CRIMINAL RECORD BELONGING TO TOT, T.O., CAN WE PLEASE HAVE APPEARANCES OF COUNSEL.
APPEARANCES TENDERED. JENNIFER A. HRADIL: JENNIFER RADIO
MR. CHIEF JUSTICE FROM GIBS BON PC ON BEHALF OF PETITIONER.
ERIN M. CAMPBELL: ASSISTANT HUDSON COUNTY PROSECUTOR ON BEHALF OF THE STATE OF NEW
JERSEY. CHIEF JUSTICE RABNER: MR. ART. GUILLERMO C.
ARTILES: GOOD MORNING, CHIEF, GUL ART FROM MC GOVERN AND EVENING ON BEHALF OF ALL
FORMER LIVING GUARD NORS APPEARING AAMEESH EE TODAY, BOARD.
TESS BORDEN: GOOD MORNING, YOUR HONOR, TES BOARD AMERICAN CIVIL LIBERTIES OF NEW
JERSEY ON BEHALF, NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE AN VOLUNTEER LAWYERS
FOR JUSTICE. CHIEF JUSTICE RABNER: WELCOME COUNSEL, MS. RADIO,
PLEASE GO AHEAD. A. JENNIFER A. HRADIL: THANK YOU, CHIEF
JUSTICE ASSOCIATE CHIEF JUS SIS ES AND MAY IT PLEASE THE COURT MAY I RESERVE
THREE MINUTES FOR REBUTTAL. CHIEF JUSTICE RABNER: YES, PLEASE GO
AHEAD, LAID RADIO THIS APPEAL PRESENTS A NARROW QUESTION, STATUTORY BENEFIT
BASED SOLELY UPON THE FACT OF A PRIOR CONVICTION. AS ALL THE PUBLISHED AUTHORIZED,
AUTHORITY THE ANSWER TO THAT QUESTION IS NO, THE APPELLATE DIVISION'S RULING
TO THE CONTRARY IS INCORRECT, CREATES AN UNNECESSARY CONTROVERSIAL ISSUE AND SHOULD BE
REVERSED, THAT ARLG MENT IS BASED UPON A FEW BASIC PRINCIPLES, THERE DOESN'T
SEEM TO BE ANY DISPUTE THAT A PARDON AAFFORDS THE REP. YENTD COMPLETE FORGIVENESS,
THAT WOULD OTHERWISE ARISE FROM A CONVICTION. AS COURT'S
OFTEN DESCRIBE IT A PARDON RELIEVES A PERSON OF THE LEGAL DISABILITIES ATTENDANT
TO THE CON, CONVICTIONS, THAT IS NOT DPENLT DENT UPON ANY ACT OF THE
LEGISLATURE IT'S OO MATTER OF CONSTITUTIONAL AND COMMON LAW. SO ANY LAW THAT DPROOIFS
A LEGAL OR STATUTORY BENEFIT BASED UPON THE TYPE OF CONVICTION IS THE TYPE OF
A LEGAL DISABILITY THAT A PARDON. AS JUDGE AR SHALL SAID IN, L.B.,
IF THE CONVICTION ITSELF CAUSES THE DISQUALIFICATION THE PARDON ERASE ES
IT. WE REALLY THINK THAT IT'S THAT SIMPLE. AND
ALL THE PUBLISHED AUTHORITY IN NEW JERSEY THAT APPLIES THIS STANDARD HAS CREATED
A DISTINCTION BETWEEN THOSE STATUTORY DIS QUALIFICATIONS THAT ARE PREMISED
UPON THE FACT OF DISQUALIFICATION, BRIZ, BRIZ ANLTDZ THOSE THAT IS ARE PREMISED
UPON SOME MEASURE OF THE APPLICANT'S MORAL CHARACTER LIKE THE RELIANCING
IN TORT TELL LA OR THE PENSIONING BENEFITS IN HOEZ AND WHAT THOSE CASES HOLD IS
THAT WHILE THE STATUTORY DIS KWAUCHGSZ BASED UPON THE APPLICANT'S CHARACTER
ARE FLOT AFFECTED BY A PARDON THOSE THAT ARE PREMISED UPON THE FACT OF COULD
CONVERSATIONS ALONE ARE, THOSE ARE THE VERY LEGAL DISABILITIES THAT AROSE FROM
THE CON, KVBLGSZ. HERE, BASED PURELY UPON THE FACT OF A PRIOR
OR SUBSEQUENT CONVICTIONS, CONVICTION, 52. VMENT, DISQUALIFIES APPLICANTS
FROM WHAT WOULD OTHERWISE BE THEIR STATUTORY RIGHT TO HAVE AN EX EXPUNGEMENT
APPLICATION, THAT IS A TACHT REDISABILITY THAT'S ELIMINATED BY A PARTY.
THE APPELLATE DIVISION REJECTED THIS FAIRLY STRAIGHTFORWARD APPLICATION
OF THE LEGAL EFFECT OF A PARDON TO THE EXPUNGEMENT STATUTE AN IN DOING SO THE
COURT CREATED A CONSTITUTIONAL ISSUE ONE WHICH THSHGS THIS COURT HAD EE,
AVOID BY HOLDING AS IT SHOULD THAT A PARDON EYE LIMB NATS THE STATUTORY BAR BUT
THE COURT MUST CONFRONT THE SEPARATION OF POWERS ISSUE, IS BASED UPON SOME
FUNDAMENTAL LEGAL PRINCIPLES. THE NEW JERSEY CONSTITUTION REQUIRES
SPPGS S SEPARATION OF POWERS BETWEEN THE THREE BRANCHES OF GOVERNMENT AS EYE
APPLIED, THE LEGISLATURE CANNOT INTERFERE WITH ANY POUR OF THE EXECUTIVE THAT THE
CONSTITUTION GRANLTS SOLELY TO THE EXECUTIVE AND THE PARDON POUR IS ONE
OF THOSE. AND AS A RESULT, AND AS COURTS HAVE EXPRESSLY HELD,
A PARDON -- THE LEGISLATURE, I AM SORRY, CANNOT CHANGE OR UNDERMINE THE LEGAL EFFECT
OF A PARDON WITHOUT VIOLATING THE SEPARATION OF POURS, SO SQUINT WITH
THE CAN NONE OF CONSTRUCTION THAT REQUIRES THE COURT TO ADOPT ANY REASONABLE
INTERPRETATION OF THE STATUTE THAT DOES NOT RAISE A CONSTITUTIONAL ISSUE. IS
EXPUNGEMENT STATUTE MUST BE INTERPRETED TO GIVE THE PARDON ITS FULL EFFECT BY E
LIMINATING ANY STATUTORY BAR THAT ARISES PURELY FROM THE FACT OF CONVICTION.
THE PETITIONER'S RECORD CONSISTS OF TWO CRIMINAL CONVICTIONS ARISING FROM
GPS, BOTH, GUILTY PLEAS BOTH OVER 20 YEARS AND BOTH WHICH HAVE BEEN PARDONED,
AS A MATTER OF LAW, THE GO NOR'S PARDON RELIEVED HIM OF ANY FURTHER PUNISHMENT
OR LEGAL DISABILITIES ARISING FROM THOSE CONVICTIONS BECAUSE EVERYONE IN
THIS CASE AGREES THAT HIS APPLICATION FOR EXPUNGEMENT WAS OTHERWISE PROPER, THE,
DEN, INTERPRETED IN THE STATUTE TO DENY THIS PETITIONER THE EXPUNGEMENT BASED
PURELY ON THE FACT OF HIS PARDONED CONVICTION STRIKES AT THE HEART OF THE EXECUTIVES
EXCLUSIVE AUTHORITY AN WOULD VIOLATE THE SPPGS OF POWERS, IN ADDITION, I
RESPECTFULLY REQUEST THAT THE COURT REVIRS THE APPELLATE DIVISION'S RULING I WOULD BE
HAPPY TO ADDRESS ANY QUESTIONS THE COURT MAY HAVE. CHIEF JUSTICE
RABNER: ST IT YOUR POSITION THAT EXPUNGEMENT IS AUTOMATIC FOLLOWING THE GRANT
OF A PARDON OR THAT THERE IS ADDITIONAL ANALYSIS THAT IS REQUIRED?
JENNIFER A. HRADIL: THERE IS ADDITIONAL ANALYSIS THAT WOULD BE REQUIRED
SO THE PARDON WOULD ONLY EXTINGUISH ANY STATUTORY BAR BASED UPON THE FACT OF
CONVICTION BUT FOR EXAMPLE, THE OTHER PROVISIONS OF THE EXPUNGEMENT STATUTE MAY
APPLIES SO FOR EXAMPLE AN EXPUNGEMENT MAY BE DENIED IF THE RECORDS ARE DID SUBJECT
OF A PENDING CIVIL LAWSUIT OR AN EXPUNGEMENT MAY BE DENIED IF IN A
PARTICULAR CASE AN OBJECT TORE MAKES THE ARGUMENT THAT THE PUBLIC VEE, NEED FOR
ACCESS TO THE RECORDS WOULD OUTWEIGH THE PRIVATE INTEREST IN AN EXPUNGEMENT.
JUSTICE PATTERSON: IN THAT CONTEXT, LET'S SAY THE LATTER
EXAMPLE, COULD THE FACT OF THE CONVICTION NOTWITHSTANDING THE PARDON BE CONSIDERED?
IN OTHER WORDS, IF SOMEONE OBJECTS BASED UPON -- I AM NOT
TALKING ABOUT THIS CASE, BUT IN A CASE WHERE THERE IS A VIOLENT CRIME PERHAPS,
COULD SOMEONE OBJECT BASED ON PUBLIC SAFETY, NEED TO HAVE ACCESS TO THOSE
RECORDS CONSIDERING THOSE CONVICTIONS NOTWITHSTANDING THE PARDON?
JENNIFER A. HRADIL: UNDER 2--- UNDERSTAND SECTION 14, I THINK THE GUIDANCE
WOULD BE THE COURT'S DECISION IN COAL MAN AND WHILE THAT CASE HELD THAT YOU
CAN'T EVEN -- APART FROM A PARDON, YOU CAN'T CONSIDER A CATEGORY GOR RIK KAL THINGS
SUCH AS THE EXACT CRIME, BUT YOU WOULD BE ABLE TO CONSIDER THE FACTS, ANY UNDISPUTED
FACTS SUCH AS THE SAL WHAT OCCURRED, BUT THE FACT OF CONVICTION ALONE, I DON'T
THINK WOULD BE APPROPRIATE UNDER COAL MAN IN ANY EVENT, BUT CERTAINLY WOULD BE
EXCLUDED BY THE PARDON. JUSTICE ALBIN: IT IS THE CONVICTION
THAT ALLOWS PEOPLE TO SAY THAT THERE ARE NO LONGER DISPUTED FACTS. I MEAN
ONCE YOU PUT ASIDE THE CONVICTION, THEN YOU DON'T HAVE ANY FACTUAL FINDINGS, SO
WHEN YOU'RE TALKING ABOUT UNDISPUTED FACTS, A TRIAL HAS DISPUTED FACTS,
MOST OF THEM DO, ONCE YOU SET ASIDE THE CONVERSATION, LIKE WHAT UNDISPUTED FACTS
ARE WE TALKING ABOUT? JENNIFER A. HRADIL: SO IF YOU LOOK
AT THE CASE LAW IN STORE CHEL LA AND HOEZ AN GREG GOR YOE AND L.B., THE
DISTINCTION IS THAT JUST THE NAKT THAT THE APPLICANT WAS CONVICTED CANNOT BE CONSIDERED,
BUT IF A STATUTE HAS A MORAL CHARACTER REQUIREMENT OR AN HONORABLE SERVICE
REQUIREMENT, THE FACTS UNDERLYING THE CRIME THAT GAVE RISE TO THE CONVICTION COULD
BE CONSIDERED SO -- JUSTICE FERNANDEZ-VINA: WHERE DO YOU GET
THAT DISTINCTION FROM MS. HRADIL, THE, TWHER DOES THAT COME FROM BECAUSE
I DIDN'T SEE ANYTHING, I KNOW YOU MADE THAT ARGUMENT BUT I DON'T SEE IT ANYWHERE.
JENNIFER A. HRADIL: IF YOU READ ALL OF THE CASES IN NEW JERSEY
TOGETHER, STOR, HOEDZ, GREG AND L.B. THAT DISTINCTION. JUSTICE
FERNANDEZ-VINA: AGAIN, I STILL HAVE A HEADACHE FROM IT BUT --
JENNIFER A. HRADIL: PARDON. JUSTICE FERNANDEZ-VINA: I SAID I DID
I STILL HAVE A HEADACHE FROM IT. JENNIFER A. HRADIL: IF THE
APPLICANT'S CHARACTER WAS SUCH THAT IT MIGHT TARNISH THE LOTTERY OR WAS
NOT OF A GOOD MORAL CHARACTER AND THAT IN A PARTICULAR APPLICANT HAD A PARDON.
JUSTICE FERNANDEZ-VINA: I AM THINKING FOR OF THE PENSIONS
AN THE BEGUN PERMIT ISSUE SO CAN SOMEONE NOW OBTAIN A STATE PENSION WITH THE
EXPUNGEMENT OR A PERMIT. JENNIFER A. HRADIL: THE PENSIONS
STATUTE DOES NOT DISQUALIFY, TO MY KNOWLEDGE, IT LEAVES INSOFAR AS THE
STATUTE WAS IN EFFECT AT THE TIME OF THAT CASE, THE STATUTE DID NOT DISQUALIFY SOMEONE
I BELIEVE, BASED UPON A CONVERSATION, THAT STATUTE STEAD SAID THAT YOU HAD
TO ESTABLISH HONORABLE SERVICE IN ORDER TO BE ELIGIBLE FOR A PENSION SO THE ARGUMENT
-- JUSTICE FERNANDEZ-VINA: IF YOU ARE CONVICTED OF SOME IMPROPER
-- SUCH AS TAKING BRIBES OR FUNNELING MONEY TOWARDS A PERSONAL ISSUE, WOULDN'T
THAT INVOLVE MORAL CHARACTER, BUT IT WOULD BE A CONVICTION THAT PROVES THAT
YOU HAD THAT LACK OF MORAL CHARACTER. JENNIFER A. HRADIL: THE CASE
LAW DRAWS A SOMEWHAT FINE, BUT CLEAR DISTINCTION BETWEEN THE FACTS AND THAT
THE OFFENSE WAS COMMITTED AND THE FACT OF CONVICTION SO THIS GOES A BIT TO THE
ARGUMENT THAT A PARDON DOESN'T FLOW FROM A BUT RATHER STILL PRESUMES THE
UNDERLYING GUILT. JUSTICE ALBIN: SO UNDER YOUR APPROACH, AND I
AM LOOKING AT THE EXPUNGEMENT STATUTE WHICH HAS CERTAIN EXCEPTIONS, I AM LOOKING
AT 2C:53-27 WHICH SAYS THAT WHEN A PERSON'S RECORD IS EXPUNGED THAT PERSON
STILL MUST REVEAL THE FACT OF CONVICTION IF APPLYING FOR A POSITION IN LAW
ENFORCEMENT OR THE JUDICIAL BRANCH. NOW, IS IT YOUR POSITION THAT DOESN'T APPLY
BECAUSE THAT IS A CIVIL DISABILITY? JENNIFER A. HRADIL:
WELL -- JUSTICE ALBIN: WHAT IS YOUR -- I AM TRYING TO FIGURE
OUT WHAT PARTS OF THE EXPUNGEMENT STATUTE ARE YOU SAYING STILL APPLY AN WHICH DON'T
APPLY OR DO NO PROVISIONS APPLY? JENNIFER A. HRADIL: I DON'T
THINK THAT THE PROVISIONS BASED UPON THE FACT OF THE EXPUNGEMENT HAS ANY
DIS QUALIFICATIONS BASED UPON A CONVICTION. JUSTICE ALBIN: IF A
PERSON IS GRANTED AN EXPUNGEMENT, LET'S SAY FOR ARGUE VATD ARSON, AGGRAVATED
SEXUAL ASSAULT OR EVEN MURDER, UNDER OUR EXPUNGEMENT STATUTE IN RESPONSE TO A
QUESTION BY AN EMPLOYER OR ANYONE ELSE OTHER THAN LAW ENFORCEMENT OR JUDICIARY, THE
PERSON COULD SAY I'VE NEVER BEEN CONVICTED OF A CRIME, NOW, ARE YOU SAYING
THAT PERSON PARDONED FOR AN OFFENSE CAN GO ABOUT IN RESPONSE TO QUESTIONS FROM
AN EMPLOYER OR OTHER PEOPLE AND SAY I'VE NEVER BEEN CONVICTED OF A CRIME?
JENNIFER A. HRADIL: NOT WITHOUT AN EXPUNGEMENT.
JUSTICE ALBIN: WELL, OKAY, BUT -- I UNDERSTAND, BUT YOU'RE SAYING THE PARDON
FOR SUCH OFFENSES, IT COULD BE MURDER, AGGRAVATED ARSON, AGGRAVATED SEXUAL
ASSAULT WILL TILE THAT, ENTITLE THAT PERSON TO AN EXPUNGEMENT, CORRECT.
JENNIFER A. HRADIL: NOT AUTOMATICALLY, PROVIDED AGAIN THAT ALL OTHER
CRITERIA ARE MET SO THAT IF AN OBJECTION WERE MADE UNDER ANOTHER PROFESSION THAT
PROVISION WOULD STILL APPLY. JUSTICE ALBIN: BUT LOOK THERE
AREN'T MANY OTHER PROVISIONS TO BAR AN EXPUNGEMENT SO IF A PERSON IS NOT
-- IS EXPUNGEMENT ELIGIBLE FOR A CRIME, EVEN FOR A SERIOUS ONE, WHAT IS GOING TO BE
THE BASIS FOR BARRING THAT PERSON FOR AN EXPUNGEMENT? JENNIFER
A. HRADIL: JUSTICE ALBIN: YOU'RE TALKING ABOUT OTHER PROVISIONS,
LIKE WHAT OTHER PROVISIONS, REALLY? JENNIFER A. HRADIL: I THINK
52-14 IS ONE OF THE MAJOR ONES, AN ON JEKT TORE CAN ALWAYS OBJECT TO A PETITION
MADE UNDER SECTION 2 IN A PARTICULAR INSTANCE THAT -- AND MAKE THE CASE THAT IN
A PARTICULAR INSTANCE THE PUBLIC BENEFIT TO HAVING THE RECORDS ACCESSIBLE IS
OUTWEIGHED -- OUTWEIGHS THE PRIVATE INTEREST. SO I THINK THAT WHETHER OBJECT TORS
HAD USED THAT VERY MUCH DOESN'T MAKE IT NOT AVAILABLE TO THEM.
JUSTICE ALBIN: SO WHAT I AM TRYING TO UNDERSTAND AS YOU'RE SAYING THAT PARDON POWER
IS SOMEHOW NEGATING CERTAIN ELEMENTS OF THE EXPUNGEMENT STATUTE NOT OTHERS,
WHY IS IT NEGATING THAT PART? I AM TRYING TO FIGURE OUT THE PICKING
AND THE CHOOSING THAT YOU'RE DOING THROUGH THE PARDON POWER AS YOU'RE SAYING
WELL IT NEGATES THIS PART OF THE STATUTE BUT IT DOESN'T NEGATE THAT PART OF THE
STATUTE AN I AM TRYING TO SEE WHETHER OR NOT THERE IS ANY MRIN MR. ED BASIS
FOR YOUR ARGUMENT AS YOU'RE DOING THAT. JENNIFER A. HRADIL: THE
PRINCIPLED BASIS IS THAT IT ONLY EXTINGUISHES IN THE EXPUNGEMENT STATUTE OR
ANY OTHER STATUTE, A ELIGIBILITY CRITERIA OR DISQUALIFICATION THAT IS BASED
UPON THE FACT OF CONVICTION SO ANY STATUTE THAT EXCLUDES SOMEONE FROM A STATUTORY
BENEFIT BASED UPON A CONVICTION CANNOT BE APPLIED AS TO A PARDONED CONVICTION;
THAT DOESN'T MEAN THAT OTHER CRITERIA CAN'T. JUSTICE ALBIN:
SO IS A GOVERNMENT RECORD STANDING ALONE, THAT MERELY RECORDS AN ACT THAT HAS THE
E OCCURRED IN THE JUDICIARY A CIVIL DISABILITY? ASSUMING
THE PERSON CAN STILL VOTE, GET EMPLOYMENT, CAN'T BE DISCRIMINATED AGAINST, WHY
IS THAT A CIVIL DISABILITY? AND I SAY THAT BECAUSE YOU STARTED
OFF BY SAYING THAT THIS IS AN ACT OF FORGIVENESS, NOT AN ACT OF FORGETFUL
NESS AN THE EXPUNGING THE RECORD IS IN PART AN ACT OF AMNESIA OR -- SO I AM TRYING
TO FIGURE OUT HOW THIS IS APPLYING TO THE EXPUNGEMENT STATUTE IN THAT RESPECT.
GO AHEAD. JENNIFER A. HRADIL: THERE IS A DIFFERENCE
BETWEEN A PARDON AND AN EXPUNGEMENT. AND WE'RE NOT MAKING THE ARGUMENT
THAT EVERY PARDON LEADS TO AN EXPUNGEMENT. I THINK THAT THE CURRENT -- THE STATE
OF THE LAW AS IT EXISTS DOESN'T SUPPORT THE FACT THAT THE EXISTENCE OF A
RECORD ITSELF IS THE CIVIL DISABILITY. WHAT THE LEGAL DISABILITY HERE IS A STATUTE
THAT EXCLUDES CONVICTED OEFD DERS WHERE THAT STATUTE CAN'T BE APPLIED AS
TO SOMEONE WHO HAS RECEIVED A PARDON BECAUSE THE PARDON WAS INTENDED AND THE LEGAL
EFFECT OF A PARDON IS TO ELIMINATE ANY LEGAL BURDEN OR PUNISHMENT THAT
OTHERWISE WOULD BE EX ACTED BASED UPON THE CONVICTION. JUSTICE LA
VECCHIA: COUNSEL, AS I UNDERSTAND YOUR ARGUMENT YOU ARE ONLY ASKING FOR A
RULING THAT HOLDS THAT AS A RESULT OF THE PARDON GRANTED BY GOVERNOR CHRISTIE TO
T.O., HE IS ELIGIBLE TO APPLY FOR EXPUNGEMENT AND THEN WHATEVER RIGHTS HE'S
ABLE TO SECURE WITH A SUCCESSFUL EXPUNGEMENT APPLICATION WILL FLOW FROM
THE STATUTE -- THE STATUTORY SCHEME GOVERNING EXPUNGEMENTS BUT THE PARDON GETS HIM
IN THE DOOR, AM I CORRECT? JENNIFER A. HRADIL: CORRECT,
JUSTICE, IN THIS CASE EVERYONE AGREED THAT THAT WAS THE ONLY THING THAT
CLOSED THE DOOR SO THE PRACTICE IN EFFECT IN THIS CASE WOULD BE THAT PETITIONER
WOULD BE GRANTED AN EXPUNGEMENT, BUT, YES, IN TERMS OF THE LEGAL RULING, IT IS
ONLY THAT THE PARDON -- YOU CAN'T SHUT THE DOOR BASED UPON A PRIOR CONVICTION AS
TO A PARDONED OFFENDER. CHIEF JUSTICE RABNER: SO HELP US UNDERSTAND
-- JUSTICE LA VECCHIA: AND THE DOOR THAT WAS SHUT
WAS THE FACT THAT HE HAD MORE THAN ONE CONVICTION AND THAT WAS AN INELIGIBILITY
THAT GOVERNOR CHRISTIE'S PARDON ELIMINATED, CORRECT?
JENNIFER A. HRADIL: CORRECT. CHIEF JUSTICE RABNER: SO HELP US UNDERSTAND
YOUR CONSTITUTIONAL ARGUMENT BECAUSE WHAT I'VE HEARD YOU SAY IS THAT IF
YOU DON'T GET BY SECTION 2(A), THE FACT OF THE PRIOR CONVICTION BARS YOU FROM GETTING
IN THE DOOR THEN THERE IS A SEPARATION OF POWERS ISSUE, BUT IF SECTION 14
WERE TO APPLY AND A PERSUASIVE ARGUMENT WERE PRESENTED, AND EXPUNGE MENT WERE NOT
GRANTED THAT DOES NOT POSE A CONSTITUTIONAL ARGUMENT H HOW DO YOU
RECONCILE THOSE TWO? JENNIFER A. HRADIL: SO THE CONSTITUTIONAL
ARGUMENT ARISES IF THE STATUTE IS INTERPRETED TO BAR HIS APPLICATION IN
ITS ENTIRETY BECAUSE THAT WOULD MEAN THAT THE PARDON, THE LEGAL EFFECT OF THE PARDON
BEING THAT THE FACT OF THE PARDON CANNOT EXCLUDE HIM AS THE STATUTE SAYS,
NO ONE WHO HAS BEEN CONVICTED, A PARDON THEN CAN'T BE WITHIN THE DEFINITION OF
NO ONE WHO HASN'T BEEN CONVICTED BECAUSE OTHERWISE THAT WOULD ALLOW THE
LEGISLATURE TO ALTER THE LEGAL EFFECT OF THE PARDON. THE LEGAL EFFECT OF THE
PARDON BEING IT ELIMINATES ANY LEGAL BURDEN THAT RESULTS FROM A CONVICTION.
SECTION 14 ALLOWS CONSIDERATIONS GUIDED BY THE COURT'S RULING IN KOLLMAN THAT
ARE MUCH -- THEY ARE AKIN TO THE APPLICANT'S CHARACTER, WHAT HAPPENED, HOW
MUCH HARM WAS ATTRIBUTED AND THOSE ARE THE TYPES OF CONSIDERATIONS THAT THE
COURT'S REELGS IN STOR CHEL LOW AND HOEZ PERMITTED WHEN THEY SAID THAT THE MORAL
CHARACTER AND BLANK REQUIREMENTS COULD STILL BE APPLIED NOTWITHSTANDING
A PARDON. JUSTICE ALBIN: YOUR FIRST ARGUMENT IS CONSTITUTIONAL
AVOIDANCE, I UNDERSTAND THAT. JENNIFER A. HRADIL: RIGHT.
JUSTICE ALBIN: SO GOING TO THE CHIEF'S QUESTION, ASSUMING THAT THE LEGISLATURE
PURPOSELY EXCLUDED THE PARDON BECAUSE IT'S NOT THERE, THEY ARE AWARE OF
IT AN THEY DIDN'T PUT IT IN NOW WE'RE JUST DEALING WITH YOUR CONSTITUTIONAL ARGUMENT,
ARE YOU ARGUING THAT THE EXPUNGEMENT STATUTE ITSELF DOES NOT APPLY IN ANY
RESPECT WHATSOEVER BECAUSE THE EXECUTIVE GRANT OF CLEMENCY CANNOT BE HEMED IN IN
ANY RESPECT BY THE LEGISLATURE? JENNIFER A. HRADIL: NO.
WE'RE NOT ARGUING THAT THE ENTIRE STATUTE WOULD NOT APPLY. AS I INDICATED,
IF, FOR EXAMPLE, THIS PARTY IN HER OR ANY PARTY IN HER WHO HAD A PARDON ALSO HAD
A PENLDING CIVIL LITIGATION AS TO WHICH THE RECORDS WERE RELEVANT THE
EXPUNGEMENT STATUTE WOULD HAVE PRECLUDED AN EXPUNGEMENT. THAT DOESN'T EFFECT THE
LEGAL EFFECT OF A PARDON AND PROVISIONS SUCH AS THAT AND SECTION 14 WOULD CONTINUE
TO APPLY SO WE'RE ONLY -- CHIEF JUSTICE RABNER: SO STATED
OTHERWISE, YOU'RE CONCEDING THAT THERE IS NO CONSTITUTIONAL IMPEDIMENT TO
APPLYING OTHER OBJECTIONS ONCE YOU GET BEYOND SECTION 2(A)?
JENNIFER A. HRADIL: PROVIDED THAT THOSE OBJECTIONS AREN'T BASED ON THE FACT OF
CONVICTION, YES, WE WOULD AGREE. JUSTICE PATTERSON: THAT
ARGUMENT MAKES A LOT OF SENSE WHEN YOU APPLY IT TO THE EXCEPTION FOR CIVIL
LITIGATION. TO ME, IT'S A LITTLE BIT DIES YER WHEN YOU ARE SAYING THAT IF SOMEONE
WERE TO RAISE AN ISSUE THAT HAS A SORT OF A CHARACTER ELEMENT IN IT THE FACT
OF THE CONVICTION WOULD BE RELEVANT TO THAT CONSIDERATION. DO YOU SEE WHAT I MEAN
BY THAT DISTINCTION? JENNIFER A. HRADIL: I DO, JUSTICE AND IT'S,
AGAIN, IT'S A FINE, BUT I THINK, IN THE CASES A RELATIVELY CLEAR DISTINCTION
THAT WHEN YOU'RE CONSIDERING THE FACTORS UNDERSTAND 14 AND UNDER KOLLMAN OR
UNDER A GOOD FAITH OR HONORABLE SERVICE REQUIREMENT YOU'RE NOT TALKING ABOUT
THE FACT THAT HE WAS CONVICTED. YOU ARE TALKING ABOUT WHAT THE PERSON DID AND HAS
DONE WITH THEIR LIVES, SO THE FACT THAT THEY WERE CONVICTED IS IRRELEVANT.
THE FINDING OF GUILT IS IRRELEVANT. IT IS THE NATURE OF THE PERSON THAT IS RELEVANT;
THAT'S THE LINE IN THE CASES. JUSTICE PATTERSON: AND I UNDERSTAND
THE ARGUMENT, BUT IT SEEMS LIKE YOU ARE SAYING THAT THE PERSON'S CHARACTER
IS SUCH THAT THE PUBLIC INTEREST IN THOSE RECORDS BEING AVAILABLE OUTWEIGHS THE
PRIVATE INTEREST IN EXPUNGEMENT, YOU PR TALKING ABOUT CONDUCT THAT WAS THE
SUBJECT OF THE CONVICTION, NOT JUST CONDUCT OF SOMEONE OUT THERE SAYS OCCURRED,
BUT CONDUCT THAT RESULTED IN A CONVICTION AND THE FACT OF THE CONVICTION IS
NOT ENTIRELY IRRELEVANT TO THAT INQUIRY, WOULD YOU AGREE WITH THAT?
JENNIFER A. HRADIL: I THINK IF SOMEONE IS PARDONED, THE FACT OF CONVICTION
IS IRRELEVANT. BUT IT HAS TO BE BASED UPON THE FACT OF THE OFFENSE, NOT THE
FACT OF THE CONVICTION. JUSTICE ALBIN: I DON'T UNDERSTAND THAT
DISTINCTION, GOING BACK TO JUSTICE PATTERSON'S QUESTIONS, LIKE IN A MURDER CASE
THAT HAS BEEN TRIED 30 YEARS AGO, UPON YOUR POSITION, THAT THE FACT OF THE
CONVICTION NO LONGER APPLIES, WHAT DOES THAT MEAN? IT'S THE CONVICTION
ITSELF, WHICH IS THE STATEMENT ABOUT THE UNDERLYING FACTS, NO? I THINK THIS IS
WHERE JUSTICE PATTERSON WAS GOING ON THAT QUESTION. JENNIFER A.
HRADIL: I AM TRYING TO THINK OF A DIFFERENT WAY TO ARTICULATE IT GIVEN THE
COURT'S CONCERN, BUT THE -- YOU HAVE TO THINK OF HOW THE STATUTE READS.
IF THE STATUTE READS NO PERSON WHO HAS BEEN CONVICTED MAY APPLY FOR A LICENSE,
NO PERSON WHO HAS BEEN CONVICTED MAY, GET AN EXPUNGEMENT, THE FACT OF A PERSON
CANNOT SUFFER THAT DPRIF VACATION OF A STATUTORY RIGHT A BENEFIT THAT THE LEGISLATURE
HAD INTENDED TO CREATE BASED UPON THE FACT OF A PARDONED CONVICTION BECAUSE
THAT WOULD ALLOW THE LEGISLATURE TO CONTINUE TO DEPRIVE BENEFITS BASED UPON A CONVICTION
THE GOVERNOR HAS DETERMINED -- JUSTICE PATTERSON: LET'S USE
JUSTICE ALBIN'S EXAMPLE AND I AM TAKING THIS AWAY FROM YOUR CLIENT'S CASE,
OBVIOUSLY, VERY DIFFERENT, A 30 YEAR OLD MURDER CASE, APPLICATION, PARDONED,
APPLICATION FOR EXPUNGEMENT IS MADE, THE VICTIM'S FAMILY OBJECTS AND SAYS
HE KILLED OUR RELATIVE, THIS PERSON IS DANGEROUS, WHERE IS A LINE DRAWN SINCE THE
BASIS FOR THE VICTIM'S FAMILY SAYING THIS OCCURRED IS PRESUMABLY VERY, VERY
CLOSELY RELATED TO THE CONVICTION ITSELF, CAN THAT OBJECTION BE ENTERTAINED BY THE
COURT IN CONSIDERING THE EXPUNGEMENT APPLICATION? JENNIFER
A. HRADIL: I THINK UNDER THE WAY THE NEW JERSEY CASE LAW AND THE RULE THAT WE
ENCOURAGE THE COURT TO ADOPT IS THAT YES, IT CAN. IT JUST CAN'T SAY I'M
NOT GOING TO HEAR YOUR OBJECTION BECAUSE YOU HAVE BEEN CONVICTED.
JUSTICE ALBIN: IS IT YOUR POSITION -- THAT GENERALLY LOOKING AT OUR JURISPRUDENCE
AN THE JURISPRUDENCE THAT GOES BACK MORE THAN A HUNDRED YEARS, FEDERAL AND
STATE IS THAT A PARDON BASICALLY IS AN ACT OF FORGIVENESS, BUT NOT AN ACT OF FORGETFUL
NESS, WE DON'T FORGET THE CONVICTION, WE FORGIVE THE CONVICTION AND THAT'S
WHY WE'RE DEALING WITH THE SIMPLE DISABILITIES; IS THAT THE GENERAL THEORY
BEHIND IT? JENNIFER A. HRADIL: THAT IS THE GENERAL THEORY,
BUT TO GIVE MEANING TO THE RELIEF OF THE CIVIL DISABILITIES, WE HAVE TO INTERPRET
STATUTES THAT BASE ELIGIBILITY BASED UPON THE LACK OF CONVICTION TO NOT INCLUDE
PARDONED CONVICTIONS. JUSTICE ALBIN: THE REASON WHY I AM ASKING
THAT QUESTION. JUSTICE LA VECCHIA: IF I CAN JUST --
JUSTICE ALBIN: GO AHEAD, JUSTICE LA VECCHIA. JUSTICE
LA VECCHIA: IF I UNDERSTAND YOUR POSITION YOU'RE QUEUEING VERY CAREFULLY TO THE
PRIOR CASE LAW THAT RECOGNIZED OTHER SETTINGS WHERE MORAL TURPITUDE OR
OTHER FORMS OF CHARACTER ANALYSIS WAS STILL RELEVANT LIKE THE PENSIONS CASE THAT
YOU MENTIONED BEFORE AND THE WEAPON CARRY CASE. I MEAN THOSE ARE SITUATIONS
APPLYING THE PRINCIPAL THAT YOU ARE ASKING US TO STICK WITH THAT IT'S FORGIVENESS
OF THE CONVICTION, BUT NOT FORGETFULNESS THAT THE INCIDENT TOOK PLACE SO THAT
WHEN ASSESSING THE CHARACTER IN SOME OTHER SETTING THAT INCIDENT IS STILL AREL
A RELEVANT CONSIDERATION. IF I UNDERSTAND YOUR POSITION AN CORRECT ME IF I'M
WRONG, YOU'RE TRYING TO APPLY THAT LONG-STANDING CASE LAW TO THE
EXPUNGEMENT STATUTE THAT ALLOWS FOR OTHER CONSIDERATIONS OF THE FACT THAT THE ACT
DID TAKE PLACE, THESE ACTS TOOK PLACE, THEY MAY NOT BE DECISIONS TO OVERWRITE
THE REASONS FOR GRANTSING THE EXPUNGEMENT BUT THEY ARE NOT OFF THE TABLE. ITS EEGS
NOT AN IN ELIGIBILITY BASED ON THE CONVICTION ITSELF? AM
I I UNDERSTANDING YOUR POSITION? YOU'RE TRYING TO PRESERVE OUR PRIOR
CASE LAW? JENNIFER A. HRADIL: I AM ASKING THAT THAT CASE
LAW AN THAT RULE, THE DISTINCTION BE APPLIED HERE? JUSTICE ALBIN:
I DON'T SEE HOW THAT NECESSARILY IS INCONSISTENT WITH THE STATE'S POSITION.
SO TAKE ALL THE CASES, THE LOTTERY KALS, THE BEGUN POSSESSION CASE, THE PERSON
CAN COME IN AND SAY I WAS CONVICTED, YEAH, I WAS CONVICTED OF THIS CRIME BUT YOU
CAN'T USE THAT AGAINST ME. I HAVE BEEN PARDONED, SO NO CIVIL DISABILITY
THAT ARISES FROM THE CONVICTION CAN BE USED AGAINST ME, EVEN THOUGH PEOPLE MAY
KNOW ABOUT THE CONVICTION, THE EXPUNGEMENT STATUTE IS SAYING THE -- ONCE
IT'S EXPUNGED THE PUBLIC DOESN'T HAVE A RIGHT TO KNOW THAT YOU'RE CONVICTED AND
YOU CAN WALK AROUND AND SAY I'VE NEVER BEEN CONVICTED OF A CRIME; THAT'S
SOMETHING VERY, VERY DIFFERENT FROM ALL OF THOSE CASES. I KNOW THAT JUSTICE LA VECCHIA
IS SHAKING HER HEAD AND SAYING NO BUT I WANT TO SEE WHAT YOU HAVE TO SAY ABOUT
THAT? JUSTICE LA VECCHIA: I HAVE A FOLLOW UP QUESTION
TO JUSTICE ALBIN'S GO AHEAD. JUSTICE ALBIN: GO AHEAD, ANSWER JUSTICE LA
VECCHIA'S QUESTION, GO AHEAD. JENNIFER A. HRADIL: JUSTICE ALBIN,
THE DIFFERENCE IS THAT IT REALLY IS VERY NARROWLY THAT THE FACT OF BEING
CONVICTED CAN'T CAUSE THE DISQUALIFICATION OR THE DENIAL; THAT DOESN'T MEAN UNDERSTAND
THE CASE LAW AS IT EXISTS THAT THE FACT THAT A PERSON DID SOMETHING AND
THE FACT OF THAT OFFENSE MAY NOT BE CONSIDERED IF THE STATUTORY RIRPT IS DOES THE
PERSON HAVE GOOD MORAL CHARACTER. NOW, IT MAY BE GIVEN VARIOUS WEIGHT DEPENDING
UPON HOW LONG AGO IT OCCURRED AND ANY OTHER MEASURE OF FACTORS THAT WOULD OTHERWISE
APPLY BUT IT JUST CAN'T BE THE FACT THAT THEY WERE CONVICTED. I DON'T THINK
THE STATE ACTUALLY ADDRESSES THAT CASE LAW AND THAT DISTINCTION AT ALL. THEY SORT
OF MERELY SAY THAT THE LAW SAYS IT DOESN'T ALLEVIATE ALL CONSEQUENCES, THAT IS
EXACTLY WHAT THE CASE LAW SAYS, IT DOESN'T RELIEVE ALL CONSEQUENCES OF THE CRIME
AND THE OFFENSE, BUT IT DOES RELIEVE ALL LEGAL BURDENS OR PUNISHMENT THAT WOULD
FLOW FROM THE CONVICTION, THE FACT OF A CONVICTION. JUSTICE LA
VECCHIA: YOUR POSITION IS A MORE MODULATED POSITION THAN THAT TAKEN BY THE AM ME
KEY FORMER GOVERNORS, WHICH I BELIEVE WOULD SAY THERE IS AN AUTOMATIC E
NTITLEMENT TO EXPUNGEMENT, BUT YOU'RE SIMPLY SAYING THE PARDON ELIMINATES THE BAR
THAT WAS CITED BY THE STATE IN THIS INSTANCE TO ALLOW YOU TO EVEN PROCEED
WITH THE REMAINDER OF THE EXPUNGEMENT ANALYSIS; IS THAT CORRECT.
JENNIFER A. HRADIL: THAT'S CORRECT. I THINK THAT WE WOULD AGREE THAT IT SEEMS
DIFFICULT TO CONCEIVE OF A WAY THAT A PARDON COULD BE GIVEN ITS FULL EFFECT
WITHOUT THE EXPUNGEMENT, BUT OUR LEGAL POSITION IS MUCH MORE MEASURED AS YOUR HONOR
HAS INDICATED? CHIEF JUSTICE RABNER: YOU ANTICIPATE #D MY
QUESTION AND I WANT TO GET THE SENSE OF THE SCOPE FROM THE PRACTICAL PERSPECTIVE
OF YOUR ARGUMENT. UNDER 14 IT LISTS MULTIPLE GROUNDS FOR DENIAL, THE FIRST ONE
IS A STATUTORY BASIS FOR DENYING RELIEF AND YOU GET BEYOND THAT THROUGH
YOUR INTERPRETATION OF THE IMPACT OF A PARDON. SECTION B
WHICH WE'VE TALKED ABOUT SAYS YOU CAN DENY RELIEF OF THE, IF THE NEED FOR THE
AVAILABILITY OF RECORDS OUTWEIGHS THE PRIVATE INTEREST. CAN YOU
GIVE US AN EXAMPLE OF WHEN THAT WOULD APPLY IF AN INDIVIDUAL HAS BEEN PARDONED?
JENNIFER A. HRADIL: I CERTAINLY CAN'T SAY THAT THERE
WOULDN'T BE SOME SET OF FACTS THAT THE PROSECUTOR'S OFFICE -- THEIR BRIEF INDICATES
SOME CONCERN THAT THERE MAY BE OFFENDERS THAT SHOULDN'T BE TITLED TO AN
EXPUNGE MENT PERHAPS BECAUSE THERE IS SOME DISAGREEMENT ABOUT THE BASIS OF THE
PARDON OR WHETHER SOMEONE WAS DESERVING SO I CAN'T NECESSARILY GIVE YOU A SET
OF FACTS BUT I THINK 14 AND THE COURT'S RULING IN KOLLMAN ALLOWS IT TO BE ANY NUMBER
OF THINGS, THE EGREGIOUSNESS OF THE CRIME, PERHAPS SOMETHING ABOUT THE PUBLIC
NATURE OF AN OFFENSE, BUT ALL OF THOSE WOULD BE VERY FACT DEPENDENT, BUT THEY WOULD BE
PERMITTED UNDER 14. CHIEF JUSTICE RABNER: SO EGREGIOUS MURD
COULD RESULT IN A PARDON AND ELIGIBILITY FOR EXPUNGEMENT BUT AT THE SAME TIME
THE EGREGIOUSNESS OF IT WOULD JUSTIFY NOT EXPUNGING THE RECORDS; IS THAT WHAT YOU'RE
TELLING US? JENNIFER A. HRADIL: I THINK THAT THE
PARTICULAR FACTS OF ANY CASE, A MURDER, FOR EXAMPLE, AGAIN, I DON'T -- IF IT WERE
SOMETHING OF A PUBLIC NATURE, IF IT WERE -- I AM NOT SURE I CAN COME UP WITH
THE FACTS THAT WOULD SATISFY 14 P BUT YES, I THINK THEORETICALLY, THE PARDONED CONVICTION
MAKES YOU ELIGIBILITY JIBL, THE APPLICATION GETS CONSIDERED BUT
UNDERSTAND 14 IT'S UP TO AN OBJECTOR TO COME FORWARD AND SAY IN THIS PARTICULAR
INSTANCE AN EXPUNGEMENT IS UNAPPROPRIATE BECAUSE THE ACCESS TO THE PUBLIC RECORDS
SHOULD -- IS NECESSARY. JUSTICE PATTERSON: WHAT COMB A SITUATION
WHERE SOMEONE IS CONVICTED OF SEXUAL ABUSE OF CHILDREN, PARDONED, THEN SEEKS
EXPUNGEMENT AND THE ARGUMENT MADE ABOUT THE PUBLIC INTEREST IS THAT WITH -- LEAVING
ASIDE ML AND ALL OF THOSE LEGAL CONSIDERATION AT THE MOMENT, IS THAT
IF THIS PERSON APPLIES FOR A JOB AT THE SCHOOL, THOSE RECORDS SHOULD BE AVAILABLE
TO THE SCHOOL WHEN THEY DO THEIR CRIMINAL BACKGROUND CHECK BECAUSE THIS PERSON
POSES A THREAT TO CHILDREN, IS THAT AN EXAMPLE OF WHERE THE FACTS THAT UNDERLIE
A CONVICTION IN YOUR VIEW COULD BE CONSIDERED IN THE DENIAL OF EXPUNGEMENT, BUT
THE CONVICTION ITSELF WAS NOT A DISQUALIFIER. JENNIFER
A. HRADIL: YES, I THINK IF THE OBJECTION WERE BASED UPON THE FACTS OF THE OFFENSES,
AS YOU STATED, YOU KNOW, THE PARTICULAR ACTS, THEN, YES, I THINK THAT WOULD BE
APPROPRIATE. JUSTICE ALBIN: SO BASED UPON THAT, DO WE ACCEPT
THE FACTS AS ESTABLISHED BY THE CONVICTION? DOES THE CONVICTION
ESTABLISH BY ITSELF THE EGREGIOUSNESS OF THE OFFENSE, MURDERS, AGGRAVATED SEXUAL
ASSAULT, AGGRAVATED ARSON AND SO ON? JENNIFER A. HRADIL:
THE -- WHATEVER FACTS ARE DEEMED PROVEN, THE FACTS THAT ARE DEEMED PROVEN BY
VIRTUE OF A CONVICTION IS WHAT WOULD BE PERMITTED TO BE CONSIDERED UNDER KOLLMAN,
BUT NOT THE FACT THAT A TWRIEL RESULTED IN A CONVICTION. JUSTICE
ALBIN: I DON'T UNDERSTAND THAT AT ALL. THAT A TRIAL RESULTS IN A CONVICTION IS
HOW YOU ENTER A JUDGMENT OF CONVICTION SO IF SOMEONE WANTS TO TALK ABOUT
THE PERSON'S BAD MORAL CHARACTER, THAT WILL PROBABLY ARISE FROM A SEXUAL ASSAULT
OR A MURDER, DO WE ELUDE THAT THE CONVICTION IS ESTABLISHING THOSE FACTS OR
ARE WE SAYING DON'T LOOK AT THE CONVICTION LOOK AT THE TRIAL AND FIGURE OUT YOURSELF
WHAT THE FACTS ARE? JENNIFER A. HRADIL: I DON'T THINK THAT YOU
CAN'T LOOK AT THE CONVICTION TO DETERMINE WHAT FACTS HAVE BEEN ESTABLISHED.
AGAIN, THE QUESTION IS DOES THE STATUTE OR THE REGULATION PRECLUDE OR DISQUALIFY
AN APPLICANT BASED UPON THE FACTS THAT THERE IS A CONVICTION AND SO I DON'T
THINK LOOKING AT THE UNDERLYING RECORD RUNS AFOUL OF THAT UNDER THE LINE OF CASES
THAT I HAVE BEEN DISCUSSING WITH JUSTICE LA VECCHIA. JUSTICE
PATTERSON: PLAY THAT OUT IN REAL TERMS. LET'S USE THE SEXUAL ASSAULT OF A CHILD
CASE, THE APPLICANT TO THE EXPUNGEMENT SAID NO, I DIDN'T, I MAINTAIN MY
INNOCENT THROUGHOUT THAT TRIAL. THE ONLY PEOPLE WHO SAID THAT I DID THAT WAS THE
JURY WHO TRIED MY CASE AND THAT'S BEEN PARDONED, SO THIS SHOULD NOT BE A
CONSIDERATION ON MY APPLICATION FOR EXPUNGEMENT BECAUSE I AM INNOCENT, WHERE DOES
THAT LEAVE US? JENNIFER A. HRADIL: WELL, THE WELL ESTABLISHED
LAW IS THAT THE PARDON DOESN'T ACCEPT THE INNOCENT AND, FRANKLY, I DON'T -- I JUST
DON'T KNOW WHAT THE -- WHAT IT DEEMED TO BE DETERMINED FACT IN THAT INSTANCE
P BUT THERE ARE FACTS THAT HAD TO HAVE HAD BEEN DETERMINED YOU KNOW, WHETHER YOU
WOULD LOOK AT THE STATUTE OR THE... JUSTICE PATTERSON: SO
YOUR APPLICANT THEN SAYS I'M ENTITLED TO A PRESUMPTION OF INNOCENCE THAT'S WHAT
I WALKED INTO THIS TRIAL WITH. I WAS CONVICTED BUT I HAVE BEEN PARDONED SO I'M
NOT CONVICTED AND I AM TELLING YOU RIGHT NOW THAT THAT WAS NOT A REALLEGATION,
I WAS INNOCENT, SO CAN THAT BE CONSIDERED IN THAT PUBLIC INTEREST, PRIVATE
INTEREST WEIGHING THAT THE STATUTE TELLS US HAS TO BE DONE?
JENNIFER A. HRADIL: I THINK THE BREAK IN THAT CHAIN, JUSTICE PATTERSON IS WHERE
YOU SAID I HAVE BEEN PARDONED SO I DON'T -- THAT CONVICTION NO LONGER EXISTS.
THE PARDON DIS NT ELIMINATE THE FACT OF THE CONVICTION, WHAT IT DOES IS PREVENT
ANY PUNISHMENT OR DEPRIVATION OF LEGAL BENEFITS BASED UPON IT.
JUSTICE PATTERSON: YOU'RE ABSOLUTELY RIGHT AND I MISSTATED IT BUT LET'S SAY THE
CONVICTION HAS BEEN PARDONED AND I NEVER COMMITTED THAT CRIME, I AM NOT SAYING
IT HAS ANYTHING TO DO WITH YOUR CASE, BUT WE AVENUE, OBVIOUSLY HAVE TO BE CONCERNED
ABOUT SOME CASE WHERE IT COULD BE RELEVANT? JENNIFER A.
HRADIL: UNDERSTOOD, BUT UNFORTUNATELY FOR THAT HYPOTHETICAL APPLICANT, HIS OR
HER MAINTENANCE OF INNOCENCE JUST DOESN'T FLOW FROM THE PARDON.
JUSTICE SOLOMON: SO WE DON'T GET TOO MIRED IN, THERE IS GOING TO BE A JUDGE
SITTING OR THE BENCH HEARING THE EXPUNGEMENT APPLICATION AN HEARING THE
OBJECTORS, CORRECT? JENNIFER A. HRADIL: CORRECT.
JUSTICE SOLOMON: AND SOMEBODY COMES IN AND SAYS I WAS PARDONED AND I'M NNTD AND
PRESUMABLY THE OBJECT OR AND THE PROSECUTOR WOULD SAY, WELL, JUDGE,
TWELVE JURORS CONCLUDED THAT THEY WERE GUILTY AN THE JUDGE WOULD HEAR THAT AND CONSIDER
THAT AND LIKEWISE THE OBJECTOR WOULD SAY AND IN THE TRANSCRIPT OF YOUR PLEA OR
OF YOUR TESTIMONY OR OF WHATEVER, THIS WAS BROUGHT OUT AND THE JUDGE WOULD
HEAR ABOUT ALL OF THOSE HORRIFIC THINGS AND, ALSO, THE DEFENDANT'S CLAIM, I'M
INNOCENT, IT WASN'T ME AND PRESUMABLY MAKE A CONCLUSION THAT THESE THINGS
PRECLUDE THE EXPUNGEMENT OR DON'T PRECLUDE THE EXPUNGEMENT. IN OTHER
WORDS, ALL THESE THINGS WE'RE THROWING OUT THERE AND GETTING MIERED IN, IT DOESN'T
-- I THINK YOU SAID OR JUSTICE LA VECCHIA SAID, HISTORY INDUSTRY DOESN'T
CHANGE HISTORY INDUSTRY, EVENTS HAPPENED, A JUDGE CAN CONSIDER THEM IN DECIDING
WHETHER TO GIVE AN EXPUNGEMENT AN ALL OF THESE HYPOTHETICALS ARE LARGELY
IRRELEVANT TO THE PROCESS. IT'S A LONG STATEMENT, BUT IS THAT RIGHT?
JENNIFER A. HRADIL: I THINK THAT IT IS. I THINK THAT THE ONLY QUIBBLE THAT
I MIGHT HAVE IS THAT WHEN THE APPLICANT COMES FORWARD AND SAYS I WAS PARDONED,
I AM INNOCENT, AS A MATTER OF LAW, THAT JUST ISN'T THE EFFECT OF THE PARDON.
JUSTICE SOLOMON: UNDERSTOOD, BUT THE PERSON CAN SAY ALL THEY WANT, I DIDN'T
DO IT AND THE JUDGE CAN HEAR THAT AND SAY THAT'S INTERESTING, I HAVE HERE THAT
TWELVE PEOPLE DECIDED YOU DID. NEXT QUESTION. I MEAN, IT'S
NOT AS IF THE JUDGE IS SITTING UP THERE WITH HIS BRAIN FRIED. HE IS LISTENING
TO EVERYBODY STATE THE REASON THEY SHOULD OR SHOULD NOT BE AN EXPUNGEMENT
BASED ON THE STATUTE THAT'S BEING APPLIED, CORRECT? JENNIFER A.
HRADIL: CORRECT AND THE ONLY THING THAT A JUDGE KRNT DO IN OUSH VIEW UNDERSTAND
SECTION 2 IS BARRING. JUSTICE ALBIN: HISTORILY, COMMON LAW,
THE ACCEPTANCE OF A PARDON IS A CONFESSION OF GUILT, AM I WRONG ABOUT THAT?
I'VE SEEN THAT THROUGHOUT THE CASES FOR THE LAST HUNDRED YEARS.
I AM LOOKING EVEN AT WHATEVER OUR 1857 -- PARDON IMPLIES GUILT. SO A PARDON DOES
NOT SUGGEST INNOCENCE. WE ACCEPT THE PERSON IS GUILTY FOR A PARDON,
ASSUMING IT'S A CONFESSION OF GUILT. WE FORGIVE, IT'S A FORGIVENESS OF THE OFFENSE.
AM I WRONG ABOUT THAT? JENNIFER A. HRADIL: NO, YOU'RE NOT,
JUSTICE ALBIN, BUT IS THAT FORGIVENESS MEANS THAT YOU CAN'T BE FURTHER PUN
NIRN PUNISHED OR BE DEPRIVED ANY LEGAL BENEFITS; THAT'S OUR ARGUMENT.
CHIEF JUSTICE RABNER: ANY OTHER QUESTIONS? THANK YOU, MS.
RAD, WE'LL HAVE YOU BACK FOR REBUTTAL. MR. ARTILES. GUILLERMO C.
ARTILES: GOOD MORNING, CHIEF, I APOLOGIZE FOR THE TECHNICAL ISSUE LEADING UP TO
THIS MORNING, WE CAN ALL, THE MAK CART TER SERVER IS SO SAFE THEY WON'T
ALLOW THE JUSTICE ES OF THE SUPREME COURT INTO OUR NETWORK. I AM VERY FRUSTRATED
BY THAT BUT I APOLOGIZE. I APPEAR BEFORE YOU HONORABLE BLEE
AS COUNSEL FOR ALL THE FORMER GOVERN NORS OF OUR STATE. THE
FORMER GOVERN NORS APPEAR BEFORE YOU TO URGE THE COURT TO DO WHAT THE LOWER COURT
DID NOT HEAR WHICH IS TO FOCUS ON THE CONSTITUTION OF 1947. TELLINGLY IN
THE TRIAL COURT OPINION, JUDGE TRUST STEEN THAT TOLD THE TRIAL COURT I HOPE YOU
UPHOLD THIS DECISION, THIS IS UNIQUE, A DIFFERENT AREA AND I THINK IT IS
ONE THAT SHOULD BE APPEALED TO HIGHLIGHT IT AN HOPEFULLY WE CAN CHANGE SOMETHING
ABOUT IT. JUSTICE ES, WE APPEAR TODAY WITH THE SINCERE HOPE
THAT YOU CAN CHANGE THAT SOMETHING. THE POWER WER AFFORDED TO THE GOVERNOR IN
THE CONSTITUTION ARE CLEAR, THE GOVERNOR OF NEW JERSEY ENJOYS THAT POWER. HE OR
SHE HAS THE POWER TO DO ANYTHING, FEW OF WHICH ARE MORE SACRED THAN THE
POWER TO PARDON. THE POWER WAS CONSIDERED BY GOVERNOR CHRISTIE
THE MOST AMAZING AUTHORITY HE HAD AS GOVERNOR. IN ITS SIMPLEST FORM
TO BORROW FROM THIS COURTS THE PARTY CAN BE VIEWED IN ALLOWING ONE TO, AND I
QUOTE PARTICIPATE IN LIFE'S DAILY ACTIVITIES WITHOUT THE STIGMA AND CONSEQUENCES
OF A CRIMINAL RECORD. AND WHILE THIS COURT WAS REFERRING TO AN EXPUNGEMENT IN
THE T B MATTER IT IS PRECISELY THAT MATTER. WHEN THEY TOOK
THE EXTREME MEASURE OF GRANTING A PARDON AND IT IS AN EXTREME ONE, THEY DID SO
WITH THE INTENTION OF REMOVINGING ALL DISABILITIES OF A CONVICTION. NO
GOVERNOR EVER GRANTED A PARDON WITH THE INTENTION OF ONLY REMOVING PART OF THE
PARDONED INDIVIDUAL'S PRIOR ACTS, NOR DID THEY SEEK TO GRANT ONLY PARTIAL
LIBERTY WHETHER THEY COULD VOTE OR SERVE ON A JURY. DOING SO WOULD EVEN.
WHICH IS IS TO GIVE THE INDIVIDUAL A CLEAN SLATE BY REMOVING THE PENALTIES
OF A CONVICTION. UNDER THE BART LET MEASURE HERE I AGREE WITH
JUSTICE ALBIN, THIS IS PRECISELY WHAT GOVERNOR CHRISTIE THOUGHT ON, IN JANUARY 2013
WHEN HE PARDONED PETITIONER OWED DUMB FOR HIS PRIOR CONVICTION. IN
ORDER TO REVIEW THIS AN GIVE IT THE FULL EFFECT, THIS BOARD I RESPECTFULLY URGE
SHOULD USE IT'S GREAT POUR TO LENDS A CRITICAL EYE TO IT SOMETHING THE,
JUDGE AUS SPEEN KNOW. CHIEF JUSTICE RABNER: MR. ART, CAN YOU HELP
US WITH THE BACK AN FORTH WE HAD WITH MS. HRADIL, YOUR ARGUMENT OF COURSE
SAYS YOU GET BEYOND THE STATUTORY IMPEDIMENT UNDERSTAND SECTION 52-2(A) THERE
IS NO LONGER A LEGAL DISABILITY BASED ON THE FACT THAT THE CONVICTION BARS
YOU FROM APPLYING, IS EXPUNGEMENT AUTOMATIC OR ARE OTHER CONSIDERATIONS APPROPRIATE
SHORT OF THE FACT OF CONSIDERATION TO ANALYZE WHETHER THE RECORD SHOULD BE
EXPUNGED. GUILLERMO C. ARTILES: THE GOVERNOR'S DO SEE IT
AS AUTOMATIC AND ONE WHERE THE CRITERIA THAT WE LEAVE LEADING UP TO THE DECISION
TO PARDON AN INDIVIDUAL OR NOT, ALL OF THOSE FACTORS THAT WERE BEING DISCUSSED
EARLIER ARE ONES PROPERLY BEFORE THE GOVERNOR WHEN SHE OR HE IS DECIDING
WHETHER TO PARDON SOMEONE. JUSTICE ALBIN: SO MR. ARTILES, I WANT
TO BE CLEAR ABOUT THIS BASED UPON YOUR RESPONSE TO THE CHIEF JUSTICE'S
QUESTION YOU'RE SAYING THAT THE EXPUNGEMENT ACT IS IN APPLICABLE?
ARE YOU SAYING THAT? GUILLERMO C. ARTILES: YES, JUSTICE ALBIN I
AM URGING THE COURT TO VIEW IT AS SUCH. JUSTICE ALBIN: SO
EVEN A RECORD THAT IS EXPUNGED REQUIRES A PERSON WHO IS BEING CONVICTED OF A
CRIME TO ANSWER TO A REQUEST FROM THE JISHL EMPLOYER OR LAW ENFORCEMENT EMPLOYER
THAT I'VE BEEN CONVICTED OF A CRIME SO YOU WOULD SAY THAT THOSE PROVISIONS DO NOT
APPLY, THAT THE PERSON CAN GO AND SEEK EMPLOYMENT WITH THE STATE POLICE
OR EVEN APPLY FOR A JUDICIAL APPOINTMENT AND SAY I'VE NEVER BEEN CONVICTED OF A
CRIME; THAT'S YOUR POSITION? GUILLERMO C. ARTILES: THAT IS
OUR POSITION AND THAT IS HOW WE READ THE CONSTITUTIONAL POWERS.
JUSTICE LA VECCHIA: MR. ARTILES, CAN YOU ADDRESS HOW THAT IS IN ANY WAY AN IMPEDIMENT
OF THE CONSTITUTIONAL LEGISLATIVE POWER PLACED IN ANOTHER BRANCH OF GOVERNMENT
GOVERNMENT. GUILLERMO C. ARTILES: WE GENERALLY VIEW IT AS
ONE THAT IS PROPERLY BEFORE THE GOVERNOR AND THE LEGISLATURE SHOULD NOT BE MED
WILLING IN SUCH AFFAIRS, BUT IF WE'RE FORCED TO GO DOWN THE LEGISLATIVE ANALYSIS
GROUPS, WE THINK THERE IS PLENTY OF CASE LAW THAT WOULD ALLOW FOR THE STATUTORY
BAR TO BE LIFTED HERE. JUSTICE ALBIN: YOUR ARGUMENT WOULD ALSO
APPLY TO THE JUDICIARY, NOT TO THE LEGISLATURE SO FOR INSTANCE, A PERSON
IS CONVICTED OF MISAPPROPRIATION OF CLIENT FUNDS, MANY CLIENT FUNDS, AND IS DISBARRED,
BASED UPON THE CONVICTION, YOUR ARGUMENT IS THE CONCLUSION IS THAT THE
JUDICIARY WOULD HAVE TO WELCOME THAT PERSON WITH OPEN ARMS, THE CONVICTION AND EVERYTHING
SURROUNDING THE CONVICTION DISAPPEARS, AM I CORRECT ABOUT THAT GIVEN YOUR
INTERPRETATION? GUILLERMO C. ARTILES: THAT'S RIGHT. WE HAVE
ABSOLUTE TRUST IN OUR GOVERNOR AND THE ADVISORY PANEL THAT HE OR SHE IS ABLE TO
EM PANEL TO CONSIDER AND ACCEPT ALL OF THESE ISSUES, ALL OF WHOM SHOULD BE
DETERMINED BY HIM OR HER IN DECIDING WHETHER TO ISSUE THE PARDON AND THAT PARDON
IS A TRUE FORGIVENESS ALLOWING SOMEONE TO DO MORE THAN JUST VOTE OR SERVE ON A
JURY, RIGHT, THEY SHOULD BE ABLE TO APPLY FOR A JOB OR APPLY TO COLLEGE
AND NOT HAVE TO DEAL WITH THE DISABILITIES THAT WERE INCUMBENT ON THEIR CONVICTION.
JUSTICE ALBIN: MY NEXT QUESTION TO YOU IS THIS --
JUSTICE LA VECCHIA: I'M SORRY. JUSTICE ALBIN: MY ONLY QUESTION
TO YOU IS THAT WE KNOW THAT THE AUTHORITY IS GREAT, BUT THERE IS NOTHING
IN THE CONSTITUTION THAT SAYS THAT IT WILL BE USED WISELY I MEAN WHOLE SWATHS OF
PEOPLE CAN BE PARDONED AND IN FACT THAT HAS OCCURRED IN STATES AND MANY
GOVERN NORS PARDON PEOPLE AN EVEN PRESIDENTS HAVE PARDONED PEOPLE AT THE END OF
THEIR TERMS, THEY DON'T WANT THE POLITICAL CONSEQUENCES SO YOU ACCEPT THE POWER
IS GREAT BUT IT DOESN'T NECESSARILY ENSURE WISDOM, DO YOU AGREE?
GUILLERMO C. ARTILES: I AGREE. I DO THINK THAT ALL OF OUR GOVERN NORS WOULD HAVE
THE WISDOM TO MAKE THE CORRECT DECISION IN DETERMINING WHETHER TO POU PARDON
SOMEONE AND I THINK THIS BEING A SUCCESSFUL DRUG COURT BRAM, THE COURT IS WELL
AWARE OF THE STATEMENT OF PREJUDICE ASSOCIATED WITH CRIMINAL RECORDS AND THE,
BLACK AN BROWN COMMUNITIES, THERE IS A DISPROPORTIONATE PLAYINGING OF THOSE
COMMUNITIES AND I THINK VIEWING IT THIS WAY, IS IN LINE WITH THE, DEALING IT AS
SUCH I THINK IT'S FIRMLY ALIGNED WITH THE STATE'S THINKING THERE.
CHIEF JUSTICE RABNER: AND DO COURT DEFENDANTS WHO ARE PARDONED, NOW, CAN
DRUG COURT DEFENDANTS WHO SUCCESSFULLY COMPLETED THEIR DRUG COURT PROGRAM
AND ARE BANG ON THE RIGHT TRACK APPLY TO THE STATE POLICE FOR A JOB AN NOT HAVE
TO DISCLOSE THE PRIOR CONVICTION? GUILLERMO C. ARTILES:
IF THEY WERE PARDONED, CHIEF -- I AM SORRY, I MAY HAVE NOT --
CHIEF JUSTICE RABNER: NO, NOT IF THEY WERE PARDONED. GUILLERMO C.
ARTILES: I DO NOT HAVE ANY ANSWER TO THAT CHIEF. CHIEF JUSTICE
RABNER: JUSTICE LA VECCHIA. JUSTICE LA VECCHIA: DOES YOUR PARDON
ARGUMENT, MR. ARTILES REQUIRE US TO REEXAMINE THE PREVIOUS HOLDINGS THAT
CONSIDERED SOMEONE WHO HAD BEEN PARDONED, BUT NEVERTHELESS WAS PRECLUDED FROM PENSION
BENEFITS OR OTHER SETTINGS WHERE A PERSON'S CHARACTER OR MORALS WERE
CONSIDERED? GUILLERMO C. ARTILES: SHOULD THEY BE RECONSIDERED?
JUSTICE LA VECCHIA: YES. BECAUSE YOU YOUR POSITION, I THOUGHT
WAS SAYING THAT THE GOVERNOR'S ISSUANCE OF A PARDON ELIMINATES THE LOSS OF ANY
CIVIL RIGHTS SO DOES THAT ARGUMENT EXTEND TO EVEN CONSIDER MORAL TURPITUDE
CONSIDERATIONS OF PARDONED OFFENSES? GUILLERMO C. ARTILES: YES
BECAUSE I THINK THOSE DERMSZ SHOULD BE MADE PREVIOUSLY BY THE GOVERNOR.
JUSTICE LA VECCHIA: SO YOU ARE NOW ARGUING THAT A PARDON IS THE
EQUIVALENT OF INNOCENCE. YOUR ARGUMENT WOULD HAVE US DECLARE THAT A PARDON OVERRIDES
THE JUDICIAL PROCESS, THE FACT OF THE STATE'S CHOICE TO EXECUTE AND
ADMINISTER THE LAWS THAT RESULT IN A CONVICTION; IS THAT CORRECT?
GUILLERMO C. ARTILES: THAT IS CORRECT. IN IS IN LINE WITH HOW MANY OTHER
STATES HAVE VIEWED THIS. JUSTICE LA VECCHIA: BUT STATES IN GENERAL
-- MANY -- A NUMBER OF STATES HAVE DONE THIS LEGISLATIVE, CORRECT, HAVE
CREATED ESSENTIALLY AN EXCEPTION TO THEIR EXPUNGEMENT OR ESSENTIALLY ELIMINATED
EXCEPTION TO EXPUNGEMENT FOR PARDON SO AT LEAST SOME OTHER STATES HAVE
ACKNOWLEDGED A NEED TO HAVE THE LEGISLATURE LIMIT THE EXPUNGEMENT EXCEPTIONS FOR
PURPOSES OF ACKNOWLEDGING THE GOVERNOR'S PARDON POWER, THAT'S CORRECT.
A. GUILLERMO C. ARTILES: THAT'S CORRECT.
JUSTICE PATTERSON: DO YOU AGREE WITH THAT? GUILLERMO C. ARTILES:
I DO. JUSTICE PATTERSON: THE THING THE GOVERNOR CONSIDER
WHEN THEY PARDON, THE PARDON DETERMINATION TAKES INTO ACCOUNT ALL OF THEE EXAMINATIONS
B CONSIDERATIONS, YOU KNOW WE KNOW THAT THE PARDON POWER IS VERY BROAD AND
THERE IS REALLY NOT A GUIDELINE FOR HOW THE GOVERNOR MAKES THAT DETERMINATION,
ARE YOU SAYING THAT IMPLICITLY WHEN A GOVERNOR PARDONS SOMEONE THEY ARE
SAYING TO USE THE EXAMPLE THAT WE'VE USED A COUPLE OF TIMES IN THIS ARGUMENT THAT
I, AS GOVERNOR HAVE PARDONED THIS PERSON, THEREFORE, SOMEONE DOWN THE ROAD
WHO SAYS THAT THERE IS A PUBLIC INTEREST IN THE CRIMINAL RECORD BEING AVAILABLE
FOR REASONS OF PUBLIC SAFETY, WHAT HAVE YOU, I AM MAKING A DETERMINATION THAT
THAT PERSON HYPOTHETICALLY IN THE FUTURE IS WRONG, THAT THAT THIS PARDON
DETERMINATION MEANS THAT THAT DETERMINATION IS MADE FOR THAT FUTURE CONCERN
ON PUBLIC SAFETY; IS THAT WHAT YOU'RE SAYING? GUILLERMO C.
ARTILES: THAT IS AND THAT IS FURTHER ARGUED, JUSTICE THAT IT IS IN THE PUBLIC
INTEREST THAT WE SHOULD BE VIEWING IT AS SUCH, TO TRULY ALLOW SOMEONE TO
LEAD A LIFE UNENCUMBERED BY THIS PRIOR CONVICTION. JUSTICE
ALBIN: SO COUNSEL, YOU ARE I AM TRYING TO RECONCILE YOUR ARGUMENT WITH OUR RECOGNITION
OF WHAT A PARDON MEANS HISTORILY WITHIN THE STATE AND ALSO WITHIN OUR FEDERAL
LAW AND I AM JUST CITING ONE CASE, BUT THIS IS A THEME THAT SEEMS TO FOLLOW
THROUGHOUT THE CASE LAW, PARDON IMPLIES GUILT. IF THERE IS NO GUILT, THERE IS NO
GROUND FOR FORGIVENESS THAT'S ONE OF OUR NEW JERSEY 1857, YOU LOOK AT VERDICT,
THE UNITED SUPREME COURT COURT CASE AN MANY OTHER CASES SAY THAT. YOUR
ARGUMENT SEEMS TO BE COMPLETELY UNTETHERED TO OUR CASE LAW. AM
I MISTAKEN ABOUT THAT? GUILLERMO C. ARTILES: I DON'T KNOW IF IT'S
COMPLETELY UNTETHERED, JUSTICE, BUT WE ARE ASKING FOR A FRESH SET OF EYES
HERE TO CONSIDER THIS CASE. IT IS AN INCREDIBLY UNIQUE OPPORTUNITY AND ONE THAT
I THINK JUDGE AUS SPEEN KNOW WAS SORT OF GETTING AT EARLIER. SHE SEEMED
TO BE FRUSTRATED AND I THINK, YOU KNOW, THIS COURT HAS AN OPPORTUNITY TO DEAL WITH
THAT FRUSTRATION IN A WAY THAT WOULD PUT ADDITION PUT PETITIONER T.O. THE
LIBERTY HE DESERVES. HE PAID HIS PROOIF, PRICE HE DID HIS TIME AND NOW HE SHOULD
RECEIVE HIS FULL BURDEN OF THE PARDON. JUSTICE PATTERSON:
WHAT JUDGE AUS SPEEN KNOW WAS ADDRESSING IF I CORRECTLY UNDERSTOOD THE ISSUE
FOR HER WAS IS THIS PERSON DISQUALIFIED BECAUSE OF TWO CONVICTIONS. I HAD MEAN
THAT'S CLEARLY AN ISSUE THAT IS BEFORE THE COURT AND THAT'S CLEARLY AN ISSUE THAT
SHE WAS CONSIDERING. YOU ARE ARGUING FOR SOMETHING BEYOND WHAT WAS CONSIDERED
BY THE TRIAL COURT, CORRECT? GUILLERMO C. ARTILES: CORRECT.
CHIEF JUSTICE RABNER: AND YOU DON'T ACCEPT PROFESS SER WILL LIS STON'S
STANDARD WHICH HAS BEEN ADOPTED BY MANY, MANY COURTS THROUGHOUT THE NATION; IS
THAT FAIR? GUILLERMO C. ARTILES: YES, CHIEF, THAT'S RIGHT.
CHIEF JUSTICE RABNER: BOTH THE CONVICTION ITSELF AND THE
UNDERLYING FACTS CANNOT BE CONSIDERED IN THESE OTHER AREAS INCLUDING THE EXPUNGEMENT
STATUTE AND OTHER BASES TO OBJECT UNDER IT? GUILLERMO C.
ARTILES: ALL FACTORS MUST BE CONSIDERED BY THE GOVERNOR. CHIEF
JUSTICE RABNER: ANY OTHER QUESTIONS? ANYTHING YOU WOULD LIKE TO
ADD MR. ARTILES. GUILLERMO C. ARTILES: NOTHING MORE, THANK YOU
YOU CHIEF, BORE BR ADDRESS 2 POIJTS, FIRST IS RESPONSIVE TO THE
CONVERSATIONS YOU HAD WITH COUNSEL BEFORE MEAN THE SECOND QUITE BRIEFLY IS TO ADDRESS
THE LEGISLATURE LA LAF HISTORY AND EVEN IF WE ARE WENT STATUTORY
INTERPRETATION, T.O. STILL WENS HERE. SO FIRST I THINK WHAT THESE
CONVERSATIONS HAVE GRAPPLED WITH THE ULTIMATE QUESTION WHAT IS THE FULL
EFFECT OF THE PARDON AND WE KNOW AS A MATTER OF SEPARATION OF POWERS WHATEVER
THAT FULL EFFECT IS, THE LEGISLATURE AND INDEED THE JUDICIARY CANNOT COULDN'T
STRAEN IT. BUT YOUR HONOR IS DETERMINE ITS VOTE, NOW THAT'S AWAITED
QUESTION WORPTS YOU NODE TO DETERMINE ITS FULL SCOPE TODAY, I GUESS I'LL SAY
YOU DON'T NEED TO DETERMINE THE FULL SCOPE TODAY. AT MEN MUM, WE KNOW
WITH FIDELITY THE CASE LAW STORE CHEL LA, GI YOUR OGORE YA AND HOZER MS. TR PAR
DONS OF FACT IS TO RELIEF OR REMOVE THE LEGAL SDALTS ATTENDANTS UPON
CONVECTION, THAT'S AT A MEN MUM. AS TO THE QUESTION THAT IS WHAT IS A LEGAL
DISABILITY, I THINK AMICI GORE IN OTHER WORDS'S ARGUE PR SWAYS CIVILIANLY AS A
MATTER OF POLICY THAT THE MAINTENANCE OF A CRIMINAL RECORDS IS A LEGAL
DISABILITY, AND MUNICIPAL RIGHTS ORGS KNOW IT IS, IT IS CALLED IN THE SCHOLARSHIP
A CIVIL DEATH AND EEM GRATEFUL FOR NAMING JUSTICE HOW DISPORTION IN
ITLY THAT CIVIL DEATH AFKS BLACK AND BROWN COMMUNITIES IN OUR STATE AND
COUNTRY. BUT WHETHER OR NOT A CIVIL DISABILITY NECESSARILY OR THE REMOOCHL AVENUE
CIVIL DISABILITY NECESSARILY MEANS AUTOMATIC EXPUNGEMENT I THINK IS
A QUESTION OF HOW ANSWERED BY ANY COURTS IN OUR STATE. IF
IT DOES, IT MEANS THAT THE EXPUNGEMENT STATUTE AS I BELIEVE JUSTICE ALBIN ASKED
EARLIER IS SIMPLY BESIDE THE POINT AND SO WE DON'T NODE TRY TO FIT THE
AUTOMATIC EXPUNGEMENT WHO THE IS STATUTE UNDER R FOR EXAMPLE 52-6, WE NODE TO
SAY AGAIN IT'S BESIDE THE POINT. EEJ COMPELLINGINGLY A PETITIONER MIGHT GO
GR A COURTS AND ARGUE I RECEIVED MY PARDON, IT REMOVE THE LEGAL
DISABILITY AS A THE MA OF DUE PRO SESHGS I NEED AN EXPUNGE PT, COULD SOAK AN K
WIT ABL JUDICIAL CREATIVE REMEDY TO SAY I HAVE A LIBLT INTEREST IN BEING
RELIEVED OF THESE DISABILITIES. A COURT WOULD THEN HAVE TO DETERMINE WHAT THAT
EXPUNGEMENT LOOKED LIKE WHETHER TO JUSTICE ALBIN'S QUESTION IT INCLUDED
WHAT IS NOW PRESENTLY, I'M LOOKING AT MY NOTES 52-27 C SUCHES THAT IT'S STILL
AVAILABLE IN CERTAIN EMPLOYMENT APPLICATIONS, AGAIN THAT IS NOT SOMETHING WE
HAVE TO FIT WITHIN THIS STATUTE, IT WOULD BE A QUESTION THAT EITHER THE
LAW DIVISION IN THAT FIRST INSTANCE OR YOUR HONOR'S NOW COULD OPINE ON, WHAT
IS THE FULL EFFECT. AGAIN, T.O. DOESN'T NEED TO WIN HERE MENT
RETURNING TO WHAT WE KNOW AT A MEN MUM WHICH I BELIEVE IS MS. HRADIL'S ARGUMENT,
WE KNOW AT A MEN MUM THAT IT REMOVES THE DISABILITY ASSOCIATED WITH CONVICTION.
AND SO TO JUSTICE LAVECCHIA'S QUESTION EARLIER TODAY AND POWERFUL ASENT
IN J.S. WHAT WE KNOW THAT MEANS ANY TIME A STATUTE SAYS SOMEONE WITH A CONVICTION
GO OH HERE, SOMEONE WITHOUT ONE GO OEF HEESHGS THE PERSON THAT RECEIVES A
PARDON GETS TO GO TO THE SIDE OF THE ROOM WHERE OR THE SIDE OF THE STATUTE THAT
SAYS PEOPLE WITHOUT CONVICTION BELONG HERE. SO ANY TIME CHIEF
JUSTICE RABNER: WE UNDERSTAND THAT, AS YOU CAN TELL FROM THE DISCUSSION THAT'S
TAKEN PLACE SO FAR WE UNTHE, WE HEARD WHAT THE STATE HS TO SAY, WHAT'S
THE LOGICAL IMPORT OF THAT ARGUMENT WITH RESPECT TO THE REST OF THE EXPUNGEMENT
STATUTE? THE QUESTION YOU SAY WE DON'T NEED TO KNOW TODAY, THE ANSWER
TO TODAY, WHAT WILL WOULD THIS HAVE BEEN IN. TESS BORDEN: THE OPINION
MOST NAR ROLL COULD AFFIRM WHAT WE KNOW FROM HOZER, WHAT WE KNOW FOR
STORCELLA, ANY TIME THE LEGISLATURE IN AN EXPUNGEMENT STATUTE OR OTHERWISE
CREATES A BAR TO OR AN EXCLUSION TO CERTAIN BENEFITS, PRIVILEGES OR RIGHTS BASED
ON A CONVICTION, THAT A PARTY REMOVES THAT, THAT EXPUNGEMENT STATUTE,
THE HE A ALSO SO IN THE STATUTE THAT SETS UP THE ELIGIBILITY FOR A BOARD OF
EDUCATION MB SHIP, IT MUST BE SO IN ANY LEGISLATIVE ENACTMENT.
WITH RESPECT TO THE EXPUNGEMENT STATUTES CONVICTION MANY MARCH 522 A AS WELL AS,
WHICH, OF COURSE, IS THE CASE IN T.O.'S APPEAL BEFORE YOU, AS WELL AS
IN 2 C TWROEP DRUG OFFENSES AS AN L B CASE AND 2 B WHICH HASN'T BEEN LITIGATED
YET AND ANY OF THOSE CONVICTION BARS IN SECTION 2 MUST BE REMOVED. I DON'T
THINK IF IT'S, YOUR HONOR'S PENN IS AS NARROW AS MS. HRADIL SUTH, I DON'T
THINK IT MEANS 52-14 DOESN'T AP MROOE, I CERTAINLY DON'T INTO 52-27 C WITH RESPECT
TO THE ABLT OF RECORDS OR LAW ENFORCEMENT CORRECTION OR JUDICIAL
EMPLOYMENT IS ANY KIND OF BAR. IT'S SIMPLY A LINER, WHEREVER THE STATUTE SAYS
CONVICTION, YOU DON'T GET X, YOUR HONOR'S MUST CROSS OUT THE WORD
CONVICTION, IT'S SIMPLY THE REMOVAL OF A BAR. DOES THAT ANSWER YOUR HONOR'S
QUESTION, CHIEF. CHIEF JUSTICE RABNER: IN PART. SO LIEUTENANTS'
ASSUME WE GRANT, WE ISSUE A RULING THAT'S CONSISTENT WITH WHAT YOU JUST SAID,
REMANDED BACK TO THE TRIAL COURT BECAUSE EVEN IN L.B. ON WHICH YOU RELY,
THE TRIAL COURT WENT TO THE MERITS AFTER DECIDING IT WASN'T A BAR. THE STATE STANDS
UP ON REMOOND MANNED AND SAYS REOBJECT ON ONE OF THE ON THE GROUND OF
SECTION 14. WHAT IS YOUR POSITION AT THAT POINT, MAY THAT OBJECTION BE HEARD
OR IS THERE SOME IMPEDIMENT BASED ON THE PARDON ORT INSTITUTION THAT STANDS
IN THE WAY? TESS BORDEN: OUR POSITION IS THAT ON THE LIMITED
VIEWS, SIMPLY WITH FIDELITY AND STORCELLA, THAT MAY BE HEARD MUCH THE FAFKT A
PARDON I WOULD SUGGEST IS RELEVANT TO THE TRIAL COURT'S CONSIDERATION.
AS A CONSTITUTIONAL SEPARATION OF POWERS QUESTION, IF YOUR HONOR'S ARE TO GO
BROUD R BROAD AND FIND EXPUNGEMENT IS AUTHOR TILT TO GIVE FULL EFFECT
TO THE PARDON THAT, OF COURSE, MAY NOT BE HAEFRMENTD AGAIN, THE LIMITED VIEW
AND I THINK ALL THAT THE CASE LAW SETTING AR SIDE PUBLIC POL Z BUT ALL
THAT THE CASES LAW REQUIRES THAT IS THAT ANY EX CLIEKS BASED ON CONVICTION MUST BE
REMOVED BY THE GRANT OF THE PARDON. I WOULD SAY FINALLY ON THIS POINT, YOUR
HONOR'S KNOW AND WE HAVE RAISED TIME AND AGAIN BEFORE THIS COURT THAT
THE LEGAL DISABILITY CLATS RUL CONSEQUENCES OF CONVICTION ARE ENORMOUS. I
WOULD SAY IN SOME RARE CASES THE MAINTENANCE OF RECORDS MAY INDEEDS
BE IN PUBLIC INTEREST AND I THINK LEGISLATURE WAS WRIES TO INCLUDES THAT IN SECTION
14. WE OBVIOUSLY DON'T WANT THE PRRS OFFICE TO ARGUE TOO OFTEN, WE
WOULD LIKE THE TO BE RESERVED ONLY FOR EXCEPTIONAL CASES, BUT FOR AULT REASONS
WE ADVOCATE FOR TRANSPARENCY AROUND POLICE DISCIPLINARY RECORDS OR OH
FSHL MISCONDUCT THE RESULT INTERNAL INVESTIGATIONS, YOU KNOW, I THINK
THERE ARE SOME TIMES WHERE A RECORD MAY BE, THE MAINTENANCE OF THE RECORD MAY
BE IN THE PUBLIC INTEREST, FOR THE AVERAGE CIVILIAN VILIN, MR. T.O.
THAT, IS NOT THE CASE. OF. JUSTICE PATTERSON: I'M SORRY, JUSTICE
SOLOMON. JUSTICE SOLOMON: IS THAT A RECOGNITION TO
SOME EXTENT THAT THE RECORD KEEPING FUNCTION IS NOT NECESSARILY AN EXECUTIVE BRANCH
FUNCTION, FOR EXAMPLE, THE COURTS HAVE THEIR OWN RECORDS, THEIR INSISTENCE OF
RECORDS, THEY REQUIRE CERTAIN RECORDS, AND THE EXECUTIVE CAN'T TELL
US HOW TO KEEP THEM OR HOW WE ADMINISTER THE JUDICIARY. IS THAT YOUR RECOGNITION
OF THAT FACT? TESS BORDEN: I THINK IN PART JUSTICE
SOLOMON. I ALSO THINK THIS IS A MORE COMPLICATED SEPARATION OF POWERS ARGUMENT
AND I THINK THE COURT NEEDS TO THAT I DON'T THINK THE CORD NEEDS TO SDOID
TODAY I THINK THE ACADEMICALLY THE GOVERNOR HAS IS THE LAW ENFORCEMENT OFFICER,
THE ATTORNEY GENERAL, THE PROSECUTOR'S OFFICE IS BELOW THEM, ARE ALL PART OF THE
EXECUTIVE. AND SO I THINK WE HAVE A A MATTER OF SEPARATION OF POWERS
THE EXECUTIVE COULD DECIDE HIM OR HERSELF TO SEAL RECORDS, COULD DECIDE TO
DISMISS CHARGES, COULD DECIDE ON. JUSTICE SOLOMON: YOU DON'T
AGREE, YOUR NOT ARGUING THEY THEY COULD ORDER US TO SEAL OUR RECORDS UNLESS
WE WOULD HAVE TO ORDER THAT, WOULD WE THOT? TESS BORDEN: I THINK
THAT IS RIGHT, JUSTICE. EEJ THEY COULD EFFECTIVELY COULDN'T SEBT TO A JUDICIAL
BUT I DO NOT BELIEVE, SNOW I HOPE YOU WON'T HOLD MY COLLEAGUES TO A
FUTURE ARGUMENT, I DON'T THINK THEY COULD ORDER YOU TO UNSEAL YOUR RECORDS
LEGALLY. JUSTICE ALBIN: YOU'RE ARGUING THAT THEY CAN SAY
THAT TO THE LEGISLATURE. I'M TRYING TO UNDERSTAND YOUR ARGUE MANY. WHEN
YOU ARGUE THAT THE GOVERNOR HAS THIS PEREMPTORY POWER, WHY, IF IT WORKS AGAIN
THE LOECH CHER WHICH IS A COEQUAL BRANCH OF GOVERNMENT, WHY WOULDN'T
IT WESHG GONS THE JOUSH RAER PARTICULARLY IF THE JUDICIARY UNDER SECTION 14 OF THE
EXPUNGEMENT STATUTE IS DOING WHAT YUR SAYING IT'S DOSHGS IT'S PERMITTING
THE RECORDS TO SURVIVE, CREATING A CIVIL DEATH TO YOUR CLIENT, USING YOUR TERM.
I'M TRYING TO, I'M TRYING TO FIGURE OUT YOUR DISTINCTION WOI, WHY THE
JUDICIARY IS SOMEHOW SUPERIOR TO THE LEGISLATURE? TESS BORDEN: BECAUSE
I'M ARGUING BEFORE THE JUDICIARY, YOUR HONOR. I APOLOGIZE THAT WAUT TAKE
AWAY FROM MY ARGUMENTS, I MEANT THAT AS A HYPOTHETICAL THAT, IS THE FULL EX
STEN OF THE POWERS OF ARGUMENT I BELIEVE. WE ARE NOT ARGUING AS A MATTER OF LAW
THAT THIS COURT MUST DECIDE TODAY THAT EXPUNGEMENT IS AUTOMATIC FOLLOWING
THE PARDON. I THINK IT IS AN OPEN LEGAL QUESTION, THERE ARE GOOD POLICY REASONS
TO SAY THAT THE OUGHT TO BE, BUT I THINK ON THE LAW, AS JURISPRUDENCE
STANDS IN OUR STATE, I'M NOT MAKING THAT LEGAL ARGUMENT TO YOU. IF
I WERE, OR IF YOUR HONOR'S WERE TO CONSIDER THAT, I THINK THE QUESTION WOULD BE
WHAT IS THE FULL EFFECT OF THE PARDON, WHAT DOES IT MEAN TO REMOVE A
LEGAL DISABILITY AND I THINK THERE ARE GOOD ARGUE MANIES TO STATE THE MAINTENANCE
OF ANY RECORD OF THE CRIMINAL COULDN'T VIKSZ WERE INDEED OF THE ARREST AND
TRIAL, EVEN THE EXPUNGEMENT GOES TO THE FULL CRIMINAL ROAR BUT THE MAINTENANCE
OF HAD RECORD IS A LEGAL DISABILITY. THAT WOULD NOT BE THE SKEKS TIFF
ORGD THE LEGISLATURE, IT WOULD SIMPLY BE THE EXECUTIVE, IT WOULD SIMPLY BE THE
JUDICIARY FINDING THAT THE PARDON POWERFUL EFFECT REQUIRES THE
EXPUNGEMENT TO BE AUTOMATIC. JUSTICE PATTERSON: THE LEGISLATURE CAN
LOIMENT, LIMIT ITS OWN POWER BY DEFERRING TO THE EXECUTIVE AS IN A
NUMBER OF STATES IT'S DONE BY SAYING IN ESSENCE, PAR DONS MEAN THAT THERE'S
EXPUNGEMENT. I GUESS SEE NO CONSTITUTIONAL IMPEDIMENT TO THAT? THE
LEGISLATURE. TESS BORDEN: CORRECT. JUSTICE
PATTERSON: WE HAVE AN EXPUNGEMENT STATUTE IN NEW JERSEY THAT HAS BEEN AMMED A
NUMBER OF TIMES AND I THINK IT'S FAIR TO SAY IN JEN WRUL THE LEGISLATURE
HAS EXPRESSED AN INTEREST IN BROADENING UP FOR PEOPLE IN NEW JERSEY WITH CONVICTIONS
TO GET EXPUNGEMENT, YOU WOULD AGREE TWHI AS WELL? TESS BORDEN:
ABSOLUTELY. JUSTICE PATTERSON: WHAT SHOULD WE MAKE THE FACT
THAT THE LOIP CHER HAS NEVER ADDRESSED PAR DONS? IF ANYTHING?
TESS BORDEN: THANK YOU JUSTICE PATTERSON AND THAT'S A SEGUE INTO MY SECOND POINT.
WE SHOULD MAKE ABSOLUTELY NOTHING OF IT EX SEP THE LOIP CHER'S AFFIRMATION
OF THE DECISION IN L.B. AND THAT EDGE CONSTRUCTION THAT THE LEGISLATURE HAS
PRESUMED AWARE OF JUDICIAL CONSTRUCTION OF ATS ENACT THE AND WE KNOW IN THIS
CASE COURTS IN NEW JERSEY HAVE ONLY WHAID IN ONCE ON THE LEE EFFECT OF A PARDON,
THE LAW DIVISION DID SO IN A PUBLISHED OPINION IN L.B. 15 YEARS AGO AND
THAT HAD BEEN THE LAW THAT ADVOCATES HAVE ROW LIED ON FOR THE PAST DECADE AND A HALF.
IN OUR BROEF WE CITE TO ADVOCACY ORGS THAT RELY ON L.B. JUST FOR THE
OPPOSITION, OVER THE WEEKEND I DOUBLE-CHECKED THEY UPDATED THE STATE REPUNCH THE
AND STEL RELY ON L.B. AND THAT IS IF NOT THE LAW OF THE LAN, THAT HAS BEEN
THE JUDICIAL CONSTRUCTION OF THE EN NABLT MENT FOR THE PACHT DECADES AND A HALF
AND SO THE STATE SAYS IN ITS BRIEF SHALL AL JUDICIAL CONSTRUCTION ONE JUDGE IN
ONE KOUN SEE. I'M TRYING, ARE YOU SUGGESTING THAT A LAW DIVISION
DECISION IS THE LAW OF THE STATE? TESS BORDEN: NO, AND, YOUR HONOR,
PERHAPS I SPOKE TOO WICKLY I SAID THAT MAY NOT BE THE LAW OF THE LAN
BUT IT IS SERNL 8 JUDICIAL CONSTRUCTION THAT WE HAVE. I DO --
CHIEF JUSTICE RABNER: L.B. IS BINDING ON WHO? TESS BORDEN:
ON THE LAW DIVISION JUDGES IN THAT COUNTY, I BELIEVE. BUT IT IS PERSUASIVE ELSE
WRCHLT AND SO I WOULD SAY. JUSTICE ALBIN: NOT NECESSARILY,
A LAW DIVISION JUDGE, NO LAW SDWIGS JUDGE BOUND BY ANOTHER LAW
DIVISION'S DECISION. NOT EVEN ANOTHER SUPERIOR COURT JUDGE IS BOUND BY THAT.
BORE BR I MEANT ON THAT, JUDGE, IT IS SIMPLY LOOKING THE WAY I WOULD SAY
AND I BELIEVE THE STATUTORY INTERPRETATION THAT PRESUMES AWARE THAT THE LEGISLATURE
IS AWARE, YOU KNOW, OBVIOUSLY IN POST COMES FROM YOUR HONOR'S AND THEN
THE APPELLATE DIVISION ETCETERA. I WOULD SIMPLY SAY THE FACT THAT THIS LAW,
SORRY, THIS OPINION HAVING BEEN ISSUED A DECADE AND A HALF AGO HAD NOT RESULTED
IN THE LEGISLATURE 11 LATING IN LINE WITH IT, I THINK IS UNPERSUASIVE.
HAD THE LAW -- CHIEF JUSTICE RABNER: WOULD IT BE FAIR TO SAY
THAT LOICH CHEF INTENT IS THE NO THE STRONGEST ARGUMENT THAT YOU HAVE TO ADVANCE
UNDER THE CIRCUMSTANCES HERE? TESS BORDEN: PERHAPS THAT
AND I STARTSDED THERE BECAUSE OF JUSTICE PATTERSON'S QUESTION. I DO THINK
AND JUSTICE PATTERSON MADE THE ARGUMENT. JUSTICE PATTERSON: I STARTED
THE TROUBLE. BORE BR I WAS ABOUT TO SAY YOU MADE THE ARGUE MANY PER MORE
SPER WAYS SWAY CIVILIANLY THAN I DOES. WOULD COMES IS STAPT TOWER OF THE LOIF
TIFF INTENT JUSTICE PATTERSON SAID FOR DECADES NOW THE LOIP CHER HAS AMEND
THE STATUTE AND HAS BROADENED AS THE LAYOUT IN DOUGH TAIL AND IN OUR BROEF HAS
BROADENED EXPUNGEMENT ELIGIBILITY. IS AND SO I THINK THERE IS L.B. IS NOT
THE FACT THAT THE LEGISLATURE HAS NOT 11 LIT LATED IN LINE WITH L.B. DOESN'T UNDO
ANY OF WHAT WE MUST INFER THE LEGISLATIVE INTENTS FROM ALL THESE AMENDMENTS
TIME AFTER TIME TO EXPANDS ELIGIBILITY. AND SO I THINK IF WE WERE TO
ASK THE LEGISLATURE WOULD SAY, OF COURSE, WE DIDN'T MEAN TO EXCLUDE PARDONED
PEOPLE UNDER 52-2. I THINK THEIR CLEAR INTENT IS TO EXPAND ELIGIBILITY. I
THINK IT RAISES REAL SEPARATION OF POWERS ARGUMENTS IF THEY TRY TO SAY A
CONVICTION PARDONED OR NOT, BUT WE HAVE NO REASON TO THINK THEY MEANT CONVICTION
PARDON DZ OR NOT. SO I THINK, YOU KNOW, TAKE THE LOIF
LEGISLATIVE HISTORY OFFICER THE DECADES EXPAND OPPORTUNITIES AND AGAIN ON MS.
HRADIL'S READING, ALL WE WOULD BE TALKING ABOUT IS FROM JUSTICE LAVECCHIA'S
DISSENT IN J.S. GET THE THRESHOLD QUESTION, ARE THEY ELIGIBLE FOR CONSIDERATION
UNDER 52-2. AND THEN ALL THE REASONS THAT WE DISCUSSED UNDER 52-14 CAN BE RACED
BY THE PROSECUTOR OR OTHER OBJECTOR. CHIEF JUSTICE RABNER:
THANK YOU. MS. CAMPBELL. ERIN M. CAMPBELL: THANK YOU, MR.
CHIEF JUSTICE, MAY IT PLEASE THE COURT, THE APPELLATE DIVISION KREKS
THE VIEW GUBERNATORIAL POUR DON DID NOT REMIGHT BAR TO EXPUNGE THE AND THE APPELLATE
DIVISION PROPERLY DEFINED CARVE OUT JUDICIAL EX SENGS TO THE STATUTE
THAT POUR DON POWER. PETITIONER HAS EN CORRECTLY ARGUED HERE THAT A PARDON REMOVE
ARE THE STATUTORY BAR TO EXPUNGEMENT AND THAT IS BECAUSE AS WE HAVE
DISCUSSED A PARDON REMOVER THE CONSEQUENCES OF THE CONVICTION BUT NOT THE HIS
TORICAL REPORT OF IT. NEW JERSEY MARCH DON LAW IS RIEF WITH EXAMPLES OF WHAT
IS WHAT IS NOT AND THE PARDON STARTING WITH COOK IN 1857 A PARDON IMPLIES
GUILT, THERE'S NO NEED NOR FORGIVENESS IF THAT IS NO GUILT. IN S S, THE FIREARMS
RIGHTS CASE, THE COURT SAID A PAR DAN ELIMINATE THE KWONS CONES OF THE
COULDN'T KREKS INVESTIGATION BUT NOT FACT OF IT. NF TAN SI MORE THE COURT FOUND
A PRIOR COULDN'T VIC CAN STILL BE USED T IMPEACH THE FACT IT WAS PARDONED
BECAUSE THE PRIOR GUILT BEARS ON THE PETITION, THE WITNESS' CREDIBILITY,
REGARDLESS OF ANY REMISSION OF PUNISHMENT. AND IN STORCELLA,
BREZIZECKI AND HOZER, OUR COURTS HAVE FOUND YOU CAN STILL USE THE FACTS FTD
UNDERLYING OFFENSES AS A BAR, BECAUSE THE PARDON WIPES OUT THE CONSEQUENCES BUTSD
NOT THE MORAL STAIN THERE OF. AND IN FACT THE BEZ COURT SAID A PARDONED
CONVICTION SHOULD ORRED NAERLY NOT EFFECT A THE QUALIFICATION NLTS' EXPLICITLY
PROVIDED BY LAW AND THAT'S WHAT WE HAVE HERE. A STATUTORY BAR EXPLICIT
THE PROVIDED BY LAW DISQUALIFYING SOMEONE WITH MORE THAN 1 CONVICTION FOR
APPLYING FOR A EXPUNGEMENT. THE APPELLATE DIVISION PROPERLY DECLINED
TO EX STEN IS THE PARTING POWER TO EXPUNGEMENT, THE PARTING POWER DOES
NOT HAVE SAFEGUARDS AND CHEKS AND BALANCES. EXPUNGE THE PARDON ARE 2 SEPARATE
REMEDY SERVE 2 DIFFERENT PURPOSES. AS YOUR HONOR'S HAVE ASHD NOTE A
PARDON CAN BE FOR ANY NUMBER OF CRIMES WITH ANY NUMBER OF VIMS ANY LEVEL OF SKEFR
ARE THE, I'VE BEEN TLOEG AROUND HYPOTHETICALS ABOUT PARDON MURDERS,
PARDONS FOR AGGRAVATED SEXUAL ASSAULT, IT'S NOT JUST HYPOTHETICAL. GOVERNOR BARBER
OF MISS SOOP PEE PARDONED HAD 14 MURDERS BETWEEN 2008 AND 2012, HERE WHILE
WOENL 2 INTRAT COMMITTED 2 YOERS AP PAR SAYS SUBBED FO T STAFF TOWER BAR AND
ANOTHER INDIVIDUAL PARDON AND OTS SAME BAY TODAY'S PETITION FR AS 8
SEPARATE COULDN'T VICS, IN CONTRAST EXPUNGE IS THE MUCH MORE FORM LAY I CAN YSHG
AETS MUCH MORE UNION FOR THAT AND THE FM NATURE THE PERSON JEN VL DOES NOT COME
INTO PLAY. ATS ONLY RABL FOR CERTAIN CRIMES AND CERTAIN NUMBERS OF
CONVICTIONS. IF PETITIONER'S POSITION IS A DO THATTED THARTS NOLG AREA PER SE
BAR ON THE PARDONED CRIMES LIKE SEXUAL ASSAULT OR MURDER. PETITIONER'S
BURDEN WOULD ALSO IFT SHIFT THE BAR FROM SOMEWHAT CAT GORELY BARRED FROM EXPUNGE
THE PER SE ELIGIBLE. THERE ARE LIMITED NUFB OBJECT OBJECTION BS THAT
THE STATE CAN RAISE. AND THE DI SENT IN J.S. FOCUSED ON ADDITIONAL SAFEGUARDS,
SUCH AS BARGAINS EX PUFRMING SERIOUS OFFENSE, IF PETITIONER'S POSITION IS
A DO THATTED THOSE SAFE GASHD BUSINESS APPEAR. IN J N G THE COURT ADDRESSED
THE SECTION 14 EXCEPTION, THE PUBLIC INTEREST EXCEPTION THAT THE NEED FOR
RECORDS OUTWEIGHS THE RIGHT TO EX PUFRMG MENT. AND THE COURT THERE SAID EVEN
ANUS OFFENSES DON'T OVERCOME THE PRESUMPTION OF EXPUNGE: THAT CASE WAS D
V ASSAULT MUCH THE ONLY EXCEPTION RIGHT NOW IS THE ONE THFT L.B. WOULD BE
SUBJECT TO, DISTRIBUTION OF OH FELONIES. WHERE THE COURT CAN EXPUNGE IF IT'S
WITHIN THE PUBLIC TREVENT I WOULD SUBMIT THAT IS WHY THE LEGISLATURE
DID NOT ADDRESS L.B. BECAUSE SHORTLY AFTER L.B. SHE BECAME ELIGIBLE FOR
EXPUNGEMENT UNDER THAT EXCEPTION. OUR FORMER GOVERNOR'S HAVE ARGUED THAT
THE PART IS UNCONDITION NUNL BUT THE PARDON SAY THE SUBJECT TO REVOCATION AT ANY TIME
AT THE DISCRETION OF THE GOVERNOR. SHOULD WE GRANT T L P O, UNSEALING
THE RECORD, UNDER 52-26 THE STATE ONLY HAS 5 YEARS TO MOF FOR BECAUSE THE STATUTORY
DISQUALIFICATION. DIFFERENCE IS CLEAR, THROUGH EXECUTIVE GAYS A PARDON
RESTORES RIGHTS. HOWEVER, AN EXPUNGEMENT IS THE JUDICIAL EDITING OF
HISTORY. A PARDON RESTORES RIGHTS HELD PRIOR TO SON VIKZ BUT THERE
IS NO RIGHT TO EXPUNGE; EXPUNGEMENT OF THIS TYPE DOESN'T EVEN EXIST ABSENT THAT
CONVICTION S WHILE PARDON IS DEFINED BY THE CONSTITUTION, IT'S FOURS ARE
DEFINED BY STATUTE 2 A:DONE-SKIEVEN PERSON MAY MAKE APPLICATION FOR THE RESTORATION
OF THE RIGHT OF SUFFER RIP OR SUCH OTHER RIGHTS OR PRIVILEGES. THEREFORE THE
LOICH CHIR HAS LIMITED THAT THE EFBLTH OF THAT PARDON AND PETITIONER
CAN DMOT BE RESTORED TO THAT T.O. POSSESSED, THE STATE WOULD SUBMIT THAT L.B.
WAS WRONGLY SDOIDED. IT DOESN'T ADDRESS THE CONSTITUTIONAL AUTHORITY
TO GRANT PAR DONS OF WET THAT SUPERSEDES THE LEGISLATURE AUTHORITY TO THE EFFECT
RAF STATUTORY RECOMMEND IT DOESN'T EVEN 2 A-167-FIEFSHGS AND COULDN'T
FLATS THE HIS STORE RUL RECORD OF CONSTITUTIONS WITH CONSEQUENCES STEMMING
THERE FROM. THE DENIEFL A, EXPUNGEMENT IS NOT A PURJTS AETS NOT A DENIAL
AVENUE RIGHT AND C C H A JUDICIALLY MAIN TAPED RECORD IS NOT A DISABILITY.
FURTHERMORE IN, 2 A-167-3.1 THE GOVERNOR IS ROIRD TO PRO VOID
LEGISLATURE WITH THE DETALTS VT PARDON. SUCH AS THE STATUTES WHICH PETITIONER
WAS CONVICTED AS WELL ATS THE DATES OF COULDN'T VIC. THEREFORE SOME
MOUR TO REQUIRE RESTENGS OF RECORDS UNDER THE RIGHT CIRCUMSTANCES LIES WITH THE
LEGISLATURE. THE STATE WOULD ASK THIS COURT TO AFFIRM THE JUDGMENT
OF THE APPELLATE DIVISION. IF YOUR HONOR HAVE ANY QUESTION I WILL BE HAPPY TO
TAKE THEM. CHIEF JUSTICE RABNER: YOUR ARGUE SMENT QUITE
BROAD AS RELATES TO THE CONSTITUTION. AND WHETHER THERE'S A CONSTITUTIONAL I
MPEDIMENT HERE SO I LIKE TO YOU IMAGINE A SITUATION WHERE THE LOIP CHER MODIFIED
EXPUNGEMENT STATUTE TO ANY IS R SAY PAR DONS WILL HAVE STOOUT ABSOLUTELY
NO EFFECT ON OUR JUDGMENT. THE EXPUNGEMENT STATUTE (PRN THE LEGAL DISABILITY
THAT FLOWS FROM THE CONVICTION WILL REMAIN IN EFFECT AND POSE BAR TO
EXPUNGEMENT NOTWITHSTANDING WHAT THE GORE NOR HAS DONE. WOULD THAT GO TOO FAR?
ERIN M. CAMPBELL: IT WOULD NOT AND I BELIEVE IT GOES BACK
TO THE LANGUAGE IN BREZIZECKI THAT A STAPT TOWER DISQUALIFICATION CAN STILL
OVERCOMES THE FACT OF THE BAR APARDON. AL AM I'M HAVING DIFFICULTY
UNDERSTANDING THAT ARGUMENT. IF THE CONSTITUTION PROVIDES THE GOVERNOR WITH PARDON
POWER AND THE EFFECTIVE THE PARDON POWER IS TO REMOVE CIVIL DISABILITIES
THAT ATTACH TO THE COULDN'T VIC THEN IT WOULD SEEN TO MEEM THE LEGISLATURE CANNOT
DO ANYTHING THAT WOULD IN ANY WAY SER CAN YOU TELL ME DESCRIBE THAT
POWER. AM I WRONG? ERIN M. CAMPBELL: YOUR HONOR'S, IT'S THE
STATE'S POSITION WHILE THE PARDON IS INCLUDED IN THE CONSTITUTION LTS SCOPE OF THE
PARDON IS LOICH CLEE DEFINED. JUSTICE ALBIN: WOULD IT MEAN
NOTHING TO ISSUE A PARDON BUT THE LEGISLATURE CAN SAY IT WILL HAVE NO
EFFECT WOULD SEEM TO ALLOW LEGISLATION TO COMPLETELY NEGATE THE CONSTITUTIONAL
PROVISION. THAT DOESN'T SEEM RIGHT. ERIN M. CAMPBELL: YOUR
HONOR, THEN I THINK WE GO BACK TO THE CASE LAW THAT DISCUSSES HOW A PARDON
ELIMINATES THE CONSEQUENCES THAT FLOW FROM A CONVICTION BUT NOT THE HISTORICAL
FACT THERE OF AND THAT'S BA WE'RE TALKING ABOUT HERE, WE'RE TALKING
ABOUT THE HIS STORE RUL FACT OF CONVICTION. CHIEF JUSTICE RABNER:
DO YOU AGREE WITH THE PRINCIPLE THAT'S IN STORCELLA AND OTHER CASE LAW THAT
THE LEGAL DISABILITY IS REMOVED? ERIN M. CAMPBELL: YOUR HONOR,
I WOULD ARGUE THAT THE LEGAL DISABILITY STEMMING FROM THE CONVICTION AGS
IT RELATES TO STORCELLA S BREZIZECKI AND HOZER THEY'RE STATUTELY DEFINED IN 168-3
AND 167-5 THE RIGHTS THAT ARE BEING RESTORED EXPLICITLY COULDN'T TONE
STATUTE BY BEING RESTORED PIT PARDON, HERE AGAIN WE'RE TALKING ABOUT A HISTORICAL
FACT OF CONVICTION. AND EEJ WE GET INTO A REALLY CIRCULAR ARGUMENT WHERE
WORRY TALKING ABOUT WE'VE GOT THIS FACT OF CONVICTION THAT'S PREVENTING HIM
FROM GETH AN EXPUNGEMENT THAT WILL REMOVE THE FACT OF CONVICTION.
JUSTICE PIERRE-LOUIS WOULDN'T YOU THINK IT'S MS PREVENTING HIM FROM BEING CONSIDERED
FOR EXPUNGE; THAT'S WHAT PETITIONER IS ARGUING THAT THE FACT OF THE PARDON
GETS HIS FOOT IN THE DOOR SO THAT HIS EXPUNGEMENT PETITION CAN BE CONSIDERED
ON THE MERITS AND I KNOW, I NOTE I THINK YOU MENTIONED EARLIER DURING
YOUR PRELIMINARY STATEMENT THAT NONE, YOU KNOW, THIS IS A NONE OF THE STAF GUARDS
IN IN PLACE. I MEAN HOW IS THAT THE CASE, KIND OF GOING TO JUSTICE
SOLOMON'S POENTS GOING EARLIER THERE'S GOING TO BE A JUDGE SITTING THERE TAKING
ALL THESE FACTORS INTO CONSIDERATION, TAKING 52 DRASH 14-14 SO HOW IS IT ALL
THESE SAFEGUARDS ARE GONE IF THESE INDIVIDUALS ARE ALLOW TO JUST GET
THEIR FOOT IN THE DOOR AND HAVE THEIR PETITION ARGUED ON THE MERITS?
ERIN M. CAMPBELL: WELL, WUNLS HE GETS HIS FOOT IN THE DOOR THE BURDEN SHIFTS,
HE'S GOES FROM BEING PER SAD BARRED FROM EX UFRJ PT PRUM TIFRLY HE WILL
11 NL A, IT IS WOULD SHIFT TO THE STATE UNDER CHAPTER 14 THAT'S NEED FOR THE
RECORDS OUTWEIGHS HIS INTEREST IN AN EXPUNGEMENT AND I'VE I HAVE BEEN UNABLE
TO FIND A CASE WHERE THE STATE HAS SUCCESSFULLY ARGUED TO KEEP THOSE
RECORDS IN PLACE. IT'S A VERY HIGH BAR, A VERY BIG SWINGING BURDEN.
JUSTICE SOLOMON: WE'RE ABOUT TO FOIND OUT DEPENDING 0 WHAT THE COURT SAYS THE
FIRST CASE MAY COME TO US, NO, I'M KIDDING. JUSTICE
PIERRE-LOUIS THERE ARE STILL SAGE BARDZ BECAUSE THE STATE CAN MAKE THOSE ARGU
MENTS ANY OBJECTORS CAN MAKE THE ARMGS UNDER 42-14. ERIN M.
CAMPBELL: IT'S VERY LIMITED, YOU WERE, IT'S LIMITED TO THE NEED FOR RETENTION
OF RECORDS, IT DOESN'T REALLY GO TO THE DEFENDANT'S CHARACTER OR THE
PETITIONER'S CAR RAEK TER IT SIMPLY GOES TO THE RETENTION OF RECORDS. AL ALONG
I THINK YOUR POSITION IS PT THE RETENTION OF RECORDS IS NOT PER SE A
CIVIL DISABILITY, IT'S MREERLY THE MAINTENANCE OF RECORDS.
ERIN M. CAMPBELL: THAT'S CORRECT. JUSTICE ALBIN: THE DISABILITY IS
DENYING THE PERSON TO VOTE, EMPLOYMENT, SO ON AND SO FORTH, THOSE ARE THE
GABLT ADISABILITIES, NOT THE RECORD ITSELF. IS THAT YOUR POSITION?
ERIN M. CAMPBELL: THAT IS MY POSITION, YOUR HONOR. WHAT REMAINS AFTER MR.
O HAS BEEN PARDONED IS THE HISTORICAL FACT OF CONVICTION. CHIEF
JUSTICE RABNER: I TRYING TO FIGURE OUT WHAT THE PARDON ACCOMPLISHES UNDER YOUR
DEFINITION. AND MAYBE A BETTER WAY TO PHRASE SIT HOW IS A, HOW IS MR.,
HOW IS T.O. DIFFERENT FROM SOMEONE SHOE ACQUITTED OR ADMITTED TO PCHLTS T I?
THE AFTER A PARDON? ERIN M. CAMPBELL: WELL, YOUR HONOR, I'M
SORRY, YOUR HONOR, IF HE'S BEEN ACQUITTED AFTER A PARDON. CHIEF
JUSTICE RABNER: NO, HE'S BEEN PARDONED, HOW IS HE DIFFERENT THAN ANOTHER DEFENDANT
WHO IS EITHER ACQUITTED OR ADMITTED INTO PTI? ERIN M. CAMPBELL:
WELL, YOUR HONOR, YOU DON'T NEED TO ADMIT GUILT TO PROCEED WITH EXPUNGEMENT
UNDER 52-6 WHICH IS WHERE A PETITIONER HAS BEEN AEKS QUITTED OR HAD CHARGES
DISMISSED WOULD APPLY, THOSE ARE FAST-TRACK EXPUNGE MANIES THOSE ARE PRT TEE
MUCH GRANTED, A PERSON DOES NOT HAVE TO ADMIT GUILT TO BE ADMIT NOOD
PTI 2 C 52-14 F. AND A PERSON WHO HAS WUK SUCCESS FD MIGHTED APPLY FOR A EXPUNGEMENT
AFTER 6 MONTHS. WHERE AS THE PARDON POWER RESTORES HIS RIGHT TO VOTE
FIT HAS ALREADY NOT BEEN RESWORD, RESTORED HOLD OFFICE RGS OWN A FIREARM. MANY
OF SAME RIGHTS THAT WOULD HAVE BEEN GLANED HAD HE BEEN AVAILABLE FOR
EXPUNGEMENT. CHIEF JUSTICE RABNER: SO WHAT DOES THE PARDON
ACCOMPLISH? FOR T.O. WITH RESPECT TO EXPUNGEMENT? ABSOLUTELY NOTHING?
ERIN M. CAMPBELL: IT COCK MRISHS NOTHING, YOUR HONOR, BOUGHT STATUTORY
BA IN PLACE AND T.O. IS NOT WITHIN THE CLASS OF PETITIONERS BY THE LEGISLATURE
TO BE AVAILABLE FOR EXPUNGEMENT. AL ALONG AND YOUR POSITION IS IF THE
LEGISLATURE IS INTENDING TO EXPAND THE CONSTITUENT SEE OF PEOPLE WHO ARE ENTITLED
TO EXPUNGEMENT IT CAN EASILY JUST PUT IN PAR DONS IN THE STATUTE?
ERIN M. CAMPBELL: THAT'S CORRECT, YOUR HONOR. WHEN THIS
COURT ADDRESSED J.S. AND G.P.B. P COURT SAID WITH A SIM PUM ADJUSTMENT OF LANGUAGE
THE LEGISLATURE COULD HAVE EXPANDED THE ELIGIBLE CLASS AND IT CHOSE
NOT TO. AS RECENTLY AS 2018 OUR LEGISLATURE LOOKED AT EXPANDING THE ELIGIBLE
POOL OF PETITIONERS TO SOMEONE WITH MORE THAN ONE INDICTABLE COULDN'T VIC,
THAT BILL ONLY HAD 1 SPONSORED AND DIED IN COMMITTEE. 52-2 HAS BEEN AMENDED AT
LEAST 9 TIMES SINLS IT CAME IN A EXISTENCE AND NO SOONER THAN 6 TIEBLGS SINCE
LCHL B. THIS BAR STILL STANDS IT'S CLEAR THE LEGISLATURE DOES NOT WANT
TO EX SPAN T POOL OF POTENTIAL PETITIONERS BEYOND ONE INDICTABLE.
CHIEF JUSTICE RABNER: OTHER QUESTIONS? ANYTHING YOU WOULD LIKE TO ADD
TO YOUR PREFRNT TAGS. CALM KAMG NO. CHIEF JUSTICE RABNER:
MS. RAID DOUPTD REBUTTAL. JENNIFER A. HRADIL: HAND FULL
OF VERY QUICK POINTS IF I MIGHT AND START WRI MS. CALM BULL CONCLUDES.
IT IS NOT I THINK ACCURATE TO SAY THAT AT THE LEGISLATURE HAS NOT EXPANDED BEYOND
ONE INDICTABLE WITH THE NEW PROVISIONS THAT ARE NOT YET EFFECTIVE BUT
CURRENTLY IN PLACE, THE CLEAN SLATE PROVISIONS WOULD PERMIT THAT. SO THE
LEGISLATURE HAS NOT FOREDLOEFD POSSIBILITY IN ALL INSTANCES.
WITH RESPECT TO THE LEGISLATIVE SILENCE WOI I WOULD TAKE JUST A SLIGHTLY DIFFERENT
VIEW THAN MS. BORE DON, THOUGH, NOT INCONSISTENT, AND THAT IS THAT
WHETHER OR NOT THE LEGISLATURE IS PRESUMED TO KNOW AND UNDERSTAND L.B. TO HAVE
CONCLUSIVE EFFECT, THE LEGISLATURE IS PRESUMED TO UNDERSTAND THAT THE
LEGAL, WHAT THE LEGAL EFFECT OF OF A PARDON IS AND THAT THAT IS NOT A MATTER OF
LEGISLATION BUT A MATTER OF CONSTITUTIONAL AND COMMON LAW AND THAT ALL OF
ITS STATUTES ARE GOING TO BE INTERPRETED WITH THE LEGAL EFFECT OF A PARDON
IN MINE. SO THE FACT THAT THE LEGISLATURE HAS BEEN SILENT AS TO A PARDON, I
AGREE, WE NEED GIVE NO THOUGHT TO BECAUSE THE LEGISLATURE SHOULD BE
PRESUMED THAT THIS ENACTMENT WHICH HAS A TRIGGER POINT BASED ON CONVICTION WOULD BE
TERP PRAT PRETED IN INTERPRETED LIKE A PARDON IN ANY OTHER STATUTE.
WITH RESPECT TO STATUTES AND THE POSSIBILITY THAT THIS
LEGISLATURE WOULD ENACT A PROVISION PARTICULARLY ABOUT PAR DONS, THE LEGISLATURE
COULD ALWAYS I THINK THIS IS SORT OF A FLOOR AND CEILING ISSUE, THE
LEGISLATURE COULD ALWAYS AFTER FORWARD A PARDON MORE. THAN THE CONSTITUTION
AND THE COMMON LAW DOES SO THE LEGISLATURE WANTED TO SAY EVERY OFFENSE IS
AN AUTOMATIC EXPUNGEMENT, THAT'S NOT A SEPARATION ARE POWERS ISSUES BECAUSE
IT'S NOT UNDER LINING THE EXECUTIVE AUTHOR VPAR TON MORE OF A BENEFIT THAN IT
MIGHT HAVE UNDER CONSTITUTIONAL AND COMMON LAW. BUT WHAT THE
LEGISLATURE MAY NOT DO IS EITHER EXPRESSLY OR INDIRECTLY LIMIT AS MS. BORE TON
SAID, YOU KNOW, TEEP THE PARDONED OFFENDERS WITH THOSE THAT ARE CONVICTED
UNDER A STACH. STATUTE. PARAPHERNALIA PARAPHERNALIA AND FINALLY 1
PROCEDURE POINT TO THE CHIEF JUSTICE'S QUESTION ABOUT WHAT WOULD HAPPEN ON REMAND,
I AGREE IN GENERAL, THAT THE PROVISIONS OF 14 APPLY, IN THIS CASE, GIVEN
THE STATEMENTS OF THE PARTICULAR'S OFFICE, I THINK THAT THEY ARE BOUND ON REMAND
BY THEIR ADMISSIONS THAT THIS PETITIONER IS ACTUALLY PRECISELY THE TYPE
OF PERSON WHO IS DESERVING OF AN EXPUNGE MENT SO I DON'T THINK THAT THERE WOULD BE
ROOM ON THIS RECORD FOR THAT TYPE OF ANALYSIS. CHIEF JUSTICE
RABNER: THANK YOU, COUNSEL AND THANK YOU TO OU ALL COUNSEL FOR THEIR HELPFUL
ARGUMENTS, WE'LL TAKT MATTER UNDER ADVISEMENT.