Gubernatorial removal and state supreme courts.

• Author: Raftery, William E.

1. INTRODUCTION

   Recent events in Illinois have drawn attention to a question that had lain relatively dormant for several decades: For what cause other than an impeachable offense may a governor be removed, and by whom? Ratification of the Twenty-Fifth Amendment to the United States Constitution--providing an orderly process for removal of a president "unable to discharge the powers and duties" of the office--ignited that discussion among the states fifty years ago, (1) but for half of the states, the power either to make the determination of incapacity or to review the determination made by another group has been constitutionally or statutorily vested in the state's highest court or its chief justice. This article provides an overview of that little used and often overlooked power of the state supreme courts.

2. REGENCY, INCAPACITY, AND COURTS

   The question of the incapacity of state executives or their inability to discharge their duties predates the ratification of the Constitution, and can be traced directly to questions about colonial-era governorships (2) and regency in the United Kingdom. The records of the Committee on the Executive Department at the Alabama Constitutional Convention of 1901, for example, show a direct tie to the practice in then-current and former British colonies:

   [T]he Committee considered with great care ... the ascertainment of disability, which under the Constitution causes a succession in the power of the office of Governor. Governors, unfortunately, are subject to all the ills that flesh it [sic] heir to. We might have the case of an executive of unsound mind, declaring that he was of sound mind, exercising the powers of this great office, and no constitutional machinery or legal machinery provided, by which he could be legally declared incompetent and put out of office. So tremendous are the consequences in a change of executive power in all governments, that legislators and statesmen have hesitated to frame the details by which disability shall be ascertained and enforced in all cases; but it is the common practice in some countries, where the king or monarch becomes insane, for the Privy Council sometimes calling in the heir, to consult about it, and finally referred it to the government like parliament which is omnipotent, and thereupon parliament declares a regency. (3) Alabama's modification to regency was the movement away from ad hoc procedures that were implemented on a sovereign-by-sovereign basis and instead a movement toward the use of a permanent institution, the Supreme Court, to serve as the determining body. (4) The United Kingdom itself would not reach such a level of consistency until the Regency Act 1937 named five specific officials, any three of whom could declare in writing the sovereign's incapacity. (5) Here in the United States, the late 1800s and early 1900s brought several proceedings that compelled state high courts to determine the proper holders of governors' offices. (6) Even the United States Supreme Court became involved in Nebraska's Thayer/Boyd controversy, eventually overruling the state Supreme Court's holding for Thayer. (7)

   Nor was the Blagojevich corruption scandal of 2008 the first time Illinois was faced with a question of gubernatorial disability. (8) Governor Henry Homer suffered from a long illness associated with a 1938 heart attack, making it an open question as to whether he could in fact serve as governor. A series of legal issues arose, including most importantly whether the lieutenant governor could unilaterally declare himself acting governor. A number of proceedings, including quo warranto, were threatened in order to force a judicial determination. The speaker of the Illinois House suggested that the state's auditor ignore the governor's signature on requests for his salary, forcing Homer into court for a mandamus proceeding against the auditor. No judicial decision was ever issued, however, because Homer's death mooted the judicial proceedings.

   A decade later, the question of judicial involvement in declaring a governor incapacitated occurred in Louisiana where, in 1959, Governor Earl K. Long was forcibly committed to a state mental hospital. His attorneys filed a habeas proceeding, contending that by being committed he was being unconstitutionally removed from office. Whereas in Illinois the lieutenant governor sought to be named--and contended that he was--acting governor, Louisiana's lieutenant governor was vociferous in claiming he was not governor, acting or otherwise, despite an attorney general's opinion to the contrary. A mere hour prior to a judicial hearing on the habeas petition, Governor Long was released from the mental institution when his political allies dismissed the state's director of hospitals and immediately forced the successor to sign the release order. (9)

3. MODERN PRACTICE

   In both the Illinois and Louisiana instances, the question was placed squarely into the hands of a trial judge. In the subsequent decades, states have separated the concept into two components. In the first, trial judges are still capable of declaring people mentally incapacitated and ordering their confinement under various mental health laws. In some cases, this is explicit, as in Alabama's statute (10) that declares vacated the office of anyone "adjudged" by the probate courts "to be of unsound mind." The probate judge may at any time then return the person to office by revoking or annulling the order. These powers function as an extension of the trial courts' well-established power to exercise jurisdiction over the incompetent within their civil jurisdiction. But in the second iteration of the power to remove a governor, the question of incapacity is more a political one that requires the engagement of at least one, and in many states both, of the other branches of government. (11) Moreover, the voting threshold required to support a disability removal can vary from explicitly unanimous to ambiguously majority-rule. Table 1 summarizes these voting requirements.

   1. Executive-Branch Suggestion

      Similar to the Twenty-fifth Amendment, most state constitutions that provide a specific role for a state supreme court in gubernatorial removal rely on other executive branch officers to make the initial "suggestion" of incapacity, leaving the court tasked with making the actual determination that removes the governor. But two state constitutional provisions dealing with gubernatorial incapacity and the courts pre-date the 1965 submission of the Twenty-fifth Amendment to the states.

      Mississippi's 1890 constitution permits the secretary of state to submit to its supreme court the question of whether the office of governor is vacant due to the governor's disability or absence from the state. (15) In addition to being the oldest provision to include a state supreme court as part of the disability determination, this section has the distinction of being one of the few provisions whose scope and meaning have been litigated. In 1927, a state senator serving as acting lieutenant governor requested through the secretary of state a determination by the Mississippi Supreme Court as to whether he remained acting lieutenant governor, given that a recent election had resulted in a lieutenant governor-elect. The court held that its power was limited to determinations as to who held the office of governor. (16) In a letter to the acting secretary of state, the court noted that

      [t]he information here sought by you relates not to the discharge by [the senator] of the duties of Governor, but to the discharge by him of the duties of Lieutenant Governor, and, consequently, is not within the authority conferred upon us to answer questions propounded to us by you. (17) Alabama's 1911 constitution permits any two of the seven executive branch officers in line for succession (18) (unless they are in the particular situation themselves immediately next in line for succession), to submit affidavits to the Supreme Court, asking it to determine whether the governor is of "unsound mind." (19) Recent proposals to expand the review to include physical disabilities have failed to progress. (20)

      Similarly, Georgia's 1976 constitution relies on any four of the state's seven other "elected constitutional executive officers" (21) to petition the state's supreme court. (22) Kentucky's constitution, as amended in 1992, empowers a unanimous supreme court to remove the governor based on a petition alleging gubernatorial disability filed by the attorney general. (23) All three members of Florida's cabinet are required to submit their suggestion of the governor's "incapacity" to that state's supreme court for determination. (24)

      New Hampshire's 1984 constitutional amendment is unique in its specificity with respect to evidentiary standards for the courts and the executive branch officers. When it "reasonably appears" to the state's attorney general and a majority of the five-member Council both that the governor is suffering from a physical or mental incapacity and that the governor is unwilling or unable to agree with that determination, the attorney general may file a petition for declaratory judgment with the state's supreme court. The court must then decide, using a preponderance of the evidence standard, whether the evidence associated with the petition supports removal of the governor. The governor may petition the court and be restored to office if the court, again specifically using a preponderance of the evidence standard, finds the governor able to discharge the duties of the office. However, there is a time limit: If the governor's disability remains for longer than six months after the initial judgment by the court, the legislature may declare the office permanently vacant. (25)

      Maine operates in a similar fashion under a provision added to its constitution in 1975. (26) Relating to temporary removal of the governor, it requires only that the secretary of...