What’s On Their Minds: Does a Pardon by the Governor Guarantee Sealing the Record of Conviction? State of Ohio and City of Akron v. Montoya L. Boykin.

Update: On October 22, 2013, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On April 10, 2013, the Supreme Court heard oral argument in the case of State of Ohio and City of Akron v. Montoya L. Boykin, 2012-0808/2012-1216. This matter was accepted on discretionary appeal and conflict certification and the cases have been consolidated. The issue is whether an offender who has received a gubernatorial pardon is entitled to have the record of her pardoned convictions sealed.

Case Background

Montoya Boykin received a gubernatorial pardon in 2009 for a felony receiving stolen property conviction in the Summit County Court of Common Pleas and for two misdemeanor theft offenses for which she was found not guilty in Akron Municipal Court. In 2010, Boykin separately moved both courts to seal her record. Both courts denied her motions. The Ninth District Court of Appeals consolidated the cases, and affirmed the trial court decisions, in a split decision. The majority found that a trial court has discretion to seal a pardoned conviction, but is not required to do so.  The dissent found that a pardoned conviction must be sealed to give full effect to the pardon. Read the oral argument preview in this case here.

Key Precedent

Pepper Pike v. Doe, 66 Ohio St. 2d 374 (1981) (syllabus)

1. The trial courts in Ohio have jurisdiction to order expungement and sealing of records in a criminal case where the charges are dismissed with prejudice prior to trial by the party initiating the proceedings.

2. The trial courts have authority to order expungement where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter. When exercising this power, the court should use a balancing test which weighs the privacy interest of the defendant against the government’s legitimate need to maintain records of criminal proceedings.

R.C. 2953.32

A first offender may move to have the record of conviction of eligible offenses sealed under this statutory provision.

R.C. 2953.52

The record of a criminal case may also be sealed under this provision where there is an acquittal, dismissal or no bill.

2967.01 Pardon – parole – probation definitions.

(B)- “Pardon” means the remission of penalty by the governor in accordance with the power vested in the governor by the constitution.

2967.04 Pardons and commutations

(B) An unconditional pardon relieves the person to whom it is granted of all disabilities arising out of the conviction or convictions  from which it is granted.

At the Supreme Court

Chief Justice O’Connor has recused herself from this case, probably because she was the Summit County Prosecutor at times relevant to the case.  Judge Stephen Shaw of the Third District Court of Appeals sat for her. Justice Pfeifer, who is the senior associate justice, presided at oral argument.

Boykin’s Argument

The Assistant Director of the Akron University Law School Legal Clinic argued for the defendant.  It was her position that a pardon conclusively entitles the recipient to have her pardoned convictions sealed because mandatory sealing gives the intended effect to the pardon. Allowing discretionary sealing would invade the governor’s exclusive constitutional authority to grant pardons. The Court has already recognized that a pardon places the recipient back in the same position as if the conviction had never occurred, and releases the recipient from all disabilities which flow from the conviction. A pardon is a remission of the crime as well as the punishment.  Convictions are sealed by acts of legislative grace.  But in a situation that does not fall under the statute—such as a gubernatorial pardon– sealing stems from a constitutional right of privacy. There are hundreds of collateral consequences to a conviction.  In this particular case, the defendant will suffer collateral consequences for her future employment aspirations.  She would like to get a social work license, but the social work board has a rule that anyone convicted of a crime of  moral tupitude cannot be licensed.  Theft is such a  crime. Sealing represents a decision by the governor that the defendant has been rehabilitated and deserves a second chance. Without sealing, the defendnt doesn’t get that.

Defense counsel was politely critical of the Common Pleas Court decision. In that case, the state filed no response to the defense motion to seal. The judge denied the motion anyway, without hearing, and commented that that conviction had been pardoned “for reasons unknown to this Court.”

 Prosecution’s Argument

An assistant Summit County Prosecutor and the Chief City Prosecutor each argued—the former dealing with the Common Pleas decision, the latter with the Municipal Court decision.

For the County

A gubernatorial pardon does not require the automatic sealing of the record by the trial court. A pardon forgives, but does not forget.  It is a remission of the penalty, but not of historical fact of the crime.  The trial court must examine the case to determine if the individual’s interest in privacy is outweighed by the government’s interest in keeping the public record.  The decision by a trial court not to seal the record has no impact on the pardon.  In this case the defendant has been forgiven, but the people have a right not to forget what she did. And a licensing board has the right to know about the conduct as well. There should be no erasure of that conduct. A pardon does relieve disabilities, but the mere existence of a conviction is not a disability.  The appeals court should be affirmed.

For the City

The trial court properly went through the balancing required in Pepper Pike and found no statutory entitlement to sealing in this case. Refusal to seal the record in no way negates the pardon. Removing legal disabilities is not the same as eliminating all collateral consequences of a conviction. A pardon restores such rights as the right to vote, serve on a jury, and hold office. The restoration of civil rights is different from the collateral consequences of a conviction, such as being unable to get a job.

What Was on Their Minds

Pardons, Statutory Record Sealing, and Expungements

In Pepper Pike did the Court set forth two separate paths for record sealing, asked Justice O’Donnell? Were the defendant’s convictions otherwise amenable to sealing by statute (answer: no) What exactly is the legal effect of a pardon, he asked? Does it go so far as to say the acts never occurred? Exactly which rights should be restored to the pardoned individual? Where would the Court find this list?

Does a pardon make the individual innocent, asked Justice O’Neill?

How is a pardon distinguished from an acquittal, asked Justice French? Does a pardon trump an acquittal?

Was defense counsel using “sealing and expungement” as a single term asked Justice Kennedy? (no, she wasn’t; she was asking only for sealing, not expungement. The terms are different.)

The trial judge didn’t apply the Pepper Pike test very carefully, Justice Pfeifer commented to the Assistant Summit County Prosecutor.  Her answer—the Municipal Court judge did. Should the case go back to the common pleas court to apply Pepper Pike correctly? (no thanks, said defense counsel, during rebuttal.)

What guides a trial court’s discretion in a statutory sealing procedure, asked Justice Lanzinger?

Disabilities versus Collateral Consequences of Conviction

If the defendant’s records are not sealed are there some collateral consequences to her, asked Justice O’Donnell? Licensure and employment?

Separation of Powers

Have other state supreme courts looked at this issue asked Justice O’Donnell? And allowed this by supreme court order?

Isn’t this a matter for the General Assembly, asked Justice O’Neill? And later he expressed his concern with a common pleas court judge expressing his disagreement with a gubernatorial pardon.  And in a key question of the day, he asked whether this case was “the poster child for what is wrong with the current system,” where a governor says you are pardoned and a trial judge, by denying the mechanism to enforce the pardon, expresses his disagreement with the governor’s decision without actually saying so.

When a governor has issued a pardon, isn’t he saying that he has already done the weighing and made a decision for the courts, and there is nothing left for the trial court to decide.  Is there a separation of powers problem with that, asked Justice French?

The Effectiveness of a Pardon in the Internet Age

In a very interesting question, Justice Lanzinger pressed on the effectiveness of any order redacting information in the internet age. How can mandatory sealing trump Google? Wouldn’t disseminating the fact of the pardon be a better way to mitigate the defendant’s disabilities? Justice O’Neill also expressed his concerns about this.

Wouldn’t an employer be interested in a pardon from the Governor, asked Justice O’Donnell? Can’t that be submitted to an employer?

Since the defendant had two other convictions that were not subject to the pardon, how will any of this actually help her, asked Justice French?

Justice Pfeifer voiced his concerns about a pardon in today’s world even if it were sealed.  If the pardoned individual states on a job application that she has never been arrested because she is allowed to do so, and the employer discovers that she was, that could come back to haunt her. An employer is interested in honesty and full disclosure.

How it Looks from the Bleachers

To Professor Bettman

This one looks hard to call.  In one of his question/comments Justice Pfeifer suggested  the case could be looked at in several ways—the very old cases clearly use language suggesting a pardon should wipe the slate clean and the case be sealed,  the Court could do a jurisdictional sweep, noting that a number of states have not gone done the wipe-the-slate clean route, or the Court could defer to the legislature. But he also noted a couple of times that the common pleas court, at least, gave short shrift to any test. And he was clearly underwhelmed by the arguments of both prosecutors about all the clerical hurdles the defense position would cause.

A number of justices expressed their concern with separation of powers issues—particularly with having a trial court reject the pardon sub rosa. The Court has always been vigilant about separation of powers issues—and that could favor the defendant here.

Finally, there was the reality factor—how can anything be permanently erased in this day and age? Still, as a former Board member of the Ohio Justice and Policy Center, my own consciousness has been raised about the collateral consequences of convictions—according to the marvelous data base of these collateral consequences created by OJPC,(access that database, CIVICC, here), there are currently 772 such sanctions.  That is very different from the basic disabilities discussed by the prosecutors, and more likely to interfere with an ex-con’s re-entry into life.

So, my heart says that I hope the Court goes with the defense.  I guess I haven’t changed all that much because that was also my position as an appellate judge in State v. Cope, the case in conflict with this one.

To Student Contributor Greg Kendall

A few justices are not convinced that requiring mandatory record sealing after a pardon would have the actual effect of removing disabilities, because of the wide availability of an individual’s conviction information in the Internet age. The Court will have to figure out whether cases that are many decades old should continue to define the legal effect of pardon. The justices also seem interested in the separation of powers issues implicated by a judge choosing not to seal the record if the judge disagrees with the governor’s decision to pardon.

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