Blue Hog Report: ‘Joint Address’ & Removing Shoffner From Office

With Arkansas Treasurer Martha Shoffner (D) refusing to resign from office and a plethora of state elected officials calling for her to do so, we could see a constitutional showdown unlike any previously seen.

Shoffner, who will plead “not guilty” to charges of extortion for accepting cash payments in exchange for state business, has seen Gov. Mike Beebe (D), Lt. Gov. Mark Darr (R), Attorney General Dustin McDaniel (D), Democratic Party of Arkansas Chairman Will Bond, as well as many other party officials and leaders from both sides of the aisle call for her to step down immediately.

When asked if she planned to resign, the State Treasurer told reporters on Monday, “Not at this moment.”

Talk Business reported yesterday that the Arkansas Constitution has an impeachment provision, which allows for two methods for removing a state official from office.

The method that seems most likely to be tried – possibly for the first time in state history if Shoffner remains opposed to resignation – is Article 15, Section 3, which says:

The Governor “upon the joint address of two-thirds of all the members elected to each House of the General Assembly, for good cause, may remove the Auditor, Treasurer, Secretary of State, Attorney General, Judges of the Supreme and Circuit Courts, Chancellors and Prosecuting Attorneys.”

As it became clear on Monday that a standoff may be forthcoming, questions have been raised about the procedure for this route, specifically what is meant by “joint address.”

Matt Campbell, legal scholar and blog moderator at the recently resurrected Blue Hog Report, offers analysis of this provision:

As I see it, there are two possible interpretations of the phrase, “upon the joint address” as it is used in this provision. The first is that the Governor may tell two-thirds of each chamber that he has good cause to remove one of the listed officers.

Such an interpretation, however, would be illogical. After all, the “good cause” required under Art. 15, sec. 3, is lower than the level of cause needed for impeachment under sec. 2. It would hardly make sense to say that, where the evidence was insufficient to support an indictment in the House, the Governor could remove a duly elected officer merely by telling two-thirds of each chamber that he was going to, while an officer facing a higher level of evidence against him could only be removed after being charged by the House and getting a supermajority in the Senate.

The second interpretation, which I believe is the correct one, is that the Governor may remove one of the listed officers for good cause once he has been asked to do so by two-thirds of each chamber. I base this conclusion on a number of things:

1. This reading makes logical sense, as described above. Possible removal on a lower level of proof should contain a higher level of protection for the officer being removed.

2. While obsolete now, the word “address,” as used here, has a particular meaning: a request to the executive by the legislature to remove a judge for unfitness. This meaning is in perfect accord with the way “joint address” was used in the 1836 Constitution, and, while the drafters of the 1874 document appear to have expanded the applicability beyond judges, the specialized meaning of “address” as a noun in this context still makes the most sense. This interpretation is bolstered by the title of the section — Officers removable by Governor upon address — which would mean, correctly, “officers removable by Governor upon request by the legislature.”

3. This interpretation is most loyal to the syntax of the provision.

You can read Campbell’s full analysis at this link.