THE STATE OF OHIO, APPELLEE, v. RADCLIFF, APPELLANT.
(Nos. 2012-1985 and 2013-0004
Supreme Court of Ohio
Submitted June 24, 2014—Decided January 28, 2015.)
[Cite as State v. Radcliff, 142 Ohio St.3d 78, 2015-Ohio-235.]
O‘CONNOR, C.J.
{18} Thus, although Judge Spitler should have had his staff copy all counsel on the e-mail requesting defense counsel to draft the proposed order, no extraordinary circumstances presently exist warranting Judge Spitler‘s removal from deciding the few issues remaining in the case.
{19} Accordingly, the affidavit of disqualification is denied. The case may proceed before Judge Spitler.
{11} In this appeal, we answer questions that were not addressed in our recent decision in State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, which held that “[a] gubernatorial pardon does not automatically entitle the recipient to have the record of the pardoned conviction sealed.” Id. at syllabus.
{12} We are presented with a certified conflict between the decision of the Tenth District Court of Appeals in this case and a prior decision of the First District Court of Appeals, State v. Cope, 111 Ohio App.3d 309, 676 N.E.2d 141 (1st Dist.1996). The conflict question asks, “May a trial court exercise jurisdiction to seal the record of a pardoned conviction where the petitioner has other offenses on his record?”
{13} And in a discretionary appeal that we consolidated with the certified conflict, we are presented with a proposition of law that states, “A trial court has the inherent authority to seal the records of a conviction, which has been erased by a pardon from the governor, in order to give effect to an important constitutional provision.” 134 Ohio St.3d 1466, 2013-Ohio-553, 983 N.E.2d 367.
{14} We answer the certified question in the negative, reject the holding in Cope, and overrule the proposition of law. We therefore affirm the judgment of the Tenth District Court of Appeals.
RELEVANT BACKGROUND
{15} On January 7, 2011, Governor Ted Strickland, acting under the authority conferred on him by
{16} On February 28, 2011, Radcliff applied to the Franklin County Common Pleas Court for an order sealing his conviction in that forum. Appellee, the state of Ohio, opposed his application, arguing that Radcliff was ineligible to have his record sealed under the statutory framework of
{17} After conducting a hearing, the trial court granted Radcliff‘s application to seal. In its resulting order, the trial court stated that it was acting “[i]n accordance with”
{18} The state appealed to the Tenth District Court of Appeals. The appellate court reversed.
{19} The appellate court recognized that although the trial court had cited
{110} The appellate court turned to our decision in Pepper Pike, which held that a court may seal criminal records after applying a balancing test that “weighs the privacy interest of the defendant against the government‘s legitimate need to maintain records of criminal proceedings” and “where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction.” Pepper Pike at paragraph two of the syllabus. But as the appellate court recognized, at the time we decided Pepper Pike, the General Assembly had not yet enacted
{111} The appellate court held that the vitality of Pepper Pike had been limited by subsequent case law that applied Pepper Pike only in cases in which the defendant had not been convicted of a crime. Id. at 1 51. After an extensive review of this court‘s precedent on gubernatorial pardons, the United States Supreme Court‘s decisions on presidential pardons, and the decisions of its sister appellate courts, the appellate court ultimately concluded that “a pardon neither erases the conviction nor renders the pardon recipient innocent as if the crime were never committed.” Id. It concluded that Radcliff was not eligible for judicial “expungement”1 or other statutory relief, and it therefore vacated the
{12} Subsequently, the Tenth District certified its decision as in conflict with Cope, 111 Ohio App.3d 309, 676 N.E.2d 141. In Cope, the First District held that “a trial court may exercise its jurisdiction to seal the record of a conviction which has been erased by a pardon, regardless of whether the petitioner has other offenses on his record.” Id. at 312.
{13} We recognized the conflict, accepted Radcliff‘s discretionary appeal, and consolidated the causes. 134 Ohio St.3d 1466, 2013-Ohio-553, 983 N.E.2d 367. For the reasons that follow, we resolve the interdistrict conflict by rejecting Cope, and we reject the proposition of law presented in Radcliff‘s discretionary appeal. We therefore affirm the decision of the Tenth District Court of Appeals.
ANALYSIS
{14} The appellate court found that the record in this case suggests that Radcliff deserves redemption. But if he is to have that redemption, it must come from the General Assembly.
The Sealing of a Record Is a Privilege That Flows Primarily from the Legislature
{15} Our analysis is driven initially by what we have held previously: “the sealing of a criminal record is a “‘privilege, not a right.“‘” State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, 1 15, quoting State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, 1 11, quoting State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, 1 6. Accord State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000); State v. Hamilton, 75 Ohio St.3d 636, 639-640, 665 N.E.2d 669 (1996). Sealing a criminal record at the request of the offender is an “act of grace created by the state.” Boykin at 1 11, quoting Hamilton at 639. Accordingly, a court may seal an offender‘s conviction record “only when all requirements for eligibility are met.” Id., citing Futrall at 1 6.
{17} In the usual course, the legislature determines the eligibility for sealing a record. The General Assembly has done so through
R.C. 2953.52(A) permits any person who has been found not guilty by a jury, who is the defendant named in a dismissed indictment, or against whom the Grand Jury enters a no bill, to apply to the court for an order sealing the official records of the case.R.C. 2953.32(A)(1) permits a first offender to apply to the sentencing court for an order sealing the record of conviction. A first offender is “anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction.”R.C. 2953.31(A) .Under either section, the court must determine if the prosecutor filed an objection to the application and, if so, consider the prosecutor‘s reasons for the objection.
R.C. 2953.32(B) ;R.C. 2953.52(B) ; Koehler [v. State, 10th Dist. Franklin No. 07AP-913, 2008-Ohio-3472] at 1 13. The court also must weigh the applicant‘s interests in having the records sealed against the legitimate needs, if any, of the government to maintain the records.R.C. 2953.32(C)(1) ;R.C. 2953.52(B)(2)(d) . If the applicant fails to satisfy any one of the statutory requirements, the court must deny the application. Id. at 1 13, citing State v. Krantz, 8th Dist. No. 82439, 2003-Ohio-4568, 1 23. None of the applicable statutes permits a defendant to seek expungement after obtaining a gubernatorial pardon, and defendant acknowledges he is not entitled to expungement under either statutory provision.
Radcliff, 2012-Ohio-4732, 978 N.E.2d 1275, at 1 18-9. See also Boykin at 1 17 (“Neither
{18} Instead of the statutory authority to seal his record, Radcliff relies on what he asserts is the judiciary‘s inherent authority to seal records. We recognized the judiciary‘s authority to seal certain criminal records in Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303.
{20} But in recognizing the authority of the municipal court to seal the record in Pepper Pike, we noted that it was “clear from the context and history of the matter that appellant‘s former husband and current wife used the courts as a vindictive tool to harass appellant.” Id. We found that the facts giving rise to Pepper Pike were “such unusual and exceptional circumstances” that it was appropriate for the trial court to exercise its jurisdiction “to expunge and seal all records in the case.” Id. Our holding was limited, and driven by two considerations: the unique facts of that case and the absence of legislative guidance.
{121} We cautioned that Pepper Pike was “the exceptional case” and that the decision “should not be construed to be a carte blanche for every defendant acquitted of criminal charges in Ohio courts.” Id. Instead, it remained the norm for courts to lack the discretion to seal criminal records because “[t]ypically, the public interest in retaining records of criminal proceedings, and making them available for legitimate purposes, outweighs any privacy interest the defendant may assert.” Id.
{22} Significantly, at the time we decided Pepper Pike, the General Assembly had not enacted a statute to address the situation with which we were then presented, i.e., a defendant acquitted of charges brought purely to harass and vex her. In 1981, the only statute for sealing records was
{123} It was not until three years after Pepper Pike that the General Assembly enacted
{125} When the General Assembly enacted
The Judiciary‘s Inherent Authority to Order Sealing of a Record Is Subservient to the Legislature‘s Authority
{126} When we relied upon our own, extrastatutory authority to permit sealing in Pepper Pike, we did so because of the importance of the constitutional right to privacy and the lack of any statutory remedy for the person pleading for sealing, who had not been convicted of any crime. See State v. Weber, 19 Ohio App.3d 214, 216, 484 N.E.2d 207 (1st Dist.1984). Accord Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 698-699 (5th Cir.1997) (noting that a court‘s inherent power to seal is equitable in nature but limited to cases in which “no other remedy existed to vindicate important legal rights,” such as United States v. McLeod, 385 F.2d 734, 750 (5th Cir.1967), in which the court used its inherent power to expunge the records of African-Americans who had been arrested to prevent them from voting). As the Twelfth District has explained, Pepper Pike “was directed toward the inequity that results from application of
{127} But neither the rule of Pepper Pike nor its rationale has vitality when the offender has been convicted and is not a first-time offender. “While it is true that a trial court has inherent power to order an expungement absent statutory authority, it is a limited power.” State v. Bailey, 10th Dist. Franklin
{128} Since our decision in Pepper Pike was rendered, a host of Ohio‘s appellate courts have similarly and consistently recognized the limitation on a court‘s inherent authority to act in this area of the law. See, e.g., State v. Bailey, 10th Dist. Franklin No. 02AP-406, 2002-Ohio-6740, 2002 WL 31750242; State v. Brasch, 118 Ohio App.3d 659, 663, 693 N.E.2d 1134 (12th Dist.1997); State v. Netter, 64 Ohio App.3d 322, 325-326, 581 N.E.2d 597 (4th Dist.1989); State v. Moore, 31 Ohio App.3d 225, 227, 510 N.E.2d 825 (8th Dist.1986); Stadler, at 11. We agree that Pepper Pike is “simply inapposite” to cases involving convicted offenders, even if they have been pardoned. Weber, at 218.
{29} In reaching our conclusion, we are mindful that the law of pardons implicates a delicate balance of power among the three branches of government. The
{130} By its plain wording,
{131} The Constitution permits the General Assembly some power in the area of pardons. Although the legislature lacks any authority to create substantive regulations that limit the governor‘s power to pardon, it is empowered to impose procedural prerequisites to the application process for pardons. State ex rel. Maurer v. Sheward, 71 Ohio St.3d 513, 519-520, 644 N.E.2d 369 (1994). And the
{32} For example,
{133} Given the importance placed on record preservation in the statutory scheme governing pardons, we should not intrude on the record-keeping rules provided by the General Assembly. Just as the courts must jealously protect the judicial power against encroachment by the executive and legislative branches, see, e.g., Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, 1 16-118, citing State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 462, 467, 715 N.E.2d 1062 (1999), we also must protect the power and constitutional authority of the executive and legislative branches from improper interference by the judiciary. The power of the pardon lies in the executive branch, and the power to require retention of records of the crime from which the pardon arose lies primarily in the legislative branch. Notwithstanding the fact that courts have both statutory and extrastatutory authority to seal criminal records, the judicial branch should restrain its power to act in this area.
{134} That said, we are not unmindful that Radcliff has been pardoned for his crimes. And he may, as the appellate court suggested, be deserving of the opportunity to continue to be a productive, law-abiding member of society without the badges and incidents of his conviction. In that regard, he is not alone.
As stated earlier in this opinion, however, the equities in this case weigh heavily in appellant‘s favor. The record is replete with evidence of appellant‘s remarkable achievements both in his personal and professional life. Appellant has more than demonstrated that he is deserving of a fresh start. Unfortunately, state law precludes us from equitable consideration if a prior conviction has been demonstrated.
The frustration of the courts in situations such as this one was noted in a recent case before the First District Court of Appeals, where Judge Marianna Brown Bettman expressed the hope that “the legislature will consider amending the expungement statute to give our trial judges discretion in the granting of expungements. * * * [C]ertain defendants who do not technically meet the present definition of first offenders would clearly benefit from the statute‘s remedial purpose, and our trial judges, who are in the best position to make this decision, are handcuffed by the present law.
“In Barker v. State (1980), 62 Ohio St.2d 35, 41, 16 O.O.3d 22, 25-26, 402 N.E.2d 550, 554-555, the Ohio Supreme Court wrote that the purpose of the expungement statute ‘is to provide remedial relief to qualified offenders in order to facilitate the prompt transition of these individuals into meaningful and productive roles.’ * * * That purpose * * * is to encourage those who have committed crimes, who have been appropriately punished, and who have been properly rehabilitated to get on with their lives. Nowhere, perhaps, is this more important than in getting and keeping a job. We want to encourage all of our citizens to have productive employment.
“* * * [O]ur trial judges are unable to effectuate these goals under the present statute.” State v. Coleman (1997), 117 Ohio App.3d 726, 729, 691 N.E.2d 369, 370-371 (Bettman, P.J., concurring).
We must reluctantly overrule appellant‘s first assignment of error.
Brasch, 118 Ohio App.3d at 664-665, 693 N.E.2d 1134.
{36} Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the
CONCLUSION
{137} We hold that a court lacks the authority to seal a criminal record of a pardoned offender who does not meet applicable statutory requirements for sealing the record. Accordingly, we answer the certified question in the negative, reject the proposition of law presented in the discretionary appeal, and affirm the Tenth District‘s judgment in this cause.
O‘DONNELL, KENNEDY, and FRENCH, concur.
PFEIFER, LANZINGER, and O‘NEILL, JJ., dissent.
PFEIFER, J., dissenting.
Judgment affirmed.
{38} The majority opinion states, “When the General Assembly enacted
{139} The majority opinion draws exactly the wrong conclusion. It states, “Despite the General Assembly‘s repeated returns to the subject of criminal record-sealing, it has never shown, or even suggested, any intent to extend this remedy to an offender who has been pardoned.” Majority opinion at 1 32. Although that is true, it can equally be said that the General Assembly has never stated that records of crimes for which the offender has been pardoned cannot be sealed, even though it is aware that pursuant to Pepper Pike, records of such crimes can be sealed in unusual and exceptional circumstances. Id. at paragraph two of the syllabus.
{140} The General Assembly is fully capable of superseding judicial decisions. E.g., 2001 Am.Sub.S.B. No. 97 (amending
{141} In Pepper Pike, this court held that “trial courts have authority to order expungement where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter.” Pepper Pike, 66 Ohio St.2d 374, 421 N.E.2d 1303, at paragraph two of the syllabus. This holding remains good law, having been neither overruled by this court nor superseded by legislation. See State ex rel. Morris v. Sullivan, 81 Ohio St. 79, 90 N.E. 146 (1909), paragraph three of the syllabus (“Statutes are to be read and construed in the light of and with reference to the rules and principles of the common law * * * [and] the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention“). See Bresnik, 67 Ohio St.3d at 304, 617 N.E.2d 1096, citing Sullivan with approval.
{143} In this case, the trial court found that sealing Radcliff‘s record was “consistent with the public interest.” This finding is not an abuse of the trial court‘s discretion for a variety of reasons:
{144} 1. Pepper Pike, which states that courts have the authority to seal records even in the absence of a statutory grant of authority.
{145} 2.
{146} 3. The fact that
{147} 4. State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 650, 4 N.E. 81 (1885), which states, “A full and absolute pardon releases the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent on his conviction.”
{148} 5. State ex rel. Gordon v. Zangerle, 136 Ohio St. 371, 376, 26 N.E.2d 190 (1940), which states, “A full pardon purges away all guilt and leaves the recipient from a legal standpoint, in the same condition as if the crime had never been committed.”
{149} 6. Knapp v. Thomas, 39 Ohio St. 377, 381 (1883), which states, “Though sometimes called an act of grace and mercy, a pardon, where properly granted, is also an act of justice, supported by a wise public policy.”
{150} 7. An acknowledgment from a most unusual source of authority, the opposing party in this case, the state of Ohio. In State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, the state argued in its brief not only that Pepper Pike is good law but that it should be extended, stating: “Just as there is judicial authority to seal records in unusual and exceptional cases, there should also be a judicial authority to unseal records in unusual and exceptional cases.”
{151} These factors, when considered in aggregate, convince me that the trial court did not act unreasonably, arbitrarily, or unconscionably when it granted Radcliff‘s request to seal the record of his convictions. It is not unreasonable to conclude that the state‘s interest in providing records of criminal convictions that occurred at least 30 years ago and for which the offender has been unconditional-
{152} I would answer the certified question in the affirmative and reverse the court of appeals. Although there is a certain amount of justice in Commonwealth v. C.S., 517 Pa. 89, 93, 534 A.2d 1053 (1987), in which the Supreme Court of Pennsylvania stated that “[a] pardon without expungement is not a pardon,” it is unnecessary in this case to state the proposition so unequivocally. It is enough to say that a trial court has inherent authority to seal the record of a conviction for which the offender has been pardoned pursuant to the standard established in Pepper Pike.
{153} The majority opinion‘s conclusion, that “a court lacks the authority to seal a criminal record of a pardoned offender who does not meet applicable statutory requirements for sealing the record,” Majority opinion at 1 37, is, based on the facts of this case, illogically circular, a legalistic Möbius strip. The statutes at issue do not mention the word “pardon” and therefore do not apply to Radcliff. Thus, although the majority opinion states that Radcliff has not complied with “applicable statutory requirements,” id., the statutory requirements to which the opinion refers are, in fact, irrefutably not applicable to offenders who have been pardoned.
{154} I dissent.
LANZINGER and O‘NEILL, JJ., concur in the foregoing opinion.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert and Michael P. Walton, Assistant Prosecuting Attorneys, for appellee.
Yeura R. Venters, Franklin County Public Defender, and Timothy E. Pierce and John W. Keeling, Assistant Public Defenders, for appellant.
Notes
See also State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, 1 11 and fn. 1.Though the Tenth District repeatedly referred to the process at issue in this case as “expungement,” we note that expungement is a separate process from sealing a conviction record. Expungement results in deletion, making all case records “permanently irretrievable,”
R.C. 2953.37(A)(1) , while sealing simply provides a shield from the public‘s gaze.R.C. 2953.32(D) , restricting inspection of sealed records of conviction to certain persons for certain purposes. We use the term “expungement” in this opinion only where it appears in quoted material.