This guest post summarizes the spate of cases and statutes on judicial record sealing. It is written by Priya Walia and Stephen JohnsonGrove.
Priya Walia is a rising 2L at the University of Cincinnati College of Law and is interning this summer at the Ohio Justice & Policy Center. Learn more about OJPC’s work at www.ohiojpc.org.
Stephen JohnsonGrove is a practicing attorney and deputy director of the Ohio Justice & Policy Center. In the spirit of full disclosure, Mr. JohnsonGrove is representing Marlon Pariag in the remand of that case from the Supreme Court of Ohio.
Guest Post on Judicial Record Sealing
On June 24, 2014, the Supreme Court of Ohio heard oral argument in State v. Radcliff, case nos. 2012-1985 and 2013-0004. This case was accepted on both certified conflict and discretionary appeal, and the cases were consolidated. The certified-conflict question is “[m]ay a trial court exercise jurisdiction to seal the record of a pardoned conviction where the petitioner has other offenses on his record?” The case was originally held for decision in State v. Boykin.
Radcliff is the latest in a recent string of cases related to criminal-record sealing. The key theme in this oral argument and in all these cases has been the power struggle between the judicial and legislative branch. Sometimes the court has ruled that trial courts have inherent, discretionary power over record sealing, while in other cases, the court requires that the power be expressly granted by statute.
Key Statutes and Precedent
Pepper Pike v. Doe, 66 Ohio St. 2d 374 (1981)
“…[A]bsent statutory authorization, trial courts in unusual and exceptional circumstances may expunge criminal records out of a concern for the preservation of the privacy interest.”
“…[T]he trial court should use a balancing test, which weighs the interest of the accused in his good name and right to be free from unwarranted punishment against the legitimate need of government to maintain records.”
State v. Pariag, 2013-Ohio-4010 (decided April 9, 2013)
“A trial court is precluded, pursuant to R.C. 2953.61, from sealing the record of a dismissed charge if the dismissed charge arises ‘as the result of or in connection with the same act’ that supports a conviction when the records of the conviction are not sealable under R.C. 2953.36…”
Schussheim v. Schussheim, 2013-Ohio-4529 (decided October 16, 2013)
“…[I]n accordance with Pepper Pike, we hold that a trial court has the inherent authority to grant an application to expunge and seal a record pertaining to a dissolved CPO in an adult proceeding when unusual and exceptional circumstances exist.” This was a civil case, decided by a vote of 4-3, in which an appellate judge sat for Justice Kennedy, who recused herself from the case.
In her dissent, Chief Justice O’Connor wrote: “Our democracy is not designed to permit four justices to heedlessly override the studied policy judgment of 129 legislators and one governor. Unfortunately, the majority fails to exercise the judicial restraint on which the design relies.”
State v. Boykin, 2013-Ohio-4582. (decided October 22, 2013)
This case was accepted on certified question and discretionary appeal. The issue was “whether a pardon automatically entitles the recipient to have his or her record of conviction of the pardoned offense sealed.” Short answer: No.
“[W]hile a pardon releases the offender from further punishment prescribed for the offense and removes certain disabilities consequent on the conviction, there is nothing in the Constitution, the Revised Code, or our case law that requires the sealing of a criminal record based on a pardon.”
“Although the sealing of a criminal record may complement a pardon, it is not an automatic right that flows from a pardon. ”
State v. Vanzandt, f.k.a. Terrell Asberry, argued May 27, 2014
Certified question: “May a trial court unseal the case of an acquitted defendant so the state can pursue prosecution in another case?”
As analyzed previously, the court is predicted to rule in favor of Vanzandt, requiring express statutory authority to unseal an acquittal.
These statutes set forth the requirements of eligibility for sealing a conviction. They were amended in 1984 in response to Pepper Pike, and recently amended again by S.B. 143 (2014), partly in response to Pariag.
These statutes set out eligibility requirements for sealing non-convictions.
“Any party to a judicial action or proceeding or other person who is the subject of information in a case document may, by written motion to the court, request that the court restrict public access to the information or, if necessary, the entire document.”
“…the court may restrict public access to the information in the case document or, if necessary, the entire document upon its own order.”
“A court shall restrict public access to information in a case document or, if necessary, the entire document, if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest after considering…[w]hether public policy is served by restricting public access…”
“The Governor shall have power, after conviction, to grant reprieves, commutations, and pardons… subject, however, to such regulations, as to the manner of applying for commutations and pardons, as may be prescribed by law.”
Ohio Senate Bill 143, signed into law on June 20, 2014, effective on September 19, 2014. Among other things, this bill amends R.C. 2953.31 and .61.
What’s been happening with criminal-record-sealing law lately?
The past year has seen a whirlwind of changes for criminal record sealing (or expungement) in Ohio. The first significant case was Pariag in April 2013, where a pro-se defendant had his record-sealing victory in the trial court reversed by the Supreme Court. The crux of that case was whether a dismissed drug charge could be sealed where the defendant pled guilty to a traffic charge that was filed under a separate case number but that happened at the same time (see R.C. 2953.61). Then, in October 2013, the court decided Boykin, where the issue was whether trial courts were required to seal a criminal case that had been pardoned by the Governor. In Schussheim, the court upheld and expanded Pepper Pike’s holding by applying the court’s inherent sealing power beyond the bounds of criminal records to a dissolved domestic-violence civil protection order. Vanzandt, heard in May 2014, will establish whether the court’s inherent sealing power extends to unsealing as well.
All of these cases implicate the tension between the court’s 1981 decision in Pepper Pike v. Doe and the legislature’s efforts to govern criminal-record sealing by statute. Pepper Pike established the court’s inherent authority to seal records when no statutory authority exists. Then in 1984, the Ohio General Assembly weighed in when it amended R.C. 2953.31. This statute set the eligibility requirements for sealing a conviction. For example, R.C. 2953.31 established waiting periods, restrictions based on type of offense, and restrictions on the number of offenses that may be sealed. S.B.143 slightly expands the list of eligibility requirements for record sealing. Additionally, under Boykin, a court is not under any obligation to automatically seal pardoned convictions. In other words, Boykin says it is the judiciary, not the executive, which calls the shots in criminal record sealing.
The Radcliff decision will determine whether it is the courts or the legislature which calls the shots. In some ways, the fact that Radcliff’s conviction was pardoned is a red herring here (as implied by Radcliff’s attorney in oral argument). The real issue here is whether legislated statutes or the “inherent powers of the judiciary” control which records are or are not sealed. According to Pepper Pike, a court may only use its authority to seal records when there is no statutory direction and the measure is taken in the interest of justice and under “unusual and exceptional” circumstances. The accepted balancing test, from Pepper Pike, requires the court to consider a person’s right to privacy weighed against the state’s compelling interest to maintain their records—all while accounting for these unusual and exceptional circumstances. The present issue in Radcliff is whether the court has the option to seal a pardoned conviction that would otherwise be statutorily ineligible for sealing. The main issue is who has the power when it comes to record sealing: the courts or the legislature.
Which branch of government is in control of criminal-record sealing? In Radcliff, the State is asking the court to read R.C. 2953.32 as restricting eligibility to only the situations expressly written into the statute. Radcliff argued that the legislature should not be able to actively hinder the governor’s ability to pardon an offender but, really, Radcliff’s position is centered on bolstering the court’s inherent power to seal its own records. Both parties agree that the governor’s pardon does not have the power to unilaterally seal a record. Accordingly, some would say the governor’s pardon power has been shrinking since Boykin.
Argument for Radcliff
Framing it as a separation of powers issue, Radcliff’s opening statement explained the matter as “whether or not a trial court has the inherent authority to seal records of a pardoned conviction.” Radcliff did not concentrate his attention on the “pardoned” part; instead, he focused the remainder of his argument on the “inherent authority” of the court. He argued that, when no statutory direction is given, a trial court may rely on its inherent authority to seal a criminal conviction. For example, the Supreme Court of Ohio has codified some of this “inherent power” in its own rules for lower courts: Rule 45(E) of the Ohio Rules of Superintendence allows a court to restrict public access to any court document, partially or completely to serve a public policy interest. Radcliff also quoted Federalist Paper No. 74 to emphasize that the power to seal a conviction, where there is no statutory direction, is the prerogative of the court. He argued a pardon is the type of “unusual and exceptional” circumstance envisioned by the court in Pepper Pike.
Article III, Section 11 of the Ohio Constitution gives the General Assembly the power to regulate the manner and procedure in which the governor grants pardons, but not the power to regulate the pardon itself. Radcliff framed this as a question of sequence: the legislature has the power to regulate up until the application is filed; after that the legislature may not dictate what a pardon is or does (see R.C. 2967.04). To put it simply, “the power to regulate is the power to destroy.” Radcliff’s argument is essentially that if the General Assembly restricts a court’s ability to expunge a conviction that the governor pardoned, the legislature would step on the toes of the Executive Branch. Radcliff successfully framed the issue as the State trying to take away the court’s inherent power to seal records.
Argument for The State
The State’s central argument was that Radcliff is ineligible to have his record sealed, regardless of a gubernatorial pardon, because his record could not be sealed under R.C. 2953.31. Here, the State strongly urged the court to view the entire area of record-sealing eligibility as essentially pre-empted by the General Assembly. In general, it is unusual to apply the concept of pre-emption to a separation of powers issue. In separation of powers cases, a disputed function is usually defined as always judicial or legislative; one branch of government does not get to trump the other by getting there first. Yet here, the State is implying that the legislature is allowed to pre-empt the judiciary.
The State distinguishes the Pepper Pike holding from the current issue of conviction records, arguing that Pepper Pike applied only to non-conviction records. Though the State conceded that pardons are numerically rare, the State disputed the notion that the present circumstances are so unusual or so exceptional as to outweigh the compelling state interest of maintaining the conviction records at issue. In addition, the State argued that Pepper Pike is superseded by statute, a position previously held by the 2nd District Court of Appeals in 1996 in Dayton v. Sheibenberger ( “…after that section [R.C. 2953.32] was amended in 1984, the Supreme Court seemed to recognize that Doe no longer would be controlling.” )
Furthermore, the State argued that pardons, due to their political nature, are so highly publicized, any privacy interests that Radcliff may have are irrelevant.
Where are we now?
The recent Supreme Court of Ohio rulings regarding judicial record sealing have one thing in common: they all enhance the power of the court. This trend may continue with the Vanzandt and Radcliff decisions. Currently, if the statute does not address eligibility issues, the court may exercise its discretion as to whether or not a record can be sealed.
Before the passage of SB 143, which becomes effective September 29, 2014, R.C. 2953.31 prevented a person from getting his or her record sealed if that person had two misdemeanors for the same offense. For example, if someone had two misdemeanor petty theft convictions, he or she would be ineligible for record sealing, but if he or she had one misdemeanor petty theft and one felony theft, he or she would remain eligible for criminal record sealing. SB 143 remedies this problem by granting these particular offenders the right to have their records sealed.
SB 143 also allows persons charged with multiple offenses stemming from the same act to apply for record sealing for the acquitted charged, even if one of those acts would otherwise make the individual ineligible. This appears to be in response to the ruling in State v. Pariag, in which the court held that a conviction record as a whole could not be sealed if one of the offenses is ineligible. In Pariag, the ineligible offense was a traffic offense. Two related offenses, arising out of that traffic offense, were dismissed drug charges that would have otherwise been eligible for sealing.
Radcliff provides a way for the judiciary to maintain its control of record sealing. The State conceded that sealing helps remove disabilities created by a record. And, it seems logical that record sealing and a pardon go hand-in-hand. While the Executive branch has no authority to impose procedural demands on the Judiciary, the Judiciary should at the very least have the opportunity to mend the disability caused by a record.