Robert S. Moore, Jr., Director Arkansas Alcoholic Beverage Control Division 1515 West 7th Street, Suite 503 Little Rock, Arkansas 72201
Dear Mr. Moore:
I am writing in response to your request for an opinion on the effect of A.C.A. §
1. Pursuant to provisions of A.C.A.
3-2-103 and the conclusions reached in Ark. Ops. Att'y Gen. Nos.2003-057 and 2003-183, is the Alcoholic Beverage Control ("ABC") Division prohibited from granting permits to persons whose criminal records have been sealed or expunged?2. Is a convicted felon who received a full and unconditional pardon from the President of the United States still disqualified from applying for a permit from ABC under the provisions of A.C.A.
3-2-103 ?
You recite the following factual background:
Acts of Arkansas 1248 of 2005, now codified at Arkansas Code
3-2-103 , provides that any person applying for a permit issued by the ABC Division, with two minor exceptions that are not pertinent to this request, shall meet certain requirements. A principal requirement is that no applicant shall have been found guilty of or of [sic: "have"] pleaded guilty or nolo contendere to any felony in any court of the state of Arkansas or any similar offense by a court in another state or any similar offense by a military or federal court.Prior to the passage of Acts of Arkansas 1248 of 2005 the ABC Division had accepted applications from persons who had "expunged" records, such as might be obtained under the provisions of Arkansas Code
5-4-311 , a part of Act 280 of 1975.The Arkansas Criminal Code is the codification of Act 280 of 1975. According to our understanding of the same, two provisions, which if applied, would cause a person to become a convicted felon. A person could become a convicted felon if they were sentenced to pay a fine, such as set by Arkansas Code
5-4-201 . A person could be convicted of a felony by a sentence of imprisonment as is set by Arkansas Code5-4-401 . A person could be sentenced to both imprisonment and the payment of fine and become a felon. Under certain circumstances the imprisonment or the payment of fine could be suspended or imposition of the sentence could be withheld.Under this law, it would appear that, if a person had not been sentenced to a term of confinement in the Department of Correction and if they had not been sentenced to pay a fine, then, upon expungement of the record, it would be as if the crime and subsequent court process had never occurred.
Our office has now received information from the Arkansas State Police which indicates that persons who have expungements or sealed records are not qualified to receive a permit from the ABC Division. This position is founded on reasons expressed by you in Arkansas Attorney General Opinions
2003-057 and 2003-183.
RESPONSE
In my opinion, the answer to your first question is "yes." With respect to your second question, although a presidentially pardoned felon might not be barred from filing an application for a liquor permit, I believe A.C.A. §
Question 1: Pursuant to provisions of A.C.A.
In my opinion, the answer to this question is "yes."
Subsection
(a) Any person applying for any permit issued by the Alcoholic Beverage Control Division, except as provided in subsection (b) or (c) of this section,1 shall meet the following requirements:
(1) No applicant shall have been found guilty of or pleaded guilty or nolo contendere to:
(A) Any felony by any court in the State of Arkansas; or
(B) Any similar offense by a court in another state or of any similar offense by a military or federal court[.]
In the two opinions referenced in your question, I addressed the effect of an expungement upon a candidate's eligibility for employment in nursing homes, Ark. Op. Att'y Gen. No.
In [Opinion No.
2003-057 ], I noted that various statutes prohibit or restrict certain activities by individuals who have pleaded guilty or nolo contendere to or been "found guilty" of certain specified offenses. . . . [V]arious of these statutes expressly state that an expunged plea or conviction will be the equivalent of a conviction disqualifying the defendant from the employment or activity at issue, whereas other statutes are simply silent regarding the effects of an expungement. Regrettably, the legislature's failure to address the effects of expungement in the latter category of statutes has apparently caused significant confusion of the sort reflected in your current request and in the request addressed in Opinion2003-057 .
Section
Under the circumstances, I can do no more than echo the following analysis from Opinion No.
I believe the better practice would be for the legislature to specify in each instance whether an expungement authorizes a prospective or current employer to ignore a plea or conviction in determining eligibility for employment. However, to date, the legislature has not done so. Accordingly, relying largely on the reasoning set forth in . . . Ark. Op. Att'y Gen. No.
2002-141 and various earlier opinions, I opined in Opinion2003-057 that unless otherwise specified, the restrictions on activities, including employment of various sorts, would continue in effect even if a court of competent jurisdiction were to expunge the records relating to an offense.
In both Opinions Nos.
I have previously concurred with the position of my predecessors that if a statute prohibits certain activities by a person who has "pled guilty or nolo contendere" or has been "found guilty" of certain offenses, that statutory reference to pleading guilty or nolo contendere has the effect of overriding an expungement. See Op. Att'y Gen. No.
99-237 , fn 2. In other words, such statutory language is what is referred to in A.C.A. §16-90-902 [the expungement statute] by the phrase "unless otherwise specifically provided for by law." My predecessors took the position that such statutory language in effect means that the expungement laws will not apply. Instead, the more specific provisions of the prohibition will control. See, e.g., Ops. Att'y Gen. Nos.98-007 ; 96-387; 94-148; 89-093; 89-056. The reasoning that has supported this position is that the legislature, in making specific reference to persons who have pled guilty or nolo contendere (and not merely to persons who were "found guilty" or who had "convictions" on their records), was intentionally including defendants who have not been adjudged guilty and whose records have been expunged. As noted previously, defendants whose records have not been expunged actually have "convictions" (adjudications of guilt) entered on the record, even if they pled guilty or nolo contendere and are deemed to have been "found guilty." If the legislature had intended to exclude those without adjudications of guilt and whose records have been expunged, it would have simply used the words "convicted" or "found guilty" in the applicable statute. (For an explanation of this issue, see Op. Att'y Gen. No.96-387 .) Therefore, it was necessary for the legislature to refer to persons who pled guilty or nolo contendere in order to include persons who were not adjudged guilty and who therefore did not have "convictions" on the record — i.e., persons whose records have been expunged. This interpretation of the reference to pleading guilty or nolo contendere has the effect of assuring that defendants who were not adjudged guilty and whose records were expunged will be included in the particular prohibition. The most prominent example of this office's use of this reasoning can be found in the opinions that have concluded that defendants whose records were expunged are not eligible to become law enforcement officers because of the prohibition stated in A.C.A. §12-9-106 (which prohibits persons who plead, or who are found guilty of a felony from being law enforcement officers). See Ops. Att'y Gen. Nos.94-308 ; 94-148; 89-093; 89-056; 83-217.
As I noted in Ark. Op. Att'y Gen. No.
Question 2: Is a convicted felon who received a full andunconditional pardon from the President of the United Statesstill disqualified from applying for a permit from ABC under theprovisions of A.C.A.
You report that this question relates to the application for a liquor permit of an individual who was convicted of a federal offense and who served a period of two months in federal prison before being unconditionally pardoned by the president pursuant to U.S. Const. art.
The overarching issue in addressing your question is the extent to which A.C.A. §
From the earliest days of Supreme Court jurisprudence on this issue, the basic question has been whether state action that might be seen as compromising the scope and effects of a presidential pardon impermissibly enhances the "punishment" for the underlying offense. In an opinion issued shortly after the Civil War, the Supreme Court suggested that a presidential pardon essentially erases a conviction for all conceivable purposes and hence warrants treating the offender as though his illegal conduct had never occurred. Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866). In Garland, the Supreme Court held that it offended the pardon clause of the U.S. Constitution to deprive an attorney of his law license based on a pardoned conviction for treason stemming from service in the Confederate legislature.Id. Specifically, the Court noted that "[a] pardon reaches both the punishment prescribed for the offence and the guilt of the offender[,]" and that "it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence." Id.
In Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 321-22 (1866), in which the Court considered whether the Missouri Constitution might condition eligibility to work in various professions upon taking an oath addressing one's former activities in support of or sentiments toward the Confederacy, the Court offered the following categorical summation of the law:
The theory upon which our political institutions rest is, that all men have certain inalienable rights — that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to everyone, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.
(Emphasis added.)
In Carlesi v. New York,
It may not be questioned that the States are without right directly or indirectly to restrict the national government in the exertion of its legitimate powers. It is therefore to be conceded that if the act of the state in taking into consideration a prior conviction of an offense committed by the same offender against the laws of the United States despite a pardon was in any just sense a punishment for such prior crime, that the act of the state would be void because destroying or circumscribing the effect of the pardon granted under the Constitution and laws of the United States.
Significantly, this formulation appears somewhat less categorical than those set forth in Garland and Cummings,
appearing to accommodate the possibility that a state might take a pardoned conviction into account without impermissibly imposing new "punishment" for a presidentially pardoned offense. Indeed, the Court acted on that possibility by declaring that the conviction might be considered for purposes of sentence enhancement, in effect classifying the enhancement as punishment for the new offense, as distinct from the pardoned offense. Id.
at 59. Accord United States v. McMichael,
Finally, in Burdick v. United States,
In 1915, shortly after the Supreme Court's decision in Carlesi, Professor Williston distilled from the case law up to that date the following statement of what has since come to be recognized as the post-Garland consensus4 — a consensus that, as discussed further infra, may be based upon constitutional imperatives:
The true line of distinction seems to be this: The pardon removes all legal punishment for the offence. Therefore if the mere conviction involves certain disqualifications which would not follow from the commission of the crime without conviction, the pardon removes such disqualifications. On the other hand, if character is a necessary qualification and the commission of a crime would disqualify even though there had been no criminal prosecution for the crime, the fact that the criminal has been convicted and pardoned does not make him any more eligible.Thus, the fact of conviction after a pardon cannot be taken into account in subsequent proceedings. However, the fact of the commission of the crime may be considered. Therefore, although the effects of the commission of the offense linger after a pardon, the effects of the conviction are all but wiped out.
Williston, Does a Pardon Blot Out Guilt?, 28 Harv. L. Rev. 647, 653 (1915) (emphasis added).
In the years since the issuance of Garland, cases addressing the effects of pardoned convictions upon both the right to hold office and entitlement to various types of licensure have fallen into three basic categories. The outline of these categories, as well as the relationship between the effects of a pardon on the right to hold office, on the one hand, and the right to obtain various types of licenses, on the other, is discussed as follows in an annotation on the subject:
Crucial to the determination whether a pardon will restore eligibility to hold a particular office is the view that the court takes as to the general effect of a pardon. Thus, some courts have taken the view that the pardon eliminates both the punishment resulting from the conviction and any moral guilt or blame which may have accompanied the commission of the crime. Under this view, it would appear that a pardon would restore eligibility for public office. On the other hand, it has been said that while the pardon removes the punishment resulting from the conviction, it does not remove the moral guilt resulting from the commission of the crime; under this view, if a disqualification to hold public office is based merely upon a conviction of a crime, the pardon restores the one pardoned to eligibility for the office, although he is not restored to eligibility where character is a qualification for the office. In considering the eligibility of a pardoned person for public office, other courts have concluded that the pardon eliminates neither the fact of conviction nor the moral guilt accompanying the conviction. Such a view would appear to lead to the conclusion that the pardon does not restore eligibility.
* * *
In those cases involving the restoration of, or eligibility for, licenses other than to practice law, the courts have engaged in the same analytical process involved in those cases considering the effect of a pardon upon eligibility to hold public office. Thus, some courts have adopted the view that the pardon removes the legal punishment resulting from conviction, but not the moral guilt or blame arising from the acts involved in committing the crime. Other courts have adopted the view that the pardon obliterates neither the act of conviction nor the accompanying moral guilt.
Gary L. Hall, Annotation, Pardon as Restoring Public Office orLicense or Eligibility Therefor, 58 A.L.R. 3d 1191 (2006), at § 2[a] (footnotes omitted; emphasis added). Accord Ashley M. Steiner, Comment, Remission of Guilt or Removal of Punishment?The Effects of a Presidential Pardon, 46 Emory L.J. 959 (1997) (acknowledging the same three categories of interpretation).
As illustrating the last recited option, supporting the conclusion that a pardon would do nothing to mitigate the effect of a statute listing a conviction or plea as a disqualifying condition, the annotator cites State v. Irby,
In holding that a presidential pardon did not restore a convicted embezzler's eligibility to hold office, the court in Irby offered the following:
[T]he rule which seems to be supported by the great weight of American authority, and is grounded upon reason and logic, is stated in 46 C.J 1192, as follows:"When a full and absolute pardon is granted, it exempts the individual upon whom it is bestowed from the punishment which the law inflicts for the crime which he has committed. The crime is forgiven and remitted, and the individual is relieved from all of its legal consequences. The effect of a full pardon is to make the offender a new man. While a pardon has generally been regarded as blotting out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense, it does not so operate for all purposes, and, as the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt; it does not obliterate the fact of commission of the crime and the conviction thereof; it does not wash out the moral stain; as has been tersely said, it involves forgiveness and not forgetfulness." State v. Hazard, [
247 P. 957 (Wash. 1926)].
The court clearly stated its conclusion that denying the privilege of public officeholding was not part of the punishment meted out for the underlying offense of embezzlement. Id. at 794. Rather, it was a consequence of conviction that disqualified the officeholder by constitutional mandate.6 Id. In what it characterized as "[t]he rule which we deem to be sound and based upon reason and logic," the court adopted the following standard from State ex rel. Olson v. Langer,
The exclusion must . . . be adjudged a mere disqualification, imposed for protection and not for punishment, the withholding of a privilege and not the denial of a personal right. 9 R.C.L. 1942. See also 20 C.J. 60. As the Supreme Court of North Carolina, considering a constitutional provision similar to the one involved in the case at bar, said: "The disqualification for office and the loss of the right of suffrage imposed by art. 6 of the Constitution upon persons convicted of infamous offenses constitute no part of the judgment of the court, but are mere consequences of such judgment.7 State v. Prince Jones,82 N.C. 685 ."
The court concluded that an executive pardon — including a presidential pardon — does not "destroy the stigma of conviction and restore political privileges."
Notwithstanding the suggestion above that the Williston standard, which marks a variation on the second option recited in the A.L.R. annotation referenced above, has been all but universally accepted, various courts have declined to undertake case-by-case analyses to determine a pardoned candidate's eligibility, instead declaring a candidate automatically disqualified from licensure notwithstanding the fact that he has received an executive pardon. See, e.g., Theodoro v. Department of Liquor Control,
In each of the cases recited in the previous paragraph, the court felt obliged to explain in detail why the categorical bar was justified as an exercise of the state's police power. In effect, the court in each instance concluded that the public welfare warranted excluding from licensure any pardoned offender who fell within the scope of the proscription (although the statute at issue in Prichard did provide for the restoration of the license upon the posting of a significant bond to protect the public,
The Legislature, in its wisdom, has simply provided that one who has been convicted of these offenses is no longer deemed fit to operate motor vehicles on the State highways unless and until the other users of the highways are protected against him, that is, until the offender establishes `his ability to respond in damages which may thereafter be adjudged against him on account of accidents resulting from his ownership or operation of a motor vehicle.'
The fact that Irby may reflect one extreme on the spectrum discussed in the A.L.R. annotation excerpted above — namely, the third alternative that would render any conviction, whether pardoned or not, a disqualification — matters only inasmuch as it raises the question of whether the Arkansas standard impermissibly encroaches on presidential prerogatives. Indeed, several cases that have embraced the middle road described in the A.L.R. annotation have suggested that automatically applying the fact of conviction as a disqualifier for licensure will offend the federal constitution when the conviction has been presidentially pardoned.
In Hirschberg v. Commodity Futures Trading Commission,
[M]odern case law emphasizes (and indeed Hirschberg admits) that [the Garland] historical language was dicta and is inconsistent with current law.9 See In re North,62 F.3d 1434-1437 (D.C. Cir. 1994). A pardon in no way reverses the legal conclusion of the courts; it "does not blot out guilt or expunge a judgment of conviction." North,62 F.3d at 1437 ; see also Nixon v. United States,506 U.S. 223 ,232 ,113 S. Ct. 732 ,122 L. Ed. 2d 1 (1993) ("a pardon is in no sense an overturning of a judgment of conviction by some other tribunal"); Burdick v. United States,236 U.S. 79 ,94 ,35 S. Ct. 267 ,59 L. Ed. 476 (1915) (a pardon" carries an imputation of guilt"). The effect of a pardon is not to prohibit all consequences of a pardoned conviction, but rather to preclude future punishment for the conviction. See Nixon,506 U.S. at 232 ,113 S. Ct. 732 ; Bjerkan v. United States,529 F.2d 125 ,127-28 (7th Cir. 1975).
However, although strongly maintaining that a presidential pardon should not be given the blanket exonerative effect suggested by the dictum in Garland, the court in Hirschberg conversely suggested that it would be impermissible under the pardon clause of the Constitution to disqualify a pardoned felon from licensure based exclusively upon the fact of his pardoned conviction. Specifically, the court remarked:
In cases where governmental action has been held to violate the pardon clause, . . . the pardoned individual is stripped of his rights based not on the conduct underlying the conviction, but on the fact of conviction alone. See Bjerkan,529 F.2d at 128 (holding that a state's deprivation of a pardoned individual's civil rights based on fact of a conviction alone violated pardon clause).
Id. The parenthetical in this passage is based upon the following declaration by the Bjerkan court:
[A]ny deprivation of a person's basic civil rights, including the right to vote, the right to serve on juries and the right to work in certain professions, by a state on account of a federal conviction would constitute a punishment. If the conviction were pardoned, as it was here, such attempted punishment would constitute a restriction on the legitimate, constitutional power of the President to pardon an offense against the United States and would be void as circumscribing and nullifying that power.
A constitutionally based judicial reluctance to embrace the third alternative — namely, as in Irby, classifying the fact of a pardoned conviction as an automatic disqualification — is further illustrated in two Florida cases, the second of which reversed the first on constitutional grounds. In Sandlin v. CriminalJustice Standards and Training Commission,
In recognition of what it termed the "harsh consequences" of its ruling, the court certified the question to the Florida Supreme Court, id., which, in Sandlin v. Criminal Justice Standardsand Training Commission,
The Florida Supreme Court's decision in Sandlin is consistent with the analysis set forth in Damiano v. Burge,
[T]here is no contention in our case that plaintiff was of bad or even doubtful moral character. On the contrary, the parties here have stipulated that "the sole and exclusive reason for the Director of Liquor Control's refusal to issue petitioner an employee's permit was the alleged conviction"; and defendant further admits in his brief that his refusal to renew plaintiff's permit "was not due to any misconduct on the part of respondent going to respondent's moral fitness." In other words, the defendant here has attempted to reject the application on the very ground which Professor Williston, and the many cases following his view, state cannot be the grounds for refusal.
Id. at 567. The phrase "cannot be the grounds for refusal" in this passage at the very least implies that, in the opinion of certain courts, disqualification based upon a presidentially pardoned conviction encroaches on the president's pardon power. Reinforcing this impression is the court's quoting with approval the following from Commissioner of the Metropolitan DistrictCommission v. Director of Civil Service,
"General Laws c. 41, § 96A (inserted by St. 1938, c. 342), provides that no person `convicted of any felony shall be appointed as a police officer of a . . . district.' Whatever the legislative purpose behind § 96A may have been, it necessarily has the practical effect of imposing a quasi penal, civil disqualification to be a police officer as an incident of, and automatically following upon, conviction for felony. In the light of the cases from other jurisdictions, already cited, we think that the absolute disqualification or ineligibility, imposed by such a statute, is to be regarded as removed by a full pardon, so that the pardoned person (1) may apply for appointment to the office for which he was formerly disqualified, and (2) may hold that office if he is able to sustain the heavy burden of satisfying the electorate or an appointing authority of his good character and suitability at the time of seeking office. We think also that, in considering such a pardoned applicant's qualifications and suitability, the events underlying the pardoned conviction may be and should be evaluated, and relied upon reasonably, by the proper public body or authority."
The court further recited various other cases as standing for the proposition that it is unconstitutional for the legislature to classify a pardoned conviction as conclusively showing bad character "so as to make an applicant ineligible for . . . employment." Id. at 566-67, citing Slater v. Olson,
A question remains, then, regarding the extent to which a state, despite the fact of a "full" presidential pardon having issued, might look to the underlying conviction as disqualifying an applicant from licensure. At issue, again, is whether any such state action would encroach upon the president's pardon power by impermissibly imposing "punishment" for the underlying offense. Notwithstanding the sweeping dictum in Garland, it appears clear that a pardon need not be considered an erasure of the slate for any and all purposes — although at least one jurisdiction, Alabama, appears to consider it such. See discussion of Sokira, supra at n. 17. However, it is less clear whether a state may do what Arkansas is generally imputed to have done in Irby — namely, ignore altogether a presidential pardon of a felon for purposes of determining a candidate's eligibility for a license. In Damiano, which addressed precisely the question at issue in your request — i.e., the effect of a presidential pardon on a felon's eligibility to receive a liquor license — the Missouri Supreme Court appeared to assume both thatIrby would apply within the context of licensure under Arkansas law and that Arkansas' automatic prohibition against licensing even a pardoned felon would offend the federal constitution.17 The Damiano opinion, of course, has no precedential value for an Arkansas court. It does, however, illustrate that a constitutional issue exists regarding the permissible scope of state regulation when the president has pardoned a felon, and it further helps define what the terms of a debate on that issue might be.
In my opinion, the debate about what effect, if any, a state must give to a presidential pardon within the context of licensure strongly implicates the concept of federalism, which contemplates apportioning government among the federal government and the states. In this regard, the movement since the Civil War away from the Court's broad pronouncements in Garland, which, quite possibly reflecting an impulse to quell the passions of war, seemed to accord unlimited pardon power to the president, may well have been inspired by a later recognition that principles of federalism dictate accommodating, at least up to a certain point, the states' police power to monitor professional and highly regulated activities.18 Precisely how much latitude a state might exercise in restricting the effects a pardon on licensure eligibility is unclear. On the one extreme, one might maintain that professional licensure is traditionally a matter of state governance, and that, purely as a matter of state law, a licensing authority might in the proper exercise of its authority characterize even a pardoned felony as disqualifying a candidate from eligibility to engage in a given profession. On the other extreme, one might maintain that the president, in the proper exercise of his constitutional authority, is authorized to declare that a particular federal offense will henceforth be treated in all respects as if it had never occurred. As noted above, courts have located the effects of a presidential pardon at various points along the spectrum between these extremes, and I am not inclined to opine that any particular point should be deemed constitutionally offensive.
However, I can and will note that, notwithstanding the occasional suggestions that Irby dictates otherwise, see discussionsupra, the Arkansas Supreme Court has never committed to the proposition that a conviction, even if removed by presidential pardon, can, in and of itself, serve to disqualify an individual from a statutorily required licensure. The scope of the court's ruling in Irby was relatively narrow, providing only that the disqualifications from holding public office set forth in Ark. Const. art.
We think it is obvious, and therefore have no hesitancy in so deciding, that 9 art. 5 or the disqualifications therein announced are no part of the punishment inflicted upon one convicted for embezzling public funds.
Id.
If, as some of the cases discussed above suggest, it might be constitutionally suspect to abridge the president's pardon power by declaring that the mere fact of a conviction, even if pardoned, will serve as a disqualification from holding office or engaging in a particular profession, then the ABC might be constitutionally precluded from denying licensure based solely upon the fact of a prior conviction. I do not, however, consider this conclusion inevitable. The Irby court's declaration that a constitutionally mandated presidential pardon cannot preclude the application of a state constitutional proscription against office-holding,
It may well be, as the A.L.R. annotator quoted above suggests, that a reviewing court would apply the same standard in a licensure case as in office-holding cases — extrapolating fromIrby to conclude that the facts showing the applicant committed the offense can always be used despite a presidential pardon, which wipes out the conviction itself. As noted above, in order to survive a supremacy-clause challenge, any such ruling would have to turn on a determination that the disqualification would not amount to an additional "punishment" for the underlying offense. On the other hand, it may be that the Arkansas Supreme Court today would be disinclined to extend Irby by embracing a categorical rule of disqualification from licensure, given that the judicial trend, possibly dictated by the mandates of the supremacy clause, is to engage in a case-by-case inquiry into the nature of the underlying offense — an approach that might accord with principles of federalism and yet preclude a blanket policy classifying any and every pardoned conviction as a disqualification. The possibility of this result might be reinforced by the fact that Irby is an old case (1935) that was vigorously opposed by a 3-justice minority who maintained that a presidential pardon should be given broader effect than the slim majority maintained.
In my opinion, Irby may be somewhat shaky precedent for the proposition that any and every pardoned felony conviction, irrespective of the underlying circumstances, will automatically constitute a disqualifier under Act 1248 of 2005. The possibility exists that a modern court faced with the issue might adopt what appears to be the majority rule, concluding that an executive pardon serves to obliterate the conviction itself but not the guilt associated with the actual commission of the act, leaving an applicant to shoulder the heavy burden of persuading the licensing authority that this guilt should not foreclose his licensure. However, having acknowledged this possibility, I must further note that it has not yet been realized. In my opinion, in accordance with what the A.L.R. commentator quoted above recognizes as the general judicial practice, a reviewing court would in all likelihood hold, based upon the Irby court's ruling, that a presidential pardon does not serve to obliterate the fact of a conviction, meaning that the applicant for a liquor license described in your request would be barred from licensure pursuant to Act 1248 of 2005. Although this interpretation of the law might be subject to constitutional challenge based upon the supremacy clause, in rendering my opinion, I am bound by the proposition that statutes are presumed constitutional and that the burden of proving otherwise is on the challenger of the statute. Ford v. Keith,
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB/JHD:cyh
[W]e note Doe and Roe's argument that the State is clearly in violation of Ark. Code Ann. §16-90-902 (Supp. 2001) and Arkansas public policy. Citing McClish v. State,331 Ark. 295 ,962 S.W.2d 332 (1998), they argue that it is obvious that Arkansas has adopted a "second chance" policy to provide certain, eligible individuals a clean slate to make a positive contribution to society. They further contend that there is nothing in § 22-33-205 that provides the OLTC authority to act contrary to this policy. Their argument, however, ignores the express purpose of § 20-33-205 of Arkansas's Elder Care law, which recognizes that sometimes persons providing care to the elderly or individuals with disabilities have criminal histories that impair their ability to provide adequate care. See Emergency Clause of Act 990 of 1997. Here, the General Assembly specifically enumerated those criminal offenses that disqualify a person or ElderChoices provider; those offenses include theft of property, which was the offense committed by Doe and Roe. See Ark. Code Ann. § 20-33-205(a)(3)(A), (B) and (b)(24) (Supp. 2003). It is within the General Assembly's authority to change or amend laws and public policy in this matter. See Nabholz Constr. Corp. v. Graham,319 Ark. 396 ,892 S.W.2d 456 (1995).
The court's conclusions are in all respects consistent with those I offered in Opinion No.
This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
A law review article authored by Professor Williston put the Garland dictum to rest. . . . "The fundamental distinction suggested by Professor Williston has been generally accepted and followed by the courts since the date of his article." Damiano v. Burge,481 S.W.2d 562 ,565 (Mo.Ct.App. 1972)." The parties have not cited, and our research has not disclosed, a single decision by any federal, state, or other court . . . which has rejected Professor Williston's reasoning." [In re] Abrams, 689 A.2d [6 (D.C. 1997], at 11.
A Westlaw search reveals that Professor's Williston's article has been recited by courts as authority on this issue on at least 45 occasions.
The plain language of article 5 renders any person convicted of an "infamous crime" ineligible for public office. . . . It has been held that these types of provisions were enacted to ensure that public officeholders possess good character in order to be eligible for public office.
Elana Cunningham Wills, Constitutional Crisis: Can the Governor(or Other State Officeholder) Be Removed from Office in a CourtAction After Being Convicted of a Felony?, 50 Ark. L. Rev. 221, 230 (1997), citing Wier, supra; 67 C.J.S. Officers § 22(b) (1978). As this comment suggests, the presumption of unfitness in this constitutional proscription is irrebuttable.
For the majority to say that ineligibility to hold office, denounced by 9 of art. 5 on one convicted of crime, is no part of the punishment inflicted is to state a proposition, the truth of which is difficult to perceive, and, save to the mind of a casuist, no argument however adroit and subtle can convince. As well to say that pain is but a figment of the imagination and the pangs attendant upon dissolution are no part of the article of death as to argue that the infamy resulting from the commission of crime and its disabling effect is no part of the penalty the offender must pay.
In fact, the holding in Garland was that refusal to permit the pardoned attorney to practice law before the Supreme Court (the only issue in Garland) would impermissibly punish him for the pardoned offense (joining the Confederacy), not that the offense had been" blotted out." In re North,62 F.3d 1434 ,1437 (D.C. Dir. 1994).
Fletcher v. Graham, No. 2005-SC-1009-MR, 2006 WL 1358467 at *22 (Ky. May 18, 2006), Cooper, J., concurring in part and dissenting in part.
Specifically with respect to state restrictions based upon a pardoned federal conviction, the court offered the following conclusions:
In regard to the pardon power, the President's sphere is limited. He can only pardon those offenses which are "against the United States." But in this sphere, his power, like any constitutional power, must be supreme. It cannot be hindered by the operation of the subordinate governments. The pardon power would be ineffective if it could only restore a convict's federal civil rights. The pardoned person would still suffer numerous handicaps and would not receive the benefits of what the President in granting a full pardon would seem to intend — that the person be reinstated to his full rights as a citizen. . . . [T]he power to punish for a conviction which has been pardoned is the power to vitiate and destroy a presidential pardon. For these reasons, we conclude that a presidential pardon restores states as well as federal civil rights.
With respect to the possible separation-of-powers implications of a court or a legislature restricting the effects of a full state pardon, in Sandlin v. Criminal Justice Standards andTraining Commission,
Persons seeking to practice certain professions or employments . . . can be required to demonstrate their good moral character, even though they may have been fully pardoned for previous crimes. [Citations omitted.]
By contrast, the court in Irby intimated that the police power, exercised in the interests of "`the welfare of the community,'" supports "`[t]he presumption . . . that one rendered infamous by conviction of a felony, or other base offense, indicative of great moral turpitude, is unfit to exercise the privilege of suffrage, or to hold office. . . .'"