City Council: Constitution doesn't guarantee Chuck Turner a seat

The Boston City Council says its vote to boot Chuck Turner doesn't violate his constitutional rights, so a federal judge should dismiss his lawsuit - which might become moot on Tuesday when he's sentenced on his federal corruption conviction.

"Candidacy and the right to hold office do not rise to the level of a fundamental right, the council argues in a brief submitted Friday to the federal judge hearing the suit by Turner and some constituents to get his job back. Also, elective offices are not "property" subject to the 14th Amendment, the council argued.

Here, Turner was an elected City Councilor and thus lacks a constitutionally cognizable property interest in his elected office. Despite that very fact, he was still provided all the safeguards of due process prior to being removed from office. Procedural due process guarantees an individual the right to a hearing, with notice and the opportunity to be heard before he is divested of his protected interest. ...

The City Council's removal of Turner pursuant to the City Charter and City Council Rule 40A was not a subsequent criminal punishment of Turner for his crimes; rather it was an administrative adjudicatory decision under the City Charter that Turner was no longer qualified to sit as a member of the City Council. The Council's decision flowed from Turner's criminal conviction but it was not criminal punishment for the conviction.

State law requires the removal of any elected official sentenced to prison. On Tuesday, another federal judge will sentence Turner on his conviction for one count of extortion and three of perjury. The US Attorney's office wants Turner tossed into prison for three years; Turner argues for simple probation.

The council argued that Turner's constituents were not deprived of their rights, either.

[W]hile certain voters may prefer a certain candidate, that they do not have the candidate of their choice is not a violation of a fundamental right. There is no fundamental right to vote for a particular individual; therefore Turner's removal does not severely burden the Plaintiff-voters' rights of association. ...

They may be deprived of their candidate of choice; however, they retain their right to vote in the immediate election in February and March. The impact on voters is insubstantial under a First Amendment analysis. The Plaintiff-voters are not being denied their right to vote for a candidate of a particular political party or with a particular viewpoint. Such impact on voters is substantial only when a class of candidates is excluded.

• Complete copy of City Council memorandum