BARKER v. STATE, 62 Ohio St.2d 35 (1980)

402 N.E.2d 550

No. 79-436Supreme Court of Ohio.
Decided April 2, 1980.

Criminal law — Expungement of record of conviction in another jurisdiction — Ohio records expunged.

The provisions of R.C. 2953.31 et seq., which refer to the expungement of a record of conviction occurring in “another jurisdiction,” require the expungement of only such records as are located within the territorial boundaries of this state.

APPEAL from the Court of Appeals for Portage County.

This cause arises from the dismissal of a complaint for expungement filed on June 19, 1978, by appellee, Albert Darrell Barker, in the Court of Common Pleas of Portage County.

In his complaint, appellee averred that he was convicted on January 20 and April 10, 1956, for armed robbery in two counties in West Virginia. The complaint indicated that the offenses for which he was convicted occurred at the same general location and time span. It stated further that on July 20, 1960, appellee was discharged from parole by the West Virginia authorities, whereafter he apparently began his residence in Ohio.[1]

Appellee’s expungement complaint, filed under the provisions of R.C. 2953.31 et seq., requested “***all official

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records pertaining to***[his] conviction***[be] expunged and sealed and all index references thereto be deleted.” On June 23, 1978, appellants herein, the state of Ohio and the Portage County prosecutor, filed a motion to dismiss appellee’s complaint, arguing, inter alia, that the Courts of Common Pleas in Ohio were without jurisdiction over the subject matter of the cause, in that such courts do not have “the power to expunge convictions in West Virginia.” At a hearing held on appellants’ motion, appellee contended that the pertinent statutory provisions empowered the Court of Common Pleas of Portage County to assume jurisdiction, as appellee was a resident of that county. Appellee argued further that such court possessed a “greater interest” in this cause than in any other, and also had “the right to seal the records as they relate to Ohio.” The trial court, upon determining that the statutory provisions of R.C. 2953.31 et seq. relating to convictions in another jurisdiction conferred no jurisdiction upon it to order officials in West Virginia to expunge appellee’s record of conviction, sustained appellants’ motion to dismiss.

Upon appeal, the judgment of the Court of Common Pleas was reversed. The majority in the Court of Appeals reasoned that the provisions of R.C. 2953.31 et seq. authorized the expungement of a record of conviction occurring in a jurisdiction other than in Ohio. Therefore, notwithstanding the inability of Ohio courts to order extraterritorial authorities to physically expunge such records of conviction located without this state, Ohio sentencing courts have jurisdiction to “expunge convictions from other states as they apply to their use in Ohio.”

This cause is before the court pursuant to the allowance of a motion to certify the record.

Messrs. Gray, Luria Belkin, Mr. Alvin L. Gray and Mr. Keith E. Belkin, for appellee.

Mr. William D. Lentz, assistant prosecuting attorney, for appellants.

HERBERT, J.

A threshold question presented by this cause is whether the provisions of R.C. 2953.31 et seq.,[2] which

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empower sentencing courts of this state to expunge the record of conviction of first offenders occurring in “another jurisdiction,” unconstitutionally deny judicial proceedings of other states full faith and credit within the meaning of the Constitution of the United States.

Section 1 of Article IV of the Constitution of the United States, in relevant part, states that “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other State.” Congress, pursuant to the enabling clause of Section 1 of Article IV,[3] by Act of May 26, 1790, c. 11 (1 Stat. 122, Section 687, Title 28, U.S. Code, revised by Section 1738, Title 28, U.S. Code [1948]), set forth the manner by which this constitutional mandate is to be implemented, providing that judgments “***shall have the same full faith and credit in every court within the United States***as they have by law or usage in the courts of such state***from which they are taken.” However, the United States Supreme Court has held that this constitutionally inspired

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command is not an all-embracing one, in that a rigid and inflexible implementation may fail to accommodate important and fundamental interests of sovereign states which are paramount to the unifying principle upon which the Full Faith and Credit Clause was predicated. See Huntington v. Attrill (1892), 146 U.S. 657; Alaska Packers Assn. v. Industrial Accident Comm. (1935), 294 U.S. 532; Milwaukee County v. M.E. White Co. (1935), 296 U.S. 268, 274; Williams v. North Carolina (1942), 317 U.S. 287 Magnolia Petroleum Co. v. Hunt (1943), 320 U.S. 430; May v Anderson (1953), 345 U.S. 528; Nevada v. Hall (1979), 440 U.S. 410.

Although relaxation of the strictness of full faith and credit has been rare, an early exception was made respecting sister state judgments which were penal in the “international sense,” such as those resulting from state criminal convictions applying the lex loci delictus. See The Antelope (1825), 23 U.S. 66 (10 Wheat.), 122, 123; Wisconsin v. Pelican Ins. Co. (1888), 127 U.S. 265; Huntington v. Attrill, supra; Converse v. Hamilton (1912), 224 U.S. 243, 260; Bradford Electric Co. v. Clapper (1932), 286 U.S. 145, 160; Nelson v. George (1970), 399 U.S. 224, 229.

In the vintage case of Wisconsin v. Pelican Ins. Co., supra, the court addressed as a corollary matter the breadth of the Full Faith and Credit Clause with respect to the enforcement of the penal judgments of one state by another. Quoting Chief Justice Marshall in The Antelope, supra, the Wisconsin court, at page 290, reasoned that it is an “incontrovertible maxim” that “***[t]he courts of no country execute the penal laws of another.” The court, in expounding upon this axiom in relation to the provisions of the Full Faith and Credit Clause, held at pages 290-291:

“The rule that the courts of no country execute the penal laws of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the State for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judgments for such penalties. If this were not so, all that would be necessary to give ubiquitous effect to a penal law would be to put the claim for a penalty into the shape of a judgment. Wharton’s Conflict of Laws, § 833; Westlake’s

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International Law (1st ed.), § 388; Piggott on Foreign Judgments, 209, 210.

“***`The proper place for punishment is where the crime is committed, and no society takes concern in any crime but what is hurtful to itself***because no court reckons itself bound to punish, or to concur in punishing, any delict committed extra territorium.’ 2 Kames on Equity (3d ed.) 326, 366; Story’s, Conflict of Laws, 600, 622.

“***

“The application of the rule to the courts of the several States and of the United States is not affected by the provisions of the Constitution and of the act of Congress, by which the judgments of the courts of any State are to have such faith and credit given to them in every court within the United States as they have by law or usage in the State in which they were rendered. Constitution, art. 4, sect. 1, Act of May 26, 1790, c. 11, 1 Stat. 122; Rev. Stat. § 905.”[4]

It is our conclusion that under the provisions of R.C. 2953.31 et seq., courts of this state may grant intrastate expungement for a judgment of conviction occurring in a sister

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state, as Section 1 of Article IV of the Constitution of the United States does not place an obligation upon state courts to accord full faith and credit to extra-territorial state criminal judgments.[5]

As a secondary challenge to appellee’s application for expungement, appellants contend in effect that the Full Faith and Credit Clause requires the lex loci delictus to be applied in order to determine whether appellee is entitled to the expungement of his criminal record, which in this cause is the law of West Virginia. Insofar as the statutes of West Virginia do not authorize this type of an expungement, appellants argue that the expungement in Ohio would unconstitutionally deprive the West Virginia expungement statutes of the full faith and credit in Ohio guaranteed by Section 1 of Article IV of the Constitution of the United States.

In construing the breadth of the Full Faith and Credit Clause, and a fortiori the derivative Act of Congress, the United States Supreme Court has indicated that a foreign state statute is a “public act” within the meaning of Section 1 of Article IV Bradford Electric Light Co. v. Clapper, supra (286 U.S. 145, 154-155).[6] Nonetheless, it has been emphasized that the degree to which a statute of a sister state must be accorded full faith and credit differs from the constitutional recognition required of out-of-state judgments submitted for enforcement in a foreign jurisdiction. Magnolia Petroleum Co. v. Hunt, supra
(320 U.S. 430); Williams v. North Carolina, supra (317 U.S. 287, 294-295). Since each state has both the constitutional authority to enact its own laws, and the corollary right to apply them with respect to persons or events within its borders in a manner consistent with the limits of due process,[7] the Full Faith and Credit Clause does not ordinarily

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compel the displacement of local law with the conflicting law of another state, notwithstanding the undeniable applicability of the conflicting law in the other jurisdiction with reference to the same persons or events. Magnolia Petroleum Co. v. Hunt, supra; Pacific Employers Ins. Co. v. Industrial Accident Comm.
(1939), 306 U.S. 493. Justice Stone, in Alaska Packers Assn. v Industrial Accident Comm., supra (294 U.S. 532), at pages 547-548, set forth the standard upon which resolution of these matters turns:

“* * * Prima facie every state is entitled to enforce in its own courts its own statutes, lawfully enacted. One who challenges that right, because of the force given to a conflicting statute of another state by the full faith and credit clause, assumes the burden of showing, upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum. * * *”

See, also, Pacific Employers Ins. Co., supra; Nevada v. Hall, supra (440 U.S. 410); cf., Schiltz v. Meyer (1972), 29 Ohio St.2d 169, 280 N.E.2d 653.

In our view, a similar conclusion is warranted in the instant cause. The General Assembly has declared with the enactment of R.C. 2953.31 et seq. that this state is to provide remedial relief to qualified offenders in order to facilitate the prompt transition of these individuals into meaningful and productive roles.[8] To require Ohio to subordinate its announced policy, however wise or unwise it may be, for that of the lex loci delictus, would be repugnant to this state’s interests with respect to its residents. No countervailing reasons have been presented which convince us that West Virginia’s interests are paramount herein.

Appellants’ final challenge to these statutory provisions stems from a literal reading of R.C. 2953.32(A). Appellants contend that upon a finding that appellee is entitled to the expungement of an offense occurring in West Virginia, the Court of Common Pleas would be required to order authorities in West Virginia to expunge the records of conviction in that

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state. Because Ohio is constitutionally unable to force West Virginia to expunge appellee’s records there, appellants contend that the commands of R.C. 2953.31 et seq., pertaining to the expungement of records in jurisdictions other than Ohio, are without constitutional support.

A review of the pertinent statutory provisions demonstrates that the expungement language scheme is indeed imprecise with regard to the manner in which the courts are to perform their statutory duty.[9] It is not, however, the function of this court to rewrite the enactment. Instead, it must be presumed that the General Assembly intended for these statutes to comport with the Constitution.[10] Furthermore, these remedial provisions are to be liberally construed to promote their purposes. R.C. 1.11;[11] see State v. Sinito (1975), 43 Ohio St.2d 98, 101, 330 N.E.2d 896. Accordingly, we conclude that the provisions of R.C. 2953.31 et seq., which refer to the expungement of a record of conviction, require only the expungement of those records located within the territorial boundaries of this state.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C.J., W. BROWN, DOWD, SWEENEY, LOCHER and HOLMES, JJ., concur.

DOWD, J., of the Fifth Appellate District, sitting for P. BROWN, J.

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