For the last few weeks, a special committee of the Michigan Senate has been attempting to determine whether one of its members, David Jaye, is fit to serve. Jaye, a twice-convicted drunk driver who has been arrested for altercations in which he allegedly struck his fiancee (those charges were recently dropped), is accused of verbally abusing Senate staff, keeping pornographic pictures on his office computer and using Senate computer staff to load personal software onto his computer.

Soon after his arrest in Florida last month for striking his fiance, several Republican senators, led by Majority Leader Dan DeGrow of Port Huron, began talking about expelling him. A motion to do just that was introduced and DeGrow created a six-member committee to examine Jaye”s “qualifications” to serve and recommend a form of reprimand for Jaye, such as an expulsion or censure. The final decision rests with the full Senate. An expulsion requires a 2/3 majority, or 26 of the 38 senators. A censure, or a formal condemnation of Jaye, only requires a majority.

The Jaye affair comes down to two things: politics and interpretation.

First, politics. Jaye (R-Washington Twp.) is seen as an embarrassment to the Republican Party for his behavior and his outspoken views on various issues, which are perceived as conservative even for a GOP legislator.

In addition, Jaye is a liability to the Michigan GOP. The Republicans now hold a 23-15 majority in the Senate. If 2002 is a bad year politically, that majority will shrink (as Al Gore took the state last November) to an uncomfortable margin and control of the Senate may hinge on which party wins Jaye”s Macomb County district.

So the GOP wants a candidate who has the best chance of defeating a Democrat. Evidence shows that Jaye is not that person. He won his last election in 1998 with 60 percent of the vote, but all it takes is one-sixth of the people who would normally vote for him to be revolted by his behavior and all of a sudden the 2002 race becomes close. At that point, Republicans are in trouble.

What the GOP most likely wants to do is force him out, run somebody (without his type of baggage) in the special election to succeed him (see footnote at bottom) who has a better shot of winning in the general election. Although Michigan law does not prevent Jaye from running in the special election to succeed himself, the GOP would probably throw all of its efforts into recruiting somebody who can defeat him in a primary if he were to. Or they could embarrass him so badly he would decide not to run. That person would be in a good position to be reelected next November, when control of his seat matters. For the same reasons, the Democrats would like to keep Jaye in his seat through 2002.

Second, interpretation. The state Constitution is especially vague about expulsions. More vague than defining what a high crime and misdemeanor is (harken back to the Clinton impeachment trial). Basically it says either house of the Legislature determines when it is proper to expel. It reads, “Each house shall be the sole judge of the qualifications, elections and returns of its members, and may, with the concurrence of two-thirds of all the members elected thereto and serving therein, expel a member.”

The only thing that is clear is that a felony is a good reason to expel. It was also rather clear-cut in 1998 when then-Sen. Henry Stallings (D-Detroit) resigned before he was expelled for having a state employee work in his private art gallery.

But Jaye hasn”t committed a felony.

Everyone agrees the Senate can expel one of its own for any reason, but the question remains: when is it good public policy to do that?

Jaye is accused of screaming and swearing at Senate staff and using staff to upload personal software on his computer, but those accusations are not going to do him in, and there”s a good chance he”s not the only senator who has done such things. The same goes for his having a topless photo of his fiance on his office computer.

The other question the senators will have to answer is whether the crimes Jaye has been convicted and/or accused of driving while intoxicated and domestic assault warrant his removal.

One observer is particularly leery of expelling him for those reasons.

Wayne State University Constitutional Law Prof. Robert Sedler said the standard should, with few exceptions, be a felony.

“If a person has been convicted of a felony, the person has had a fair trial in accordance with all of the constitutional safeguards and has been found guilty by a jury of his peers by a reasonable doubt,” he said.

Sedler added an exception should be made if, say, there was a preponderance of evidence showing a legislator had taken a bribe but couldn”t be convicted because of reasons such as a technicality or a prosecutor not wanting to indict.

But others say Jaye has done enough damage already.

Sen. Thaddeus McCotter (R-Livonia), chairman of the committee investigating Jaye, said times have changed. Thirty years ago, he said, striking a female or getting caught driving drunk were not considered serious matters. Now they are.

“What people are saying in the papers are it should be a felony,” McCotter said. “But that”s for somebody who does one thing. You could, under that interpretation have a serial sexual harasser on the floor of the Senate. That”s not a criminal penalty and you could do nothing about it.”

Sen. Leon Stille (R-Spring Lake), who introduced the bill to expel Jaye, said one who serves in the Senate should be someone “that doesn”t break the law repeatedly. One that doesn”t flaunt the law and basically says “catch me if you can.” One that doesn”t lie repeatedly when he is caught and then try to use every method under the sun to avoid conviction or to get off scott-free and then laugh about it. One that doesn”t make a spectacle of himself and one that doesn”t abuse other people in any way, shape, or form, whether it be verbal or physical.”

Another member of the committee, Sen. Alma Wheeler Smith (D-Salem Twp.), said senators also have to take into account how Jaye”s status as a member of the Senate reflects on the body as a whole.

“I think you need to be dealing with some fairly serious offenses that not only affect the way the senator performs his job or her job but reflects negatively on the ability of the Senate or the Legislature as a whole to perform with credibility,” she said.

Sedler, the law professor, dismissed this argument, saying, “the theory is that his behavior has been so outrageous, et cetera, that it has brought the Senate into disrepute. What that means is that the senators, and especially the Republicans, are embarrassed by his conduct and they”re going to be tainted by it.”

The committee investigating Jaye is expected to issue a recommendation soon with the possibility that the matter will also come to a vote in the full Senate next week.

What weight the senators give to their political leanings and their interpretation of the rules is impossible to determine, as is the final outcome. It”s like betting on Michigan weather.

Footnote: Michigan law does not prevent Jaye from running in the special election to succeed himself. The GOP would probably throw all of its efforts into recruiting somebody who can defeat him in a primary. Or they could embarrass him so badly he would decide not to run.

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