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.
II. 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. …