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Thursday, May 23, 2013

Supreme Court says 1979 Cornish hen theft makes sheriff ineligible to serve

Posted By on Thu, May 23, 2013 at 12:53 PM

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The Arkansas Supreme Court today reversed a lower court and said Searcy County Sheriff and Collector Kenny Cassell's 1979 conviction on a federal misdemeanor theft charge for stealing Cornish hens from a Tyson's interstate shipment made him ineligible to hold office.

The state's petition to remove Cassell will go back to the lower court for granting of the order, if he doesn't resign before then. So far, he hasn't commented.

The Supreme Court has now made it clear several times that a misdemeanor CAN meet the 1874 Constitution's definition of an infamous crime that makes someone ineligible for Arkansas office.

Circuit Judge David Clinger had decided that the state had to show not only that there was a crime of dishonesty but that the conviction "impugned the integrity of the office or directly impacted Cassell’s ability to serve" to justify removal.

Justice Cliff Hoofman, writing for a unanimous court (with Justices Hart and Baker not participating, but replaced by special justices), said there was no two-part test. Past cases hold, he said, that "...a crime that involves dishonesty or deceit constitutes an “infamous crime” under the Arkansas Constitution, which bars the offender from holding public office. ... An “infamous crime” by its nature impugns the integrity of the office and directly impacts the person’s ability to serve as an elected official."

You can chalk this up as, effectively, a putdown of 2013 legislation by the Arkansas General Assembly. In Act 724, the legislature endeavored to interpret what the Constitution meant by infamous crimes in the law on qualifications to run for office. It retained misdemeanor theft as an enumerated infamous crime, among others. But an uncodified portion of the measure said a court should also "measure certain variables, such as the attendant mental state of the offense, the particular circumstances surrounding the charged offense, the age and education of the person committing the offense, and, if the offense occurred before the person has assumed public office, the age of the person at the time of the conviction itself."

Hoofman rejected such thinking. “Under the plain language of the Constitution it is the fact of conviction that disqualifies a person from holding public office.”

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