Letter to the Editor

On April 2, 2010 I appeared before the Nebraska Board of Pardons to petition for a full Pardon of a 1990 felony conviction. The board, which consists of the governor, the secretary of state and the state attorney general declined my appeal primarily based upon written statements in opposition from Webster County attorney Jerry McDole and Blue Hill city attorney Michelle Oldham. In 2004 when I registered to vote the voters oath, in small print at the bottom of the voters registration card read "To the best of my knowledge and belief (emphasis added) I declare under penalty of election falsification: I live in the state of Nebraska at the address stated above, I have not been convicted of a felony or if convicted, my civil rights have been restored and I have not been officially found to be non compos mentis (Mentally incompetent) Any registrant who signs this form knowing that any of the information on the form is false shall be guilty of a class IV felony under section 32-1502 of the Nebraska State Statutes. The penalty for such is up to 5 years imprisonment, a fine of up to $10,000.00 or both." Obviously, I was aware that I had been convicted of a felony, however, based upon a 1992 conversation with then Adams County Attorney, Stephen Scherr, I was under the impression, for the past 18 years, that my civil rights had been restored. Nebraska Revised Statute 29-2264 in 1992 provided: "(1) Whenever any person is placed on probation by a court and satisfactorily completes the conditions of his or her probation for the entire period or is discharged from probation prior to the termination of the period of probation, the sentencing court shall issue an order releasing the offender from probation, and such order shall in all felony cases restore the offender's civil rights. (2) Whenever any person is convicted of a misdemeanor or felony and is placed on probation by the court or is sentenced to a fine only, he or she may, after satisfactory fulfillment of the conditions of probation and after payment of any fine, petition the sentencing court to set aside the conviction ....(4) The court may grant the offender's petition and issue an order setting aside the conviction when in the opinion of the Court the order will be in the best interest of the offender and consistent with the public welfare. The order shall (a) Nullify the conviction, and (b) Remove all civil disabilities and disqualifications imposed as a result of the conviction." Although section (2) of the statute requires the offender to petition the court, at that time, I understood from the "shall" clause in section (1) and my conversation with Mr. Scherr that my rights would be automatically restored upon release from probation, and I have operated under that assumption for many years. This statute has been revised following the 2002 Nebraska Supreme Court case, State vs. Spady, in which the court held that the statute violated the separation of powers clause of the Nebraska State Constitution. From 1997 to 2004, I resided outside of the state of Nebraska, including an enlistment in the United States Army from 2000 to 2004 which included deployments to Bosnia and Iraq. When I completed my non-partisan candidate filing forms in both 2006 and 2010, I was still under the assumption that my civil rights, including the right to run for and hold public office had been restored. The affirmation on this form reads: "I HEREBY SWEAR THAT I WILL ABIDE BY THE LAWS OF THE STATE OF NEBRASKA REGARDING THE RESULTS OF THE PRIMARY AND GENERAL ELECTIONS, THAT I AM A REGISTERED VOTER AND QUALIFIED TO BE ELECTED, AND THAT I WILL SERVE IF ELECTED." I submitted an application to the board of pardons last fall, after I was declined professional certification. My intent was to attempt to remove the conviction from my criminal history report. I submitted my resignation from the city council to the municipal office on April 6, 2010. I apologize to the citizens of Blue Hill for any hardship or inconvenience that this incident may have caused them. Sincerely Jesse M. Alber