If a convicted Maryland official's felony conviction is reversed on appeal, are they owed back pay right away, or only once the appeal is completely final?

Plain-English summary

At the request of the Legislative Auditor, an Executive Department administrative officer asked the Attorney General to review whether a 1979 back-pay payment to former Governor Marvin Mandel had been proper. Mandel had been convicted of mail fraud and racketeering offenses in 1977 and automatically suspended from office without pay under Article XV, Section 2 of the Maryland Constitution, which suspends an elected official convicted of a qualifying felony or misdemeanor and directs reinstatement with restored pay and benefits if the conviction is later "reversed or overturned." A Fourth Circuit panel vacated Mandel's conviction on January 11, 1979, just days before his term expired, and he briefly resumed office and was paid the salary he would have received but for the suspension. The full Fourth Circuit later reheard the case, split evenly, and let the original conviction stand, and the Supreme Court denied further review in 1980.

The opinion concluded the back pay had been properly paid. It reasoned that a "reversal" under Article XV, Section 2 occurs when an appellate court enters its judgment, not when the formal mandate later issues, so Mandel's suspension lifted, and his right to reinstatement and back pay vested, on January 11, 1979, the day the Fourth Circuit panel announced its decision, regardless of the later rehearing that restored his conviction. The opinion treated reinstatement and back pay as two sides of the same constitutional remedy, both triggered by the same event, and concluded the State had no right to claw back the payment based on developments that came after the reversal had already taken legal effect.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Article XV, Section 2 of the Maryland Constitution as it stood in 1982 and notes that a 1980 bill to amend that section to require a "final disposition, from which no further appeal may be made" before triggering reinstatement and back pay had been introduced but died. Anyone researching how Maryland currently handles the suspension, reinstatement, or back pay of a convicted elected official should verify the current text of Article XV, Section 2 and any amendments enacted since 1982, rather than relying on this opinion's analysis of the specific historical Mandel litigation.

Common questions

Why did the timing of "reversal" matter so much in this situation?
Because Governor Mandel's four-year term was about to expire, and the appellate panel's decision came down just six days before his term ended. The opinion had to decide whether his suspension lifted immediately when the panel announced its decision, or only later when the formal mandate issued, since the difference determined whether he could resume office at all before his term ran out, and whether the back pay tied to that reinstatement was proper.

Doesn't a "reversal" only really count once all appeals are finished?
The opinion rejected that reading for purposes of Article XV, Section 2. It reasoned that the constitutional text does not tie "reversal" to finality the way it ties "conviction" to a formal, final judgment, and that requiring a fully final, unappealable reversal before restoring an elected official to office would create unnecessary delay in returning someone the voters had elected to their position. The opinion also pointed out that a 1980 bill to add exactly that finality requirement to Article XV, Section 2 was introduced but did not pass, reinforcing that the existing text was not being read to require finality.

Did the State have to pay Governor Mandel again if his conviction was ultimately reinstated?
No. The opinion concluded that once the reversal and its associated remedies (reinstatement and back pay) took effect on January 11, 1979, later developments that restored the underlying conviction did not retroactively undo the State's obligation. The opinion drew an analogy to a hypothetical convicted official who is reversed, returned to office, but then convicted again on retrial, noting nobody would say that official had to return the back pay already received for the period the reversal was in effect.

Is this the kind of situation likely to come up again for local officials?
The opinion acknowledged that the facts of the Mandel case were "decidedly unique," involving the unusual overlap of an expiring term, an appellate reversal, and a later rehearing that restored the conviction. But it treated the underlying legal principle, that a reversal takes effect at judgment rather than at final mandate, as a general rule applicable to any elected official suspended under Article XV, Section 2, not a one-off exception created for Governor Mandel.

Background and statutory framework

The request arose from a Legislative Auditor's inquiry into a 1979 back-pay payment made to former Governor Marvin Mandel. Article XV, Section 2 of the Maryland Constitution automatically suspends, without pay or benefits, any elected state, county, or municipal official convicted of a felony, or of certain morally turpitudinous misdemeanors related to public duties, and provides that if the conviction is later "reversed or overturned," the official "shall be reinstated by operation of Law to the elective office for the remainder, if any, of the elective term" with "all pay and benefits" restored.

Governor Mandel was convicted by a federal jury of mail fraud and racketeering offenses on August 23, 1977, and sentenced to four years in prison on October 7, 1977, triggering automatic suspension without pay under Article XV, Section 2. On January 11, 1979, a panel of the United States Court of Appeals for the Fourth Circuit issued an opinion vacating the conviction and remanding for a new trial, with judgment entered on the docket the same day. This Office advised at the time that Mandel could resume office for the remaining six days of his term, which he did after formally revoking an earlier letter that had named the Lieutenant Governor as Acting Governor, and he was paid the salary he would have received but for the suspension. Shortly afterward, before the Fourth Circuit's mandate issued, the United States moved for rehearing by the full court; the motion was granted, the case reargued, and on July 20, 1979, the full court split 3-3, which had the effect of affirming the original 1977 conviction. A further rehearing petition was denied on November 1, 1979, and the Supreme Court denied certiorari on April 14, 1980.

The opinion's central analytical question was when, precisely, a "reversal" occurs for purposes of Article XV, Section 2: at the moment an appellate court enters judgment, or only once its mandate formally issues (which can be delayed by rehearing petitions) or the case becomes fully final. The opinion concluded reversal occurs at judgment, for several reasons. First, while the constitutional text ties the initial "removal" to a "conviction" that becomes "final," it does not impose the same finality requirement on the word "reversed," so a pending rehearing petition that merely stays the mandate should not control whether a reversal has legally occurred. Second, because a prior Attorney General opinion had already construed "conviction" under this same section to mean the entry of judgment or sentence, rather than a fully final, unappealable judgment, consistency called for treating "reversal" the same way. Third, the opinion invoked a policy of construing constitutional disability provisions liberally in favor of prompt restoration of elected officials to the offices the voters chose them for, without added delay from rehearing petitions, stayed mandates, or certiorari proceedings, and noted that a 1980 bill that would have added an explicit finality requirement to Article XV, Section 2 had been introduced but failed to pass.

Having concluded reversal occurred on January 11, 1979, the opinion treated the entitlement to back pay as inseparable from the entitlement to reinstatement, since both remedies are triggered by the same constitutional event and reflect the same equitable principle that a wrongfully suspended official should not permanently lose pay for a period during which, in the eyes of the law at that time, no valid conviction supported the suspension. The opinion closed by rejecting any suggestion that the State could later recover the back pay once the full Fourth Circuit's rehearing restored the conviction, reasoning that subsequent developments reinstating a conviction do not retroactively undo remedies that had already vested when the reversal took legal effect.

Citations

Statutes:

• Md. Const. art. XV, §2
• Md. Const. art. II, §6
• Federal Rules of Appellate Procedure, Rule 41
• Federal Rules of Appellate Procedure, Rule 36

Cases:

• United States v. Mandel, 602 F.2d 653 (4th Cir. 1979)
• United States v. Mandel, 609 F.2d 1076 (4th Cir. 1979)
• Mandel v. United States, 445 U.S. 961 (1980)
• United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979)
• McFerren v. County Board of Education, 455 F.2d 199, 202-03 (6th Cir. 1972)
• Harkless v. Sweeney Independent School District, 427 F.2d 319, 323-24 (5th Cir. 1970), cert. denied, 400 U.S. 991 (1971)
• Smith v. Hampton Training School, 360 F.2d 577, 581 n.8 (4th Cir. 1966)
• Mastrobattista v. Essex County Park Commission, 204 A.2d 601 (N.J. Super. 1964)
• Tierney v. Tierney, 290 So.2d 136 (Fla. Ct. App. 1974)
• Save the Trains Ass'n v. Chicago & N.W. Ry. Co., 95 N.W.2d 334 (Neb. 1959)
• Stroud v. Crow, 192 S.W.2d 548 (Ark. 1946)
• Benson v. Mellor, 152 Md. 481, 486-87 (1927)
• In re Echeles, 374 F.2d 780 (7th Cir. 1965)
• Becker v. Green County, 184 N.W. 715 (Wis. 1922)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PUBLIC OFFICERS

Suspension on Conviction of Crime—Reinstatement on Reversal of Conviction—Entitlement to Back Pay

February 11, 1982

Mr. Irvin E. Feinstein
Administrative Officer
Executive Department

At the request of the Legislative Auditor, you have asked for our opinion on whether the payment of back pay in 1979 to former Governor Marvin Mandel was proper under the provisions of Article XV, §2 of the Maryland Constitution.

For the reasons expressed below, we believe that the payment was lawful and proper.

I
Article XV, §2

Article XV, §2 of the Maryland Constitution provides:

"Any elected official of the State, or of a county or of a municipal corporation who during his term of office is convicted of or enters a plea of nolo contendere to any crime which is a felony, or which is a misdemeanor related to his public duties and responsibilities and involves moral turpitude for which the penalty may be incarceration in any penal institution, shall be suspended by operation of law without pay or benefits from the elective office. During and for the period of suspension of the elected official, the appropriate governing body and/or official authorized by law to fill any vacancy in the elective office shall appoint a person to temporarily fill the elective office, provided that if the elective office is one for which automatic succession is provided by law, then in such event the person entitled to succeed to the office shall temporarily fill the elective office. If the conviction becomes final, after judicial review or otherwise, such elected official shall be removed from the elective office by operation of Law and the office shall be deemed vacant. If the conviction of the elected official is reversed or overturned, the elected official shall be reinstated by operation of Law to the elective office for the remainder, if any, of the elective term of office during which he was so suspended or removed, and all pay and benefits shall be restored." (Emphasis added.)

II
Background

On August 23, 1977, Governor Mandel was found guilty, by a jury in the United States District Court for the District of Maryland, of certain mail fraud and racketeering offenses of the character triggering suspension from office under Article XV, §2. On October 7, 1977, he was sentenced to a four-year prison term. By operation of Article XV, §2, he was then automatically suspended "without pay or benefits from [his] elective office". See 62 Opinions of the Attorney General 365 (1977); 62 Opinions of the Attorney General 464, 471 (1977).

Following an appeal to the United States Court of Appeals for the Fourth Circuit, a panel of that court, on January 11, 1979, issued an opinion concluding that the Mandel conviction should be vacated and the case remanded for a new trial. United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979). On the same day that the opinion was announced, a judgment was entered on the docket by the Clerk of the Court of Appeals. See Federal Rules of Appellate Procedure, Rule 36. As a result, this Office advised that Governor Mandel could resume his office until January 17, 1979, when his term expired.1 Upon resuming his office for the last two days of the term, Governor Mandel applied for the salary that would have been paid to him but for his suspension, and in due course the payment was made.

Shortly after the expiration of Governor Mandel's term, and before the mandate of the Court of Appeals issued, the United States moved for rehearing by the full court.2 The motion was granted and the case reargued. On July 20, 1979, the full court split 3-3 and, as a consequence, affirmed the original 1977 conviction. United States v. Mandel, 602 F.2d 653 (4th Cir. 1979). On November 1, 1979, the defendant's motion for another rehearing was denied. United States v. Mandel, 609 F.2d 1076 (4th Cir. 1979). A petition for a writ of certiorari was filed with the United States Supreme Court and denied on April 14, 1980. Mandel v. United States, 445 U.S. 961 (1980).

III
Analysis

Under the plain terms of Article XV, §2, a suspended elected official is entitled to return to office, as well as back pay and lost benefits, if his or her conviction is "reversed or overturned". Because the same event triggers the "recovery" of both the office and the pay and benefits, it is reasonable to conclude that reinstatement and entitlement to back pay are rooted in the same rationale. Even as a more general rule, the return of back pay is incident to reinstatement and, indeed, is an integral part of that equitable remedy. See McFerren v. County Board of Education, 455 F.2d 199, 202-03 (6th Cir. 1972); Harkless v. Sweeney Independent School District, 427 F.2d 319, 323-24 (5th Cir. 1970), cert. denied, 400 U.S. 991 (1971); Smith v. Hampton Training School, 360 F.2d 577, 581 n.8 (4th Cir. 1966). And, in our opinion, the important constitutional remedies provided by §2 when a conviction is reversed or overturned should be construed in accordance with this concept of equity.3

In our view, Governor Mandel was entitled to be reinstated to his office because the action of the Fourth Circuit panel on January 11, 1979, served to "revers[e] or overtur[n]" his conviction within the meaning of Article XV, §2, regardless of what might happen afterwards. For a number of reasons, we concluded in January of 1979 that such a reversal occurs when the "judgment" of the court is entered, rather than when the mandate eventually issues or at some later point in time.4

First, although notions of finality play a role under §2 in determining when a "removal" occurs, the language of that constitutional provision does not suggest that finality is important when it comes to a "reversal". Thus, the fact that the United States Court of Appeals may subsequently entertain a petition for rehearing of the judgment (and thus stay its mandate) should not control the meaning of a "reversal" and the determination of whether a reversal has occurred.5

Second, because the time of judgment is the central factor in determining when a conviction has occurred under §2, see 62 Opinions of the Attorney General 365 (1977), consistency would dictate that the time of judgment in the appellate court similarly be the central factor in determining when a reversal has occurred.6

Finally and most importantly, one of the reasons that led us to conclude that "conviction" meant "judgment" or "sentence" was the rule of construction that the term be broadly construed when the imposition of disabilities is at stake. 62 Opinions of the Attorney General 365, 370 (1977). A similar, consistent, liberal rule of construction should operate when the lifting of those disabilities is concerned. Indeed, a strong public interest factor weighs in favor of that construction, namely, the desirability of a speedy restoration to office of those elected by the people, without the further uncertainty and delay that could be caused by petitions for rehearing, the staying of mandates, and petitions for certiorari. This is particularly so considering that, in common parlance, a reversal is considered to have occurred when the Court announces its judgment. Just as the law abhors an interregnum and favors the prompt filling of vacancies in an office, Benson v. Mellor, 152 Md. 481, 486-87 (1927), so, too, Article XV, §2 could be said to favor the return of an elected official to office, at the earliest possible time, upon a judicial determination that a prior conviction should be set aside.

For these reasons, we concluded (i) that, for purposes of Article XV, §2, a "reversal" occurred on January 11, 1979, at the time of the judgment of the appellate court, (ii) that Governor Mandel's suspension was therefore lifted on January 11, 1979, and (iii) that it was within his power to resume his office (as he then did).

As we indicated above, the payment of back pay should not stand on a different plane than the constitutional remedy of reinstatement. Both remedies go hand in hand.7 And both are triggered by a "reversal". Moreover, although the facts of the Mandel case are decidedly unique and present a genuine test of the sparse language of Article XV, §2, the reinstatement and back pay mandated here are no less justified than that which could occur under more "sympathetic" scenarios.

To construe §2 as requiring that the restoration of an elected officeholder to office await the formal issuance of a mandate would lead to anomalous results. For example, an official whose conviction is reversed on appeal (and returned to office pursuant to §2), yet who is later again found guilty of the same offense on retrial, is clearly not thereby divested of his or her prior entitlement to reinstatement and back pay. However, if an appellate court's decision to reverse a conviction is itself upset years later by the Supreme Court, thus affirming or restoring the conviction without the necessity of a retrial, does it make any sense to reach a different result and divest that official of back pay received during a period when, in the eyes of the law, he or she was innocent? We think not.

IV
Conclusion

In summary, it is our opinion that Article XV, §2 authorized payment to Governor Mandel of back pay as a result of the January 11, 1979, panel decision of the federal Court of Appeals, and the State does not now have a right to seek the return of the money thus paid because of subsequent developments restoring the conviction.

Stephen H. Sachs, Attorney General
George A. Nilson, Deputy Attorney General
Robert A. Zarnoch, Assistant Attorney General

1 An intermediate step was necessary before Governor Mandel could actually return to office. He had to revoke, in writing, a June 4, 1977, letter in which he had stepped aside as Governor on grounds of ill health and named Lieutenant Governor Blair Lee as Acting Governor. See Article II, §6 of the Maryland Constitution. The earlier letter was properly revoked in January of 1979, and Governor Mandel returned to office for the last two days of his term.

2 The timely filing of a motion for reconsideration automatically stays the issuance of the Court's mandate. Federal Rules of Appellate Procedure, Rule 41.

3 At common law, a public officer could not recover salary for the period of his or her wrongful suspension or removal, because that person had not actually rendered service. Mastrobattista v. Essex County Park Commission, 204 A.2d 601 (N.J. Super. 1964). The statutes authorizing equitable remedies in the cases cited above clearly abrogated this common law rule. A similar result, we believe, was intended by Article XV, §2.

4 Under the Federal Rules of Appellate Procedure, when the clerk of a United States Court of Appeals receives the Court's opinion and makes a notation of a judgment in the docket, a "judgment" is entered. Rule 36. Ordinarily, the mandate of the Court issues 21 days later. Rule 41. This mandate, which consists only of a certified copy of the judgment, a copy of the Court's opinion, and a direction as to costs, may be stayed automatically by the timely filing of a petition for rehearing within 14 days of judgment. Id. The mandate also may be stayed by the Court on motion pending an application for certiorari.

A mandate is the official mode of communicating the judgment of an appellate court to the lower court. Tierney v. Tierney, 290 So.2d 136 (Fla. Ct. App. 1974); 5 Am.Jur.2d Appeal and Error §989. Although a mandate is important for the purpose of reinvesting the lower court with jurisdiction over the case, 58 C.J.S. Appeal and Error §1959, its issuance is generally a ministerial act, Save the Trains Ass'n v. Chicago & N.W. Ry. Co., 95 N.W.2d 334 (Neb. 1959). In fact, the Supreme Court of Arkansas had held that a judgment of that court is in force despite the fact that no mandate has ever issued on it. Stroud v. Crow, 192 S.W.2d 548 (Ark. 1946); 58 C.J.S. Appeal and Error §1959. In essence, a mandate is more like an "execution" on a judgment than the "judgment" itself. Id.

5 In 1980, a proposed constitutional amendment was introduced (Senate Bill 37), which would have amended the last sentence of §2 to require reinstatement and back pay only when the reversal occurs "after a final disposition, from which no further appeal may be made". That bill, however, died.

6 One reason many state removal statutes do not allow a convicted official to remain in office pending appeal is the strong presumption of validity associated with a judgment of conviction. 62 Opinions of the Attorney General 365, 371 (1977). Certainly, on January 11, 1979, when the Fourth Circuit panel's opinion was announced, the judgment of conviction was removed as support for the Article XV, §2 suspension. See In re Echeles, 374 F.2d 780 (7th Cir. 1965).

7 See note 3 above and accompanying text. We believe that Article XV, §2 was intended to abrogate the harsh common law rule that a public officer who lost his or her office and salary as a result of a conviction could not recover either, even if the conviction were reversed. For a discussion of that common law rule, see Becker v. Green County, 184 N.W. 715 (Wis. 1922).