Commentaries: 2 Takes On Ousting Norm McAllister

Nov 17, 2015

The Vermont Senate took a step closer to ousting an embattled member of its body Monday when Caledonia Sen. Joe Benning drafted a resolution to expel Franklin Sen. Norm McAllister, a fellow Republican who was arrested in May on sexual assault charges.

Here, two VPR commentators offer thoughts on the matter. Jared Carter explores the legal intricacies of an expulsion of this sort, while Julie Kalish draws a parallel to Title IX proceedings in academia.

Jared Carter: McAllister Challenge

It’s been six months since State Sen. Norm McAllister was accused of sexual assault. And while the senator remains innocent until proven guilty under the constitution, legislators have begun to discuss the prospect of expelling him from the Senate.

Despite the shocking nature of the crimes McAllister has been accused of, the process by which the Legislature could expel him is probably best described as uncharted legal territory in Vermont. According to the National Conference of State Legislatures, Vermont has never expelled a sitting member of the Legislature. Part of the reason expulsion is rare may be the tension between several parts of the Vermont and U.S. Constitutions.

Chapter 2 of the Vermont Constitution is clear: The Vermont Senate has the power to expel any of its members. This is tempered by the caveat that a senator may not be expelled for any reason that was known to that senator’s constituents prior to his or her election. The rationale for this has its roots in Article 8 of the Vermont Constitution, which provides that the people have the right to elect the legislators they choose.
 

Jared Carter teaches legal activism, legal writing and appellate advocacy at Vermont Law School. He also directs the Vermont Community Law Center, a non-profit legal services organization focused on social justice, constitutional rights and consumer protection.
Credit Courtesy

Because legislative power ultimately lies with the people, expulsion from the Senate is not allowed if the voters knew of the reason for expulsion and still elected that individual. But the allegations against Sen. McAllister were made after he was most recently elected to the Senate. So the Vermont Senate could likely proceed with expulsion without running afoul of these provisions of the Vermont Constitution.

But just like any citizen, McAllister is also protected by the U.S. Constitution. And, just like any citizen, the process by which he may be punished is subject to due process protections in the Bill of Rights.

In light of the myriad issues facing the state of Vermont in the coming year, the Senate will have to decide for itself whether its time would be well spent expelling Sen. McAllister. However, should it choose to proceed, any alleged violations should be filed in writing, the accused should be notified of his right to counsel, as well as the time and place of all hearings.

Then, since McAllister is presumed innocent, the Senate should uphold the right of the accused to confront all witnesses against him and to call witnesses on his behalf.

And finally, the full membership of the Senate should make the final expulsion decision.

Doing these things would help insure that the rights of the people and the rights of the individual are protected by the process.

Julie Kalish: Legitimacy Of Process

A lot’s been said about the case of Norm McAllister, the Vermont Senator arrested in May for sexual assault. Although press coverage died down over the summer, it re-emerged in earnest when McAllister made it clear he would not resign ... and that the Senate would have to decide whether or not to expel him from his post.

As others have explained, Chapter 2 of the Vermont Constitution would permit the Senate to oust McAllister. And it seems they’re inclined to do so. The trick, as many have noted, is figuring out how.

The Senate has never expelled a member and it has no process developed for doing so. All agree such a process must include notice, some kind of investigation, hearings, and an opportunity for self-defense. However, what these elements might look like is far from clear, especially in a situation, like this one, when there’s a pending criminal case.

Julie Kalish is a Vermont attorney and Lecturer at Dartmouth College in the Institute for Writing and Rhetoric and is a board member for Vermont ACLU.
Credit Eli Burakian

In hearing these conversations, I can’t help but think about their parallel within the academic world.

In the past handful of years, universities across the country have come under increased scrutiny for not doing enough to combat campus sexual assault. In January 2014, the White House launched its Task Force to Protect Students from Sexual Assault. By that spring, 55 colleges and universities were under Title IX investigation for the way they handled sexual abuse complaints.

Universities were quick to respond. Many hired administrators whose explicit job was to address Title IX compliance. Schools also revised their procedures for responding to and processing sexual assault complaints.

But many of these newly drafted policies drew fire. In a much-publicized statement, 28 faculty members from Harvard Law School argued that Harvard’s new protocols violated basic due process rights for the accused. They also noted the inherent conflict of interest created by having the institution’s Title IX compliance office handle all key elements of this process.

Schools face an extremely difficult situation. They’re not criminal law enforcement. They’re institutions that must protect their community members and that have their own rules for community membership. And, like the Vermont Senate, these institutions have important work that must be able to proceed effectively, without substantial disruption and detriment to those they serve.

The legitimacy of the Senate’s actions won’t turn on McAllister’s innocence or guilt. Legitimacy will turn on process. And the difficulties universities have faced are instructive.

To expect that any institution will be able to craft a perfect procedure under fire is probably more than we can expect. But we can demand thoughtfulness and care.