Merit Decision: Sealing/Unsealing Records of Conviction Strictly Governed by Statute. State v. Vanzandt

On January 28, 2015, the Supreme Court of Ohio handed down a merit decision in State v. Vanzandt, 2015-Ohio-236. In a 5-2 opinion written by Chief Justice O’Connor, the court held that a record of conviction judicially sealed pursuant to statutory authority cannot be unsealed when none of the exceptions in the sealing statute apply.  Justice O’Donnell dissented without opinion, and would dismiss the case as improvidently allowed.  Justice Pfeifer wrote a solo dissent. The case was argued May 27, 2014.

Case Background

Terrell Vanzandt was charged with four drug trafficking offenses. A jury acquitted Vanzandt of all charges, and he subsequently moved to seal the record pursuant to R.C. 2953.52, which the trial court granted. Several months later, Vanzandt was charged with retaliation against one of the witnesses in the drug trafficking case. The state moved to unseal the record in order to prove its retaliation case.  The trial court granted the motion to unseal Vanzandt’s record for the limited purpose of use by the state in the retaliation case. The First District Court of Appeals affirmed the trial court’s order to unseal Vanzandt’s record, on the authority of Pepper Pike, which allows for extrastatutory authority to seal records. The appeals reasoned that courts should have the same extrastatutory authority to unseal records. Read the oral argument preview of this case here and the analysis of the argument here.

Key Statutes and Precedent

Pepper Pike v. Doe, 66 Ohio St.2d 374 (1981) (“trial courts have authority to order expungement where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter.” A court considering expungement 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.” Paragraph two of the syllabus)

State v. Radcliff, Slip Opinion No. 2015-Ohio-235 (Decided the same day as Vandzandt)(courts do not have inherent authority to seal a judicial record of conviction after a gubernatorial pardon unless the person meets the statutory requirements for judicial record sealing. There is no statutory provision for judicial record sealing for those pardoned by the governor.)

R.C. 2953.52 allows any person (1) found not guilty by a jury or by a court…to file an application in support of sealing the official records affiliated with the case. The trial court must follow the procedures prescribed in the statute before sealing the records, which includes a codification of the Pepper Pike balancing test at R.C. 2953.52(B)(2)(d).

R.C. 2953.53(D) provides the necessary actions which must be taken by a public office or agency when a court order to seal records is received, and codifies the very limited exceptions to the availability of sealed records.

R.C. 2953.54(A)(3) allows an additional exception for law enforcement agencies to share information from sealed records in the investigation of another offense, “if the facts incident to the offense being investigated by the [second] law enforcement agency and the facts incident to [the sealed offense] are reasonably similar.” However, the statute limits the information which may be shared to the name of the person whose record is sealed, if the original investigating agency believes that information to be necessary to the second agency’s investigation.

Note: R.C. 2953.51-2953.61 do not otherwise contain a statutory procedure for unsealing a sealed record of non-convictions.

Merit Decision

Interpreting R.C. 2953(D)

The case turns on the interpretation of R.C. 2953(D), which generally provides that sealed records “shall not be available to any person.” The statute also contains four exceptions. First, the court held that the statute is unambiguous and needs no interpretation.  Shall means shall, and thus the statute is to be read as constituting a mandatory prohibition against unsealing, unless one of the four exceptions applies.  None did in this case.  So the state’s motion to unseal the records should have been denied.

Pepper Pike v. Doe

Pepper Pike was decided in 1981, a long time ago. Pepper Pike gave courts extrastatutory discretion to seal records in unusual and exceptional cases after weighing the applicant’s interest in sealing the records against the government’s interest in maintaining the records.  First of all, Pepper Pike involved sealing of records, not unsealing them.  And Pepper Pike was decided before the current record sealing statute was enacted.  When Pepper Pike was decided, the pertinent statute permitted the sealing of records of first-time offenders, but did not contain the provision for sealing the record in criminal cases resulting in acquittal or dismissal now codified in R.C. 2953.52. In that circumstance, the Supreme Court then determined that courts had limited extrastatutory authority to seal records of criminal proceedings in certain unusual and exceptional cases.  But in this case, Pepper Pike does not apply, as the current statute unambiguously prohibits the unsealing of the records in this case. The court has no discretion to create additional exceptions.

“We must heed the plain language of this unambiguous statute, and any claim of injustice must be resolved through the legislative process rather than judicial redress,” O’Connor wrote.

Justice O’Donnell dissented, without opinion, and would dismiss the case as improvidently allowed.

Justice Pfeifer’s Dissent

First, Justice Pfeifer commented on the fact that in the other case released the same day as Vanzandt, State v. Radcliff, the state argued that Pepper Pike no longer provides extrastatutory inherent power to seal records in criminal cases, and took exactly the opposite position in Vanzandt.  Pfeifer believes Pepper Pike lives, the court retains the inherent power to seal and unseal records in unusual and exceptional cases, and that both this and Radcliff  are such cases.  He would have allowed sealing in Radcliff and unsealing in Vanzandt.

“In Radcliff, the failure to seal the records ensures that a public-school employee with 20 years of good service is ineligible to work for the school. In this case, the failure to unseal the record ensures that a person accused of retaliating against a witness will not be prosecuted. Two cases, two exactly wrong conclusions. So much for justice, equity, sanity,” Pfeifer wrote.

Case Syllabus

1. When a statutory provision imposing a mandatory obligation has specifically enumerated exceptions, a court does not have discretion to create additional exceptions.

2. Official records that have been sealed pursuant to R.C. 2953.52 cannot be made accessible for purposes other than those provided in R.C. 2953.53(D).

Concluding Observations

The students and I all called this as a no-brainer loss for the state. Here’s what I wrote after argument:

“I think this decision is going to be short and simple—there simply is no statutory basis to unseal a record of acquittal, none of the limited exceptions in the statute fit, and the court is not likely to find any inherent authority to do so here. ” And that pretty well sums up the decision.

Vanzandt is one in a series of cases the court has decided involving the interplay among the branches of government over judicial record sealing.  Last year, in State v. Boykin, 2013-Ohio-4582, the court held that a gubernatorial pardon does not automatically entitle the recipient to have the record of the pardoned conviction sealed.  Read the blog’s analysis of Boykin here.

The same day Vanzandt was released, the court also decided State v. Radcliff2015-Ohio-235Radcliff, a follow-up to Boykin, was a 4-3 decision, in which the court held that a trial court does not have inherent authority to seal the record of a pardoned conviction where the petitioner has other offenses on his record.  The majority in Radcliff held that pardoned offenses are not included in the judicial sealing statutes, and therefore there is no room for judicial discretion over these, while the dissenters would find that Pepper Pike lives, and gives the trial court the discretion to expunge the record of a pardoned conviction.

For more background on sealing criminal records, read this guest post.

What really isn’t clear to me is exactly when Pepper Pike is still applicable. The majority decisions in Radcliff and Vanzandt  make it sound like  almost never.  Pepper Pike has not only never been overruled, its holding has been incorporated into R.C. 2953.52 (B)(2)(d). In 2013, in Schussheim v. Schussheim, a different 4-3 majority, (Justice O’Donnell wrote the opinion for himself,  Justices Pfeifer and O’Neill and an appellate judge sitting for Justice Kennedy) used Pepper Pike’s “unusual and exceptional circumstance” test to expand judicial authority to the sealing of dissolved civil protection orders in adult proceedings.   In Schussheim, which was a civil case, (a fact significant to the dissenters but not to the majority) Chief Justice O’Connor and Justice French expressed their disagreement with the application of Pepper Pike as a tool for the expansion of judicial power in the realm of sealing records, and O’Connor expressly wrote that she could “not condone the majority’s judicial activism” in that case. Justice French wrote, “[W]e have missed the opportunity to recognize Pepper Pike for what it was—a narrow, short-lived, judge-made “fix” to Ohio’s nascent criminal expungement statutes.” Justice Lanzinger joined the dissenters in Schussheim.

Maybe there is a legislator out there who would like to add gubernatorial pardons to the list of statutorily sealable offenses.  That seems like a solution that would satisfy all the justices.

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