The Dobbins Dilemma, Part 3

Is Dwayne Dobbins finished?
Is Dwayne Dobbins finished?

Why Dwayne Dobbins Probably Won’t Serve in the House Again—Even If He Does Win

In previous posts, I’ve discussed the attempts of the Arkansas Democratic Party and the Arkansas House of Representatives to keep former Rep. Dwayne Dobbins out of the legislature, following his 2005 felony charge for sexual assault of a 16-year-old girl and subsequent misdemeanor plea bargain.

The state party’s attempt (by itself) will likely fail, but the state House’s attempt will likely succeed. Why?

Very briefly, the answer is that the state party’s attempt will probably be reviewed by courts and found by the courts to fail—but the state House’s attempt is probably not subject to review by the court system. In the case at hand, therefore, the state House of Representatives is the first, only and final decider of who gets to serve in the House—even if the people in Dwayne Dobbins’ district would prefer otherwise.

The Arkansas Constitution states that each house “shall be sole judge” of its members’ qualifications. This suggests that a determination made by the House of Representatives or the Senate of the Arkansas General Assembly regarding whether to seat, exclude or expel an individual elected to membership is not subject to judicial review.

Indeed, there are cases in which state courts have said that they are without jurisdiction to review the membership decisions of Arkansas’ two legislative bodies.

For instance, in 2002 the Supreme Court of Arkansas in Magnus v. Carr repeated its previous holdings, stating that “We have held that the House of Representatives determines the qualifications of its members, and that the courts have no authority to decide such matters except in the limited circumstances where the validity of the legislation is challenged.”

A portion of the state constitution blocks anyone from serving in the state legislature who has been convicted of an “infamous crime.” According to the Arkansas Supreme Court in Evans v. Wheatley (1939), the legislature is the sole decider as to whether previous convictions rise to the level of infamy for which the individual should be excluded from membership. (Sorry, no link – the state judiciary website only posts cases back to the mid-1990s.) You might ask: what, then, constitutes an infamous crime?

For all practical purposes, I think that the answer is: whatever the legislature wants it to be. Because there is no court jurisdiction to review the legislature’s actions, the practical answer is that the legislature can deny membership to whomever it wants.

If you think that the people in a legislative district should get to decide who they want to represent them, you won’t like that answer—but that is going to be the answer until the Supreme Court of Arkansas changes its interpretation of the relevant constitutional provisions. And that is very unlikely to happen.

There is one exception. The crime must, in the language of the constitution, be “infamous.” The legislature has a lot of freedom to decide what infamy is in this context, but I suppose that if the legislature tried to expel someone for jaywalking or getting a parking ticket, this could be found unconstitutional. Jaywalking, I assume, doesn’t seem all that infamous. (We all have some idea what the word “infamous” means, right?)

But as long as it looks like the state legislature is making a reasonable judgment that the crime is infamous (and the offense that Dobbins pled guilty to looks infamous enough to me), the courts simply will not step in. The 2005 Oldner case that I discussed previously contains an interesting discussion of how the courts have understood the word, but those cases do not bind the House.

So that is why Dwayne Dobbins will probably never serve in the House again.

I should add that (in case it’s not obvious) my posts here aren’t legal advice and shouldn’t be relied on for same; they’re just one guy’s attempt to look at the law and figure out what it says. And in the next few days, I will try to write one more post about Dwayne Dobbins and, in light of state House and state party action, assess the likelihood that he will win the election, if not a seat in the House.

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