In The Matter of The Application of Sylvia McCormick SPILMAN for Expungement v. Okla. Bar Ass'n
| Decision Date | 20 October 2010 |
| Docket Number | 544.,No. 108,108 |
| Citation | 2010 OK 70,240 P.3d 702 |
| Parties | In the Matter of the Application of Sylvia McCormick SPILMAN for Expungement and Sealing of Records. Sylvia McCormick Spilman, Petitioner, v. Oklahoma Bar Association, Respondent. |
| Court | Oklahoma Supreme Court |
COPYRIGHT MATERIAL OMITTED.
¶ 0 Petitioner is a practicing lawyer who was convicted of bribing a State's witness, allowed to resign from the Bar pending disciplinary proceedings, later reinstated to membership in the Bar, and after receiving a pardon from the Governor successfully had her district court criminal records sealed, and now seeks to seal and expunge her Oklahoma Supreme Court and Bar Association disciplinary files as well as the present proceeding. The Oklahoma Bar Association objects to the relief sought by Petitioner. We hold that 22 O.S.Supp.2009 §§ 18 and 19, and Oklahoma Supreme Court Rules 1.260, 1.261, and 1.262 do not apply to the records in an Oklahoma Supreme Court Bar disciplinary proceeding that are related to a criminal conviction, and the Court declines to adopt a rule or procedure for sealing and expunging the records in Bar disciplinary proceedings based upon a disciplined lawyer's compliance with 22 O.S.Supp. §§ 18, 19.
Sylvia McCormick Spilman, Tulsa, OK, Pro se.
Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma City, OK, for the Oklahoma Bar Association.
¶ 1 An attorney, Sylvia McCormick Spilman, seeks to seal and expunge the records in her Bar Association disciplinary files. We hold that her request is not within the scope of the statutory authority relied upon, but involves this Court's original and exclusive jurisdiction over the regulation of the Bar and the practice of law. We assume jurisdiction in this matter because the requested relief is within the exclusive original jurisdiction of this Court, and we issue an opinion because the application presents a first-impression issue.
¶ 2 In 1995, Spilman was convicted by a jury of bribing a State's witness, sentenced to one year in the state prison, served eight weeks, and was released on parole. 1 The conviction was affirmed by the Court of Criminal Appeals. Upon her conviction Spilman was allowed to resign from the Bar pending disciplinary proceedings. 2 Nine and one-half years after her resignation, she applied for reinstatement to the Bar and the Court granted the application in October 2004. 3 In 2005, the Pardon and Parole Board gave Spilman a favorable recommendation and the Governor gave her a pardon. 4
¶ 3 In 2007, the District Court for Tulsa County granted Spilman's application to seal and expunge her criminal bribery file, CRF-1994-920, and two other criminal files, CF-1994-180 and CF-79-693. 5 The order was later modified by a nunc pro tunc order which included her record maintained by the Department of Corrections. 6 The District Court's order exempted from sealing and expungement “the internal litigation files and records of the Tulsa County District Attorney's Office....” 7
¶ 4 In July 2010, Spilman filed in this Court an “Application for Expungement and Sealing Records” which requests that the records be sealed in her resignation proceeding, reinstatement proceeding, and the present proceeding. 8 The records she seeks to seal are records of this Court ministerially controlled by the Clerk of this Court 9 and files maintained by the Oklahoma Bar Association. 10 The Bar Association filed its response to Spilman's application and objected to the relief sought. The Bar Association argues that records relating to grievances terminated by a dismissal are expunged, but not a proceeding that involved a resignation pending discipline. 11 ¶ 5 Spilman relies upon 22 O.S. §§ 18(8), 19; Oklahoma Supreme Court Rules 1.260, 1.261, 1.262; and the exhibits attached to the application as sufficient for her request to seal and expunge her Bar disciplinary files. The 2009 version of title 22, section 18, lists ten 12 circumstances which may be used to support expunging a criminal record. 13 Spilman indicates reliance upon the following language in 22 O.S.Supp.2004 § 18(8), now codified at § 18(9). 14
Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories:
.... (8) [t]he offense was a nonviolent felony, as defined in Section 571 of title 57 of the Oklahoma Statutes, the person has received a full pardon for the offense, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the conviction; ....
Spilman's Application at page 2, paragraph 2.
The correctness of the adjudication by the District Court of Tulsa County in issuing its order granting Spilman's request to seal and expunge criminal records is not before the Court in this proceeding. The present proceeding is not an appeal from the order of the District Court for Tulsa County. 15 The first question presented for our review is whether 22 O.S.Supp. §§ 18, 19 apply to Supreme Court Bar disciplinary proceedings.
¶ 6 The first paragraph of 22 O.S.Supp.2009 § 19 shows that the § 18 remedy is provided by a district court.
A. Any person qualified under Section 18 of this title may petition the district court of the district in which the arrest information pertaining to the person is located for the sealing of all or any part of the record, except basic identification information.
Section 19 refers to a district court order appealed to the Supreme Court, but contains no reference to the Supreme Court issuing an order sealing Bar disciplinary records. 16 Section 19 does state that a district court's order “shall specify those agencies to which such order shall apply.” 22 O.S.Supp.2009 § 19(C). However, such language may not be read so broadly as to include the Oklahoma Supreme Court as one of those “agencies.”
¶ 7 When the term “agency” (or agencies) is used to name a government entity the term is usually 17 not considered to include the Oklahoma Supreme Court or any other entity exercising judicial power. The State Constitution designates the three departments of governmental power as Legislative, Executive, and Judicial ( Okla. Const. Art. 4, § 1), and the Supreme Court possesses judicial power ( Okla. Const. Art. 7, § 2) which is exercised by an original jurisdiction proceeding in the nature of general superintending control over “ Agencies, Commissions, and Boards created by law.” Okla. Const. Art. 7, § 4 (emphasis added). Consistent with this concept is the common use of “agency” to identify Executive Branch entities which utilize a statutory administrative procedure and which possess quasi-judicial authority in some circumstances. 18 Generally, records of a court are in that court's custody and control; 19 and while the Supreme Court has superintending control over district courts, no district court has superintending control over the Supreme Court or other district courts. 20 Thus, the usual construction of “agencies” in § 19 would not include the Oklahoma Supreme Court as an agency whose records are subject to control by a district court.
¶ 8 Section 19 states that “[u]pon entry of an order to seal the records, or any part thereof, the subject actions shall be deemed never to have occurred ....” and a record sealed pursuant to § 18, “if not unsealed within ten (10) years of the expungement order, may be obliterated or destroyed at the end of the ten-year period.” 22 O.S.Supp.2009 § 19(D), (K). However, in a Bar disciplinary matter this Court's scrutiny of a lawyer's conduct is not limited to either a ten- or twenty-year-period 21 preceding the filing of the complaint in this Court.
¶ 9 A lawyer's record of prior professional conduct is always open to scrutiny by this Court when he or she is before the Court in a professional disciplinary matter. We have explained that there is no equitable statute of limitations in Bar disciplinary proceedings and that “[t]his Court does not take lightly charges against a member of the Bar regardless of when they occurred.” State ex rel. Oklahoma Bar Association v. Dobbs, 2004 OK 46, ¶ 110, 94 P.3d 31, 71, emphasis added. 22 We have explained that “[i]n imposing discipline, the court evaluates the entire record of an attorney's professional conduct and scrutinizes the record to determine whether the alleged offenses are a mere blotch on an otherwise untainted career, or just one long series of ethically questionable actions.” Dobbs, at ¶ 111. A lawyer's record of professional conduct of more than thirty years without a disciplinary action has been used as a mitigating factor in imposing discipline. State ex rel. Oklahoma Bar Association v. Berger, 2008 OK 91, ¶ ¶ 15-16, 202 P.3d 822, 826. Thus, a lawyer's record of professional missteps as well a lawyer's record without missteps are important to this Court's assessment of the appropriate discipline.
¶ 10 This Court has also explained that “[t]he regulation of licensure, ethics, and discipline of legal practitioners is a nondelegable, constitutional responsibility solely vested in this Court in the exercise of our exclusive jurisdiction.” State ex rel. Oklahoma Bar Association v. Wilburn, 2010 OK 25, ¶ 4, 236 P.3d 79, 80. Our nondelegable and exclusive jurisdiction in Bar matters has been stated often by this Court, 23 and it includes every aspect 24 of a disciplinary inquiry involving the authority of the Oklahoma Bar Association, and our jurisdiction herein is not a novel principle unknown to the Legislature when it crafted 22 O.S. §§ 18 & 19. 25 Sections 18 and 19 express no indication of any intent by the Legislature to encroach upon the Court's jurisdiction in Bar matters.
¶ 11 The Court's need for a complete record of a...
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