State v. Oldner

206 S.W.3d 818, 361 Ark. 316
CourtSupreme Court of Arkansas
DecidedApril 7, 2005
Docket04-995
StatusPublished
Cited by31 cases

This text of 206 S.W.3d 818 (State v. Oldner) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Oldner, 206 S.W.3d 818, 361 Ark. 316 (Ark. 2005).

Opinion

Donald L. Corbin, Justice.

The instant appeal presents the issue of what constitutes an “infamous crime” for purposes of removing an elected official from public office. Appellant, the State of Arkansas, through the prosecuting attorney for the Tenth Judicial District, argues that an infamous crime is one involving dishonesty or deceit and is not limited to those crimes punishable by more than one year’s imprisonment. This is an issue not previously addressed by this court. Because this appeal presents an issue of first impression, as well as an issue involving the interpretation of the Arkansas Constitution, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1) and (b)(1). We reverse and remand.

The facts leading up to the present removal action began when Appellee Clay Oldner, Mayor of Dumas, was charged by information on October 1, 2002, with theft of property, public record tampering, abuse of office, and witness tampering. An amended information filed on March 10, 2003, added a count of income tax evasion and a count of failure to file an income tax return.

Oldner was tried before a jury on October 24, 2003. He was convicted of one count of witness tampering, a Class A misdemeanor, in violation of Ark. Code Ann. § 5-53-110 (Repl. 1997). The evidence supporting that conviction was that Oldner asked two city employees, Janice Young and Sherri Flippo, to lie concerning the disposition of certain household goods purchased with city funds. Specifically, Oldner asked the employees to state that the property was in the city’s possession. Oldner was also convicted of one count of abuse of office, a Class B misdemeanor, in violation of Ark. Code Ann. § 5-52-107 (Repl. 1997), for misappropriating $1,750.00 in city funds for the paving of private property owned by Oldner’s family. A mistrial was declared with regard to the felony charges of theft of property and public record tampering. Oldner was fined $300.00, ordered to pay restitution to the City of Dumas in the amount of $1,750.00, and assessed court costs of $150.00. He did not appeal his convictions and judgment.

On November 7, 2003, the State filed a petition seeking to remove Oldner from the office of Mayor. In its petition, the State averred that Oldner had been convicted of infamous crimes that warranted his removal from office pursuant to Article 5, Section 9, of the Arkansas Constitution. According to the State’s petition, the term infamous crime as used in the Constitution includes felonies and any misdemeanors that involve deceitfulness, untruthfulness, or falsification.

On December 1, 2003, Oldner filed a response to the removal petition, arguing that he was not convicted of infamous crimes, because neither of his misdemeanor convictions was punishable by more than a year’s imprisonment. Oldner also argued that he could not be removed from office because his actions took place in a prior term of office and the electorate chose to reelect him despite the charges.

On December 11, 2003, while the removal petition was pending, the State filed a second amended information against Oldner on the felony charges of theft of property and public record tampering. Thereafter, on January 8, 2004, the State filed a motion requesting a hearing for Oldner to show cause as to why he should not be removed from office. The circuit court originally scheduled a hearing for April 6, 2004, but upon learning that a new criminal action had been filed, the circuit court sua sponte continued the April 6 hearing until the criminal matter filed against Oldner was resolved. An order reflecting the continuance was then entered on February 27, 2004.

The State requested the circuit court to reconsider the continuance, and after the trial court declined to do so, the State filed a petition for writ of mandamus on March 12, 2004, requesting this court to compel the circuit court to timely render a decision on the pending petition for removal. See State v. Vittitow, 358 Ark. 98, 186 S.W.3d 237 (2004). This court denied the petition, ruling that the State had failed to establish that it had a clear and certain right to the relief sought.

A hearing on the removal petition was ultimately held on June 15, 2004. Each side agreed that the issue to be decided was one of law and, thus, the trial court could decide the matter without further hearings or evidence. The State argued that Oldner had been convicted of infamous crimes because his crimes involved dishonesty and deceit. Oldner countered that he was not convicted of infamous crimes because he was not subject to punishment in excess of one year’s imprisonment. The trial court took the matter under advisement and issued a letter order on July 6, 2004, denying the State’s petition for removal. According to the circuit court, an infamous crime is one that is punishable by more than a year’s imprisonment. A judgment reflecting the trial court’s finding was subsequently entered on August 4, 2004. This appeal followed.

On appeal, the State argues that the trial court erred in denying its petition to remove Oldner as Mayor of Dumas on the basis that his convictions were not punishable by more than a year in prison. According to the State, a person is ineligible to hold public office following a conviction for any felony or infamous crime. The State further argues that infamous crime as used in Article 5, Section 9, of the Arkansas Constitution includes any felony or any misdemeanor that involves deceitfulness, untruthfulness or falsification. 1 Oldner counters that infamous crime should be interpreted in a manner consistent with the Fifth Amendment of the United States Constitution, meaning that a crime is infamous if it is punishable by more than one year’s imprisonment. We agree with the State.

Article 5, Section 9, of the Arkansas Constitution provides:

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 or trust or profit in this State.

Arkansas courts have consistently recognized that a person convicted of a felony or one of the specifically enumerated offenses is disqualified from holding public office under this section. See Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989); Reaves v. Jones, 257 Ark. 210, 515 S.W.2d 201 (1974); Ridgeway v. Catlett, 238 Ark. 323, 379 S.W.2d 277 (1964). In State v. Irby, 190 Ark. 786, 795-96, 81 S.W.2d 419, 423 (1935) (quoting State ex rel. Olson v. Langer, 256 N.W. 377, 386 (1934)), this court further recognized that “[t]he presumption is, that one rendered infamous by conviction of felony, or other base offense, indicative of great moral turpitude, is unfit to exercise the privilege of suffrage, or to hold office, upon terms of equality with freemen who are clothed by the State with the toga of political citizenship.”

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Bluebook (online)
206 S.W.3d 818, 361 Ark. 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oldner-ark-2005.