State v. Cassell, CV–12–852.

• Decision Date: 23 May 2013
• Docket Number: No. CV–12–852.,CV–12–852.
• Citation: 427 S.W.3d 663,2013 Ark. 221
• Parties: STATE of Arkansas, Appellant v. Kenny Webster CASSELL, Appellee.
• Court: Arkansas Supreme Court

2013 Ark. 221

427 S.W.3d 663

STATE of Arkansas, Appellant

v.Kenny Webster CASSELL, Appellee.

No. CV–12–852.

Supreme Court of Arkansas.

May 23, 2013.

Dustin McDaniel, Att'y Gen., by: Colin R. Jorgensen, Ass't Att'y Gen., for appellant.

Joe Don Winningham, Conway, for appellee.

CLIFF HOOFMAN, Justice.

The State of Arkansas appeals from an order of the Searcy County Circuit Court granting Kenny Webster Cassell's motion for summary judgment and dismissing the State's petition to remove Cassell as Sheriff and Collector of Searcy County. At issue is whether Sheriff Cassell's misdemeanor-theft conviction prohibits him from holding public office in the state of Arkansas. Because we conclude that it does, we reverse and remand.

The relevant facts of this case are largely undisputed. The State filed a petition to remove Sheriff Cassell from office on October 31, 2011, and an amended petition on December 28, 2011, alleging that Cassell had pled guilty in October 1979 to a misdemeanor violation of 18 U.S.C. § 659, Embezzlement or Theft of Interstate or Foreign Shipments by Carrier; that Cassell had committed the crime while serving as a deputy sheriff in Searcy County; that Cassell had been sentenced to one year's imprisonment, comprised of thirty days in jail with eleven months' supervised suspension, and a $300 fine; that in a paid political advertisement in the Marshall Mountain Wave on October 15, 2009, Cassell acknowledged the conviction; that Cassell was elected sheriff in November 2010; and that under article 5, section 9 of the Arkansas Constitution, Cassell was barred from holding office. Exhibits attached to the petition established that on February 4, 1979, Cassell had unlawfully possessed, with the knowledge that they were stolen, cornish hens that belonged to Tyson Food, Inc., worth less than $100, that were to be shipped from Springdale, Arkansas, to the state of Maryland. Also on October 31, 2011, the State filed a motion for summary judgment, which was later amended, and a motion for a show-cause hearing. Cassell filed a motion to dismiss the petition.

A hearing on these motions was held on July 16, 2012, and the court entered an order denying both Cassell's motion to dismiss and the State's motion for summary judgment. The court found that Cassell had been convicted of theft by receiving, which was a crime that involved dishonesty, but it found that the State had failed to prove that the crime impugned the integrity of the office or that it directly impacted Sheriff Cassell's ability to serve as an elected official. The court was convinced that without some showing that the conviction impugned the integrity of the office or directly impacted Cassell's ability to serve, the theft conviction alone was not sufficient for removal.

On July 26, 2012, Cassell filed a motion for summary judgment, submitting that this court had adopted a two-part test for determining whether removal from office was warranted under article 5, section 9 of the Arkansas Constitution. In the motion, Cassell acknowledged that he had been convicted of misdemeanor theft in 1979, but he claimed that the State was also required to prove that his conviction impugned the integrity of the sheriff's office or that it directly impacted his ability to serve as an elected official. Cassell claimed that the State had failed to establish the second prong—that his theft conviction impugned the integrity of the office or directly impacted his ability to serve. In response, the State argued that because theft was an “infamous crime” under article 5, section 9 of the Arkansas Constitution, Cassell was ineligible to hold public office in Arkansas. The State maintained that no further proof was necessary for removal purposes. However, the State alternatively argued that there were facts in the record to indicate that Cassell had impugned the integrity of the office—specifically, the State noted that Cassell was serving as deputy sheriff when he committed the theft.

Following a hearing on August 16, 2012, the court entered an order on September 4, 2012, granting Cassell's motion for summary judgment and dismissing with prejudice the State's petition for removal. The court adopted the two-step approach that was advocated by Cassell. Specifically, the court found that theft by receiving was a crime involving dishonesty that qualified as an “infamous crime,” but it found that the State had failed to establish that the conviction directly impacted Sheriff Cassell's ability to serve as an elected official or impugned the integrity of the office of Searcy County Sheriff. The court was especially influenced by the fact that Cassell had committed the crime years before running for office. The court indicated that had he committed the crime while serving as sheriff, it could rule as a matter of law that the misdemeanor theft constituted an “infamous crime.” The court found that the people of Searcy County elected Sheriff Cassell with full knowledge of his prior conviction, which meant that his conviction did not impugn the integrity of the office or directly impact his ability to serve. The State filed a timely notice of appeal from the September 4 order. ¹

On appeal, the State contends that the circuit court erred in granting Cassell's motion for summary judgment and in finding that a misdemeanor-theft conviction prior to holding office does not disqualify a person from holding office under article 5, section 9 of the Arkansas Constitution. Citing to this court's decisions in Edwards v. Campbell, 2010 Ark. 398, 370 S.W.3d 250, and State v. Oldner, 361 Ark. 316, 206 S.W.3d 818 (2005), the State maintains that, as a matter of law, Cassell's theft conviction alone, without further inquiry, permanently disqualified him from serving as an elected official in Arkansas.

In his responsive brief, Cassell maintains that the circuit court ruled correctly because our decision in Oldner, supra, established a two-part test for eligibility: (1) whether the person committed a crime that involved deceit or dishonesty and (2) whether the conviction impugns the integrity of the office and directly impacts the person's ability to serve as an elected official. Cassell posits that although the circuit court found that Cassell's conviction pursuant to 18 U.S.C. § 659 amounted to a crime involving deceit or dishonesty, we should affirm where the circuit court also found that the State did not prove that the conviction impugned the integrity of the office or directly impacted Cassell's ability to serve as sheriff.

Summary judgment may be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 548. Ordinarily, upon reviewing a circuit court's decision on a summary-judgment motion, we would examine the record to determine if genuine issues of material fact exist. May v. Akers–Lang, 2012 Ark. 7, 386 S.W.3d 378. However, in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. When parties file cross-motions for summary judgment, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. Id. As to issues of law presented, our review is de novo. Id.

Article 5, section 9 of the Arkansas Constitution states, “No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime, shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State.” In State v....