Nick Krieger (@nckrieger):
The Michigan House of Representatives has now concluded its investigation into the conduct of State Representatives Todd Courser (R-Lapeer) and Cindy Gamrat (R-Plainwell). Expulsion is the next logical step.
The Michigan Constitution of 1963 provides that either house of the Legislature may expel one of its members by a two-thirds vote of the members elected and serving. There are currently 109 members serving in the Michigan House of Representatives (the 75th district seat is currently vacant because Brandon Dillon resigned to become Chair of the Michigan Democratic Party). Two-thirds of 109 is 73.*
What are the reasons for which a legislator may be expelled? The Michigan Constitution doesn’t say. But it is well settled that the Constitution permits either house of the Legislature to remove a member for any reason. The Constitution requires only two things: (1) the reason for expulsion must be sufficient in the judgment of two-thirds of the members elected and serving, and (2) the particular reason for a member’s expulsion must be recorded in the Legislature’s official journal.
Since Michigan’s present Constitution was adopted in 1963, only two legislators have been expelled: Representative Monte Geralds (D-Madison Heights) and Senator David Jaye (R-Washington Township).
Geralds, an attorney, had been convicted of embezzling money from one of his clients, wealthy Bloomfield Hills heiress Geraldine Patria. Geralds argued that the crime did not warrant expulsion because it was committed in the course of the private practice of law and did not directly relate to his legislative office. In April 1978, Speaker of the House Bobby Crim (D-Davison) asked Attorney General Frank Kelley whether there were sufficient grounds to expel Geralds. In response, Kelley opined that “the members of the House of Representatives have plenary, or full and complete, jurisdiction to determine [whether] expulsion proceedings are in order.” On May 10, 1978, the House of Representatives voted 84-20 to expel Geralds from the body. In separate proceedings, Geralds’s license to practice law was suspended for three years.
In early May 2001, Senate Majority Leader Dan DeGrow (R-Port Huron) explained that he would seek to expel Jaye from the Michigan Senate. DeGrow noted that Jaye had shouted at senate staffers, engaged in questionable hiring practices, driven with a suspended license, stored sexually explicit photographs on his senate-owned computer, and repeatedly assaulted his fiancée in public. In addition, Jaye had amassed three drunk-driving convictions. On May 24, 2001, the Michigan Senate voted 33-2 to expel Jaye from the body.
Neither Courser nor Gamrat has been convicted of any crime. At least not yet. However, a criminal conviction is not required before the House of Representatives may proceed to expel one of its members. As noted above, the Michigan Constitution does not restrict the power of expulsion to any particular set of circumstances. On the contrary, it allows either house to expel a member for any reason so long as two-thirds of the members agree.
Even in the absence of a conviction, both Courser and Gamrat have publicly admitted to engaging in felonious conduct.
In Michigan, adultery remains a felony. MCL 750.30. Adultery is defined as “the sexual intercourse of 2 persons, either of whom is married to a third person.” MCL 750.29. Courser and Gamrat are both married, and not to each other.
Although Michigan’s adultery statute is rarely enforced, adulterous relationships continue to carry collateral consequences. In 2012, for example, prominent Oakland County lawyer Henry Baskin was disciplined for various instances of professional misconduct. Among other things, the Attorney Grievance Commission charged Baskin with breaching the Michigan Rules of Professional Conduct by committing the felony of adultery. Thus, even though Baskin was never charged criminally, he was still subjected to possible noncriminal penalties for his adulterous relationship.
Moreover, the report of the House Business Office identifies additional possible criminal activities by Courser and Gamrat.
The report alleges that Courser and Gamrat forced their legislative staffers to engage in political activities, such as constructing a computer database for potential use in Courser’s rumored Congressional bid and Gamrat’s campaign for Republican National Committeewoman. Such activities would likely constitute violations of the Michigan Campaign Finance Act, MCL 169.257.
The report also alleges other widespread misconduct by both lawmakers, including instructing a legislative staffer to send a false and misleading e-mail, asking staffers to place advertisements for Courser’s private law firm, directing staffers to forge signatures on official legislative documents, and intermingling personal and official property. At first blush, these acts might not sound like criminal offenses. On closer examination, however, it is clear that such behavior may constitute common-law misconduct in office. (Curiously, page 4 of the report uses the exact phrase “misconduct in office” to describe these alleged misdeeds.)
Under MCL 750.505, any offense indictable at common law that is not otherwise covered by Michigan statute may be charged as a felony and punished by up to five years in prison. Common-law misconduct in office is just such an offense. And lest you think this sounds like an antiquated law that is never used, bear in mind that both former Detroit Mayor Kwame Kilpatrick and former Wayne Circuit Judge Mary Waterstone were charged with common-law misconduct in office in recent years.
Common-law misconduct in office is defined as corrupt conduct by a public official. This can be proven by evidence that the public official has intentionally violated the duties of his or her office. People v Waterstone, 296 Mich App 121, 141-142; 818 NW2d 432 (2012). Several of the allegations contained in the House Business Office report almost certainly meet these legal requirements.
Only time will tell if Courser, Gamrat, or both will be expelled from the Michigan House of Representatives. But it’s looking more and more likely. Any legislator facing expulsion must be given notice, a hearing, and a meaningful opportunity to respond. A Michigan House of Representatives select committee will begin to hold hearings on Courser and Gamrat as early as tomorrow, and the process could drag on for weeks or even months.
When it comes to policing the conduct of its members and preserving its own dignity, the House of Representatives has the final say under Michigan law. While a run-of-the-mill affair between colleagues might be considered forgivable, woe to the state official who misuses state property or directs public employees to conceal wrongdoing. Every day that Courser and Gamrat remain in office (it doesn’t look like they will resign), there will be more and more pressure to oust the culprits. All that remains to be seen is whether 73 House members** will agree on a definitive resolution to this embarrassing episode.
* Contrary to certain recent newspaper articles, the Michigan Constitution permits a lawmaker who is targeted for expulsion to vote on the expulsion resolution. Indeed, David Jaye was one of two Senators to vote against his expulsion.
** In the event that Courser and Gamrat are ultimately expelled by way of two separate resolutions (rather than the same resolution), only 72 members will be required to approve the second expulsion resolution because only 108 members will remain “elected . . . and serving” within the meaning of the Michigan Constitution at that time.