Northwest Arkansas Democrat-Gazette
Bid starts to expel lawmaker
House speaker files resolution to oust Gates over tax plea
A formal resolution filed Friday in the House of Representatives seeks to expel a member from the chamber for the first time in more than a century.
Plans to remove state Rep. Mickey Gates, R-Hot Springs, were set in motion last week when House Speaker Matthew Shepherd, R-El Dorado, announced that he would prepare the resolution to do so over Gates’ no-contest plea to a charge that he failed to pay state income taxes.
Although Shepherd filed the expulsion resolution Friday, he set no timetable for calling the House together in Little Rock to consider the matter. He said he was discussing the next steps with House aides.
Gates has rebuffed calls from across the state’s Republican leadership to step down since pleading no contest to the tax charge in July. His attorney said Friday that Gates plans to run for re-election, regardless of the outcome of the removal effort.
A message left on Gates’ voice mail Friday afternoon was not returned.
Expulsion of Gates would take a two-thirds vote of the House or 67 votes. Both Republican and Democratic leaders said Friday that about that number of members are supportive of expulsion.
House GOP Whip Brandt Smith, R-Jonesboro, said that while the majority of the House’s 76 Republicans were in favor of expulsion, some had expressed hesitancy about going on the record to oust a colleague.
“I assume we’re still going to get a two-thirds majority vote,” Smith said. “But there’s an outside chance … we don’t reach that threshold.”
House Minority Leader Fred Love, D-Little Rock, said he believed the 23 members of the Democratic caucus were united in their support for removing Gates. (One seat in the House is currently vacant, with a Democratic representative-elect expected
to be sworn in later this year).
Gates’ expulsion could prompt a legal fight, especially if it is later used to attempt to block him from mounting another run at his seat, Gates’ attorney, Jeff Rosenzweig, said Friday.
The fact that no member is ever known to have been expelled under the parameters set by the state’s 1874 constitution would make Gates’ expulsion a test case for the process. (The 1837 expulsion of House Speaker John Wilson for stabbing another member to death on the House floor predates the current constitution).
Members expelled “for corruption” are ineligible to serve again in the Legislature under Article 5, Section 12 of the Arkansas Constitution. Rosenzweig said that Gates’ failure to pay his taxes does not amount to corruption.
“The resolution speaks for itself,” Shepherd, the House speaker, said in a statement Friday.
House Resolution 1079, filed Friday afternoon, relies mostly on the Arkansas Constitution’s prohibition on members serving after a conviction for “infamous crime,” including any felony, as well as its general provisions that allow the House to expel a member with two-thirds support.
“Gates’ plea agreement is unbecoming of a member of the House of Representatives,
and is punishable by this body,” the resolution reads in part.
The resolution also notes that Gates’ plea of “no contest” to his tax-evasion charges runs afoul of a law passed by the Legislature in 2019 — with Gates’ support — that prohibits anyone who pleads guilty or no contest to a “public trust crime” from holding a constitutional office.
Rosenzweig has argued that the law, Act 894 of 2019, is unconstitutional.
In addition to receiving probation, Gates was ordered to pay $74,789 in back taxes as a result of his plea. If he completes the term of his sentence, his case can be discharged without a final adjudication of guilt under the state’s first offender law.
Gates has argued that because his case could one day be cleared without adjudication, his plea agreement does not amount to a “conviction” that would bar him from office under wording of the Arkansas Constitution. While Act 894 would be a bar, Rosenzweig says that the law violates the Arkansas Constitution by adding requirements.
The speaker’s resolution, seemingly anticipating Rosenweig’s argument, says that Act 894 “is not the main premise for the action requested in this resolution.”
“Action taken to punish Representative Gates pursuant to this resolution is undertaken in accordance with the power granted by the Arkansas Constitution to the House of Representatives as the sole
authority for discipline of its members,” the resolution states.
Rosenzweig said of the resolution, “It sort of implicitly agrees with us that Act 894 is unconstitutional as it applies to Representative Gates.”
Rosenzweig said that while the House has “fairly broad abilities” to expel a member, the constitution prohibits a member from being expelled twice on the same charges. Therefore, he said, Gates could run for re-election again, and — if he wins — the House would be unable to remove him again.
Gates won re-election to the House handily last year despite being publicly accused by prosecutors of failing to file his state income tax returns for more than a decade, between 2003 and 2017. The state at the time alleged that Gates owed $259,841 in taxes.
Gates won re-election despite calls for his resignation from Republican Gov. Asa Hutchinson, Attorney General Leslie Rutledge and Lt. Gov. Tim Griffin.
The filing period for Gates or other candidates to announce for his District 22 seat is in November. The primary will be in March with the general election in November 2020.
Gates’ arrest and plea agreement came during federal public corruption investigations that have resulted in convictions against six former legislators. Two of the members who were charged while in office resigned.