The Dobbins Dilemma, Part 2

Can Dwayne Dobbins  Be Blocked from Serving in the House?

Two days ago, I wrote about the Arkansas Democratic Party’s attempt to block former state representative Dwayne Dobbins from the ballot because of his felony sexual assault charge and subsequent misdemeanor plea-bargain. I concluded that the Democratic party’s attempt to keep Dobbins off the ballot would, by itself, probably fail.

However, state legislators who do not want to see Dwayne Dobbins serve another term in the House are trying another tactic: they have proposed a rules change that would make Dobbins ineligible (assuming he wins the November election) to be sworn into or seated in the state House.

The question: If Dwayne Dobbins wins his November election, can the House amend its own rules so as to block him from serving there?

The answer: Probably.

On July 23, seven House members filed a proposed rule that attempts to ban anyone who resigned from public office as part of a plea bargain to escape a felony charge from serving in the House. The proposed rule is here: the amendment itself, the underlined two-sentence portion which would become part of the House rules, is at the second page of the link.

The rule (sponsored by seven legislators, including Speaker of the House Benny Petrus and Speaker-Elect Robbie Wills, both Democrats) is pretty simple. It prevents anyone who has made a plea bargain to avoid a felony prosecution from being seated or sworn into the Arkansas House. It also puts the time and place of swearing-in and seating of new representatives solely in control of the House. According to Petrus, some members are calling it the “Dobbins rule.”

(Why is it necessary to assign the time and place of swearing-in solely to the House? Because the current rule is that a newly elected candidate can be sworn into office by any one of a number of people – for example, a judge can do it. I had a brief interlude of anxiety about this issue in late 2004 when I was reelected to the Pulaski County Quorum Court but was unable to attend the swearing-in ceremony because of a prior commitment. I wasn’t sure if I was going to be able to legally serve, until Pulaski County Judge Buddy Villines took me aside just before the year’s first Quorum Court meeting and swore me in with seconds to spare; a county judge can also swear in certain elected officials. In short, without this portion of the “Dobbins rule,” someone who was elected to the House could sidestep the House leadership and get sworn in despite the leadership’s wishes.)

The House of Representatives cannot make a rule to exclude anyone it wants for any reason. Although it is true that the state constitution makes the House the sole judge of its membership and that members can in some circumstances seek to keep a member from being seated if they choose (as our parliamentarian, Tim Massanelli, has noted), the House is constrained by the rules of the Arkansas constitution, our state’s highest law.

Traditionally, the state constitution has been read to require that disqualification to serve in the legislature would require a conviction for embezzlement, forgery, bribery, or another “infamous crime” that was punishable by more than a year in prison. However, in 2005, the Arkansas Supreme Court found that the standards for an “infamous crime” are significantly looser. The court’s reasoning in this case was a little hazy, but the new standard for infamy seems to be a crime that can “directly impact … the ability to serve as a public official”—that is, an offense that “disqualifies them for public trust” or that impugns “the integrity of the office.”

Could a misdemeanor plea that lands a person on the child maltreatment registry meet this standard? Yes, and I’ll explain why in the next installment.

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