In the present case, that violation occurred, if at all, when the defendant sought to require the governor to provide testimony, by its issuance of the subpoena in connection with its stated intent to recommend an article of impeachment or the drawing of adverse inferences, or both, upon the governor’s failure to comply therewith. It was at that time that, if the subpoena had been so issued in violation of the constitution, the plaintiffs independent function within the executive branch was compromised.
2
The Speech or Debate Clause of the State Constitution
The defendant next claims, pursuant to the speech or debate clause of our state constitution; Conn. Const., art. III, § 15; see footnote 5 of this opinion; that the constitutional validity of its issuance of the subpoena to the governor is immune from judicial review. We disagree with the defendant and conclude that our speech or debate clause does not immunize from judicial review a colorable constitutional claim, made in
Our appellate courts previously have not had occasion to consider the meaning of our state constitution’s speech or debate clause. We are not without guidance, however, as to the contours of that clause because this provision closely resembles the speech or debate clause contained in article one, § 6, of the constitution of the United States, which has been interpreted on several occasions by the federal courts, including the United States Supreme Court. We therefore seek guidance, as we often do in the interpretation of provisions of our state constitution, from the interpretation afforded the federal speech or debate clause by the federal courts. See, e.g., State v. Rizzo, 266 Conn. 171, 206, 833 A.2d 363 (2003); State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992).
The federal speech or debate clause finds its origins in a textually similar provision within the English Bill of Rights of 1689.
Accordingly, the federal speech or debate clause has been viewed as a grant of immunity upon Congress in order “to prevent intimidation by the executive and accountability before a possibly hostile judiciary.” United States v. Johnson, 383 U.S. 169, 181, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966). The clause operates to protect legislative independence, thereby buttressing the principle of the separation of powers and preserving the structural integrity of our constitutional government. See United States v. Brewster, 408 U.S. 501, 507, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972); United States v. Johnson, supra, 178.
In order to effectuate the important considerations underlying the federal speech or debate clause, the United States Supreme Court has voiced a willingness to interpret the immunity afforded by the clause generously, on the basis of a “practical rather than a strictly literal reading” of the provision. Hutchinson v. Proxmire, 443 U.S. 111, 124, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979). The clause has been constmed to provide “protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.” Eastland v. United States Servicemen’s Fund, supra, 421 U.S. 502-503. Moreover, the immunity conferred by the fed
Although, as the text of the provision demonstrates, the core protection afforded by the federal speech or debate clause regards speech or debate exchanged on the floor of the legislative body; Gravel v. United States, 408 U.S. 606, 625, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972) (“[t]he heart of the [c]lause is speech or debate in either House”); the clause has been extended to cover a wide variety of legislative conduct, for instance: to protect voting; Kilbourn v. Thompson, 103 U.S. 168, 202, 204, 26 L. Ed. 377 (1881); the circulation of information to other legislators; see Doe v. McMillan, 412 U.S. 306, 312, 93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973); and participation in the work of legislative committees. Gravel v. United States, supra, 624.
The federal speech or debate clause has not been construed, however, as a limitless conferral of absolute immunity. It has been held to immunize congressional aides; see id., 618 (congressional aides are protected by clause “insofar as [their] conduct . . . would be a protected legislative act if performed by the [m] ember himself’); but not to provide protection for legislative employees carrying out legislative orders, even if the clause would protect the congresspersons who had issued the directive. Powell v. McCormack, 395 U.S. 486, 505-506, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969); Kilbourn v. Thompson, supra, 103 U.S. 196-200.
In addition, the United States Supreme Court has drawn a distinction between “legislative” activities protected by the clause, and certain other “political” activities left unprotected by the clause. United States v. Brewster, supra, 408 U.S. 512 (concluding that activities related to functioning of legislative process are pro
With that backdrop in mind, just as in the case of justiciability under Kinsella, we must determine whether the plaintiff has raised a good faith, colorable claim that the defendant’s issuance of the subpoena was outside the sphere of legitimate legislative activity such that the defendant is not shielded from suit by the speech or debate clause. As we discuss more fully in part IIA of this opinion, an investigative power, encompassing the subpoenaing of persons and documents and the taking of testimony under oath, is a necessary and proper authority implicitly conferred by our state constitution in granting the legislature its jurisdiction over impeachments. The impeachment authority would mean little if it did not include the power to investigate. We conclude that the immunity conferred by the speech or debate clause, however, does not extend to a color-able claim, brought in good faith, that the legislature has conducted itself in violation of the principle of the separation of powers during the exercise of its impeachment authority.
We reach this conclusion for the following reasons. First, it is important to note that the speech or debate clause is itself part of article third of our constitution, governing the powers of the legislative branch. It cannot be viewed, therefore, as categorically trumping the separation of powers provision, which forms the very struc
Second, as discussed with relation to the federal speech or debate clause, the primary purpose of the speech or debate clause, whether on a federal or state constitutional level, is to protect legislative independence, thereby furthering the principle of the separation of powers. It would be paradoxical to allow the clause to be used in a manner that categorically forecloses judicial inquiry into whether the legislature itself violated the separation of powers. Permitting the shield to extend that far would allow the clause to swallow the very principle that it seeks to advance. The clause is designed to protect legislative independence, not to install legislative supremacy.
Third, this construction is in harmony with our decision in Kinsella, and with several decisions of the United States Supreme Court interpreting the federal speech or debate clause. These cases collectively recognize that, however broad the legislative prerogative regarding impeachments may be, there are limits, and judicial review must be available in instances in which the impeaching authority has been exceeded. As we stated in Kinsella, “[i]f the legislature [should] attempt to encroach upon constitutional restrictions, it will become the solemn duty of the court to declare such an attempt illegal and the act void.” (Internal quotation marks omitted.) Kinsella v. Jaekle, supra, 192 Conn. 727; see also United States v. Brewster, supra, 408 U.S. 515 (“[i]n no case has this [c]ourt ever treated the [c]lause as protecting all conduct relating to the legislative process” [emphasis in original]); Powell v. McCormack, supra, 395 U.S. 503 (“[legislative immunity does not, of course, bar all judicial review of legislative acts”).
We are not persuaded by the defendant’s reliance on Eastland v. United States Servicemen’s Fund, supra,
The United States Supreme Court concluded that, because the subpoena at issue fell within the sphere of legitimate legislative activity, as an investigative tool designed to elicit information related to a matter of congressional concern, the speech or debate clause required the dismissal of the complaint of the servicemen fund. Id., 505-507. In determining that the subpoena was a legitimate legislative activity, the court expressed that the “power to investigate and to do so through compulsory process plainly falls within [the] definition” of legitimate legislative activity because the “[issuance of subpoenas such as the one in question here has long been held to be a legitimate use by Congress of its power to investigate.” Id., 504. Responding to the servicemen fund’s claim that the subpoena would result in a violation of the first amendment, the court
Eastland is inapposite to the present case. Of course, Eastland and the present case share a similarity in that both involve the legislative issuance of a subpoena for investigative purposes; the claims raised, however, are poles apart. In Eastland, the gravamen of the servicemen fund’s claim was not that the legislative subpoena was an illegitimate exercise of the congressional investigatory power, but rather that the subpoena was improper because of its adverse collateral consequences on the constitutional rights of the servicemen fund’s members. Id., 503-504. In the present case, the plaintiffs claim is not that the subpoena should be quashed because its collateral constitutional consequences render it improper; rather, the plaintiff claims that the subpoena should be quashed because the legislative authority to investigate in aid of the impeachment power does not extend to the compulsion of testimony from the sitting chief executive and the subpoena, therefore, is outside the sphere of legitimate legislative activity. Furthermore, Eastland is distinguishable because it involved a claim raised by a private party, not, as
Because the speech or debate clause confers immunity from suit, at this stage we must, without considering the merits of the claim, view the plaintiffs challenge through the lens of whether, if successful, it would pierce the immunity conferred by that clause. Given that the plaintiffs claim raises a colorable claim that the conduct of the defendant was not within the sphere of legitimate legislative activity, we conclude that the speech or debate clause does not categorically bar the plaintiffs action, nor does that clause preclude our consideration of the plaintiffs claims on the merits.
3
Ripeness and the Political Question Doctrine
We address the defendant’s final two claims concerning subject matter jurisdiction together because they both raise issues of justiciability that are related analytically. The defendant contends that the plaintiffs challenge to the defendant’s issuance of the subpoena is nonjusticiable because the claim: (1) is not yet ripe for adjudication and, therefore, does not present the actual and existing controversy necessary for judicial resolution; and (2) presents a political question that this court is precluded from reviewing. We reject both claims.
We first set forth the fundamental principles that underlie justiciability. “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable.” State v. Nardini, 187 Conn. 109, 111, 445 A.2d 304 (1982). “Justiciability requires (1) that
a
Ripeness
The defendant contends that the plaintiffs challenge to the defendant’s issuance of the subpoena is premature unless and until the governor resists the subpoena and the defendant thereafter either sanctions him or otherwise attempts to force compliance, pursuant to General Statutes §§ 2-1c,
We have stated that the rationale behind the ripeness requirement is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . [and we therefore] must be satisfied that the case before [us] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” (Citation omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003). In this regard, we are mindful of the general rule that, in order for appellate jurisdiction to be appropriate, a party challenging the validity of a subpoena or discovery order ordinarily must have been found in contempt of the subpoena.
In the present case, however, the defendant represented, during oral argument in this court, that it had no intention of enforcing compliance with its subpoena pursuant to any of its statutorily available remedies. Nevertheless, the defendant has left open the possibility that the governor’s failure to comply with a valid subpoena may result in an article of impeachment, standing either on its own or in combination with other allegations of misconduct. In addition, in its brief to this court, the defendant has indicated that the governor’s refusal to comply with the defendant’s subpoena would entitle the defendant to draw an adverse inference against him, which could affect the defendant’s recommendations as to whether articles of impeachment are warranted.
Thus, as a functional matter, the plaintiffs current challenge is the only occasion on which the plaintiff could obtain meaningful review of the constitutional validity of the defendant’s issuance
b
Political Question
We next turn to the defendant’s claim that the plaintiffs constitutional challenge to the defendant’s issuance of the subpoena presents a nonjusticiable political question. The political question doctrine itself is based on the principle of separation of powers; Board of Education v. Naugatuck, 257 Conn. 409, 424, 778 A.2d 862 (2001); as well as the notion that the judiciary should not involve itself in matters that have been committed to the executive and legislative branches of government. “To conclude that an issue is within the political question doctrine is not an abdication of judicial responsibility; rather, it is a recognition that the tools with which a court can work, the data which it can fairly
In considering whether a particular subject matter presents a nonjusticiable political question, we have articulated a number of relevant factors, including: “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence. . . . Furthermore, simply because the case has a connection to the political sphere [is not] an independent basis for characterizing an issue as a political question . . . .” (Citations omitted; internal quotation marks omitted.) Id., 482-83. We cannot conclude that any of these factors regarding nonjusticiable political questions is inex
With regard to the first factor, we recognize that “[d]eciding whether a matter has in any measure been committed by the [constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this [c]ourt as ultimate interpreter of the [c]onstitution.” Baker v. Carr, 369 U.S. 186, 211, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Although the text of our state constitution confers impeachment authority on the legislature; Conn. Const., art. EX, §§ 1 through 4; as we recognized in Kinsella v. Jaekle, supra, 192 Conn. 723, that authority is not unbounded and legislative encroachment upon other constitutional principles may, in an appropriate case, be subject to judicial review. See id., 727 (“[t]he exclusive power of impeachment, however, does not carry with it the authority to ignore individual rights with impunity”). Accordingly, there has been no constitutional commitment of the impeachment authority to the legislature such that judicial review of the plaintiffs challenge is rendered inappropriate.
Second, there are discoverable and manageable judicial standards for determining the merits of the plaintiffs claim. The thrust of the plaintiffs claim is that the defendant, consistent with the principle of separation of powers, may not compel the testimony of the sitting chief executive on issues related to the performance of his official duties. There are no special impediments to our ascertainment and application of the standards by which to resolve this challenge; indeed, the matter raises questions of constitutional interpretation that, for more than two centuries, regularly have been reserved for the judiciary. See Wilson v. Security Ins. Group, 199 Conn. 618, 628, 509 A.2d 467 (1986) (“ It
Third, in deciding the merits of the plaintiff s constitutional claim, we would not be reviewing a policy determination of a clearly nonjudicial, discretionary nature. It is true that underlying this matter was a discretionary decision by the defendant to issue the subpoena to the governor. Our consideration of whether that decision comports with constitutional principles, however, does not require us to evaluate the wisdom of that decision, but only whether that decision exceeded constitutional limitations.
Fourth, consideration of the merits of the plaintiffs claim would not convey a lack of due respect to a coequal branch of government. “Our system of government requires that . . . courts on occasion interpret the [constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility.” Powell v. McCormack, supra, 395 U.S. 549. Rather, adjudicating a claim of violation of separation of powers is the ultimate expression of respect for equality among the branches of government.
Sixth, and finally, there is no potential embarrassment resulting from multifarious pronouncements by various governmental departments on one question. Indeed, competing positions regarding whether the defendant has the authority to issue a subpoena to the governor already have been made public, with coordinate branches of government advancing diametrically opposed opinions. Our resolution of this issue simply will operate to dispel the confusion that already has been created by these competing pronouncements.
We therefore reject the defendant’s contention, endorsed by the dissenting Justices, that the legitimacy of the defendant’s subpoena must be left wholly to the two competing political branches of government and the vagaries of the political process, thereby entirely escaping review by this coordinate branch of government. Accordingly, we conclude that the trial court had
II
A
Categorical Immunity
The plaintiffs first claim on the merits is that, by virtue of article second of our state constitution, as amended by article eighteen of the amendments; see footnote 4 of this opinion; which embodies the principle of the separation of powers, the governor is categorically immune from the obligation to testify, pursuant to the subpoena in the present case, before a legislative committee on matters concerning the performance of his official duties. More specifically, the plaintiff claims that: (1) historically speaking, there is a constitutionally based consensus that separation of powers principles bar a chief executive from such an obligation because a legislative subpoena for such testimony has never been heeded or enforced; (2) the constitutional prohibition against obligating the chief executive to testify before the legislature on matters relating to his official duties is particularly compelling in the context of impeachment proceedings; and (3) analogous federal court decisions confirm that a chief executive may not be obligated to testify on such matters.
It is useful to begin by stating what the plaintiff does not claim. It does not claim that the doctrine of executive privilege, which in general shields the chief governmental executive and certain other high executive officials from being obligated to testify regarding certain subjects, creates a categorical immunity. Nor does the plaintiff claim that the governor is immune from being subpoenaed by the defendant by virtue of any other recognized testimonial privilege. Thus, the plain
We conclude, contrary to the plaintiffs claim, that the separation of powers provision of our state constitution does not provide the governor with categorical immunity from being subpoenaed to testify before the defendant engaged in its investigative, fact-finding and advisory duties regarding possible impeachment of the governor. We base this conclusion on the nature of the defendant’s task, on the text of our constitution regarding an impeachment of a governor, on analogous federal case law, on the historical record regarding legislative powers in impeachment proceedings at the federal level, and on constitutional policy.
Under its authorizing resolution, the defendant had the serious and important task of investigating misconduct of the governor, submitting to the House its findings of fact and recommendations, and, if it recommended impeachment, specifying the conduct of the governor underlying such a recommendation. The gravity of this task counsels strongly in favor of the defendant’s ability to subpoena the governor, because it was the governor’s conduct and intentions that the defendant was charged with investigating; the governor was, therefore, a unique source of such information.
Furthermore, unlike the federal constitution, under which a president continues to exercise his full executive powers until and unless he is convicted by the Senate, under article fourth, § 18 (b), of the state constitution, as amended by article twenty-two of the amendments, “[i]n case of the impeachment of the governor . . . the lieutenant-governor shall exercise the powers and authority and perform the duties appertaining to the office of governor until . . . the governor ... is
In addition, the defendant’s ability to obtain evidence from the governor precisely because it is conducting an investigation into his conduct is in furtherance of the critical constitutional check, expressed in the separation of powers provision, on executive authority necessary to preserve the constitution’s careful balance of powers, not in derogation of it. As this court recognized in Kinsella v. Jaekle, supra, 192 Conn. 718, the very puipose of impeachment is to curb abuses of power by elected officials by granting the legislature the power
Although there is no case precisely on point in which a legislative impeachment committee, like the defendant in the present case, has sought to secure the testimony of a governor by way of a subpoena, the United States Supreme Court uniformly has rejected a sitting president’s claim to categorical immunity, on the basis of the separation of powers, in similar contexts. In United States v. Nixon, 418 U.S. 683, 706, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the court rejected President Richard M. Nixon’s claim that the separation of powers categorically barred a subpoena duces tecum issued by the special prosecutor for production of the famous “Watergate tapes.” The court stated that “the doctrine of the separation of powers . . . without more, [cannot] sustain an absolute, unqualified [presidential privilege of immunity from judicial process under all circumstances.” Id. The court’s rejection of a sweeping claim of executive privilege because it would place a serious impediment on a coordinate branch of government was reaffirmed in Nixon v. Administrator of General Services, 433 U.S. 425, 441, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977), wherein the court held that the Presidential Recordings and Materials Preservation Act’s reg
The weight of the historical record also supports the ability of the defendant to issue this subpoena to the governor. Various statements of United States presidents, from President George Washington through President Ulysses S. Grant have, in general terms, affirmed the right of the legislature, acting pursuant to its
Similarly, President Washington, in rejecting the House’s request for papers concerning the negotiation of the Jay Treaty, specifically noted that the House’s right to the documents would have been different if
In addition to these comments expressed on behalf of the executive branch, the legislative branch has deep historical roots in its records regarding its power to gather all of the necessary evidence in order to make an informed and appropriate evaluation in the exercise of the impeachment process. It was discussed as early as 1796, when it was stated on the floor of the House that “the power of impeachment ‘certainly implie[s] a right to inspect every paper and transaction in any department, otherwise [it] could never be exercised with any effect.’ ” J. Labovitz, supra, p. 211, citing 4 Annals of Cong., supra, p. 601. This sentiment was echoed in 1843 when a House committee, which was engaged in a dispute with President John Tyler about the production of documents that ultimately were produced, similarly explained: “The House of Representatives has the sole power of impeachment. The President himself, in the discharge of his most independent func
As we have suggested, serious policy concerns also support the validity of the subpoena in the present case. The compelling governmental need for all of the relevant information, not just from third parties but from the governor whose conduct and intentions are under scrutiny, so that a decision by the defendant is based on as much information as it can reasonably gather, supports the right of the defendant to compel the testimony of the governor. The categorical immunity proposed by the plaintiff would place a serious impediment on the legislative branch’s ability to discharge effectively its own core constitutional duty to exercise
We recognize that the impeachment power is a strong legislative weapon and that, if left unchecked, the legislature could abuse its authority. The existence, however, of constitutional safeguards—a division of impeachment power between the House and the Senate, and the two-thirds supermajority vote requirement for conviction in the Senate—provide sufficient protection against such abuse. Nixon v. United States, 506 U.S. 224, 236, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993). Our state constitution provides the same structural protection. Conn. Const., art. IX, § 2; see Kinsella v. Jaekle, supra, 192 Conn. 720. In addition, under our law, as we have explained, there is some recoruse to the courts for judicial protection from constitutional abuse by the legislature.
In sum, it would be constitutionally perverse to conclude that it would be a violation of the separation of powers doctrine for the legislature to discharge its constitutional responsibilities. Our state’s impeachment process is reserved for the legislature to demand an accounting from the governor regarding alleged abuses of his power. The rejection by the framers of our constitution of the British practice of insulating the king from impeachment was to ensure that the chief executive would not be above the law. See Kinsella v. Jaekle, supra, 192 Conn. 718-19. Allowing the chief executive officer to withhold information from the defendant on the basis of the separation of powers doctrine undercuts that goal by hindering the only constitutionally authorized process by which the legislature may hold him accountable for his alleged misconduct. See M. Gerhardt, supra, p. 115.
The plaintiff contends, nonetheless, that, on the basis of federal history, there is a constitutionally based con
It is true that our constitutional separation of powers provision shares the history and purposes of its federal constitutional counterpart. “For reasons indigenous to the history and development of this state, and this country, and for the same, self-evident purposes for which the concept of separation of powers was originally implemented, the Connecticut constitution, which, less than a decade ago, was redrafted and ratified by the people in the context of three hundred years of self-government, continued the separate magistracies of a popularly elected executive and legislature and an independent judiciary. The constitution defines and circumscribes the powers of these three magistracies of government. As Chief Justice Marshall observed in 1803: ‘To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?’ Marbury v. Madison, [supra, 5 U.S. 176].” Szarwak v. Warden, 167 Conn. 10, 45-46, 355 A.2d 49 (1974).
We also acknowledge, as the plaintiff suggests, that “[d]eeply embedded traditional ways of conducting government cannot supplant the [constitution or legislation, but they [may] give meaning to the words of a text or supply them.” Youngstown v. Sawyer, 343 U.S. 579, 610, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) (Frankfurter, J., concurring). Thus, the plaintiff maintains, a federal history of Congressional “acquiescence to assertions of executive privilege [in response to Congressional demands for information regarding the performance by the president of his official duties] strongly suggests that separation of powers principles encompass the
The plaintiffs historical support for this proposition consists entirely, however, of various internal letters and memoranda from the office of the United States Attorney General, and certain presidential refusals, in the nineteenth and twentieth centuries, to comply with Congressional resolutions and inquiries demanding information regarding the performance of presidential duties.
We now turn to the plaintiffs second argument, namely, that the constitutional prohibition against obligating the chief executive to testify before the legislature on matters relating to his official duties is particularly compelling in the context of impeachment proceedings. In this regard, the plaintiff contends that the importance of interpreting the separation of powers principles so as to bar a testimonial subpoena to the chief executive “is heightened in the context of an impeachment investigation. . . . [Bjecause the separation of powers machinery is placed under great strain in such circumstances, the delicate balance between the legislative and executive branch is uniquely vulnerable to severe and irreparable harm . . . [and carries a] potential for distraction and intimidation [that] not only threatens the health of the executive branch, but also offers opportunities for abuse by the legislature of its extraordinary control over the chief executive’s priorities and powers.” (Citations omitted.) Thus, the plaintiff claims, impeachment is so threatening to the executive that the separation of powers doctrine requires the erection of “high[er] walls” between the legislative and executive branches than would ordinarily be the case. In this connection, the plaintiff relies on the history that, in the impeachment proceedings against both President Nixon and President Clinton, Congress did not issue a subpoena for their testimony, and that in the three gubernatorial impeachment proceedings in this centuiy, no such subpoenas were issued.
To the contrary, we think that, precisely because the present case is related to the impeachment process, the legislature is acting at the height of its powers and the plaintiffs claim to categorical immunity is at its nadir. Thus, we believe that alleged misconduct of a chief executive that is sufficient to warrant an impeachment inquiry should not, as the plaintiffs contention suggests, present a reason for exempting him from accountability; rather, it should have the opposite effect. “[T]he impeachment power necessarily implies a congressional power to inquire about presidential wrongdoing, as well as a corresponding obligation on the part of the president to respond to such inquiries.” F. Bowman III & S. Sepinuck, “ ‘High Crimes & Misdemeanors’: Defining the Constitutional Limits on Presidential Impeachment,” 72 S. Cal. L. Rev. 1517, 1539 (1999); see M. Gerhardt, “The Constitutional Limits to Impeachment and its Alternatives,” 68 Tex. L. Rev. 1, 93 (1989) (“the [president is not above the . . . law, there is no sound reason for exempting him from accountability, especially in the impeachment process”); A. Cox, “Executive Privilege,” 122 Penn. L. Rev. 1383, 1435 (1974) (“[hjistory gives no affirmative support to presidential claims of privilege to withhold information from the House of Representatives while it is considering impeachment”).
In this regard, there are two significant differences between our state constitution and the federal constitution. The first is that, unlike the federal constitution, which lodges all executive power in the president,
The second difference from the federal constitution for purposes of the present case is even more significant. As we already have noted, our constitution requires an impeached governor to step down temporarily until the outcome of the impeachment trial in the Senate. Furthermore, as we have also noted, it is the defendant in this case that is charged with the grave responsibility of finding the facts and making recommendations regarding the impeachable misconduct, if any, of the governor. These provisions convince us that the defendant plays, not a subordinate or preliminary role in the impeachment process, as the plaintiffs arguments suggest, but a vitally important role. Furthermore, the defendant’s role in that process cannot be separated from that of the House itself, as the plaintiffs argument also suggests. It is, as we have indicated, an integral part of the process by which the House of Representatives decides whether to impeach.
Finally, we reject the plaintiffs contention that the governor is categorically immune from this subpoena, on the basis of federal court decisions that, in the plaintiffs view, strongly suggest that a chief executive may not be obligated to testify regarding his official duties. See, e.g., United States v. Nixon, supra, 418 U.S. 713; Nixon v. Fitzgerald, supra, 457 U.S. 731; Clinton v. Jones, supra, 520 U.S. 681. These cases do not support the plaintiffs claim. First, the portion of the decision in United States v. Nixon, supra, 713, on which the
B
Other Claims Based Upon the Separation of Powers
The plaintiffs final claim is that, even if the governor is not categorically immune from compelled testimony before a legislative impeachment committee, the sub
We turn first to the plaintiffs claim that the subpoena violates the separation of powers doctrine because the defendant has not demonstrated that the issuance of the subpoena was an absolute necessity. Specifically, the plaintiff claims that, by issuing the subpoena at an early stage of its investigation, the defendant has “demonstrate [d] an utter lack of regard for the deference and respect due a coordinate branch of government.” The plaintiff contends that a legislative subpoena of a sitting governor comports with the separation of powers doctrine, if at all, only if it complies with the following four conditions: (1) it is issued as a “last resort”; (2) “the most compelling demonstration ha[s] been made that specific information [is] required”; (3) “such information [is] absolutely indispensable to the legislature’s work”; and (4) “all other efforts to obtain [the] information through less disruptive means [have] failed.” The plaintiff further contends that the defendant not only has failed to comply with that stringent standard, but rather “has pursued exactly the opposite course: [it] has summoned the [g]ovemor to testify
We reject the plaintiffs primary contention essentially for the reasons that we already have rejected the plaintiffs claim of categorical immunity from compliance with the subpoena issued by the defendant. See part II A of this opinion. As we have explained, the defendant’s ability to obtain evidence from the governor is in furtherance of the separation of powers principle, not in derogation of it, because the impeachment authority of the legislature is the ultimate constitutional check on the abuse of executive authority—a check necessary to preserve the delicate balance of powers that represents the core principle underlying the separation of powers doctrine. Moreover, the defendant’s investigative, fact-finding and recommending responsibilities are unusually important under our constitutional impeachment provisions in view of the fact that, if the House of Representatives accepts an impeachment recommendation by the defendant, the power of the executive is transferred immediately from the governor to the lieutenant governor pending the governor’s impeachment trial in the Senate. In light of the defendant’s significant role in the impeachment process, its need to obtain as much relevant and reliable evidence as possible is essential if it is to discharge effectively its duties and ultimately make an informed recommendation to the House. Almost always, if not invariably, the governor, whose conduct is the subject of the defendant’s inquiry, will be an invaluable source of information; indeed, he may be the only repository of firsthand
Given these compelling considerations, we perceive no legitimate reason why the separation of powers provision mandates that the defendant be required to put off any attempt to obtain the governor’s testimony until it can demonstrate that it has exhausted all other possible avenues of investigation. On the contrary, the critical role that the defendant plays in our constitutional impeachment scheme militates in the opposite direction.
We next turn to the plaintiffs claim that the subpoena violates the separation of powers provision because the defendant has neither provided the governor with adequate notice of the scope of its inquiry nor articulated the standard for impeachment and the relevant burden of proof against which it will measure the evidence. In this regard, the plaintiff contends that, “[a]s a result of the [defendant’s] refusal to provide advance notice of the matters on which he would testify, the [g]ovemor, if compelled to appear, would be forced
We also reject these arguments for the same reasons that we have rejected them in the context of the plaintiffs categorical immunity claim. As the United States Supreme Court observed in Clinton v. Jones, supra, 520 U.S. 702-703: “[The] petitioner errs by presuming that interactions between the [j]udicial [b]ranch and the [e]xecutive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the [e]xecutive’s ability to perform its constitutionally mandated functions. ... As Madison explained, separation of powers does not mean that the branches ‘ought to have no partial agency in, or no controul over the acts of each other.’ The fact that a federal court’s exercise of its traditional [a]rticle III jurisdiction may significantly burden the time and attention of the [c]hief [e]xecutive is not sufficient to establish a violation of the [constitution.” (Citations omitted.) Similarly, although there is nothing about the subpoena in the present case that strikes us as particularly burdensome, the fact that the legislature’s exercise of its core constitutional power to impeach may impose certain burdens on the time and attention of the governor simply is insufficient to establish a violation of the separation of powers.
The judgment is affirmed.
This opinion is the result of a collaborative effort by the members of the majority, namely, Justices Borden, Norcott, Katz, Palmer and Vertefeuille. Hence, it is issued as an opinion signed by all of those members of the court.
This appeal was argued on June 18,2004, pursuant to an expedited briefing and argument schedule. Following oral argument, this court rendered its judgment on that date in the form of a truncated opinion, affirming the judgment of the trial court, and stating that a full opinion would follow in due course. Office of the Governor v. Select Committee of Inquiry, 269 Conn. 850, 853, 850 A.2d 181 (2004). Similarly, the two dissenting justices filed their dissent in equally truncated form, with a similar statement that
We note that, on June 21, 2004, Governor John G. Rowland publicly announced that he would resign the office of governor of the state of Connecticut, effective July 1,2004, and that he has since done so. In addition, the defendant has discontinued its investigation into the matter. As we explain later in this opinion, however, because this opinion elaborates on the reasons underlying our judgment rendered on June 18,2004, and because the case was not moot as of that date, it is appropriate to issue this opinion notwithstanding those intervening events.
Following certification by the Chief Justice, the plaintiff filed this expedited, public interest appeal, pursuant to General Statutes § 52-265a, from the judgment of the trial court denying its motion to quash a subpoena and for injunctive relief.
General Statutes § 52-265a provides: “(a) Notwithstanding the provisions of sections 52-264 and 52-265, any party to an action who is aggrieved by an order or decision of the Superior Court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the Supreme Court within two weeks from the date of the issuance of the order or decision. The appeal shall state the question of law on which it is based.
“(b) The Chief Justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.
“(c) Upon certification by the Chief Justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the Chief Justice, who shall thereupon call a special session of the Supreme Court for the purpose of an immediate hearing upon the appeal.
“(d) The Chief Justice may make orders to expedite such appeals, including orders specifying the manner in which the record on appeal may be prepared.”
The plaintiff in the present case is the office of the governor of Connecticut, and not the governor himself. The governor did not bring or join the trial court proceedings or participate in this appeal. Nonetheless, we recognize that our decision in the present case affects the governor in his official capacity, in that, if the plaintiff were to prevail, the governor would not be required to comply with the subpoena and, if the defendant were to prevail, the governor would be required to comply therewith.
The constitution of Connecticut, article second, as amended by article eighteen of the amendments, provides in relevant part: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. ...”
The constitution of Connecticut, article third, § 15, provides: “The senators and representatives shall, in all cases of civil process, be privileged from arrest, during any session of the general assembly, and for four days before the commencement and after the termination of any session thereof. And for any speech or debate in either house, they shall not be questioned in any other place.”
As we explain later in this opinion, the defendant has stated that it has no intention to seek to compel the governor’s testimony by way of a capias or contempt findings. Therefore, although the parties have framed the issue in terms of whether the governor is immune from compelled testimony, we think that the more appropriate question is whether the governor is categorically immune from the legal obligation to testily.
For purposes of this case, we draw the following distinction between compelled testimony and the legal obligation to testify. We view compelled testimony as testimony given because a refusal to do so may be followed by a capias, arrest and a citation for contempt, which may involve, at one stage or another, physical restraint and imprisonment. The defendant has eschewed any such consequences. The legal obligation to testily, by contrast, means just that; the governor is not immune by virtue of the separation of powers provision from complying with the subpoena by appearing and testifying, irrespective of the fact that a refusal to do so would be followed only by an article of impeachment or the drawing of adverse inferences, or both. Thus, the principle that emerges from this case is that the governor is legally obligated to comply with the subpoena even in the absence of the traditional enforcement mechanisms therefor.
Although the subpoena originally specified June 7, 2004, as the date for the governor’s testimony, that date subsequently was changed to June 8, 2004, at the request of the governor due to a scheduling conflict.
General Statutes § 2-46 provides: “(a) The president of the Senate, the speaker of the House of Representatives, or a chairman of the whole, or of any committee of either house, of the General Assembly, or either of the chairmen of the Legislative Program Review and Investigations Committee shall have the power to compel the attendance and testimony of witnesses by subpoena and capias issued by any of them, require the production of any necessary books, papers or other documents and administer oaths to witnesses in any case under their examination including any program review or investigation, as defined in section 2-53d. Any person, summoned as a
“(b) Any individual who is subpoenaed to appear and testify before a committee of the General Assembly or the Legislative Program Review and Investigations Committee shall have the right to review a copy of the transcript of his or her testimony and a reasonable amount of time to
Section 2-46 provides for a capias, and for fines and imprisonment in the event of specified failures to comply with a subpoena issued pursuant to it. See footnote 8 of this opinion for the text of § 2-46.
In its supplemental brief filed with this court, the plaintiff contends that we should not reach the defendant’s jurisdictional claims because they have not been preserved properly for appeal. This claim of waiver lacks merit. As we consistently have stated, the subject matter jurisdiction of a court addresses the fundamental competency of that court to operate as adjudicator, and such claims therefore may be made by any party at any time, or may be raised bythe court suasponte. ABC, LLC v. State Ethics Commission, 264 Conn. 812, 822-23, 826 A.2d 1077 (2003).
The constitution of Connecticut, article ninth, § 1, provides: “The house of representatives shall have the sole power of impeaching.”
The constitution of Connecticut, article ninth, § 2, provides: “All impeachments shall be tried by the senate. When sitting for that purpose, they shall be on oath or affirmation. No person shall be convicted without the concurrence of at least two-thirds of the members present. When the governor is impeached, the chief justice shall preside.”
The constitution of Connecticut, article ninth, § 3, provides in relevant part: “The governor, and all other executive and judicial officers, shall be liable to impeachment; but judgments in such cases shall not extend further
“In 1689, the English Bill of Rights declared in unequivocal language: That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” (Internal quotation marks omitted.) Tenney v. Brandhove, 341 U.S. 367, 372, 71 S. Ct. 783, 95 L. Ed. 1019 (1951), quoting 1 Wm. & Mary, Sess. 2, c. II. Prior to the adoption of the federal constitution, Maryland, Massachusetts and New Hampshire, had already adopted a similar privilege within their own state constitutions. Tenney v. Brandhove, supra, 373-74.
The defendant also relies on the decision of the Superior Court in Ellef v. Select Committee of Inquiry, Superior Court, judicial district of Hartford, Docket Nos. 04-0832432, 04-0832411, 040832524 (April 8, 2004) (36 Conn. L. Rptr. 841). That case involved a challenge to subpoenas issued to private parties, and did not involve the separation of powers doctrine. Thus, neither its factual context nor its reasoning informs our resolution of the present case.
We already have decided, in part I A of this opinion, that the case is not moot.
General Statutes § 2-1c provides: “Either house of the General Assembly may determine by majority vote that a person is guilty of contempt of the General Assembly, after a hearing before an appropriate committee appointed by the presiding officer at which the person shall be entitled to give evidence and be represented by counsel. Said house may refer such matter to the Chief State’s Attorney. Contempt of the General Assembly shall be punishable by a fine of not more than one hundred dollars or imprisonment for not more than six months or both.”
See footnote 8 of this opinion for the text of § 2-46 (a).
General Statutes § 2-48 provides: “Whenever a witness summoned fails to testily and the fact is reported to either house, the president of the Senate or the speaker of the House, as the case may be, shall certify to the fact
We note our agreement with the plaintiff that, under the peculiar circumstances of the present case, it would be unseemly and inappropriate to require that the governor resist the subpoena, thereby risking a finding of contempt, merely in order to trigger the procedural mechanism to vindicate the plaintiffs constitutional claim on appeal. By the same token, it would be undesirable to place the defendant in the awkward position of having to commence contempt proceedings against the head of a coordinate branch of government. See United States v. Nixon, 418 U.S. 683, 691-92, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) (concluding that trial court’s denial of president’s motion to quash subpoena constituted final judgment for purpose of appellate review, despite president not having been found in contempt of subpoena and traditional rule that finding of contempt was prerequisite for appellate jurisdiction, because to require president to disobey court order to trigger procedural mechanism for review would be unseemly and to force federal judge to find president in contempt would be inappropriate). Further, to require a finding of contempt against the governor would itself raise serious separation of powers questions, namely, whether the legislature has the authority to request that a court hold a sitting governor in contempt.
Contrary t,o the implicit suggestion of the Chief Justice in his dissent, we are not deciding whether the failure to comply can be the basis of an article of impeachment. That would indeed be a nonjusticiable, political question. We are only deciding whether the governor is categorically immune from compliance with the subpoena.
In this connection, we reject the suggestion in the Chief Justice’s dissenting opinion that it is not clear “why ... a question that . . . would be nonjusticiable if raised after impeachment proceedings have commenced is justiciable if raised beforehand.” (Emphasis in original.) It is the threat
Indeed, as we mentioned in the discussion in part IB 3 a of this opinion regarding ripeness, if the governor were required to wait until an article of impeachment was issued against him, and the governor challenged that issuance in court, then the court would be required to evaluate a discretionary function of the House, namely, the substantive grounds on which the article of impeachment was based. Such a scenario undoubtedly would pose issues of nonjusticiability.
Justice Zarella, in his dissenting opinion, concludes that judicial consideration of the plaintiffs claims is barred by the political question doctrine. Suffice it to say, however, that our disagreement with Justice Zarella is based on the fact that the primarily federal authorities upon which he relies do not take into account the holding in Kinsella v. Jaekle, supra, 192 Conn. 721, recognizing the nature of impeachment as political, but permitting, under our state constitution, judicial intervention in limited circumstances. Furthermore, those federal authorities do not contemplate the unique situation presented by our state constitution, namely, that the governor shall cease to perform his duties once the articles of impeachment are presented by the House. Thus, in contrast to those federal authorities, the complete bar that would be effected by the political question doctrine would be inconsistent with our state constitutional scheme governing the impeachment process, which strikes a balance between the need for judicial review and respect for the political process.
We disagree with the suggestion in the dissenting opinion of Justice Zarella that the political pressure to testify would be sufficient to elicit the requisite testimony from a governor, without the need for a subpoena or judicial intervention validating the subpoena. Although that may or may not be true in some instances, it clearly was not in the present case, as the historical record indicates. See footnote 1 of this opinion.
We disagree, therefore, with Justice Zarella’s contention in his dissenting opinion, which is based entirely on nonimpeachment authorities, that, because courts traditionally have balanced “the legislature’s need for the information against the intrusion on the executive branch that compliance with the subpoena will occasion,” the court therefore would become entangled with the impeachment process without discoverable judicial standards. As we explain in this opinion, the basis for the legislature’s need for the governor’s testimony is clear, the legislative authority in the impeachment process is at its height, while the plaintiffs claims of immunity are at their nadir, and the judiciary, by declining to engage in such a balancing process, is in no way becoming so entangled.
President Polk, obviously recognizing the delicate nature of certain executive information, also remarked that the House would be obliged to “adopt all wise precautions to prevent the exposure of all such matters the publication of which might injuriously affect the public interest, except so far as this might be necessary to accomplish great ends of public interest” 4 J. Richardson, supra, pp. 434-35.
For instance, the plaintiff refers to a 1999 letter from former Attorney General Janet Reno to President Clinton, and a 1971 letter from then Assistant Attorney General William H. Rehnquist to certain White House staff stating, for all intents and purposes, that the president and his immediate advisors are immune from testimonial compulsion. The plaintiff also refers to refusals by President Jackson, President James Buchanan, and President Grant to provide certain information in response to legislative requests. Finally, the plaintiff points out that, in 1953, the House Committee on UnAmerican Activities commanded President Harry S. Truman to testify before it. President Truman refused to comply and stated, in a subsequent radio address, ‘‘[a] Congressional committee may not compel the attendance of the President of the United States, while he is in office, to inquire into matters pertaining to the performance of his official duties.”
In a different vein, the plaintiff also argues that on the rare occasions that presidents have testified before Congress, they have done so voluntarily, and that the legislature, even in situations in which presidential testimony would have been useful, often has declined to seek the testimony of certain presidents. We fail to see, however, how the voluntary testimony of any executive, or any legislative declinations on the subject, shed any light on this issue. The question is not whether chief executives have testified in the past, or whether the legislature has been persistent in seeking that testimony, but whether the legislature, in the context of its constitutional power of impeachment, may obligate the chief executive to testify.
These throe proceedings took place in Oklahoma in 1994, in Arizona in 1988, and in Alaska in 1985.
Article two, § 1, of the constitution of the United States provides in relevant part: “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows . . . .”
Article fourth, § 5, of the constitution of Connecticut provides: “The supreme executive power of the state shall be vested in the governor. No person who is not an elector of the state, and who has not arrived at the age of thirty years, shall be eligible.”
We note that the defendant does not cast this claim in terms of a due process violation; compare Kinsella v. Jaelde, supra, 192 Conn. 728 (“plaintiff claims that article ninth of the Connecticut constitution violates both the fourteenth amendment to the United States constitution and article first, §§ 8, 9, and 10 of the Connecticut constitution by its failure to establish standards for impeachable conduct and by its lack of due process guarantees”); and confirmed in oral argument before this court that its claim is based solely on the separation of powers doctrine.
Contrary to the plaintiffs assertion, United States v. Nixon, supra, 418 U.S. 702, does not support the balancing test that the plaintiff asserts must be performed before a governor may be called to testify before an impeachment panel. The plaintiff claims that, in Nixon, the United States Supreme Court “conclud[ed] that the [sjpecial [pjrosecutor seeking production of documents from the [pjresident had ‘made a sufficient showing to justify’ [the subpoena] in part because ‘[tjhe subpoenaed materials [were] not available from any other source.’ ” Although it is true that the Supreme Court came to that conclusion in Nixon, the plaintiff quotes that passage in isolation and ignores the legal and procedural underpinnings of the [c]ourt’s ruling. In affirming the [DJistrict [CJourt’s order requiring President Nixon to comply with the subpoena duces tecum, the Supreme Court concluded that “the [sjpecial [p]rosecutor ha[d] made a sufficient showing to justify a subpoena for production before trial.” (Emphasis in original.) United States v. Nixon, supra, 702. Contrary to the plaintiffs assertion, the “showing” referred to by the court was not rooted in separation of powers concerns at all, but, rather, was based on the requirements of rule 17 (c) of the Federal Rules of Criminal Procedure pertaining to requests for pretrial production of documents generally.
Of course, if, for example, the defendant were to require the governor to appear before it for a patently unreasonable length of time or to answer questions of an utterly offensive and irrelevant nature, the governor might
As we have noted, certain potential witnesses have invoked their fifth amendment privilege against self-incrimination and, therefore, did not provide testimony. The identity of those witnesses also is a matter of record.
Dissenting Opinion
dissenting. I agree with Justice Zarella’s mootness analysis, in which he concludes that the sole issue before this court is the validity of a legislative subpoena to the governor enforceable only by the threat of impeachment. I also agree that that issue is nonjusticiable and, accordingly, that the complaint of the plaintiff, the office of the governor of Connecticut, should be dismissed. I write separately to emphasize certain points.
The majority states that “if the governor were required to wait until an article of impeachment was
The defendant, the select committee of inquiry to recommend whether sufficient grounds exist for the House of Representatives to impeach Governor John G. Rowland pursuant to article ninth of the state constitution, cites several cases for the proposition that the chief executive is not immune from the legal obligation to respond to a legislative subpoena if the information sought outweighs any competing interest in executive independence or confidentiality. See Clinton v. Jones, 520 U.S. 681, 707-708, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997) (president’s deposition testimony required to avoid prejudice to plaintiff that might result from delaying trial of civil claim against president); United States v. Nixon, 418 U.S. 683, 687, 712-13, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) (when special prosecutor sought information from president in connection with ongoing criminal case against seven named individuals, fundamental demands of due process of law in fair administration of criminal justice outweighed president’s generalized interest in confidentiality); Nixon v. Sirica, 487 F.2d 700, 716-17 (D.C. Cir. 1973) (grand
In contrast, in the present case, the majority’s determination that the governor is obligated to testify has no attendant practical consequences.
The majority states that, “[s]imply because the court would not be justified in substantively reviewing an article of impeachment based on [the governor’s] failure to comply does not mean . . . that we also must deprive both the plaintiff and, indirectly, the people who elected the governor, from mounting a colorable constitutional challenge that is rendered viable because of the threat of such an article.” The majority also states repeatedly that the question that it is deciding is whether the governor is “categorically immune from compliance with the subpoena,” not whether the governor may be compelled to testify. In my view, however, the plaintiffs constitutional challenge is not “rendered viable” by the existence of a potential practical consequence that this court’s opinion cannot affect one way
The strangeness of the phrase “immune from compliance” further highlights the basic flaw in the majority’s analysis. As a general matter, the notion of immunity implies some sort of protection from or invulnerability to the threat of sanctions or enforcement by a third party. Presumably, the governor would always be free to comply voluntarily with a legislative request for information. The question before the court is whether he must comply even if he would prefer not to. The answer to that question depends on whether there is a remedy for his failure to comply—in other words, whether the legislature has some means of compulsion. Indeed, as a purely linguistic matter, it is difficult to understand what the phrase “immune from compliance” could mean except “immune from compulsion.” As the majority concedes, the only means of compulsion available to the defendant in the present case is the threat of recommending an article of impeachment. As the majority also implicitly concedes, this court has no power either to authorize the defendant to carry out that threat or to enjoin it from doing so. It is clear, therefore, that the plaintiffs claim is moot. Accordingly, I dissent.
ZARELLA, J., with whom SULLIVAN, C. J., joins, dissenting. When the constitution clearly commits a function to the legislative branch, “[w]e must resist the temptation ... to enhance our own constitutional authority by trespassing upon an area clearly reserved as the prerogative of a coordinate branch of government.” (Internal quotation marks omitted.) Nielsen v. State, 236 Conn. 1, 10, 670 A.2d 1288 (1996). Because I believe that the majority has succumbed to that temptation in the present case, I dissent. The majority today
I begin by addressing the mootness issue. As the majority recognizes, because the defendant committee has represented that it would not seek to enforce the subpoena through contempt proceedings or a capias, the only consequence to the governor of his refusal to comply with the subpoena would be impeachment on that ground. The majority concludes that the governor’s appeal is not moot only because of that potential collateral consequence. Thus, the sole issue before the court is whether the defendant constitutionally may issue a subpoena to the governor when the subpoena is
“Chief Justice Marshall proclaimed two centuries ago [that] . . . ‘[i]t is emphatically the province and duty
Applying this standard, the majority concludes that this case does not present a nonjusticiable political question because this court held in Kinsella v. Jaekle, 192 Conn. 704, 721, 475 A.2d 243 (1984), that, although impeachment is a legislative function, judicial intervention in impeachment related proceedings is permitted in certain limited circumstances. See footnote 22 of the majority opinion. I disagree with the majority’s characterization of the holding in Kinsella. In Kinsella, this court held that the legislature had exclusive jurisdiction over an investigation to consider the institution of
In Kinsella, this court recognized that the Connecticut constitution adopted by the constitutional convention in 1818 “unequivocally commits the power of impeachment and removal from elected office to the General Assembly.” Id., 713; see Conn. Const., art. IX, §§ 1 and 2.
This history instructs us that the impeachment power is quintessentially political. As one scholar has stated, “[federalists viewed impeachments as inherently political in nature and hence committed to the complete discretion of the most political branch, the legislature.”
In Nixon v. United States, 506 U.S. 224, 233, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993), the United States Supreme Court noted that the framers had considered multiple proposals to delegate the impeachment power to the federal judiciary, but ultimately rejected those proposals and delegated the power solely to Congress. The court identified several reasons that the framers had done so. First, the framers believed that “the Senate was the ‘most fit depositary of the important trust’ [i.e., the sole power to try impeachments] because its Members are representatives of the people.” Id., quoting The Federalist No. 65 (Alexander Hamilton).
In light of this history, the court in Nixon deemed nonjusticiable the claim of the petitioner, a former United States District Court judge, that a rule adopted by the United States Senate, which allowed a committee of senators to receive evidence offered against an individual who has been impeached and to report that evidence to the full Senate, violated the impeachment trial clause of the federal constitution. Id., 227, 238; see U.S. Const., art. I, § 3, cl. 6. As Professor Pushaw notes, this is one of the very few questions that the United States Supreme Court has deemed to be purely political. R. Pushaw, supra, 81 Cornell L. Rev. 499; see also Vieth v. Jubelirer, supra, 541 U.S. 281 (plurality opinion) (political gerrymandering claims are nonjusticiable); Gillian v. Morgan, 413 U.S. 1, 7, 93 S. Ct. 2440, 37 L. Ed. 2d 407 (1973) (constitution leaves military training and procedures entirely to legislative and executive branches); Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 149, 32 S. Ct. 224, 56 L. Ed. 377 (1912) (claims arising under guaranty clause of article IV, § 4, of United States constitution are nonjusticiable); cf. Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 185, 479 A.2d 1191 (1984) (only remedy for violation of procedural rules of state Senate is political); State v. Sitka, 11 Conn. App. 342, 346-47, 527 A.2d 265 (1987) (claim that state Senate violated its own procedures does not present state constitutional question subject to judicial review).
“The impeachment power is explicitly vested in the House of Representatives by the Constitution; its use necessarily involves the exercise of discretion by the House. While it is true that the courts may on occasion act as an umpire between Congress and the President, there are also many issues where the courts will decline to intervene because the question is one that has been constitutionally submitted to another branch.
“Litigation on the Committee’s subpoenas would appear to be nonjusticiable on the basis of at least three of the criteria enumerated in Baker v. Carr [supra, 369 U.S. 186]. First, there is no question that there is a ‘textuaily demonstrable constitutional commitment of the issue’—the extent of the power of inquiry in an impeachment proceeding—to the House of Representatives. Second, if a court were to resolve the question independently, it could not escape ‘expressing lack of the respect due [a] coordinate [branch] of government.’ Third, there is a significant ‘potentiality of embarrassment from multifarious pronouncements by various departments on one question.’
“The courts, moreover, do not have adequate means for enforcing a decision with respect to the validity of the subpoenas. The usual means of court enforcement, contempt, would be unavailing against a defiant President. The court would have to rely on impeachment to deal with noncompliance with its order requiring the President to surrender material in accordance with the subpoenas.
“An asserted advantage of a court decision affirming the validity of the subpoenas is that it would be an independent determination by an entity with no interest in the proceedings. But the impeachment process itself provides an opportunity for such a determination— initially by the House in deciding whether to prosecute the Article of Impeachment,
“Unless noncompliance is a ground for impeachment, there is no practical way to compel the President to produce the evidence that is necessary for an impeachment inquiry into his conduct, nor any means of assuring that the extent of the House’s power of inquiry in an impeachment proceeding may be adjudicated and clarified. In the unique case of subpoenas directed to an incumbent President, a House adjudication of contempt would be an empty and inappropriate formality. As the Supreme Court said in United States v. Nixon, [418 U.S. 683, 691, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974)] in refusing to require a contempt citation against the President before the matter could be appealed, ‘the [traditional] contempt avenue ... is peculiarly inappropriate due to the unique setting in which the question arises.’ ” H.R. Rep. No. 93-1305, supra, pp. 211-12.
More recently, one commentator has drawn similar conclusions in an article in which he argues that Congress does not have the power to bring criminal contempt proceedings against a president for his failure to comply with a legislative subpoena. See T. Peterson, “Prosecuting Executive Branch Officials for Contempt of Congress,” 66 N.Y.U. L. Rev. 563, 626 (1991). Professor Peterson argues that, because “courts are ill-equipped to resolve executive privilege disputes and the political process is a better mechanism for accommodating this particular type of constitutional conflict . . . Congress simply has no need for this type of sanction and can rely on the political process to protect itself. Careful consideration of the mechanics of congressional inquiries . . . reveals both that Congress
Addressing the argument that such pressures might not be adequate when the president’s own conduct is questioned, Peterson agreed that “Congress must have an additional weapon to obtain the documents. The political process alone would be insufficient. Congress, however, already has such a weapon: the power of impeachment.
Thus, although Peterson accepts the premise, on which the defendant relies in the present case, that, under our system of law, the executive privilege cannot be invoked to shield the chief executive from a legislative request for information relating to his misconduct, Peterson argues that impeachment was intended to be the sole sanction for nondisclosure. He notes that “history provides some affirmative evidence that members of Congress believed they had no sanction [for a chief executive’s refusal to produce subpoenaed documents] other than the ultimate power of impeachment, and additional evidence by implication that Congress did not believe contempt to be within its powers.” (Emphasis added.) Id., 624. “[I]n the [congressional] debates concerning presidential disclosure of executive branch information there is no recorded instance of any discussion of the use of such contempt sanctions.” Id., citing 9 Annals of Cong. (1807) pp. 337-52, and 4 Annals of Cong. (1796) pp. 426-83. “Indeed, when Congress claimed an absolute right to the documents, it stopped short of asserting the power to impose contempt sanc
I recognize that Peterson focuses on the impropriety of Congress’ use of the sanction of contempt as a tool for obtaining information from the executive branch and does not directly address the issue before us in the present case, namely, whether the legislature constitutionally may use the threat of impeachment to enforce any demand for information from the chief executive relating to his wrongdoing. Instead, Peterson simply assumes that that is the case. In my view, that assumption is well founded in light of Peterson’s persuasive argument that disputes between Congress and the president over congressional requests for information should be resolved through the political process and that Congress has plenary power over impeachment proceedings. If Congress cannot enlist the courts in an attempt to enforce a subpoena through contempt proceedings, then the president should not be able to seek judicial validation of his position that an impeachment threat is unwarranted.
With these authorities in mind, I would conclude that the present case satisfies at least four of the criteria for nonjusticiability set forth in Baker v. Carr, supra, 369 U.S. 217. First, there clearly is “a textually demonstrable constitutional commitment of the issue to a coordinate political department . . . .”
Second, there is “alack of judicially discoverable and manageable standards for resolving” the issue raised by the governor. Baker v. Carr, supra, 369 U.S. 217. As I have indicated, the issue before this court is whether the defendant may issue a subpoena to the governor that it seeks to enforce through the threat of impeachment. Traditionally, courts assessing the validity of a legislative subpoena directed to the chief executive balance the legislature’s need for the information against the intrusion on the executive branch that compliance with the subpoena will occasion. See Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (Senate Select Committee) (information sought in legislative subpoena must be “demonstrably critical to the responsible fulfillment of the Committee’s functions”);
Third, the courts cannot resolve the issue raised in this appeal “without expressing lack of the respect due coordinate branches of government . . . .” Baker v. Carr, supra, 369 U.S. 217. The defendant has determined that it needs the governor’s testimony to carry out its impeachment related duties in a responsible manner. In my view, that determination is well within the core of the impeachment power, which, as I have indicated, is solely committed to the legislature. I believe that a court demonstrates a lack of respect for the legislative branch by taking the position that judicial validation of the defendant’s determination is required in order to protect the legitimacy of the impeachment process. Such a position suggests that the legislature, in contrast to the judiciary, is incapable of determining, intelligently and in good faith, whether the governor’s noncompliance with the subpoena is a proper ground for impeachment.
I would conclude that the courts lack jurisdiction over this case because it presents a nonjusticiable political question. Accordingly, I dissent.
In this regard, I do not understand why the majority believes that a question that it concedes would be nonjusticiable if raised after impeachment proceedings have commenced is justiciable if raised beforehand.
In the one case cited by the defendant in which a congressional committee issued a subpoena to the president seeking information relating to wrongdoings by the president, the court dismissed the committee’s enforcement action because it had not shown sufficient need for the information. See Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731-33 (D.C. Cir. 1974).
The majority appears to recognize, and I agree, that separation of powers principles very likely would bar such proceedings against a sitting chief executive. See United States v. Nixon, supra, 418 U.S. 691-92 (requiring court to find president in contempt would be inappropriate). I note that the defendant has not identified a single instance in the history of this nation in which a legislative body has issued a subpoena for testimony to a sitting president or governor, in connection with an impeachment investigation or otherwise, much less an instance in which such a subpoena has been enforced through the issuance of a capias or initiation of contempt proceedings. As the United States Supreme Court has stated in another context, “[tjhat prolonged relicence would be amazing if such interference [with the executive branch] were not understood to be constitutionally proscribed.” Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 230, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995) (holding that federal statute providing for reopening of court judgments violated separation of powers). Thus, it is arguable that the validity of a legislative subpoena issued to a chief executive is never a justiciable question because a judicial remedy is never available. See T. Peterson, “Prosecuting Executive Branch Officials for Contempt of Congress,” 66 N.Y.U. L. Rev. 563 (1991) (arguing that president should be immune from contempt proceedings for failure to comply with legislative requests for information).
If the majority’s decision had any effect on the defendant’s decision whether to recommend an article of impeachment, it was a purely political one. A decision that the governor had no obligation to comply would have tended to delegitimize such a recommendation in the eyes of the public and to generate political pressure against it. The decision that the subpoena was valid presumably had the opposite effect. This court is not in the business of issuing advisory decisions for the purpose of influencing public opinion.
In our preliminary dissenting opinion in this case, Chief Justice Sullivan and I stated that we believed that this case should be dismissed as premature under the speech or debate clause of our state constitution and under the separation of powers doctrine. See Office of the Governor v. Select Committee of Inquiry, 269 Conn. 850, 853, 850 A.2d 181 (2004) (Sullivan, C. J., and Zarella, J., dissenting). I continue to believe that the case should be dismissed as premature. Upon further reflection, however, I now believe that this case should be dismissed for the more basic reason that it presents a nonjusticiable political question.
In the majority's mootness analysis, the majority concludes that the governor’s appeal is not moot and is ripe for review because he may be subject to the collateral consequence of impeachment if he refuses to comply with the subpoena. The majority also concludes that the appeal is reviewable because, if a separation of powers violation occurred at all, it occurred when the defendant issued the subpoena. If that is the case, however, then the majority need not invoke the collateral consequence rule to conclude that the appeal is not moot; in its view, the mere existence of the subpoena colorably constitutes an ongoing ir\jury to the governor justifying intervention by the judiciary.
I do not agree that the mere issuance of the subpoena constitutes such an injury. See United States v. House of Representatives of the United States, 556 F. Sup. 150, 152-53 (D.D.C. 1983) (House of Representatives') (courts will not intervene in dispute between Congress and executive branch regarding legislative subpoena before Congress attempts to enforce subpoena in contempt proceedings); cf. Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 733 (D.C. Cir. 1974) (court considered legality of legislative subpoena compelling president to deliver certain materials in context of enforcement proceeding and affirmed dismissal of enforcement proceeding because legislative committee did not have sufficient need for requested materials). I cannot fathom how the mere issuance of a subpoena, which the executive branch is determined to ignore and which the legislature has not attempted to enforce through contempt proceedings or a capias, could interfere with executive functions. If the rule adopted by the court in House of Representatives does not apply in the present case, it is only because this case involves the threat of impeachment. Thus, properly understood, the issue before this court is whether the legislature constitutionally may issue a subpoena to the governor that it seeks to enforce through the threat of impeachment.
This court stated in Kinsella that the plaintiff’s action was premature because “[a]ny harm, as claimed by the plaintiff, to his liberty interest in his reputation or his occupational pursuit hinges on whether the House of Representatives presents articles of impeachment and whether the Senate convicts him.” Kinsella v. Jaekle, supra, 192 Conn. 728. Thus, we suggested that, after articles of impeachment had been adopted, this court could review the constitutionality of the impeachment process. See id. I disagree. Any infringement of the plaintiffs liberty interest that occurred during the process could not be remedied at that point and would, therefore, be moot. Any injury caused by the impeachment itself would, as the majority in the present case concedes, be nonjusticiable. See footnote 21 of the majority opinion (“[I]f the governor were required to wait until an article of impeachment was issued against him, and the governor challenged that issuance in court, then the court would be required to evaluate a discretionary function of the House, namely, the substantive grounds on which the article of impeachment was based. Such a scenario undoubtedly would pose issues of noryusticiability.”). Thus, the majority itself disavows the suggestion in Kinsella that an impeachment would be reviewable, a conclusion that I agree with for all of the reasons set forth in this opinion. Accordingly, in the absence of a claim that a legislative body is currently and egregiously violating the liberty or property rights of the subject of impeachment pro
The constitution of Connecticut, article ninth, § 1, provides: “The house of representatives shall have the sole power of impeaching.”
The constitution of Connecticut, article ninth, § 2, provides in relevant part: “All impeachments shall be tried by the senate. . . .”
It is interesting to note that article fourth, § 18, of the Connecticut constitution, as amended by article twenty-two of the amendments, provides in relevant part that “[tjhe supreme court shall have original and exclusive jurisdiction to adjudicate disputes or questions arising under this section.” Article fourth, § 18, deals specifically with the transfer of the governor’s authority, powers and duties to the lieutenant governor in cases of the governor’s death, resignation, refusal to serve, impeachment or incapacity. In contrast, article ninth, § 2, contains no provision for the involvement of the judiciary in the adjudication of disputes arising from impeachment.
This statement by Alexander Hamilton also was cited by this court in Kinsella in support of its conclusion that, “although the [impeachment] process is obviously adjudicative, and the sanctions imposed inescapably penal, [the process] is not a purely judicial function.” Kinsella v. Jaekle, supra, 192 Conn. 720. Rather, the “true nature of impeachment and removal”; id.; is political. Id., 721.
United States Supreme Court Justice Joseph Story wrote that “[t]he offences, to which the power of impeachment has been, and is ordinarily applied, as a remedy, are of a political character. Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits, and rules, and principles of diplomacy, of departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations, of foreign, as well as of domestic political movements; and in short, by a great variety
Justice Story shared this view. He wrote: “[T]he very functions, involving political interests and connexions, are precisely those, which it seems most important to exclude from the cognizance and participation of the judges of the Supreme Court. Much of the reverence and respect, belonging to the judicial character, arise from the belief, that the tribunal is impartial, as well as enlightened; just, as well as searching. It is of very great consequence, that judges should not only be, in fact, above all exception in this respect; but that they should be generally believed to be so. They should not only be pure; but, if possible, above suspicion. Many of the offences, which will be charged against public men, will be generated by the heats and animosities of party; and the very circumstances, that judges should be called to sit, as umpires, in the controversies of party, would inevitably involve them in the common odium of partizans, and place them in public opinion, if not in fact, at least inform, in the array on one side, or the other. The habits, too, arising from such functions, will lead them to take a more ardent part in public discussions, and in the vindication of their own political decisions, than seems desirable for those, who are daily called upon to decide upon the private rights and claims of men, distinguished for their political conse
The court in Nixon also noted that, in impeachment proceedings against a member of the judicial branch, judicial review would be “counterintuitive because it . . . would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.” (Citation omitted.) Nixon v. United, States, supra, 506 U.S. 235.
In the present case, the defendant has not determined that the failure of the governor to honor the subpoena would categorically result in a recommendation of impeachment. Even if the defendant did recommend such action, it is merely speculative as to whether the state House of Representatives would adopt an article of impeachment. Thus, although I maintain that it is within the exclusive domain of the House to determine whether the governor’s failure to comply is an impeachable offense under the circumstances of this case, it also is premature for the court to determine the issue.
The majority disagrees “with [my] suggestion . . . that the political pressure to testify would be sufficient to elicit the requisite testimony from a governor, without the need for a subpoena or judicial intervention validating the subpoena” because that did not happen in this case. Footnote 23 of the majority opinion. I do not maintain, however, that political pressure always will be sufficient to force a chief executive to testify in impeachment proceedings. I maintain only that, if it is not, impeachment is the sole remedy and that remedy is within the exclusive jurisdiction of the legislature. The majority fails to recognize that, in the present case, the governor refused to testify up until the time that this court issued its preliminary decision because he maintained that the subpoena was invalid and hoped that this court would endorse that position, thereby reducing the political pressure to testify. When the court determined that the subpoena was valid and the governor was faced with a choice between testifying or the possibility of being impeached for his refusal to testify, he resigned. If the majority had determined that the plaintiffs claim was nonjusticiable, the governor would have been faced with the same choice, albeit without the additional political pressure for impeachment that this court’s preliminary decision generated.
Arguably, the threat of a capias, which, under our statutes, does not require the intervention of the courts; see General Statutes § 2-46 (certain members of General Assembly “shall have the power to compel the attendance and testimony of witnesses by subpoena and capias issued by any of them”); might be a sufficiently egregious interference with the function of the executive branch that the governor should be able to seek the intervention of the courts to enjoin it. As I have noted, however, there is no threat of a capias in the present case.
The majority concludes that “there has been no constitutional commitment of the impeachment authority to the legislature such that judicial review of the plaintiffs challenge is rendered inappropriate.” Laying the groundwork for this conclusion, the majority first “recasts” this court’s determination in Kinsella that a claim arising from the legislature’s exercise of the impeachment power is justiciable only when the plaintiff has alleged that the legislature is “violating his rights in an egregious way that cannot be repaired”; Kinsella v. Jaekle, supra, 192 Conn. 728; and then concludes that “the appropriate standard by which to determine whether judicial review of the legislative exercise of the impeachment authority in connection with a sitting governor is warranted is whether the plaintiff has asserted, in good faith, a colorable claim of a constitutional violation.” In support of recasting the court’s determination in Kinsella, the majority claims that, unlike the due process violations alleged in that case, “action by one branch of government that violates the separation of powers is, in and of itself, a harm, in that the branch whose sphere of authority has been encroached upon has neither remained independent nor free from the risk of control, interference or intimidation by other branches.” As I have indicated, I do not agree with that conclusion, which is contradicted by relevant federal case law. Finally, I would note that, if the impeachment power is not “textually committed” to the legislature for purposes of justiciability analysis, it. is difficult to conceive of any matter that is textually committed to another branch of government. Thus, the majority’s analysis eviscerates the political question doctrine.
In Senate Select Committee, the court determined that the legislative committee’s need for the information that it sought from the president must be weighed against the president’s interest in confidentiality- See Senate Select Committee on Presidential Campaign Activities v. Nixon, supra, 498 F.2d 730-31. In the present case, the governor’s primary argument is that compliance with the subpoena would interfere with the performance of his constitutional duties. He does not rely on a claim of executive privilege. By analogy to Senate Select Committee, however, it seems clear that the defendant’s need for information should be weighed against the governor’s interest in precluding any interference with the performance of his official duties.
The majority concludes that “[t]here are no special impediments to our ascertainment and application of the standards by which to resolve this challenge; indeed, the matter raises questions of constitutional interpretation that, for more than two centuries, regularly have been reserved for the judiciary.” The majority also appears to have concluded that it need not review the substance of the defendant’s subpoena but simply should defer to the legislature’s determination that the requested information is needed. It apparently bases this determination on “the great importance of the impeachmentprocess under our constitution” and on its conclusion—unsupported by any citation to the record—that compliance with the subpoena will not place undue burdens on the governor’s time and attention. Thus, the “questions of constitutional interpretation” that the majority believes this court is competent to answer are: (1) the importance of the impeachment process, a process constitutionally committed solely to the legislature; and (2) what constitutes undue interference with the chief executive. The issue before the court, however, is not whether the impeachment process is important, but whether the governor’s testimony is necessary for the defendant’s responsible performance of its impeachment related functions. In failing to address that narrow issue, the majority implicitly holds that virtually any legislative demand for information in the context of an impeachment proceeding is valid, at least as long as it is not “utterly offensive and irrelevant”; footnote 32 of the majority opinion; and that the only check on the legislature is political. If that is the case, however, then the entire issue is a nopjusticiable political question.
As I have indicated, even the majority recognizes that the substantive grounds for an article of impeachment are not subject to review by this court. See footnote 21 of the majority opinion.
Reference
- Full Case Name
- Office of the Governor v. Select Committee of Inquiry to Recommend Whether Sufficient Grounds Exist for the House of Representatives to Impeach Governor John G. Rowland Pursuant to Article Ninth of the State Constitution
- Cited By
- 44 cases
- Status
- Published