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Do Sealed Convictions Still Disqualify Candidates from Office?

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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Eugene Volokh

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