2452
Relief By Full Restoration of Citizenship Rights
Revoked
As the Result of a Disqualifying Conviction
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Both LMRDA section 504 and ERISA section 411 provide for complete
relief from their respective employment disabilities if, prior to the end of
the
disability period, the disqualified person's "citizenship rights, having
been
revoked as a result of such conviction, have been fully restored." 29
U.S.C.
§§ 504(a)(A) and 1111(a)(A).
Full Restoration of Rights Lost by Conviction of Federal Crimes
Although a Federal conviction does not result in any broad
revocation
of rights derived from Federal citizenship, certain statutes revoke
particular
Federal rights and privileges upon conviction for specified offenses.
See, for example, the right to serve on a Federal jury (28 U.S.C.
§
1865) and right to hold Federal office or employment (18 U.S.C.
§§
201,
593, 1901, 2071, 2381, 2383, 2385, 2387). The fact that a convicted Federal
offender may have his revoked citizenship rights in a particular state
restored
to him does not "fully" restore his citizenship rights lost as a result of
Federal conviction. See Viverito v. Levi, 395 F. Supp. 47, 48
(N.D. Ill. 1975), denying employee benefit plan employment under 29 U.S.C.
§
1111 to an individual who had been convicted in Federal court of conspiracy
and
bank embezzlement despite the restoration of rights lost in Illinois. The
court
noted that the disqualified individual was free to pursue alternative relief
under 29 U.S.C. § 1111 in the form of an exemption from the disability
for
service in a particular prohibited capacity. Id. at 49. For an
analogous
statutory scheme and result, see Beecham v. United States, 511
U.S.
368, 114 S.Ct. 1669, 1671, 128 L.Ed.2d 383 (1994), where the Court held that
because the exemption of convicted persons from the firearms disability, in
the
Firearms Owners Protection Act (18 U.S.C. § 921(a)(20)), by restoration
of
"civil rights" is governed by the law of the convicting jurisdiction,
convicted
Federal offenders were not entitled to relief by having obtained state
restoration of revoked civil rights outside the convicting jurisdiction.
Full Restoration of Rights Lost by Conviction of State Crimes
When it enacted 29 U.S.C. §§ 504 and 1111, Congress did not
specifically define the revoked "citizenship rights" which need to be fully
restored in order to relieve a disqualified person of the statutory
employment
disabilities. However, Congress did reject a statutory scheme which would
have
based disqualification simply on the eligibility to vote in a particular
state.
105 Cong.Rec. 1596-97 (1959) (remarks of Congressman Loser) cited in
Harmon
v. Teamsters Local 371, 832 F.2d 976, 978 (7th Cir. 1987).
Moreover, the term "citizenship rights" may be interpreted as
referring
to more than traditional "civil rights" such as the right to vote, hold
public
office, and serve as a juror. Compare, for example, United States
v.
Cassidy, 899 F.2d 543 (6th Cir. 1990), interpreting the exemption from
the
Federal firearms disability as requiring a restoration of "civil rights"
consisting of "the right to vote, the right to seek and hold public office
and
the right to serve on a jury" as contrasted with a "full" restoration of
"all
rights and privileges" in the jurisdiction of conviction. Id. at
549.
Although not a judicially settled question, it may be argued that
Congress intended that a full restoration of citizenship rights would depend
upon
the convicting state's restoration of all those revoked rights which the
state
itself had conferred on its citizens. At a minimum, such rights would
include
traditional political civil rights of state citizens within their respective
states governing voting, officeholding, etc. Other rights may include rights
of
the kind protected by Article IV, Section 2, of the Constitution, as
"Privileges
and Immunities of the Citizens in the several states," such as rights
pertaining
to professional licensing, commercial occupations and property ownership,
for
example. See Supreme Court of Virginia v. Friedman, 487 U.S.
59,
64-66, 108 S.Ct.2260, 2264-65 (1988) and cases cited in that decision.
However, because Congress recognized that some states do not revoke
or
restore citizenship rights of disqualified criminal offenders, the absence
of a
revocation or restoration procedure has no effect on the operation of the
disability on the convicted person. Harmon v. Teamsters Local 371,
supra at 979 (holding that the Iowa procedure for first offenders,
which
did not treat a defendant's notation of guilt as a conviction in Iowa, was a
conviction for purposes of 29 U.S.C. §§ 504 despite the absence
of
any
resulting revocation or restoration of citizenship rights under Iowa law).
Prior Rehabilitation
Congress also intended that a restoration of citizenship rights
include
an implicit requirement of rehabilitation and trustworthiness to hold a
position
otherwise prohibited by the disability statutes. Nass v. Local 348,
503
F. Supp. 217 (E.D.N.Y. 1980), aff'd without opinion, 657 F.2d 264 (2d
Cir.
1981) (holding that a state court's issuance of a certificate of relief from
civil disabilities on the day of sentence was only an aid to rehabilitation,
as
contrasted with evidence of prior rehabilitation, and did not indicate the
trustworthiness sufficient to lift the section 504 disability).
[cited in USAM 9-138.100; USAM 9-138.180] | |