Shohin H. Vance of Kleinbard.

In keeping with Justice Louis Brandeis' now-famous description of states as "laboratories of democracy," analyzing contemporary federal constitutional issues through the lens of corresponding state law can be useful exercise. Given that the predominant constitutional issue in recent weeks has been impeachment, an article summarizing the relevant legal principles in the Keystone State seems apt.

Persons Subject to Impeachment and Impeachable Offenses

In terms of their scope, the Pennsylvania Constitution and the U.S. Constitution are largely coextensive, both allowing for the impeachment of not only the chief executive, but of "all civil officers." Compare Pa. Const. art. VI, Section 6, with U.S. Const. art. II, Section 4. Notwithstanding the seemingly broad phraseology, however, the impeachment power only extends to high-ranking officials. Specifically, the Pennsylvania Supreme Court has held that the impeachment and removal provisions only apply to state and local civil officers who: are appointed or elected to an office for a definite term; and perform "duties of a grave and important character" involving "the functions of government." See, e.g., Werner v. Zazyczny, 681 A.2d 1331, 1337 (Pa. 1996). This framework is analogous to the definitions prescribed by statute under federal law. See 5 U.S.C. Section 1204.

There is, however, one important distinction between the federal and state impeachment paradigm. Under the Pennsylvania Constitution, state legislators are not only subject to expulsion by a two-thirds vote of the chamber in which they serve, but are also liable to impeachment in the same manner and to the same extent as other officials. By contrast, while members of Congress, may also be ejected by a vote of the chamber in which they serve, they are constitutionally immune from impeachment. See Member of Congress, 17 Op. Att'y Gen. 420 (1882).

Furthermore, while impeachment is the sole vehicle by which federal civil officers may be removed, the state Constitution also permits removal of civil officers—whether appointed or elected— "except the governor, the lieutenant governor, members of the General Assembly and judges of the courts of record … by the governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate." The upshot of this alternative method of divesting title to office is that it vests the governor, rather than the House of Representatives, with the power to initiate removal.

With regard to the type of conduct that is impeachable, the state Constitution permits impeachment "for any misbehavior in office," which is largely conterminous with the "high crimes and misdemeanors" rubric required under the U.S. Constitution. These terms are merely different iterations of a centuries-old common law offense, which requires either a "breach of a positive statutory duty," or "the performance by a public official of a discretionary act with an improper or corrupt motive." Predictable, "improper or corrupt motive" has proven incapable of precise definition, having engendered varying interpretations by the courts.

Impeachment Process and History of Impeachment

The process for impeachment and conviction is nearly identical under the state and federal Constitutions, as both organic charters vest the House of Representatives with the "sole power of impeachment," and the Senate with the power of convicting upon "concurrence of two-thirds of the members present." However, the extent of judicial oversight and criminal liability is somewhat different.

With regard to the role of the courts, on the one hand, the U.S. Constitution contemplates greater judicial involvement because it tasks the chief justice of the U.S. Supreme Court with overseeing an impeachment trial against the president; no similar provision exists in the Pennsylvania Constitution. On the other hand, however, the federal judiciary has been reluctant to prescribe any criteria concerning the manner in which an impeachment is conducted, while the Pennsylvania Supreme Court has held that the proceedings must comport with some minimum principles of due process.

Furthermore, while both the state Constitution and U.S. Constitution provide that a conviction by the Senate does not foreclose a subsequent criminal prosecution, the Pennsylvania Constitution also expressly permits prosecution in the event of an acquittal by the Senate. This distinction is significant because, as noted in a Department of Justice memorandum published in 2000, any attempt to initiate criminal prosecution after an unsuccessful impeachment trial in the Senate could be violative of the constitutional bar against double jeopardy.

Although the power to criminally prosecute a sitting president has been called into serious doubt in two separate Department of Justice memoranda (one published in 1973 and a second one in 2000), neither the federal, nor the state Constitution proscribe criminal proceedings against other officials prior to (or during) impeachment. Indeed, in 1938, the Pennsylvania Supreme Court invalidated a statute staying or prohibiting judicial proceedings against an official undergoing an impeachment investigation or trial, holding that it amounted to an unconstitutional usurpation of, and interference with, the role of the judiciary.

Although historic records sometimes conflate impeachment with the governor's power to remove certain officials with consent of two-thirds of the Senate—and, thus, are not always accurate—it appears that only three individuals were successfully impeached by the Pennsylvania House of Representatives, of whom only one was convicted by the state Senate. Francis Hopkinson, who was a judge of the Court of Admiralty was acquitted 1780; and John Nicholson, who was the comptroller-general of the commonwealth of Pennsylvania was acquitted in 1794. More recently, Rolf Larsen, who was a Pennsylvania Supreme Court justice, was impeached and convicted by the Senate in 1994.

Shohin Vance is an associate in Kleinbard's litigation department and is a member of the government relations and political law groups.