Should he choose not to resign, Virginia state Del. Joseph D. Morrissey (D) could become the first member of the House of Delegates expelled since Reconstruction.
The lawmaker has thus far resisted calls for him to step down in light of a misdemeanor conviction of contributing to the delinquency of a minor, detailing in court documents his contention that the case is based on hacked cellphone records. He is serving a six-month jail sentence.
Morrissey’s law partner, Paul Goldman, plans by Wednesday afternoon to decide whether to suggest to Morrissey that he resign. If Morrissey does not resign, few are clear on what the process to remove him would be.
The only reference point in state law on the subject is the constitution, which echoes the federal Constitution in declaring that both houses of the legislature “may punish [members] for disorderly behavior, and, with the concurrence of two-thirds of its elected membership, may expel a member.”
Due process would apply, said House Clerk Paul Nardo. An expulsion measure would need to go through the normal committee process.
“You can’t just show up, suspend the rules and tell somebody to go home by two-thirds vote,” said Goldman. “You have the right to do something, but you still have to do it in the right way.”
Nardo said: “There would be a public hearing. There would be an opportunity for a member or others to testify.”
A Virginia state lawmaker was last expelled in 1876. Del. R.D. Ruffin was cast out for embezzling $30 from the House clerk. No one in Virginia has served in the legislature while also serving jail time, Nardo said.
“I would think that would be kind of unusual, but who knows these days?” he said.
Democrats and Republicans have called for Morrissey’s resignation, and House Minority Leader David J. Toscano (D-Charlottesville) has said the caucus is “exploring all available options, including removal.” Choosing not to resign might only delay Morrissey’s fate.
“It’s not a question of whether he stays; it’s a question of when he goes,” said one Democratic lawmaker, speaking on the condition of anonymity to avoid alienating a party colleague.
Two candidates, Henrico County School Board member Lamont Bagby and retired brewery worker Kevin Sullivan, have announced plans to run in the Democratic primary in Morrissey’s overwhelmingly Democratic district.
But Morrissey, who entered an Alford plea, which allows him to maintain his innocence, has yet to make up his mind.
On Sunday, Morrissey told reporters at a church in Richmond that he had “a big decision to make.”
An expulsion process could include a hearing at which Morrissey offers his version of events, which is detailed in the plea agreement filed in Henrico County Circuit Court.
Prosecutors allege that Morrissey engaged in a relationship with a receptionist he knew to be younger than 18, received several explicit photographs of her and shared one with a friend. The friend would “reluctantly testify,” according to the prosecution, that he received the photo and responded that Morrissey was “so lucky.”
A friend of the teen’s, on the other hand, describes Morrissey derisively as an old man in text messages released by prosecutors.
The 57-year-old encountered the teen in the spring of 2013 when she worked at a podiatrist’s office.
Morrissey says that he did not know her age until police showed up at his home to find them together and that she was there to discuss a dispute with her father over college funds. As he has done repeatedly, the lawmaker and former prosecutor alleges that the damning photographs and messages used against him were planted by a jealous ex-girlfriend of the teen who “hacked” into both their phones.
The night he is alleged to have had sex with the teen at his office, Morrissey says, he held a meeting at a restaurant with two representatives of a housing organization and then drove to a convenience store to drop off a donation of backpacks for underprivileged schoolchildren.
A text sent by the teen the same night, according to the defense, suggests that she was on her way home at the time.
According to prosecutors, cellphone evidence indicates that Morrissey and the receptionist were near the law office that night and that conflicting defense testimony is wrong. Prosecutors also say Morrissey was recorded suggesting that the teen tell police the “graphic texts” were regarding “some other boy.”
Should he manage to stay in office, Morrissey will be allowed out of jail for work from 7:30 a.m. to 7:30 p.m., seven days a week, Henrico County Sheriff Michael L. Wade told reporters Tuesday.
The lawmaker can travel to his law office or to the General Assembly Building, or with approval to other locations.
Morrissey was allowed to give a news conference at a church Sunday “because of his position in the community,” which requires outreach, Wade said.
Morrissey called during the news conference to let the sheriff know he was headed to the legislative office.
His movements will be monitored at least four times a day by the ankle bracelet he wears, Wade said. “He’s on a leash.”