Eric Davis: Suspension of lawmaker a bad idea

Last May, Vermont Sen. Norman McAllister, R-Franklin, was charged with several sex crimes. McAllister is alleged to have rented a trailer on his property to a woman in exchange for sex. He is also charged with sexually assaulting a woman who worked in his office as an intern. When the Senate returns in January, one of its first agenda items will be to consider a resolution suspending McAllister from his legislative duties.
McAllister’s conduct, if proven in a criminal court proceeding, is reprehensible. However, like all criminal defendants, he is entitled to the presumption of innocence, and to offer a full legal defense against the charges.
In my opinion, suspending him from the Senate is a constitutionally dubious course of action. If McAllister’s colleagues believe he is unfit to remain as a member of the Legislature, they should move to expel him, not suspend him.
The Vermont Constitution gives the members of the House and the Senate the power to expel their own members. No criteria for expulsion are stated in the Constitution. Like impeachment, expulsion is a political process, not a judicial process. An “expellable offense” is basically whatever a majority of the House or Senate decide it is.
If a legislator is expelled, the seat to which he or she was elected is deemed vacant. The vacancy is then filled by appointment by the governor, after receiving recommendations from the local party committee, in the same way as vacancies due to the resignation or death of a member. The period in which constituents who live in a vacant seat are not represented in Montpelier is short, typically only a few weeks.
The Vermont Constitution says nothing about the House and Senate having the power to suspend one of their members. Under the resolution before the Senate next month, McAllister, who has already been stripped of his committee assignments, would not be able to participate in Senate floor proceedings or to vote on bills. He would, however, continue to receive his legislative salary.
If McAllister were to be suspended under these conditions, the residents of Franklin County would lose representation in the Senate for an extended period of time. The suspension could quite well last until the end of the session in May, especially if McAllister’s trial on the criminal charges is delayed by procedural motions, or if he is convicted and then files an appeal with the Vermont Supreme Court.
There are few precedents for expelling members of the Vermont Legislature. Expulsion proceedings would presumably require the Senate to take testimony on the charges against McAllister, and then to proceed to a floor vote.
Taking testimony could jeopardize McAllister’s rights in the criminal proceeding. He could claim that news coverage of the expulsion proceeding would make it more difficult to find impartial jurors for his trial. Also, he could choose to take the Fifth Amendment rather than testify in the expulsion hearing. The Senate would have to consider these risks when deciding whether to begin expulsion proceedings before the end of McAllister’s trial.
Several of McAllister’s colleagues in the Franklin County delegation have urged him to resign his seat, so that Gov. Shumlin could get names from the local Republican committee and appoint a replacement soon after the Legislature convenes in January.
If McAllister does not resign, the question becomes whether a majority of the Senate believes that removing him from the Senate now is more important than allowing the criminal justice process to take its course. If so, expulsion proceedings should begin in January. If not, the Senate should set aside the suspension motion, allow the case to work its way through the courts, and consider expulsion if the trial results in McAllister’s conviction.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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