Do Sealed Convictions Still Disqualify Candidates from Office?

Yes, says the Arkansas Supreme Court, applying the Arkansas statutes related to the expungement of convictions and restoration of rights and privileges.

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From Pruitt v. Smith, decided last month by the Arkansas Supreme Court (in an opinion by Justice Shawn A. Womack):

[A]rticle 5, section 9 of the Arkansas Constitution, "Persons Convicted Ineligible," provides:

(a) No person convicted of embezzlement of public money, bribery, forgery, or other infamous crime is eligible to the General Assembly or capable of holding any office of trust or profit in this state.

(b) As used in this section, "infamous crime" means: … (4) A misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement, including without limitation a misdemeanor offense related to the election process….

[David] Pruitt pled guilty to subsection (a)(19)(A), which states, "No person shall [v]ote, knowing himself or herself not entitled to vote." … [T]he statute … requires a culpable mental state—"knowing." Further, voting when not entitled is inherently dishonest, and when Pruitt pled guilty to the offense, he was required to admit having committed a deceitful act….

Pruitt had his misdemeanor conviction sealed pursuant to the Comprehensive Criminal Record Sealing Act. In Ark. Code Ann. § 16-90-1417, the Act details the effect of sealing a person's criminal history, providing in pertinent part:

(a)(1) A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law

In Haile v. Johnston (Ark. 2016), … a registered voter … filed a petition for declaratory judgment and writ of mandamus alleging Josh Johnston was constitutionally ineligible to run for or hold the public office of Cleburne County Sheriff. Johnston had previously pled guilty to a violation of the Arkansas Hot Check Law; however, his misdemeanor conviction was subsequently sealed …. This court [concluded that] the plain language of Ark. Code Ann. § 16-90-1417 dictated as a matter of law that Johnston's misdemeanor conviction never occurred once the record was sealed, and all of his privileges and rights were restored…..

Here, Pruitt pled guilty to section 7-1-103(a)(19)(A). Subsection (b)(2)(A) specifically provides that "[a]ny person convicted under the provisions of this section shall thereafter be ineligible to hold any office or employment in any department of this state." In contrast, Johnston was convicted under the Arkansas Hot Check Law, which includes no such provision limiting the restoration of rights after a record has been sealed. Under the plain and unambiguous language of section 16-90-1417(a)(1), the General Assembly reserved the authority to limit the effect of sealing in certain circumstances. With the inclusion of subsection (b)(2)(A), the General Assembly deliberately chose to exclude from public office all persons found guilty of election-related misdemeanors, regardless of whether the record is later sealed. Accordingly, we must conclude Pruitt is ineligible to hold the public office of alderman….

I think this result is right, but I wonder whether this should be seen as a state constitutional mandate, and not just a matter for the legislature to decide by statute. Haile held it wasn't a state constitutional mandate, citing Powers v. Bryant (1992), which in turn held:

Appellant argues that the mere "fact" of a prior conviction, regardless of whether the conviction has been expunged or voided, renders a citizen constitutionally ineligible to hold public office under art. 5, § 9. Appellant cites no authority to support his rigid constitutional interpretation, and we reject this argument based on the reasoning recently set out in Tyler v. Shackleford (1990). In the Tyler case, we discussed the legal effect of expunction under the Federal Youth Corrections Act, and relied on decisions of the Fifth and Sixth Circuits holding that expungement under the federal act actually removed the fact of a conviction. We adopted the reasoning of the Fifth Circuit in holding that following a discharge under the federal act, "the disabilities of a criminal conviction are completely and automatically removed; indeed, the conviction is set aside as if it had never been."

While appellant attempts to distinguish Tyler by pointing out that the Tyler case dealt with the effect of expunction under a federal law, we find the distinction irrelevant for purposes of this case. Judge Lineberger's order granting the writ of error coram nobis clearly stated that Doshier's 1932 convictions were "null and void." As Judge Lineberger's order manifested an intent to set aside Doshier's conviction as if it had never occurred, we find no constitutional violation in Doshier's holding of public office.

Are you folks persuaded? Or would you say that, even if federal expungement law preempts state constitutional provisions disqualifying convicted criminals from state office, mere state statutes can't do that—and a state court decision merely sealing a conviction can't make things "as if [the conviction] had never occurred"?

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  1. Trump ponders pardons,
    loses in five states today.
    Let's change the subject.

    1. 80 million pissed-off Americans won't just evaporate, Kirkland.

      1. Incorrect haiku
        A great, conspiracy post
        By the perfect Ed

        1. As usual, the Great Sarcastr0 critiques the style, not the content.

          1. Unfunny comment
            An angry, sad Alphabet
            Betrayed by his post

            1. As usual, the Great Sarcastr0 mistakes intentional humor for dourness matching his own.

              1. Humorless joking
                Question feigned sourness comments
                Lets go Poe's law

      2. "80 million pissed-off Americans won’t just evaporate, Kirkland."

        Trump fans have never accomplished or stuck with much of anything worthwhile throughout their shambling lives. Until replacement, why should modern, successful America care what they think or do?

        1. "Trump fans have never accomplished or stuck with much of anything worthwhile throughout their shambling lives. Until replacement, why should modern, successful America care what they think or do?"

          Because they are bright enough to understand what George Santana said about history, and they studied how Hitler came to power.

          Kirkland, if you truly believe the crap you spew, you need to be very worried. While I viewed the Tiki Torch Brigade as nothing more than sophomoric adult-sized children, you might care to reflect on what they were chanting.

          Or what Yeats said about the middle ceasing to hold.

          1. Clingers always say
            that one day will be the day
            they do more than say.

            1. Pot, kettle, black.

              1. What rexactly was it that Santanma said -- "those who fail to learn from history will get to live the mistakes of the past?

  2. This issue reminds me of the issue of mental health and the lifetime ban on gun ownership.

    That would be an interesting law review as there has been litigation -- memory is a case in Maine chipped away a bit at it.

  3. I would think a statute would not override the constitution, and a pardon should be required for rehabilitation. It strikes me as analogous to the situation in Massachusetts where a state law purportedly restoring some gun rights has no effect because federal law does not recognize it as a complete restoration of civil rights.

  4. "unless otherwise specifically provided by law"

    It sounds like this passage requires the law to specify that the person loses the right notwithstanding the sealing, so that (b)(2)(A) would have to specify that the exclusion applies to sealed convictions.

    1. The other question is do you really want someone like this to be a Sheriff?

      1. Probably not, but that's the not the question. The question is whether the voters should have the right to decide to elect such a person as sheriff, whether I think it's a good idea or not.

  5. Im confused by the difference between sealing and expunging convictions.

  6. It seems to me that the allocation of authority between a state constitution and state statutes is entirely a state constitutional matter and not subject to federal dictate.

    1. Is anyone claiming otherwise?

  7. (Academic discussion of law in the abstract. not legal advice:)

    So you have a state constitution that recites elements of a crimen falsi conviction that prevents you from running for office. Johnston pleads to a predicate offense, but can run because a state statute prohibits depriving anyone who successfully invokes its protections from the loss of civil rights or liberties. Pruitt, contrastingly, pleads to a predicate offense where the statute of the offense prohibits any such restoration. The day after conviction, both are ineligible. The day after sealing, if the state's courts hold that the particular pardon/reversal controls the general constitutional provision, J can run. But Pruitt can't -- not because of the constitution, but because of the statutory bar that the sealing statute can't reach. When Pruitt tries to run, the conviction statute doesn't limit the sealing statute's effect on the constitutional bar, because a statute can't have any effect on a constitutional bar. (At least where it is specific enough to control.)

    Preemption: The issue isn't that the putative candidate has something on his record that might keep him from running -- the issue is that when he goes to register as a candidate, he won't be able to (vel non). And whatever direction the lodestone of Congressional intent is pointing these days, the federales' opinions on who gets to run for state office can't occupy the field or be free from any interference by those pesky state laws. States might even be free to require that only people who have substantially interfered with federal law on at least three separate occasions are eligible to run for state office. The precedent cited contrary looks like a reversal on the merits in a collateral (coram nobis) challenge to the conviction proper.

    Top of the head, likely wrong, not advice, don't rely. Cheers.

    Mr. D.

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