Gubernatorial Removal and State Supreme Courts

By Raftery, William E. | Journal of Appellate Practice and Process, Spring 2010 | Go to article overview
Save to active project

Gubernatorial Removal and State Supreme Courts

Raftery, William E., Journal of Appellate Practice and Process


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.


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Gubernatorial Removal and State Supreme Courts


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?