The Supreme Court of Ohio ruled today that a trial court has the inherent authority to grant an application to expunge and seal a record of a dissolved civil protection order in an adult proceeding when unusual and exceptional circumstances exist and when the interests of the party seeking expungement outweigh the legitimate need of the government to maintain the records.

The 4-3 decision, authored by Justice Terrence O’Donnell, reverses a decision of the Twelfth District Court of Appeals and returns the case to the trial court to reconsider the case in light of this opinion.

In July 2009, Michelle Henneman (formerly Michelle Schussheim) filed a petition for a domestic-violence civil protection order (CPO) against her then-husband, Alan Schussheim. She alleged that he had threatened and shoved one of their daughters and had pushed Henneman to the floor. The trial court granted the CPO. About a month later, Henneman asked the court to dissolve the order, and the court did so.

In the spring of 2011, Schussheim filed an application to expunge and seal the record of the CPO proceedings. He argued that he and Henneman were going through a divorce when she obtained the CPO, that he was never charged with domestic violence, and that the record of the CPO violated his constitutional right to privacy and could have adverse effects on his employment. Henneman filed an affidavit in support of Schussheim’s application, stating that she didn’t object to the record being sealed and that she thought expungement was in the best interest of herself and their children.

The magistrate in the case recommended that the application be denied, noting the absence of any statutory authority to expunge or seal records in civil cases or CPOs and also that the Twelfth District Court of Appeals had never held that courts have the authority to seal CPO records. The magistrate also cited the Ohio Supreme Court’s decision in Pepper Pike v. Doe (1981), in which the court recognized that courts have inherent authority to grant the judicial remedy of expungement and sealing of records in “unusual and exceptional circumstances.” Even if Pepper Pike were to be applied in this case, the magistrate said sealing the record would not be permitted under Pepper Pike’s balancing test. The trial court agreed.

Schussheim appealed to the Twelfth District Court of Appeals, which held that the trial court lacked statutory authority to expunge CPO records. The Twelfth District also declined to apply Pepper Pike to a noncriminal case.

Based on the constitutional right to privacy, Justice O’Donnell wrote today that the court in Pepper Pike recognized that courts have the power to order a record to be expunged and sealed when there is no explicit legislative authorization to do so. He quoted the court’s decision in Pepper Pike to add that the Pepper Pike balancing test requires courts to weigh “the interest of the accused in his good name and right to be free from unwarranted punishment against the legitimate need of government to maintain records.”  

Similarly in this case, “no statutory authorization exists for the court to expunge and seal records relating to a dissolved CPO in adult proceedings,” Justice O’Donnell wrote. “In accordance with our recognition in Pepper Pike of a court’s inherent power to expunge and seal criminal records absent statutory authority, we hold that a court has the inherent authority to order the expungement and sealing of records that relate to a dissolved CPO in ‘unusual and exceptional circumstances.’”

This case appears to involve unusual and exceptional circumstances, Justice O’Donnell stated, because Henneman asked for the CPO to be dissolved and filed an affidavit stating that an expungement would be in her and her children’s best interests. He added that the trial court on remand may consider the fact that no criminal charges were filed against Schussheim and whether Schussheim’s interests outweighed the government’s need to maintain records.

“The inherent authority of a court to expunge and seal a record does not turn on whether a proceeding is criminal or civil,” Justice O’Donnell concluded. “Rather, the determination is whether ‘unusual and exceptional circumstances’ exist and whether the interests of the applicant outweigh the legitimate interest of the government to maintain the record.” 

The court’s majority opinion was joined by Justices Paul E. Pfeifer and William M. O’Neill and Judge Gene Donofrio of the Seventh District Court of Appeals. Donofrio served as a visiting judge during oral arguments in this case, replacing Justice Sharon L. Kennedy, who recused herself.

Justice Judith L. French entered a dissenting opinion, which Chief Justice Maureen O’Connor and Justice Judith Ann Lanzinger joined. Chief Justice O’Connor wrote a separate dissent, also joined by Justice Lanzinger.

In her dissent, Justice French states that the “new judicial power” announced by the majority isn’t supported by Pepper Pike, which she described as “a narrow, short-lived, judge-made ‘fix’ to Ohio’s nascent criminal expungement statutes.”

“Two obstacles prevent Pepper Pike from authorizing nonstatutory expungement of domestic-violence civil-protection-order records,” Justice French wrote. “First, such a power would undermine the General Assembly, which has commanded government agencies to maintain records of CPO proceedings and which has already identified who may apply to seal the records of those proceedings: juveniles. Second, Pepper Pike adopted the statutory definition of ‘expungement’ in Ohio’s criminal expungement statutes, a definition that is unworkable in the context of CPOs.”

“The maxim ‘equity follows the law’ advises against inventing such judicial remedies where doing so would extend the scope of existing legislative remedies,” Justice French continued. “What it means to ‘expunge’ a CPO record and who may apply for such a remedy are issues best left to the General Assembly.”

The court in Pepper Pike adopted a statutory definition of “expunge” that applies only when considering criminal records, Justice French added. She wrote that the majority doesn’t explain how a court can expunge a civil protection order.

Arguing that Pepper Pike is distinguishable from this case “in every way that matters,” Justice French wrote: “Pepper Pike did not construct a bottomless reservoir of judicial expungement power, just as it did not recognize a constitutional right to expungement.”

In her dissenting opinion, Chief Justice O’Connor wrote that while Justice French’s dissent explains the substantive problems with the majority’s opinion, she was dissenting separately to address the “majority’s disturbing judicial activism.”

Chief Justice O’Connor first examined the legislative history of H.B. 10, enacted in 2010 to allow CPOs to be brought against juveniles in a proceeding that parallels the system for adults. But the General Assembly also enacted several rules only for juvenile proceedings because of the unique circumstances that exist when dealing with children, and Chief Justice O’Connor noted that the sealing provision was one such measure. The chief justice emphasized that “the General Assembly did not authorize sealing of CPO records in adult proceedings,” and it thus “drew a bright line between adult CPO proceedings and juvenile CPO proceedings.” “After the enactment of H.B. 10, there is no question that the legislature intended that records relating to CPOs issued against adults stay in the public domain,” she continued. The majority today is circumventing the Ohio Revised Code, she wrote. 

In this case, Chief Justice O’Connor noted there were no criminal charges and the CPO was dismissed without prejudice. But the majority ignores the “unambiguous wording” in Pepper Pike that it applies to criminal cases where the charges are dismissed with prejudice, thus extending the court’s holding to civil proceedings, she wrote.

Chief Justice O’Connor reasoned, even if Pepper Pike did authorize a court to seal civil CPO records, there is no need to remand this case because, under Pepper Pike, the trial court has the authority to expunge a record only when the case is unusual and exceptional, and those aren’t the circumstances in this case. In addition, the trial court in this case already applied Pepper Pike’s balancing test and determined it would not expunge the records.

“Is there any reason to believe that the outcome will be different on remand?” Chief Justice O’Connor asked. “If so, the majority has not only extended Pepper Pike but has also redefined ‘unusual and exceptional.’  In any event, the majority opinion is pure legislation. This case perfectly illustrates the problem with the judiciary involving itself in policy-making.”

The chief justice explained: “On this limited record, we cannot know whether the majority’s new law is good public policy for Ohio. As a practical matter, there is great potential for unintended consequences in the majority’s decision. Most obviously, it increases the risk that respondents will use fear, intimidation, false promises, or threats to procure favorable affidavits from domestic-violence victims.”

2012-1235. Schussheim v. Schussheim, Slip Opinion No. 2013-Ohio-4529.

View oral argument video of this case.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.