House Speaker Matthew Shepherd filed today the resolution he promised calling for expulsion of Rep. Mickey Gates, the Hot Springs Republican, who pleaded no contest to a felony count of failure to file state income taxes. It was a plea bargain over 15 years of failure to pay taxes.
I’m seeking a comment from Gates’ attorney, Jeff Rosenzweig, but he’s already outlined a legal argument. The resolution notes that the legislature passed a law, Act 894 of 2019, saying a no-contest plea to a “public trust” crime was sufficient to disqualify someone from holding office.
Rosenzweig has said this adds an additional condition to the Arkansas Constitution, which the legislature can’t do in most circumstances. The Constitution says only that “conviction” of a crime is a disqualification. Arkansas Supreme Court precedent says resolution of a case under the first offender law, which covered Gates’ no-contest plea, does not constitute a conviction.
The resolution acknowledges the potential legal argument, but also raises the point that the House is the arbiter of its membership:
Act 894 of 2019 is not the main premise for the action requested in this resolution, but it offers further support as to what the Ninety-Second General Assembly considers grounds for expulsion of a sitting member from the membership of the General Assembly. Action taken to punish Representative Gates pursuant to this resolution is undertaken in accordance with the power granted by the Arkansas Constitution to the House of Representatives as the sole authority for discipline of its members,
A two-thirds vote of the House is necessary to remove Gates, who has refused to resign.
The resolution will be put before a caucus of the House, but a date has not been set yet, a spokesman for Shepherd says.
Noted: Removal for a constitutional wrong would be permanent. But should the vote rest on the House’s control of its membership, it wouldn’t prevent Gates from running again in a future election. UPDATE AND CORRECTION: Indeed, the Constitution is clear, a member can be expelled only once for the same offense. So, should Gates be expelled, he could be re-elected for a new term beginning in 2021 and a future House couldn’t expel him again.
Rosenzweig confirmed that Gates has no intention of resigning and that he will file for re-election. He said he wasn’t ready to say Gates would sue if there is an expulsion vote. That would depend on the final wording of the resolution adopted and perhaps comments made during the course of the debate. He did acknowledge the House’s control of its membership, but said facts would determine if such a vote was reviewable by a court. As a practical matter, it might be hard to complete a court challenge before Gates’ term ends in 2020.
In short, Rosenzweig argues that the House, at best, can expel Gates for the rest of this current term, but is constitutionally unable to bar him from running again, having plea-bargained as a first offender. And he cant be expelled again for the same offense — tax cheating.
Gates’ guilt was all but a given from the record of non-payment outlined in charges pending when he was last re-elected. Voters in his district still knowingly chose a crooked Republican over a Democrat.