Dann could be 1st nonjudge to be impeached

5/7/2008

COLUMBUS - Attorney General Marc Dann has not been charged with a crime, let alone convicted of one, but that may not stop Ohio lawmakers from proceeding with plans to impeach him if he remains firm in his refusal to resign.

Ohio lawmakers presided over several impeachments during the state's infancy and none alleged a criminal violation, including the sole case that resulted in a Senate conviction. The Democratic attorney general could become the first nonjudge subjected to impeachment proceedings in Ohio and the first state officer of any kind since 1820.

Mr. Dann on Friday admitted to an extramarital affair with an employee during his first year as attorney general and said he feared his actions may have contributed to an office atmosphere that led to the alleged sexual harassment of two other female employees by one of his top aides.

He fired the aide involved in the harassment complaints, fired a second aide and close friend who allegedly encouraged a witness to lie to investigators, and accepted the forced resignation of a third who allegedly failed to act when first told of the complaints. Mr. Dann, however, remains at work and insists he's done nothing to warrant resignation.

While Republicans and Democrats have called for additional independent investigations, the sole investigation conducted in-house alleged only "poor judgment" on Mr. Dann's part.

Republicans immediately called for Mr. Dann's resignation on Friday and by Sunday night, Gov. Ted Strickland and other fellow Democrats joined the chorus, threatening to lead the march toward impeachment.

"It is not an overnight process," House Minority Leader Joyce Beatty (D., Columbus) said. "It's been since the early 1800s that we've been in this situation. We will not be one to just react. We won't be pressured to put a date on it."

House Speaker Jon Husted (R., Kettering) also urged caution.

"What we do will set the standard for how anyone will be impeached in this state going forward, and that is a serious constitutional concern and important precedent ," he said. "I know there are a lot of people who want to have the issue resolved immediately, but we have to make sure that we have all of the facts, grounds for moving forward, if we do."

He has asked Rep. Bill Batchelder (R., Medina), a former appellate judge, to review the impeachment process and get back to him by Friday. In the meantime, both Republicans and Democrats continue to urge Mr. Dann to resign to save them the trouble and expense of impeaching him.

At issue is language in the Ohio Constitution allowing the impeachment of state officers by the House of Representatives for any "misdemeanor in office," a term that the constitution does not define.

Mr. Batchelder said a "misdemeanor" is "a lot less than what people might think," citing the opinion of U.S. Supreme Court Justice Joseph Story in the 1800s. Justice Story suggested such language refers to "political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests."

Mr. Batchelder said he must look at precedent both in Ohio and at the federal level.

"Very clearly the legislature has a very open situation in terms of trying people," he said.

Mr. Strickland has suggested the grounds for impeachment would go well beyond Mr. Dann's admitted affair. He suggested that Mr. Dann's testimony before his own investigators was inconsistent and that he was generally guilty of mismanaging his office.

The only person impeached and convicted in Ohio was Fairfield County Judge William Irvin in 1805, who was accused of missing a number of court dates that forced the postponement of cases, according to Tom Rieder, an archivist with the Ohio Historical Society.

Although his impeachment cost him his seat on the bench, Mr. Irvin's political career barely skipped a beat. He was soon elected to the Ohio House that impeached him, was selected as its speaker, and was appointed by the chamber to the state Supreme Court. He was later elected to Congress.

But the most famous impeachment case in Ohio occurred in 1809, when Judges Calvin Pease and George Tod were impeached for committing an act that still strikes fear in the hearts of some legislators. They struck down and rendered unenforceable a state law passed by lawmakers.

In the end, the judges escaped Senate conviction when the vote was one shy of the two-thirds needed.

"The fundamental issue was the power and basic constitutional equality of other branches of government with the judiciary," said Donald F. Melhorn, a Toledo attorney and part-time University of Toledo lecturer. He wrote about the case in his 2003 book, Lest We Be Marshall'd: Judicial Powers and Politics in Ohio 1806-1812.

"Radical Republicans led by Thomas Worthington saw the legislature as the principal and supreme branch of government versus people in national politics who voted for Thomas Jefferson," he said. "The cardinal issue was judicial review."

If lawmakers do impeach Mr. Dann, the process would begin in the House, where a resolution outlining the case would be introduced and potentially subjected to committee investigation.

The committee then could return the resolution to the full House with "articles of impeachment" that essentially would serve as an indictment if a simple majority of the 99-member chamber agrees.

The trial would occur in the Senate, where conviction would require a two-thirds supermajority vote, or 22 of the 33 members.

Mr. Dann was unavailable to reporters yesterday.

His spokesman, James Gravelle, said the attorney general was at work in his Columbus office, but was not available for comment.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.