In re Shin

• Decision Date: 26 March 2009
• Docket Number: No. 47995.,47995.
• Citation: 206 P.3d 91
• Parties: In the matter of the Application of SANG MAN SHIN for an Order to Seal Records. Sang Man Shin, Appellant, v. The State of Nevada, Department of Public Safety, Respondent.
• Court: Nevada Supreme Court

206 P.3d 91

In the matter of the Application of SANG MAN SHIN for an Order to Seal Records Sang Man Shin, Appellant, v. The State of Nevada, Department of Public Safety, Respondent.

No. 47995.

Supreme Court of Nevada.

March 26, 2009.

Amesbury & Schutt and John P. Parris and David C. Amesbury, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, and Robert G. Kilroy, Deputy Attorney General, Carson City, for Respondent.

BEFORE THE COURT EN BANC.¹

OPINION

By the Court, SAITTA, J.:

We are asked to determine whether NRS 179.245(5), which prohibits Nevada courts from sealing records concerning sexually based offenses, improperly impinges upon the power of the State Board of Pardons Commissioners to issue pardons. While the pardoning power's reach is expansive, it does not extend to removing the historical fact that a conviction occurred, and it cannot bequeath innocence. Instead, a pardon is an act of forgiveness that restores civil rights and removes most legal consequences of a criminal conviction. We find nothing in Article 5, Section 14 of the Nevada Constitution that creates a civil right to expunge a criminal record. Only the Legislature can remove the historical fact of a criminal conviction by authorizing the expunction of the criminal record. Therefore, we conclude that the district court did not abuse its discretion when it set aside a prior order sealing a criminal record, and accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

The record indicates that in 1987, law enforcement officers arrested appellant Sang Man Shin for attempted lewdness with a minor, to which he subsequently pleaded guilty. The district court sentenced him to two years imprisonment and then suspended the sentence, imposing probation. Shin successfully served his probation.

After maintaining a clean criminal record for approximately 15 years, Shin sought a pardon. Following his request, in 2002, the State Board of Pardons Commissioners (Pardons Board) granted him a pardon, restoring all of his civil rights except for the right to keep firearms. In 2006, Shin moved to have his criminal record sealed pursuant to NRS 179.245, to which the Clark County District Attorney stipulated. Thereafter, the district court granted the motion and ordered Shin's criminal record sealed.

Upon receiving notice of the district court's order, respondent State of Nevada, Department of Public Safety (DPS) moved to set it aside. During the district court proceedings, the DPS argued that Shin's record had been erroneously sealed because, as a convicted sex offender, NRS 179.245(5) expressly precluded the court from sealing his record since it "relat[ed] to a conviction of a crime against a child or a sexual offense." The district court agreed and ordered Shin's record unsealed.

Contending that his pardon not only restored his civil rights but entitled him to his record's expunction, Shin appealed.

DISCUSSION

On appeal, Shin principally contends that this court should follow the U.S. Supreme Court's decision in Ex parte Garland, which stated that a Presidential pardon blots out the existence of the offender's guilt, and thus removes all existence of a prior criminal conviction. 4 Wall. 333, 71 U.S. 333, 380, 18 L.Ed. 366 (1866). More specifically, Shin contends that his pardon not only cleared the civil rights restrictions attendant with his conviction, but further included the right to seal his criminal records. Pursuant to this reasoning, Shin asserts that NRS 179.245(5) is unconstitutional because the Legislature does not have the power to prevent him from sealing his criminal record. We disagree.

Standard of review

We review de novo a district court's legal conclusions, including matters of statutory constitutionality and statutory interpretation. Douglas Disposal, Inc. v. Wee Haul, LLC, 123 Nev. ___, ___, 170 P.3d 508, 512 (2007); Walker v. Dist. Ct., 120 Nev. 815, 819, 101 P.3d 787, 790 (2004). Statutes are presumptively valid, and "`the burden is on those attacking them to show their unconstitutionality.'" Sheriff v. Vlasak, 111 Nev. 59, 61-62, 888 P.2d 441, 443 (1995) (quoting Wilmeth v. State, 96 Nev. 403, 405, 610 P.2d 735, 737 (1980)).

Nevada's constitutional and statutory scheme governing pardons and record expunction

In Nevada, the Pardons Board's constitutional power to grant pardons and commutations of sentences is exclusive. Nev. Const. art. 5, § 14. The Nevada Constitution provides that "[t]he governor, justices of the supreme court, and attorney general, or a major part of them, of whom the governor shall be one, may ... grant pardons, after convictions." Id. Article 5, Section 14 of the Nevada Constitution specifically requires the Governor to be involved in the pardoning process as part of the executive function but is silent as to many of a pardon's effects, including the availability of record expunction. In furtherance of this constitutional provision, NRS 213.090 states that "[a] person who is granted a full, unconditional pardon by the Board is restored to all civil rights and is relieved of all disabilities incurred upon conviction." No other constitutional or statutory provision addresses the effects of a pardon.

The Nevada Constitution does not expressly address the expunction of criminal records. In the absence of a specific constitutional limitation to the contrary, the power to enact laws is vested in the Legislature. Nev. Const. art. 4, § 1; see Cramer v. Peavy, 116 Nev. 575, 582, 3 P.3d 665, 670 (2000). The Legislature has addressed the expunction of criminal records in NRS 179.245.² Although NRS 179.245 generally grants the district court discretion to seal records of criminal conviction, it expressly prohibits the sealing of records pertaining to a sexual offense: "A person may not petition the court to seal records relating to a conviction of a crime against a child or a sexual offense." NRS 179.245(5). NRS 179.245(5) is silent regarding whether a pardon may nevertheless require sealing a sex offender's record. Resolving this question requires us to determine the scope of the pardoning power—particularly, whether a pardon erases the offender's guilt and the historical fact of the crime, or merely relieves all conviction-imposed civil disabilities.

In addressing the scope of the pardoning power in Nevada, we begin by examining our precedent. Because our jurisprudence does not resolve the question of whether a pardon includes the attendant right to seal a criminal record, we consider the United States Supreme Court's precedent, caselaw from the United States Courts of Appeals, and finally, other states' jurisprudence.

Nevada decisional law

In an 1880 decision, State of Nevada v. Foley, this court considered the scope of the pardoning power. 15 Nev. 64 (1880). In Foley, the State sought to introduce a witness who was a convicted and pardoned felon. Id. at 66. The defense objected on competency grounds. Id. The district court overruled the objection and allowed the witness to testify, finding that the pardon restored the witness's competency. Id. at 66-67. On appeal, this court agreed, concluding that "the authorities are uniform to the effect that a full and unconditional pardon of an offense removes all disabilities resulting from conviction thereof." Id. at 67. In reaching this conclusion, this court relied on the similar authorities and language as utilized in Garland to explain that the purpose of a pardon was "to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to the offense for which he obtains his pardon, and not so much to restore his former, as to give him a new credit and capacity." Id. at 69 (quoting William Blackstone, 4 Commentaries *402); see Ex parte Garland, 71 U.S. at 380-81. While this explanation suggested that the pardoning power's reach was expansive, this court ultimately reversed the district court and remanded for a new trial, concluding that the witness's competency had not been legally established, as he had been convicted of an additional crime that was not expressly addressed by the pardon. Foley, 15 Nev. at 67, 74.

Following Foley, this court later indirectly considered the scope of the pardoning power in Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960). In Pinana, the appellant was found guilty of first-degree murder and sentenced to life imprisonment without the possibility of parole. Id. at 278, 352 P.2d at 827. Asserting a variety of errors on appeal, the appellant contended that the sentence was unconstitutional in part because it permitted the jury to abridge her eligibility for parole. Id. at 281, 352 P.2d at 828. More specifically, the appellant contended that Article 5, Section 14 of the Nevada Constitution, empowering the Pardons Board to grant pardons and commute punishments, precluded the Legislature from granting the judiciary the power to parole. Id. This court explained that a parole and a pardon are different legal concepts and are derived and governed by different provisions of law. Id. at 281-83, 352 P.2d at 828-29. Thereafter, this court concluded that the Executive's constitutional power to grant pardons was not unconstitutionally abridged by a statute providing for an administrative system of parole or by statutes granting the judiciary the power over paroles. Id. at 282, 352 P.2d at 829. While Pinana did not involve a factual predicate of a pardoned criminal, this court nevertheless distinguished parole from a pardon, explaining in dicta the legal effects of a pardon. Id. at 282-83, 352 P.2d at 829. Quoting the Supreme Court of Pennsylvania, we tacitly adopted its holding that:

"[a] pardon is the exercise of the sovereign's prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that,...