McGeorge Adjunct Professor Chris Micheli

With Super Tuesday now behind us, and races for State Senate and State Assembly seats starting to take shape, let’s take a look at who judges the qualifications of its members, aside from voters when they exercise their right to vote Assemblymembers and State Senators in and out of office, or when they exercise their right to a recall election.

California’s Constitution, in Article IV, Section 5(a)1, specifies that “each house of the Legislature shall judge the qualifications and elections of its members and by roll call vote entered in the journal, two-thirds of the membership concurring, may actually expel a member.” This is also found in Article IV but in Section 5(a)2(a), which essentially says that each house of the Legislature may suspend a member by motion or resolution adopted by a roll call vote requiring two-thirds of the membership. And, the motion or resolution must contain findings and declarations that set forth the basis for that particular suspension.

The courts have been clear in deferring to the Legislature on the question of judging the qualifications and giving full respect to the explicit language in the state constitution. As a result, challenges to whether a member of the Legislature is entitled to take his or her seat, or whether to remain in office is rarely considered by the courts.

One of the most famous cases was a dispute between then-Assemblymembers Gil Ferguson and Tom Hayden. Under Article IV, Section 5, the Legislature is granted the sole jurisdiction to determine the qualifications of its members and the sole right to expel them from membership. However, a veterans’ group sought to disqualify an Assemblyman from holding office because of his alleged support of North Vietnam during the U.S. conflict, they relied upon the Constitution, Article VII, providing that no person who advocates the support of a foreign government against the United States, in the event of any hostilities, is allowed to hold any office or employment under that particular provision. The trial court properly dismissed the complaint.

The appellate court ruled that under the same constitutional principle of separation of powers, plaintiffs were foreclosed from attempts to prohibit the Attorney General, or the Secretary of State, or even the County Registrar of Voters from certifying the election results, or the swearing-in, or disbursement of money to the Assemblyman or interfering in the Legislature’s determination of the qualifications, fitness, and elections of its own members. This decision was issued in 1986 by the California Appellate Court called California War Veterans for Justice versus Hayden.

There are numerous other cases, dating as far back as 1905, that all defer the judgment of the qualifications of members of the Legislature to the Legislature. Those decisions are based upon a clear reading of the state constitution and the exclusive power that’s vested in the Legislative branch of government to determine the qualifications of its members.

You can find the full transcript of today’s audio here.

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