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Constitution Optional, Or “Why Doesn’t The Arkansas House Remove Josh Johnston?”

February 6, 2012

If bad mustaches were a crime, he'd be serving life.

If you’ve paid the slightest attention over the last year or so, you already know that Rep. Josh Johnston (R-Rose Bud) was convicted in 1995 of passing hot checks, an A misdemeanor.  (See: Josh Johnston Conviction Order.)  Had anyone other than Johnston known this prior to his being elected, someone — say, perhaps, Steve Choate — could have filed a lawsuit, seeking to keep Johnston off of the ballot.  That lawsuit would have been successful, too, as Article 5, section 9, of the Arkansas Constitution makes it clear that:

No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime, shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State.

Now, as discussed elsewhere, it does not matter that Johnston pleaded guilty to a misdemeanor rather than a felony.  “Infamous crime” has been defined as more than just felonies; it is any misdemeanor involving an element of dishonesty.  See State v. Oldner, 361 Ark. 316 (2005) (“It can be said that the framers in drafting Article 5, Section 9, intended that an infamous crime be one involving elements of deceit and dishonesty”).

If you are the type who asks questions aloud while reading blogs, you might be saying, “hey, why hasn’t someone sued to have Johnston removed if he’s ineligible?”  That’s a good question, but therein lies the rub; once Johnston was seated by the Arkansas House, he was no longer subject to removal via a lawsuit due to a little thing known as the separation of powers.  After all, once the House has determined, however erroneously, that someone is qualified to be seated as a legislator, allowing the courts to remove an ineligible legislator would step all over the toes of the legislative branch as a co-equal in our tripartite government.

“But, wait,” the question-asking-aloud reader might wonder, “does that mean nothing can be done, and Johnston and his mustache are free to cast votes during the fiscal session?”

That, too, is a good question, especially when you think about the Fred Smith and Leslee Post situations from last year.  As you might recall, Smith was seated, despite strong evidence that he lived in Mississippi.  It was only after Smith was convicted of felony theft that the House, Democrats and Republicans both, made it a point to let people know that they were planning on voting to remove Smith.  Ultimately, however, Smith resigned post-conviction, and the House’s plan to remove him was moot.

On the other hand, when it came to Leslee Post (D-Ozark), Rep. John Burris (R-Harrison) moved to defer her seating until the Republicans could find some way to prevent it the Claims Commission could review the votes cast for Tom Fite, who had been declared ineligible based on a 1984 conviction for theft.

Rep. John Edwards said no injustice would be imposed by seating Post and that an objection to her eligibility could be filed at any time. Republican Rep. Andrea Lea raised a question of whether a court could supercede the House in determining eligibility. Parliamentarian Tim Massanelli noted a difference between ruling on elections and seating. There’s ample precedent for courts ruling on candidates’ ballot eligiblity, whatever the House’s final authority might be on seating people who were elected.

As of a year ago, you had a bunch of Democrats and Republicans who were willing to vote to remove one of their own once they were convinced he was ineligible based on an Article 5, section 9 violation.  You also had a bunch of Republicans who wanted to prevent the seating of a Democrat, despite the fact that the Republican in the race had been declared ineligible for his own Article 5, section 9 violation.  Funny thing, those situational ethics in the ARGOP.

Which, finally, brings us all up to speed.

Long story short, Josh Johnston (a) is not eligible to hold the seat he’s in right now and (b) can only be removed via a vote by his peers in the Arkansas House.  Sadly, you’d have to be pretty delusional to think that more than a few current members of the House care enough about the Arkansas Constitution to actually remove Johnston.  (That sad reality should not dissuade you from contacting your Rep, mind you; just don’t expect miracles.  Or, if you are really a trouble-maker, you could just contact Johnston directly.  That would be fun.)

If there’s a silver lining here, it’s that Johnston is up for re-election this year.  He filed the paperwork back in November, and he apparently thinks that no one will bother to file a lawsuit to get him knocked off the ballot in 2012.  That’s some hilarious hubris right there, friends.

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One other note on Johnston, simply because I feel like putting all my eggs in this e-basket: A quick search of the Secretary of State’s absolutely horrendous website reveals that Johnston has not filed a single quarterly report, despite having nearly $1,300 in carryover funds following the 2010 general election.  (Willful failure to file those reports is an A misdemeanor, by the way.)  He’s also failed to file a 2012 statement of financial interest.

Other than all of that, however, Johnston is the model candidate and archetype of an ethical lawmaker.  Just ask him, I guess.