Jerry Kopel

What if someone tried to start an impeachment in the Colorado House? How would they go about it? There isn't a single rule in the House/Senate Rule Book about impeachment. That may be because there hasn't been an impeachment in Colorado since 1939.

There is nothing in the rule book to stop any House legislator from introducing a resolution calling for impeachment of a "governor or other state and judicial officers." The charge doesn't have to be "high crimes and misdemeanors". The Colorado constitution gives a legislator a choice not available under the U.S. Constitution. It's called "malfeasance in office".

The courts, including Colorado, have defined "malfeasance" as "doing an act a person should not do at all, that is wholly wrongful and unlawful." However, the Colorado legislature has defined malfeasance in much broader terms in CRS 29-1-115, 29-1-608, and other statutes.

In the statutes, malfeasance means "knowingly and willfully (1) failing to perform any of the duties imposed upon him by this (article, part, or section) or (2) violating any of its provisions or (3) furnishing false or fraudulent information."

As with any other resolution introduced in the House, a resolution for impeachment would be assigned to a committee, most likely Judiciary or State Affairs. There is no House rule allowing the person charged to defend himself or herself. A decision to allow only a limited amount of defense evidence could be legal on the basis that if the House passes articles of impeachment, the time for all the evidence to be presented is in the trial in the Senate.

The House committee would have to prepare articles of impeachment. There is no requirement that the full committee vote. As long as there is a quorum present, a majority of the quorum is sufficient to pass the resolution to the House floor. At that point, Article 13 of the Constitution requires 33 votes in favor to send the resolution to the Senate.

The Senate doesn't send the House resolution to a Senate committee. It convenes itself to try the matter "upon oath or affirmation to do justice according to law and evidence." The U.S. Senate has rules governing a trial arising out of impeachment. The U.S. senators can't cross-examine or ask questions directly. They can submit questions to whoever is running the show (Chief Justice or President of the Senate). Colorado has no rule forbiding a state senator from asking questions directly during the trial.

So if a resolution for impeachment is introduced in 1999 by one member of the House, does the House want the issues decided by Rule 46?: "Any matter not covered by these rules shall be governed by the decision of the Speaker, subject to the right of appeal by any member as in these rules provided for."

The House in passing articles of impeachment, and the Senate is trying the issue to decide conviction or acquittal, do not have to struggle to find the proper rules to put in place. The impeachment in 1939 of two members of the civil service commission resulted in impeachment by the House, trial in the Senate and acquittal of both parties.

The legislative actions took place in special session, called by Gov. Ralph Carr on April 28, 1939. The civil service commissioners could not be removed by the governor under allegations of test fixing and abuse of testing standards. The Colorado Supreme Court had held in 1925 that the only recourse was impeachment of civil service commissioners.

Both the House and the Senate faced the same situation that a 1999 House and Senate would face. They had to figure out how to do their job, and they did. The "rules" they adopted are printed in those 1939 House and Senate Special Session Journals, and can easily be brought up to date for 1999.

During the first days of a legislative session, temporary rules are adopted and often amended. That would seem to be a proper time to consider rules regarding impeachment by the House and trial by the Senate.

Some of the language in the constitution is hard to reconcile. Art. 13 states "The house of representatives shall have the sole power of impeachment."..."All impeachments shall be tried by the senate..."

Black's Law Dictionary includes cases from Oklahoma and New York as to what impeachment means: "Impeachment of the governor, within the meaning of section 16, art. 6 of the constitution, is the adoption of articles of impeachment by the House of Representatives and the presentation thereof to the Senate...and the impeachment of the governor operates to suspend him; the duties and emoluments of the office automatically devolving upon the lieutenant governor... until the disability is removed by the acquittal of the governor.."

Section 13 of Article 14 of the Colorado constitution states: "In the case of the....impeachment....of the governor, the office of governor shall be vacant and the lieutenant governor shall take the oath of office and shall become governor."

What was obviously meant was "conviction following impeachment". The drafters could not have meant a vote of 33 members of the House supporting impeachment would trigger Section 13 of Article 14.

In the U.S. Constitution, Article 2, Section 4 reads: "The president and vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, AND CONVICTION OF (emphasis added) treason, bribery, or other high crimes and misdemeanors."

In Section 2 of Article 2 it reads: The president...shall have power to grant...pardons...except in cases of impeachment."

If the U.S. Constitution meant "and conviction (by the Senate) of treason, bribery, or other high crimes and misdemeanors" it could easily have said so.

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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