Tuesday, February 08, 2011

Impotent or Efficient Boston City Council?

Mark Wolf seems to be having a grand time with the legal issues around ex-Boston City Councilor Chuck Turner's expulsion from the body. He sent a fat order to the MA Supreme Judicial Court.

The Chief Judge of the First U.S. Circuit Court wants our justices to set some precedence on the limits of power of the Council. Like the guy who says, "I have a quick question," when it's bound to be a long one and one requiring considerable trouble, Wolf includes 16 pages of background before those quickies.

Tip of the toupee: Adam over at Universal Hub posted the 18-page legal memo cite here.

Those two questions, which he figures are state and not federal concerns are:
  1. Did the Charter of the City of Boston, or any other provision of the laws of the Commonwealth of Massachusetts, authorize the Boston City Council to promulgate Rule 40A of the Rules of the Boston City Council and employ it to remove an incumbent Councillor from office before he was sentenced and removed automatically by operation of M.G.L. c. 279, §30?
  2. If so, is Rule 40A a civil or a criminal provision of law?
From way out here, things are simpler. This really is a matter of home rule. The city charter says the Council makes its own rules. Their 40A rule reads they judge who is qualified to sit in the body and can meet to determine if a member convicted of a felony is qualified.

To the legal mind though, the suit that would declare Turner's expulsion in December illegal is not so plain. Specifically:
  • Turner claims the expulsion was a criminal sanction and not a civil one, thus becoming an ex post fact act violating Article I, Section 10 of the U.S. Constitution, as well as the 1st and 14 Amendments to it.
  • If the city charter allowed rule 40A and its application to expel Turner, there would be no such violation.
  • No MA court has previously decided such questions about the Council's authority.
  • The MA law (Chapter 279, Section 30) that ousts any elected official sentenced to state or federal prison, in Wolf's memo, "may or may not indicate that municipalities have the power to remove officials in other circumstances."
  • Likewise, even though Turner joined the unanimous vote for rule 40A, because that happened between his corruption indictment and his sentencing, "it is susceptible to being found to be criminal in nature."
The seeming vindictiveness of this suit, both in its seeking damages and to stop the special election to replace Turner is coincidental, according to his attorney, Chester Darling. The Globe quotes him as, "His concern is that he loved that body. . . . He doesn’t want that nasty procedure left behind. The issue is an abuse of process and an abuse of power."

Yet in clear anticipation of the possibility of ouster at the December special meeting of the Council, Turner and his supporter Councilor Charles Yancey threatened such legal action and possible humiliation to the Council should it succeed. I rather doubt though should the SJC say the Council was fully within its rights that those on the other side would say how wrong they were and apologize to all concerned.

This is great stuff for lawyers and judges. A decision on this may not appear for a couple of months, as the SJC justices kick it around. Clarity will be good here.

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