Delegate Morrissey and the Voters Who Love Him

So when we left off our discussion of Virginia Delegate Joseph Morrissey (D-Henrico turned I-Prison), I noted:

All of this is likely academic as the voters will probably not take up Morrissey’s case as a cause celebre ala Wilkes. But it should be noted that Wilkes was a famous libertine and some of his expulsions were based on his authorship of a pornographic parody that scandalized British society of the time. So you never know.

It’s always a good idea to qualify your predictions so subsequent events don’t make you look like a fool. As it happens, Morrissey’s constituents (at least those who bothered to show up in a low turnout election) were perfectly happy to keep him as their representative in Richmond, even though it means he will be commuting from a jail cell to his seat in the oldest continuous lawmaking body in the Western Hemisphere.

The Virginia House of Delegates, which began its 2015 session this week, is in a tizzy. The Washington Post reports that the House Democratic caucus is “deeply divided” over what to do with Morrissey. Following his conviction last month for the misdemeanor of contributing to the delinquency of a minor (his 17 year-old receptionist), the caucus was united in believing he should be expelled. But “some Democrats have changed their minds” since Morrissey resigned and then won the special election called to fill the vacancy, believing that “ousting the delegate [now] would undermine the will of the voters.”

Well, of course. It is precisely Morrissey’s re-election by voters fully informed of his misdeeds that creates the legal issue with regard to his expulsion. The Post quotes one Virginia delegate as saying “the lawyers who have been looking at this are somewhat torn and divided.”  The article doesn’t make it clear, but I suspect that the division goes to the question of whether there is a constitutional or jurisdictional bar to expelling Morrissey under the circumstances presented.

This, however, is not the only question. Even if one assumes that the House of Delegates may constitutionally consider expelling a member based on information that was publicly known at the time of his election (which, I suspect, it probably can), it should do so in accordance with legislative tradition and precedent. That tradition and precedent hold that the legislative body should not use the expulsion power to second guess the voters. The danger presented by allowing members of poor moral character to serve in the legislature is outweighed by the danger of allowing the legislature to select its own membership.

As discussed previously, there may be extraordinary circumstances in which this principle does not control. But it is hard to see how such circumstances are presented here. Morrissey’s case seems to be on all fours with Wilkes, which is the textbook example of how the expulsion power should not be used. The arguments made in the Wilkes case, as set forth in Benjamin Cassady’s article, sound an awful lot like those described in the Post article on Morrissey. Those demanding expulsion insist on the need to protect the dignity and propriety of the legislative body, or to prevent it from becoming a “laughingstock.” See Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209, 229-33 (2014). If one accepts that the issues presented in Wilkes were ultimately settled in his favor, then it seems they should be settled for Morrissey as well.

Which brings us to the Washington Post editorial on the subject. The Post allows that “Mr. Morrissey’s fellow legislators could probably expel him,” but discards that option for pragmatic reasons, i.e., Morrissey might just run and win again. Instead, the Post suggests that “the General Assembly would do well to censure and marginalize Mr. Morrissey.”

Punishment that only affects Morrissey personally would not seem to offend the principle of the Wilkes case. But depriving Morrissey of his ability to represent his constituents (the Post suggests that “he could even be banned from setting foot on the floor of the House of Delegates”) would seem to be even worse than expulsion from the standpoint of protecting the rights of voters.

Yes, Morrissey’s constituents are idiots. IMHO, so are the constituents of many other legislators who shall remain nameless. But the principle of the Wilkes case is that the voters get to judge the legislators, not the other way around.


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