State ex rel. Sokira v. Burr

• Decision Date: 17 May 1991
• Citation: 580 So.2d 1340
• Parties: STATE of Alabama ex rel. Frank C. SOKIRA, et al. v. Rolen Henry BURR. 1900044.
• Court: Alabama Supreme Court

Page 1340

580 So.2d 1340

STATE of Alabama ex rel. Frank C. SOKIRA, et al. v. Rolen Henry BURR.

1900044.

Supreme Court of Alabama.

May 17, 1991.

Robert B. Sanford, Birmingham, for appellant.

E. Ray Large, Birmingham, for appellee.

MADDOX, Justice.

The issue in this case is whether Rolen Henry Burr, who, in 1962, pleaded guilty to the crime of distilling and was sentenced to one year and one day in the state penitentiary, with one year's probation, and who, in 1964, was pardoned with an express restoration of his civil and political rights, is disqualified from holding the office of mayor of the Town of Brookside, Alabama. The certificate of pardon issued by the Board of Pardons and Parole restored Burr's "civil and political rights," specifically stating the following:

"ORDERED that all disabilities resulting from the above stated conviction be and they are hereby removed and the civil and political rights of the above named are restored."

In 1988, Burr was elected to his third term as the Mayor of the Town of Brookside, Alabama, and on February 21, 1990, Frank C. Sokira, William P. Murray, and William Lehman ("the petitioners") filed a petition for a writ of quo warranto, alleging that Burr holds the office of mayor in violation of Ala.Code 1975, § 36-2-1(a)(3), and Ala.Const. (1901), art. IV, § 60. The petitioners filed a motion for summary judgment and argued to the trial court that Burr's conviction for distilling precludes him from holding any public office in the State of Alabama. However, the trial court entered a summary judgment in favor of Burr, thereby denying the petition for the writ of quo warranto. The court stated that "justice would not be served by granting the relief sought by the [petitioners]." The petitioners appealed to this Court.

The petitioners allege that Burr's holding public office violates § 36-2-1(a)(3), which reads as follows:

"(a) The following persons shall be ineligible to and disqualified from holding office under the authority of this state:

"....

"(3) Those who shall have been convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery or any other crime punishable by imprisonment in the state or federal penitentiary and those who are idiots or insane." (Emphasis added.)

That provision formerly appeared at Ala.Code (1940), T. 41, § 5.

Article IV, § 60, of the Alabama Constitution (1901) similarly mandates:

"No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state." (Emphasis added.)

At the time Burr pleaded guilty to distilling, the Alabama legislature had defined the crime of distilling in Ala.Code (1940), T. 29, § 103, and expressly made distilling a felony, punishable by at least one year in the penitentiary. That section provided:

"Any person ... who shall, within this state, distill, make or manufacture any alcoholic ... liquors or beverages, any part of which is alcohol, shall be guilty of a felony and, upon conviction thereof, be punished by imprisonment at hard labor in the penitentiary for not less than one year nor longer than five years ...."

Applying Ala.Code 1975, § 36-2-1(a)(3), and Ala.Const. (1901), art. IV, § 60, to Burr's conviction, it is clear that his guilty plea to the felony of distilling disqualified him from holding any public office in the State of Alabama.

While these laws specifically address the effect of a felony conviction on a person's qualification to hold public office, they do not address how a pardon that expressly restores to an individual his "civil and political rights" affects that individual's ability to hold public office. Thus, the ultimate issue becomes whether the State's pardon of Burr, expressly restoring his civil and political rights, allows him to hold the office of mayor. In entering summary judgment in favor of Burr, the trial court did not address this legal question except to hold that justice would not be served by granting the writ of quo warranto.

Ala.Code 1975, § 36-9-2, as amended, states that an individual convicted of an infamous crime while holding public office shall not be restored to public office:

"When any person holding any office or place under authority of this state is sentenced by any court of the United States, of this state or of any other state to imprisonment in the penitentiary or hard labor for the county, his office or place shall be vacated from the time of the conviction. If the judgment is reversed, new trial granted, or judgment notwithstanding the verdict is rendered, he shall be restored to office; but, if pardoned, he shall not be restored to office." (Emphasis added.)

The only direction provided regarding an individual who is pardoned prior to holding public office is found in Amendment No. 38 to the Ala.Const. (1901), which states that "No pardon shall relieve from civil and political disabilities unless specifically addressed in the pardon." (Emphasis added.)

Chief Justice Marshall, writing for the United States Supreme Court, recognized that "a pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed." United States v. Wilson, 7 Pet. 150, 159, (32 U.S.), 8 L.Ed. 640 (1833). In Ex parte Garland, 4 Wall. 333, 380-81 (71 U.S.), 18 L.Ed. 366 (1866), Justice Field, writing for the United States Supreme Court, expressed the following view of the effect of a pardon:

"A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, 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 offense.... [I]t removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

"There is only this limitation to its operation; it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment."

This Court followed the language of Justice Field in deciding Hogan v. Hartwell, 242 Ala. 646, 7 So.2d 889 (1942). In Hogan, this Court considered whether an individual who had been convicted of a felony and subsequently had been pardoned and given "all Alabama Civil and Political Rights" was eligible to hold the office of city commissioner of Mobile. Chief Justice Gardner, writing for this Court, stated that Ala.Const. (1901), art. IV, § 60, did not forever prohibit one convicted of a felony from holding office in this State. Quoting 39 Am.Jur. 554, 556, he continued:

" 'The doctrine has generally been accepted by the courts that a full and unconditional pardon restores to the offender the customary civil rights which ordinarily belong to a citizen' and this includes restoration to the 'pardoned offender his eligibility for state elective office which was forfeited by his conviction.' " (Emphasis added, citation omitted.)

242 Ala. at 651, 7 So.2d at 892.

During the same year that this Court decided Hogan, this Court quoted Justice Field's analysis of a pardon in In re Stephenson, 243 Ala. 342, 10 So.2d 1 (1942). In that case, Stephenson, an attorney, was convicted of forgery and was sentenced to the penitentiary for a period of not less than two years nor more than four years. When Stephenson received a full pardon, restoring his civil and political rights, he filed a petition for reinstatement as an attorney. However, this Court refused to reinstate him and affirmed the ruling of the Board of Commissioners of the Alabama State Bar holding that "the pardon and restoration of his political and civil rights do not of themselves restore the petitioner to the office of an attorney. They merely open the door that would otherwise be barred to him." 243 Ala. at 346, 10 So.2d at 3.

This Court concluded that a prerequisite to the admission to the bar is a good moral character, and that "an application for reinstatement of an attorney, after the judgment of disbarment has become final, must be treated as an application for admission to the practice, and not as an application to vacate the order of disbarment." 243 Ala. at 346, 10 So.2d at 4. In setting the test for reinstatement to the bar, this Court stated that it would look at the life and conduct of the attorney prior to disbarment, and the reasons for the disbarment, and would consider whether the attorney's life and conduct since that time satisfy the Court that, if restored to the bar, he will be upright, honorable, and honest in his dealings. In 1958, this Court effectively reversed its holding in Hogan when it affirmed the decision of the Court of Appeals in Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), aff'd, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959). In Mason, the defendant was convicted of owning or possessing a pistol after his previous conviction of second degree murder, for which he had been pardoned. Judge Harwood, writing for the Court of Appeals, called the issue "original, as far as our decisions are concerned," and attempted to distinguish the case from Hogan. 39 Ala.App. at 2, 103 So.2d at 338. The Court of Appeals recited what this Court had said in Hogan:

" ' "[A] person ... is relieved from the legal consequences of a specific crime" ', and ... ' "a full and unconditional pardon restores to the offender the customary civil rights which ordinarily belong to a citizen." ' "

39 Ala.App. at 3, 103 So.2d at 339.

However, the Court of Appeals stated that this language "constitute[d] broad generalizations and like all statements of generalities, will lead to paradoxical conclusions if mechanically and literally applied...