Memorandum

To: From: Date: Re: Utah State Senators John L. Fellows, General Counsel January 21, 2013 Utah Impeachment Process

Impeachment: Utah Process

Michael E. Christensen Director John L. Fellows General Counsel

I. Introduction:
This memo provides information about the impeachment process in Utah. Although this memo provides a summary of the process, OLRGC has done more in-depth legal and policy research on impeachment and the impeachment process. Legislators with questions or seeking more detail may contact me. Utah's constitution, statutes, and legislative rules provide general guidelines and requirements for the impeachment process. They also grant virtually absolute discretion to the House and Senate to establish the detailed procedures for a particular impeachment. (If the House or Senate must adopt detailed procedures because an impeachment resolution is filed, OLRGC staff can assist the House and Senate in developing those procedures by providing the House and Senate with examples of processes used in Congress and other states.)

II. Sources for information about impeachment in Utah:

< < < < Utah Constitution Article VI, Sections 17-20 Utah Code Sections 77-5-1 through 77-5-12 House Rule 1-6-101 Senate Rule 1-6-101

III. Concepts
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Utah State Capitol Complex House Building, Suite W210 PO Box 145210 Salt Lake City, Utah 84114-5210 Phone (801) 538-1032 Fax (801) 538-1712 www.le.utah.gov

A Utah state or judicial officer is "impeached" if the House of Representatives adopts one or more articles of impeachment by a 2/3 vote.

Utah Impeachment Process January 21, 2013 Page 2 of 3 < A Utah state or judicial officer is removed from office only if the Senate convicts the officer in a trial in the Senate after the House has impeached the officer. For example, former President Bill Clinton was "impeached" because the U.S. House adopted Articles of Impeachment, but he was not removed from office because the U.S. Senate did not "convict" him.

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IV. Summary of Impeachment Process in Utah:

< Resolution Initiates Impeachment --A member of the House files a resolution calling for the impeachment of a state or judicial officer (Utah Code 77-5-3) (See Appendix A for example of an impeachment resolution for Judge Harding in 2003) House Establishes Rules of Process -- If resolution passes, House adopts, by constitutional majority vote, policies establishing procedures for, and governing the conduct of, the impeachment process (House Rule 1-6-101) (See Appendix B for an example of the policies adopted by the House for the Judge Harding impeachment in 2003) Constitutional Standard for Impeachment -- "The Governor and other State and Judicial officers shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office; . . . ." Utah Constitution Article VI, Section 19. (Because impeachment is constitutionally vested in the legislative branch, courts have generally declined to interfere in the process, including declining to second guess the legislative branch on the meaning and scope of the terms "high crimes, misdemeanors, or malfeasance in office.") House Committee Action -- Because the policies usually require referral of the impeachment to a House committee, the committee meets, subpoenas and examines witnesses, documents, and other relevant material, and, if the evidence warrants, draws up Articles of Impeachment and recommends that the entire House adopt them. (Articles of Impeachment are similar to an information or indictment -they lay out, article by article, the specific charges against the person being impeached.) House Floor Action -- The House votes on each article separately. If one or more articles receive a 2/3 vote in favor, the officer or judge is impeached and the House submits the Articles of Impeachment to the

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Utah Impeachment Process January 21, 2013 Page 3 of 3 Senate for trial. < Impeached Officer Suspended If Impeached -- When the House submits Articles of Impeachment to the Senate, the Senate must serve a copy of the articles on the impeached state officer or judge. Once served, the impeached officer is temporarily suspended from his office and may not exercise the duties of the office until/unless the officer is acquitted by the Senate. The governor temporarily appoints a person to fill the office, with confirmation by the Senate, unless the officer is convicted. (Utah Code 77-5-6) Senate Establishes Rules of Process -- Senate adopts, by majority vote, policies establishing procedures for, and governing the conduct of, the trial process. (Senate Rule 1-6-101) Senate Trial -- At the trial, each senator must swear an oath to do justice according to the law and evidence. Two-thirds of the senate must be present in order for the trial to proceed. To convict, a constitutional 2/3 of the senators (20 Senators) must vote that one or more articles of impeachment has been proved. (Utah Code 77-5-7, 77-5-8) Impeachment Not a Bar To Prosecution -- The state officer or judge can still be prosecuted criminally whether the officer is convicted or acquitted. (Utah Constitution Article VI, Section 19; Utah Code 77-511)

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Appendix A
RESOLUTION INITIATING IMPEACHMENT PROCEEDINGS FOR JUDGE RAY M. HARDING, JR.
2003 GENERAL SESSION STATE OF UTAH

H.R. 9

Sponsor: Neal B. Hendrickson

David Ure This resolution of the House of Representatives initiates impeachment proceedings against Judge Ray M. Harding, Jr. of Utah's Fourth District for high crimes, misdemeanors, and malfeasance. Be it resolved by the House of Representatives of the state of Utah: WHEREAS, Ray M. Harding, Jr. was appointed to the bench by Governor Michael O. Leavitt in September, 1999; WHEREAS, on July 13, 2002, Judge Ray M. Harding, Jr., the presiding judge in Utah's Fourth District, was arrested for possession of drugs and drug paraphernalia; WHEREAS, Judge Harding tested positive for traces of cocaine and heroin; WHEREAS, on July 15, 2002, Judge Harding was suspended from the bench by Utah Supreme Court Justice Christine Durham, pending the resolution of the criminal charges; WHEREAS, search warrants allegedly found cocaine, heroin, and barbiturates; WHEREAS, on September 9, 2002, Judge Harding was charged with two third-degree felony counts of possession or use of a controlled substance; WHEREAS, if convicted, Judge Harding could face a maximum penalty of up to five years in prison for each count; WHEREAS, for the more than six months since his arrest, Judge Harding has been on paid administrative leave, drawing his annual salary of $103,000; WHEREAS, since his arrest, Judge Harding spent three months in a California drug-treatment facility; WHEREAS, Judge Harding remains free on $10,000 bail; WHEREAS, the Utah Constitution, Article VI, Section 19 provides that "Judicial

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officers . . . shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office", with the Legislature's power of judgment extending only "to removal from office and disqualification to hold any office of honor, trust or profit in the State"; and WHEREAS, House Rule 37.10 of the Fifty-Fifth Legislature (2003) provides: "If any member submits a resolution to the House to begin impeachment proceedings, the House shall adopt, by majority vote, policies establishing procedures for, and governing the conduct of, the impeachment process": NOW, THEREFORE, BE IT RESOLVED that the House of Representatives of the state of Utah find that the alleged conduct of Judge Ray M. Harding, Jr. of Utah's Fourth District necessitates the commencement of impeachment proceedings by the House. BE IT FURTHER RESOLVED that, by passing this resolution, the House of Representatives begins impeachment proceedings and that inquiry will begin as soon as rules governing the impeachment proceedings are approved by the House of Representatives.

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Appendix B
HOUSE RULES RESOLUTION IMPEACHMENT PROCESS
2003 GENERAL SESSION STATE OF UTAH

H.R. 10

Sponsor: Greg J. Curtis

This resolution modifies House Rules by establishing a process to address the impeachment of Judge Ray M. Harding, Jr. This resolution provides grounds for impeachment, outlines a process for taking evidence and evaluating that evidence, provides for the appointment and responsibilities of impeachment managers, and outlines the process for preparing articles of impeachment. This resolution establishes voting requirements for the committee and the House of Representatives. This resolution establishes requirements for notifying the Senate about House action on impeachments and defines the role of House impeachment managers and special counsel in the Senate trial on impeachment. This resolution takes effect immediately. This resolution provides a repeal date of December 1, 2003. This resolution affects legislative rules as follows: ENACTS: HR-37.11 HR-37.12 HR-37.13 HR-37.14 HR-37.15 HR-37.16 HR-37.17 HR-37.18 Be it resolved by the House of Representatives of the state of Utah: Section 1. HR-37.11 is enacted to read: HR-37.11. Grounds for Impeachment. The House may impeach a state or judicial officer for high crimes, misdemeanors, or

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malfeasance in office, which include: (1) personal misconduct in the discharge of the officer's official duties; (2) neglect in the discharge of the officer's official duties; (3) usurpation of power in the discharge of the officer's official duties;

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(4) habitual disregard for the public interest in the discharge of the officer's official duties; (5) the commission of an indictable criminal offense; (6) an intentional act or omission relating to the officer's official duties involving a substantial breach of trust; (7) conduct amounting to a substantial breach of the trust imposed upon the official by the nature of his office that is of such a character as to offend against commonly accepted standards of honest and morality; or (8) any other meanings of "high crimes," "misdemeanors," or "malfeasance in office" that have existed historically and at common law. Section 2. HR-37.12 is enacted to read: HR-37.12. Beginning Impeachment Proceedings. The House may begin impeachment proceedings against a state or judicial officer by passing a resolution beginning an impeachment inquiry. Section 3. HR-37.13 is enacted to read: HR-37.13. Powers of Speaker; Reference to Committee. If the impeachment resolution passes, the Speaker of the House shall: (1) refer the matter to the House Judiciary Committee to begin an impeachment inquiry; and (2) as necessary, hire investigators, special impeachment counsel, court reporters, and other necessary staff to assist the committee in its inquiry. Section 4. HR-37.14 is enacted to read: HR-37.14. Committee Meeting; Record; Evidence. (1) The chair of the House Judiciary Committee may:

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(a) direct its impeachment staff to conduct an investigation and collect evidence before convening a meeting; or (b) convene an organizational meeting to orient committee members about committee requirements and procedures and to give instructions to impeachment staff. (2) The chair of the House Judiciary Committee shall ensure that each meeting is recorded. (3) (a) When not in conflict with these rules or House Rules, the Utah Rules of Evidence shall serve as a guide. (b) The chair may allow admission of reasonably reliable evidence that varies from the Utah Rules of Evidence whenever the interests of justice require. (c) The chair's determination of admissibility is final and may only be overruled by a majority vote of the committee. (4) When investigating the conduct of a state or judicial officer who is subject to an impeachment inquiry, the committee may receive: (a) evidence given by witnesses produced and sworn before them; (b) documentary evidence; (c) the written deposition of a witness; or (d) other reasonably reliable evidence authorized under Subsection (3). (5) (a) Any witness testifying before the committee may have his counsel present. (b) When the committee seeks factual testimony within the personal knowledge of the witness, the testimony and answers must be given by the witness himself and not suggested to the witness by counsel. (c) Counsel for a witness may advise the witness during the witness's testimony only when specifically requested to do so by the witness. (d) The participation of counsel at a hearing and while a witness is testifying is limited to advising the witness of his legal rights. (e) Counsel may not address the committee, ask questions of any witness, or engage in oral arguments with the committee.

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(f) Counsel's failure to abide by these rules is grounds for counsel's exclusion from the inquiry. (6) After convening, the chair shall proceed in the following order: (a) special impeachment counsel shall call each witness and begin the examination of the witness; and (b) after special impeachment counsel has finished, any member of the committee who wants to examine the witness may do so. (7) (a) If any committee member wants the committee to receive additional testimony or other evidence not presented, the committee member shall submit a written request to the chair identifying the area of inquiry, the witness that the member wants to call, and the evidence that the member wants the committee to review. (b) Unless the chair determines that the additional testimony or other evidence unreasonably delays or obstructs the committee's investigation, the chair shall allow the member to receive the additional testimony or other evidence identified by the committee member if the new area of inquiry is reasonably related to the matters under consideration by the committee. (8) (a) A majority of the members of the committee may compel obedience to the requirements of the committee by declaring in contempt of the Legislature any person who: (i) fails to comply with a subpoena or a subpoena duces tecum; (ii) refuses to answer a question relevant to the investigation which does not infringe on his constitutional rights; or (iii) is guilty of contempt on any other grounds specified in statute or recognized at common law. (b) The committee may petition the district court to enforce its order of contempt. Section 5. HR-37.15 is enacted to read: HR-37.15. Committee Action upon Completion of Inquiry; Speaker to Appoint Impeachment Managers; Presentation of Articles of Impeachment. (1) After the House Judiciary Committee has received testimony and other evidence, the committee, upon motion made by any member of the committee, may direct that articles of

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impeachment be drafted.

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(2) If the motion passes, the speaker shall appoint a committee of five impeachment managers from the membership of the House Judiciary Committee, no more than three of whom are from the same political party, to prepare the articles of impeachment. (3) The impeachment managers shall present the proposed articles of impeachment to the House Judiciary Committee for its approval, approval as modified by the committee, or rejection. (4) If the committee approves, by majority vote, any or all of the articles of impeachment submitted by the impeachment managers, the committee shall refer the approved articles of impeachment to the House of Representatives for its action. Section 6. HR-37.16 is enacted to read: HR-37.16. House action on Articles of Impeachment. (1) The impeachment managers shall submit the articles of impeachment and evidence supporting the articles of impeachment to each member of the House of Representatives. (2) After receiving articles of impeachment from the House Judiciary Committee, the House of Representatives shall vote on each article separately. (3) In order to impeach, each article must receive the approval of two-thirds of all the members elected to the House of Representatives. Section 7. HR-37.17 is enacted to read: HR-37.17. Notice to Senate of Approval of Articles of Impeachment. If the House of Representatives approves any or all of the articles of impeachment, the House shall submit the articles of impeachment that passed to the Senate. Section 8. HR-37.18 is enacted to read: HR-37.18. Impeachment Manager, Special Impeachment Counsel; Role in the Senate trial of impeachment. The impeachment managers and the special impeachment counsel shall: (1) inform the President of the Senate that the House has impeached a state or judicial officer and that the Senate is constitutionally required to convene a court of impeachment; (2) present the articles of impeachment at the bar of the Senate; and

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(3) prosecute the impeachment case against the impeached state or judicial officer based upon the articles of impeachment. Section 9. Effective date. This resolution takes effect upon approval by a constitutional majority vote of all members of the House of Representatives. Section 10. Repealer. HR-37.11 through HR-37.18 are repealed December 1, 2003.

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