Felony Convction Removal Statute Appears to Require White's Reinstatement as Secretary of State if His Class D Felonies are Entered as Misdemeanors

Charlie White

Under Indiana law, the conviction of White for felonies results in his automatic removal from office.  Even if White's convictions for Class D felonies are reduced to Class A misdemeanors, at sentencing, which White's counsel has indicated he will ask for pursuant to IC 35-50-2-7, the felony conviction removal statute, i.e. IC 5-8-1-38, keeps White from returning to office.  Or does it?  Below is paragraphs (b) and (c) from IC 5-8-1-38:

(b) Any public officer convicted of a felony during the public officer's term of office shall:
(1) be removed from office by operation of law when:
(A) in a jury trial, a jury publicly announces a verdict against the person for a felony;
(B) in a bench trial, the court publicly announces a verdict against the person for a felony; or
(C) in a guilty plea hearing, the person pleads guilty or nolo contendere to a felony; and
(2) not receive any salary or remuneration from the time the public officer is removed from office under subdivision (1).   

(c) The subsequent reduction of a felony to a Class A misdemeanor under IC 35-50-2-7 or IC 35-38-1-1.5 after the:   

(1) jury has announced its verdict against the person for a felony;
(2) court has announced its verdict against the person for a felony; or
(3) person has pleaded guilty or nolo contendere to a felony;
does not affect the operation of subsection (b).

That seems pretty clear-cut.  But the statute continues on and that is where the law appears to favor White.  Quoting now from paragraph (d) of that same statute:

(d) If the conviction is:
(1) reversed;
(2) vacated;
(3) set aside;   

(4) for a felony other than a felony arising out of an action taken in the public officer's official capacity, reduced to a Class A misdemeanor under IC 35-50-2-7 or IC 35-38-1-1.5; or  

(5) not entered because the trial court did not accept the guilty plea;
and the public officer's term has not expired, the public officer shall be reinstated in office and receive any salary or other remuneration that the public officer would have received had the public officer not been removed from office.

One important rule of statutory interpretation is that specific statutory provisions control over general.  (d) is more specific than the more general (c) when it comes to the effect of a reduction of a conviction from a felony to a misdemeanor.  So if (d) at all applies to White's situation, that one would apply instead of the more general (c).

It appears that the way the paragraphs operate is that (c) is intended to apply to felonies the elected official commits in the course of his job and (d) is intended to apply to felonies not committed in his official capacity. Regardless, specific still controls over general and paragraph (d) would seem to apply.

Looking at (d)(4), White was convicted for a felony other than a felony arising out of an action taken in the public officer's official capacity."  His term has not expired.  Therefore, if his convictions are reduced to misdemeanors by Judge Steve Nation, White is back in office.  In fact the law requires that he be reinstated.   Governor Daniels recognized that in his announcement appointing an interim Secretary of State.

My guess is that a deal will be struck that White will officially resign in exchange for the reduction of the felonies to misdemeanors. That would avoid his mandatory reinstatement but allow White to possibly keep his law license and avoid the stain of being a convicted felon.

Of course, it would have been easier for White if he had actually presented evidence at his trial and secured an acquittal, but that is water under the bridge.