Nick Krieger (@nckrieger):
Should State Senator Virgil Smith, Jr. resign from the Michigan Senate? Absolutely. Did Wayne Circuit Judge Lawrence Talon properly rule that he could not force Smith to resign against his will? Absolutely.
Last May, Smith used a rifle to fire several shots at his ex-wife’s car outside his home at 18601 Wexford Street, near Pershing High School on Detroit’s east side. Pursuant to an initial plea deal in which more serious charges were dropped, Smith agreed to resign from office and to serve a term of probation (including 10 months in jail).
Now, Smith has decided that he does not want to resign from office (at least not yet). The Wayne Circuit Court has ruled that it cannot force him to.
You might recall that former Detroit Mayor Kwame Kilpatrick agreed to resign as part of his state-court plea deal. However, Kilpatrick voluntarily signed a letter of resignation. Naturally, a public official can voluntarily resign from office at any time, for any reason.
Smith, on the other hand, has apparently changed his mind and no longer wishes to resign. So the question is whether the court can force him to step down.
Kilpatrick was a mayor. The Michigan Constitution gives city and village electors broad authority to frame their own charters, including the power to adopt provisions concerning local elected officials. The Detroit Charter requires the resignation of an elected city official upon his or her conviction of a felony. In addition, Michigan law provides that the governor shall remove a local elected official upon his or her conviction of a felony. Thus, in Kilpatrick’s case, resignation would have been required whether it was part of the plea deal or not. Any error in including resignation as a term of the plea deal was consequently harmless.
State legislators are different. Under the Michigan Constitution, state legislators may only be removed from office by impeachment, expulsion, recall, of for committing one of several specific, constitutionally enumerated felonies resulting in disqualification (subversion, breach of the public trust, or a felony of dishonesty, deceit, or fraud committed in the legislator’s official capacity). Of course, as noted earlier, a state legislator can voluntarily resign from office for any reason. But the Michigan Constitution simply does not allow the circuit court to order resignation as part of a legislator’s sentence for an unenumerated crime. Neither assaultive offenses nor firearms crimes are listed as disqualifying felonies in the state constitution.
Virgil Smith, Jr. did not commit any of the disqualifying felonies listed in the Michigan Constitution. Therefore, as a matter of constitutional law, the circuit court correctly concluded that it could not force Smith to resign from office against his will.
The Wayne County Prosecuting Attorney has indicated that she will seek to withdraw from the plea agreement and take Smith to trial on all original charges if he does not resign from office. It is true that the circuit court cannot pick and choose by enforcing one part of a plea deal but refusing to enforce another part. But it is also true that the prosecutor should not have included resignation as a term of the deal in the first instance. In short, errors have been made all around in this case.
Several members of the Michigan Senate, including Minority Leader Jim Ananich, have indicated that they will pursue proceedings to expel Smith from the chamber if he does not resign. A state legislator may be expelled by two-thirds of the members elected to and serving in either house of the Legislature for any reason. And as we saw in the case of Todd Courser and Cindy Gamrat, an expulsion proceeding can move rather quickly when the leadership wants it to.
In the end, Smith will probably resign from office. However, contrary to the protestations of the Wayne County prosecutor, the circuit court cannot force him to do so against his will.