House adopts impeachment rule; Walker already talking lawsuit | Arkansas Blog

Wednesday, May 3, 2017

House adopts impeachment rule; Walker already talking lawsuit

Posted By on Wed, May 3, 2017 at 10:56 AM

click to enlarge NO 'HASTE': Rep. Jeremy Gillam defended impeachment rule as a needed change, not a hasty reaction to anger over Wendell Griffen.
  • NO 'HASTE': Rep. Jeremy Gillam defended impeachment rule as a needed change, not a hasty reaction to anger over Wendell Griffen.

click to enlarge REP. JOHN WALKER: Challenges speakers special caucus on rule change.
  • REP. JOHN WALKER: Challenges speakers special caucus on rule change.
House Speaker Jeremy Gillam this morning called a caucus of the House after adjournment of the special session to vote on a House rule change that sets up a procedure for impeachment proceedings in the House. That drew strong objections from Rep. John Walker, but the House moved directly to the matter after adjournment of the special legislative session and adopted the rule.

No immediate action is planned on moving forward with an impeachment.

Gillam, in the beginning, dodged a direct question from Republican Rep. Kim Hendren if the rule was about impeaching Circuit Judge Wendell Griffen for participating in a death penalty demonstration after he'd ruled in a dispute over a drug distributor's objection to the state's use of its drug in executions. But everyone knew that 's what it was about, which Gillam himself indirectly acknowledged later.

Rep. John Walker of Little Rock objected to the short notice with four members absent and also said Gillam was essentially calling a special session of the legislature, outside authority of the Arkansas Constitution. Gillam said he believed that authority for the caucus vote was implicit and Walker could object when the time came and the House could vote. Walker acknowledged Gillam had the votes of the Republican majority to do whatever he wanted.

The matter is not crystal clear in law and seems likely to head to court long before any impeachment and trial. The House CAN meet outside of sessions to adopt rules and procedures. It caucuses regularly on organization every two years, for example. But to caucus to begin an investigation of a public official for impeachment and a vote on a recommendation of impeachment, with trial in the Senate, verges into new territory. Can the House take action outside of a legislative session that compels the Senate to act? Senate interest in punishing Griffen is high, however, so it might be amenable to anything in this case.

Walker said the Constitution "does not authorize the speaker of the House to call a special session of the legislature."  Here's the rule Gillam cited:

click to enlarge powers.jpg
The Constitution says this about impeachment (it also allows removal by "address" by the governor, on approval by two-thirds of both Houses:

Impeachment by House - Trial by Senate - Presiding Officer

The House of Representatives shall have the sole power of impeachment. All impeachments shall be tried by the Senate. When sitting for that purpose, the Senators shall be upon oath or affirmation; no person shall be convicted without the concurrence of two-thirds of the members thereof. The Chief Justice shall preside, unless he is impeached or otherwise disqualified, when the Senate shall select a presiding officer
It is silent on whether the House must be in session to vote impeachment. That might be on purpose. Only the governor can call a session. What if the legislature wanted to impeach the governor?

After several objections from Walker, Gillam responded, "Your opinion is well-noted."

Gillam introduced the rule change Tuesday and it was approved his the Rules Committee he approves with no discussion.

To Hendren's question of whether the procedure was aimed at Griffen, Gillam said he'd make that clear in the caucus.The House adjourned at 10:30 and moved immediately to the caucus. 94 members answered the roll call.

Gillam began by saying he'd looked into a need for impeachment proceedings years ago, when legislators got in trouble with the law. The matters were eventually resolved in the courts. He said he took responsibility for not moving ahead then with establishing a procedure in rules. Because it was "out of sight and out of mind" nothing was done two years ago. Today, he said, it needs to be addressed. He referred to "recent conversations" in the Senate that highlighted the deficiency in the rules. That would be Sen. Trent Garner's demand that the House impeach Griffen.

Gillam said he wasn't seeking action today, but simply attempting to put a framework in place. It might not be used in a decade, it might be used soon. "But I do think it's important we have it in the rules," he said.

Gillam said he'd begun a deliberate review three weeks ago. He said staff had contacted other states, including Alabama, to reach the proposal. He said he decided to act now because it was most efficient. He said he approached it merely as an administrative function that "needed to be done."

John Walker did not participate in the caucus debate today. He said he did so to preserve his right to sue over the procedure. "This is not a special session. There was no notice given to members or what the issues were. Seems like you have due process and notice questions, in addition to the issues that may be raised about an ex post facto impeachment [a law created to subject a specific person to punishment.]"

The rule allows an impeachment proceeding, with an investigation by committee, on petition from 34 members.

Rep. Fred Allen of Little Rock drew from Gillam that there'd never been an impeachment since the adoption of the 1874 Constitution. He suggested this procedure seemed to be unusually hasty as a reaction to Griffen. Gillam insisted he wasn't doing this for "one citizen." He claimed the rule was for a "whole myriad of election officials down through the next several years." There's no "haste," Gillam said, merely a question of whether House wanted to put procedures in place.

One question was asked about whether members who'd expressed opinions could participate in impeachment committee proceedings? In Alabama, members who'd expressed opinions did participate, he said. In Arkansas, many legislators (Garner most particularly) have said flatly that Griffen should be removed. He's said he ruled fairly on a property matter and his participation in the demonstration — depicting a crucified Christ and not a prisoner strapped to a gurney for execution as had been presumed — had been arranged before the case was scheduled.

This is the first call for impeachment I can recall that gained any traction in 44 years in Arkansas. We've had judges and lawmakers accused of bribery, theft, sexual assault, manslaughter of a child, assault (a Supreme Court justice once beat his sister), dishonesty in handling of a family estate, misspending state money and more. Never a call for impeachment. Never a special caucus of the House to adopt a rule to facilitate impeachment.

Rep. Kim Hendren raised an alarm about the rule and the power it vests in the speaker. If a speaker didn't like what he or someone else said, "he could be impeached." How can that be? The speaker appoints every committee, including whatever committee would investigate impeachment. "If I'm speaker and you do something I don't like, all I need is 34 members." He contended Gillam had once tried to remove committee leadership when they acted contrary to his wishes.

Said Hendren: "I'm not in favor impeaching Wendell Griffen. I don't agree with what he did. But I'm not voting for this."

Others portrayed the rule as a needed standard, even for removing a House member. Rep. Robin Lundstrum applauded Gillam for the rule.

Rep. Vivian Flowers, a Democrat, said there'd been seven legislative session since Gillam claimed to have an interest in this rule. It is "disingenuous," she said, for him to say the rule was an extension of that long-ago interest. His own e-mail to members said he'd begun his inquiry the very day Griffen did his demonstration. "This is about Judge Griffen." In 143 years, she noted, the House had never felt the need to set up impeachment rules. She said a judicial proceeding exists for addressing judicial behavior. It's a disservice to the rules and House to say this is not about Griffen. "If this is really about impeaching Judge Griffen .... let's address it honestly."

Flowers noted that a district judge last year had been accused of inappropriate sexual relations with defendants in his court. "I don't believe anyone in here, including Mr. Speaker, in the year of his investigation, there was no move to set up special rules for impeachment." He's resigned and been charged with federal crimes.

In closing, Gillam echoed several in saying that a motion by one person could an impeachment in process. True, but only on ratification by a 51-person House majority. In this procedure, 34 members would have to ask the speaker to set up a probe.

The rule was approved 73-13, with one present.

PS: I've asked the governor's office repeatedly for comment on the desire to impeach Griffen. The office has repeatedly avoided comment.

EDITORIAL PPS: Judge Griffen has a right to 1st Amendment speech. He damaged the appearance of an impartial judiciary by participating in the demonstration the same day he issued a ruling in a property case relevant to pending executions. The Judicial Discipline Commission will review what he's done. I expect they'll find he violated the ethics canons. I predict he'll be at a minimum admonished. The Supreme Court has already removed him from death penalty cases (as it removed a judge acquitted of manslaughter in death of his child from hearing child neglect cases.) Discipline is in order. But this is not misconduct in office sufficient for removal. Giving Gillam benefit of the doubt, it could be that his effort to establish a procedure — and to be seen as responding to popular outcry — will have the beneficial effect of allowing tempers to cool. Griffen's ruling stopped no executions. Another judge ruled similarly. The drug company that said the state had acted improperly, perhaps illegally, to obtains its drugs continues to press its claim. Legislators to date have expressed no outrage about dishonest behavior by the Correction Department. The outrage over the unpopular words of a black man versus the lack of concern over illicit behavior of the state should embarrass the legislature. It won't.

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