Petition of Hughes ( 1987 )

PAPADAKOS, Justice, concurring.

While I agree with the proposed disposition of this case, I write separately to express my concern over the lack of the majority to define easily and with specificity the term “infamous crimes” as applied in Article II, Section 7 of the Pennsylvania Constitution. There are other special considerations which I believe must be encompassed by our jurisprudence on this subject. With great regret I foresee a continuation of criminal conduct by public officials which implicates the public trust and public confidence. I believe it is essential that we state plainly and without equivocation the nature of “infamous crimes” whose commission by public officials will permanently deprive them of public office.

I would hold that a conviction rendered anywhere in the United States based upon any criminal conduct which involves the violation of a public trust by a public officer constitutes an “infamous crime” for purposes of Article II, Section 7 of the Pennsylvania Constitution.

I reach this conclusion based on the Constitution, however, by analyzing the forms of infamy at common law and their relevance to today’s public conception of a public trust. The most recent form defines an infamous crime in terms of punishment. Under federal and certain state laws, the determinant factor is the punishment" which may be imposed. Federal cases, in fact, have held that an infamous crime is one in which the punishment is for hard labor, United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 L.Ed. 700 (1922), or imprisonment in a penitentiary as opposed to a county jail, Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909 (1886), or imprisonment for more than one year. See also, United States v. Shober, 489 F.Supp. 393, 400 (E.D.Pa.1979); and Drazen v. New Haven Taxicab, 95 Conn. 500, 111 A. 861 (1920). Generally speaking, this interpretation is the modern view.

A more ancient type of infamy, however, is defined by the nature of the crime. In this category are found the offenses of treason and dishonesty which traditionally have been included in the term “crimen falsi.” ¹ Re Application of Westenberg, 167 Cal. 309, 139 P. 674 (1914); Kurtz v. Farrington, 104 Conn. 257, 132 A. 540 (1926). Under this view, it is the nature of the offense rather than the severity of the punishment which determines whether the conviction results in a legal infamy. Our own explicit constitutional designation of “embezzlement of public monies, bribery, perjury or other infamous crimes” is intended to fit such a monistic scheme resting on the twin concepts of trust and decency. In Commonwealth v. Jones, 334 Pa. 321, 323, 5 A.2d 804, 805 (1939), we held that: “The term [crimen falsi] involves the element of falsehood, and includes everything which has a tendency to injuriously affect the administration of justice by the introduction of falsehood and fraud____ It has been held to include, also, forgery, perjury, subornation of perjury, suppression of testimony by bribery or conspiracy to procure the absence of a witness, barratry, the fraudulent making or alteration of a writing to the prejudice of another man’s right.” In Government of Virgin Islands v. Toto, 529 F.2d 278, 281 (3d Cir.1976), it was held similarly that: “The specific contours of crimen falsi describes crimes involving, or at least relating to, communicative, often verbal, dishonesty; we have said that they are ‘crimes which touch the question of the honesty of the witness.’ ”

There is a legal consensus that, as in the instant case, where disqualification for office arises from a conviction of an infamous crime, if the term “infamous” is not otherwise defined by statute, it has the same meaning as at common law. See for example, Smith v. State, 129 Ala. 89, 29 So. 699 (1900). For such specific purposes as imposing ineligibility for public office, finally, the common law also holds that any felony is an infamous crime if it involves mortal turpitude or commonly accepted principles of honesty and decency. People ex rel. Keenan v. McGuane, 13 Ill.2d 520, 150 N.E.2d 168, cert. den. 358 U.S. 828, 79 S.Ct. 46, 3 L.Ed.2d 67 (1958).

The power of a state to prescribe qualifications for office, moreover, is deeply entrenched in the statutes and the common law of this country, and there exists very little disagreement among the jurisdictions that a person convicted of an infamous crime is to be disqualified from holding public office.²

As indicated by the majority opinion, our legal sources on the subject, while somewhat sparse, have consistently maintained that an act involving a violation of a rule of public trust likewise is grounds for disqualification from holding public office. In Commonwealth v. Knox, 172 Pa.Superior Ct. 510, 94 A.2d 128 (1953), affd on op. below, 374 Pa. 343, 97 A.2d 782 (Justice Musmanno, dissenting), it was held that the Constitution of Pennsylvania authorized removal from office upon a conviction “of misbehavior in office or of any infamous crime.”³ It was decided further in Knox and supporting cases that unfaithful public servants are subject to the “self-executing mandate ... for removal” even in the absence of statutory authority. Also see, Commonwealth ex rel. v. Davis, 299 Pa. 276, 149 A. 176 (1930), where this Court ruled that where an incumbent is convicted of an infamous crime not connected with the office he holds, there is no need for special legislation to deprive him of his position because the power of removal is inherently vested in the courts as a constitutional duty.

Upon the point being examined here, I am clear, in short, that in addition to simple constitutional authority there are good and sound reasons within the analytical framework of the common law to hold that an infamous crime includes criminal acts which transgress the general duties owed to a public office in such a way as to manifest a baseness that fatally implicates the future credibility of the officer. In this context, it is equally apparent to me that our legal norms require courts to remove officeholders and disqualify seekers from future elections. I need not draw further attention to the obvious predicate for this conclusion: our entire constitutional framework of government surely would unravel in the face of crumbling trust and proven dishonesty in public administration.

My last major concern is to reemphasize the constitutional right of a sovereign state to exclude from its offices persons convicted of infamous crimes by a federal court or sister courts. On this issue, there is a dearth of case law which has held uniformly that, providing that the classification of the crime meets state requirements for civil disqualification, a state is free to act against those who have been convicted in either federal courts or the courts of sister states. Persons have been rendered ineligible to vote or hold state public office for federal convictions of federal tax evasion, embezzlement of federal funds, conspiracy, mail robbery, assault, violation of federal liquor laws, etc.⁴

Under this analysis, I see no need to indulge in a somewhat strained effort to establish a state crime equivalent of a federal conviction in order to provide a basis upon which we can exercise our own sovereign right to establish qualifications for holding office. If we choose to maintain the purity of our public life by giving full recognition to convictions in foreign jurisdictions, that is our affair as a simple exercise of our sovereignty. One’s fitness for public office is tainted equally by the crime of conspiracy, whether that conviction is rendered by a federal court or a sister jurisdiction. The state constitution has its own force as a breeder of values and a manifestation of sovereignty, and, as fundamental law it mandates that we judge for ourselves whether we want persons stigmatized by other courts to serve in Pennsylvania. I judge that we do not.

In this case, a public official of this state was convicted of a federal crime which involved criminal conduct violating his public trust. The nature of that violation constitutes an infamous crime by our definition. We need go no further in deciding that it is our sovereign constitutional right to recognize that conviction in a foreign jurisdiction is a malignant stain on the public honor and integrity of a Pennsylvania official and bars him from public office.

1 . Under Greco-Roman Law, the term “crimen falsi” embraces such crimes as perjury, subornation of perjury, barratry, conspiracy, swindling, cheating, and other similar acts. Roman law, defined infamy by the nature of the act. Definition by punishment entered Anglo-American jurisprudence at the time when the concept of felony was developed, and both Sir Matthew Hale, Chief Justice of the Court of King’s Bench and Sir William Blackstone of Common Pleas embodied this interpretation into seventeenth and eighteenth century English common law. After the adoption of the Federal Constitution, the two forms existed side-by-side, although the punishment thesis has been ascendant. Contempory American jurisprudence, nevertheless, has rediscovered the ancient Greco-Roman form of infamy which derived from acts of fraud and dishonesty affecting the public confidence. One of my intentions in this concurring opinion is to help recover that noble tradition which, I am convinced, is explicit in our own state constitutional values.

2 . See, for example, Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955); DeConcini v. Sullivan, 66 Ariz 348, 188 P.2d 592 (1948); Irby v. Day, 182 Ark. 595, 32 S.W.2d 157 (1930); Trent v. State, 195 Tenn. 350, 259 S.W.2d 657 (1953); Application of Marino, 23 N.J.Misc. 159, 42 A.2d 469 (1945); Rollins v. Gates, 196 Misc. 770, 93 N.Y.S.2d 147 (1949). Numerous other cases from sister jurisdictions hold that a person convicted of an infamous crime can be prevented from voting (Otsuka v. Hite, 64 Cal.2d 596, 51 Cal.Rptr. 284, 414 P.2d 412 [1966]). A quo warranto proceeding is the usual method of determining whether an office should be vacated. A number of states have statutes disqualifying persons from such political positions as voters and office holders. See, 3 Crim L. Bull, 404 (1967).

3 . Under then Art. VI, § 4, it was provided that "All officers shall hold their office on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime.” This language derived from the Pennsylvania Constitution of 1838, Art. VI, § 9. In Commonwealth v. Zavada, 26 Pa.D. & C. 551, 30 Luzerne Leg.Reg.R. 185 (1935) it was decided that persons found guilty of treason, common law felony, and all species of "crimen falsi” were ineligible to serve in any public office. Forgery is also an "infamous crime.” See, Wilner v. Lewis, 13 Pa.D. & C. 560, 33 Dauphin County 35 (1929).

4 . For example: State ex rel. Arpagaus v. Todd, 225 Minn. 91, 29 N.W.2d 810 (1947); State ex rel. Chavez v. Evans, 79 N.M. 578, 446 P.2d 445 (1968); State ex rel. Dean v. Haubrich, 248 Iowa 978, 83 N.W.2d 451 (1957); Hulgan v. Thornton, 205 Ga. 753, 55 S.E.2d 115 (1949); Marino, supra, n. 2; and Rollins v. Gates, supra, n. 2. Other states which have followed this rule are Florida, Illinois, Mississippi, California, Oklahoma, Missouri, Alabama, Louisiana, Arkansas, and Indiana. Marino, supra, n. 2, and Rollins v. Gates, supra, n. 2, disqualified state voters upon conviction of conspiracy by federal courts.