AGO 1966 No. 66 - Jan 10 1966
OFFICES AND OFFICERS ‑- STATE ‑- COUNTY ‑- ELIGIBILITY OF CANDIDATE ‑- CONVICTION OF FELONY OR GROSS MISDEMEANOR ‑- DISMISSAL OF PROCEEDINGS UNDER RCW 9.95.240.
Assuming a person is otherwise qualified for a particular public office, he may file for and hold, if elected, a state or county office even though he had previously entered a plea or was found guilty of a felony (an infamous crime in this state resulting in a loss of the elective franchise) where his sentence was deferred; he was placed on probation and at the expiration thereof the superior court dismissed the proceedings under RCW 9.95.240, releasing him "from all penalties and disabilities resulting from the offense or crime of which he was convicted."
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January 10, 1966
Honorable Alfred E. Leland
State Representative, 48th District
P.O. Box 175
Cite as: AGO 65-66 No. 66
By letter previously acknowledged you have asked this office for an opinion on the following question:
Is a person eligible to file for and hold, if elected, a county or state office who has entered a plea of guilty or was convicted of a felony; was placed on probation and at the expiration of such probationary period, had such proceedings dismissed pursuant to RCW 9.95.240?
We answer your question in the affirmative.
In general no person may qualify for or hold any elective public office in this state unless he be ". . . a citizen of the United States and the state of Washington, and an elector of such county, district, precinct, school district, municipality or other district or political subdivision." (Emphasis supplied) RCW 42.04.020.1/ See, also, Article III, [[Orig. Op. Page 2]] § 25 of the state constitution governing elective executive offices of the state government.
The qualifications ofelectors are set forth in Article VI, § 1, Amendment 5 of the state constitution which reads as follows:
"All persons of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all elections: They shall be citizens of the United States; they shall have lived in the state one year, and in the county ninety days, and in the city, town, ward or precinct thirty days immediately preceding the election at which they offer to vote; they shall be able to read and speak the English language: Provided, That Indians not taxed shall never be allowed the elective franchise: And further provided, That this amendment shall not affect the rights of franchise of any person who is now a qualified elector of this state. The legislative authority shall enact laws defining the manner of ascertaining the qualifications of voters as to their ability to read and speak the English language, and providing for punishment of persons voting or registering in violation of the provision of this section. There shall be no denial of the elective franchise at any election on account of sex."
By Article VI, § 3, of our constitution, certain persons are excluded from exercising their elective franchise. The section reads as follows:
"All idiots, insane persons, and persons convicted of infamous crime unless restored to their civil rights are excluded from the elective franchise."
An "infamous crime" is one "punishable by death or imprisonment in the penitentiary." Section 3057, Code of 1881, cf. RCW 29.01.080. Therefore, only a "felony" which provides such punishment (RCW 9.01.020) is an infamous crime in this state.2/ See our informal opinion to the Secretary of State dated November 8, 1962, and cases cited therein.
[[Orig. Op. Page 3]]
It follows that the crucial question to be determined in regard to a person such as you have described is whether he stands convicted of a felony (within the meaning of Article VI, § 3, supra) where his sentence was deferred and after successful completion of probation the court has dismissed the information or indictment pursuant to RCW 9.95.240.
RCW 9.95.240,supra, reads as follows:
"Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time prior to the expiration of the maximum period of punishment for the offense for which he has been convicted be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty,the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer shall be informed of this right in his probation papers: Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed." (Emphasis supplied)
The language of this statute is quite clear. Once the criminal proceedings have been dismissed pursuant thereto, the defendant is thereafter "released from all penalties and disabilities resulting from the offense or crime of which he has been convicted." This, in our judgment, includes the constitutional exclusion from the elective franchise. Accord,Truchon v. Toomey, 116 Cal.App. 2d 736, 254 P.2d 638, 36 A.L.R. 2d 1230 (1953); cf., Tembruell v. Seattle, 64 Wn.2d 503, 392 P.2d 453 (1964).
We therefore conclude that a person whose felony information or indictment is dismissed pursuant to RCW 9.95.240, supra, is "released from all penalties and disabilities resulting from the offense or crime of which he has been convicted" and may qualify for or hold any elective state or county office for which he is otherwise qualified as an elector.
[[Orig. Op. Page 4]]
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
BURTON R. JOHNSON
Assistant Attorney General
*** FOOTNOTES ***
1/Reference of course would have to be had to the specific office in question to determine if there are any additional qualifications. For example, legislators must be qualified "voters." Article II, §7, Washington state constitution. Defilipis v. Russell, 52 Wn.2d 745, 328 P.2d 904 (1958); judges and the attorney general must be licensed to practice law in this state; see, In re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955); and RCW 43.10.010.
2/Accordingly, taking note that your letter of inquiry also made reference to the significance of conviction of a gross misdemeanor, it is clear that such a conviction would in no event disqualify a person from exercising his elective franchise.