Courts have no authority to seal an offender’s criminal record following a governor’s pardon unless the person meets the requirements defined in state law, the Ohio Supreme Court ruled in one of two opinions today about sealing records.

The appeal to the state’s highest court involved the 2011 pardon of James Radcliff by then-Gov. Ted Strickland for crimes committed 30 years earlier.

In the 4-3 decision, the court concluded that for pardon recipients to receive a clean slate, the General Assembly must change state law. The statutes currently on the books do not permit offenders such as Radcliff, who had multiple convictions, to have their criminal records concealed from public view, the court held.

The ruling, authored by Chief Justice Maureen O’Connor, resolves a conflict between two appeals courts on the issue.

Man Wants Records Sealed
Radcliff was pardoned for five decades-old convictions for crimes in several counties. In February 2011, he asked the common pleas court in Franklin County to seal a conviction there. The court approved his application.

The state appealed to the Tenth District Court of Appeals, which reversed the trial court’s decision.

Radcliff appealed to the Ohio Supreme Court. The Tenth District also notified the court of a conflict between its decision and that of the First District Court of Appeals in State v. Cope (1996). The Supreme Court agreed and combined the cases for review.

Sealing Statutes and Pepper Pike
Chief Justice O’Connor pointed out that the authority to seal a criminal record stems from the Ohio Revised Code and from the judiciary’s inherent authority. She noted that R.C. 2953.32 and 2953.52 detail Ohio’s public policy for sealing criminal records. One statute allows first-time offenders to ask a court to seal their records, and the other permits the same for those who have had charges dismissed or who have been found not guilty.

In Pepper Pike v. Doe (1981), the Ohio Supreme Court held that courts also have the authority to seal criminal records in “unusual and exceptional circumstances” and where a defendant’s privacy interests and “right to be free from unwarranted punishment” outweigh the government’s need to maintain criminal records.

Chief Justice O’Connor explained that Pepper Pike was limited by the unique facts of that case and by the lack of legislative guidance at the time for defendants acquitted of charges who were seeking to have records sealed. A few years later, the legislature enacted R.C. 2953.52 to address such circumstances. The statute essentially codifies the Pepper Pike balancing test, the chief justice noted.

While the General Assembly could have included provisions in the law permitting or requiring the records of those pardoned by the governor to be sealed, it did not, and “we must presume that its omission of pardoned defendants was intentional,” Chief Justice O’Connor wrote.

“[I]n the years since Pepper Pike, the General Assembly has enacted, amended, and repealed statutes that govern sealing and expunging criminal records,” she continued. “Despite the General Assembly’s repeated returns to the subject of criminal record-sealing, it has never shown, or even suggested, any intent to extend this remedy to an offender who has been pardoned.”

Judicial Restraint
“The power of the pardon lies in the executive branch, and the power to require retention of records of the crime from which the pardon arose lies primarily in the legislative branch,” Chief Justice O’Connor explained. “Notwithstanding the fact that courts have both statutory and extrastatutory authority to seal criminal records, the judicial branch should restrain its power to act in this area.”

Acknowledging that Radcliff may be deserving of the chance to move forward without the stigma of his long-ago convictions and that courts have expressed frustration in similar situations, she added: “[J]udges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. … The pardon does not wipe the slate clean. … If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act.”   

Joining the chief justice’s opinion were Justices Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French. Justice Paul E. Pfeifer dissented in an opinion joined by Justices Judith Ann Lanzinger and William M. O’Neill.

The Dissent
Justice Pfeifer took the position that R.C. 2953.32 and 2953.52 are not relevant to pardons. Neither statute uses the word “pardon,” he noted. In his view, the Pepper Pike balancing test should be applied to this case because the 1981 decision has never been overruled by this court and has not been superseded by legislation.

He reasoned that it is more likely that the General Assembly made no mention of pardons when enacting R.C. 2953.52 because it knew Pepper Pike would permit pardoned offenders to have their records sealed in certain circumstances.

He identified several reasons that sealing Radcliff’s record is in the public interest, including three more Ohio Supreme Court rulings involving pardons. He also pointed to R.C. 2967.04(B), which states, “An unconditional pardon relieves the person to whom it is granted of all disabilities arising out of the conviction or convictions from which it is granted.” 

“These factors, when considered in aggregate, convince me that the trial court did not act unreasonably, arbitrarily, or unconscionably when it granted Radcliff’s request to seal the record of his convictions,” Justice Pfiefer wrote. “It is not unreasonable to conclude that the state’s interest in providing records of criminal convictions that occurred at least 30 years ago and for which the offender has been unconditionally pardoned is not much of an interest at all. Certainly Radcliff’s privacy interest outweighs the state’s limited interest.”

“[A] trial court has inherent authority to seal the record of a conviction for which the offender has been pardoned pursuant to the standard established in Pepper Pike,” he concluded.

2012-1985 and 2013-0004. State v. Radcliff, Slip Opinion No. 2015-Ohio-235.

View oral argument video of this case.

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