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Revisiting Pepper Pike v. Doe

Back in 1978, a woman filed charges claiming that her husband's ex-wife had assaulted her.  The charges were bogus, and the case was dismissed on the day of trial.  The defendant filed a motion to have the arrest and all other records of the case expunged.  The Supreme Court, in Pepper Pike v. Doe, decided that given the "unusual and exceptional circumstances" of the case, the court had inherent authority to expunge the records.

That led to the passage of RC 2953.51, which allows for the sealing of an arrest record if the defendant is acquitted or the charges are dismissed.  What we learned from the Supreme Court last week is that the expungement statutes for sealing an arrest record or a conviction now define the court's authority, regardless of what "unusual" or "exceptional" circumstances exist. 

First up was State v. VanzandtHe would seem to be a perfect candidate for having his arrest record sealed; he'd been acquitted of the drug trafficking charges levied against him.  And so the trial court did, only to be presented with a motion by the State three months later to unseal the records.  The State claimed that Vanzandt's acquittal had been procured by threatening one of the witnesses against him, and wanted to pursue an intimidation case against Vanzandt.  That, of course, would require them to present evidence of the trafficking case, the proceeding which served as the basis for the intimidation claim.  The judge agreed.

The Supreme Court didn't.  The statute does allow for access to sealed records, but only in narrow circumstances:   by the person whose records were sealed, by a police officer defending against a civil action involving the case, or by a prosecutor, in determining whether a defendant is eligible for diversion.  The reason the State presented for unsealing Vanzandt's records didn't fall into any of those, so no go.

In 2011, the governor granted a pardon to Radcliff for five convictions which occurred some thirty years ago.  Last year, in State v. Boykin, the court held that a pardon didn't automatically entitle a defendant to expungement, and last week's decision in State v. Radcliff expands on that by holding that a defendant can't get a pardoned conviction expunged unless he otherwise meets the qualifications of the statute.

Given the statutes, Radcliff and the State in Vanzandt were left to rely on Pepper Pike and the assertion that a court has inherent authority to grant the relief being sought.  (Pfeifer, who dissented in both cases, noted in Vanzandt the diametrically opposite the positions the State was taking:  arguing for the court's extra-statutory authority in Vanzandt, and against it in Radcliffe.)  From a purely precedential view, that's a hard argument to make; Pepper Pike involved the sealing of records of an arrest, while Vanzandt involved unsealing them, and Radcliff involved the sealing of a conviction.

But the argument doesn't go anywhere in either case:  the court holds that while it was writing on a blank slate in Pepper Pike, the legislature had filled out that slate.

That's not necessarily dispositive of the question, though; it presumes that when the legislature decided to regulate the expungement process, it did so with the intent of pre-empting the court's authority to go beyond that in "unusual and exceptional" circumstances.  Radcliff may well have presented just such a situation.  He'd committed a number of felonies in his youth, but in the past 30 years had led an exemplary life:  he was married and supported his disabled wife and her four children from a previous marriage, and became an active member of the church.  He'd obtained a custodial position with the Dublin City schools, and in 21 years rose to the position of lead custodian at the high school.  He was fired after a local newspaper published an article about his criminal record and that of other school employees. 

The court's not unsympathetic to that, and indeed the real blame here lies in the harshness of Ohio's expungement statute.  The list of offenses which can't be expunged has steadily grown, and there's no sell-by date for them:  that "aggravated shoplifting" case -- pushing the security guard who tries to stop you from leaving the store with that $5 bottle of purloined shampoo -- you picked up when you were 18 stays on your record for the rest of your life. 

It could be that the court's decisions, especially in Radcliff, could turn out for the better.  Had the court decided it could go beyond what the statutes dictate, there would have been no incentive for the General Assembly to change the law.  Now, faced with the prospect that it is the ultimate authority in this area, and the court's chastisement about the harshness of the law, the legislature may finally decide to remedy that.

Be sure to hold your breath.


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