I just got off the phone earlier with Lynn M. Boughey— the attorney for embattled legislator, Rep. Luke Simons (R – District 36). As you’re no doubt aware, Simons is facing potential expulsion from the North Dakota Legislature for informal sexual harassment allegations. But Boughey says he’s prepared to go to the State Supreme Court to fight that, if necessary.
At hand is not only Rep. Simons’ right to Due Process, under both the Federal and State Constitutions, but according to Boughey the latter document clearly lays out the circumstances under which a legislator can be removed from office. And a simple 2/3 majority vote of the House isn’t sufficient enough.
In a written statement, Boughey writes:
“The simple fact of the matter is that under our Constitution the House cannot expel a member for conduct outside its presence except for corruption or bribery. Article IV, Section 12, of the North Dakota Constitution is clear…
“If the House wants to proceed against Rep. Simons beyond a censure, its only option is impeachment under sections 8, 9 and 14 of Article XI, where the House delineates the specific conduct and then the Senate holds a trial to determine if the allegations are true and sufficient to justify removal from office.”
With the legislature looking to reconvene Wednesday, one report has it that House Republican leadership may attempt to bar Simons from the Capitol. I asked Boughey about Article XI, Section 12 of the State Constitution. That provision reads as follows:
“No officer shall exercise the duties of his office after he shall have been impeached and before his acquittal.”
This seems to indicate that unless Rep. Simons has been expelled or impeached, nothing prohibits him from entering the Capitol to carry out his duties as a District 36 Representative. Boughey agreed and even went further. He cited Article IV, Section 15 of the State Constitution which actually prohibits Simons from even being arrested at the Capitol:
“Members of the legislative assembly are immune from arrest during their attendance at the sessions, and in going to or returning from the sessions, except in cases of felony. Members of the legislative assembly may not be questioned in any other place for any words used in any speech or debate in legislative proceedings.”
In our conversation, Boughey made it clear — more than once — that he and his client expect that constitutionality will reign supreme in this case. And, as a result, if House Republican leadership chooses to proceed to impeachment and a hearing in this case, that he will be ready to call witnesses and question them under oath.
The constitutional questions at hand are among a number of other points Boughey makes. For example, he also took a jab at Legislative Council for their failure to follow their own rules:
“The need for a thorough review of the facts and a determination of the truth in this situation is all the more important given the fact that the allegations were not made through the Legislative Council’s specific complaint procedure. To our knowledge, not one of these allegations has been investigated by a neutral person as required by the Legislative Council’s own internal rules.”
He’s right. You can see those rules here.
Aside from this, the question has also been raised about whether Legislative Council can even provide House Republican leadership with legal advice on this issue. After all, the allegations originated from their office and were released by the head of their department, John Bjornson. It seems that may create a conflict of interest.
Regardless of where the public falls on this issue, shouldn’t everyone be able to embrace Due Process? I think so. Shining some light on the situation, in the quest for truth, should be welcomed by all.
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(Note: Lynn Boughey’s full statement is below. A statement from Luke Simons will follow in a separate article.)
Updated: The original article read “Supreme Court” in its introductory paragraph. In the context of the article, this was intended to mean State Supreme Court. Due to confusion on that, I have updated to post to reflect that intent. Having said that, Mr. Boughey did make it clear he has no problem taking this into the federal court system to seek relief, if needed.
- NDGOP & House Leadership are Acting Like Democrats with Simons’ Situation – The Minuteman Blog
- North Dakota Constitution a04 (nd.gov)
- Port: Pandemic protocols may offer leeway in how Legislature deals with Luke Simons | INFORUM