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Opinion No. 5295

April 11, 1978


Art 4, Sec. 7 (eligibility of members of the legislature)


Art 4, Sec. 16 (each house sole judge of qualifications of members)


Eligibility to serve in legislature if convicted of a felony


'public trust'

The members of the House of Representatives have plenary jurisdiction to determine that expulsion proceedings are in order where an attorney/member has been convicted of embezzling a client's funds.

An attorney who is convicted of embezzling funds of a client does not stand convicted of a felony involving breach of the public trust.

Where a member of the legislature has been convicted of a felony, the conviction may serve as the basis for expulsion regardless of any pending appeal.

Honorable Bobby D. Crim

Speaker of the House

House of Representatives

The Capitol

Lansing, Michigan 48909

By letter dated April 3, 1978 you have sought my opinion regarding 'a member of the House of Representatives, also an attorney . . . recently convicted . . . on a charge of embezzling the private funds of his client.'

Your specific questions concern two basic issues:

1. Can the legislative act to prevent the representative from completing the term he is now serving?

2. Can the representative again seek election and serve in the legislature?

Const 1963, art 4, Sec. 16 provides in relevant part:

'. . . Each house shall be the sole judge of the qualifications, elections and returns of its members, and may, with the concurrence of two-thirds of all the members elected thereto and serving therein, expel a member. The reasons for such expulsion shall be entered in the journal, with the votes and names of the members voting upon the question. No member shall be expelled a second time for the same cause.'

Thus, the members of the House of Representatives have plenary, or full and complete, jurisdiction to determine that expulsion proceedings are in order in this case, and can act to prevent the representative from completing the term he is now serving. Upon arriving at such a decision, the House, in conformity with the due process requirements of the Federal and State Constitutions must provide the member of the legislature being expelled with notice and an opportunity for hearing. See Bond v Floyd, 385 US 116; 17 L Ed 2d 235; 87 S Ct 339 (1966).

The legal effect of an appeal in a criminal case was addressed in my letter to Senator Robert Vander Laan on October 24, 1973. The statements made in that letter are applicable to this issue, and, accordingly, I quote from that letter:

'The predecessor to Const 1963, art 4, Sec. 7, is the last sentence of Const 1908, art 5, Sec. 5, which differs only to the extent that it does not contain a 20-year limitation. This sentence was added to Const 1908, art 5, Sec. 5, by amendment in 1956.

'Research of these constitutional provisions reveals no direct interpretations thereof by the Michigan Courts on this point. However, both the amendatory language to 1908 Const, art 5, Sec. 5, adopted in 1956, and the 1963 Constitution which included art 4, Sec. 7, were adopted at a time when the terms 'convicted' and 'conviction' had a well established meaning in Michigan jurisprudence.

'Relevant judicial authorities in Michigan indicate that conviction occurs on adjudication of guilt as evidenced by the jury's verdict, and remains unaffected by the pendency of an appeal, the granting of a new trial, or the failure to impose sentence.

'Attorney General ex rel O'Hara v Montgomery. 275 Mich 504; 267 NW 550 (1963), involved title to the office of Wayne County Clerk. On November 4, 1935 incumbent O'Hara was convicted in Macomb Circuit Court of a felony and for that reason the Wayne Circuit bench removed O'Hara from office, declared the same vacant, and appointed Montgomery to fill out the unexpired term on December 4, 1935. On January 23, 1936 the Macomb Circuit Judge set aside the verdict of guilty and granted O'Hara a new trial because of improper contact with the jury. Acting on O'Hara's behalf the Attorney General then sued Montgomery in quo warranto. Montgomery successfully defended his right to occupy the office. Quoting with approval from People v Adams. 95 Mich 541; 55 NW 978 (1893), the Michigan Supreme Court held:

"'The conviction is the finding of guilt. 1 Bishop Crim. Law, Sec. 963; Stevens v. People, 1 Hill (N.Y.), 261; State v. Volmer, 6 Kan. 379; Nason v. Staples, 48 Me. 123; Commonwealth v. Lockwood, 109 Mass. 323 (12 Am. Rep. 699). As is said by Gray, J. in Commonwealth v. Lockwood, ----

""The ordinary legal meaning of 'conviction,' when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while 'judgment' or 'sentence' is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained."

"'It is the declaration of consequences, only, that is bad; but there is no reversal, the conviction stands as evidence of the fact, and the statute is satisfied." Attorney General ex rel O'Hara, supra, 275 Mich at 514; 267 NW at 553-554

'The court continued to note that such interpretation was in accord 'with the common use of the language.'

'The possible harshness of such doctrine was recognized by the court, which also acknowledged the vitality of public policy considerations which favor immediate removal from office:

"An innocent man who is unjustly convicted of a felony is doubly unfortunate, but that he may ultimately succeed in establishing his innocence does not entitle him in the menatime to hold on to a public office. The law allows an appeal from a conviction of felony, but if the person so convicted is the incumbent of a public office, these considerations do not weigh in favor of retaining him in that position pending an appeal. McKannay v. Horton, 151 Cal. 711 (91 Pac. 598, 13 L.R.A. [N.C.] 661, 121 Am St. Rep. 146).' Attorney General ex rel O'Hara, supra, 275 Mich at 513; 267 NW at 553

'Also relevant is our recent formal opinion No. 4774 dated June 15, 1973 holding that a person who had been convicted of a crime would have to answer an inquiry to that effect on the application for the Michigan Bar Examination in the affirmative even though he had been granted a new trial during which charges against him were dismissed.' (emphasis added)

As the O'Hara case, supra, makes clear, a conviction occurs on adjudication of guilt. An appeal does not stay the fact of that conviction or leave a convicted person with the presumption of innocence that an accused person carries into a criminal proceeding and enjoys until a guilty verdict is entered.

Turning to the matter of the representative's eligibility to serve again in the legislature, Const 1963, art 4, Sec. 7 states in pertinent part:

'. . . No person who has been convicted of subversion or who has within the preceding 20 years been convicted of a felony involving a breach of public trust shall be eligible for either house of the legislature.'

Thus, in accordance with the will of the people who adopted the Constitution, a conviction of a felony involving breach of the public trust making the convicted person ineligible to serve in the legislature occurs only when the felony is committed by a public official while acting in his capacity as a public official. Stated another way, where an embezzlement by a public official is unrelated to his public duties and involves private funds taken from a private person, the crime does not involve a breach of the public trust, and a person convicted of such a crime is eligible to serve in the legislature.

As the Massachusetts Supreme Court in Commonwealth v Albert, 307 Mass 239; 29 NE2d 817 (1940), stated: '. . . A public office is a public trust.' In your letter you note that the criminal charge which led to the conviction involved the representative's private law practice and not actions taken as a member of the legislature. Thus, the first question to be resolved is whether an individual, holding a public office by virtue of being a member of the legislature, who commits a felony involving embezzled funds taken in his capacity as an attorney rather than as a member of the legislature, has breached his public trust. To resolve that issue, it is necessary to consider whether an attorney is a public official.

In Sloman v Bender, 189 Mich 258, 263; 155 NW 587 (1915), the Court stated:

'While recognized as a responsible and necessary officer of the court in the conduct of its business, exercising by legislative authority a privilege or franchise in that particular, he [the attorney] is not a public officer in the constitutional or statutory sense of that term.'

Also, in Ayres v Hadaway, 303 Mich 589, 597-598; 6 NW2d 905, 908 (1942), in discussing the issue of whether an attorney may be required to pay an annual fee in order to practice the profession, the Court stated:

'In Re Disbarment of Greathouse, 189 Minn. 51, 53, 55 (248 NW 735), the court said:

"An attorney is not an officer of the State in a constitutional or statutory sense of that term, but he is an officer of the court, exercising a privilege during good behavior. . . ."

More recently, in In Re Griffiths, 413 US 717; 372 L Ed 2d 910; 93 S Ct 2851 (1973), the United States Supreme Court stated at pp 728-729:

'. . . Offered in support of the claim that the lawyer is an 'office holder' in this sense is an enhanced version of the proposition, discussed above, that he is an 'officer of the court.' Specifically, the Committee states that the lawyer 'is an officer of the Court who acts by and with the authority of the State' and is entrusted with the 'exercise of actual government power.' Id., at 5.

'We note at the outset that this argument goes beyond the opinion of the Connecticut Supreme Court, which recognized that a lawyer is not an officer in the ordinary sense. 162 Conn, at 254, 294 A2d, at 283. This comports with the view of the Court expressed by Mr. Justice Black in Cammer v United States, 350 US 399, 100 L Ed 474, 76 S Ct 456 (1956):

'It has been stated many times that lawyers are 'officers of the court.' One of the most frequently repeated statements to this effect appears in Ex parte Garland, 4 Wall 333, 378 [18 L Ed 366]. The Court pointed out there, however, that an attorney was not an 'officer' within the ordinary meaning of that term. Certainly nothing that was said in Ex parte Garland or in any other case decided by this Court places attorneys in the same category as marshals, bailiffs, court clerks or judges. Unlike these officials a lawyer is engaged in a private profession, important though it be to our system of justice. In general he makes his own decisions, follows his own best judgment, collects his own fees and runs his own business. The word 'officer' as it has always been applied to lawyers conveys quite a different meaning from the word 'officer' as applied to people serving as officers within the conventional meaning of that term.' Id, at 405, 100 L Ed 474 (footnote omitted).

'Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country. Yet, they are not officials of government by virtue of being lawyers. Nor does the status of holding a license to practice law place one so close to the core of the political process as to make him a formulator of government policy.' (emphasis added)

In In Re Houlahan, 389 Mich 665; 209 NW2d 250 (1973) the Michigan Supreme Court followed the case of In Re Griffiths, supra.

Other cases holding that the office of attorney is not an office of public trust are In Re Thomas, 27 P 707 (Colorado, 1891) and Ex Parte Gregory Yale, 24 Cal 241 (Cal, 1864).

It will also be noted that, in People v Tremaine, 252 NY 27; 168 NE 817 (1929), in interpreting a constitutional provision which prohibited a member of the legislature from 'receiving any civil appointment within the state,' the Court stated that the words 'any civil appointment', as used therein, include any civil office 'or public trust' pertaining to the exercise of the powers and authority of the government of the state not reasonably incidental to the performance of the duties of a member of the legislature. Thus, the New York Court in Tremaine, supra, equated the term 'public trust' with the term 'civil appointment'.

I recognize that in Conley v State, 46 Neb 187; 64 NW 708, 710 (1895) the Court quoted the following with approval from Ex Parte Woods, Hopk Ch 8:

'The words 'public trust' appear to include every agency in which the public, reposing special confidence in particular persons, appoints them for the performance of some duty or service.'

Conley, however, involved embezzlement by the sheriff of moneys coming into his possession by virtue of a sale of land pursuant to the Court order in a mortgage foreclosure case. Such conduct is clearly a breach of the public trust, and the above words may be considered as dicta if applied to attorneys.

Inasmuch as an attorney does not hold an office of public trust within the meaning and intent of Const 1963, art 4 Sec. 7, supra, under the controlling decisions of the Michigan Supreme Court in Sloman, supra, and Ayres, supra, I am constrained to conclude that, because an attorney is not a public officer, a member of the legislature who, in connection with his private law practice, commits a felony by embezzling money has not committed a breach of public trust.

Thus, I believe that if the representative's eligibility pursuant to Const 1963, art 4, Sec. 7 were challenged in court, a court would hold that his actions, although criminal, did not involve a breach of his public trust. However, members of the House of Representatives do have plenary jurisdiction to determine that expulsion proceedings are in order.

Frank J. Kelley

Attorney General