Should you be prohibited from participating in a democratic government simply because you smoked pot? What about if you accessed someone else’s WiFi without permission? What if, as a teenager, you hit a few mailboxes with a baseball bat?
In Missouri, criminals guilty of these, or any other felony crime, could become permanently unable to hold an elective office.
This year, in the town of Rolla, Missouri, a man named Daniel Jones was ousted from his city council seat after charges were brought alleging that he was statutorily ineligible to hold office. Jones, who was elected to his seat in 2018, was arrested six years earlier for possessing marijuana, a crime to which he pled guilty. He did not make any effort to keep this a secret during his campaign.
Jones tried to fight to keep his seat, but unfortunately for him and other criminals, the law was not on their side. Missouri statute 115.306.1 clearly states: “No person shall qualify as a candidate for elective public office in the state of Missouri who has been found guilty or pled guilty to a felony under the federal laws of the United States of America or to a felony under the laws of this state or an offense committed in another state that would be considered a felony in this state.”
Reformed Criminals Out of Office
Jones was one of two Missourian criminals to be prohibited from holding elective office as a result of the 2016 law. As reported by the Phelps County Focus, there was a similar case in eastern Missouri just last year:
“Joshua P. Fay, a Brookfield-based attorney, sought to file as a candidate for associate circuit judge in April, during the 2018 primary election. However, when he was 17 years old in 1995, Fay pled guilty to felony offenses of two counts of first-degree tampering and one count of property damage. Like Jones, Fay subsequently completed a suspended imposition of sentence term of probation and was not formally convicted of the felonies. He later graduated from law school and in 2003 was admitted to practice law in Missouri. In 2016, Fay received a pardon from Gov. Jay Nixon for his three felony offenses.”
But when he decided to run for associate court judge in 2018, Fay found that his youthful mistake would forever bar him from not only the judgeship but from every elective office. Asked to rule on his case, the circuit court declared that Governor Nixon’s pardon only applied to Fay’s conviction, but could not change the fact that Fay pled guilty.
The Power to Pardon
The ill-fated tales of Jones and Fay bring up three important Constitutional issues. (1) Does the statute unconstitutionally prevent the Governor from fully exercising his power to pardon? (2) Is the Missouri statute unconstitutionally retrospective (a law that imposes penalties on individuals for violating the statute before it was enacted)?
The first critique was presented by Fay’s attorney, Anthony Bonuchi, who argued that the Missouri statute, as reaffirmed by the Western Court of Appeals, “gives the legislature power to dictate the effect of gubernatorial pardons despite the fact that the Constitution gives the pardon power to the executive rather than the legislative branch.”
The court declined to rule as to whether the statute unconstitutionally limited the governor’s power to pardon, but merely pointed out that “while the Governor’s pardon of Fay ‘obliterated’ the fact of his criminal conviction, it did not extinguish the fact that he pled guilty in 1995 to three felonies.” According to the court, then, the legislature may circumvent a gubernatorial pardon simply by prescribing all kinds of punishments for not only breaking the law but also pleading guilty to breaking the law.
If a governor’s pardon cannot remove the legal penalties imposed upon a citizen, then the power to pardon has been rendered toothless.
Unconstitutionally Retrospective Against Criminals?
The issue of retrospection is more complicated. Can the government pass a law inflicting legal penalties on those who were tried for committing crimes before the new penalties existed? According to the Missouri Constitution, it cannot. Article 1, section 13 states that the government cannot make any law that is “retrospective in its operation.” A 1911 ruling clarified that a law is considered unconstitutionally retrospective if it “attaches a new disability with respect to transactions or considerations already past.”
In Jones’ and Fay’s cases, the government appears to have done exactly that. At the time they committed their respective crimes, the penalty of perpetual exclusion from elected officials had not yet been in place.
In 2012, the Missouri Supreme Court heard an appeal from Herschel Young, a man who was removed from his position as Cass County commissioner allegedly because he was ineligible to hold elective office due to a 1995 felony conviction. The Court ruled that the law preventing Young from holding office was not retrospective because it did not “change the legal effect of his conviction.”
This is an unusual interpretation of the law. It was only Young’s criminal conviction that rendered him ineligible to run for public office. The legal effect of his conviction, therefore, is his statutory disqualification to serve as a county commissioner, one that was not in force when he was convicted.
Missouri courts have declined to see it that way, however. By the time Jones and Fay decided to fight their legal battles, neither invoked the issue of retrospection. It was a losing cause.
Will Missouri Overturn the Measure?
Ultimately, only legislative action can revoke this law. For that to happen, there needs to be popular support for it.
Why should the voters care to allow convicted felons to run for public office? The most obvious reason is that they’ve already proven they’re willing to support reformed criminals. Jones and Young, for example, were both elected to their positions before being forced out, and Fay at least believed he had a good chance of electoral success.
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