Lawmakers demand ‘due process’ when accused of misconduct. But what does that actually mean?

By: - May 17, 2019 7:17 am

(Capital-Star photo).

This week on the Capital-Star, we’re exploring the idea of due process and how it intersects with state government — from legislation to investigations into lawmakers. Have a thought? Let us know at [email protected].

Just minutes before he was expelled from the Colorado House of Representatives, Steve Lebsock implored his fellow lawmakers: “We must do better.”

Five women — including fellow Rep. Faith Winter — had accused the lawmaker of sexual harassment, allegations an internal House investigation ruled credible. Lebsock maintained his innocence.

On that day in March 2018, his fate seemingly sealed, Lebsock returned to an argument he had made several times before.

“Due process is important, and due process was severely lacking,” Lebsock said before yielding the floor. “I think all of you can see that.”

The phrase “due process” is applied liberally today, often to express outrage at a perceived injustice (see: President Donald Trump after two of his aides resigned over domestic violence allegations).

But in reality, due process is a constitutional guarantee that the government cannot deny a person “life, liberty, or property” without some sort of established procedure.

In the criminal justice system, that means a fair trial with impartial jurors and the right to mount a defense.

But in the #MeToo era, state legislatures across the country are grappling with how to apply the concept when a lawmaker is accused of sexual misconduct.

The stakes are even higher when the possibility of expulsion is on the table.

In Pennsylvania, neither the state House nor Senate has expelled a lawmaker over alleged sexual misconduct.

The closest it came amounted to “whispers” in 2018, when then-Rep. Nick Miccarelli, R-Delaware, was accused of physically and verbally abusing another sitting lawmaker, Rep. Tarah Toohil of Luzerne County, years earlier.

It’s a question that may face Pennsylvania’s state Senate in the coming months.

In 2017, the Philadelphia Inquirer reported that Sen. Daylin Leach, D-Montgomery, “engaged in questionable behavior with young female staffers and volunteers, from highly sexualized jokes and comments to touching they deemed inappropriate.”

Leach denied wrongdoing, while vowing to “take more care in my words and my actions.”

But pressure on Senate Democratic leadership was turned up considerably earlier this year, when the daughter of one of Leach’s former legal clients began circulating a criminal complaint alleging the lawmaker sexually assaulted her in 1991.

Democratic leadership in the chamber responded to the allegation by hiring an outside law firm to investigate, while Leach responded by suing his accuser and two of her supporters for defamation. The investigation and litigation are ongoing.

“I have always said that I wanted due process,” Leach wrote in a statement after filing suit. “Now, I am going to get it.”

How much process is due?

Expulsions from state legislatures are exceedingly rare — which made 1975 all the more extraordinary in Pennsylvania.

That year, the Senate voted to expel Democrat Frank Mazzei after he was convicted of extortion. The House did the same for Democrat Leonard Sweeney, who was convicted of mail fraud he committed before taking office.

The Pennsylvania Constitution requires a two-thirds majority in either the House or Senate to expel a lawmaker, but it gives both chambers leeway to craft their own rules.

Sweeney and two of his constituents sued after his ouster, claiming the ex-lawmaker was denied his “constitutional right to his House seat,” Pennsylvania Supreme Court Justice Samuel J. Roberts wrote in a 1977 decision.

The court ruled against Sweeney.

For one, the justices weren’t convinced he had a “property interest” in his seat, something required to invoke due process.

“It is clear, though, that if he has a property interest, it is a highly circumscribed one,” Roberts wrote. “An elected office is a public trust, not the private domain of the officeholder.”

There was some disagreement on this point among the constitutional law experts the Capital-Star spoke to for this story.

“Current doctrine classifies the bulk of ordinary government jobs as property,” John Harrison, a constitutional law professor at the University of Virginia, said by email. That includes civil servants who work for Pennsylvania’s lawmakers and for state agencies.

“It’s more doubtful, however, whether a state legislator has a property interest in a legislative seat,” he said.

Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania, sees it differently. The Sweeney decision is now decades old, he noted. Today, courts look at what state law says about when a property interest can be taken away — for no reason, or only for cause.

If it’s the latter, a person usually has a property interest.

Even if Sweeney did have a right to due process, the justices in 1977 were “convinced that his rights [had] not been violated,” Roberts wrote.

Procedural due process is a flexible concept, but Roosevelt said there are two basic components: “One is some kind of notice,” he said. “The other is some kind of a hearing.”

In other words, the government has to explain to a person what it is going to do and why, then give the accused a chance to present his side of the story.

In the Sweeney case, the justices found the lawmaker was given sufficient notice and opportunity to appear with his attorney.

“Given the circumscribed nature of a legislator’s private interest in his elected office and the overriding need for the Legislature to protect its integrity through the exercise of the expulsion power,” Roberts wrote, “it may be that the requirement of a two-thirds vote to expel by itself satisfies procedural due process.”

‘An extremely high bar’

While the phrase “Me Too” was first coined by activist Tarana Burke in 2006, it didn’t become part of the popular lexicon until 2017. That’s when accusations of rape and harassment by Hollywood producer Harvey Weinstein kicked off a national conversation about sexual misconduct by men in power.  

Since that time, allegations against four members of the Pennsylvania General Assembly have come to light. All deny any wrongdoing.

Democrats Leach and Rep. Thomas Caltagirone, of Berks County, both remain in office.

House Democrats in 2015 paid $248,000 to settle a sexual harassment complaint from a legislative staffer against Caltagirone, the Inquirer and Pittsburgh Post-Gazette revealed in 2017.

While Gov. Tom Wolf called on him to resign, Caltagirone easily won reelection in November 2018 and is now minority chair of the Urban Affairs Committee.

The two accused Republicans left office on different terms.

Ex-Rep. Brian Ellis, of Butler County, resigned in March after the Inquirer and the Caucus reported that he was under criminal investigation for allegedly drugging and sexually assaulting a woman.

Republican leaders in the House had called on Ellis to step down.

They also called for the resignation of Miccarelli in March 2018, when the Dauphin County district attorney announced an investigation into allegations made against the lawmaker by Toohil and a GOP consultant.

Toohil alleged that Miccarelli choked her in her Capitol office and threatened to kill her with a gun during their relationship, then stalked and harassed her after their breakup. The other woman, who was not publicly identified, claimed Miccarelli sexually assaulted her after their relationship ended.

An internal House investigation found the claims to be credible, while Miccarelli maintained his innocence. House Speaker Mike Turzai, R-Allegheny, and other top Republicans stripped Miccarelli of his committee positions and called on him to resign.

Miccarelli instead returned to Harrisburg in April, after a Bradford County judge approved a protection from abuse order against him from Toohil.

When Miccarelli returned to the Capitol that spring, Rep. Stan Saylor, R-York, discussed the possibility of expulsion with the Inquirer and Caucus.

He questioned whether the House would also have to take up proceedings against Caltagirone and then-Rep. Vanessa Lowery Brown, a Philadelphia Democrat who at the time had been charged with, but not convicted of taking bribes.

The idea was, at least publicly, abandoned after that.

A person familiar with House GOP leadership’s thinking noted to the Capital-Star that expulsions are “extremely rare,” and have only been done when lawmakers are convicted of a crime.

(In fact, a Bedford County representative was expelled in 1840 for spitting in the face of another member on the House floor.)

“When you expel a member, you’re overturning an election,” the person said. “That’s why it’s such an extremely high bar.”

Miccarelli retired last November with his pension. A criminal probe was dropped after the unnamed woman “requested that the district attorney close the case without charges.”

Playing by the rules

That leaves the current investigation into Leach.

Brittany Crampsie, a spokesperson for Senate Minority Leader Jay Costa, D-Allegheny, told the Capital-Star in March that the report from law firm Eckert Seamans is expected “in the near future.”

Through a spokesperson, Leach maintained that “any person accused of anything that could affect his or her legal position, career or reputation is entitled to a fair, neutral fact-finding process to determine whether said allegations are true or false.”

Like Sweeney before him, Leach invoked the rights of his constituents, not just his own, when responding to the allegations against him.  

“In the case of an elected official, the right to due process doesn’t solely affect the official accused,” Leach said through a spokesperson. “The voters have their own weighty interest in due process for their elected officials. They chose someone to represent them. And if that election could be overturned or obviated based on nothing more than a false accusation, then the will of the voters is easily reversed.

“If I elect someone, I don’t want them forced to leave office because of a false allegation.”

Since 2017, nearly 100 state lawmakers nationwide have been accused of misconduct. Just two have been expelled.

That includes former Arizona state Rep. Don Shooter, who was accused of sexually harassing several women including three lawmakers and the publisher of the Arizona Republic.

The Arizona House voted 56-3 in February 2018 to expel the Republican, after an investigation by an outside law firm found the allegations credible.

Shooter is suing the state, claiming he wasn’t afforded due process.

Staffers from both the Pa. House and Senate believe the procedures in place to investigate claims of misconduct satisfy due process.

Drew Crompton, chief of staff and counsel for Senate President Pro-Tempore Joe Scarnati, R-Jefferson, pointed to the chamber’s Rule 34.

“All constitutional rights of any Senator under investigation shall be preserved,” the rule states, “and the Senator shall be entitled to present evidence, cross-examine witnesses, face the accuser and be represented by counsel.”

In the wake of Miccarelli’s retirement, the House adopted a new, stricter policy for reporting and investigating allegations of sexual misconduct. Under the rules, the House Ethics Committee would make its findings public and recommend a next step, including expulsion.  

Terry Mutchler, the Harrisburg-based attorney who represented Toohil and the other woman, said she appreciated the House’s efforts. But she believes the chamber fell short by not considering expulsion for Miccarelli.

“When you deal with sexual assault, people go haywire,” she said. “Everyone wants to invoke due process. They want to do everything but have an expulsion conversation.”

Due process, she said, “should be a protected right in the courts.”

“But it should not offer special protection to people in the most significant position of power.”

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Sarah Anne Hughes
Sarah Anne Hughes

Associate Editor Sarah Anne Hughes covers the governor and Pennsylvania's agencies. Before joining the Capital-Star, she was the state capitol reporter for Billy Penn and The Incline, and a 2018 corps member for Report for America. She was previously managing editor of Washington City Paper, editor-in-chief of DCist, and a national blogger for The Washington Post.