People v. HowardPeople v. Howard
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- Before:
- Fitzgerald
Lead
delivered the judgment of the court, with opinion.
Justices Freeman, Garman, Karmeier, and Burke concurred in the judgment and opinion.
Justice Thomas dissented, with opinion, joined by Justice Kilbride.
OPINION
Petitioners, Stanley Howard and Dana Holland, each received a gubernatorial pardon which specifically authorized expungement pursuant to section 5 of the
BACKGROUND
The Act allows eligible persons to petition for the ex-pungement of criminal records in various situations. See, e.g.,
“(c) Whenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement, he may, upon verified petition to the chief judge of the circuit where the person had been convicted, any judge of the circuit designated by the Chief Judge, or in counties of less than 3,000,000 inhabitants, the presiding trial judge at the defendant’s trial, may have a court order entered expunging the record of arrest from the official records ***.” (Emphases added.)20 ILCS 2630/5(c) (West 2004).
Petitions to expunge brought pursuant to subsections (a), (b), and (c) are subject to subsection (d) of the Act. Subsection (d) provides:
“(d) Notice of the petition for subsections (a), (b), and (c) shall be served upon the State’s Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government affecting the arrest. Unless the State’s Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to the petition within 30 days from the date of the notice, the court shall enter an order granting or denying the petition.”20 ILCS 2630/5(d) (West 2004).
Here, both petitioners received pardons in identical language. Each stated that the petitioner received a “Pardon Based Upon Innocence With Order Permitting Expungement Under The Provisions Of
In the Howard appeal, an appellate court majority reversed the circuit court’s denial of Howard’s petition for expungement. Howard, 372 Ill. App. 3d at 491. The appellate court struck the second “may” from the Act, ruling that the second “may” in subsection (c) was an obvious grammatical error. Howard, 372 Ill. App. 3d at 499. The court then reviewed the legislative history of the Act. Howard, 372 Ill. App. 3d at 499-505. The appellate court determined the Act provides for “automatic expungements” (Howard, 372 Ill. App. 3d at 504) and does not confer discretion upon the circuit court to deny a petition for expungement if an executive
In the Holland appeal, the appellate court majority held that the entry of an expungement order is not mandatory. Holland, 374 Ill. App. 3d at 127-28. The majority noted that subsection (d) of the Act clearly references subsections (a), (b), and (c). Holland, 374 Ill. App. 3d at 127. The appellate court majority held the circuit court retains discretion to deny an expungement request, despite the Governor’s authorization of expungement. Holland, 374 Ill. App. 3d at 127. The court remanded to the circuit court to consider the petition. Holland, 374 Ill. App. 3d at 128. Justice Neville dissented. Holland, 374 Ill. App. 3d at 128 (Neville, J., dissenting). He reasoned that section 5 of the Act does not give the circuit court discretion to deny a petition for expungement when the Governor has expressly authorized expungement. Holland, 374 Ill. App. 3d at 128-29 (Neville, J., dissenting).
We allowed petitions for leave to appeal filed by Howard and Holland (210 Ill. 2d R. 315) and consolidated for decision. The issues raised are matters of statutory construction and a question of law; therefore, our review is de novo. People v. Perry, 224 Ill. 2d 312, 324 (2007).
ANALYSIS
The power of the Governor to grant a pardon is found in the Illinois Constitution. Ill. Const. 1970, art. V, § 12. Article V provides that “[t]he Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper. The manner of applying therefore may be regulated by law.” Ill. Const. 1970, art. Y, § 12.
The power to grant or deny a petition for expungement is found in statutes created by the legislature. People v. Bushnell, 101 Ill. 2d 261, 268 (1984). Just as a gubernatorial pardon alone does not entitle a petitioner to expungement (People v. Glisson, 69 Ill. 2d 502, 506 (1978)), without appropriate legislation, a court is without authority to expunge a record of conviction (Bushnell, 101 Ill. 2d at 268). Therefore, as the appellate court in Holland aptly stated, “[t]he question to be resolved *** is not whether the Governor properly granted the pardon pursuant to the constitution, but the effect of the order ‘permitting expungement under the provisions of
In construing a statute, this court’s primary objective is to ascertain
Petitioners argue that the pardons issued by the Governors satisfy the criteria for expungement set out in section (c) such that expungement of their records should be automatic. They argue that subsection (c) is the only relevant section to be considered. A circuit court, according to petitioners, has no discretion to deny an expungement petition properly filed pursuant to a gubernatorial pardon specifically authorizing expungement. Respondent contends that the Act grants the circuit court discretion to deny petitions for expungement under subsection (c), as its language is permissive, not mandatory. Subsection (d) provides an explicit basis for the court’s discretion. Therefore, the circuit court has discretion to grant or deny a petition for expungement even when the Governor’s pardon specifically authorizes expungement.
Preliminarily, we address subsection (c)’s redundant use of the word “may.” The cardinal rule of statutory construction is to effectuate the intent of the legislature. People v. Garrison, 82 Ill. 2d 444, 455 (1980). To achieve that goal, a court may alter, supply, or modify words and correct obvious mistakes. Garrison, 82 Ill. 2d at 455. We agree with the appellate court’s statements in Howard and Holland that the second “may” must be struck from the statute as an obvious grammatical error. Holland, 374 Ill. App. 3d at 124, 127; Howard, 372 Ill. App. 3d at 499, 502. It is clear that, grammatically, subsection (c) contains a superfluous “may,” because the second “may” is not attached to a subject noun or clause. With this in mind, we consider whether the Act confers discretion upon the court to deny a petition to expunge brought under section (5)(c) of the Act.
We note that the conditional nature of the statute begins with the language directed at the Governor. The expungement of the record of the pardoned individual is permissive because the Act applies only when the Governor “specifically authorizes” an expungement.
The use of the term “may” in the statute also is permissive as to the petitioner and merely allows the petitioner to act. Whichever of the “may” terms is stricken, it is apparent that both “may” terms refer to the petitioner and not the judge to whom the petition is directed. As the appellate court in Holland stated, “the language of that section remains general and does not actively direct the trial court to
Language directing the trial court to act is found in subsection (d). Subsection (d) sets out the procedure for petitions filed pursuant to subsections (a), (b), or (c).
We note that had the legislature chosen to make ex-pungement mandatory, it could have done so. This is demonstrated by section (c — 6) of the Act, which concerns convictions set aside on direct review or collateral attack. It states, “If a conviction has been set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the defendant was factually innocent of the charge, the court shall enter an expungement order as provided in subsection (b) of Section 5 — 5—4 of the Unified Code of Corrections.” (Emphasis added.)
“If a conviction or sentence has been set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the defendant was factually innocent of the charge, the court shall enter an order expunging the record of arrest from the official records of the arresting authority and order that the records of the clerk of the circuit court and Department of State Police be sealed until further order of the court upon good cause shown or as otherwise provided herein, and the name of the defendant obliterated from the official index requested to be kept by the circuit court clerk under Section 16 of the Clerks of Courts Act in connection with the arrest and conviction for the offense but the order shall not affect any index issued by the circuit court clerk before the entry of the order.” (Emphasis added.)730 ILCS 5/5 — 5—4(b) (West 2004).
The language of these sections lacks any reference to the ability of a trial court to “deny” such a petition. Rather, a court “shall” enter an order expunging a record if the terms of the statute are met. The legislature’s use of the phrase “the court shall enter an order” instead of “may *** have a court order entered” and “shall enter an order granting or denying”
Subsection (d)’s additional phrasing — allowing for the State’s Attorney and other statutorily authorized government agencies to object to the expungement of arrest records of pardoned persons — indicates the circuit court has discretion to grant or deny expungement. If the circuit court did not have discretion, there would be little purpose in allowing the prosecuting authority to object. The Act also provides that even if the State’s Attorney or other authority does not object, the court may still “grant or deny” the petition.
This outcome also dovetails with the Governors’ use of specific language in their pardons. In pardoning Howard, then-Governor Ryan said, “With Order Permitting Ex-pungement Under The Provisions Of
In 1984, Stanley Howard was convicted of murder and attempted armed robbery. The trial court sentenced Howard to 15 years’ imprisonment for the armed robbery. Howard was sentenced to death for the murder conviction. The conviction and sentences were affirmed on appeal. People v. Howard, 147 Ill. 2d 103 (1991). In 2003, Governor George H. Ryan commuted Howard’s death sentence and pardoned him “Based On Innocence *** With Order Permitting Expungement Under The Provisions of
Here, having ruled that the court had discretion, we note that petitioner Howard is not arguing that the circuit court abused its discretion in denying the petition. We therefore reverse the judgment of the appellate court in Howard.
Prior to addressing the merits of Holland’s appeal, we consider Holland’s motion, ordered taken with the case, seeking to strike portions of the State’s brief. The record reveals that in 1993, Dana Holland was convicted of three counts of aggravated criminal sexual assault and sentenced to three consecutive terms of 30 years’ imprisonment. Holland was also convicted of attempted murder and armed robbery and sentenced to 28 years’ imprisonment to run consecutively to his aggregate 90 years’ imprisonment for the aggravated criminal sexual assault convictions. All convictions were affirmed on appeal. Ten years later, in 2003, the circuit court vacated Holland’s convictions of aggravated criminal sexual assault when DNA test results exonerated Holland of the crimes. Holland was granted a new trial and ultimately
The State’s brief contends that even though Holland was declared innocent by the Governor, he is still a menace to society and expungement will jeopardize public safety. In the alternative, Holland asks that we grant him leave to file an affidavit showing he is not a menace to society. Holland does not cite to any violations of our supreme court rules as the basis for striking a portion of the State’s brief. Rather, Holland merely complains that statements made in the State’s brief are not in the record or based in fact and are “unfairly insulting to Mr. Holland.”
The State objects to striking the statement because it is argument supported by Holland’s prior conviction of armed robbery, a violent felony. The State refers to statements in Holland’s affidavit to support its argument, but makes no argument on whether we should allow Holland leave to file the affidavit.
This court has recognized that striking a portion of an appellate brief “ ‘is a harsh sanction,’ ” appropriate only if a violation of our procedural rules interferes with or precludes our review. In re Detention of Powell, 217 Ill. 2d 123, 132 (2005), quoting Moomaw v. Mentor H/S, Inc., 313 Ill. App. 3d 1031, 1035 (2000). Here, the statement was included to support the State’s argument that public safety reasons require judges to exercise discretion in denying petitions for expungement. The statement neither hinders nor precludes our review. Further, Holland’s prior conviction for armed robbery is in the record in a certified statement of conviction. The State’s argument is, therefore, supported by the record. Holland’s motion to strike is therefore denied. We also deny Holland’s alternative motion to file an affidavit claiming he is not a menace to society.
Turning to Holland’s petition, the appellate court majority determined the circuit court erroneously denied Holland’s petitions for expungement based solely on a belief that it had no discretion to grant the petitions because of Holland’s prior 1986 conviction. Holland, 374 Ill. App. 3d 121. The circuit court erroneously denied the petition under subsection (a) of the Act, which permits expungements after acquittal or release without conviction where petitioner does not have a prior conviction. The majority then acknowledged that remand for further proceedings was necessary because of the circuit court’s erroneous denial of the petitions under the wrong section of the Act. Holland, 374 Ill. App. 3d at 125. We agree with the appellate court that Holland’s case should be remanded for the circuit court to exercise its discretion. The record does not demonstrate that the State made an objection below. Therefore, we agree with the appellate court that the “State has waived any objection and the trial court must grant or deny the petition based on the petition and record of this case.” Petitioner and the State make no argument otherwise to this court.
CONCLUSION
In Howard, we reverse the judgment of the appellate court. In Holland, we affirm
No. 104608 — Reversed.
No. 105022 — Affirmed and remanded.
Dissenting Opinion
dissenting:
I cannot join the majority opinion, which is directly contrary both to the plain language of the statute and to obvious legislative intent. According to the majority, Holland “aptly stated” that the question to be resolved is the effect of the Governor’s pardon “ ‘permitting ex-pungement under the provisions of
Before explaining why the majority opinion is flawed, I will briefly note the parts of the majority opinion with which I agree. The majority correctly sets forth the standard of review and the applicable canons of statutory construction. Thus, I agree with the majority that the language of the statute given its plain and ordinary meaning is the surest indicator of the legislature’s intent, and that we must consider the statute in its entirety and keep in mind the subject it addresses and the legislature’s intent in enacting it. 233 Ill. 2d at 218. One principle that I would add to those listed by the majority is that we must presume that the General Assembly did not intend absurdity, injustice or inconvenience. People v. Palmer, 218 Ill. 2d 148, 156 (2006). I further agree with the majority’s conclusion that the second “may” in
“May Have a Court Order Entered”
The question before the court turns on the meaning of statutory language providing that, if a petitioner meets certain requirements, he “may have a court order entered expunging the record of arrest.” I believe that the statute means exactly what it says. The majority disagrees, concluding that the meaning of the above language is not what it says, but rather that, if a defendant meets the statutory requirements, he may seek to have a court order entered expunging the record of arrest.
There are at least three improper ways, each of which involves defining words incorrectly, violating grammatical rules, or both. If there is a valid way, no one has yet made that argument. The three improper ways are: (1) the State’s position that both “mays” in the statute must be given effect, with one referring to the petitioner and one referring to the trial court; (2) the dissent’s position in Howard, which was to use the wrong definition of the word “may” (see Howard, 372 Ill. App. 3d at 509 (Fitzgerald Smith, EJ., dissenting)); and (3) the majority’s hybrid of the above two approaches, which is to first state that there is only one “may” in the statute, but then to conclude that there are actually two “mays,” each with a different definition (233 Ill. 2d at 219-20). Let us consider each of these positions in turn.
We need not dwell on the State’s argument because the majority correctly rejects it. The second “may” in the statute is redundant and is an obvious grammatical mistake. It cannot be read as referring to the trial court because, as Howard correctly stated, “[cjourts ‘enter’ orders; they are the actors; they do not ‘have’ another actor enter an order for them.” Howard, 372 Ill. App. 3d at 498. Accordingly, there is only one “may” in the statute, and it refers not to the circuit court but to the petitioner. 233 Ill. 2d at 220. So far so good.
Next, let us consider the dissent in Howard, which was later adopted by the majority in Holland (see Holland, 374 Ill. App. 3d at 127 (“we must respectfully disagree with the majority in Howard and agree with the dissent by Justice Fitzgerald Smith in that case”)). The dissent in Howard concluded that the phrase “may have a court order entered” grants discretion to the trial court because the definition of “may” is “ ‘possibility, probability or contingency,’ ” while the definition of “shall” is “ ‘a word of command’ and is ‘imperative or mandatory.’ ” Howard, 372 Ill. App. 3d at 509 (Fitzgerald Smith, P.J., dissenting), quoting Black’s Law Dictionary 883, 1233 (5th ed. 1979). The Howard dissent then stated that the difference between “may” and “shall” is “undeniable.” Howard, 372 Ill. App. 3d at 509 (Fitzgerald Smith, EJ., dissenting). Accordingly, the Howard dissent concluded that, had the legislature intended to require courts to grant proper petitions under this subsection, it would have used the phrase “shall have an order entered,” which “would clearly indicate the mandate the majority wants to impose here.” Howard, 372 Ill. App. 3d at 509 (Fitzgerald Smith, EJ., dissenting). However, because the legislature used the word “may,” which means “possibility,” all the legislature was saying was that the defendant may have a court order entered — if he is successful. Howard, 372 Ill. App. 3d at 510 (Fitzgerald Smith, EJ., dissenting).
Beginning with an incorrect premise often leads to the wrong conclusion, and I fear that this is what happened with the Howard dissent. Although it is correct that one meaning of “may” is possibility, another is permission. See Black’s Law Dictionary 1000 (8th ed. 2004) (defining “may” as “1. To be permitted to *** 2. To be a possibility”); see also Webster’s New World Dictionary 373 (1983) (defining “may” as “an auxiliary expressing 1. possibility [it may rain]; 2. permission [you
Clearly, the legislature did not use the term “may” to mean “possibility,” but rather “permission.” Moreover, it is obvious that the legislature does have an opinion on this matter. In other words, the statute clearly means that if a petitioner receives a pardon that specifically authorizes expungement, and ¿/the petitioner establishes this in a verified petition in the circuit court, then he has permission to have a court order entered expunging the record of arrest. This is entirely a matter of statute, and the legislature has given a petitioner express permission to have an expungement order entered if he meets the statutory requirements. This is not a grant of permission to seek to have a court order entered or to request that a court order be entered; it is a grant of permission to have a court order entered. Thus, the majority is flat out wrong when it states that the legislature’s use of the term “may” “merely allows the petitioner to act.” 233 Ill. 2d at 219. The legislature has not simply given the petitioner permission to act; it has given the petitioner permission to have a court order entered if he meets the statutory requirements. The majority is similarly mistaken when it states that subsection (c) does not require the entry of an order. 233 Ill. 2d at 220. If the legislature grants someone express permission to have an order entered if he meets certain requirements, then the trial court must enter that order if the requirements are met.
Another problem with the Howard dissent is its assertion that, had the legislature intended to deny the court discretion to deny proper petitions under the Act, it would have used the phrase “shall have an order entered.” Howard, 372 Ill. App. 3d at 509 (Fitzgerald Smith, EJ., dissenting). The problem with this position is that, if the statute used that phrase, it would mean that the petitioner was required to have an expungement order entered. Obviously, the legislature did not intend to require any such thing. Rather, it gives a petitioner permission to have a court order entered if he so chooses.
The majority reaches its determination that
The Meaning of Subsection (d)
According to the majority, subsection (d) grants the trial court full discretion to deny proper petitions under the Act because it provides that a trial court “shall enter an order granting or denying the petition.” See
The majority contends that the petitioners’ argument would render the “grant or deny” language of subsection (d) mere surplusage. 233 Ill. 2d at 220. Nothing could be further from the truth, and the majority is able to make this claim only because it never sets forth the petitioners’ argument with respect to subsection (d). The petitioners’ argument is not that the trial court has to grant every petition that comes before it, or that “subsection (c) is the only relevant subsection to be considered” (233 Ill. 2d at 218), but that subsections (c) and (d) must be read together, and that the grounds for the State to object to a subsection (c) petition and for the trial court to deny a subsection (c) petition are limited to a failure to satisfy the requirements of subsection (c). The requirements of subsection (c) are: (1) the Governor must pardon the petitioner; (2) the pardon must specifically authorize expungement; and (3) the petitioner must file a proper verified petition in the circuit court.
Subsection (d) applies to petitions filed under subsections (a), (b), and (c) — three different provisions with different language, different requirements, and different levels of discretion. Petitioners correctly argue that the “grant or deny” language of subsection (d) must be read in conjunction with the substantive requirements of each of these subsections. As we will see, subsection (a), unlike subsection (c), grants broad discretion to the circuit court, so the grounds upon which the circuit court may deny a subsection (a) petition are much broader than those under subsection (c). As Howard correctly stated, “[i]t is entirely logical that the grounds for objection, ceded to the prosecutor under subsection 5(d), be different for those who seek expungement under subsection 5(c) than for
In fairness to the majority, it should be noted that its construction of subsection (d) is not inconsistent with its construction of subsection (c). If one views subsection (c) as merely describing possible things that might happen, it is not illogical to view subsection (d) as granting complete discretion to the trial court to deny petitions that satisfy the statutory requirements. When subsection (c) is properly construed as a grant of permission to have a court order entered if the petitioner meets the statutory requirements, however, then it is clear that subsection (d)’s use of the word “deny” refers only to the ability to deny a petition that fails to meet the statutory requirements. The dispute is merely over the breadth of the word “deny.” In neither instance is the phrase “grant or deny” rendered mere surplusage.2
Subsections (a) and (b)
As the majority notes, two other subsections of section 5 are subject to the notice requirements of subsection (d). 233 Ill. 2d at 220. A consideration of the language of these two subsections illuminates the legislature’s intent in subsection (c) and also shows why subsection (d) must be read in conjunction with the substantive requirements of each respective subsection. Subsection (a) deals with first offenders who are acquitted or otherwise released without being convicted. In this subsection, the legislature provided that the trial court “may upon verified petition of the defendant order the record of arrest expunged.”
As petitioner Howard points out, at the time the legislature enacted subsection (c), the courts had already construed subsection (a) as granting discretion to trial courts to deny petitions brought under that subsection, yet the legislature chose not to use the same language it used in subsection (a). In other words, the legislature very easily could have tracked the language of subsection (a) and drafted subsection (c) to provide as follows: The legislature did not do this, instead providing that, if a petitioner meets the statutory requirements, he may have an expungement order entered. Under settled rules of statutory construction, we presume that the legislature intended a different meaning by using different language in subsections (a) and (c). See People v. Hudson, 228 Ill. 2d 181, 193 (2008) (when the legislature uses certain language in one part of statute and different language in another, court may assume different meanings were intended).
“Whenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement, the chief judge of the circuit where the person had been convicted, any judge of the circuit designated by the Chief Judge, or in counties of less than 3,000,000 inhabitants, the presiding judge at the defendant’s trial, may upon verified petition of the defendant order the record of arrest expunged from the official records of the arresting authority and order that the records of the clerk of the circuit court and the Department be sealed until further order . . . .”
Let us now turn our attention to subsection (b), which covers a situation in which any assertion of trial court discretion to deny petitions that meet statutory requirements is highly dubious. Subsection (b) concerns the right of victims of identity theft to correct the official records when the identity thief commits crimes in the victim’s name. As with subsections (a) and (c), subsection (b) is subject to the notice provisions of subsection (d). Here is the language that the legislature used in subsection (b):
“Whenever a person has been convicted of a crime or of the violation of a municipal ordinance, in the name of a person whose identity he has stolen or otherwise come into possession of, the aggrieved person from whom the identity was stolen or otherwise obtained without authorization, upon learning of the person having been arrested using his identity, may, upon verified petition to the chief judge of the circuit wherein the arrest was made, have a court order entered nunc pro tunc by the chief judge to correct the arrest record, conviction record, if any, and all official records of the arresting authority, the Department, other criminal justice agencies, the prosecutor, and the trial court concerning such arrest, if any, by removing his name from all such records in connection with the arrest and conviction, if any, and by inserting in the records the name of the offender, if known or ascertainable, in lieu of the aggrieved’s name.” (Emphasis added.)20 ILCS 2630/5(b) (West 2006).
Here, as in subsection (c), the legislature used the “may have a court order entered” language instead of subsection (a)’s language that the trial court “may *** order the record of arrest expunged.” Consequently,
I do not think that this point can be glossed over as quickly as the majority wants it to be, and if we consider it further, I think we gain clear insight into the meaning of the phrase “may have a court order entered.” So there can be no mistake: a majority of the Illinois Supreme Court has today explicitly stated that trial courts have broad discretion to deny victims of identity theft the right to have the official records corrected when identity thieves commit crimes in their name. If my colleagues truly believe this, can they give some examples of when it would be appropriate for a trial court to deny a proper petition under this susbsection? I can think of no circumstances under which it would be appropriate for a trial court to place such a crippling burden on an innocent victim and to grant such an unjustified benefit to a criminal. And if there are no such examples, is that perhaps a strong indication that the legislature did not intend to grant such discretion? I believe that, as with subsection (c), the State’s right to object and the trial court’s right to deny a petition filed under this subsection is limited to a failure to satisfy the statutory requirements. Thus, unless the petition is not verified or unless the petition fails to establish that the crimes actually were committed by another person, the trial court must grant the petition.
The Holland majority held that the factors that courts have adopted to guide trial court discretion under subsection (a) should also apply to the consideration of petitions filed under subsection (c). Holland, 374 Ill. App. 3d at 128. We should thus assume that courts will also apply these factors to petitions filed under subsection (b). Those factors are: “the strength of the State’s case against petitioner; the State’s reasons for wishing to retain the records; petitioner’s age, criminal record and employment history; the length of time between the arrest and expungement petition; and the adverse consequences the petitioner may suffer if expungement is not granted.” Holland, 374 Ill. App. 3d at 128. Does it make any sense to consider these factors when we are talking about the right to have official records reflect the name of the person who actually committed a crime? If A steals B’s identity and commits a crime in B’s name, and B goes to court to exercise his statutory right to have the official records corrected, is the trial court really entitled to mull over B’s age and employment history when deciding whether to order the records corrected to show that A committed the crime? At that point would we have reached absurdity, injustice, or inconvenience? See Palmer, 218 Ill. 2d at 156. This is the path that the majority has set us on, and I think that it is as clear an indication as anything that this court is simply not reading the phrase “may have a court order entered” correctly.
Considering subsection (c) together with subsections (a) and (b) leaves no doubt that the legislature did not intend to grant trial courts the discretion to deny petitions that meet the statutory requirements of subsection (c). Rather than use the discretionary language of subsection (a), the legislature used the same language that it used when dealing with the right of factually innocent victims of identity theft to have official records corrected to show the name of the person who actually committed the crime. The right of a trial court to deny a petition under subsections (b) and (c) is clearly limited to those cases in which the statutory requirements are not met.
Subsection (c — 6) and
The majority compares subsection (c) with subsection (c — 6) of the Act and
The wording the legislature chose makes perfect sense when the procedural postures of the cases are concerned. Subsection (c — 6) and
Language of the Pardons
The majority finds significance in the wording that the former Governors used in the orders pardoning Howard and Holland. These orders both used the phrase, “Grant Pardon Based Upon Innocence With Order Permitting Expungement Under The Provisions Of
Legislative History
Because I believe that the statutory language, given its plain and ordinary meaning, settles the question before the court, I do not believe that reliance on legislative history is necessary. That said, because the majority reaches the wrong result, and because no panel of judges has been able to agree on the proper interpretation of this statute, I would briefly point out that the legislative history supports the petitioners’ construction. Because the Howard opinion contains a thorough and compelling analysis of the legislative history, I would refer the reader to that discussion (see Howard, 372 Ill. App. 3d at 499-505), and I see no need to go over all of those points in detail in this dissent. In short, the version of subsection (c) originally proposed by the legislature did not contain the clause “which specifically authorizes expungement.” Thus, the original version would have allowed anyone who had received a gubernatorial pardon to have an ex-pungement order entered. Former Governor Edgar believed that the statute was too broad and responded with an amendatory veto, noting that pardons were sometimes granted for limited purposes such as to allow someone to obtain a particular license, with the express understanding that there would be no expungement. Former Governor Edgar did not believe that it would be fair for such pardonees to have their records expunged, and thus recommended that the statute be amended to provide for expungement only when specifically authorized by the Governor. Journal of the Illinois House of Representatives, 87th Ill. Gen. Assem., November 5, 1992, at 9105-08. In proposing a legislative override, Representative Lang explained that the Governor’s version was not what he had in mind because he did not want people who had already received pardons to have to go back and seek gubernatorial authorization, and that the original bill would have allowed someone who had received a pardon to “go right into court and get his records expunged.” 87th Ill. Gen. Assem., House Proceedings, November 19, 1992, at 64-65 (statements of Representative Lang). Speaking in opposition to the legislative override, Representative Black believed that former Governor Edgar’s amendatory veto was wise because otherwise “any individual who gets a pardon would have his records expunged, and the Governor is simply saying, those records should not be expunged in every case.” 87th Ill. Gen. Assem., House Proceedings, November 19, 1992, at 65-66 (statements of Representative
Conclusion
The majority opinion is directly contrary to the plain language of the statute and to obvious legislative intent. Statutory language stating that a person “may have a court order entered” if he meets certain requirements does not vest the circuit court with discretion to deny petitions that comply with the statute. That this is the legislature’s intent with respect to subsection (c) is confirmed when it is compared with other subsections of section 5 and with
JUSTICE KILBRIDE joins in this dissent.
Notes
After so concluding, however, I would not put the second “may” back in the statute a mere two paragraphs later. See 233 Ill. 2d at 219-20.
It is worth noting that, even if petitioners were arguing that trial courts had to grant every subsection (c) petition placed in front of them, that still would not render the “grant or deny” language mere surplusage, as section (d) applies to subsections (a), (b), and (c), and there is no dispute that trial courts have complete discretion to deny subsection (a) petitions.