LITTLE ROCK — The state Democratic Party said Friday it will proceed with a lawsuit challenging the eligibility of a Democratic state House candidate whose felony conviction was vacated Wednesday by a judge’s order.
In January 2011, Fred Smith was found guilty in Chicot County Circuit Court of theft of property delivered by mistake and received a one-year suspended sentence — a conviction that the party alleges made him ineligible to run for public office in Arkansas.
On March 1, the last day of the political filing period, Smith filed to run as a Democrat for the District 50 House seat. The state Democratic Party filed a lawsuit on Tuesday seeking to remove his name from the ballot.
On Wednesday, Chicot County Circuit Judge Sam Pope ordered that Smith’s prosecution and conviction be dismissed because he had successfully complied with all the terms of his suspended imposition of sentence.
Party spokeswoman Candace Martin said Friday the party will go ahead with the suit.
“It’s still our opinion that he is ineligible (to run) since he was convicted at the time that he had filed,” she said.
Smith said Friday he will fight to stay on the ballot. He acknowledged that he made “mistakes” but said his record has been cleared and he is just asking for a fair race.
“I can’t see why the Democratic Party would want to go forward with this because I feel like the situation is now taken care of.” he said. “What are they holding me allowable for? I haven’t done anything to the Democratic Party.”
Smith said he suspected there was something “behind” the party’s lawsuit but he was not yet ready to say what that might be.
“I just feel that there’s something going on. I just want to find out what’s really behind the Democratic Party with it,” he said.
Martin said the suit is solely about Smith’s eligibility to run.
“This is just a matter of the law. Arkansas law is very clear in stating that a person who has been convicted of a felony is ineligible to run for public office,” she said.
State Sen. David Burnett, D-Osceola, a lawyer, has been representing Smith in his fight to clear his name. Burnett said Friday that in his view Smith was qualified to file for office on March 1.
“He did not have a felony on his record. He received a deferred judgment,” Burnett said. “It was a disposition order and not a judgment of conviction.”
Burnett, a former circuit judge, said he advised Smith against filing for office before the process was completed, but he believed Smith was within his legal rights to file.
“I think so, but that’s probably an issue that will be decided ultimately by the court and maybe even the Supreme Court: What is the effect of a deferred sentence?” he said.
Burnett said he was not aware of any similar legal cases. If the case does go to the state Supreme Court, it may be the first time the court has had to address the issue, he said.
Martin said the Democratic Party has asked for a hearing to be scheduled soon in the case because of looming deadlines to finalize, print and distribute ballots.
A former Harlem Globetrotter who lives in Crawfordsville, Smith is seeking the same House seat he was elected to in 2010 but resigned from early in the 2011 legislative session after being found guilty of felony theft.
Smith was charged after the Dermott School District issued duplicates of a $29,250 payment to a nonprofit organization he runs. Prosecutors said both payments were cashed.
Rep. Hudson Hallum, D-Marion, was elected to the District 50 seat after Smith resigned and has filed to run for re-election. No Republican has filed for the office.