State, Ex Rel. Corrigan v. Barnes

In my view, the key questions presented here are: (a) whether R.C. 2961.01 imposes punishment for criminal conduct rather than establishing qualifications for public office, and (b) whether the version of R.C. 2961.01 in effect in 1954 applied to Ohio federal court convictions. If R.C. 2961.01 is penal in nature, its terms cannot be applied retroactively to impose punishment for conduct preceding its effective date of January 1, 1974, for the reasons stated by the majority opinion. Further, if R.C.2961.01 is penal and the version in effect in 1954 did not impose disqualification from public office as punishment for an Ohio federal court conviction, then this action must be dismissed.

An examination of the history of R.C. 2961.01 may be helpful in determining whether it was intended by the legislature as a punishment for criminal conduct or a standard for selecting public officials. The first statutory reference to this subject can be found in "AN ACT for the punishment of crimes," 22 Ohio Laws 158 (February 26, 1824). Section 37 of that early statute provided (22 Ohio Laws 158, at 166):

"That any person who shall be convicted of any offence by this act made criminal, shall be forever thereafter incapable of giving testimony, being a juror or holding any office of honor, profit or trust within this state."

In its full compass, that 1824 statute defined criminal offenses and established applicable punishments. Except for the above-quoted language, this statute made no reference whatever to qualifications of an elector or officeholder.

The same pattern applied in subsequent disfranchisement or disqualification legislation. From 1824 to the present, these statutes have consistently included the disfranchisement of electors and the disqualification of officeholders as specific sanctions for criminal conduct, as part of the applicable criminal laws. After the 1824 statute, quoted earlier, changes were made in 1831 to remove from the disfranchisement and disqualification provision convictions which are reversed, annulled, or pardoned, and convictions for manslaughter or dueling. "AN ACT for the punishment of crimes," Section 39, 29 Ohio Laws 136, at 143 (March 3, 1831).

In 1835, no change was made in the disfranchisement and disqualification provisions. An Act "Providing for the Punishment of Crimes," Section 41, 33 Ohio Laws 33, at 41 (March 7, 1835). In 1842, the 1835 Act was amended to add disfranchisement and disqualification for persons who were convicted and "* * * actually imprisoned in the penitentiary of any other state or territory," if the offense was punishable in Ohio by penitentiary imprisonment. An Act "To amend the act entitled `An act for the punishment of crimes,' passed March 7, 1835," Section 1, 40 Ohio Laws 30 (March 2, 1842).

Although earlier criminal statutes described offenses subject to extended penitentiary punishment as "misdemeanors," the 1877 law defined felonies as "[o]ffenses which may be punished by death, or by imprisonment in the penitentiary * * *" (Section 2,infra) and modified the disqualification and disfranchisement provisions to relate solely to felony conduct. An Act "To amend, revise and consolidate the statutes relating to crimes and offenses * * * [and] to be known as title one, crimes and offenses, * * *" Sections 2, 4, and 5, 74 Ohio Laws 240, at 241-42 (May 5, 1877). Further, the 1877 statute eliminated the exceptions from disqualification and disfranchisement for manslaughter and dueling. Section 4, 74 Ohio Laws 240, at 241-42.

In 1881, that statutory provision for disqualification and disfranchisement was modified to allow restoration of a convict's forfeited rights and privileges under certain circumstances. An Act "To amend section[s] * * * of the revised statutes of Ohio," Section 6797, 78 Ohio Laws 89, at 90. When the entire Ohio code was restructured as the 1929 General Code, that statute carried the same provisions for disqualification and disfranchisement as the 1877 law with the 1881 supplementation. "AN ACT To revise and codify the Code of Criminal Procedure of Ohio * * *," G.C. 13458-1 and 13458-2, 113 Ohio Laws 123, at 211. The 1929 statute identified these provisions as General Code Sections.

In 1953, the Ohio legislature created the Revised Code, which made only minor language changes in the preceding criminal code provisions for disqualification and disfranchisement of convicts. "Am. House Bill 1," R.C. 2961.01 and 2961.02 (February 12, 1953). Those 1953 provisions contained the applicable statutory language in 1954, when respondent was convicted by a federal court in Ohio:

"2961.01 [13458-1]. Disfranchisement of convict.

"A person convicted of a felony in this state, unless his conviction is reversed or annulled, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit. The pardon of a convict restores the rights and privileges so forfeited, but a pardon shall not release a convict from the costs of his conviction, unless so specified."

"2961.02 [13458-2]. Convict of another state.

"A person who has been imprisoned in the penitentiary of any other state of the United States, under sentence for the commission of a crime punishable under the laws of this state by imprisonment in the penitentiary, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit within this state unless he has received a pardon from the governor of the state in which he was imprisoned."

Effective January 1, 1974, the criminal code was again amended. R.C. 2961.01 was redrafted to incorporate the two previous provisions, and R.C. 2961.02 was repealed. An Act "To amend sections * * * of the Revised Code to revise the criminal law of Ohio," R.C. 2961.01, 134 Ohio Laws, Part II, 1866, at 2004 (Am. Sub. H.B. No. 511, passed December 14, 1972). The resulting statutory language, which remains in effect today, is relied upon by relator as the basis for disqualifying respondent from holding public office:

"2961.01. Civil rights of convicted felons.

"A person convicted of a felony under the laws of this or any other state or the United States, unless his conviction is reversed or annulled, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit. When any such person is granted probation, parole, or a conditional pardon, he is competent to be an elector during the period of probation or parole or until the conditions of his pardon have been performed or have transpired, and thereafter following his final discharge. The full pardon of a convict restores the rights and privileges so forfeited under this section, but a pardon shall not release a convict from the costs of his conviction in this state, unless so specified."

This review of legislative history for the enactments involved here unequivocally demonstrates that they continuously and consistently have been part of the criminal laws of Ohio. When these statutes have been codified officially or unofficially, they have always been part of the criminal code. See, e.g., 1 Swan Critchfield, Revised Statutes of Ohio (1860), "Crimes and Misdemeanors," pages 417 and 418 (Sections 41 45); G.C. 13458-1 and 13458-2; R.C. 2961.01 and 2961.02 (1953); and R.C. 2961.01 (1974). They have never been adopted or referred to in the election laws or any other statute controlling the qualifications of electors or officeholders.

Indeed, there have been some other statutory provisions for disqualification from public office for persons convicted of specific offenses. See, e.g., An Act "To preserve the purity of elections," Section 25, 39 Ohio Laws 13, at 19 (March 20, 1841) (disfranchisement and disqualification for persons convicted of election fraud or election bribery). We still have statutory disqualification from public office for candidates convicted of election bribery (R.C. 3599.01), for public officials convicted of bribery (R.C. 2921.02[F]), and for public officials convicted of theft in office (R.C. 2921.41[C]). Although these additional disqualification statutes also serve as sanctions for criminal conduct, rather than qualifications for election to office, they have no direct application here. Ohio has never had a specific statutory disqualification from public office for the offense for which respondent was convicted in federal court. Therefore, the only possible basis for disqualification is the general statutory disqualification whose history has already been reviewed.

Since R.C. 2961.01 and its historical antecedents have all been intended as punishments for criminal conduct, Ohio and federal constitutional provisions prohibit their application to conduct prior to their enactment. That subject has been adequately discussed in the majority opinion, so no further comment is needed here.

However, it may be purposeful to add that required rules of statutory construction prevent a retroactive application of the 1974 version of R.C. 2961.01, even if there were no state or federal constitutional limitation. The primary rules for statutory interpretation are dictated by the legislature. R.C.1.48 directs: "A statute is presumed to be prospective in its operation unless expressly made retrospective." Further, R.C.1.58 provides in part:

"(A) The reenactment, amendment, or repeal of a statute does not * * *:

"(1) Affect the prior operation of the statute or any prior action taken thereunder;

"(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder;

"(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal."

Nothing in the 1974 amendment of R.C. 2961.01 suggests that the legislature intended it to have retroactive effect on prior convictions, and no legislative history has been found to support such a conclusion. Therefore, as a matter of statutory construction, the 1974 amendment is not intended to apply to prior events. Cf. State, ex rel. Sweeney, v. Donahue (1967),12 Ohio St.2d 84 [41 O.O.2d 367]; Batchelor v. Newness (1945),145 Ohio St. 115 [30 O.O. 314]; Wells v. Sacks (1962), 115 Ohio App. 219 [20 O.O.2d 304]. A different rule might apply to statutes affecting only remedial or procedural matters, but R.C. 2961.01 clearly imposes a substantively penalty.

Consequently, we must determine whether the 1953 formulation of R.C. 2961.01 and 2961.02 disqualify respondent from holding public office. Those were the statutory sections in effect at the time of respondent's conduct and his conviction. An examination of those 1953 provisions establishes clear disqualification from public office for "[a] person convicted of a felony in this state" (R.C. 2961.01) or "[a] person who has been imprisoned in the penitentiary of any other state of the United States, under sentence for the commission of a crime punishable under the laws of this state by imprisonment in the penitentiary" (R.C.2961.02). Certainly, the offense for which respondent was convicted is not "a crime punishable under the laws of this state by imprisonment in the penitentiary." Refusal to submit to induction in the federal armed services is a federal offense, but it has never been an offense cognizable under Ohio criminal laws. Therefore, any disqualification must derive from the former provisions of R.C. 2961.01 for "[a] person convicted of a felony in this state."

It may be argued that conviction by a federal court which is geographically located within Ohio constitutes a conviction "in this state," even though it was not a conviction under Ohio laws. On the other hand, conviction "of a felony in this state" may well be limited to a conviction in an Ohio state court for a crime defined by the Ohio legislature. Previous executive and judicial opinions have consistently construed the disqualification resulting from conviction "in this state" under former R.C. 2961.01 and its similar antecedents as applying solely to convictions by an Ohio state court for offenses defined by the Ohio legislature, 1927 Ohio Atty. Gen. Opinions, Vol. 1, No. 242; 1932 Ohio Atty. Gen. Opinions, Vol. 2, No. 4650; 1950 Ohio Atty. Gen. Opinions, No. 1499; In re Sugar Creek LocalSchool District (1962), 90 Ohio Law Abs. 257.

Apparently, the Ohio General Assembly also construed former R.C. 2961.01 as describing convictions in Ohio state courts for offenses defined by the Ohio legislature, since the most recent amendment added disqualification from office for conviction of a felony "under the laws of * * * the United States" (134 Ohio Laws, Part II, 1866, 2004). If the former law already so provided, there would have been no reason for that amendment.

Further, that statutory interpretation is mandated by the rules of construction adopted by the legislature itself. R.C.2901.04(A) directs:

"Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."

Judicial authority has consistently been to the same effect. See, e.g., State v. Wilson (1978), 57 Ohio App.2d 11 [11 O.O.3d 8]; State v. Baker (1976), 50 Ohio App.2d 68 [4 O.O.3d 46]. InWashington Court House v. McStowe (1976), 45 Ohio St.2d 228, at page 229 [74 O.O.2d 333], the Supreme Court said:

"* * * A penal statute or ordinance, pursuant to which one is charged, must be interpreted and applied strictly against the accuser, and liberally in favor of the accused. * * *" See, also,Mentor v. Giordano (1967), 9 Ohio St.2d 140 [38 O.O.2d 366];State v. Conley (1947), 147 Ohio St. 351 [34 O.O. 279]; State v.Meyers (1897), 56 Ohio St. 340. Cf. Clymer v. Zane (1934),128 Ohio St. 359; State, ex rel. Moore Oil Co., v. Dauben (1919),99 Ohio St. 406.

Since any ambiguity in this statute must be resolved in favor of the offender, the sanction of disqualification from public office in former R.C. 2961.01 must be limited to persons convicted of a felony by an Ohio state court for an offense defined by the Ohio legislature. Respondent was not convicted of such an offense by such a court. Therefore, there is no basis for disqualification from office, and the motion to dismiss this action must be granted.