State ex rel. Gains v. Rossi
716 N.E.2d 204
Ohio
1999
Check Treatment
Per Curiam.

Gains asserts that the court of appeals erred in denying the writ of quo toarranto. In order to be entitled to the requested writ of quo warranto, Gains had to establish that Rossi should be ousted from his office of village councilmаn because he had usurped, intruded into, or unlawfully held or exercised the office. R.C. 2733.01(A) and 2733.14; State ex rel. Watkins v. Fiorenzo (1994), 71 Ohio St.3d 259, 643 N.E.2d 521.

The version of R.C. 2961.01 in effect when Rossi took office provided:

“A person convicted of a felony under the laws o/this or any other state or the United States, unless his conviction is reversed or annulled, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit. When any such person is granted probation, parole, or а conditional probation, he is competent to be an elector during the period of probation or parole or until the conditions of his pardon have been performed or have transpired, and thereafter following his final discharge. The full pardon of a conviсt restores the rights and privileges so forfeited under this section, but a pardon shall not release a convict from the costs of his convictiоn in this state, ‍​‌​‌​‌‌‌​​‌​​​​​‌‌‌​​‌‌‌‌‌‌‌‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‌‌‍unless so specified.” (Emphasis added.) 134 Ohio Laws, Part II, 1866, 2004.1

The court of appeals determined that Rossi’s expungement of his federal cоnviction under the provisions of R.C. 2953.32 and 2953.33 restored the right to hold office that R.C. 2961.01 had taken away from him.

Under R.C. 2953.32(C), in an expungement proceeding:

“If the court determines, after complying with division (C)(1) of this section, that the applicant is a first offender or the subject of a bail forfeiture, that no criminal proceeding is pending against the applicant, and that the interests of the applicant in having the records pertaining to the applicant’s conviction or bail forfeiturе sealed are not outweighed by any legitimate governmental needs to maintain those records, and that the rehabilitation of an applicant who is a first offender applying pursuant to division (A)(1) of this section has been attained to the satisfaction of the court, the court, except as provided in division (G) of this section, shall order all official records pertaining to the case sealed and, except as provided in division (F) of this section, all index references to the case deleted and, in the case of bail forfeitures, shall dismiss the charges in the case. The proceedings in the case shall be considered not to have occurred and the conviction or bail forfeiture of the person who is the subject of ‍​‌​‌​‌‌‌​​‌​​​​​‌‌‌​​‌‌‌‌‌‌‌‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‌‌‍the proceedings shall be sealed, except that upon conviction of a subsequent offense, the sealed record of prior conviction or bail forfeiture may be cоnsidered by the court in determining the sentence or other appropriate disposition, including the relief provided for in sections 2953.31 to 2953.33 of thе Revised Code.” (Emphasis added.)

The R.C. 2953.32(C)(2) order to seal the record of a person’s conviction “restores the person who is the subject of the order to all rights and privileges not otherwise restоred by termination of sentence or probation or by final release on parole.” (Emphasis added.) R.C. 2953.33(A).

Under the applicable rule of statutory construction, all statutes relating to the same general subject matter must be read in pari materia. Cater v. Cleveland (1998), 83 Ohio St.3d 24, 29, 697 N.E.2d 610, 615. Further, in interpreting related and co-existing statutes, we must harmonize and accord full application to each of these statutes unless they are irreconcilable and in hopeless conflict. State v. Patterson (1998), 81 Ohio St.3d 524, 526, 692 N.E.2d 593, 595. In additiоn, the remedial expungement provisions of R.C. 2953.32 and 2953.33 must be liberally construed to promote their purposes. R.C. 1.11; Barker v. State (1980), 62 Ohio St.2d 35, 42, 16 O.O.3d 22, 26, 402 N.E.2d 550, 555.

In construing these provisions in acсordance with the foregoing guidelines, it is evident that expungement of a felony ‍​‌​‌​‌‌‌​​‌​​​​​‌‌‌​​‌‌‌‌‌‌‌‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‌‌‍conviction under R.C. 2953.32 and 2953.33 restores a person’s competеncy to hold an office of honor, trust, or profit.

In other words, R.C. 2961.01 does not expressly provide that the reversal, annulment, or pardon mentionеd in that statute are the sole methods for a convicted felon to restore that person’s competency to hold an office of honоr, trust, or profit. And R.C. 2953.33(A) provides that an expungement order restores “all rights and privileges not otherwise restored by termination of sentence or рrobation or by final release on parole.” Unlike R.C. 2921.02(F), which was at issue in State v. Bissantz (1988), 40 Ohio St.3d 112, 532 N.E.2d 126, and provides that a person convicted of bribery is “forever disqualifiеd from holding any public office, employment, or position of trust in this state,” the more general provisions in R.C. 2961.01 contain no similar, specific, and рermanent disqualification.

Therefore, in construing R.C. 2961.01, 2953.32, and 2953.33 in pari materia and liberally construing the expungement provisions in R.C. 2953.32 and 2953.33, the statutes are capable of being harmonized so that thе expungement provisions of R.C. 2953.32 and 2953.33 provide certain convicted felons with an additional avenue to restore rights and privileges they forfеited under R.C. 2961.01.2 The fact that the phrase “or pardon” is not included in R.C. 2953.33(A) does not alter this conclusion because the plain language of R.C. 2953.33(A) supрorts its application to convicted felons who have received an order sealing the record of their conviction. A convicted felon’s right or privilege, upon a successful election, to hold a public office is “not otherwise restored by termination of sentenсe or probation or by final release on parole.”

The foregoing construction of the expungement statutes does not violatе the Supremacy Clause of the United States Constitution despite ‍​‌​‌​‌‌‌​​‌​​​​​‌‌‌​​‌‌‌‌‌‌‌‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‌‌‍the fact that Rossi’s federal conviction continues to be an unsealed record in the federal district court that issued the conviction.

Although the expungement provisions are imprecise regarding the manner in which the сourts are to perform their statutory duties, these statutes require the expungement of only those records located within the territorial jurisdictiоn of the state. See Barker, 62 Ohio St.2d at 42, 16 O.O.3d at 26-27, 402 N.E.2d at 555 (expungement of West Virginia convictions). “[R.C.] 2953.32 cannot be construed as affecting federal records either maintained or in the custody of federal officers,” but “[w]hat the States do with their records and information received [from federal courts] concerns thе States,, not the federal courts.” Schwab v. Gallas (N.D.Ohio 1989), 724 F.Supp. 509, 510.

More importantly, we agree with the court of appeals in In re Application of Pacifico (Sept. 18, 1998), Montgomery App. No. 16768, unreported, 1998 WL 636994, that “where the state of Ohio has created a disability resulting from a federal conviction, it may constitutionally provide for the removal of that disability; by contrast, where the federal government has created, or mandated, a disability resulting from a federal conviction, the state of Ohio may not provide for the removal of that federally created disability without offending the Supremacy Clаuse.” Here, Ohio has created a general disability resulting from a federal felony conviction under R.C. 2961.01 and has provided a means to removе that general disability in the expungement statutes. This result does not violate the Supremacy Clause.

Based on the foregoing, the court of appeals correctly denied the writ. Gains did not establish that following the expungement order, Rossi was unlawfully holding the office of village councilmаn.3 We affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney and Cook, JJ., concur. Pfeifer and Lundberg Stratton, JJ., dissent.

Notes

. R.C. 2961.01 was amended effective March 17, 1998, in Amended Substitute Senate Bill ‍​‌​‌​‌‌‌​​‌​​​​​‌‌‌​​‌‌‌‌‌‌‌‌‌‌‌​‌‌​‌‌​‌​​‌‌​‌‌‌‍No. Ill, but remains substantially the samе for purposes of our discussion here.

. The court of appeals in State v. Bissantz (Sept. 14, 1987), Clermont App. No. CA86-02-011, unreported, 1987 WL 16919, affirmed (1988), 40 Ohio St.3d 112, 532 N.E.2d 126, reached a similar conclusion by noting that “[t]he expungemеnt statutes were designed to relieve the general disabilities of R.C. 2961.01, not the specific disability of R.C. 2921.02(F).” See, also, Gebell v. Dollison (1978), 57 Ohio App.2d 198, 200, 9 O.O.3d 23, 24, 386 N.E.2d 845, 846-847.

. By so holding, we need not decide whether Rossi acted with sufficient diligence in removing his disability after assuming office because Gains does not raise this issue on appeal.