People v. Howard ( 2007 )

PRESIDING JUSTICE FITZGERALD SMITH,

dissenting:

I respectfully dissent from the majority’s opinion in this matter. While I do not inherently agree with the trial court’s reasoning below that defendant here was not entitled to expungement principally because he had prior (or other) convictions of record, and while I partially agree with the majority regarding some basic ideas, I cannot agree with the outcome proposed by the majority which effectively declares that expungement is automatic to any defendant who has received a gubernatorial pardon upon that defendant’s filing of a petition in the trial court. Rather, after having read section 5 of the Criminal Identification Act (Act) (20 ILCS 2630/5 (West 2004)) and examining the language and legislative debates of subsection (c) in particular, it is my view, in simple contradiction to that of the majority, that some discretion in the trial court does play a role in this context and cannot be ignored.

Let me first begin by citing those portions of the majority’s opinion with which I do agree. The majority admirably reprints a good portion of Governor Ryan’s 2003 public speech. It cannot be denied, nor should it ever be forgotten, that several of our very own citizens were unjustifiably made to face prosecution for certain crimes they did not commit; the value of the innocence-projects that have arisen from this unfortunate reality is immeasurable. In this day and age, I would like to think that it should truly mesmerize us all that some courts have not found a way to act in the interest of justice.

Further, and on a more practical level, I agree with the majority’s discussion of the language quirk found in subsection 5(c), namely, the appearance of “may” twice therein. The majority notes that the trial court below found that these clauses created an ambiguity, since, while the first “may” (appearing in the clause “may, upon verified petition”) clearly gives discretion to the defendant whether to seek an order to expunge, the second “may” (appearing in the clause “may have a court order entered”) was more troublesome as it could be interpreted to mean that the defendant may get an order or the court may grant an order to expunge. However, upon review, the majority ultimately discredits this reasoning to declare that the appearance of “may” twice in subsection 5(c) was nothing more than an obvious grammatical mistake. And I wholeheartedly agree. Having two “may”s here presents no problem other than that they are superfluous; both attach to the singular acting subject in the language of this subsection, namely, the person who has been convicted. The references to various judges (“chief judge,” “any judge,” and “presiding trial judge”), upon examination, clearly belong to a series of clauses and are not actors of any sort. Moreover, as the majority aptly points out, the lengthy sentence goes on to use the phrase “have an order entered;” courts do not have orders entered, but they enter orders. Therefore, I, along with the majority, disagree with the trial court that the use of the second “may” is ambiguous. Again, this “may” is only superfluous and should, as the majority recommends, be stricken from subsection 5(c) pursuant to our authority to modify obvious mistakes in statutes (see Garrison, 82 Ill. 2d at 455).⁴

However, this is where my agreement with the majority ends, as I just do not see how having reasoned that the second “may” is superfluous directly leads, without more, to the conclusion that defendant’s contention “appears correct” that the trial court is without discretion to deny a petition if the defendant has received a pardon authorizing expungement from the Governor, i.e., under subsection 5(c). This is not how I read the statute.

For the majority’s considerable discussion of subsection 5(c), the fact remains that the language used therein is “may,” not “shall”; the defendant may have a court order entered upon his petition to expunge based on a pardon by the Governor which authorizes expungement. The majority focuses on the latter portion of this concept: the Governor’s pardon authorizing expungement. Yet, it is the first portion upon which I feel the focus should be: that the defendant may have a court order entered. Subsection 5(c) does not state that he “shall” have an order entered, which would clearly indicate the mandate the majority wants to impose here. Instead, that sense is simply not present. We are not dealing here with legislation originating from a more archaic time where the interchange between “may” and “shall” was commonplace, where it was often open to viable debate what the true intent behind the use of one of these words in a law actually was. This is a modern statute and, in the face of all our case law that has developed into the rule regarding our exercise of the plain and ordinary meaning of the words of a statute, I must conclude that there is a sense of permission in subsection 5(c), not one of automatic directive. “May” connotes “possibility, probability or contingency,” while “shall” “is a word of command” and is “imperative or mandatory,” having a “compulsory meaning” and “denoting obligation.” Black’s Law Dictionary 883, 1233 (5th ed. 1979). The difference is undeniable. Accordingly, I believe that had the intent behind this subsection been, as the majority concludes, a general automatic grant of a petition to expunge based on a gubernatorial pardon, the language chosen would have reflected a. more obligatory sentiment; i.e., that such a defendant shall have an order entered expunging his record.

What is more, I cannot help but note that in the very subsection at issue, “shall” is used in the sentences following the first, as in an order of expungement “shall not affect” any index in the circuit court, the Department of Corrections “shall have access” to records, and the clerk of the court “shall promptly” mail a copy of the expungement order to the pardoned person. This makes it further apparent to me that the authors of this statute knew the difference between “may” and “shall” and that, by the use of “may” in the first critical sentence, did not mean to indicate that orders expunging records would automatically be granted upon a defendant’s petition without some sort of discretion being exercised by the “chief judge,” “any judge” or “presiding trial judge” to whom the petition is presented. The use of these words and their placement are, to me, clearly deliberate.

The first sentence of subsection 5(c) could be examined in another manner, and perhaps this is the way the majority is viewing it. The first sentence, the one in which the “may” is present, has but one actor: the defendant. The sentence, then, addresses only his actions: that he, who has received “a pardon by the Governor which specifically authorizes expungement,” may, upon a verified petition to the appropriate presider, have a court order entered expunging his record. It could be said, then, that all the permissive language applies only to the defendant, giving him alone the choice whether to file a petition seeking expungement. But this is just it: this sentence uses the word “may” because it is a defendant’s choice to become a defendant under this subsection and begin a process which may lead to the expungement of his record, via a petition based on a gubernatorial pardon. By choosing to do so, he may have an order entered expunging it — if he is successful. He very well may not choose to file the petition, and/or he very well may not succeed with it. Again, the use of the word “may” indicates contingency. And the process here remains that of filing a petition, which is merely a supplication requesting, not ordering, that something be done. Petitions are denied in our courts every day. There is absolutely no reference in this sentence to the notion that whoever is presiding over the petition must grant it. Had this been the intent, I find it hard to believe that language would not have been included directing presiders to mandatorily grant these petitions, or that a wholly different process rather than the common filing of “a petition” should be used.

I find further support for my conclusion in another portion of section 5, namely, subsection (d). As is the cardinal rule, a statute should be construed as whole, with each section read in conjunction with every other section. See USX Corp. v. White, 352 Ill. App. 3d 709, 721 (2004); accord Mashni Corp. v. Board of Election Commissioners, 362 Ill. App. 3d 730, 742 (2005) (all sections of statute must be read and considered together as a whole); see also Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000). In section 5, which generally deals with different defendants seeking expungement, subsection 5(a) addresses those not having previously been convicted of any criminal offense who are acquitted or released without being convicted; subsection 5(b) addresses those whose identity was stolen by one who is then convicted of a crime in that name; and subsection 5(c), of course, addresses those who have been convicted but granted a pardon by the Governor which “authorizes” expungement. See 20 ILCS 2630/5 (West 2004). Subsection 5(d) then states:

“(d) Notice of the petition for subsection (a), (b), and (c) shall be served upon the State’s Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government affecting the arrest. Unless the State’s Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to the petition within 30 days from the date of the notice, the court shall enter an order granting or denying the petition.” 20 ILCS 2630/5 (West 2004).

Several concepts can be gleaned from this. Subsection 5(d) makes no distinction among subsections 5(a), (b) and (c) regarding its application; rather, all three are deliberately referenced equally and all three are, therefore, incorporated therein. In addition, subsection 5(d) provides for a process regarding these subsections: it orders that notice is to be given to the State’s Attorney/prosecutor, the State Police, the arresting agency and the chief officer; any one of these then has 30 days in which to object to the defendant’s petition for expungement made under subsection 5(a), (b) or (c); and regardless of whether an objection is filed, a court will enter an order “granting or denying” the expungement petition. Why would such a process be described and make reference to all the subsections, including 5(c), if it were not to be followed? More significantly, why would an objection be possible and the words “the court shall enter an order granting or denying the petition” be included in this subsection if, as the majority would have, a petition for expungement filed pursuant to subsection 5(c) were meant to be automatically granted and, thus, treated differently from petitions filed under subsections 5(a) and (b) of the very same statutory section? It is clear to me that subsection 5(d) says nothing special about subsection 5(c) in comparison to the other subsections and there is no indication that petitions filed under subsection (c) are exempt from objection and, potentially, denial while petitions filed under subsection (a) and (b) are not so exempt.

In light of this point, the majority notes that factors applicable to a discretionary determination of expungement for a petition filed under subsection 5(a) have been laid out in People v. Wells, 294 Ill. App. 3d 405 (1998), and include considerations such as the defendant’s age, criminal record, and employment history, the strength of the State’s case against him, and the State’s reasons for wishing to retain the records. The majority asks, if expungement under subsection 5(c) is not automatic, then “on what grounds may the State object and also what factors may the court consider in passing on a petition” under that subsection? 372 Ill. App. 3d at 505. The majority asks this because it insists that, since the grounds for filing petitions for ex-pungement under subsections 5(a) and 5(c) differ as one involves acquittal and the other gubernatorial pardon, the same considerations in evaluating the petitions should not apply. I ask, why can’t they? In the end, petitions for expungement all seek the same objective; while they may be based on different grounds, they are all addressed together under the same section of our statute (20 ILCS 2630/5 (West 2004)). Why, then, must there inherently be different considerations when they all ultimately seek the same result simply because the petitions are slightly different in their underlying facts?

Even lending credence to the majority in this respect and distinguishing petitions under subsections 5(a) and (c), I can think of several grounds outside of the realm of factors in Wells on which the State may object to a petition under subsection 5(c) and several factors that a court may consider in passing on such a petition. The most immediate that come to mind are public interest and public safety concerns. And, while the majority may quickly counterbalance the consequences of these to a pardoned defendant and his rights under our laws, my point is only that this very discussion should not automatically be dispensed with, but should take place on a case-by-case basis before the trial court where the petition is presented. Every indication of subsection 5(d)’s language stating that objections may be raised to petitions filed under “subsections (a), (b), and (c)” of section 5 for expungement and that the court shall then “enter an order granting or denying the petition” (emphasis added) supports this. See 20 ILCS 2630/5(d) (West 2004).

The majority also finds the legislative debates on subsection 5(c) illuminating regarding the mandatory approach it takes here. I, however, do not view them the same way and do not find them supportive of the conclusion that a defendant who has received a gubernatorial pardon authorizing expungement should automatically be given that expungement without the employ of any trial court discretion.

When House Bill 4188 was first proposed in the Senate, Senator Dart admitted that the portion providing for expungement in the case of pardons “had been technically flawed”; the bill passed. The Governor proposed an amendatory veto seeking to change the bill by allowing expungement only when specifically authorized by the Governor in the pardon itself; this opened up more debate in the House. The majority mentions that Representative Lang proposed an override to the Governor’s amendatory veto while discussing a constituent that he had in his district whom he wanted to help “go right into court and get his records expunged.” 87th Ill. Gen. Assem., House Proceedings, November 19, 1992, at 64-65 (statements of Representative Lang); see 372 Ill. App. 3d at 501. The majority then quotes comments from Representative Black in opposition to Lang, which we find pertinent enough to reprint here:

“If we override the Governor’s Amendatory Veto, then it’s my understanding that anyone, any person, not just perhaps this deserving individual that [Representative Lang] is familiar with but that any individual who gets a pardon would have his records expunged, and the Governor is simply saying, those records should not be expunged in every case. There may be some very extenuating circumstances that should remain in that file before any such pardon is granted and the record wiped clean. So, *** there does seem to be certainly on the point *** some questions that this Bill may go far beyond what [the Governor’s] particular intent is, and I dop’t think that the intent of the majority of the Members of this Body would be just to give sort of a court blanc [sic] action to pardons.” 87th Ill. Gen. Assem., November 19, 1992, at 64-65 (statements of Representative Black).

The motion for override was defeated and the Governor’s proposed change of allowing expungement only when the Governor specifically authorized it in the pardon was included in the law, hence the inclusion of that portion of subsection 5(c) referring to defendants “granted a pardon by the Governor which specifically authorizes expungement.” In light of Representative Black’s comments, as well as, again, the precise language used in the statute, I do not think, as does the majority, that subsection 5(c) was written to make expungement automatic upon the simple filing of a petition based on a pardon from the Governor. Representative Black echoed all my concerns. While some people, even perhaps defendant in the instant case, may be deserving of the expungement of their records, there could very well be, upon further review, circumstances in other cases where it would be far better, for viable reasons, that expungement should not occur. From the legislative debates, I do not think it was the intent that the statute be written to grant to everyone and anyone automatic expungement upon the filing of a petition. Rather, as Representative Black plainly put it, it seems to me that even the Governor believed that records should not be expunged in every case. The Governor’s amendatory veto sought to add the concept that a defendant who had been pardoned by the Governor could seek expungement of his record if that pardon “specifically authorizes expungement.” Had the Governor meant, as Representative Lang proposed, that expungement was to be automatic simply because the defendant had received such a pardon, he would not have used the language “authorizes” but, rather, something like “mandates” or “directs” expungement and Representative Lang’s proposal would not have been defeated. The Governor’s pardon “authorizing” expungement is just a criterion, then, that the defendant must have before he is even qualified to proceed with his petition under subsection 5(c); it simply prevents those who have been pardoned but not offered expungement by the Governor from filing a petition under this subsection. The petition with the potential for ex-pungement is then left to the discretion of the court which, as per subsection 5(d), may grant or deny it.⁵

On a final note, the majority proposes that section 5—5—4(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5—5—4(b) (West 2004)) “further exemplifie[s]” (372 Ill. App. 3d at 504) that the legislature intended for the wrongly convicted to receive automatic ex-pungement under subsection 5(c) of the Act. Yet, section 5—5—4(b) states that, if a conviction has been set aside and a court determines that the defendant was factually innocent, “the court shalt enter an order expunging the record of arrest.” (Emphasis added.) 730 ILCS 5/5—5—4(b) (West 2004). I find it interesting that the majority, who was so quick to distinguish between a section 5 petition for expungement under subsection 5(a) and one under subsection 5(c) on the mere basis that one involves pardoned defendants and the other does not, is now citing a completely different statute in support of its contentions. In addition, I again fail to see how the language is comparable; contrary to the majority’s opinion, this is not a distinction without difference. Section 5—5—4(b) of the Code clearly employs mandatory language ordering expungement, while subsection 5(c) of the Act uses permissive language along with subsection 5(d) alluding to the fact that a court has the ability to deny a petition to expunge under that subsection. The difference between section 5—5—4(b) of the Code and subsection 5(c) of the Act is huge.

In conclusion, while I find the majority’s opinion to be well written, I simply cannot agree with the ultimate result it proposes. Again, this is not to say, of course, that I agree with the reasoning presented by the trial court below; but, while that is the case, I find the outcome it reached more reasonable than that of the majority here. In my practical view, I feel that there is something more, or there should be something more, to the operation of subsection 5(c) than just automatically granting expungement to defendants who file petitions based on a gubernatorial pardon that merely authorizes it. Based on the language of subsection 5(c), as well as other portions of that very statute and all the other factors I have considered, I believe our trial courts are vested with some discretion in these matters which opens the issue of expungement to debate on a case-by-case basis. And, as defendant in the instant case specifically states that he “is not arguing on appeal that the circuit court abused its exercise of discretion” in denying his petition, I, contrary to the majority, would affirm this particular matter for the reasons I have discussed herein.

4 In all honesty, I believe either one of the “may”s can he stricken; it does not necessarily have to be the second one. Say the first “may” is deleted and the second is left (rather than the majority’s insistence that the second “may” should be stricken and the first left), the subsection would then read, “Whenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement, he, upon verified petition ***, may have a court order entered expunging ***.” It is just as clear in this instance, for the same reasons discussed above, that “may” can (and does) only refer to the defendant and does not create ambiguity. In fact, the striking of the first “may” may be preferred, as the striking of the second, at the urgence of the majority, actually separates the auxiliary verb “may” from the principal verb “have” and allows the lengthy clauses mentioned above to interrupt this verb structure, which can only lend to confusion (“he may, upon verified petition *** have a court ***,” as opposed to “he, upon verified petition *** may have a court ***”). Therefore, to me, which “may” is stricken is pure semantics.

5 The majority further notes that Senator Dart also discussed the Governor’s changes, as adopted by the House. The majority finds the lack of discussion surrounding modification of the first sentence of the proposed legislation beyond the addition that the pardon itself must authorize expungement to be “particularly telling.” 372 Ill. App. 3d at 502. I disagree. Senator Dart was commenting on a potentially narrow interpretation of the bill that could arise which would “preclude expungement for all prior pardons.” This may, in some way, be tied to the trial court’s misconstrued decision here that because defendant had prior convictions his record could not.be expunged. Regardless, reading Senator Dart’s comments, in my view, further supports my conclusion.