Scott McCoy - who became the state's first openly gay senator this week - may not meet state residency requirements to be in the Legislature and there could be an effort by conservative lawmakers to remove him.

It probably would be a short-lived attempt, though, since Senate leadership says it won't support McCoy's removal.

Utah's Constitution requires that legislators live in the state for three years and in their district for six months prior to state deadlines to file for office - typically the March before each election. The Constitution does not lay out a procedure for midterm appointments, such as McCoy's. He was named Monday to replace Sen. Paula Julander, who resigned from her District 2 seat for health reasons.

It could be argued that McCoy would have had to move to Utah three years before the last time Julander would have filed for office - March 2002. McCoy moved to Utah just three months before that deadline.

Senate President John Valentine said Wednesday that leadership has decided not to pursue any action on McCoy because the Constitution and law governing replacements are too ambigious. "We do not feel it's appropriate to take any action on Sen. McCoy," Valentine said. "We need to give him the benefit of the doubt."

That doesn't mean an attempt won't happen.

Sen. Curtis Bramble, R-Provo, said earlier Wednesday that in general, requirements should be applied consistently.

"If residency requirements aren't met, then action should be taken without regard to party," Bramble said.

He said he would support an action, but he wouldn't lead it.

Robert Wright, one of McCoy's old political opponents in the 2004 election battle over Utah's gay-marriage amendment, raised questions about the new senator's residency this week. Wright, a Salt Lake County Republican Central Committee member who alerted the news media to the potential problem, says McCoy's appointment to office is not legitimate. He insists his opposition is unrelated to the fact that McCoy is openly gay.

"He shouldn't be in the state Senate," said Wright. "It just blows me away that [Democrats] elected somebody who couldn't get elected in his own right. The whole thing stinks."

Wright, an evangelical minister, was one of the organizers of Yes on 3. While Wright was largely in the background of supporters of the constitutional change meant to block gay marriage, McCoy, an attorney, was the outspoken director of the Don't Amend Alliance.

About 100 Salt Lake County Democratic delegates met Saturday and picked McCoy over Julander's husband, Rod Julander, to fill her senate seat for two years. At that meeting, Utah Democratic Party Chairman Donald Dunn asked McCoy to sign an affidavit that he met all the requirements.

"No matter how you calculate it, I've lived here three years or more," McCoy said. "This is not something the party brought up."

Dunn says McCoy still meets all the eligibility rules. He figures the three-year residency requirement should be counted back from Saturday - the day Julander's seat became vacant. "I believe we should follow the rules. I believe we have," Dunn said.

Legislative attorneys who advised Senate leadership Wednesday say the state law is ambigious on the issue.

"It's unclear whether the Constitution's provisions apply to a person who is appointed to fill a midterm vacancy," said John Fellows, of the Office of Legislative General Counsel. "It would be up to the Senate to decide the application of that provision."

Because McCoy already was sworn into office, his removal would require a Senate vote to expel him. Under state law, one senator can make a motion from the floor to oust a member "for cause." If after debate two-thirds of the senators agree, the member would be expelled. In the 29-member Senate, Republicans hold 21 seats, one more than the two-thirds threshold.

But with Senate leadership opposing any effort, there would not be enough votes to oust McCoy.

In 1987, Utah House members briefly considered excluding three representatives who worked for the state after questions were raised about separation of powers. Eventually, those lawmakers were sworn in. And four years later, there was talk of expelling Democratic Rep. Dionne Halverson after she was arrested for shoplifting. Halverson resigned.

Sen. Michael Waddoups, R-Taylorsville, said he was not ready to support any action if the residency requirement isn't met. "That's up to his party and his constituents," he said.

Bramble insists senators have to act if there is a question. He notes he supported review of former Orem Republican Rep. Kathryn Bryson's residency last year. But he worries his impartiality will be questioned. After McCoy was elected, Bramble was quoted in the Deseret Morning News accusing the new senator of having a gay rights agenda.

"My concern is it could be perceived as a witch hunt," Bramble said Wednesday.

Dunn says Wright's and Bramble's motives are suspect.

"This is an attempt of the radical right wing to inflict their bigoted agenda into the legislative process," Dunn said. "I would hate to see the Senate even spend time on this rather than focusing on hate crimes or legislation to figure out the budget."

What's

next?

l A vote will be taken if a single senator makes a motion to expel McCoy "for cause."

Possible action:

l If two-thirds of senators approved, he would be expelled.