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September 17, 1992

UNITED STATES OF AMERICA, et al, Defendants.

The opinion of the court was delivered by: STANLEY SPORKIN


 Judge Alcee Hastings, a federal district court judge, was removed from office by the United States Senate after he was convicted on articles of impeachment on October 20, 1989. Impeachment is an extraordinary remedy. As an essential element of our constitutional system of checks and balances, impeachment must be invoked and carried out with solemn respect and scrupulous attention to fairness. Fairness and due process must be the watchword whenever a branch of the United States government conducts a trial, whether it be in a criminal case, a civil case or a case of impeachment.

 The key issue in this case is whether a life-tenured Article III judge who has been acquitted of felony charges by a petit jury can thereafter be impeached and tried for essentially the same alleged indiscretion by a committee of the United States Senate consisting of less than the full Senate. This Court determines that the answer is no.

 The plaintiff is a former United States District Court judge. He has brought this action against the United States of America, the United States Senate, and several individual federal officers claiming that he was impeached, convicted and removed from judicial office in violation of the Constitution. He seeks a declaratory judgment as well as injunctive relief reinstating him to his former office and restoring his judicial salary. The defendants have filed a motion to dismiss on the grounds that this Court lacks jurisdiction to hear this action. The Court held a hearing on the motion on June 9, 1992 and is now prepared to rule.

 I. FACTS *fn1"

 Alcee Hastings was appointed to the bench for the United States District Court for the Southern District of Florida in 1979. He was indicted in December of 1981 on a charge of conspiracy to solicit and accept a bribe. On February 4, 1983, in a trial presided over by the late Judge Edward Gignoux of Maine, one of the most highly respected United States District Court judges of his day, Judge Hastings was acquitted by a jury. Six weeks after his acquittal, members of the Judicial Council of the Eleventh Circuit filed a complaint against Judge Hastings under the Judicial Disability Act, 28 U.S.C. §§ 331, 332, 372(c), 604(h). Three and a half years later the Judicial Council issued a report and sent it to the Judicial Conference of the United States. The Judicial Conference met on March 17, 1987, concurred in the findings of the Council and recommended to the Speaker of the House that Judge Hastings be impeached.

 On August 3, 1988, the House adopted seventeen articles of impeachment against Judge Hastings. The first fifteen articles reformulated the conspiracy charge of which Judge Hastings had been acquitted. They also charged Judge Hastings with presenting false testimony and fabricated evidence. Judge Hastings filed a motion to dismiss with the Senate which the Senate later rejected. The Senate convened an Impeachment Trial Committee pursuant to Rule XI of the Rules of Procedure and Practice when Sitting in Cases of Impeachment. Immediately thereafter, Judge Hastings filed a suit in United States District court for the District of Columbia challenging the use of a trial committee as unconstitutional and seeking a preliminary injunction to prevent the impeachment proceedings from going forward. The court dismissed the complaint for lack of jurisdiction. See Hastings v. United States, 716 F.Supp. 38 (D.D.C. 1989). The trial went forward before the committee. On October 19 and 20, 1989 the Senate held debate on the Articles of Impeachment. Judge Hastings was convicted on Articles I, II, III, IV, V, VII, VIII, and IX. He was acquitted on Articles VI, XVI, and XVII. The Senate did not vote on Articles X-XV. See 135 Cong. Rec. S13783-88 (daily ed. Oct. 20, 1989).

 When the voting record of the Impeachment Trial Committee was reviewed, it revealed that the twelve members of the committee did not vote to impeach by the required two-thirds majority on any of the articles of impeachment. The Chair and Vice Chair of the Impeachment Trial Committee, Senator Bingaman and Senator Specter, filed statements in support of acquittal. The committee proceedings were videotaped, but it is unclear how many senators actually reviewed the tapes. *fn2" Nonetheless, enough senators who had not heard the evidence personally voted to convict to constitute the necessary two-thirds majority. Following his conviction, Judge Hastings was removed from judicial office, and his judicial salary was no longer paid to him. In July of 1991 he filed this action.


 A. Significance of the Nixon Decision

 The defendants urge the Court to dismiss this action on the grounds that it lacks jurisdiction to review any matter having to do with impeachment. The defendants claim that the political question doctrine applies to this case, therefore it is nonjusticiable. For support, they cite the decision by the Court of Appeals for this circuit in Nixon v. United States, 290 U.S. App. D.C. 420, 938 F.2d 239 (1991). In that case, former federal district judge Walter Nixon sued the Senate after he was impeached and convicted claiming among other things that the procedures used by the Senate violated the Constitution. The Court of Appeals held that it lacked jurisdiction. The majority held that the case was nonjusticiable because it presented a political question. Judge Randolph concurred in the judgment, but wrote a separate opinion in which he said, "I see no need to rely on the somewhat 'amorphous' doctrine of 'political question[s].'" Nixon, 938 F.2d at 249 citing Morgan v. United States, 255 U.S. App. D.C. 231, 801 F.2d 445, 447 (D.C.Cir. 1986) (Scalia J.) cert. denied, 480 U.S. 911, 94 L. Ed. 2d 529 , 107 S. Ct. 1359 (1987). Judge Edwards dissented. In his opinion, he concluded that the case was justiciable although on the merits he concluded that Nixon's impeachment trial had not violated any constitutional requirement.

 The Supreme Court has agreed to hear the Nixon Case on the issue of jurisdiction specifically as well as on the issue of whether the Senate can assign the collection of evidence in an impeachment proceeding to a special panel rather than have the entire case heard by the Senate at large. See 60 U.S.L.W. 3578 (February 25, 1992) (case no. 91-740). *fn3" In view of the grant of certiorari on the identical issue presented in this case, the Court believes that the Nixon case does not preclude it from reaching a decision in the Hastings case. It should also be noted that Judge Hastings filed a complaint protesting the procedures to be used by the Senate before his impeachment trial. See Hastings v. United States Senate, 716 F. Supp. 38 (D.D.C. 1989). *fn4" Although this earlier action was properly dismissed because it did not present a ripe question for review, it was analgous to the practice used in an Article III trial of "preserving an objection" for appeal.

 In Nixon, the Court of Appeals specifically chose not to decide an issue that is essentially raised in this case. The Court of Appeals wrote as follows:

 Because the two-thirds vote requirement of Art. I, § 3, cl. 6 is so concrete, the argument that it serves as an unalterable limit on the textual commitment of impeachments, with judicial review available for at least some claims of Senate disregard, is far more plausible under Powell than Nixon's effort to find justiciable limits in the word 'try.' However, we need not decide this issue, so we leave it for the unlikely day of its arising." (emphasis added) Nixon, 938 F.2d at 246, n.2.

 The deliberative body that actually heard the evidence against Judge Hastings, namely the twelve-member Impeachment Trial Committee, did not have the votes to convict Judge Hastings by the necessary two-thirds majority. The votes of senators who did not actually "try" the impeachment must be counted to accumulate the two-thirds majority. The event the Court of Appeals felt compelled to reserve as possibly invoking judicial review in effect has resurfaced. Courts must have jurisdiction to determine whether the "unalterable limits" of the Construction have been preserved.

 B. Justiciability

 The defendants claim that the issues Judge Hastings has raised are nonjusticiable because they are "political questions" which the Constitution has textually committed to another branch of government. As this court has already noted, even the majority in Nixon is not in agreement on this point. The political question doctrine first enunciated by the Supreme Court in Baker v. Carr, 369 U.S. 186, 217, 7 L. Ed. 2d 663 , 82 S. Ct. 691 (1962), is itself problematic because it runs against one of the core principles of our system of constitutional law. "It is emphatically the province and duty of the judicial department to say what the law is," wrote Chief Justice John Marshall in his landmark opinion in Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 ( 1 Cranch 137) (1803). This fundamental conflict may well be the reason that the Supreme Court has so rarely invoked the political question doctrine since Baker v. Carr. As Judge Edwards noted in his dissent in Nixon, the Supreme Court has rejected political question arguments in more than a dozen cases while upholding it in only one, Gilligan v. Morgan, 413 U.S. 1, 37 L. Ed. 2d 407 , 93 S. Ct. 2440 (1973). See Nixon, 290 U.S. App. D.C. 420, 938 F.2d 239, 258 (Edwards, J., dissenting). Baker v. Carr was a case about apportionment. Gilligan v. Morgan concerned the activities of the National Guard in Ohio following the incident at Kent State University. Judge Hastings has raised claims that are wholly different from any raised in those two cases.

 Impeachments are not political in nature. To impeach an Article III Judge, the judge must be brought up on real charges, i.e., High Crimes and Misdemeanors, and receive a real trial before the full Senate as clearly required by the Constitution. Nothing less will do if this nation is to maintain an independent judiciary. Contrary to what has been argued by Senate counsel, this Court holds that the proceeding as it applies to the judiciary is not a political proceeding. It is every bit a judicial proceeding. There is no basis to interpret the Constitution to allow the removal of a judge for political reasons. To do so would be the antithesis of creating and sustaining an independent judiciary. If Senate counsel is correct, then President Roosevelt should have pursued impeachment of the Supreme Court justices who declared a number of his laws unconstitutional rather than a "court packing" plan that ultimately failed. *fn5"

 In Powell v. McCormack Congressman Adam Clayton Powell challenged the House of Representatives when it refused to seat him even though he had been duly elected by the people of his district. The House argued that it had exclusive power to determine the qualifications of its members therefore the Supreme Court lacked jurisdiction to hear the matter. In its decision, the Court specifically distinguished between subject matter jurisdiction and justiciability. Id. at 514. The former is a question of whether a matter can be submitted to the judicial power of the United States. The latter is a question of allocation of powers between branches. The Supreme Court held that there was jurisdiction over Congressman's Powell's claims because a question of constitutional interpretation had been raised. It also held that the dispute was justiciable and that it did not present a political question. After examining the text and history of the Constitution in great detail, the Court concluded that to allow Congress to have exclusive and unreviewable authority to decide the qualifications of its members would thwart the Constitutional scheme which is intended to allow the people to rule themselves. In keeping with the decision in Powell v. McCormack, Judge Hastings has presented a justiciable question. *fn6"

 C. Judicial Review of Impeachment and the Structure of Our Government

 The defendants' arguments under the political question doctrine have served to focus this Court's scrutiny on the words of the Constitution, specifically whether there has been a "textually demonstrable commitment" of all matters relating to impeachment to the legislative branch. Of central importance are structural concerns about our constitutional system of government and what role if any judicial review of impeachment plays. In essence, this case presents a new version of Marbury v. Madison. The basic framework of our three-branch system is at issue. A single branch of government claims to have uncontested dominion over another branch by arrogating to itself the unreviewable authority to interpret the Constitution. As the Framers said in The Federalist Papers,

 It is agreed on all sides that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evidence that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. The Federalist, No. 48 (Madison).

 The Framers also said,

 The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." The Federalist, No. 51 (Madison).

 As in Marbury v. Madison, this case requires the Court to consider the purpose and function of the three branches and indeed of our delicate system of balance of powers.

 Article III is the shortest of the three basic articles. It is devoted exclusively to the judiciary. In essence, it provides that the judiciary shall consist of a Supreme Court and such inferior courts as the Congress shall create. Article III insures the independence of the judicial branch by providing that Article III judges shall have tenure during good behavior and shall not have their remuneration diminished while in office. *fn8" Article III is silent with respect to how a judge who does not comport with the "good behavior" standard shall be removed from office. The way ...

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