55933/494
Decided by Board June 16, 1950
Restoration of Civil Rights — (1946) — State of Wisconsin — "Pardon" within meaning of section 19, Immigration Act of 1917 — Meaning of "Sentenced more than once" — Section 19, supra.
(1) The unrestricted executive clemency granted this alien by the Governor of Wisconsin on June 26, 1946, had the effect of relieving this alien from the legal disabilities incurred by his conviction of the Wisconsin offenses in question and of restoring to him all civil rights forfeited by such offenses or conviction; and he is deemed "pardoned" as to such offenses, within the meaning of Sec. 19 of the Immigration Act of 1917. (See Interim Decision #119 for Matter of O----, 3 IN Dec. 209, which is distingushed herein, and deals with restoration of civil rights by the Board of Pardons in the State of Nebraska.)
(2) As to the separate Illinois offenses of which this alien was convicted upon his plea of guilty on April 28, 1936, there is no showing that after his sentence on April 28, 1936, he has committed another crime, has been sentenced again to a term of a year or more and served sentence. As to these Illinois offenses, the alien does not fall within the provisions of law (sec. 19, Immigration Act of 1917) relating to "sentenced more than once". (See Fong Haw Tan v. Phelan, 333 U.S. 6, 9, and 2 IN Dec. 578, footnote 1.)
CHARGES:
Warrant: Act of 1917 — Sentenced more than once for crimes, to wit: Breaking and entering, and larceny, larceny, burglary, larceny, burglary, larceny, and receiving stolen property.
Lodged: Act of 1917 — Convicted of crime prior to entry, to wit: Larceny.
BEFORE THE BOARD
Discussion: This case is before us on motion of counsel to reconsider an order entered by this Board on March 24, 1947, wherein we refused to accept the Commissioner's recommendation to cancel the outstanding order and warrant of deportation and terminate the proceedings but in the alternative stayed the respondent's deportation for an additional thirty days to afford him an opportunity to file applications for pardon of a series of offenses committed in the State of Illinois which together with offenses committed in the State of Wisconsin serve as the basis for the charge stated in the warrant of arrest. Counsel in support of his motion submitted evidence of executive clemency for the offenses committed in the State of Wisconsin. Counsel also urged the application of the decision by the Supreme Court in the case of Fong Haw Tan v. Phelan, 333 U.S. 6, 92 L. Ed. 433 (February 2, 1948), insofar as the separate offenses committed in the State of Illinois are concerned with the respondent having been sentenced more than once.
The respondent, a native of Scotland, a subject of Great Britain, testified that he last entered the United States at the port of Detroit, Mich., on July 5, 1926. The charge pertaining to conviction of a crime involving moral turpitude prior to entry is predicated upon his conviction and sentence before the county court for Walworth County, Wis., on October 20, 1920, of the crime of larceny. The charge relative to his sentence more than once subsequent to his last entry to terms of 1 year or more for crimes involving moral turpitude is predicated upon the respondent's sentence before the Municipal Court for Rock County, Wis., on April 10, 1934, of the crime of breaking and entering in the nighttime with intent to commit robbery and his sentence at the Rockford, Winnebago County, Ill., on April 23, 1936, by the 17th Judicial Circuit Court to concurrent terms of from 1 year to life on indictments #7036, 7037, 7038 and 7039, charging, respectively, larceny, larceny of a motor vehicle, burglary and larceny, and burglary, larceny and receiving stolen property.
The record affirmatively establishes that the respondent was sentenced on a plea of guilty only once in the State of Illinois on April 28, 1936, for various terms to run concurrently. There is no showing that subsequent to his sentence on April 28, 1936, he has committed another crime, has been sentenced again to a term of a year or more and served the sentence. Under these circumstances, the decision of the Supreme Court in the Fong Haw Tan case ( supra), clearly requires that the outstanding order and warrant of deportation be withdrawn provided the executive clemency granted the respondent by the Governor of the State of Wisconsin is deemed a full and unconditional pardon within the meaning of the immigration laws. The sole issue before us, therefore, is whether the certificate of executive clemency presented by the respondent is a pardon within the meaning of the Immigration Act of 1917, as amended. If it is, then the respondent is not subject to deportation on the above-stated charges.
This Board must consider the question of whether the executive clemency granted the respondent on June 26, 1946, by the Governor of Wisconsin has the effect of relieving the respondent from the legal disabilities incurred by his conviction of the offenses in question and of restoring to him all civil rights forfeited by such offenses or conviction thereof in light of the Acting Attorney General's recent decision in Matter of O----, A-5877015 (February 4, 1950). In that decision the Acting Attorney General concluded that a certificate evidencing the restoration of a criminal alien's civil rights issued by the Board of Pardons in the State of Nebraska was not a pardon within the meaning of the immigration laws. Since the Acting Attorney General gave no reasons for his conclusion in his memorandum of transmittal, our only approach to the issue is a comparison of the substance of the power to pardon and the effect thereof inherent in the laws of the two states involved, namely, Nebraska and Wisconsin.
A document designated as a pardon is not effective to avert deportation if by its terms refrains from extending to the recipient all the benefits which accrue to the holder of the pardon. It is the general rule that the authority to whom was committed the power to pardon must exercise it to exempt the felon from any and all punishment resulting from the conviction and to free him from any and all future legal consequences of the crime, without condition, if deportation is to be averted. In this respect, it has been stated that a pardon wipes out the legal consequences which flow from an adjudication of guilt. People ex rel. Prisament v. Brophy, 287 N.Y. 132 (1941); 3 Attorney General's Survey of Release Procedures, 268 (1939).
The Constitution of Nebraska vests the pardoning power in a board composed of the Governor as chairman, the Attorney General and the Secretary of State. The Constitution reads in part as follows:
Said Board, or a majority thereof, shall have power to remit fines and forfeitures and to grant commutations, pardons, and paroles after conviction and judgment under such conditions as may be prescribed by law, for any offenses committed against the criminal laws of this state except treason and impeachment * * *.
Nebraska Constitution, art. IV, sec. 13; Nebraska comp. stat. (1943), chap. 29, secs. 2602-2604. Before the amendment of the constitution in 1920 the pardoning power was vested in the Governor alone. In 1911 an advisory board of pardons was created (Nebraska laws, (1911), chap. 133). Now, since any two members of the board can exercise the powers conferred upon it, it is possible for the Attorney General and Secretary of State to grant a pardon against the wishes of the Governor.
Statutory provisions require each application for relief from the complete consummation of an imposed sentence by way of clemency to be made on forms provided by the Board of Pardons. Furthermore, publication of notice of hearing is required, recommendations are requested after due investigation, a full hearing in open session must be granted after due notice and "any citizen of Nebraska and the applicant for clemency shall be given the right to appear and be heard." Persons deemed incompetent, by reason of conviction and sentence for felony, to be an elector or juror, or to hold any office of honor, trust or profit within the state, are restored to their civil rights and privileges by a general pardon from the Board of Pardons granted under the seal of the state and countersigned by the Secretary of State.
Nebraska comp. stat. (1943), ch. 29, secs. 2606, 2607, 2608, 2609, 2611, 2618, 2636.
Nebraska comp. stat., ch. 29, secs. 112 and 2616.
A more general method of restoring the prisoner's civil rights is provided by section 2634 of chapter 29, Nebraska comp. stat. (1943). This statute reads:
Whenever any convict shall have completed the lawful requirements of his sentence, the Board of Pardons, upon receiving a certificate of good conduct from the warden, shall immediately issue a warrant for the discharge of such convict, and such warrant shall in all cases restore the prisoner's civil rights the same as though a pardon had been issued.
This Board in the O---- case ( supra) reached the conclusion that there was no distinction between the general pardon granted by the Board of Pardons and a warrant of discharge issued pursuant to section 2634 ( supra). The Acting Attorney General assigned no reason for the position he took. We assume that since the laws of Nebraska provide for a general pardon as well as a restoration of civil rights by a warrant of discharge, nothing less than a pardon will satisfy the requirements of the immigration laws. In other words, only a full pardon of the offense by the Board of Pardons of Nebraska can wipe away the infamy of the conviction and restore the convict to all of his rights, privileges and immunities. A warrant of discharge does not have this effect notwithstanding the phrase found in the statute, to wit, "the same as though a pardon had been issued."
We will now turn to a consideration of the certificate of executive clemency granted the respondent by the Governor of Wisconsin to see if there is any basis for distinguishing it from the warrant of discharge discussed above. Both of the documents by their express terms restore civil rights. We must, as we did in the case of Nebraska, look to the substance of the power to pardon inherent in the laws of Wisconsin.
The pardoning power in Wisconsin has always been lodged in the Governor, both under the territorial government and under its State constitution. Article 5, section 6, of the State constitution provides:
5 Wis. Stats. (1896) sec. 10.
Wisconsin has had but one constitution.
The governor shall have power to grant reprieves, commutations, and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. * * * He shall annually communicate to the legislature each case of reprieve, commutation, or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve, with his reasons for granting the same.
Since 1935 the Governors of Wisconsin have created a "State Pardon Board" of three members by executive order. Their powers are merely advisory. The Governor has fully retained the authority vested in him by the Constitution to make the final decision. The statutory formalities of procedure do not apply where the sentence has already been served and the person is applying for a pardon which, among other things, would restore his civil rights. However, the rules and regulations promulgated by the governor prevent the granting of such pardon until 1 year after the expiration of the sentence and then only permit it upon a petition endorsed by reputable citizens.
Wis. Stats. 1935, ch. 57, sec. 8.
Governor's Rules and Regulations in re applications for pardons, State of Wisconsin, Rule 5, Wis. Admin. Orders (1942), p. 156.
There is no provision either by statutory enactment or in the Wisconsin constitution which provides that one convicted of a felony is restored to his civil rights merely by serving the full time of his sentence in a penal institution or by being discharged from probation. His civil rights can be restored only by a governor's pardon. A full and unconditional pardon granted by the Governor of Wisconsin under the Constitution "removes the disabilities resulting from the conviction of the offense for which the pardon was granted." Concerning the inherent power of the Governor to pardon, the Wisconsin Supreme Court has said:
Op. A.G. Wis. (1902) p. 205; id. (1916) p. 107; but see footnote 18 for the statute passed in 1947. The pardon in the case before us was granted in 1946.
Op. A.G. Wis. (1908) p. 293.
As the governor is charged with the duty of seeing that the laws be faithfully executed, it is in strict accordance with the theory of the power of pardon that he should have power to pardon offenders against the laws which it is his duty to execute.
Unlike Nebraska, it is apparent from the foregoing that in the State of Wisconsin the Governor has the sole authority to grant pardons (except in the cases of treason and impeachment) and that a pardon by the Governor removes the disabilities resulting from the conviction.
It is well established under the laws of Wisconsin that one of the disabilities incurred by a conviction for felony is the "loss of civil rights" such as the right of franchise and the right to hold public office (see ch. 6, sec. 1, Laws of Wis., (1947), also art. 3, sec. 2, and art. 13, sec. 3 of the Wis. State constitution). While it is true that an alien does not have the right of franchise and in most cases is not permitted to hold public office, there are disabilities which are removed by a pardon restoring civil rights, such as the right to receive old-age assistance under the state law and the right to have his driver's permit restored where he has been convicted for driving while intoxicated (see 26 Op. A.G. Wis. 375; 27 Op. A.G. Wis. 331).
Since the State Constitution empowers the governor to attach any condition, restriction or limitation to a pardon which may seem proper to him, we must examine the language of the instrument presented by the respondent to determine whether the governor placed any condition therein which would limit its scope, thereby affecting its status as a full and unconditional pardon. After setting forth the specific crimes to which it is made applicable, the instrument reads as follows:
19 Op. A.G. 162 (1936); 18 id. 706 (1920).
Whereas, pardon is solicited in behalf of the said R---- W---- G----, otherwise known as R---- S----, to prevent deportation, and it appearing that he had led an upright and honorable life, and has conducted himself as a peaceable and law-abiding citizen for approximately two years last past, and it appearing that he is deserving of executive clemency.
Now therefore, know ye, That, in consideration of the premises, I, Walter S. Goodland, as Governor of the State of Wisconsin, have restored, and by these presents do restore to the said R---- W---- G----, otherwise known as R---- S----, all civil rights forfeited by him in consequence of the said offenses or of the said convictions.
The foregoing restores to the respondent "all civil rights forfeited by him in consequence of the said offenses or of the said convictions." The document on its fact states "pardon is solicited." As noted above, a petition for a pardon after completion of sentence must be submitted in conformity with the rules promulgated by the Governor. (See footnote 10.) It was granted without any conditions or restrictions of any kind.
This terminology is used by the governor apparently for the reason that it is the exact wording used in the State Constitution, art. III, sec. 2 of which reads in part as follows: "* * * nor shall any person convicted of treason or felony be qualified to vote at any election unless restored to civil rights."
Whereas in the State of Nebraska the legislature has provided an alternative method for restoration of civil rights outside of the constitutional grant of this power and civil rights are restored as a matter of course upon completion of sentence, this is not true in Wisconsin. A study of the authorities available, the Wisconsin statutes and the State Constitution, leads us to conclude that where a pardon has been solicited and executive clemency has been granted without restriction restoring a person to his civil rights, that all of the legal consequences incurred by the convictions stated within the document are thereby exempt from any express pardon stating that the recipient was thereafter exempt from any and all punishment resulting from his conviction and freeing him from any and all future legal consequences of the crime involved, without condition, would not, under the laws of Wisconsin, result in a fuller or more complete pardon than his restoration to all civil rights.
The subject of legislative action to provide automatic restoration of civil rights upon completion of sentence is discussed in an article published in the Wisconsin Law Review. The position there taken recognizes the supreme pardoning power of the governor and the mandate under existing law which requires a general pardon to restore civil rights. It takes issue with certain legal opinion prevalent in the state which adheres to the theory that a constitutional amendment is necessary to supplement the supreme pardoning power of the governor with a pardon provided by the legislature and limited solely to the restoration of civil rights which would automatically accrue to any convict merely upon completion of sentence. The article, in our judgment, supports the conclusion we have reached, to wit, that the document presented by the respondent is as complete a pardon as can be issued by the governor under existing law. This view is supported by prior decisions of this Board, the Board of Review, the Commissioner and the Attorney General.
During the 1947 session the State legislature added sec. .078 to ch. 57 of the Wisconsin Statutes (Laws of Wisconsin, 1947, ch. 477). This section reads as follows:
"Civil Rights Restored to Convicted Persons Satisfying Sentence. — Every person who is convicted of crime obtains a restoration of his civil rights by serving out his term of imprisonment or otherwise satisfying his sentence. The certificate of the department or other responsible supervising agency that a convicted person has served his sentence or otherwise satisfied the judgment against him is evidence of that fact and that he is restored to his civil rights."
It is apparent from the foregoing that those who adhered to the theory that a Constitutional amendment was not necessary to provide a legislative pardon for the sole purpose of restoring civil rights upon completion of sentence were in the majority at this session of the legislature. Their action lends additional support to the conclusion we have reached; namely, that prior to the enactment of the foregoing section a full and unconditional pardon on the part of the Governor was necessary for the restoration of civil rights.
Matter of O----, 56011/400 (A.G. August 23, 1940); Matter of F----, 55904/577 (January 30, 1926); Matter of T----, 55713/865 (January 30, 1943); Matter of S----, 55944/377 (July 14, 1937); Matter of M----, A-2109566 (March 20, 1940); Matter of S., A-3386334 (June 30, 1945); Matter of F----, A-1838533 (February 26, 1945); Matter of A----, A-3386329 (February 18, 1947).
Our position in this regard also appears to be supported by an opinion of the Attorney General of the State of Wisconsin. The governor requested an opinion from Attorney General Reynolds as to whether an alien's civil rights could be restored by the Governor. In his opinion the Attorney General said: "While a pardon by the governor will not restore to him (alien) the right to vote which he has not nor ever had in this state, nevertheless, it will pardon him for the offense which he has committed, and that fact may aid him in securing the right to vote. * * * While I am constrained to hold that the civil right to vote cannot be restored to this man by a pardon, still the governor may pardon him for the crime for which he has already served his full sentence." 21 Op. A.G. Wisc. 1088, 1089 (December 16, 1932). Attorney General Walter C. Owen wrote in like vein in his opinion of February 2, 1916, "A person convicted of felony does not thereby lose his citizenship; his conviction deprives him of certain civil rights, among which is the right to vote. These civil rights are not restored to him by a discharge from imprisonment or from probation. Civil rights can only be restored by a pardon." 5 Op. A.G. Wis. 107, 108 (February 2, 1916).
The office of the incumbent Attorney General, State of Wisconsin, is of the opinion that the executive clemency granted the respondent herein has the effect of relieving him from the legal disabilities incurred by his conviction of the offenses in question. Assistant Attorney General William A. Platz in a communication dated June 10, 1950, inter alia, states, "The order of Hon. Walter S. Goodland, Governor of Wisconsin, dated June 26, 1946, is in legal effect a full pardon. * * * We also have conditional pardons and commutation of sentence, neither of which is material here." Thus, it is clear from the opinions of the Attorneys General referred to above that prior to the legislative enactment of 1947 (see footnotes 11 and 18) a full pardon by the Governor was required to restore civil rights in the State of Wisconsin.
Adverting to the decision in the Matter of O---- ( supra), it is noted that the controversy in that case and the determinate factors upon which it appears the Acting Attorney General based his conclusion neither arise nor exist in this case. The question for determination there was whether a warrant of discharge which restored civil rights in the State of Nebraska as a matter of course constituted a full and complete pardon within the meaning of our immigration laws. The Acting Attorney General decided that it did not. In the case at bar our position is supported by the following rationale not present in the O---- case ( supra):
(1) The document presented by the respondent was issued by the only pardoning power in the State, the Governor, in accordance with the State constitution, the language of which does not limit the "civil rights" which the recipient could have restored to him. The document presented in the O---- case was issued under a statute supplementing the supreme pardoning power set forth in the State constitution, thereby giving rise to a doubt as to whether it constituted a full and complete pardon.
(2) Unlike Nebraska, the respondent here had only one source from which to seek a pardon; namely, the Governor. No restoration of civil rights came to him as a matter of course by merely serving his sentence.
(3) Once accepted by the beneficiary, the Governor cannot revoke an unconditional pardon in Wisconsin. The document presented appears to fall in this category. In the State of Nebraska there is a possibility that the warrant or discharge may be recalled by executive authority, thereby canceling any benefits obtained under the statute restoring civil rights.
Op. A.G. Wis. 424; cf. Biddle v. Perovich, 274 U.S. 480 (1927).
(4) Restoration of civil rights in Wisconsin amounts to more than restoring the right of franchise, which is meaningless to an alien; it also carries with it certain other benefits as noted above. We find no similar benefits accruing to a convict in the State of Nebraska who has received a warrant of discharge.
(5) The pardon received by the respondent must be reported to the State legislature in the same manner as pardons issued to those who have not completed sentence. There appears to be a distinction in the manner of recording in the State of Nebraska a general pardon issued by the Board of Pardons and a warrant of discharge issued pursuant to legislative enactment.
Since the document presented by the respondent appears to meet all of the requirements of the State constitution and has not been restricted by the governor, we are of the opinion, for the reasons aforesaid, that it constitutes a full and complete pardon within the meaning of the immigration laws.
Order: It is ordered that the proceedings had under the outstanding order and warrant of arrest be and the same are hereby terminated.