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CAMPBELL v. STATE

December 11, 1989

ALTON CAMPBELL
V.
STATE OF ARKANSAS



Appeal from Newton Circuit Court; John Lineberger, Circuit Judge on Exchange; affirmed.

SYLLABUS BY THE COURT

1. APPEAL & ERROR - WHEN MOOT ISSUE WILL BE DECIDED. - When the case involves the public interest, or tends to become moot before litigation can run its course, or a decision might avert future litigation, the appellate court has, with some regularity, refused to permit mootness to become the determinant.

2. CONSTITUTIONAL LAW - OBJECTION TO ADEQUACY OF NOTICE - NO DENIAL OF DUE PROCESS. - Although there was objection to the adequacy of the notice of the hearing to remove appellant from public office, when the trial court made direct inquiry as to whether the defense was prepared to proceed, counsel spurned any claim of inadequate preparation, and the appellate court was therefore not persuaded that the timing resulted in a denial of due process.

3. PHYSICIANS & SURGEONS - CONVICTION OF CRIME - REVOCATION OF LICENSE - State Medical Board v. Rodgers OVERRULED. - State Medical Board v. Rodgers, The opinion of the court was delivered by: Steele Hays, Justice.

Alton Campbell appeals from an order of the circuit court removing him from the office of county Judge of Newton County. He contends the court erred by giving him insufficient notice of a final hearing and by ordering his removal on the basis of a federal court conviction before the decision became final. While this appeal was pending the issues have become moot.

Campbell was convicted in a United States district court on two counts of vote buying. He was sentenced to imprisonment for a term of three years and fined $5,000. The United States Court of Appeals for the Eighth Circuit stayed execution of Campbell's sentence pending appeal. During the course of the appeal the prosecutor for Newton County filed a petition to remove Campbell from the office of county judge, citing as authority, Ark. Const. art. 3, 6, and art. 5, 9, as well as Ark. Stat. Ann. 12-2102, 43-2318, and 34-2201 through 2209. The cited statutes are now codified as Ark. Code Ann. 21-12-302, 16-90-112(b), and 16-118-105 (1987).

The circuit court held a hearing and entered an order on August 5, 1987, finding the action was premature and that it would be held in abeyance "until rendering of a final judgment by the Eighth Circuit Court of Appeals or other courts of proper jurisdiction." Thereafter, the United States Court of Appeals affirmed the conviction, denied rehearing, and its mandate was received by the United States District Court on July 22, 1988.

On July 27, 1988, Campbell was notified to attend a hearing in the Newton County Circuit Court the following day. *fn1 On October 5, 1988, that court entered its order declaring Campbell ineligible to hold public office.

On November 28, 1988, the United States Supreme Court denied Campbell's petition for certiorari. United States v. Campbell, 488 U.S. 965, 109 S.Ct. 490, 102 L.Ed.2d 527 (1988). Moreover, the records of the Arkansas Secretary of State, of which we take judicial notice, Norris v. State, 262 Ark. 188, [300 Ark Page 572]

555 S.W.2d 560 (1977), show that Clinton Daniels was commissioned to serve as County Judge of Newton County, Arkansas, for the period, January 1, 1989, to December 31, 1990. The state's brief notes that this commission was the result of an election is which Campbell ran for the office of county judge and was defeated. That statement is not contested in Campbell's reply brief.

[1] We have said we do not ordinarily decide issues which are moot. However, when the case involves the public interest, or tends to become moot before litigation can run its course, or a decision might avert future litigation, we have, with some regularity, refused to permit mootness to become the determinant. See Cummings v. Washington County Election Commission, 291 Ark. 354, 724 S.W.2d 489 (1987); Robinson v. Shock, 282 Ark. 262, 667 S.W.2d 956 (1984); Arkansas Television Co. v. Tedder, 281 Ark. 152 669 S.W.2d 174 (1983); Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979); Anderson v. State, 266 Ark. 192, 583 S.W.2d 14 (1979); Robinson v. Arkansas Game & Fish Commission, 263 Ark. 462, 565 S.W.2d 433 (1978); Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977); Dotson v. Ritchie, 211 Ark. 789, 202 S.W.2d 603 (1947). In Dotson, Justice Frank G. Smith wrote on behalf of the majority.

This case is somewhat similar to the recent case of Carroll v. Schneider, ante, p. 538, 201 S.W.2d 221, in that we are deciding a question which has become moot. In that case it was said: `It is urged, however, that the case is now moot, and should be dismissed for that reason. It is moot in the sense that we cannot now afford appellant petitioner any decide a practical question of great public interest, which may arise in any future election.' For the reason states we there decided the question presented, although the case was moot, and for the same reason we now decide the question here involved.

See also, Nebraska Press Association v. Stuart, Judge, 427 U.S. 539 (1976); Roe v. Wade, 410 U.S. 113 (1972).

Here the trial court determined that appellant had been convicted of a felony and was disqualified from holding public office in Arkansas. That ruling has not been shown to be [300 Ark Page 573]

erroneous. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981); Poindexter v. Cole, 239 Ark. 471, 389 S.W.2d 839 (1965).

[2] We find no merit in Campbell's argument that he was denied due process in that he had less than twenty-four hours notice to appear before the Newton County Circuit Court prior to the order of removal. Although there was objection to the adequacy of the notice, when the trial court made direct inquiry as to whether the defense was prepared to proceed, counsel spurned any claim of inadequate preparation. We are not persuaded that the timing resulted in a denial of due process.

Article 5, 9 provides that no person "hereafter convicted" of an infamous crime shall be capable of holding "any office of trust or profit in this state." Since our precedents constrain us to interpret language of the constitution according to its plain and common meaning, Gipson v. Manor, 225 Ark. 976, 287 S.W.2d 467 (1956); Morley v. Remmel, 215 Ark. 434, 221 S.W.2d 51 (1949), we deem it necessary to determine in what sense the framers of the Arkansas Constitution used the word "convicted" in this article.

Appellant relies on May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975), for the premise that a judgment of conviction must not be subject to reversal. But a number of factors distinguish this case from May. For one thing, May was challenging his removal from office, not by a court of law, but by the North Little Rock City Council, and this court noted that art. 5, 9 was not self-executing and no enabling legislation existed. Too, in May the trial court had sustained a demurrer by summarily dismissing May's complaint against Edwards for usurpation of office. Since the complaint alleged that May's conviction had been reversed and the charges dismissed, this court was required to treat those allegations as true and, hence, a reversal was mandated.

Nor do we think the cases cited in May bind us to the position that one is "convicted" only when all avenues of recourse to the courts have been exhausted. The cited cases contain extenuating considerations. In Owens v. State, 86 Ark. 317, 111 S.W. 466 (1908), the trial court permitted a witness to testify over the appellant's objection that the witness had been convicted of grand larceny some years previously. This court rejected the argument, [300 Ark Page 574]

noting that the judgment itself, entered on a plea of guilty, recited that the sentence "be withheld herein during good behavior of the defendant." In Huddleston v. Craighead County, 128 Ark. 287, 194 S.W. 17 (1917), the prosecuting attorney was suing to recover his statutory fee for obtaining a felony conviction. Under applicable statutes the fee was payable "upon conviction," but the same statutes twice made reference to "such convict." Laying particular emphasis on the word "convict," the court held that the language of the statutes raised a doubt that any fee was payable before a final judgment was entered. In Tucker v. State, 248 Ark. 979, 455 S.W.2d 888 (1970), the appellant appealed from the denial of a new trial on his conviction of four counts of grand larceny. His contentions were based in part on the allegation that one of the jurors which found him guilty had been convicted of burglary and grand larceny some fourteen years earlier. Noting that the juror was not a "convicted felon" because the circuit court had suspended the sentence, we rejected the contention. In Southerland v. Arkansas Department of Insurance, 250 Ark. 903, 467 S.W.2d 724 (1971), this court interpreted the wording of an Arkansas statute providing that the license of an insurance agent was subject to revocation upon "conviction by final judgment of a felony involving moral turpitude." This court sustained Southerland's argument that although he had been convicted of embezzlement in California, because he had appealed, the judgment was not "final."

[3] This court in May also relied on State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W.2d 83 (1935), which we consider an aberration. The appellee, a practicing physician, was convicted in federal court of possession of counterfeit money and sentenced to three years imprisonment. The judgment on the sentence gave Dr. Rodgers two weeks in which to close his practice and prepare for imprisonment. That two weeks was then extended by four months and on the final day of the extension an order was entered placing the defendant on probation for a term of five years. The State Medical Board revoked Dr. Rodgers' license to practice medicine in Arkansas based upon his conviction of a crime involving moral turpitude as provided by its regulation. Rodgers appealed to the Pulaski County Circuit Court and the order of revocation was vacated. On appeal, this court affirmed. Justice Frank G. Smith dissenting. We think the [300 Ark Page 575]

holding of this court in Rodgers cannot be reconciled with the law or with reason. Dr. Rodgers was undeniably guilty of a crime involving moral turpitude and was convicted and sentenced. On that basis his license to practice medicine was subject to forfeiture and the fact that the sentencing court, for reasons that are not apparent, recoiled from ordering execution of the sentence originally imposed, lessens neither the crime nor the conviction. We overrule the decision without hesitation.

We do not regard the foregoing cases as governing the outcome of the case now before us. If our constitution, for example, used the language "convicted by a final judgment," as in the Southerland case, or contained the word "convict" so as to suggest that actual incarceration was contemplated, as in Huddleston, or if the judgment failed to actually impose a sentence, as occurred in the Owens case, a different situation would be presented and a different result might be required. But those factors are not present, and there is no hint the framers meant conviction by a judgment which was in no sense subject to review.

Turning to other cases which interpret the use of the words "convicted" or "conviction," it is apparent that the more nearly the dates of the decisions coincide with the date of the constitution, the stronger the inference that by contemporary usage one was "convicted" of a crime when the trial was concluded and the judgment entered. "Conviction is the finding of a person guilty of an offense." Hempstead County v. McCollum, 58 Ark. 149, 24 S.W. 9 (1893). "Conviction is defined as that legal proceeding of record which ascertains the guilt of the party, and upon which the judgment or sentence is founded." Fanning v. State, 47 Ark. 442, 2 S.W. 70 (1886). "Conviction means after the verdict of the jury." United States v. Hudson, 65 F. 68 (W.D. of Ark. 1894). More recently, in Barnes v. Cooper, 204 Ark. 118, 161 S.W.2d 8 (1942), a unanimous court interpreted the word "convicted" (as used in Pope's Digest 4397, disqualifying one who has been convicted of ...


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