Restoration of Right To Public Office, License, Etc.

58 A.L.R.3d 1191 58 A.L.R.
3d 1191 (Originally published in 1974)
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American Law Reports ALR3d The ALR databases are made current by the weekly addition of relevant new cases. Pardon as restoring public office or license or eligibility therefor Gary L. Hall, J.D. TABLE OF CONTENTS Article Outline Index Table of Cases, Laws, and Rules Research References ARTICLE OUTLINE I Prefatory Matters 1[a] IntroductionScope 1[b] IntroductionRelated matters 2[a] Summary and commentGenerally 2[b] Summary and commentPractice pointers II General considerations A Public office 3 Restoration; view that pardon does not restore public office 4 Eligibility; view that pardon removes punishment and moral guilt 5 View that pardon removes punishment but not moral guilt 6 View that pardon removes neither conviction nor moral guilt B Licenses 7 To practice law; view that pardon merely opens door to restoration of license 8 Other licenses; view that pardon removes punishment but not moral guilt 9 View that pardon removes neither conviction nor moral guilt III Effect of pardon on restoration of or eligibility for particular office or license A Public office 10 Executive offices 11 Legislative offices 12 Judicial offices 13 Miscellaneous; policemen B Licenses 14[a] To practice lawHeld restored 14[b] To practice lawHeld not restored 15 To practice medicine 16 Miscellaneous Research References INDEX Abortion disbarment following conviction of causing 7 moral qualifications of attorney as to being involved in 14[b]
2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)
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Armed robbery involving police officer 5,13 Assault, conviction of 12,14[b] Attorney's license, pardon restoring 7,14 Ballot, candidate placing name on 4 Character, pardon as not restoring 4 Citizenship, pardon as restoring full rights of 13,14[b] City alderman, disqualification of candidate for office of 11 Civil service employment 4,13 Client's money, attorney collecting 14[b] Comment and summary 2 Confederacy, lawyer on side of 14[b] Conspiracy conviction of attorney 14[b] Conviction or moral guilt, pardon as removing 6,9 County commissioner 3,11 County judge, restoration of eligibility for office of 12 Dangerous weapon, policeman carrying 5,13 Disbarment, commission of crime by attorney 7,14 Driver's license, reissuance of 9,16 Effect of pardon on restoration of or eligibility for particular offices or licenses 10-16 Embezzlement by attorney 14 Embezzlement by public official 4,6,10,12,14[a] Estate, attorney converting goods of 14[b] Extortion conviction, disbarment of attorney for 14[b] Forgery, attorney's conviction of 14[b] Governor's office, ineligible for 10 Grand larceny, attorney convicted of 14[b] Healing, art of 3,9,15 Impeachment proceedings by justice of peace 12 Innocence, pardon restoring 4 Intoxicating liquors attorney's reinstatement on condition of abstinence from 14[b] illegal sale of 16 Introduction 1 Judicial offices, effect of pardon on restoration of or eligibility for 12 Justice of peace, impeachment actions by 12 Larceny, conviction for 4,6,10,12-14 Law practice, licenses for 7,14 Legislative offices, effect of pardon on restoration of or eligibility for 11 Licenses, effect of pardon on restoration of or eligibility for 7-9,14-16 Liquor permit, eligibility to obtain 8,16 Loyalty oath, attorney taking 14[b] Malicious stabbing, conviction of justice of peace in 12 Manslaughter, physician's license revoked because of conviction of 3,15 Medical license, restoration of 3,9,15 Moral guilt, pardon as removing 4-6 Moral turpitude, conviction involving 3,14[b],16 Murder attorney's intention at time of assault 14[b] city policeman convicted of 3,13
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Participation in rebellion by attorney 14[a] Penitentiary, probate and county judge confinement in 12 Physician's license to practice medicine 3,9,15 Policemen, effect of pardon on restoration or eligibility of 13 Postmaster, embezzlement conviction of 6 Practice pointers 2[b] Prefatory matters 1,2 Probate judge, restoration or eligibility for office of 12 Professional misconduct of attorney 7 Public funds, embezzlement of 4,6,10,12,14[a] Public highways, attorney's intoxication on 14[b] Public office effect of pardon on restoration or eligibility of 10-12 general considerations as to 3-6 Punishment, pardon as removing 4,5 Quo warranto proceeding as to county judge 12 Real estate broker's license 9,16 Related matters 1[b] Salesman's license 9,16 Scope 1[a] State representative, ineligibility of 11 Summary and comment 2 Taxicab license, renewal of 9,16 View that pardon merely opens door to restoration of license to practice law 7 Table of Cases, Laws, and Rules Supreme Court Ex parte Law (1866, DC Ga) F Cas No 8126 14[a] Garland, Ex parte, 71 U.S. 333, 18 L. Ed. 366, 32 How. Pr. 241, 1866 WL 9477 (1866) 3, 14[a] Alabama Reed v. State ex rel. Davis, 961 So. 2d 89 (Ala. 2006) 3 Stephenson, In re, 243 Ala. 342, 10 So. 2d 1, 143 A.L.R. 166 (1942) 3, 7, 14[b] Arkansas Atty. Gen., State ex rel. v. Irby, 190 Ark. 786, 81 S.W.2d 419 (1935) 6, 12 Ridgeway v. Catlett, 238 Ark. 323, 379 S.W.2d 277 (1964) 10 State v. Carson, 27 Ark. 469, 1872 WL 1044 (1872) 12 California Lavine, Re (1935) 2 Cal 2d 324, 41 P2d 161 7, 14[b] O'Connell, In re, 64 Cal. App. 673, 222 P. 625 (1st Dist. 1923) 14[b]
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Riccardi, In re, 64 Cal. App. 791, 222 P. 625 (1st Dist. 1923) 14[b] Wettlin v. State Bar of Cal., 24 Cal. 2d 862, 151 P.2d 255 (1944) 7 Colorado Browne, In re, 2 Colo. 553, 1875 WL 312 (1875) 14[b] Connecticut Pharr v. Standing Committee on Recommendations to the Bar, New Haven County, 32 Conn. Supp. 183, 346 A.2d 115 (Super. Ct. 1975) 7, 14[a] District of Columbia Borders, In re, 797 A.2d 716 (D.C. 2002) 7 Florida Branch v. State, 120 Fla. 666, 163 So. 48 (1935) 14[b] Florida Bd. of Bar Examiners, In re, 341 So. 2d 503 (Fla. 1976) 7 Randall v. Florida Department of Law Enforcement, 791 So. 2d 1238 (Fla. Dist. Ct. App. 1st Dist. 2001) 6 Sears, Petition of, 147 So. 2d 522 (Fla. 1962) 14[b] Georgia Hulgan v. Thornton, 205 Ga. 753, 55 S.E.2d 115 (1949) 3, 11 Morris v. Hartsfield, 186 Ga. 171, 197 S.E. 251 (1938) 3, 4, 13 Payne v. State, 52 Ga. App. 425, 183 S.E. 638 (1936) 14[b] Scott v. Leathers, 78 Ga. App. 661, 52 S.E.2d 40 (1949) 3, 7, 14[b] Illinois Hildreth v. Heath, 1 Ill. App. 82, 1878 WL 10294 (1st Dist. 1878) 11 People v. Rongetti, 395 Ill. 580, 70 N.E.2d 568 (1946) 15 Indiana Beck, Matter of, 264 Ind. 141, 342 N.E.2d 611 (1976) 7, 14[b] Patterson v. Dykes, 804 N.E.2d 849 (Ind. Ct. App. 2004) 3 Iowa Slater v. Olson, 230 Iowa 1005, 299 N.W. 879 (1941) 4, 13 Kentucky
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Com. ex rel. Harris v. Porter, 257 Ky. 563, 78 S.W.2d 800 (1935) 7, 14[b] Louisiana Cook v. Skipper, 749 So. 2d 6 (La. Ct. App. 3d Cir. 1999) 6 State v. Adams, 355 So. 2d 917 (La. 1978) 8 State v. Gowland, 189 La. 80, 179 So. 41 (1938) 14[b] State v. Gowland, 174 La. 351, 140 So. 500 (1932) 3, 7, 14[b] Maryland Meyerson, In re, 190 Md. 671, 59 A.2d 489 (1948) 7, 14[b] Massachusetts Commissioner of Metropolitan District Commission v. Director of Civil Service, 348 Mass. 184, 203 N.E.2d 95 (1964) 5, 13 Upshaw v. McNamara, 435 F.2d 1188 (1st Cir. 1970) (applying Massachusetts law) 13 Minnesota Lindquist, In re, 310 Minn. 558, 246 N.W.2d 35 (1976) 14[a] Mississippi Crisler, Ex parte, 159 Miss. 247, 132 So. 103 (1931) 7, 14[a] Missouri Damiano v. Burge, 481 S.W.2d 562, 58 A.L.R.3d 1183 (Mo. Ct. App. 1972) 3, 8, 16 Guastello v. Department of Liquor Control, 536 S.W.2d 21 (Mo. 1976) 8, 14[b] Theodoro v. Dept. of Liquor Control, 527 S.W.2d 350 (Mo. 1975) 16 New York Baldi v. Gilchrist, 204 A.D. 425, 198 N.Y.S. 493 (1st Dep't 1923) 9, 16 Finn, In re, 256 A.D. 288, 10 N.Y.S.2d 29 (2d Dep't 1939) 7 Kaufmann, In re, 245 N.Y. 423, 157 N.E. 730 (1927) 7, 14[b] Oklahoma Cloud, State ex rel. v. Election Bd. of State of Oklahoma, 1934 OK 481, 169 Okla. 363, 36 P.2d 20, 94 A.L.R. 1007 (1934) 3, 4, 11 Stone v. Oklahoma Real Estate Commission, 1962 OK 55, 369 P.2d 642 (Okla. 1962) 9, 16 Tennessee
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State v. Parks, 122 Tenn. 230, 122 S.W. 977 (1909) 3, 12 Texas Ferguson v. Wilcox, 119 Tex. 280, 28 S.W.2d 526 (1930) 2[b] Hankamer v. Templin, 143 Tex. 572, 187 S.W.2d 549 (1945) 3, 7, 14[b] Vermont Harrington, Petition of, 134 Vt. 549, 367 A.2d 161 (1976) 7, 14[a] Virginia Com. v. Fugate, 29 Va. 724, 1830 WL 1381 (1830) 12 Prichard v. Battle, 178 Va. 455, 17 S.E.2d 393 (1941) 9, 16 Washington State v. Hazzard, 139 Wash. 487, 247 P. 957, 47 A.L.R. 538 (1926) 3, 9, 15 West Virginia Hunter, Ex parte, 2 W. Va. 122, 1867 WL 1662 (1867) 14[b] Quarrier, Ex parte, 4 W. Va. 210, 1870 WL 2036 (1870) 14[b] I. Prefatory Matters 1[a] IntroductionScope This annotation[1] collects the cases concerned with whether or not a pardon restores to the one pardoned a public office or license or eligibility for a public office or license. However, the annotation is not concerned with cases discussing the application of executive clemency in one jurisdiction to a conviction of crime had in another jurisdiction, as affecting disqualifications in the former jurisdiction resulting from such conviction.[2] It should also be noted that cases discussing a pardon as a defense in a disbarment proceeding are not treated herein. Relevant statutes and court rules are considered herein only to the extent that they are reflected in the cases within the scope of the annotation. However, since it is quite possible that the effect of a pardon may be controlled, at least in part, by statutes or court rules, the reader is advised to consult the latest relevant provisions of his jurisdiction. 1[b] IntroductionRelated matters Related Annotations are located under the heading of this Annotation. 2[a] Summary and commentGenerally Many constitutional or statutory provisions provide that a conviction of certain crimes renders the one convicted ineligible to hold public office.[3] Research References
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There is general agreement among the courts that the granting of a pardon to an offender will not restore him to a public office which he has forfeited as a result of his conviction.[4] However, there does not appear to be such a well-settled rule concerning the effect of a pardon on the eligibility of the one pardoned to hold public office.[5] 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.[6] 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.[7] 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.[8] Such a view would appear to lead to the conclusion that the pardon does not restore eligibility. Many of the cases dealing with the effect of a pardon on the restoration of, or eligibility for, a license have involved licenses to practice law. These cases indicate a general view that a pardon does not automatically result in the restoration of a license forfeited because of the commission of a crime, although the cases indicate that the pardon "opens the door" for the licensing authorities to consider the qualifications of the one pardoned.[9] 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.[10] Other courts have adopted the view that the pardon obliterates neither the act of conviction nor the accompanying moral guilt.[11] The courts have considered whether a pardon resulted in the restoration of, or eligibility for, executive offices,[12] legislative offices, [13] and judicial offices,[14] as well as various other offices.[15] They have also considered the effect of a pardon on the restoration of, or eligibility for, licenses to practice law[16] or medicine,[17] in addition to various other licenses.[18] The results in these cases have depended on the applicability of the foregoing principles, as well as the circumstances of the particular case. 2[b] Summary and commentPractice pointers The attorney seeking to determine whether his client is eligible to seek public office or obtain a license as a result of a pardon should not assume, without some investigation, that the pardon is valid; in particular, counsel should concern himself with the question whether the officer of board which granted the pardon to counsel's client had the authority to grant pardons.[19] Of course, counsel must concern himself with the proper forum in which to raise the question of the effect of a pardon on his client's status, [20] and, where local law dictates that the issue be raised before an administrative body, counsel will need to consider the extent to which the courts of his jurisdiction will review the rulings of such a body. Since the general rule appears to be that a pardon does not restore a license to practice law, but merely opens the door to an inquiry as to whether the attorney should be permitted to practice,[21] questions as to
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the applicant-attorney's general qualifications ultimately will be considered, thus requiring the applicant and his counsel to be prepared to demonstrate the good character of the applicant.[22] II. General considerations A. Public office 3. Restoration; view that pardon does not restore public office [Cumulative Supplement] In a number of cases, the courts have stated that a pardon granted to an offender does not restore him to a previously held public office which he forfeited as a result of a conviction of a crime.US Ex parte Garland (1867) 71 US 333, 18 L Ed 366 Ala Re Stephenson (1942) 243 Ala 342, 10 So 2d 1, 143 ALR 166 Ga Morris v Hartsfield (1938) 186 Ga 171, 197 SE 251 Hulgan v Thornton (1949) 205 Ga 753, 55 SE2d 115 Scott v Leathers (1949) 78 Ga App 661, 52 SE2d 40 La Re Gowland (1932) 174 La 351, 140 So 500 Mo Damiano v Burge (1972, Mo App) 481 SW2d 562, 58 ALR3d 1183 Okla State ex rel. Cloud v Election Board of State (1934) 169 Okla 363, 36 P2d 20, 94 ALR 1007 Tenn State ex rel. Webb v Parks (1909) 122 Tenn 230, 122 SW 977 Tex Hankamer v Templin (1945) 143 Tex 572, 187 SW2d 549 Wash State v Hazzard (1926) 139 Wash 487, 247 P 957, 47 ALR 538 In Morris v Hartsfield (1938) 186 Ga 171, 197 SE 251, wherein a former city policeman who had been convicted of murder was subsequently granted a pardon by the governor of the state, the court recognized that a pardon could restore one to full rights of citizenship, including the right to hold public office, but the court indicated that a pardon does not operate to confer or restore a public office which was previously held, but which on account of a conviction and sentence was necessarily relinquished. In Hulgan v Thornton (1949) 205 Ga 753, 55 SE2d 115, wherein a county commissioner who had been convicted in federal court of a crime involving moral turpitude was not permitted to continue in office, even though he had been pardoned by the President of the United States, the court recognized that where an office has been forfeited by reason of the conviction of a crime, a subsequent pardon does not restore the party to the office so forfeited. Observing that a pardon releases punishment and blots out guilt, so that in the eye of the law an offender is as innocent as if he had never committed an offense, in State ex rel. Cloud v Election Board of State (1934) 169 Okla 363, 36 P2d 20, 94 ALR 1007, the court recognized that even though a pardon can restore a pardoned convict's eligibility to hold a public office, a pardon does not automatically restore offices forfeited in consequence of a conviction and judgment. In State v Hazzard (1926) 139 Wash 487, 247 P 957, 47 ALR 538, wherein the court had said that a
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physician whose license had been revoked by the state medical board upon the strength of a conviction of manslaughter was not entitled to practice her profession after the governor of the state granted her an unconditional pardon, the court recognized that a pardon does not restore offices forfeited in consequence of a conviction. CUMULATIVE SUPPLEMENT Cases: County commissioner's obtaining pardon, while in office, for his prior burglary conviction did not cure his ineligibility for public office, where commissioner had not been pardoned when elected and remained unpardoned when he assumed office. Code 1975, 3621(a)(3). Reed v. State ex rel. Davis, 961 So. 2d 89 (Ala. 2006). County councilmanelect had prior felony conviction at time of his election that disqualified him from holding office, even though councilmanelect obtained pardon nearly 10 months after election; subsequent pardon did not change councilmanelect's status as convicted felon at time of election, and retroactive application of pardon was contrary to public policy. West's A.I.C. 3815(b). Patterson v. Dykes, 804 N.E.2d 849 (Ind. Ct. App. 2004). [Top of Section] [END OF SUPPLEMENT] 4. Eligibility; view that pardon removes punishment and moral guilt In the following case, in which the court considered whether one who had received a pardon thereby became eligible for public office, the court adopted the view that a pardon removes the punishment for the crime committed, as well as the guilt resulting from the commission of that crime, thus making the offender as innocent as if he had never committed the crime, and accordingly, eligible for office. See Morris v Hartsfield (1938) 186 Ga 171, 197 SE 251, supra 3, recognizing that a pardon restores the convicted person to general eligibility for public office. And in an applicant's suit to review the action of the civil service commission in rejecting his application for a civil service position because he had been convicted of a felony, though subsequently pardoned, the court in Slater v Olson (1941) 230 Iowa 1005, 299 NW 879, acknowledged that a full pardon granted after a conviction contemplates a remission of guilt, and that it forgives an offender and relieves him from the results of his offense, not only relieving him from the punishment which the law inflicts for the crime, but also exempting him from additional penalties and legal consequences in the form of disqualifications or disabilities based upon his conviction. While it indicated that a pardon does not of itself conclusively restore the character of an offender, the court nevertheless recognized that although prohibited acts are not obliterated by a pardon, they are purged of their criminality. However, the court declined to approve the doctrine that the effect of a full pardon is to make an offender a new man, and that in the eye of the law he would be as innocent as if he had never committed an offense, pointing out that broad implications could be attributed to such a statement. In an action wherein a candidate for the office of state representative unsuccessfully sought to have his name placed upon the ballot as the party nominee because of the alleged ineligibility of his opponent, who had received more votes but had previously been adjudged guilty of embezzlement, the court in State ex rel. Cloud v Election Board of State (1934) 169 Okla 363, 36 P2d 20, 94 ALR 1007, stated that a full and unconditional pardon after a conviction reaches both the punishment prescribed for an offense and the guilt of the offender, so that the offense itself is obliterated in legal contemplation. Saying that a pardon deprives the trial court of any jurisdiction to enforce its judgment, and that it makes an offender a new man, the court ex-
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plained that when a pardon is full, it blots out the guilt, so that in the eye of the law an offender is as innocent as if he had never committed an offense. The court noted that a rightful exercise of the pardoning power would result in an encouragement to reform, and that a felon who has paid the price exacted by the law for his transgression should be given the opportunity to prove by years of exemplary living that he has worked out a reformation of his own life, that he has removed the stain against his character, and that he is worthy of trust. 5. View that pardon removes punishment but not moral guilt In the following case, the court adopted the view that a pardon removes all punishment resulting from the commission of a crime, but does not obliterate the guilt resulting from the acts committed; thus, according to the court, if a disqualification to hold a public office previously occupied by the offender is based merely upon the fact of conviction, the pardon restores the one pardoned to eligibility therefor, but if character is a necessary qualification for the office, the one pardoned is not eligible for that office. In considering an applicant's fitness to be a police officer after he had been convicted of armed robbery and carrying a dangerous weapon and subsequently pardoned, the court in Commissioner of Metropolitan Dist. Com. v Director of Civil Service (1964) 348 Mass 184, 203 NE2d 95, recognized that a pardon removes all legal punishment for an offense, and said that if a mere conviction involves certain disqualifications which would not follow from the commission of a crime without a conviction, the pardon removes such disqualifications. On the other hand, said the court, if character is a necessary qualification for an office, and the commission of a crime would disqualify even though there were no criminal prosecution for such crime, the fact that a criminal has been pardoned should not make him any more eligible. Noting that the word "pardon" connotes guilt, the court explained that even if a pardon may remit all penal consequences of a criminal conviction, it cannot obliterate the acts which constituted a crime. 6. View that pardon removes neither conviction nor moral guilt [Cumulative Supplement] In the following case, the court adopted the view that a pardon does not obliterate the guilt arising from the commission of the crime, nor does it remove the conviction itself, and thus the pardon does not render the one pardoned eligible to hold public office. In State ex rel. Atty. Gen. v Irby (1935) 190 Ark 786, 81 SW2d 419, cert den Irby v Arkansas, 296 US 616, 80 L Ed 437, 56 S Ct 136, wherein the court indicated that one who had been convicted of embezzlement of funds belonging to the United States while he was formerly serving as a postmaster was ineligible to hold the office of county judge, even though he had received a full pardon from the President of the United States, the court recognized that the issuance and acceptance, within itself, of a pardon irrevocably acknowledges a conviction of the crime pardoned, and said that as the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt and it does not obliterate the fact of the commission of a crime, nor the conviction thereof. Acknowledging that the applicable constitutional disqualifying provision could not be considered as part of the punishment for the offense in the instant case, the court insisted that a pardon could not wash out a moral stain. The court pointed out that the holding of a public office is a political privilege, and that it never becomes a right until the person claiming it shows that he is constitutionally eligible. CUMULATIVE SUPPLEMENT Cases: Applicant, who received full pardon for conviction for falsely or fraudulently making a certificate as a notary public, was not entitled to certificate of eligibility to have his criminal history record expunged, as
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pardon did not wipe out guilt or fact of conviction. West's F.S.A. 943.0585. Randall v. Florida Department of Law Enforcement, 791 So. 2d 1238 (Fla. Dist. Ct. App. 1st Dist. 2001). Automatic pardon to which candidate was entitled after completion of sentence for his first offense did not restore his right to hold public office; automatic pardon did not have same effect as a full pardon granted by governor. LSAConst. Art. 1, 10(C), 20; LSAConst. Art. 4, 5(E)(1). Cook v. Skipper, 749 So. 2d 6 (La. Ct. App. 3d Cir. 1999), writ denied, 745 So. 2d 601 (La. 1999). [Top of Section] [END OF SUPPLEMENT] B. Licenses 7. To practice law; view that pardon merely opens door to restoration of license [Cumulative Supplement] In the following cases, the courts held or recognized at least by implication that a pardon does not automatically restore an attorney's license to practice law, but merely opens the door to an inquiry into whether the attorney possesses the standards of morality commensurate with the good character to be expected of a member of the bar.Fla In re Florida Bd. of Bar Examiners, 341 So. 2d 503 (Fla. 1976) (conditional pardon would not be sufficient to lift objection to admission to bar) In Re Stephenson (1942) 243 Ala 342, 10 So 2d 1, 143 ALR 166, the court said that since reinstatement to the bar will not automatically follow a pardon of a criminal conviction, a pardon does no more than open the door to an inquiry that would otherwise be barred. The court recognized that a pardon reaches both the punishment prescribed for an offense and the guilt of an offender, and that when a pardon is full it blots out the guilt, so that in the eye of the law an offender is as innocent as if he had never committed an offense. However, recalling that good moral character is a prerequisite to admission to the bar, the court indicated that one should not be reinstated into the ranks of the legal profession, except upon overwhelming proof of reform. In Re Lavine (1935) 2 Cal 2d 324, 41 P2d 161, reh den (Cal) 42 P2d 311, wherein the court recognized that a disbarred attorney's application for reinstatement must be treated as an application for admission to practice, and not as an application to vacate the order of disbarment, the court said that while a pardon obliterates an offense to such an extent that for all legal purposes the one-time offender is to be relieved in the future from all of its results, it does not obliterate the act itself, but puts an offender in the same position as though what he had done never was unlawful. Noting that a disbarred attorney who has been pardoned of an offense cannot again practice without showing that he possesses the moral stamina essential to one qualified to be a member of the bar, the court pointed out that a pardon implies guilt and that it does not wash out a moral stain. The court went on to say that although a pardon relieves an offender of the penal consequences of his act, it does not restore his character, and it cannot reinvest a person with those qualities which are absolutely essential for an attorney at law to possess. See also Wettlin v State Bar of California (1944) 24 Cal 2d 862, 151 P2d 255, and Feinstein v State Bar of California (1952) 39 Cal 2d 541, 248 P2d 3, in which the court made clear that a pardon of an attorney previously disbarred on account of his conviction of an offense does not of itself reinvest him with those essentials required of an attorney at law. Attention is called to Scott v Leathers (1949) 78 Ga App 661, 52 SE2d 40, in which the court recognized that even though a disbarred attorney may not automatically be reinstated by an executive pardon of a crime which he has committed, a pardon would be one factor to be considered in its discretion, while passing upon whether an attorney should have his right to practice law restored to him. The court acknow-
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ledged that a pardon removes all blot and stain growing out of a previous conviction, and that it restores one to full rights of citizenship. In Re Gowland (1932) 174 La 351, 140 So 500, in which the court said that the governor's pardon of a disbarred attorney removed his disqualification for admission to the bar, the court recognized that a pardon reaches both the punishment prescribed for an offense and the guilt of the offender, and that when a pardon is full it blots out the guilt, so that in the eye of the law an offender is as innocent as if he had never committed an offense. Noting that the attorney in the instant case did not contend that his pardon had the effect of restoring his license to practice, the court nevertheless acknowledged that he had re-established his good record and reputation. However, pointing out that a disbarment proceeding is not a means of punishing an attorney for misconduct or even a means of setting up an example to other attorneys, the court explained that disbarment proceedings are intended only for the betterment of the profession and for the protection of the members of society who at times have to entrust their business and personal affairs to members of the profession of law. While examining the character of an attorney who had been disbarred following his conviction of causing an abortion, but who later had received a pardon from the governor, the court in Re Meyerson (1948) 190 Md 671, 59 A2d 489, declared that, since reinstatement will not follow automatically from a pardon, without more, there must be proof of innocence before a pardon will restore one to the fellowship of the bar. Indicating that even innocence of crime will not suffice to reinstate a disbarred attorney if he has failed to live up to the appropriate standards of morality and honor, the court recited that a pardon does no more than open the door to an inquiry that would otherwise be barred. In Re Kaufmann (1927) 245 NY 423, 157 NE 730, recognizing that reinstatement to the bar will not follow automatically from a pardon, without more, the court said that there must be convincing proof of innocence before a pardon will restore one to the fellowship of the bar, and that even innocence of crime will not suffice if there has been a failure to live up to the appropriate standards of morality and honor. Acknowledging that rare instances may arise where one convicted, disbarred, and pardoned may be able to satisfy the court that his guilt has not been proven, or that he may be able to demonstrate his innocence, the court said that a pardon may in some conditions be a warning, as significant as a judgment of reversal, that the looms of the law have woven a fabric of injustice. Noting that courts do not forget that under the most correct administration of the law, men will sometimes fall prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors, the court went on to say that a pardon does no more than open the door to an inquiry that would otherwise be barred. Indicating that the honor of the profession does not demand the sacrifice of the innocent, the court stated that an attorney seeking reinstatement has the burden of satisfying the court of his fitness to be restored to such an honorable fellowship. See also Application of E (1879, NY) 65 How Pr 171, in which the court indicated that since a pardon cannot reinstate an attorney's right to practice law, an inquiry should be made into his possible innocence; and Re Finn (1939) 256 App Div 288, 10 NYS2d 29, wherein the court said that an attorney seeking reinstatement has the burden of satisfying the court of his innocence, before a pardon will restore him to membership at the bar. The court in Hankamer v Templin (1945) 143 Tex 572, 187 SW2d 549, recognizing that a pardon cannot reinstate a disbarred attorney to his former office, said that a pardon does not reinvest an attorney with the good character which is a requirement of admission to the bar. While it acknowledged that a pardon is an act of clemency, the court explained that a pardon does no more than open a door that would otherwise be closed to a disbarred attorney seeking reinstatement. In the following case, the court appeared to treat the pardon as restoring the attorney's right to practice law. In Ex parte Crisler (1931) 159 Miss 247, 132 So 103, wherein the court indicated that a full pardon of the governor discharged all consequences of an attorney's order of disbarment made under a statute as a part of the punishment for a crime which he had committed, the court asserted that a full pardon absolves a party from all the legal consequences of his crime and conviction, direct and collateral. Making clear that it was
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not confronted with a statutory proceeding to disbar an attorney on account of professional misconduct involved in a transaction which culminated in a conviction and pardon, the court went on to say that a pardon reaches both the punishment prescribed for an offense and the guilt of the offender, and that it blots out the guilt, so that in the eye of the law an offender is as innocent as if he had never committed an offense. Stating that when a pardon is granted after a conviction, it makes the convict a new man and gives him a new credit and capacity, the court explained that a pardon rehabilitates a person in all his rights as a citizen, and that after the granting of a pardon any officer of the state should be denied the right to impute a conviction to an offender. On the other hand, the opinion in the following case, in which the court held that a pardon did not reinvest the attorney with the right to practice law, gives no indication that the pardon even opened the door to a consideration of the attorney's eligibility. In considering the possible reinstatement of a disbarred attorney who had been pardoned of the felony conviction which was the cause of the revocation of his license to practice, the court in Commonwealth ex rel. Harris v Porter (1935) 257 Ky 563, 78 SW2d 800, indicated that a pardon cannot rehabilitate a disbarred attorney in the trust and confidence of the proper judicial authorities. The court asserted that while a pardon relieves an attorney of the penal consequences of his act, it cannot restore his character and it does not reinvest him with those qualities which are absolutely essential for an attorney at law to possess. CUMULATIVE SUPPLEMENT Cases: See Pharr v. Standing Committee on Recommendations to the Bar, New Haven County, 32 Conn. Supp. 183, 346 A.2d 115 (Super. Ct. 1975), 14[a]. A full and unconditional presidential pardon after attorney's disbarment for federal convictions for conspiracy, obstruction of justice, and unlawful travel in interstate commerce with intent to commit bribery, did not entitle attorney to automatic reinstatement to practice law without regard to whether he had established fitness to practice; attorney was required to file appropriate application for reinstatement with Board on Professional Responsibility. D.C. Code 2001, 112503(a); Bar Rule XI, 16(d). In re Borders, 797 A.2d 716 (D.C. 2002). See Matter of Beck, 264 Ind. 141, 342 N.E.2d 611 (1976), 14[b]. See Petition of Harrington, 134 Vt. 549, 367 A.2d 161 (1976), 14[a]. [Top of Section] [END OF SUPPLEMENT] 8. Other licenses; view that pardon removes punishment but not moral guilt [Cumulative Supplement] In the following case, in which the court considered the effect of a pardon on the pardoned individual's eligibility for a liquor license, the court approved the view that a pardon obliterates all punishment arising from the conviction, but not the guilt arising from the acts underlying the conviction. In Damiano v Burge (1972, Mo App) 481 SW2d 562, 58 ALR3d 1183, wherein the court held that a pardon re-established plaintiff's eligibility for a liquor license, the court recited that since a pardon removes all legal punishment for an offense, if a conviction involves certain disqualifications which would not follow from the commission of a crime without a conviction, the pardon removes such disqualifications. However, the court indicated that if character is a necessary qualification and the commission of a crime would disqualify even though there were no criminal prosecution for the crime, the fact that a criminal had been pardoned would not make him any more eligible.
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CUMULATIVE SUPPLEMENT Cases: Automatic pardon granted to first offenders by constitution upon completion of sentence restores privileges as well as rights, such as privilege of holding liquor license. State v Adams (1978, La) 355 So 2d 917. See Guastello v Deptment of Liquor Control (Mo) 536 SW2d 21, 16. [Top of Section] [END OF SUPPLEMENT] 9. View that pardon removes neither conviction nor moral guilt In the following cases, in which the courts considered the effect of a pardon upon the restoration of a license or eligibility therefor, it was held or recognized that the pardon did not obliterate the guilt of the person pardoned, or the fact of conviction. In Baldi v Gilchrist (1923) 204 App Div 425, 198 NYS 493, in which the holder of an expired taxicab license had applied for a renewal of the license, but was refused such renewal in accordance with an administrative rule of the license commissioner for the reason that he had been convicted of a felony, the court recognized that an executive act of clemency cannot obliterate the fact of a conviction. The court explained that a pardon does not proceed upon the theory of innocence, but rather it implies guilt. Where an application for an examination required of persons seeking a real-estate broker's or salesman's license was denied on the ground that the applicant had been convicted of a crime involving moral turpitude, the court in Stone v Oklahoma Real Estate Com. (1962, Okla) 369 P2d 642, recognized that a pardon restores rights of citizenship and removes penalties and legal disabilities, but emphasized that a pardon does not substitute a good reputation for a bad reputation. Explaining that the granting of a pardon carries with it an implication of guilt, the court declared that a pardon obliterates neither the facts of the commission of a crime nor the conviction thereof. Asserting that a pardon cannot wash out a moral stain, the court pointed out that a pardon involves forgiveness and not forgetfulness. Acknowledging that it had been said that a full pardon would make an offender a new man and blot out his guilt, so that in the eye of the law he would be as innocent as if he had never committed an offense, the court observed that such a general statement had not been widely accepted or approved. And in Prichard v Battle (1941) 178 Va 455, 17 SE2d 393, in which the court indicated that the revocation of a driver's license and the conditions required for reissuance of such license were not penalties or punishment for a motorist's conviction of leaving the scene of an accident, and therefore such revocation and conditions were unaffected by the pardon of the governor which had been granted to the motorist, the court stated that while a pardon can relieve a motorist from a punishment or penalty which the state might exact of him for an offense, it cannot erase the fact of a conviction. The court explained that a pardon cannot change the fact that by reason of an act committed, a motorist should be put in a class of persons regarded by the state as unfit to drive automobiles on its highways unless additional provision for the safety of others can be made. The court also pointed out that the purpose of the revocation of a driver's license is to remove from the highways an operator who is a potential danger to other users of automobiles. Without indicating the effect of a pardon on the conviction of the person pardoned, the court in the following case, in considering whether a pardoned individual was entitled to have her medical license restored, observed that a pardon did not obliterate the guilt associated with the crime committed. In State v Hazzard (1926) 139 Wash 487, 247 P 957, 47 ALR 538, wherein the court indicated that an unconditional pardon did not restore a license to practice the art of healing to one whose license has been revoked because of a conviction of a crime, the court said that a pardon can relieve one from the disability of fines and forfeitures attendant upon a conviction, but that it cannot erase a stain of bad character which has
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been definitely fixed. The court explained that the very act of forgiveness implies the commission of a wrong. III. Effect of pardon on restoration of or eligibility for particular office or license A. Public office 10. Executive offices In the circumstances presented in the following case, the court held that one who had been convicted of a crime and later pardoned was ineligible to hold the office of governor. In a political candidate's suit for a writ of mandamus to compel a state party chairman and secretary to perform the ministerial duty of certifying his name for inclusion on the ballot as a candidate for the office of governor in the upcoming party primary, the court in Ridgeway v Catlett (1964) 238 Ark 323, 379 SW2d 277, held that the candidate was ineligible to hold a public office, since he had been convicted of the crime of embezzling public funds and the state constitution clearly provided that no person convicted of embezzlement of public money should be capable of holding any office of trust or profit in the state. Rejecting the candidate's argument that the constitutional provision was inapplicable to him because he had received a pardon from the acting chief executive of the state, purporting to restore all civil and political rights which he had lost as a result of the conviction, the court asserted that under the plain language of the constitutional provision it was the fact of conviction that disqualified a person from holding public office. The court declared that it could find no intimation that the pardoning power conferred on the governor by the constitution was intended to permit such an act of clemency to supersede the clear mandate of the provision disqualifying the candidate. However, holding that the party chairman and secretary did not have the judicial authority to determine that a candidate was ineligible to hold public office, and to refuse to place his name upon the ballot for that reason, the court directed that the writ of mandamus should be issued. 11. Legislative offices Under the circumstances presented in the following case, the court held that one who had been convicted of a crime and later pardoned was ineligible to hold the office of county commissioner. The court in Hulgan v Thornton (1949) 205 Ga 753, 55 SE2d 115, affirmed a judgment in a quo warranto proceeding wherein a county commissioner who had been convicted in federal court of a crime involving moral turpitude and had served a 3-year sentence prior to his election to the office was held ineligible to continue in office, even though he had been pardoned by the President of the United States. Noting that a full pardon would restore a person to his citizenship rights under the applicable state constitutional and code provisions, and further noting that if the officer had been pardoned in time to have been qualified to hold the position at the time when he was elected to it, he might well have been eligible to hold the office, the court recalled that where an office has been forfeited by reason of the conviction of a crime, a subsequent pardon does not restore the party to the office so forfeited. Then, declining to give any retroactive effect to the pardon, the court explained that if a pardon does not void a forfeiture, it should not reach back and annul an ineligibility. The court added that to rule otherwise would mean that a person in office who commits a crime could not be reinstated by a pardon, but that one who commits a crime before taking office and then secures a pardon could retain the office. See also Hildreth v Heath (1878) 1 Ill App 82, in which the court indicated that a pardon from the President of the United States of a federal offense should be sufficient to remove any possible disqualification and ineligibility of a candidate for the office of city alderman. However, in a mandamus action in which a candidate for the office of state representative sought to have his name placed upon the ballot as a party nominee because of the alleged ineligibility of his opponent who had received more votes, but had been adjudged guilty of embezzlement, the court in State ex rel.
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Cloud v Election Board of State (1934) 169 Okla 363, 36 P2d 20, 94 ALR 1007, held that the full and unconditional pardon which had been granted to the offender made him eligible for election to the state legislature, in spite of a state constitutional provision which disqualified persons convicted of a felony from serving in that legislative body. Recognizing that a full and unconditional pardon reaches both the punishment prescribed for an offense and the guilt of the offender, and that a pardon deprives the trial court of any jurisdiction to enforce its judgment of conviction, the court felt that a felon who had paid the price exacted by the law for his transgression should be given the opportunity to prove by years of exemplary living that he had removed the stain against his character. Accordingly, the court denied the writ of mandamus which would have compelled the state election board to issue a certificate of nomination for the office to the candidate who had challenged the pardoned candidate's eligibility. 12. Judicial offices Under the circumstances presented in the following cases, the courts concluded that the granting of a pardon to one who had been convicted of a crime did not restore the one pardoned to the judicial office which he held prior to the conviction. The court in State v Carson (1872) 27 Ark 469, held that where a probate and county judge had been convicted of a felony and sentenced to confinement in the penitentiary, but during the pendency of an appeal from the conviction he had obtained a pardon from the governor of the state, the office had been forfeited by his conviction and no pardon could restore it to him. Observing that the state constitution prohibited parties who had been convicted of crimes punishable with imprisonment in the penitentiary from holding public office, but that the constitution also provided that the governor could grant a pardon after such a conviction, the court pointed out that the judge's guilt and conviction had been acknowledged before the pardon could be obtained. Noting that the judge had virtually abandoned his appeal from the conviction, the court said that he could stand in no better light than if he had never appealed, since the appeal did not set aside the judgment but merely suspended the execution of it. The court declared that since the record showed a conviction, it was incumbent upon the offender to either rid himself of it or accept the consequences which followed its introduction into evidence. Concluding that the probate and county judge had failed to show a continuing right to exercise his office, the court entered a judgment ousting him from it. In view of a state constitutional provision which excepted impeachment proceedings from the pardoning power of the governor, as well as another provision requiring that upon conviction for crime in office, a justice of the peace should be removed from his office, as if he were found guilty by impeachment, the court in State ex rel. Webb v Parks (1909) 122 Tenn 230, 122 SW 977, held that a pardon issued by the governor could not restore a justice of the peace to the office which he had forfeited when he was convicted of official oppression. Declaring also that it was not necessary that the justice of the peace be ousted from office through a quo warranto proceeding, the court pointed out that the applicable state constitutional section provided that in the same proceeding in which the guilt of the accused is ascertained, he should be removed from office and disqualified from ever thereafter holding an office. The court emphasized that even aside from the state constitutional provisions, a pardon could not restore to a former incumbent an office which he had forfeited. The court in Commonwealth v Fugate (1830) 29 Va 724, held that the conviction of a justice of the peace of malicious stabbing amounted to a forfeiture of his office, thereby legally incapacitating him from ever acting again under his commission, and that the pardon granted by the executive did not restore his capacity to act under his former commission, nor did it avoid the forfeiture of his office. Upon examination of the English authorities, the court noted that since felonies were punishable capitally in England, if the holder of an office became convicted of a felony, he could obviously no longer hold such office if the sentence were carried into effect. Pointing out that its jurisdiction had substituted penitentiary confinement and discipline for capital punishment, the court asserted that a similar incapacity for holding office should follow the conviction for a felony.
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In the following case, the court held that one who had been convicted of a felony and later pardoned was ineligible to hold the office of county judge. In a quo warranto proceeding by the state, the court in State ex rel. Atty. Gen. v Irby (1935) 190 Ark 786, 81 SW2d 419, cert den Irby v Arkansas, 296 US 616, 80 L Ed 437, 56 S Ct 136, held that a county judge who had been convicted of embezzlement of funds belonging to the United States while he was formerly serving as a postmaster was ineligible to hold the office of county judge, even though he had received a full pardon from the President of the United States, because the pardon had the effect only of restoring his civil rights as distinguished from his political privileges. Acknowledging that the applicable constitutional disqualification could not be considered as part of the punishment for the offense, the court nevertheless felt that the intent and purpose of the framers of the state constitution was to safeguard the welfare of the state, since it evidently was their paramount thought that one who had been convicted for embezzling public funds should not again be trusted with their use. Pointing out that the holding of an office is a public trust, and that it never becomes a right until the person claiming it shows that he is constitutionally eligible, the court recognized that the issuance and acceptance, within itself, of a pardon implies guilt, that it does not obliterate the fact of a crime and conviction, and that it does not wash out a moral stain. 13. Miscellaneous; policemen Under the circumstances presented in the following case, a former policeman who had been convicted of a felony and then pardoned was held not entitled to restoration to the police force. A former city policeman who had been convicted of murder and removed from the police force because of his conviction, but who subsequently was granted a pardon by the governor of the state, was held in Morris v Hartsfield (1938) 186 Ga 171, 197 SE 251, not to be entitled to a writ of mandamus to require his reinstatement to the police force. The court said that while the grant of a pardon restores one to full rights of citizenship, including the right to hold public office, it does not operate to confer or restore a public office which was previously held, but which on account of a conviction and sentence was necessarily relinquished. However, in the following cases, the courts concluded that the absolute disqualification resulting from the conviction of a felony was removed where the one convicted had received a pardon. In Upshaw v McNamara (1970, CA1 Mass) 435 F2d 1188 (applying Massachusetts law), under a statute prohibiting the appointment of felons to a police force, the court recognized that for the protection of those who were innocent, pardoned felons could not be excluded from the list of those eligible for appointment as police officers, but the court also recognized that the commissioner of police could, as a matter of policy, refuse to appoint all whose pardons were granted for grounds other than innocence. However, the court said that the commissioner would not be required to do so, and that if he should so choose, he could consider the applications of those pardoned on grounds other than innocence. At the same time the court declared that such applicants would have a heavy burden of satisfying the commissioner as to their suitability for police work. Finding neither a violation of equal protection nor of due process of law in the commissioner's automatic disqualification of all felons, even though they might be pardoned, the court acknowledged that the absolute disqualification imposed upon felons by statute would be removed by a full pardon, but it concluded that in the instant case an automatic refusal to appoint an applicant who had not alleged that he was pardoned because of innocence was a proper and reasonable act by the commissioner. The court explained that it could easily see a rationale for a policy decision not to hire persons who have been convicted of felonies, even though they have been pardoned, since a person who has committed a felony may be thought to lack the qualities of self-control or honesty required in the sensitive work of a police officer. Where a statute provided that no person convicted of a felony should be appointed as a police officer of a district, in considering the fitness of an applicant who had been convicted of armed robbery and carrying a dangerous weapon, and who had later been granted a full pardon by the governor, the court in Commissioner of Metropolitan Dist. Com. v Director of Civil Service (1964) 348 Mass 184, 203 NE2d 95, said that the absolute disqualification or ineligibility imposed by such a statute should be regarded as removed by a full par-
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don, so that the pardoned person might apply for appointment to the office for which he was formerly disqualified, and he could hold that office if he were 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. The court went on to say 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. However, the court declared that in the instant case, while the pardon removed the applicant's statutory ineligibility as an absolute bar to consideration for appointment, nevertheless the police commissioner could refuse to appoint him because of the serious character of the criminal conduct underlying his conviction. The court asserted that the obvious inappropriateness of appointing as a police officer one previously convicted of a felony, even though he may later be pardoned on grounds other than his innocence, was ample justification for the commissioner's refusal to appoint the applicant. Reversing a declaratory decree requiring the appointment of the applicant, the court indicated that a new decree should be entered, declaring that the commissioner had the duty and broad discretion to refuse to appoint the applicant as a patrolman, if he deemed him to be of bad character, a poor moral risk, or an unsuitable appointee by reason of his pardoned conviction, and that the commissioner could take into account and rely upon the facts related to such conviction. The court explained that if character is a necessary qualification for an office, and the commission of a crime would disqualify even though there were no criminal prosecution for the crime, the fact that a criminal has been pardoned should not make him any more eligible for the office. While it acknowledged that a pardon removes all legal punishment for an offense, the court made clear that a pardon cannot obliterate the acts which constituted a crime. In considering a statute which disqualified an applicant for civil service employment solely because he had been convicted of a felony, thereby establishing a conclusive presumption that he would not be of the good moral character required of a civil service employee, the court in Slater v Olson (1941) 230 Iowa 1005, 299 NW 879, held that the statute was not applicable to a party who had received a full pardon from the governor restoring him to all rights of citizenship. Observing that the applicant had been convicted of the felony of larceny of a motor vehicle, the court stated that to interpret the disqualifying statute as applicable to one who had received a full pardon would render it unconstitutional as a clear encroachment by the legislature upon the pardoning power of the chief magistrate. The court said that while the pardon did not of itself conclusively restore the character of the applicant, and although the acts done by him were not obliterated by the pardon, they were purged of their criminality and the applicant was entitled to an opportunity of proving to the civil service commission that he was a man of good moral character, even though he had committed the acts resulting in his conviction. Recognizing that a full pardon granted after a conviction contemplates a remission of guilt both before and after a conviction, and that it forgives an offender and relieves him from the results of his offense, the court affirmed the trial court's decision sustaining a writ of certiorari to review the action of the civil service commission in preventing the applicant from taking an examination because he had been convicted of a felony. B. Licenses 14[a] To practice lawHeld restored [Cumulative Supplement] In the circumstances of the following cases, in which it appeared that a pardon had been granted to an attorney whose right to practice law had been forfeited as a result of his commission of a crime, it was indicated that the attorney was entitled to reinstatement as a member of the bar. See also Ex parte Garland (1867) 71 US 333, 18 L Ed 366, in which the court held that an attorney who had taken the required oath when he was admitted to practice before the United States Supreme Court, and who had subsequently been an officer in the legislature of the Confederacy during the Civil War, but had received a pardon from the President for his acts of participation in the rebellion, was again entitled to practice
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in the federal courts, without taking the test oath of loyalty which had been prescribed by the United States Congress during the war. The court said that even if the statutory oath requirement were not unconstitutional as a bill of attainder and as an ex post facto law, the pardon would relieve the attorney of the necessity of taking the new oath, since the deprivation of his right to practice by requiring the taking of an oath which he obviously could not take would have amounted to a form of punishment for the offense which the President had pardoned. Noting that the act would operate as a legislative decree of perpetual exclusion, the court reasoned that exclusion from any of the professions, or from the ordinary avocations of life, for past conduct can be regarded in no other light than as punishment for such conduct. Indicating that Congress could neither limit the effect of the President's pardon nor exclude from its exercise any class of offenders, the court observed that a pardon reaches the punishment prescribed for an offense, and that when a pardon is full it blots out the guilt, so that in the eye of the law an offender is as innocent as if he had never committed an offense. Asserting that in the instant case the effect of the pardon was to relieve the attorney of all penalties and disabilities attached to the crime of treason, the court said that if the exclusion from the practice of law could be effected by the exaction of the expurgatory oath covering the offense, the pardon would be avoided, and a result which could not be reached by direct legislation would be accomplished indirectly. And see Ex parte Law (1866, DC Ga) F Cas No 8126, in which the court held that an attorney who had been admitted to practice in the federal courts prior to the Civil War and who had received a full pardon from the President for his participation in the war on the side of the Confederacy was entitled to again practice in the courts of the United States without taking the required oath of loyalty which had been prescribed by Congress during the war. The court made clear that the loyalty oath could not be applicable to an attorney who had met all requirements for attorneys practicing in the federal courts prior to the adoption of the oath. In Ex parte Crisler (1931) 159 Miss 247, 132 So 103, wherein an attorney had been convicted of embezzlement and the judgment against him included an order forever disbarring him from the practice of law in the state, in accordance with an applicable statute, but he was granted a full pardon by the governor after serving a portion of his sentence in the penitentiary, the court held that the full pardon absolved the attorney from all consequences of the order of disbarment made under the statute as a part of the punishment for the commission of the crime. Making clear that it was not confronted with a statutory proceeding to disbar an attorney on account of professional misconduct involved in the transaction which culminated in the conviction and pardon, the court observed that a full pardon absolves a party from all the legal consequences of his crime and conviction, direct and collateral. Reversing a judgment which had resulted in the dismissal of the attorney's petition to annul the order disbarring him from the practice of law, the court explained that a pardon must be held to rehabilitate a person in all his rights as a citizen, and that after the granting of a pardon any officer of the state must be denied the right to impute the conviction to him. CUMULATIVE SUPPLEMENT Cases: Attorney who was pardoned for perjury offense and who had led exemplary life since original transgression and disbarment 22 years before would be readmitted. Pharr v Standing Committee on Recommendations to the Bar, New Haven County, 32 Conn Supp 183, 346 A2d 115. Attorney who was disbarred following conviction for failure to report for induction in armed forces in 1943, who received full pardon from president in 1947, and whose record was unblemished in succeeding 33 years was entitled to reinstatement as attorney at law with retired status. Re Lindquist (Minn) 246 NW2d 35. Attorney who had been convicted of felony of extortion was entitled to be readmitted to practice of law where activities underlying criminal charge were personally advantageous to him only insofar as they benefited his client and were not the conventional extortion situation and where attorney had been granted full executive pardon. Petition of Harrington, 134 Vt 549, 367 A2d 161. [Top of Section]
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[END OF SUPPLEMENT] 14[b] To practice lawHeld not restored[23] [Cumulative Supplement] In the circumstances of the following cases, in which it appeared that a pardon had been granted to an attorney whose right to practice law had been forfeited as a result of his commission of a crime, it was indicated that the attorney was not automatically entitled to reinstatement as a member of the bar because of the pardon. Where an attorney was disbarred after he was convicted of forgery, but he subsequently received a full pardon from the governor of the state, with a restoration of his civil and political rights, the court in Re Stephenson (1942) 243 Ala 342, 10 So 2d 1, 143 ALR 166, affirming a decision denying his petition for reinstatement to practice as an attorney, held that such pardon and restoration of rights did not have the effect of restoring to the attorney the privilege to practice his profession as a member of the bar. Asserting that an application of a disbarred attorney must be treated as an application for admission to the practice, and not as an application to vacate the order of disbarment, the court recalled that good moral character is a prerequisite to admission to the bar. While it acknowledged that when a pardon is full it blots out the guilt, so that in the eye of the law an offender is as innocent as if he had never committed an offense, the court explained that a pardon does not go as far as to restore offices forfeited. The court added that it was regrettable that the attorney had practiced law in several divorce cases after his disbarment, when he sought to help his relations and friends for little compensation. Where a statute purported to provide for the reinstatement of disbarred attorneys upon the strength of a pardon of whatever offense was the cause of a conviction and disbarment, and where an attorney had been disbarred upon his conviction of attempted extortion, but thereafter the governor granted him a full pardon, the court in Re Lavine (1935) 2 Cal 2d 324, 41 P2d 161, reh den (Cal) 42 P2d 311, held that so far as the pardon statute purported to reinstate or to direct any court to reinstate a pardoned attorney, without any showing of moral rehabilitation, it was unconstitutional and void as a legislative encroachment upon the inherent power of the courts to admit attorneys to the practice of law, and that it was tantamount to the vacation of a judicial order by a legislative mandate. The court said that the attorney in the instant case could not be reinstated upon the mere presentation of a pardon, without more, since he had not satisfied the burden of showing that he possessed the moral stamina essential to one qualified to engage in the practice of law. Denying the attorney's application for reinstatement, without prejudice to his right to renew such application upon a showing of moral rehabilitation, the court explained that while a pardon obliterates an offense to such an extent that for all legal purposes the one-time offender is to be relieved in the future from all of its results, it does not obliterate the act itself, but merely puts the offender in the same position as though what he had done never was unlawful. The court in Re Riccardi (1923) 64 Cal App 791, 222 P 625, upon the authority of Re O'Connel (1923) 64 Cal App 673, 222 P 625, refused to reinstate a disbarred attorney, even though he had received a full pardon from the governor of the state. Recognizing that the question for determination in an application for reinstatement by a disbarred attorney is not the sufficiency of the punishment already suffered by him, but the fitness of the applicant to be admitted to the practice of law, the court emphasized that a mere belief that an attorney has been sufficiently punished will not warrant his reinstatement. The court also observed that it is not customary for an attorney to be reinstated when his petition follows closely upon the disbarment proceedings, even though his application may be supported by testimonials of numerous persons as to his good conduct and present character, such as in the instant case. The court felt that it owed a solemn duty to the community and to the legal profession, which had to be performed without regard to feelings of sympathy for the applicant. See also Ex parte Browne (1875) 2 Colo 553, where the court held that since the power of the governor to grant pardons for offenses against the laws of the territory did not extend to the case of the disbarment of
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an attorney pursuant to a statute authorizing disbarment on the petition of a client to whom the attorney had failed to pay money received by him in his office as an attorney, such a pardon did not entitle the attorney to reinstatement. While the court acknowledged that the misconduct imputed to the attorney might be considered in the light of a contempt, as tending to bring the court into public dishonor, and that solely in that light the offense was clearly within the scope of executive clemency, the court pointed out that the statute authorizing the institution of such a proceeding by the client was intended to afford a remedy for the collection of the client's money. The court reasoned that even though the governor might pardon the public offense, he could not deprive the client of his remedy. A decree dismissing a petition seeking an order to reinstate an attorney to the state bar was affirmed in Branch v State (1935) 120 Fla 666, 163 So 48, wherein the court held that even though the disbarred attorney had received a pardon from the state board of pardons for his conviction of assault with intent to commit murder, such pardon could not automatically restore his right to practice law, and he should furnish at least the same evidence as to his moral character that would be required for an applicant to practice law in the first instance. The court explained that when an attorney at law has been disbarred because of misconduct, it is the province of the courts to determine whether or not he should be reinstated into his position, and that it is not material that he may have been tried and convicted because of a criminal offense involving the same conduct, or that afterward he may have been pardoned by a state board and restored to his full rights of citizenship. Pointing out that an attorney does not forfeit his right to practice law because of a conviction, but because of an adjudication that he has been guilty of conduct showing him to be a person unfit to engage in the profession of practicing law, the court also acknowledged that the disbarment of a practicing attorney is not a part of the punishment inflicted for the commission of a crime. In Petition of Sears (1962, Fla) 147 So 2d 522, the court declared that a complete pardon of the crime of grand larceny would not alone be sufficient to justify reinstatement of an attorney who had been suspended from the practice of law. However, in its decision to reinstate the attorney, the court gave substantial weight to the fact that a complete pardon had been granted, since the pardon indicated that the executive branch of government had found that the attorney was entitled to return to society in the exercise of his civil rights, free of the taint of a conviction. Where an attorney had been disbarred and subsequently reinstated on the condition that he would abstain from the use of intoxicating liquors and would otherwise properly demean himself for a period of one year, but before the expiration of the year he was convicted of being intoxicated on a public highway and his reinstatement to the bar was revoked because of such conviction, the court in Payne v State (1936) 52 Ga App 425, 183 SE 638, held that the disbarred attorney's full pardon by the governor had no effect upon or relation to the court's previous order revoking his reinstatement. The court said that while the pardon of the governor had the effect of relieving the disbarred attorney from the punishment imposed because of his conviction, and that it made him eligible to apply for readmission to the bar, such readmission was nevertheless a matter within the discretion of the court. Pointing out that a disbarment proceeding is in no sense a criminal prosecution, the court further said that the primary objective of a disbarment proceeding is not the punishment of an attorney, but the protection of the court and the public, by removing from the profession one shown to be unfit for the discharge of its important and honorable duties. Reciting that an attorney seeking reinstatement has the burden of satisfying the court of his fitness to be restored to such an honorable fellowship, the court affirmed a judgment denying the attorney's motion for reinstatement. Where an attorney had been convicted of a crime involving moral turpitude, and had been subsequently disbarred from the practice of law, but attached to his petition for reinstatement was a full pardon under the seal of the state, pardoning him of the crime which was the subject of the conviction, the court in Scott v Leathers (1949) 78 Ga App 661, 52 SE2d 40, disagreeing with the trial court's opinion that an attorney who had been convicted of a crime or misdemeanor involving moral turpitude was forever barred by statute from the practice of law in the state, held that such a disbarred attorney was eligible to apply for reinstatement because of his subsequent pardon. Although it acknowledged that a pardon restores one to full rights of citizenship, including the right to hold office, the court went on to say that a disbarred attorney may not auto-
Page 22
matically be reinstated by an executive pardon of a crime which he has committed, but that the pardon is a factor which the court may take into consideration in the exercise of its discretion. Emphasizing that a pardon does not automatically operate to confer or to restore a public office which has been forfeited, the court reversed a judgment dismissing the attorney's petition for reinstatement to the bar. In considering the effect of a pardon upon an attorney's right to practice law after his license had been taken away upon the ground that he was convicted of a felony, the court in Commonwealth ex rel. Harris v Porter (1935) 257 Ky 563, 78 SW2d 800, reversing a judgment canceling the original disbarment order, held that while the effect of the pardon was to relieve the attorney of the penal consequences of his act, it could not change his character, it did not reinvest him with those qualities which are absolutely essential for an attorney to possess, and it did not restore his right to practice, even though it purported to restore all rights and privileges forfeited by the conviction. Pointing out that lawyers are officers of the court, and that they are agents through whom justice must be administered, the court said that the pardon could not rehabilitate the disbarred attorney in the trust and confidence of the court. The court insisted that attorneys who are morally unfit to act as worthy instruments of justice should be disbarred. In Re Gowland (1932) 174 La 351, 140 So 500, the court said that even though the governor's pardon of an attorney who had been disbarred because of his conviction of forgery had the effect of removing his disqualification for admission to the bar, the pardon did not have the effect of restoring the attorney's license to practice law, since whether he could qualify again for admission to the bar would be a matter dependent upon the examining committee. Acknowledging that it had been held that a pardon reaches both the punishment prescribed for an offense and the guilt of the offender, the court pointed out that a disbarment proceeding is not a means of punishing an attorney at law for misconduct, or even a means of setting up an example to other attorneys. Declining to grant a rescission of the decree of disbarment, the court went on to say that disbarment proceedings are intended only for the betterment of the profession, and for the protection of the members of society who at times have to entrust their business and personal affairs to attorneys.[24] In Re Meyerson (1948) 190 Md 671, 59 A2d 489, when passing upon the moral qualifications of an attorney who had been disbarred following his conviction of conspiring to cause and causing an abortion, the court gave only a small amount of consideration to the fact that the attorney had received a pardon from the governor after he had been in a house of correction, released on probation, and had served in the Army during wartime with distinction. In considering the attorney's petition for reinstatement to the bar, the court pointed out that reinstatement will not follow automatically from a pardon, without more, and that there must be proof of innocence before a pardon will restore one to the fellowship of the bar. Declaring that even innocence of crime will not suffice if there has been a failure to live up to the appropriate standards of morality and honor, the court said that in spite of the disbarred attorney's subsequent honorable conduct, he had not met the burden of satisfying the court of his fitness to be restored to such an honorable profession. Emphasizing that the attorney had not proven that he was innocent of the act for which he was convicted, the court affirmed an order denying his application for reinstatement to the bar. Under a statute providing for possible vacation of an order of disbarment upon pardon of the convict by the executive, the court in Re Kaufmann (1927) 245 NY 423, 157 NE 730, held that in view of the fact that the President of the United States had granted pardons to two attorneys who had been disbarred after they were convicted of conspiracy, their applications for reinstatement to the bar should be remitted to a lower court for the institution of proceedings to determine their possible innocence of the crime. Reversing an order which had denied the attorneys' applications for reinstatement, the court pointed out that reinstatement to the bar will not follow automatically from a pardon, without more, but that there must be convincing proof of innocence before a pardon will restore one to the fellowship of the bar, and that even innocence of crime will not suffice if there has been a failure to live up to the appropriate standards of morality and honor. Recognizing that a pardon does no more than open the door to an inquiry that would otherwise be barred, the court stated that an attorney seeking reinstatement has the burden of satisfying the court of his fitness to be restored to the bar. Where an attorney who had been convicted of converting the goods of an estate had his right to practice
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law revoked as a part of the judgment of the court pronouncing the sentence upon him, and where such attorney had received a full pardon of the governor restoring him to the rights of citizenship, the court in Hankamer v Templin (1945) 143 Tex 572, 187 SW2d 549, held that the pardon and restoration of citizenship did not reinstate the attorney's right to practice. Observing that the governor's power to pardon was limited to criminal cases after conviction, and that the disbarment of an attorney is a civil proceeding, the court explained that the governor had no power to reinstate a privilege to practice law. Rejecting the contention of the disbarred attorney that the revocation of his license was part of the punishment assessed against him, and that therefore such punishment was also released by the full and unconditional pardon granted to him by the governor, the court acknowledged that the disbarment was punishment in a sense, but said that it was not part of the penalty, as such. Declaring that it is elementary that a pardon is an act of clemency and does not restore the good character which an attorney is required to possess upon being admitted to the bar, the court reasoned that the governor's pardon and restoration of political and civil rights merely opened a door that would not otherwise have been open to the attorney seeking reinstatement. Denying the attorney's application for a writ of mandamus to compel the clerk of court to enter his name as a member of the bar, the court emphasized that the right to practice law is in the nature of a franchise from the state conferred only for merit. The court in Ex parte Hunter (1867) 2 W Va 122, held that where a pardon was granted by the President of the United States to an attorney who had been duly admitted to the practice of law prior to his participation in the Civil War on the side of the Confederacy, such pardon could not restore the attorney's right to practice in the state courts in the absence of his compliance with the loyalty oath requirement which had been enacted by the state legislature after the war. And where the President of the United States granted a pardon to an attorney who had supported the Confederacy during the Civil War, the court in Ex parte Quarrier (1870) 4 W Va 210, held that such pardon might restore the attorney's right to practice in the federal courts, but that it could not restore his prior standing in the state courts. The court explained that the attorney could not be permitted to again practice in the state courts, in the absence of his compliance with the required oath of loyalty which had been prescribed by the state legislature after the Civil War. CUMULATIVE SUPPLEMENT Cases: Petition for reinstatement was denied where attorney, who was granted pardon for robbery, had history of promotional activities and admitted that this, and not practice of law, was his primary interest, notwithstanding fact that conduct since discipline had been exemplary. Matter of Beck (Ind) 342 NE2d 611. Where applicant for package liquor license had been convicted of liquor law violations and was subsequently pardoned, denial of license solely because of prior convictions was unauthorized. Guastello v Department of Liquor Control (Mo) 536 SW2d 21. [Top of Section] [END OF SUPPLEMENT] 15. To practice medicine Under the circumstances presented in the following cases, the courts concluded that a pardon did not operate to restore a physician's license to practice medicine, which license had been forfeited by the conviction of the crime of manslaughter. In a prosecution for practicing medicine without a license, the court in People v Rongetti (1946) 395 Ill 580, 70 NE2d 568, said that where a pardon restoring the rights of citizenship had been granted by the gov-
Page 24
ernor to one who had forfeited his right to practice medicine when he was convicted of manslaughter, such pardon did not reinstate him to the practice of medicine. The court indicated that if a pardon had such an effect of automatically restoring forfeited rights, many persons who obtained divorces because their spouses were convicted of a felony would find themselves in an embarrassing position. The court pointed out that there is a wide distinction between the right which one has to hold his property against the world and to prevent even the state from taking it without compensation, and the right to practice a profession which demands peculiar qualifications, including the requirement of a license, in order to protect the public. Where a physician had been convicted of manslaughter and her license to practice the art of healing had subsequently been revoked by the state medical board upon the strength of the conviction, the court in State v Hazzard (1926) 139 Wash 487, 247 P 957, 47 ALR 538, held that an unconditional pardon granted to her by the governor of the state did not have the effect of restoring her license to practice, even though the pardon purported to restore all rights and privileges which she had forfeited as a result of the conviction. Noting that the state constitution only gave the governor the power to remit fines and forfeitures, and that the pardon could not be construed to be any stronger than if it read that the former physician was restored to all she had forfeited by reason of her conviction and confinement, the court rejected the contention of the former physician that the pardon had been issued because of her innocence, and that its effect was to restore her good character. Pointing out that the very act of forgiveness implies the commission of a wrong, the court declared that a pardon can relieve one from the disability of fines and forfeitures attendant upon a conviction, but that it cannot erase the stain of bad character which has been definitely fixed. Reasoning that there is a wide distinction between the right to hold property and to deny even the state the prerogative to take it without compensation, and the right to practice a profession which demands peculiar qualifications in order to protect the public, the court declared that as to the practice of such professions there could be no inherent right apart from the question of qualifications. The court explained that one qualified in all respects has a right to a license, but that one unqualified has no right whatever. 16. Miscellaneous [Cumulative Supplement] In the following case, the court held that, under the circumstances presented, the granting of a pardon to an offender who had been convicted of crimes pertaining to the sale of intoxicating liquor restored his eligibility to obtain a liquor permit, notwithstanding a statute providing that no liquor permit should be issued to any person who had been convicted of such crimes. The court in Damiano v Burge (1972, Mo App) 481 SW2d 562, 58 ALR3d 1183, held that where a statute provided that no liquor permit should be issued to any individual who had been convicted of certain violations of laws applicable to the manufacture or sale of intoxicating liquor, and in accordance with the statute, an application for a permit had been refused on the ground that the applicant had been convicted of conspiracy to violate certain federal tax laws pertaining to the sale of intoxicating liquor, a pardon granted by the President of the United States to the applicant restored him to his original position prior to the conviction. Acknowledging that a pardon re-establishes eligibility for a license which is prohibited to one who has been convicted of a crime, the court nevertheless cautioned that if character is a necessary qualification for a license and the commission of a crime would disqualify even though there were no criminal prosecution for the crime, the fact that a criminal has been pardoned cannot make him any more eligible. However, noting that in the instant case the parties had stipulated that the sole and exclusive reason for the authorities' refusal to issue the liquor permit was because of the alleged conviction of the applicant, and that the refusal was not due to any misconduct involving moral fitness, the court affirmed a judgment holding that the Presidential pardon reinstated the applicant's eligibility for the permit. However, in the following cases, under the circumstances presented, the courts indicated that the granting of a pardon to an offender who had been convicted of a crime which he had committed did not have the effect of making him eligible to obtain the license he was seeking or of restoring a previously revoked li-
Page 25
cense. In Baldi v Gilchrist (1923) 204 App Div 425, 198 NYS 493, in which the holder of an expired taxicab license had applied for a renewal of the license but was refused such renewal in accordance with an administrative rule of the license commission for the reason that he had been convicted of a felony, the court, in rejecting the applicant's contention that because he was pardoned and restored to the rights of citizenship by the governor, no further consequences should follow his conviction of crime, held that the pardon did not obliterate the fact of the conviction. Asserting that a pardon proceeds not upon the theory of innocence, but rather implies guilt, the court declared that it was manifest that the pardon and restoration of rights had no retroactive effect upon the judgment of conviction which remained unreversed and had not been set aside. Accordingly, the court reversed a decision which had resulted in a mandamus order requiring the issuance of the taxicab license. Where a statute provided that a real-estate broker's or salesman's license could only be granted to persons who bore a good reputation for honesty, integrity, and fair dealing, and where an application for the examination required of those seeking such licenses was denied on the ground that the applicant had been convicted of a crime involving moral turpitude, the court in Stone v Oklahoma Real Estate Com. (1962, Okla) 369 P2d 642, held that the pardons granted by the governor for some, but not all, of the applicant's convictions did not remove the stigma attached to the felonies. Observing that the effect of the pardons was to restore the applicant's right of citizenship and to remove all remaining penalties and legal disabilities, the court emphasized that such pardons could not and did not substitute a good reputation for a bad reputation. Explaining that the granting of a pardon carries with it an implication of guilt, the court declared that a pardon obliterates neither the fact of the commission of a crime nor the conviction thereof. Recognizing that a pardon involves forgiveness and not forgetfulness, and that a pardon cannot wash out a moral stain, the court affirmed a judgment which had prevented the applicant from taking the required examination. In Prichard v Battle (1941) 178 Va 455, 17 SE2d 393, the court held that inasmuch as the revocation of a driver's license and the conditions required for reissuance of such license, including the posting of a bond and collateral for payment of future damages, were not penalties or punishment for a motorist's conviction of leaving the scene of an accident, such revocation and conditions were unaffected by the pardon of the governor which had been granted to the motorist. Saying that a license to operate a motor vehicle is a privilege granted by the state under its police power, the court explained that the purpose of the revocation of a driver's license is to remove from the highways an operator who is a potential danger to other users of automobiles. The court concluded that while the pardon relieved the motorist from a punishment or penalty which the state might have exacted of him for the offense, it did not erase the fact of his conviction, or the fact that by reason of the act committed he was put in a class of persons regarded by the state as unfit to drive automobiles on its highways unless additional provision for the safety of others could be made. CUMULATIVE SUPPLEMENT Cases: Governor lacked power to pardon holder of liquor license from administrative revocation of license based on findings that licensee had sold liquor on Sunday and had sold liquor to minor. Theodoro v Department of Liquor Control (Mo) 527 SW2d 350 (citing annotation). [Top of Section] [END OF SUPPLEMENT] RESEARCH REFERENCES A.L.R. Library
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A.L.R. Quick Index, Licenses and Permits A.L.R. Quick Index, Pardon, Parole, or Probation A.L.R. Quick Index, Public Officers and Employees Reciprocal Discipline of AttorneysNoncriminal Misconduct Towards Clients Not Involving Client Funds, 44 A.L.R.6th 75 Reciprocal Discipline of AttorneysCriminal Conduct, 43 A.L.R.6th 163 Wrongful or Excessive Prescription of Drugs as Ground for Revocation or Suspension of Physician's or Dentist's License to Practice, 19 A.L.R.6th 577 Validity, Construction, and Application of State Criminal Disenfranchisement Provisions, 10 A.L.R.6th 31 Criminal Record as Affecting Applicant's Moral Character for Purposes of Admission to the Bar, 3 A.L.R.6th 49 Revocation of Order Commuting State Criminal Sentence, 88 A.L.R.5th 463 What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 10 A.L.R.5th 139 Abuse or misuse of contempt power as ground for removal or discipline of judge, 76 A.L.R.4th 982 Physician's or other healer's conduct, or conviction of offense, not directly related to medical practice, as ground for disciplinary action, 34 A.L.R.4th 609 Regulation of practice of acupuncture, 17 A.L.R.4th 964 Violation of draft laws as affecting character for purposes of admission to the bar, 88 A.L.R.3d 1055 Criminal record as affecting applicant's moral character for purposes of admission to the bar, 88 A.L.R.3d 192 Regulation of private detectives, private investigators, and security agencies, 86 A.L.R.3d 691 Right in absence of express statutory authorization, of one convicted of crime and imprisoned or paroled, to prosecute civil action, 74 A.L.R.3d 680 Suspension or revocation of real-estate broker's license on ground of discrimination, 42 A.L.R.3d 1099 Elections: effect of conviction under federal law, or law of another state or country, on right to vote or hold public office, 39 A.L.R.3d 303 Prejudicial effect of statement of prosecutor as to possibility of pardon or parole, 16 A.L.R.3d 1137 Prejudicial effect of statement or instruction of court as to possibility of parole or pardon, 12 A.L.R.3d 832 Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210
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What constitutes conviction within statutory or constitutional provisions making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 71 A.L.R.2d 593 Reinstatement of attorney after disbarment, suspension or resignation, 70 A.L.R.2d 268 Good moral character of applicant as requisite for admission to bar, 64 A.L.R.2d 301 Grounds for revocation or suspension of license of real-estate broker or salesman, 56 A.L.R.2d 573 What is an infamous crime or one involving moral turpitude constituting disqualification to hold public office, 52 A.L.R.2d 1314 Offenses and convictions covered by pardon, 35 A.L.R.2d 1261 Conviction of offense under Federal law or law of another state or country as vacating accused's holding of state or local office or as ground of removal, 20 A.L.R.2d 732 Time as of which eligibility or ineligibility to office is to be determined, 143 A.L.R. 1026 Executive clemency to remove disqualification for office or other disqualification, resulting from conviction of crime, as applicable in case of conviction in Federal court or court of another state, 135 A.L.R. 1493 Suspension of imposition or execution of sentence and/or placing upon probation as affecting grounds for suspension or disbarment of attorney, 132 A.L.R. 659 Pardon as defense to proceeding for suspension or cancellation of license of physician, surgeon, or dentist, 126 A.L.R. 257 Construction and Application of "Convicted in Any Court" Element of Offense of Possession of Firearm by Person Convicted of Felony, 18 U.S.C.A. 922, 196 A.L.R. Fed. 205 State pardon as affecting "convicted" status of one accused of violation of Gun Control Act of 1968 (18 U.S.C.A. 921 et seq.), 44 A.L.R. Fed. 692 Legal Encyclopedias Am. Jur. 2d, Pardon and Parole 59, 60, 62 Forms 2 Am. Jur. Pleading and Practice Forms, Attorneys at Law, Forms 317, 344 5 Am. Jur. Pleading and Practice Forms, Brokers, Form 3, Form 3 16 Am. Jur. Pleading and Practice Forms, Licenses and Permits, Forms 25, 29, 31-33, 61 18 Am. Jur. Pleading and Practice Forms, Pardon and Parole, Form 8, Form 8 Model Codes and Restatements Restatement (Third) of the Law Governing Lawyers 5 (2000), Professional Discipline
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Law Reviews and Other Periodicals Does a pardon blot out guilt? 28 Harvard L Rev 647
Section 1[a] Footnotes: [FN1] The annotations at 47 ALR 542 and 94 ALR 1011 are superseded. The present annotation also supersedes 43-45 of the annotation at 70 A.L.R.2d 268. [FN2] For coverage of this point, see the cases in the annotation at 135 ALR 1493. Section 2[a] Footnotes: [FN3] A general discussion of the effect of a criminal conviction on the right to hold public office is contained in Am. Jur. 2d, Public Officers and Employees 58. [FN4] 3, infra. [FN5] See the cases in 4- 6, infra. [FN6] 4, infra. [FN7] 5, infra. [FN8] 6, infra. [FN9] 7, infra. [FN10] 8, infra. [FN11] 9, infra. [FN12] 10, infra. [FN13] 11, infra. [FN14] 12, infra. [FN15] 13, infra. [FN16] 14, infra. [FN17] 15, infra. [FN18] 16, infra. Section 2[b] Footnotes: [FN19] The general nature and extent of the pardoning power is discussed in Am. Jur. 2d, Pardon and Parole 11 et seq. The reader's attention is called to Ferguson v Wilcox (1930) 119 Tex 280, 28 SW2d 526, in which an amnesty bill which purported to grant a full and unconditional release to every person convicted
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in an impeachment case, and which purported to cancel any disqualification to hold office that had been thereby inflicted was held unconstitutional on the ground that the state constitution did not provide for pardoning power in cases of impeachment, but expressly excepted such cases from the explicit and exclusive pardoning power granted to the governor by the constitution. The court asserted that to hold valid such an amnesty bill passed by the legislature would be a violation of the constitutional separation of the powers of the three distinct departments of government, namely, the legislative, executive, and judicial departments. Turning to the facts of the case, the court said that inasmuch as the senate had acted as a court and not as a part of the legislature in the impeachment of the former governor, who had subsequently filed a petition for mandamus to compel party officials to certify his name as a candidate on the party ticket for governor at a primary election, the senate's judgment of removal and disqualification was the judgment of a court, and therefore no other department of government could exercise any power properly attached to it, and no other power, without an express provision of the constitution authorizing it, could render its judgment of disqualification nugatory. Denying the tentative candidate's petition for mandamus, the court pointed out that the purpose of impeachment is not to punish an offender, but primarily to protect the public. [FN20] A sample petition or application to a licensing board for restoration of a professional license following a pardon is contained in 18 Am Jur Pl & Pr Forms (Rev ed), Pardon and Parole, Form 8. In this regard, counsel may also find helpful the sample forms in 16 Am Jur Pl & Pr Forms (Rev ed), Licenses and Permits, Forms 61, 62, dealing with applications to licensing authorities for reinstatement of a license, and with petitions for a writ of mandamus to compel issuance of a license. [FN21] 7, infra. [FN22] In this regard, the annotation at 64 A.L.R.2d 301 entitled "Good moral character as requisite for admission to bar" will be of interest, as will be the annotation at 70 A.L.R.2d 268, entitled "Reinstatement of attorney after disbarment, suspension or resignation." Counsel will also be interested in the procedural due process requirements applicable in proceedings involving applications for admission to the bar, which is the subject of the annotation at 2 A.L.R.3d 1266. Section 14[b] Footnotes: [FN23] The reader will note, however, that in a number of the following cases the courts indicated that the attorney was entitled to have his application for admission considered by the appropriate examining authorities. [FN24] In the later case of State v Gowland (1938) 189 La 80, 179 So 41, which was decided primarily upon other grounds, the court reaffirmed its previous position that even though the pardon of the disbarred attorney re-established his eligibility for admission to the bar, it did not reinstate him as a member, and it did not annul or affect the judgment of disbarment. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. 58 A.L.R.3d 1191 END OF DOCUMENT

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58 A.L.R.3d 1191 58 A.L.R.

3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

58 A.L.R.3d 1191 58 A.L.R.3d 1191 (Originally published in 1974)

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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