Jerry Kopel


The April 22 impeachment hearing of District Court Judge John Coughlin before the House Judiciary Committee was only the fourth such hearing since Colorado became a state in 1876. The resolution seeking impeachment claimed Coughlin put alleged unconstitutional restrictions on an adoptive parent granted child custody.

Impeachment does not mean guilt. It means the House believes the Senate should hold a trial regarding the allegations and decide whether the allegations should result in removal of the judge from office. Colorado's impeachment process is in Article 13 of the state constitution.

Has anyone in Colorado ever been impeached? Yes, in two of three prior hearings. An attempt to impeach a district court judge in 1911 (for enjoining striking miners and then jailing them) was denied by the House. Three persons, one in 1935 and two in 1939 have been impeached. For each hearing the House Speaker appointed a special committee to consider the allegations.

This year the House resolution regarding impeachment of Judge Coughlin was introduced March 18th. Instead of appointing a special committee, the Speaker assigned the bill to House Judiciary Committee. It was held there for over a month. Testimony came with 13 days left in the 2004 session.

Prior to the hearing, members of the Judiciary Committee were not provided the trial transcript from which Judge Coughlin rendered his (allegedly impeachable) decision. That was remedied by laying the committee decision over to April 27th, eight days before the 2004 session ends.

After 1911, the next impeachment hearing was held in 1935. James H. Carr was elected secretary of state in 1934. He was impeached by the Colorado House in a 1935 special session. In 1934, prohibition had ended and the legislature passed a law regarding sales of liquor, dealing with licensing and taxation. The secretary of state had jurisdiction to handle both.

The impeachment hearings showed W.E. O'Toole, a liquor wholesale dealer, "had the run" of the secretary of state's office. It was alleged O'Toole's company bribed the secretary of state with $3,000 to settle a tax liability for pennies on the dollar, get the state auditors off his back, and get a liquor license.

Along with alleged bribery, Carr was charged with extortion of a car dealer regarding sales of cars to the Courtesy Patrol, and failing to enforce taxation against several other liquor companies.

In House committee hearings, "Carr did not have the right to cross-examine witnesses or introduce more than a limited amount of evidence on his own behalf" according to "Impeachment of a State Official", a 1935 Rocky Mountain Law Review article.

The House voted Articles of Impeachment, 46 to 15. Before the Senate could begin proceedings, Carr resigned. The House voted to discontinue the impeachment, 50 to 14. Carr was replaced by George Saunders, who remained secretary of state until 1941.

Colorado's impeachment law is not the same as impeachment under Article 2 of the U.S. Constitution. Conviction by the U.S. Senate is for "treason, bribery, or other high crimes and misdemeanors."

In Colorado, "the governor and other state and judicial officers shall be subject to impeachment for high crimes or misdemeanors or malfeasance in office..."

"Malfeasance" is doing an act a person shouldn't do at all, that is "wholly wrongful and unlawful". Don't confuse malfeasance with "misfeasance"; improperly doing an act a person can legally do, or "nonfeasance"; the failure of a person to do an act that he or she ought to do.

Two Civil Service Commissioners, Herman Getty and Clara Wilkins, were impeached in May of 1939 for malfeasance. They were charged with allegedly giving "fixed" exams to a revenue collector applicant, and to an applicant for superintendent of the state industrial school for boys. Getty allegedly allowed his over-aged son to be certified for the Courtesy Patrol (the predecessor of the State Patrol), and both Getty and Wilkins, in general, abused the exam and grading process.

Gov. Ralph Carr could not fire them because the state Supreme Court in 1925 held the only way to get rid of a sitting civil service commissioner was impeachment. So Carr called the legislature into special session April 28, 1939. The House impeached both men. Trial was held in the Senate. Getty and Wilkins were acquitted 21 to 11.

Like the federal approach, Colorado impeachment begins in the House, which must pass it to the Senate by 33 of the 65 elected members. The Senate after trial has to convict by 24 of the 35 senators. In the U.S. Senate, you don't need a two-thirds vote by the elected senators, only two-thirds of the members PRESENT.

There is a danger arising from impeachment hearings when the House and Senate fail to have rules already in place, as typified by one witness for the Coughlin impeachment who stated the "power of impeachment (of judges) needs to be revived."

We have already "revived" the use of House and Senate Joint Resolutions which take much time and are not laws. In 1965 we considered 58 House and Senate Joint Resolutions. As of April 22, 2004, legislators have introduced 146 House and Senate Joint Resolutions.

The legislature does need to adopt impeachment rules in the 2005 session, including a process that ensures at least probable cause for going forward.

My suggestion. Don't foist the job on a regular committee which is hearing some of the hundreds of bills introduced. Take members from regular committees and form a special committee. Put substitute members briefly in their place on those regular committees. Allow a FULL and immediate investigation and hold the impeachment hearings as soon as possible.

(Jerry Kopel served 22 years in the Colorado House.)

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