RUMINATIONS Impeachment in Vermont, 20 VTBJ, Spring 2020-#14

Authorby Paul S. Gillies, Esq.
PositionVol. 46 1 Pg. 14

RUMINATIONS Impeachment in Vermont

No. Vol. 46 No. 1 Pg. 14

Vermont Bar Journal

Spring 2020

by Paul S. Gillies, Esq.

Now that the impeachment trial in Washington has ended, unless you are entirely exhausted, perhaps a look back at how Vermont has applied the sanction would be interesting. As with the federal Constitution, in Vermont it’s a two-step process that begs many questions of process and definition. The House of Representatives, by a two-thirds vote of its members, may vote to impeach a state officer, whether judicial or executive (but not legislative). The Senate then holds a trial and decides whether to remove the official. That vote must also be effective upon a vote of two-thirds of the members present.1 The offense that triggers impeachment is maladministration. “Treason, Bribery, or other High crimes and misdemeanors” are the standards for impeachment from the U.S. Constitution, but maladministration is the sole basis for impeachment and removal in Vermont.2

The Law of Impeachment

The 1777 Vermont Constitution gave impeachment powers to two bodies, the Council of Censors and the General Assembly, and the removal power to the Governor and Council. The Council of Censors had the power to impeach any state officer. The General Assembly’s impeachment powers were limited to county officers, including justices of the peace, sheriffs, and county judges. In either case, if impeachment was voted by a simple majority of the body, the Governor and Council would then hear the case and determine whether to remove the individual from his office.3 When the Constitution was first amended, in 1786, the Assembly’s impeachment powers were deleted, leaving the Council of Censors as the sole and exclusive body with the power to impeach and the Governor and Council to try it until 1836, when the Governor and Council was abolished and the Senate was given the power to try and decide on all impeachments. The Council of Censors retained the authority to impeach officials. The 1836 amendment added that impeachment “shall not extend farther than to removal from office—and disqualification to hold or enjoying any office of honor, or profit, or trust, under this State. But the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law.” In 1870, the Council of Censors was abolished, its former impeachment authority transferred to the House of Representatives. The Senate’s role conducting the trial remained intact.4

The Supreme Court was also involved in the process, at least until 1836. The Constitution required the court to advise the Governor and Council during the trial of a state officer if the Assembly needed its help. After 1786, the Governor and Council could award costs, in addition to removing the accused from office. After 1836, the judiciary had no direct role.

Based on how it was used, the term “maladministration” meant anything the Council of Censors or the General Assembly thought applied, from collecting too much in fees to insubordination.5

There are only a handful of reported cases of the Vermont Supreme Court that discuss the impeachment power. One involves John Campbell, a Justice of the Peace indicted for a misdemeanor in 1802 for renewing a writ of execution after his commission expired, and taking fees for it. Campbell, after completing one year as JP (and not being elected for another term) endorsed a judgment to renew the writ and dated it one month earlier than he signed it, to cover himself. The Supreme Court considered whether he could be criminally indicted for maladministration and concluded that the only way was by impeachment. The Court explained, “In cases of mal-administration there is a peculiar and manifest propriety in . . . bringing State criminals, as they are styled in the Constitution, to trial, before this high national tribunal, where the solemnity and publicity of the trial will either publicly purge their official characters from imputed crime, or make their mal-administration known to the citizens at large, and especially to those in whom rests commonly the election to office.”6 Impeachment after his term was up, however, was futile.

In 1987, the Vermont Supreme Court found that impeachment and removal under the Constitution would not impair its own role in judicial discipline, in the matter of Assistant Judge Althea Kroger.7 The proceedings against Justice William Hill in 1989 again raised the issue of whether the suspension authority of the Court interferes with the legislative power of impeachment and removal, and the high court rejected the claim. As Hill had retired by the time the Court suspended him from further judicial duties, impeachment would not accomplish anything.8

In 2009, the Supreme Court found a Windsor County Assistant Judge had violated the Code of Judicial Conduct by failing to recuse himself from participating as a director of a nonprofit corporation in its land dealings with the county court and by failing to maintain the dignity and integrity of his office during a reelection campaign. This latter charge involved writing a letter to a local paper charging his opponent with stealing a campaign sign and accusing the opponent of “nastiness.” The judge was suspended from his duties both judicial and administrative for six months. The court rejected the claim that its jurisdiction was limited to a judicial sanction and t hat impeachment was the mechanism for disciplinary action relating to administrative matters. The General Assembly’s powers were held to be supplementary to the Court’s authority to discipline judges.9

Expulsions from the Assembly

The General Assembly has always had the power to expel a member. At times this process has used the word “impeachment,” but this is not a true impeachment power, but rather an outgrowth of the power to judge the qualifications of members which any formal body enjoys inherently and that Vermont’s legislative branch has as a constitutional duty.10 Originally this power to expel was qualified by prohibiting expulsion “a second time for the same reason.” Then in 1786 the Constitution was changed to read that members may be expelled for any reason but “not for causes known to their constituents antecedent to their election,” words that remain the standard today.11

In June 28, 1781, two members of the House were “impeached.” Daniel Martin, a representative from Putney, had sold discounted Vermont bills of credit to another representative, John Abbott of Hoosick (at that time a part of Vermont), for hard currency at one-fourth their face value. Vermont was facing a fiscal crisis in the midst of the war. Money was scarce, so Vermont’s General Assembly had authorized the issuance of bills of credit as a substitute. The devaluation of these bills of credit represented a serious assault on the integrity of the state. That two of the state’s representatives were engaged in selling discounted bills was an embarrassment. The House voted to expel Martin and publicly reprimand Abbott. Martin promptly made “a public recantation for the crime for which he was expelled, and evidenced signs of sorrow and Repentance,” whereupon the House resolved to restore him to his seat that afternoon!12

Jonathan Fasset of Pittsford was the next to be “impeached.” On February 19, 1787, the legislature ordered him suspended until a petition was brought for the offense of aiding and assisting the mob which assembled at Rutland in November of 1786 to stop the County Court from sitting. After hearing the evidence, the General Assembly ordered him suspended from his seat in the legislature and he was expelled by unanimous vote. Fasset was also ordered to pay the expenses of Darius Chipman, State’s Attorney for Rutland County, who had prosecuted him.13

There have been other expulsions over the years, a failure to qualify for office, but misconduct has been handled privately and the member allowed to resign.

Impeachment in Practice

The first Vermonter to be accused of an impeachable offense was Matthew Lyon, in 1779 when he was representative from Arlington. Dr. Reuben Jones, the representative from Rockingham, had some...

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