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Vermont Legislature
Follow VPR's statehouse coverage, featuring Pete Hirschfeld and Bob Kinzel in our Statehouse Bureau in Montpelier.

Carter: McAllister Challenge

It’s been six months since State Senator 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.

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.

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.
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