Com. v. Vickey

• Decision Date: 17 November 1980
• Citation: 381 Mass. 762,412 N.E.2d 877
• Parties: COMMONWEALTH v. Robert T. VICKEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 877

412 N.E.2d 877

381 Mass. 762

COMMONWEALTH v. Robert T. VICKEY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept. 8, 1980.

Decided Nov. 17, 1980.

Natasha C. Lisman, Boston, for defendant.

Linda-Marie Irvin, Asst. Atty. Gen., for Comm'r of Probation.

John J. Droney, Dist. Atty., and Susan C. Mormino, Asst. Dist. Atty., for the District Attorney for the Northern Dist., amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

In May, 1978, Robert T. Vickey (defendant) successfully sought, pro se, to have a Superior Court judge order the sealing of his record of conviction. The office of the Commissioner of Probation (Commissioner) refused to comply. On July 19, 1979, Vickey filed a motion seeking an order to compel the Commissioner to seal his record. On September 24, 1979, the same judge vacated his order of May, 1978, and denied Vickey's motion. Vickey appealed. We transferred the appeal from the Appeals Court on our own motion and now affirm.

The facts may be summarized as follows. On December 1, 1972, Vickey pleaded guilty to a charge of making a false bomb report, in violation of G.L. c. 269, § 14. At the time of his plea Vickey was twenty-three years old and without any prior criminal record. He received a suspended two-year sentence to a house of correction. On May 16, 1974, some seven months short of the two-year probation term, a Superior Court judge terminated and dismissed Vickey's probation. On May 10, 1978, the Governor, with the advice and consent of the Council, granted Vickey a full pardon. G.L. c. 127, § 152.

The motion judge ruled that Vickey's record could not be sealed pursuant to the provisions of G.L. c. 276, §§ 100A, 100C. ¹ The judge ruled further that a pardon is not analogous to a dismissal and that the case did not require the exercise of ancillary or inherent jurisdiction. We agree.

The defendant concedes that his request does not come within the provisions of G.L. c. 276, §§ 100A and 100C, but argues that G.L. c. 6, § 171, ² recognizes a judicial power to order sealing or purging without preemption by the provisions for sealing in G.L. c. 276, §§ 100A and 100C. He contends further that this case presents the same policy considerations which underlay our balancing of the competing interests in Police Comm'r of Boston v. Municipal Court of Dorchester Dist., 374 Mass. 640, 374 N.E.2d 272 (1978). We find the defendant's reading of the pertinent statutes, as well as his analogy to Police Comm'r, inapposite.

To the extent that the defendant relies on G.L. c. 6, § 171, we note it refers only to the "purging" of certain records. We treat the term "purging" as synonymous with "expungement." As noted in Police Comm'r, expungement is the total removal of a record "so that no trace of the information remains." Id. at 648, 374 N.E.2d 272. Sealing, the relief sought here, "refers to those steps taken to segregate certain records from the generality of records and to ensure their confidentiality to the extent specified in the controlling statute." Id. Despite considerable confusion in applying this terminology, ³ the Massachusetts Legislature made clear its knowledge of the distinctions involved by changing the language of G.L. c. 94C, § 44, from "expungement" to "sealing." St.1973, c. 533, § 1. The principal benefit which accrues to an ex-offender whose record is sealed is that he may state on employment applications that he has no record of arrest or conviction, and the Commissioner must corroborate this statement. G.L. c. 276, § 100A. Sealed records may nevertheless be made available to "any law enforcement agency, any court, or any appointing authority." G.L. c. 276, § 100A, as amended through St.1975, c. 278. We noted also in Police Comm'r that specific legislative authorization for sealing extends only to court and probation records, but that G.L. c. 6, §§ 167-178, extends the confidentiality protection to all criminal records. See 374 Mass. at 650, 653, 374 N.E.2d 272.

We consider first the defendant's argument that the modification of G.L. c. 6, § 171, subsequent to the enactment of G.L. c. 276, §§ 100A and 100C, impliedly repealed those sections. In 1977 the Legislature added a third paragraph to G.L. c. 6, § 171. St.1977, c. 691, § 3. Its failure at that time to modify the already existing statutory provision in § 171(b ) regarding purging "by the order of any court of competent jurisdiction," cannot be interpreted, as Vickey suggests, to repeal or affect the application of the sealing statutes. We cannot read such an intent from the mere fact of legislative silence. More importantly, our perusal of the language of G.L. c. 276, §§ 100A and 100C, in juxtaposition with G.L. c. 6, § 171, shows no contradiction or repugnance. The three sections are easily harmonized as serving the legislative purpose to protect individuals from unnecessary and overbroad dissemination of criminal record information. See Commonwealth v. Hayes, 372 Mass. 505, 510-512, 362 N.E.2d 905 (1977); Board of Educ. v. Assessors of Worcester, 368 Mass. 511, 514, 333 N.E.2d 450 (1975); 2A C. Sands, Sutherland Statutory Construction § 51.01 (4th ed. 1973).

We turn now to the defendant's claim that the judge had the power to compel the sealing of the defendant's records under the court's inherent or ancillary powers, as described in Police Comm'r of Boston v. Municipal Court of Dorchester Dist., 374 Mass. 640, 374 N.E.2d 272 (1978). In Police Comm'r, supra at 650-651, 374 N.E.2d 272, we construed G.L. c. 6, § 171, to give broad recognition to the authority of the courts to act to the full extent of their previously existing jurisdiction. We also acknowledged in Police Comm'r that the court's treatment of criminal records may be defined by statute, id. at 650, 374 N.E.2d 272, and that the court might act in the absence of a clear statutory definition. Id. In Police Comm'r, a juvenile sought expungement of police records pertaining to a delinquency proceeding which had been dismissed with prejudice. Although G.L. c. 276, § 100B, delineates sealing procedures regarding juvenile records, we found no explicit statutory right to expungement or to protection of juvenile records outside the court or probation department. Cf. G.L. c. 6, §§ 167, 171. The juvenile in Police Comm'r could not base his claim on any specific statutory provisions, nor did the judge of the Juvenile Court rely on any such provisions.

By contrast, Vickey seeks the sealing of his conviction record despite an applicable and statutorily prescribed waiting period. The defendant acknowledges that he is ineligible for sealing under any statutory provision but urges this court to read into G.L. c. 6, § 171, a judicial power to bypass the plain language of G.L. c. 276, § 100A. The defendant errs in his intimation that the court in Police Comm'r found judicial power under § 171. We stated that § 171 does not grant the power to issue orders to purge, or to seal. General Laws c. 6, § 171, is "not to be read as a grant of power to issue such (purging) orders, but as recognition of the authority of courts to act to the full extent of their previously existing jurisdiction." 374 Mass. at 650-651, 374 N.E.2d 272. This general language does not undercut the specific language of the sealing statutes.

Here the meaning of G.L. c. 276, §§ 100A and 100C, is plain on its face. The types of dispositions for subsequent offenses which do not abridge the right to sealing of a prior record are set forth with particularity in § 100A: not guilty, dismissed for want of prosecution, dismissed at request of complainant, nol-prossed, no bill. Section 100C specifies the types of dispositions for which a court may direct immediate sealing of records: nolle prosequi, dismissal. The defendant apparently contends that the omission of the term "pardon" from these sections creates a statutory gap similar to the one we saw in Police Comm'r. This suggestion would require our stretching the statutory words beyond their fair meaning. See Holbrook v. Randolph, 374 Mass. 437, 440-441, 373 N.E.2d 941 (1978). Because the dispositions enumerated are premised on a presumption of innocence, it would take a strong demonstration of a legislative purpose not to limit the availability of sealing to the named dispositions in order to overcome the plain text of the statute. See County Comm'rs of Norfolk County v. Board of Norfolk County Retirement Sys., --- Mass. ---, --- ^a, 387 N.E.2d 568 (1979). Moreover, a basic tenet of statutory construction is to give the words their plain meaning in light of the aim of the Legislature, and when the statute appears not to provide for an eventuality, there is no justification for judicial legislation. Prudential Ins. Co. v. Boston, 369 Mass. 542, 546-547, 340 N.E.2d 858 (1976). Furthermore, the difference outlined in the next part of our opinion, between a pardon and the dispositions named by statute, leads us to conclude that the omission of pardon is not fortuitous.

Because there was a conviction in his case, Vickey seems to suggest a quid pro quo: dismissal in Police Comm'r yielded expungement; therefore, the pardon in his case should result in immediate sealing. In making this argument Vickey overlooks the significant distinction between a finding of not guilty or a dismissal of charges, or other similar disposition, and a pardon. We turn now to an examination of the various meanings which may attach to an executive grant of a pardon.

a. The history of pardons. The law of pardons has been somewhat obfuscated by the failure to differentiate a pardon for innocence from a pardon for other reasons. See Weihofen, Pardon: An Extraordinary Remedy, 12 Rocky Mtn.L.Rev. 112 (1940). Professor Weihofen points out that pardons have issued for such highminded purposes as correcting erroneous convictions or maintaining political harmony, and for the merely practical...