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

• Decision Date: 11 January 2021
• Docket Number: 084009,A-55 September Term 2019
• Citation: 242 A.3d 842,244 N.J. 514
• Parties: IN RE PETITION FOR EXPUNGEMENT OF the CRIMINAL RECORD BELONGING TO T.O.
• Court: New Jersey Supreme Court

244 N.J. 514

242 A.3d 842

IN RE PETITION FOR EXPUNGEMENT OF the CRIMINAL RECORD BELONGING TO T.O.

A-55 September Term 2019

084009

Supreme Court of New Jersey.

Argued October 26, 2020

Decided January 11, 2021

Jennifer A. Hradil, Newark, 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, Newark, 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, Trenton, 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, Newark, of counsel and on the brief, and Omar A. Bareentto, Trenton, and Newton Portorreal, Jr., Newark, 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).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

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

T.O. was convicted of separate crimes in 1994 and 1996. In the decades since, he has been gainfully employed, has made contributions to the community, and has successfully rehabilitated himself. In 2018, the Governor granted T.O. a full and complete pardon for his two convictions.

T.O. then sought to expunge the records of those convictions. Both the trial court and the Appellate Division concluded that he was ineligible for relief because the language of the relevant statutory section at the time, N.J.S.A. 2C:52-2(a), did not allow individuals with multiple, separate convictions like T.O.’s to apply for expungement.

Pardons have consequences under the law. They remove legal disabilities linked to the conviction itself but do not erase the underlying facts of an offense. Storcella v. Dep't of Treasury, 296 N.J. Super. 238, 243-44, 686 A.2d 789 (App. Div. 1997) ; Hozer v. Dep't of Treasury, 95 N.J. Super. 196, 202, 230 A.2d 508 (App. Div. 1967). A pardon, therefore, forgives punishment for an offense and removes other disabilities but does not change history or restore a person's good moral character. Ibid.

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.

The State concedes that T.O. otherwise deserves to have his record expunged. We therefore reverse the judgment of the Appellate Division and grant T.O.’s petition for expungement.

I.

A.

T.O. has two prior convictions. In May 1994, he pleaded guilty to aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1). Two years later, in May 1996, he pleaded guilty to possession of a controlled dangerous substance within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7.

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 that operated residential reentry facilities, jails, and drug treatment programs. 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 partners with homeless shelters and other community organizations to feed the homeless.

On October 6, 2017, T.O. filed a petition for executive clemency and sought a pardon. More than twenty co-workers, family members, friends, and fellow volunteers at nonprofit groups wrote letters of recommendation in support of T.O.

On January 12, 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. Months later, in June 2018, T.O. filed a petition in Superior Court to expunge all records related to the convictions.

B.

The State opposed T.O.’s petition and argued that the expungement statute, specifically N.J.S.A. 2C:52-2(a), barred expungement for individuals with multiple convictions. According to the State, a gubernatorial pardon did not nullify the statutory bar. At the same time, the State acknowledged "the total change in [T.O.’s] life and that he's been living a productive, law-abiding life since the 90s." 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 with the State on both points. In an oral ruling on February 15, 2019, 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 judge acknowledged T.O.’s "sober, offense-free life for 23 years," stated "I wish I could grant him his application," and encouraged T.O. to file an appeal.

C.

T.O. did appeal, and on December 30, 2019, the Appellate Division affirmed the denial of his petition for expungement. Like the trial court, the Appellate Division concluded that, despite T.O.’s pardon, the plain language of the expungement statute barred his petition because he had more than one conviction.

The appellate court observed that "expungement is not a right guaranteed by constitutional or common law; it is purely the product of legislation," which limits courts "to the terms of the statute." By comparison, the court explained, "a pardon is a matter of executive grace" that does not erase the conduct that led to a conviction or all of the consequences of a conviction. The Appellate Division noted that, despite various amendments to the expungement statute, the Legislature had not altered the language that barred expungements for multiple offenses, aside from certain situations that did not apply. See N.J.S.A. 2C:52-2(a).

D.

We granted T.O.’s petition for certification. 241 N.J. 199, 226 A.3d 1194 (2020). We also granted two requests for leave to appear as amici curiae: the first, to former Governors Christopher J. Christie, Jon S. Corzine, Richard J. Codey, James E. McGreevey, John O. Bennett, Donald T. DiFrancesco, Christine Todd Whitman, James J. Florio, and Thomas H. Kean, Sr. (the Former Governors); and the second, to the American Civil Liberties Union of New Jersey (ACLU), New Jersey Institute for Social Justice (NJISJ), and Volunteer Lawyers for Justice (VLJ).

II.

T.O. argues that the State Constitution grants the Executive the exclusive authority to issue a pardon, citing N.J. Const. art. V, § 2, ¶ 1, and that the reach of a pardon may not be diminished or frustrated by an act of the Legislature. As a result, T.O. contends, the Appellate Division's interpretation of the expungement law unconstitutionally interferes with the Executive's pardon power and violates the doctrine of separation of powers.

T.O. submits that a pardon eliminates any disqualification triggered by the fact of a conviction. Because the legal disability in this case arises solely from the fact that he was convicted multiple times, T.O. maintains he is eligible to be considered for expungement.

T.O. also argues that interpreting the expungement statute to afford a pardon its full effect is consistent with the Legislature's intent to provide relief to reformed offenders, citing N.J.S.A. 2C:52-32.

The ACLU, NJISJ, and VLJ advance similar arguments in support of T.O.’s petition. They likewise argue that N.J.S.A. 2C:52-2(a) does not bar an application for expungement of multiple pardoned convictions and that the constitutional pardon power should not be interpreted restrictively.

The organizations emphasize that amendments to the expungement law have steadily expanded the statute's reach, including amendments in 2019 that allow individuals with multiple convictions to seek to expunge their latest conviction. Amici argue that any ambiguity or silence in the law about the effect of a pardon on expungement should therefore be read in favor of expungement.

Amici also highlight benefits of expungement like greater access to employment and housing, and lower recidivism rates. Finally, they note that more than twenty states provide that a pardon makes the recipient eligible for expungement by statute or case law.

The Former Governors raise similar concerns. They assert that the power to pardon belongs exclusively to the Governor, that it is not subject to limitation by the Legislature or judicial review, and that it dissolves all legal disabilities arising from a pardoned conviction. The Former Governors submit the pardon power must be given full effect to avoid separation of powers concerns. They also argue that the analysis set forth in In re L.B., 369 N.J. Super. 354, 848 A.2d 899 (Law Div. 2004), should be adopted.

In short, the Former Governors claim that full vindication of the Executive's powers requires that T.O. not be precluded from seeking expungement. At oral argument, counsel for the Former Governors argued more broadly that a pardon should automatically result in expungement of a criminal conviction.

The State contends that T.O.’s pardon does not make him eligible for expungement. The State also asserts that a gubernatorial pardon may not interfere with the Legislature's statutory scheme for expungement.

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