In re Petition for Expungement of Criminal Record Belonging to T.O., 011121 NJSC, A-55-19

Docket NºA-55-19
Opinion JudgeRABNER, CHIEF JUSTICE
Party NameIn re Petition for Expungement of the Criminal Record Belonging to T.O.
AttorneyJennifer A. Hradil argued the cause for appellant T.O. (Gibbons, attorneys; Jennifer A. Hradil and William J. Palatucci, of counsel and on the briefs, and Brendan J. Kelly, on the briefs). Erin M. Campbell, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Esther Suarez, ...
Judge PanelRABNER, C.J., JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER's opinion. JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER's opinion.
Case DateJanuary 11, 2021
CourtSupreme Court of New Jersey

In re Petition for Expungement of the Criminal Record Belonging to T.O.

No. A-55-19

Supreme Court of New Jersey

January 11, 2021

Argued October 26, 2020

On certification to the Superior Court, Appellate Division.

Jennifer A. Hradil argued the cause for appellant T.O. (Gibbons, attorneys; Jennifer A. Hradil and William J. Palatucci, of counsel and on the briefs, and Brendan J. Kelly, on the briefs).

Erin M. Campbell, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Esther Suarez, Hudson County Prosecutor, attorney; Erin M. Campbell, on the briefs).

Guillermo C. Artiles argued the cause for amici curiae the Honorable Christopher J. Christie, Honorable Jon S. Corzine, Honorable Richard J. Codey, Honorable James E. McGreevey, Honorable John O. Bennett, Honorable Donald T. DiFrancesco, Honorable Christine Todd Whitman, Honorable James J. Florio, and Honorable Thomas H. Kean, Sr. (McCarter & English, attorneys; Guillermo C. Artiles and Geoffrey Rosamond, of counsel and on the brief, and Omar A. Bareentto and Newton Portorreal, Jr., on the brief).

Tess Borden argued the cause for amici curiae American Civil Liberties Union of New Jersey, New Jersey Institute for Social Justice, and Volunteer Lawyers for Justice (American Civil Liberties Union of New Jersey Foundation, attorneys; Tess Borden, Alexander Shalom, and Jeanne LoCicero, on the brief).

RABNER, C.J., writing for the Court.

In this case, the Court considers the effect of a gubernatorial pardon on a request to expunge a criminal record.

T.O. has two prior convictions: aggravated assault, from May 1994, and possession of a controlled dangerous substance within 1, 000 feet of school property, from May 1996. Since his release from prison more than two decades ago, T.O. has not been arrested and has led a productive life. From 2001 to 2016, he worked for a private corrections company, where he rose from an entry-level employee to supervisor of operations. T.O. also volunteered at a homeless shelter and started a nonprofit group that feeds the homeless.

In October 2017, T.O. filed a petition for executive clemency. In January 2018, then-Governor Christopher J. Christie granted T.O. "a full and free Pardon for all criminal charges and convictions arising" out of his two prior arrests and convictions. In June 2018, T.O. filed a petition to expunge all records related to the convictions.

The State opposed T.O.'s petition and argued that N.J.S.A. 2C:52-2(a) barred expungement for individuals with multiple convictions. Aside from the State's reading of the expungement statute, the prosecutor conceded that "[i]f there is a person deserving of an expungement . . ., it is [T.O.]" The trial court agreed on both points: the court concluded that T.O.'s petition was subject to the statutory bar, which the pardon did not wipe out. Had the statute read otherwise, the court observed, T.O. "would have qualified" for expungement. The Appellate Division affirmed, and the Court granted T.O.'s petition for certification. 241 N.J. 199 (2020).

HELD: Pardons remove legal disabilities linked to the conviction itself but do not erase the underlying facts of an offense. Here, T.O. faced a statutory bar that prevented him from being eligible for expungement. That legal disability came into play solely because of his prior convictions. The pardon -- which removed the legal disabilities that arose from those convictions -- therefore dissolved the statutory bar. With the bar removed, T.O. is eligible to be considered for expungement on the merits. In light of the State's concession and the trial court's agreement that T.O. would qualify for expungement in the absence of a statutory bar, the Court grants T.O.'s petition for expungement.

1. In New Jersey, expungement is provided for by a statutory scheme "with the primary objective of providing relief to the reformed offender who has led a life of rectitude and disassociated himself with unlawful activity." N.J.S.A. 2C:52-32. Not all convicted individuals, however, are eligible for expungement. Among other restrictions at the time T.O. filed his petition, the expungement statute provided, in part, that "a person may present an expungement application . . . if: the person has been convicted of one crime under the laws of this State, and does not otherwise have any prior or subsequent conviction for another crime." N.J.S.A. 2C:52-2(a) (2018) (emphasis added). The parties do not rely on later amendments to the statute that enable a person with multiple convictions to seek expungement of the latest conviction. (pp. 9-11)

2. Individuals who apply for expungement have an initial burden to satisfy the requirements of the expungement statute by a preponderance of the evidence. Once petitioners satisfy their burden, the burden shifts to the State to demonstrate by a preponderance of the evidence that there is a statutory bar or that the petition should not be granted. N.J.S.A. 2C:52-14 outlines grounds for the denial of an expungement petition. If the State does not meet its burden, the petitioner is presumptively entitled to expungement. The expungement statute has been amended over time to expand opportunities for expungement. Despite multiple amendments to the statutory scheme, the expungement law is silent about the effect of a pardon. (pp. 11-14)

3. The Court reviews cases dating back to the 1800s in which the United States Supreme Court interpreted the presidential pardon power granted by the Federal Constitution, as well as an influential article by Professor Williston. The New Jersey Constitution also empowers the Executive to grant pardons. The Court reviews key cases exploring the nature of the gubernatorial pardon power under the State Constitution and notes that those decisions have held -- in accordance with the predominant reasoning set forth in Supreme Court case law and Williston's formulation -- that a pardon (1) forgives the crime and removes the legal disabilities linked to the fact of the conviction itself, but (2) does not erase the underlying facts of the offense or restore an individual's good moral character. (pp. 14-22)

4. One published Law Division ruling addressed the effect of a pardon on an application for expungement. See In re L.B., 369 N.J.Super. 354, 367 (Law Div. 2004). After reviewing case law and citing Professor Williston's formulation, id. at 361-66, the court observed that "[i]t is not bad character evidenced by commission of the crime but the fact of conviction for possession with intent to sell that makes one ineligible for expungement under the statute," id. at 367. In other words, "[t]he legal disability provided in [the statute] arises solely from the fact of conviction." Ibid. Judge Ashrafi concluded that "[t]he pardon, then, dissolves the attendant legal disability arising from the conviction" --and thus extinguishes the statutory bar. Ibid. (pp. 22-23)

5. The Court reviews case law from other jurisdictions and notes that they have reached varying conclusions about the effect of a pardon on a petition for expungement. The Court also notes that statutes in more than a dozen states explicitly provide, in different ways, that receipt of a pardon makes a conviction eligible for expungement or some other method to restrict public access to the records. (pp. 24-25)

6. Under the version of N.J.S.A. 2C:52-2(a) in effect when the trial court denied T.O.'s petition, someone who had multiple criminal convictions -- not listed in a single judgment of conviction or committed as part of a series of events in a short period of time -- was ineligible for expungement. Although T.O.'s pardon did not erase the facts underlying the commission of the offenses, it eliminated disabilities triggered by the convictions themselves. Here, the statutory bar to expungement under section 2(a) arose solely from T.O.'s two convictions. In light of the pardon, that disqualification -- or disability -- no longer exists. T.O. is therefore eligible for expungement of both of his convictions. (pp. 26-27)

7. That does not mean expungement is automatic, however. Under the statutory scheme, once T.O. has satisfied the law's initial requirements, the burden shifts to the State to demonstrate by a preponderance of the evidence why his petition should not be granted. For example, the State may attempt to show that "[t]he need for the availability of the records outweighs the desirability of having a person freed from" limitations the expungement statute provides. See N.J.S.A. 2C:52-14(b); see also N.J.S.A. 2C:52-14 (listing other grounds for denial of relief). Section 14(b) calls for a qualitative assessment of the public and private interests at stake, which does not turn on the fact of a conviction. Relevant grounds could include, among other things, the circumstances of a particular offense, details about what the applicant did, and the harm the person caused. Such case-specific facts are not wiped clean by a pardon. (pp. 27-28)

8. In this case, nothing in the record demonstrates the need for the continued availability of T.O.'s records. See N.J.S.A. 2C:52-14(b). The State presented no argument against expungement other than the statutory bar for multiple convictions. In fact, at the hearing in the trial court, the State conceded that T.O. was deserving of expungement, an assessment shared by the trial court. Accordingly, T.O. is entitled to expungement of criminal records related to his 1994 and 1996 convictions. (p. 29)

The judgment of the Appellate Division is REVERSED, T.O.'s petition is GRANTED, and the matter is REMANDED to the trial court.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER's opinion.

OPINION

RABNER, CHIEF...

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