People v. Howard

(No. 104608.

(No. 105022. ILLINOIS, THE PEOPLE OF THE STATE OF Appel HOWARD, lant, Appellee. v. STANLEY — THE ILLINOIS, OF THE STATE OF PEOPLE Appel lee, HOLLAND, v. DANA Appellant. 26,

Opinion Rehearing May March denied 2009. filed 2009. General, of Madigan, Attorney Springfield, Lisa (James Devine, Attorney, Chicago Richard A. State’s of Quinlivan E. Marie Czech and Alan J. Fitzgerald, Spell- counsel), Assistant State’s of for the berg, Attorneys, People. Daniel, Chicago,

Karen L. of and Meredith N. Baron Terman, students, Hol- appellant and Sarah F. law for land. and Kurt Loevy, Loevy,

Arthur Jon Russell Ainsworth Feuer, of Howard. Loevy Loevy, Chicago, appellee & delivered the judg-

CHIEF JUSTICE FITZGERALD court, opinion. ment of the Freeman, Garman, Karmeier, and Burke Justices opinion. concurred in the judgment dissented, joined by with opinion, Justice Thomas Justice Kilbride.

OPINION Holland, each Petitioners, Howard and Dana Stanley specifically which received a gubernatorial 5 of the to section pursuant authorized (Act) (20 (West Identification Act ILCS Criminal 2630/5 2004)). the Act in this case is whether central issue deny petition upon to the court confers discretion brought expunge the Act. After the section under County petitions, denied their circuit court of Cook disagreed panels appellate separate as to the petitions. ability their of the circuit court App. Holland, 3d 490; 374 Ill. 3d (210 appeal petitions for leave to 121. allowed both We 315) the causes for decision. Ill. 2d R. and consolidated following that the Act reasons, we determine For the deny the discretion to vests a trial court with petitions.

BACKGROUND eligible persons for the ex- The Act allows pungement See, of criminal records various situations. (c 6) (West 2004) 2630/5(a), (b), (c), e.g., 20 ILCS — (permitting expungement acquittal after an or release conviction; without a if a is made in the name conviction wrong person; upon pardon; of a and when set aside on attack). direct review or collateral At issue is subsection (c), provides: which

“(c) person a who has been convicted of an Whenever by granted pardon specifi- offense is the Governor which cally expungement, may, upon peti- authorizes verified he judge tion to the chief of the circuit where the person had convicted, any judge designated been of the circuit 3,000,000 Judge, Chief or in counties of less than inhabit- ants, trial, may presiding judge trial at the defendant’s expunging have a order court entered record of arrest added.) (Emphases from the official records ***.” 20 ILCS 2630/5(c) (West 2004). expunge brought pursuant

Petitions to to subsections (c) (d) (a), (b), subject and are to subsection of the Act. (d) provides: Subsection

“(d) (a), (b), and petition Notice of the for subsections (c) Attorney or upon prosecutor shall be served the State’s offense, duty charged prosecuting Department Police, of State arresting agency and the legal chief officer of the government affecting unit of local Attorney the arrest. Unless prosecutor, the State’s Police, Department of State the arresting agency or such legal objects chief officer petition days within 30 notice, from the date of the the court shall enter an order 2630/5(d) (West granting or denying petition.” 20 ILCS 2004).

Here, petitioners both pardons received identical Each language. stated that the petitioner received a “Pardon Upon Based Innocence With Order Permitting Expungement Under The Provisions Of 20 ILCS 2630/ 5.” Both Howard and Holland filed petitions expunge- for (c) ment under subsection of the Act. The circuit court denied both petitioners appealed those deni- als. the Howard

In appeal, court appellate reversed the circuit court’s denial petition of Howard’s Howard, for Ill. expungement. App. 3d at 491. The Act, court struck the appellate “may” second from the (c) ruling that second in subsection was an “may” Howard, obvious error. grammatical 372 Ill. 3d at App. The 499. court then reviewed the legislative history Howard, the Act. 372 Ill. 3d at App. appel 499-505. late court determined the Act for “automatic provides 504) (Howard, expungements” 372 Ill. 3d at App. does not confer discretion the circuit upon if an executive 507). (Howard, authorizes it Ill. The court App. 3d at remanded for entry expunging of an order the record of Howard, App. defendant’s arrest. 372 Ill. 3d at 507. Howard, App. Justice Smith dissented. 372 Ill. Fitzgerald Smith, EJ., He (Fitzgerald dissenting). agreed 3d at 507 “may” the second in section was a mistake. Smith, EJ., (Fitzgerald 3d at 508 He on to reason that dissenting). permissive went does language of the Act “authorizes” but expungement 217 Rather, court retains the discre not mandate it. trial (d) petition. under or grant deny tion Smith, RJ., App. 372 3d at 514 (Fitzgerald Ill. dissenting).

In the appeal, appellate majority Holland court entry held of an order is not expungement Holland, mandatory. App. 374 3d at The Ill. 127-28. (d) majority clearly noted that of the Act refer (c). (a), (b), Holland, App. ences subsections Ill. 374 3d at 127. appellate The held the circuit request, court retains discretion to deny expungement despite the Governor’s authorization of expungement. Holland, App. 3d at The court remanded to 127. Holland, the circuit court consider petition. 374 App. Ill. 3d at 128. Holland, Justice dissented. Neville (Neville, J., Ill. at App. 3d dissenting). He reasoned that section 5 of the Act does not the circuit give deny court discretion to a for petition when the Governor has authorized expressly expungement. Holland, 374 Ill. 3d (Neville, J., at 128-29 dissent ing).

We allowed petitions for leave to filed appeal (210 315) Howard and Holland R. Ill. 2d and consolidated for decision. The issues raised are matters of statutory construction a question law; therefore, review our (2007). is de novo. v. People 312, 224 Ill. 2d Perry,

ANALYSIS

The power of the grant Governor to is found in the 1970, V, Illinois Constitution. Const. §12. Ill. art. provides Article V may grant Governor “[t]he reprieves, conviction, commutations and after pardons, all for offenses on such terms he proper. as thinks may manner of applying regulated by therefore be law.” Y, Const. §12. Ill. art.

The power expunge- ment found in statutes created by legislature.

218 (1984). 2d Bushnell, 261, v. 101 Ill. 268 Just as a People pardon alone does entitle a gubernatorial not Glisson, 502, v. 69 Ill. 2d 506 expungement (People to (1978)), a court is appropriate legislation, without of expunge to a record conviction authority without 268). (Bushnell, Therefore, as the appellate 101 Ill. 2d at stated, in to be aptly question “[t]he court Holland *** whether the Governor properly resolved is not constitution, the to the pardon pursuant the but granted the under the ‘permitting effect of order expungement ” Holland, 20 3d of provisions ILCS 2630/5.’ at 125. statute, objective this primary

In court’s construing intent, effect legislative to ascertain give and indicator which is statu surest and most rehable of ordinary itself, given plain its mean tory language determining plain 224 2d at 323. In ing. Perry, Ill. terms, this will consider the meaning statutory of subject it ad entirety, keeping in its mind statute dresses and the intent apparent Ill. 2d at enacting language it. 323. Where Perry, this court must unambiguous, of the statute is clear written, resort to further aids statu it as without apply 224 Ill. 2d at 223. tory Perry, construction. issued argue pardons

Petitioners for set out in expungement the criteria satisfy Governors records of their should expungement section such that (c) is only They argue automatic. be court, accord- considered. A circuit relevant section to be an deny expunge- has no discretion to ing petitioners, pursuant gubernatorial filed to a ment petition properly authorizing expungement. Respon- specifically circuit court discre- grants contends that the Act dent under deny petitions expungement for tion mandatory. not Subsec- (c), permissive, as its (d) the court’s discre- basis for provides explicit tion Therefore, tion. the circuit court has discretion to or even when the pardon specifically expungement. Governor’s authorizes (c)’s Preliminarily, we address subsection redundant “may.” statutory use of the word The cardinal rule of legislature. construction is to effectuate the intent (1980). People Garrison, v. 82 Ill. 2d To achieve goal, may supply, modify alter, a court words and Garrison, correct obvious mistakes. 82 Ill. 2d at 455. We agree appellate court’s statements in Howard “may” and Holland that the second must be struck from grammatical the statute as an Holland, obvious error. App. App. 124, 127; 3d at Howard, 372 Ill. 3d at (c) grammatically, that, 502. It is clear superfluous “may,” “may” contains a because the second subject is not attached to a noun or clause. With this in mind, we consider whether the Act confers discretion upon deny petition expunge brought the court to a to (5)(c) under section of the Act.

We note that the conditional nature of the statute begins language directed at the Governor. The pardoned of the record of the individual is permissive applies only because the Act when the “specifically expungement. Governor authorizes” an 20 2630/5(c) (West 2004). ILCS The Governor’s authoriza- pardoned legally tion eligible serves to make the citizen expungement. (8th for Dictionary See Black’s Law 143 2004) (defining give “[t]o legal ed. “authorize” as author- ity; empower”). implication to The notable of the use of delinking pardon the word “authorize” is the of a and an expungement. contemplates Thus, the statute that a may Governor choose to an individual and also expungement. decline to issue authorization of an “may” The use of the term in the statute also is permissive petitioner merely as to the allows the petitioner “may” to act. Whichever of the terms is

220 refer to

stricken, “may” it is that both terms apparent petition to whom the petitioner judge and not in Holland stated, “the appellate directed. As the and does not language general of that section remains upon the trial court to enter an order actively direct only to but allows petition expunge, review of a Holland, such an action.” Governor to ‘authorize’ read the at It is therefore incorrect App. Ill. 3d 127. require judge’s terms in subsection “may” may Rather, the defendant entry expungement. of an order. may get from which he a court petition, submit a the trial court to act is found Language directing (d) (d). sets out the procedure Subsection (c). (a), (b), filed to subsections or pursuant petitions (d) 2630/5(d) (West 2004). uses manda Subsection ILCS the trial court “shall” enter tory however, statute, requires reading A plain order. entered, a require but does not that an order only Rather, enter an order the court shall disposition. specific 20 ILCS deny” petition. shall or “grant which 2630/ 2004). 5(d) (West under subsec Thus, for filed (a), a trial court retains discretion tion acquitted has been of an who eligible has no convic prior conviction and or released without (1998). Wells, v. Ill. 3d 405 People tions. (b), a trial under subsection filed Similarly, petitions records show the where the court retains discretion Therefore, wrong under a name. was made conviction legislature filed under subsection —which the circuit by for consideration designated also (d) given to the discretion subject under subsection —are (d) deny” or judge “grant by argument reject petitioners’ therefore We petition. deny” or “grant render necessarily it would because surplusage. mere language had the chosen to make ex-

We note that it done so. This is mandatory, could have pungement (c 6) Act, section which concerns by demonstrated — set aside on direct review or collateral attack. convictions states, It “If a conviction has been set aside on direct attack and the court determines review or on collateral that the defendant was by convincing clear and evidence charge, innocent of the the court shall enter an factually (b) order as in subsection of Sec- provided tion 5—5—4 of the Unified of Code Corrections.” added.) 2630/5(e 6) (West 2004). (Emphasis ILCS — (c 6) 5—4(b) language The of section tracks section — 5— Corrections, of the Unified Code which states: “If a conviction or sentence has been set aside on direct by review or on collateral attack and the court determines convincing clear and evidence that the defendant was factu- ally innocent of the charge, the court shall enter an order expunging the record of arrest from the official records of arresting authority and order that the records of the clerk of the circuit Department court and of State Police be sealed until good further order of the court upon cause herein, or as provided shown otherwise and the name of the defendant obliterated from the requested official index by to be kept the circuit court clerk under Section 16 of the Clerks of Courts Act in connection with the arrest and conviction for the offense any but order shall not affect index issued entry circuit court clerk before the added.) 5—4(b)(West (Emphasis order.” 730 ILCS 5/5— 2004). of these sections lacks any reference to the

ability of a trial court to “deny” Rather, such a petition. a court “shall” enter an order expunging a record if the terms of the statute are met. The legislature’s use of the “the phrase court shall enter an “may order” instead of *** have a court order entered” and “shall enter an order granting denying” demonstrates the intent of a differ- ent toward approach pardoned persons.

222 (d)’s phrasing allowing

Subsection additional for — the State’s and other authorized Attorney statutorily government agencies object expungement of ar- pardoned rest records of the circuit persons —indicates court If grant deny expungement. has discretion to or discretion, the circuit court did not have there would be authority little purpose allowing prosecuting object. The Act also that even if the State’s At- provides does not court torney authority object, may or other still or “grant deny” petition.

This outcome also dovetails with the Governors’ use of Howard, pardoning in their In specific language pardons. Permitting said, Ex- Ryan then-Governor Order “With Under The Provisions Of 20 ILCS pungement 2630/5.” added.) Blagojevich Former Governor used (Emphasis The identical in his of Holland. use that a “permitting” implicitly acknowledges the word deny court has under the Act to or power grant petition. (c)’s It use of the word is also consistent with subsection power, “authorize” in reference to the Governor’s which expunge- made Howard and Holland for legally eligible allowing ment. therefore read the Act as the trial We expungement. discretion to for petition specific turn to cases. petitioners’ We 1984, convicted of murder Stanley In Howard was The trial court sentenced attempted robbery. armed rob for the armed years’ imprisonment Howard to to death for the murder bery. Howard was sentenced affirmed The conviction and sentences were conviction. (1991). In v. Ill. 2d 103 appeal. People on Howard’s Ryan H. commuted George Governor On Innocence him “Based pardoned death sentence *** The Under Permitting Expungement Order With receiving After Provisions of 20 ILCS 2630/5.” in the expungement filed a for Howard pardon, objected, arguing The County. State circuit court Cook good candidate was not a Howard circuit court convictions. he has two other because deny expungement even it had discretion determined expungement. permitted pardon though the executive expungement, conclud denied the The court obtaining ing ex- in of the Petitioner that “the interest legitimate by outweighed pungement inter the State’s maintaining of arrest.” Petitioner’s records est in appealed. appellate court reversed The Howard expunge petition for denial of Howard’s circuit court’s Ill. 3d 490. ment. having discretion, had we

Here, ruled that the court arguing not Howard is note denying peti- in circuit court abused its discretion appellate judgment of the tion. therefore reverse the We in court Howard. appeal, addressing the merits of Holland’s

Prior to motion, ordered taken with the we consider Holland’s seeking portions The case, to strike of the State’s brief. Dana Holland was convicted record reveals that aggravated criminal sexual assault and of three counts of years’ terms of 30 sentenced to three consecutive attempted imprisonment. convicted of Holland was also years’ robbery and sentenced to 28 murder and armed consecutively aggregate imprisonment to his to run years’ imprisonment aggravated for the criminal sexual ap- All convictions were affirmed on assault convictions. peal. years later, 2003, the circuit court vacated Ten aggravated criminal sexual as- Holland’s convictions of exonerated Holland of the sault when DNA test results ultimately granted trial and crimes. Holland was a new robbery. acquitted attempted On murder and armed January gubernatorial 6, 2005, Holland received Blagojevich in cases “Based Rod both from Governor Permitting Expungement Upon Innocence With Order Holland then Under The Provisions Of 20 ILCS 2630/5.” filed petitions for expungement. The State raised no objection. The circuit court denied expunge, without hearing, holding Holland ineligible because of a prior 1986 conviction. Holland appealed.

The State’s brief contends that even though Holland was declared Governor, innocent he is still a menace to society and expungement jeopardize will public In safety. alternative, Holland asks that we grant him leave to file an affidavit showing he is not a menace to society. Holland any does not cite to violations of our supreme court rules as the basis for striking portion of Rather, the State’s brief. merely Holland complains statements made in the State’s brief are not in the record or based in fact and “unfairly are insulting to Mr. Hol- land.”

The State objects the statement striking because it argument supported by Holland’s prior conviction of armed robbery, a violent felony. State refers to state- ments in Holland’s affidavit to support argument, its but makes no argument on whether we should allow Holland leave to file the affidavit. This recognized court has that striking portion of “ ” sanction,’ brief appellate ‘is a harsh appropriate

only if a violation procedural of our rules interferes with Powell, our review. In re Detention or precludes 217 Ill. of H/S, Inc., Moomaw v. Mentor 123, (2005), 2d 132 quoting (2000). Here, 3d App. 1035 the statement was included to the State’s support argument public safety reasons require judges to exercise discretion in denying petitions for The statement expungement. neither precludes Further, hinders nor our review. Hol land’s conviction for prior robbery armed the record in a certified statement of conviction. The State’s argu is, therefore, ment supported by the record. Holland’s deny motion strike is therefore denied. also Hol We he claiming land’s alternative motion to file an affidavit society. is not a menace to

225 court Turning petition, appellate to Holland’s erroneously denied determined the circuit court majority on a solely based petitions Holland’s grant petitions it had no discretion to belief Holland, of conviction. prior because Holland’s App. erroneously 3d 121. The circuit denied the Ill. court (a) Act, permits under of which petition release convic expungements acquittal after or without tion where does not have a conviction. prior further majority then remand for acknowledged court’s proceedings necessary was because the circuit wrong erroneous denial of the under the section Holland, of the Act. 3d at agree Ill. 125. We court appellate 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 Therefore, agree appellate below. we court that any “State has objection waived trial must based on the petition and record of this case.” Petitioner State make no argument this otherwise to court.

CONCLUSION In Howard, we reverse the judgment appellate In Holland, court. we affirm judgment of the appel- late court and remand to the circuit court to determine if expungement should be granted.

No. 104608—Reversed. No. and remanded. 105022—Affirmed THOMAS, JUSTICE dissenting: I cannot join opinion, directly which is contrary plain both to the the statute and to legislative obvious intent. According to the Hol majority, land “aptly stated” that the question be resolved is “ effect the of the ‘permitting Governor’s ex- ” the pungement provisions under of 20 ILCS 2630/5.’ 218, Holland, 233 Ill. 2d at quoting 374 Ill. 3d at 226 fact, is not the effect of the former question

125. In the ef- but the permitting expungement, Governors’ pardons filed verified with having fect of the petitioners received they forth that had setting the circuit court authorizing expunge- gubernatorial pardons specifically 2006). 2630/5(c) (West The answer is ments. See 20 ILCS the trial of the statute: plain language clear under The orders. should have entered statute, of the Howard court, reading based on a correct court, and the Holland court, based reversed the circuit “may have a court misunderstanding phrase on the circuit court. entered,” improperly affirmed order to reverse in has chosen Unfortunately, majority Holland, Howard and to affirm plain when the 5(c) result. requires opposite section language of flawed, majority opinion explaining why Before with majority opinion briefly parts I note the will sets forth majority correctly I agree. which statutory canons of applicable of review and standard Thus, majority I agree construction. ordinary its given plain of the statute intent, legislature’s indicator of the meaning is the surest in its entirety consider the statute and that we must the legislature’s it addresses and subject in mind the keep principle Ill. 2d at 218. One intent it. 233 enacting is that listed I add to those that would not Assembly did the General we must presume v. People inconvenience. absurdity, injustice intend (2006). with Palmer, agree I further Ill. 2d in sec “may” the second conclusion majority’s 5(c) may mistake that be grammatical is an obvious tion that, part ways After I 2d at 219. stricken.1 the majority.

1 however, put not the second concluding, I would After so paragraphs later. See a mere two “may” in the statute back Ill. 2d at 219-20.

“May Have a Court Order Entered” question meaning The before the court turns on the statutory language providing petitioner that, if a meets requirements, “may certain he have court order expunging entered the record of arrest.” I believe that exactly says. majority the statute means what it The disagrees, concluding meaning that the of the above says, that, is not what it but rather if a statutory requirements, may defendant meets the he seek expunging to have a court order entered the record of ar- rest. How does one arrive at this conclusion? improper ways,

There are at least three each of which defining incorrectly, violating grammati involves words way, yet rules, cal or both. If there is a valid no one has (1) argument. improper ways made that The three are: position “mays” the State’s that both in the statute must given referring effect, be with one and (2) referring position one court; to the trial the dissent’s wrong Howard, in which was to use the definition of the (see “may” App. word Howard, Ill. 3d at 509 (3) (Fitzgerald dissenting)); majority’s Smith, EJ., hybrid approaches, of the above two which is to first only “may” state that there is one in the statute, but actually “mays,” then to conclude that there are two (233 219-20). each with a different definition Ill. 2d at positions Let us consider each of these in turn. argument

We need not dwell on the State’s because majority correctly rejects “may” it. The second in grammatical the statute is redundant and is an obvious referring mistake. It cannot be read as to the trial court “[cjourts correctly because, stated, as Howard ‘enter’ they they orders; are actors; do not ‘have’ another App. actor enter Howard, an order for them.” 372 Ill. 3d Accordingly, only “may” at 498. there is one in the statute, and it refers not to the circuit court but to the petitioner. good. 233 Ill. 2d at 220. So far so

Next, in which let us consider dissent (see in Holland Hol majority later adopted by was (“we land, respectfully 3d at 127 must Howard agree disagree case”)). Fitzgerald dissent Justice Smith in Howard concluded that phrase “may dissent have order entered” discretion to the trial court grants a court “ “may” ‘possibility, prob because the definition of ” contingency,’ or while the definition of “shall” ability “ manda ‘imperative ‘a word of command’ and is is ” Howard, Smith, tory.’ App. (Fitzgerald 3d at 509 P.J., Dictionary Black’s Law dissenting), quoting 1979). (5th The Howard dissent then stated 1233 ed. and “shall” is “may” that the difference between Howard, (Fitzger Ill. 3d at 509 App. “undeniable.” 372 Howard dis Smith, EJ., dissenting). Accordingly, ald that, intended to legislature concluded had the sent this under grant proper petitions courts to require subsection, it have used the “shall have phrase would entered,” clearly “would indicate order which Howard, here.” impose mandate the wants to Smith, EJ., dissent (Fitzgerald Ill. 3d at 509 App. 372 the word However, legislature because the used ing). legislature all the was “possibility,” which means “may,” have a court order may that the defendant saying was at Ill. 3d entered —if he is successful. 372 Smith, EJ., dissenting). (Fitzgerald 510 often leads premise with an incorrect Beginning hap- conclusion, and I fear that this is what the wrong the Howard dissent. it is correct Although pened is another “may” possibility, is meaning that one (8th ed. Dictionary See Black’s Law permission. *** 2004) 2. permitted as “1. To be (defining “may” New World see also Webster’s possibility”); To be a (1983) auxiliary “an “may” as (defining Dictionary rain]; [you may permission 2. [it 1. expressing possibility go]” (emphasis original)). quite in It is clear that in may 5(c) legislature using “may” to mean section is permission possibility. accept position not If we 5(c) simply dissent, section is a narrative Howard legislature describing things might hap- which the pen, is that legislature really opinion but the has no on the mat- legislature saying words, In ter. other all that the pardon specifically if a defendant receives a that expungement, peti- authorizes if he files a verified setting forth, tion in the circuit court this then there is a possibility that he will a have court order entered expunging pos- arrest, his record of but there is also sibility might reading that he not. This of the statute many things: rights, cannot be correct. Statutes do confer prohibit conceivinghypotheticals conduct, etc., but is not one of them.

Clearly, legislature “may” did not use the term “possibility,” “permission.” mean but rather Moreover, opinion it is obvious that the does have an on clearly this matter. In words, other the statute means petitioner specifically receives a if expungement, authorizes and ¿/the establishes this in a verified court, the circuit then he has expunging permission to have a court order entered the entirely record of arrest. This is a statute, matter of legislature given petitioner express permission the has a expungement

to have an order entered if he meets the statutory requirements. grant permission This is not a of to seek to have a court order entered or to request that a permission court order entered; be it is a to have majority wrong a court order Thus, the is flat out entered. legislature’s when it states that the use of the term “may” “merely petitioner allows the to act.” 233 Ill. 2d legislature simply given petitioner at 219. The has not the permission given petitioner permission act; to it has the statutory to have a court order entered if he meets the is mistaken it requirements. majority similarly The when require entry states that subsection does not the of an If someone legislature grants order. 233 Ill. 2d at 220. the to have an order entered if he meets express permission certain then the trial court must enter requirements, that order if the are met. requirements with the Howard dissent is its as problem

Another that, legislature sertion had the intended to the Act, court under the deny proper petitions discretion to “shall have an order phrase it would have used the 3d at 509 (Fitzgerald entered.” Smith, EJ., position The with this is dissenting). problem mean that that, phrase, if the statute used that it would required petitioner was have did not intend Obviously, order entered. Rather, a thing. gives petitioner such it require any he so chooses. order entered permission to have a court if its determination that section majority reaches 5(c) combining court by confers discretion on the trial correctly determining After approaches. the above two one in the statute that refers only “may” there is (233 219), majority inexplica 2d Ill. at petitioner actu later that there are bly paragraphs concludes two statute, having with each one “mays” two ally According majority, phrase different definition. that “the a court order entered” means “may have from may [permission] petition, defendant submit (Emphasis a court order.” which he may [possibility] get course, this cannot be 2d at 220. Of original.) Ill. entered.” There have a court order meaning “may and it is petitioner, it refers to the only “may”; one is not permission And the grant permission. used to to have a permission petition; to submit a merely statutory order entered if the meets I Thus, agree while requirements. intent legislative indicator of and most rehable

the surest ordinary and plain its language given is the statute’s (233 taking see how 218), I fail to Ill. 2d at meaning wrong place it in the term, statutory putting critical meanings at it two distinct statute, giving then and plain language time, is faithful being the same dissent, and the State, the Howard the statute. The way legitimate to come with a up have all failed majority 5(c) the trial discretion on conferring as to read section deny proper petition. court to (d) of Subsection Meaning

The (d) grants the According majority, under deny proper petitions court full discretion to trial “shall enter it that a trial court provides Act because 20 ILCS See denying petition.” or granting order (d)’s 2630/5(d) (West 2006). view, use of In my far more attention given has been phrase this (d) than it deserves. course subsection consequence Of If a files a deny.” or phrase “grant uses guberna- he received a setting forth that petition verified specifi- not one that pardon torial but the was agree would cally expungement, everyone authorized deny petition. the trial court must argument that the majority petitioners’ The contends deny” of subsection “grant would render (d) Nothing 233 Ill. 2d at 220. could be surplusage. mere make truth, and the is able to further from forth the petition this claim because it never sets only (d). The ers’ to subsection argument respect has to is not that the trial court petitioners’ argument it, before or that “subsec grant every petition comes (c) relevant subsection to be considered” only tion is the (c) (d) (233 218), must Ill. 2d at but that subsections for the State to grounds read and that together, be (c) and for the trial object petition to a subsection limited to a failure a subsection are (c). require- of subsection satisfy requirements (c) (1) ments of subsection are: the Governor must (2) pardon the petitioner; must specifically (3) authorize expungement; and the petitioner must file a proper verified in petition the circuit court. 20 ILCS 2630/5(c) (West 2006). Thus, the petitioners’ argument (d)’s would not render subsection “grant deny” language mere surplusage; it would properly require that it be read in conjunction with the require- substantive (c). ments of subsection (d)

Subsection applies to filed under subsec (c) (a), (b), tions different provisions with dif —three ferent language, different requirements, and different levels of discretion. Petitioners correctly argue that (d) “grant or deny” of subsection must be read in conjunction with the requirements substantive of each of see, (a), these subsections. As we will subsection un (c), like subsection broad grants discretion to the circuit court, grounds so the upon which the circuit court may (a) subsection are much broader than (c). As Howard correctly stated, those under subsection is entirely logical “[i]t that the grounds objection, ceded to the prosecutor 5(d), under subsection differ be ent for those who seek expungement under subsection 5(c) than for those who seek under subsec 5(a) tion given the different markedly language employed in the two subsections respecting discretion of the Howard, circuit court.” 372 Ill. 3d at 506. App. With respect (c), subsection “the State may merely object on the grounds that the defendant has not fulfilled the *** subsection, of that requirement the circuit court may only consider whether statutory requirement has been met.” 3d at 506. This is (d) not reading limitations into subsection that are not (d) there; it is reading conjunction subsection requirements substantive subsection at particular issue, which is exactly supposed what a court to do.

233 (2002) (court 499, 202 Ill. 2d Glisson, v. See People read statute as a whole rather than consider should isolation); phrases Ill. 2d People Maggette, v. (2001) (court consider the entire statute and must

interpret parts together). of each its relevant majority, its

In fairness to should noted that it be (d) its construction subsection is not inconsistent with (c). one construction of subsection If views subsection things might merely describing possible happen, as (d) illogical granting is not view as it complete deny petitions discretion to the trial court to satisfy statutory requirements. When (c) properly permission construed as a to have if order entered meets statu- tory requirements, however, it then is clear that subsec- (d)’s “deny” only tion ity use of the word refers to the abil- deny petition statutory to a that fails to the meet requirements. dispute merely over the breadth of “deny.” phrase “grant the word In neither instance is the deny” surplusage.2 or rendered mere (a) (b)

Subsections and majority notes, As the two other subsections of sec subject requirements tion 5 are to the notice of subsec (d). tion 233 Ill. at 2d 220. A consideration of the language of these two subsections illuminates the (c) legislature’s why intent in subsection and also shows (d) conjunction subsection be must read in requirements respective substantive of each subsection. (a) acquit Subsection deals with first offenders who are being ted or otherwise released without In convicted. that, noting 2It petitioners is worth even arguing if that were (c) grant every trial courts had to petition placed subsection in them, “grant deny” front of that would still not render the (d) language (a), surplusage, applies mere as section to subsections (b), (c), dispute and complete there is no trial have that courts (a) deny petitions. discretion to subsection subsection,

this the legislature provided that the trial court “may upon verified defendant order petition 2630/5(a) (West the arrest 20 ILCS expunged.” record of 2006). Here, legislature “may” the used the word regard court, petitioner. to the trial not the Instead of saying petitioner may the “have a court order entered,” may the legislature judge stated trial “order expunged.” Consequently, the record arrest this the trial interpreted grant subsection has been to to even if the discretion statutory See Chesler v. requirements. satisfies 145, (1999); Wells, 3d v. People, App. People 309 Ill. (1998). major Although 3d 408-09 not ity why legislature concerns itself with did use order,” as it did phrase “shall enter an (c 6), if the explains why, subsection it never — discretion, assign it did not legislature intended it court, as in subsection “may” the word trial did (a). out,

As time petitioner Howard at points (c), already subsection the courts had legislature enacted (a) to trial granting construed subsection as discretion subsection, courts under deny petitions brought language use the chose not to same it yet legislature (a). words, used in In other subsection very could have tracked easily (a) provide as follows: drafted has been of an of- person who convicted

“Whenever by specifi- granted Governor which fense cally judge chief the circuit expungement, the of authorizes convicted, any judge of the person had been where by Judge, or of designated in counties less circuit Chief inhabitants, 3,000,000 presiding judge at the than trial, of the may upon petition verified defendant’s of- expunged arrest from the defendant order record of authority arresting and order ficial records of the Depart- circuit court and the the clerk of the records of .” until further order... ment be sealed The legislature this, that, did not do instead if providing meets the statutory requirements, may he have an order entered. Under settled rules of statutory construction, that the presume we intended a different meaning by using different language (a) (c). in Hudson, subsections and People See v. (2008) (when

2d the legislature uses certain in language one of statute and part different another, court may assume different meanings were intended).

Let us now turn our (b), attention to subsection which covers a situation in any which assertion of trial court discretion to deny petitions statutory meet (b) requirements is highly dubious. Subsection concerns of right victims of identity theft to correct the official records when the identity thief commits crimes in the (a) victim’s name. As with (c), subsections subsec- (b) tion subject to the notice provisions (d). Here is the language that the legislature used in (b): person

“Whenever a has been convicted of a crime or of the violation of a municipal ordinance, in the name aof person identity whose he has stolen or otherwise come into possession of, aggrieved person identity from whom the was stolen or authorization, otherwise obtained without upon learning person having been using arrested his identity, may, upon judge verified chief made, circuit wherein the arrest was have a court order entered pro by nunc judge tunc the chief to correct the ar- record, record, rest any, conviction if and all officialrecords of the arresting authority, Department, other criminal justice agencies,the prosecutor, and the trial court concern- ing arrest, such any,by if removing his name from all such records conviction, connection with the arrest and if any, inserting in the records the name of the of- fender, if ascertainable, known or in lieu of the aggrieved’s added.) (West 2630/5(b) 2006). (Emphasis name.” 20 ILCS Here, (c), legislature the used the as subsection of language have a court order entered” instead “may *** (a)’s “may the trial court subsection the record of arrest expunged.” Consequently, order a phrase “may this court the have interprets whatever will also court order entered” to mean subsection (b). Maggette, 2d at 349 See apply to subsection (words the same used in one section of a statute have statute, in other sections of the same meaning when used clearly expressed). intent is contrary legislative unless a conse credit, deny it does not the majority’s To the Indeed, majority its the states quences holding. of (b), a filed under subsection that “for explicitly show the court retains discretion where records trial Ill. 2d at wrong made under a name.” 233 conviction was it is cited for this but authority proposition, 220. No of majority’s reading of the necessary consequence (c). as glossed can be over point I do not think that this be, if we consider wants it to quickly majority as meaning into the further, insight I think we clear gain it entered.” So there “may have a court order phrase Supreme Illinois no mistake: a can be of have stated that trial courts today explicitly Court has the right to victims deny identity broad discretion theft when thieves identity records corrected to have official their name. truly commit crimes in my colleagues If it this, examples some when they give believe can to a deny proper for a trial court appropriate would be no I can think of this susbsection? under petition for a it would be appropriate under which circumstances in- on an crippling such a burden place trial court to unjustified benefit grant and to such nocent victim no examples, And if there are such a criminal. did not strong indication perhaps that, I as with discretion? believe intend to such and the trial (c), right object State’s subsec- filed under this petition right court’s statutory require- satisfy a failure to tion is limited to unless is not verified or Thus, petition unless the ments. actually crimes to establish that fails the trial court must person, another by were committed grant petition. the held that the factors

The Holland court discretion under to trial adopted guide courts have (a) apply should also to the consideration subsection (c). Holland, Ill. App. under filed subsection petitions that courts will also 3d at 128. should thus assume We under these factors to filed subsection apply (b). of the State’s case strength Those factors are: “the to against wishing the State’s reasons petitioner; records; criminal record and petitioner’s age, retain the history; length of time between the ar employment expungement petition; rest and and the adverse conse if quences petitioner may expungement suffer is not Holland, granted.” 3d at 128. Does it make any talking sense to consider these factors when we are to reflect name right about have official records person actually who committed a crime? If A steals name, identity B’s and commits a crime in B’s and B to court to exercise his goes statutory right have corrected, official records is the trial court entitled really age history to mull over B’s when decid employment ing whether order the records corrected to show that A committed the crime? At that would we have point absurdity, injustice, reached or inconvenience? See Palmer, Ill. 2d at path major 156. This is the on, has us and I think that it is as clear an indica ity set reading tion as that this court is not anything simply “may correctly. have a court order entered” phrase I intended to legislature do not believe to trial courts to filed deny proper petitions discretion (b). (b) under considering When (c 6) (20 together with subsection of the Act ILCS — (West 2006)) 5—4(b) and section of the Uni 2630/5 5— (730 5—4(b) (West fied Code of Corrections ILCS 5/5 — 2006)) (both mandating judicial after innocence), determinations of factual I see an unmistak able policy determination legislature —consistent with the most basic justice notions of and fundamental fairness —that factually Illinois the innocent will not be forced to bear the stain of crimes they did not commit. contrast, By the majority apparently believes that legislature’s intent was to mandate expungement for the factually innocent who have been criminal defendants (233 220), Ill. 2d give at but the trial court complete discretion to decide if correction of official ap records is propriate for a small category of the factually innocent (233 who have not been criminal defendants Ill. 2d at 220). If intent, that was indeed the legislature’s then the absurd, intended unquestionably something unjust, and inconvenient. We are supposed presume that the General Assembly intended none of these things, Palmer, let alone all three. See 218 Ill. 2d at 156. (c) Considering subsection together with subsections (a) (b) leaves no doubt and did not legislature intend to trial courts the discretion to deny peti- tions that meet the statutory requirements of subsection (c). Rather discretionary language than use the of subsec- (a), tion the legislature language used the same it used when dealing right factually with the of innocent identity victims of theft to have official records corrected to show the name of the person actually who committed right crime. The of a trial court (b) (c) under subsections and limited to those clearly cases in which the are statutory requirements not met. (c 6) 5—4(b)

Subsection and section — 5— (c) The majority with subsection compares (c 6) 5—4(b) of the Act and section of the Code. — 5— judicial provisions determinations deal with These provide has that when a conviction innocence and factual and or collateral attack aside on direct review been set convincing evidence determines clear and the court factually innocent “the court was defendant 2630/5(c 6) expungement order.” 20 ILCS shall enter an — (West 2006). majority, legislature According to make ex- used this if it intended would have pungement mandatory. But, 2d at 221. as Howard 233 Ill. “may correctly stating petitioner held, that a have a court mandatory respect to the with order entered” is also App. Howard, 3d at 502. This was circuit court. 372 Ill. majority point and another of contention between majority stating that the the dissent in language in subsection difference between the 5—4(b) section is a “distinction without a difference” 5— 504); (Howard, App. 372 Ill. 3d at while dissent “[t]he section believed that difference between 5—5— 4(b) 5(c) huge” Act is Code (Howard, (Fitzgerald Smith, RJ., 3d at 515 dissenting)). again, Once the Howard was cor Reaching requires past rect. this conclusion us look superficial phrase distinction that one uses the term “may” past “shall,” it and one uses the term but look legislature we must because the used those terms with respect to different actors. showing phrasing

Far from that the different indi (see cates that the intended a different result 221), merely phrase Ill. 2d it at shows that one subject worded with the trial court as the and the other subject. Moreover, as the when we procedural postures consider the different of the two legislature’s perfect situations, choice of words makes legislature above, I sense. As mentioned could not phrase a court order entered” have used “shall have required petitioner because that would mean that the was to have an expungement order entered. There is no evidence that legislature intended to defen- require dants who gubernatorial receive pardons to have their expunged; records it has merely given them that if right, they choose to exercise it. give When worded to petitioner a choice whether to have an expungement entered, order the grammatically phrase correct to use would be that the petitioner “may have a court order court, entered.” With respect trial this is no differ- ent than saying court “shall enter an order.” By contrast, it is completely different from the *** (a), which states that the trial court “may order the record of arrest expunged.” equivalent The (a) of subsection phrasing as the petitioner subject would be that the petitioner “may seek to have a court order entered.” In short: the petitioner “may have a court order entered” is equivalent to the court “shall order”; enter petitioner “may seek to have a court order entered” is equivalent “may to the court order the And, record expunged.” above, as set forth when we (b), (c 6), consider that subsection and sec- — 5—4(b) tion all deal in- factually Code 5— nocent, we have clear legislature evidence that uses wording “may have a court order entered” interchangeably stating with that that a court “shall enter an order.”

The wording legislature chose makes perfect sense procedural postures when the of the cases are (c 6) 5—4(b) concerned. Subsection and section are — 5— triggered by system: situations within the court there has been a reversal of a conviction or sentence or the conviction or sentence collateral at- has been set aside on tack, and the court determines clear and convincing innocent. evidence that the defendant factually was gives express the trial court directions on an order what it should do in this situation: enter expunging By contrast, record of arrest. subsections (b) (c) are triggered events occurring outside the (b) system. Subsection triggered when a person learns that another has been arrested using identity his (20 2630/5(b) (West 2006)) ILCS and subsection triggered when a person receives a gubernatorial pardon (20 2630/5(c) specifically authorizing expungement ILCS (West 2006)). Thus, makes these people the subject of the gives sentence and them directions for what they need to do to have court orders entered expunging or correcting their records.

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 Order With Permitting Expungement Under The Provisions Of 20 ILCS The majority follows its quote 2630/5.” this language with the non sequitur that the “use of the word ‘permitting’ implicitly acknowledges that a court has 5(c) power under section of the Act to grant or deny a petition.” 233 Ill. 2d at 222. It does no such thing. Yes, the orders use the word “permitting,” but the orders are permissive as to the petitioners, not the circuit court. Again, the former Governors did not require that either Holland or Howard go to court to have their records expunged; they gave them permission to so, do if they so choose. The only significance in the language pardon orders is that it shows that petitioners fulfilled one of the statutory requirements for expungement. One of the requirements is that must specifically authorize expungement. These pardons did so. See Web ster’s Third (1993) New International Dictionary (defining “endorse, “authorize” as to empower, justify, permit”). The next statutory requirement was fulfilled when petitioners Howard and Holland established this court. in the circuit Conse-

fact in verified entered to have orders they permitted were quently, records, doing erred in not their and the court expunging in the significance There is no so. the fact it shows beyond orders

Governors’ for ex- statutory requirements fulfillment of one of the pungement.

Legislative History given statutory language, I Because believe the question settles ordinary meaning, its plain legisla that reliance on court, I do not believe before the said, the majority That because history necessary. tive of result, panel judges and because no the wrong reaches interpretation proper to on the agree has been able the legislative out that statute, briefly point I would this Because construction. history supports petitioners’ thorough compelling a and the Howard contains opinion I refer the reader history, would legislative of the analysis (see Ill. 3d at 499- that discussion in points all of those 505), go I no need to over and see short, the version of this dissent. In detail in did not contain by originally proposed expungement.” authorizes “which specifically the clause anyone allowed would have Thus, version original ex- to have an pardon gubernatorial had received a who Edgar Governor entered. Former order pungement responded and was too broad that the statute believed were veto, pardons that noting amendatory to allow such as purposes limited granted sometimes license, express a particular to obtain someone expungement. be no there would understanding it would be did not believe Edgar Former Governor expunged, records to have their pardonees fair for such be amended the statute thus recommended autho specifically when only for expungement provide House of Illinois Journal rized the Governor. Assem., Representatives, 5, 87th Ill. Gen. November 1992, at 9105-08. In proposing legislative override, Representative Lang explained that the Governor’s ver sion was not what he had in mind because he did not people want 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 “go right into court get his records expunged.” Assem., 87th Ill. Gen. House Proceed (statements ings, 19, 1992, November at 64-65 Representative Lang). Speaking opposition to the legislative override, Representative Black believed that former Edgar’s Governor amendatory veto was wise because otherwise “any individual who gets would have his records expunged, and the Governor is simply saying, those records should not be expunged every case.” 87th Assem., Ill. Gen. House Proceedings, (statements November 1992, at 65-66 of Representa Black). tive This back and forth between the former Governor and the legislature really makes sense if only provides statute for automatic expungement for those who meet the statutory requirements. If the circuit court had full discretion to deny expungement petitions, then former Governor Edgar would have had little reason to be concerned that those who had received pardons only for a limited purpose with an understanding that there would be no expungement would have their records expunged. Similarly, Representative Black’s statements that “any individual who gets pardon would have his records expunged” and the “Governor was simply saying that expungement should not happen every case” make sense if only the statute provided for automatic ex- pungement. It very is difficult to review the legislative history away come with the conclusion that legislature intended trial courts full discretion to decide who should receive expungements, while limit- one, making simple advisory role to a the Governor’s

ing circuit court. to the nonbinding recommendations

Conclusion plain directly contrary majority opinion intent. legislative and to obvious of the statute have a “may that a stating person Statutory language certain requirements if he meets court order entered” to deny with discretion the circuit court does not vest That this is with the statute. comply (c) is to subsection respect intent with legislature’s other subsections it compared confirmed when 5—4(b) Code. and with section section 5 5— met the statu- Howard and Holland Because petitioners were entitled they expungement, tory requirements the cor- entered. This was orders to have decision and its of the court conclusion rect the plain Holland was not faithful should be affirmed. statute, it should be reversed. language of in this dissent. joins KILBRIDE JUSTICE (No. 105092. ILLINOIS, Appel THE STATE OF OF

THE PEOPLE DAVIS, Appellant. lee, v. JERMAINE May 2009. Opinion filed

Case Details

Case Name: People v. Howard

Court Name: Illinois Supreme Court

Date Published: Mar 19, 2009

Citation: 909 N.E.2d 724

Docket Number: 104608, 105022

Court Abbreviation: Ill.