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Can lawbreaking lawmakers keep their jobs?

Can a politician who breaks the law be forced to quit his job and be ordered not to run again?

That question could interrupt the Michigan Supreme Court’s summer recess.

The backstory

In 2015 State Senator Virgil Smith of Detroit plead guilty to shooting his ex-wife’s car. As part of the plea bargain, Smith agreed to quit his Senate seat, and to not run for anything again for five years, the duration of his probation.

This isn’t an uncommon arrangement for politicians who run afoul of the law; give up your seat and don’t run again because you violated the public trust.

Smith agreed to that deal, but the judge in the case said, ‘nope.’

“The aspect of the plea which required him to resign from his office, and not hold public office or appointed office during his probation offends the state constitution,” Wayne County Circuit Court Judge Lawrence Talon ruled. He said the judicial branch can’t force a lawmaker to resign even if the lawmaker agrees to it. Constitutional separation of powers.

Not so fast

Wayne County Prosecutor Kym Worthy wasn’t happy with that ruling. So, she went to the Michigan Court of Appeals to enforce the plea deal.

But, by then, Smith hadalready resigned from the Senate. And courts like to deal only with active questions. So, they said, ‘Smith’s already resigned, so there’s no point in us ruling. And he’s not running for anything, so there’s no point in us ruling.’

But, then, this summer, Virgil Smith decided to run for the Detroit City Council. And in last Tuesday’s primary, he came out as one of the top two candidates.

So, now Prosecutor Worthy is back, saying: it’s no longer a moot question. She just went to the Michigan Supreme Court and filed an emergency appeal. She says there needs to be an answer by next week, the deadline to get ballots for November to the printer.

Legal questions

Worthy says voters need to know whether Virgil Smith is eligible to run. And to know whether there’s some chance that, if he wins, he still might be forced to step down.

But there’s nothing forcing the Supreme Court to issue a ruling or an order by next week. It’s simply Worthy’s request.

No matter what the court does however, it will matter.

Politicians often hold onto their office while under investigation. Maybe it’s because they believe they’ll be found innocent. But, it’s also a bargaining chip in talks with prosecutors - the idea that they’d give up their seat for a reduced sentence.

Whatever the Supreme Court decides - yay, nay, or never mind - it’ll have a profound impact on how Michigan prosecutors deal with lawbreaking public officials.

Zoe Clark is Michigan Public's Political Director. In this role, Clark guides coverage of the state Capitol, elections, and policy debates.
Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987.
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