Convicted felon and California Senator Rod Wright has probably forfeited his seat

UPDATE II: Commenter reality czech notes, "Gov Code 9055 provides that a Legislator forfeits office upon conviction of a crime "defined in THIS ARTICLE." Rod Wright wasn't convicted of any crime specified in that article of the code, so I'm not sure why GC 9055 would be relevant." Um, excellent point. "This article," that is Article 3, "Article 3 – Crimes Against the Legislative Power," is very narrow in its scope. So automatic forfeiture would only apply to the commission of these limited crimes. If that's the case, then the legislature is within its right to expel Mr. Wright if it chose to do so--but the seat was not automatically vacated. Thanks for the important correction.

UPDATE: Crisis averted. Senator Wright has resigned.

California state Senator Rod Wright was recently found guilty of eight felonies, including voting fraud. The state Senate had suspended him (and continued to pay his salary), but his seat has not been vacated: he has not been expelled by the Senate.

That prompted some thoughts from Rick Hasen about the possibility that under California law Mr. Wright automatically vacated his office upon conviction. I expressed some skepticism.

But after further research, I think Rick has it right--albeit for slightly different reasons.

Here's what California Government Code 9055 says:

Every member of the Legislature convicted of any crime defined in this article, in addition to the punishment prescribed, forfeits his office and is forever disqualified from holding any office in the State.

That's slightly different from the provision that Rick cited in his post, which refers to public and executive officers--and that's the basis of interpretation in this 1977 California appellate decision.

The text suggests that forfeiture is automatic. Indeed, the court's interpretation of the analogous civil officer statute finds that forfeiture is automatic upon conviction.

This is, I think, a fairly unusual statute. It is highly unusual for a legislature to cede the power to remove its members to another authority, or to make it occur automatically by statute. The power to expel its own members is a valuable function of the legislature. But § 9055 appears to do just that--automatically result in a vacant seat upon conviction.

On what basis might the legislature do so? Initially, one may consider the California Constitution's section on "Public Officers and Employees," which states,

(a) Every person shall be disqualified from holding any office of profit in this State who shall have been convicted of having given or offered a bribe to procure personal election or appointment.
(b) Laws shall be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office . . . .

(Query: this provision arises in Article VII, which is not Article IV, "Legislative," and it might well be the case that the "office of profit" or "office" described in this section do not extend to legislative offices--but that might be a question for another time.)

And the legislature went ahead and enacted § 9055, which appears to apply automatically upon conviction.

That would also comport with how the legislature treats expulsion of its own members. In 1905, the California Supreme Court affirmed that the legislature "has the implied power to expel a member for any cause which it may deem sufficient." French v. Senate of State of California, 146 Cal. 604 (1905). I suppose the legislature could also exclude a basis for expulsion as a statutory matter, even absent the constitutional authority cited above.

Further, the Senate Rules (PDF) include the responsibilities of the "Committee on Legislative Ethics," which sets forth a standard of conduct for members of the Senate. That committee handles complaints and addresses potential discipline for members, including expulsion. But the only thing related to a felony in those rules is a guideline that the committee may release records to the public if there is probable cause that a felony occurred. So, in a sense, it would make sense for there to be an automatic consequence for the conviction of an actual felony, one that didn't require the further step of expulsion.

I don't think it's true, as the California Senate leader suggested in an interview, that it would be "improper" to expel a member of the Senate charged but not convicted of a crime--that's certainly neither the inherent power of the legislature nor the standards set forth in the Senate's own rules. Nor, as "Senate officials" suggest, "only elected lawmakers can boot a fellow legislator from office." That's usually true, to a point--the legislature here, however, apparently ceded that decision, and it now takes place automatically, by statute, upon conviction of a felony.

Either the legislature should repeal the statute, enacted in 1943, that includes automatic forfeiture of a seat upon conviction of a felony, or it should embrace the law that it enacted so many years ago.