Appeal from the Circuit Court of Du Page County. Nos. 72--CR--504 72--CRA--2432 72--CRA--2693 72--CRA--2694 72--CRA--4103 72--CRA--4104 72--CRA--4105 72--CRA--4323 72--CRA--4495 73--376--G 99--MR--784 99--MR--785 99--MR--786 99--MR--787 99--MR--788 Honorable Ann Brackley Jorgensen, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
This is an appeal by respondent, Sam W. Nolen, Director of the Illinois State Police, from an order of the circuit court of Du Page County (1) denying his motion to vacate orders expunging the arrest records of petitioner, James Thon, (2) finding that the expungement orders are not void, and (3) granting petitioner's rule to show cause. We hold that petitioner is not eligible to have his records expunged. Accordingly, we reverse the judgment of the trial court and vacate the expungement orders.
I. FACTUAL AND PROCEDURAL BACKGROUND
Between 1972 and 1974, petitioner was arrested, charged, and convicted of multiple offenses in Du Page, Lake, and Cook Counties. On August 3, 1983, Governor James R. Thompson pardoned petitioner for these offenses. The certificate of pardon consisted of a preprinted form with spaces to be completed with information regarding the counties in which Thon had been convicted, the nature of the crimes in question, and the sentences for those crimes. The pardon stated that Thon was "acquitted and discharged of and from all further imprisonment and restored to all his rights and citizenship which may have been forfeited by his conviction." The pardon did not explicitly mention expungement.
On or about September 1, 1999, Thon filed various petitions to expunge in the circuit court of Du Page County. The petitions sought to order certain Du Page County law enforcement agencies to expunge from their records the arrests for the convictions for which he had been pardoned.
On October 5, 1999, the circuit court held a hearing on Thon's petitions. Although respondent did not appear at the hearing, an assistant State's Attorney was present. The assistant State's Attorney objected to granting the petitions. In granting petitioner's request for expungement, the circuit court cited two separate grounds. First, the court noted that the court in People v. Wells, 294 Ill. App. 3d 405 (1998), outlined the factors to consider in determining whether to grant a petition for expungement. These factors, the court opined, weighed in favor of granting Thon's petitions for expungement. Second, the court observed that the language of the pardon restored to petitioner all of his rights of citizenship. The court reasoned that one of these rights was the right to expungement. The court explained that, "but for the conviction, had [petitioner] simply been arrested without conviction, he would have been able to have these records expunged." The expungement orders issued the same day and were directed to local law enforcement authorities. The orders also directed the Illinois State Police, Bureau of Identification, to expunge its files of petitioner's arrests.
Upon receiving the expungement orders, the State Police conducted an internal audit of petitioner's arrest records. The audit revealed that the State Police had no record of some of the arrests. As for the remaining arrests, the State Police concluded that it was prohibited from expunging its records pursuant to section 5 of the Criminal Identification Act (Act) (20 ILCS 2630/5 (West 1998)).
On December 21, 1999, petitioner's attorney contacted the State Police regarding the status of its compliance with the expungement orders. James Redlich, chief legal counsel for the State Police, responded in a letter dated January 25, 2000. Redlich, in consultation with the Office of the Governor, opined that petitioner was not eligible for expungement. Redlich noted that petitioner was pardoned in 1983. At that time, Illinois law did not allow expungement of records based upon a pardon. See People v. Glisson, 69 Ill. 2d 502 (1978). Redlich acknowledged that, since Glisson, section 5(c) of the Act (20 ILCS 2630/5(c) (West 1998)) has been amended to recognize the Governor's authority to "specifically authorize expungement" after a pardon. However, petitioner's pardon did not specifically authorize expungement. In any case, Redlich opined that, even if Governor Thompson had wanted to authorize expungement, the statutory expungement authority was not available in 1983. Thus, Redlich concluded that the expungement orders were void pursuant to section 5(f) of the Act (20 ILCS 2630/5(f) (West 1998)).
On February 23, 2000, Thon filed a petition for a rule to show cause why respondent should not be held in contempt of court for his failure to comply with the expungement orders. On March 3, 2000, respondent filed a "Combined Response to Defendant's Petition for Rule to Show Cause and Motion to Vacate Expungement Orders." The response reiterated that, because section 5(c) of the Act had only recently been amended to recognize the Governor's authority to authorize expungement after a pardon, the power did not exist prior to enactment of the pertinent provision of the statute. Respondent cited to Glisson in support of his theory that the Governor's pardon power did not include the expungement of criminal records. Regarding the language of the pardon itself, respondent argued that the pardon did not "acquit" petitioner of the offenses themselves. Rather, it "acquitted" him of "further imprisonment."
Relying on People v. Holum, 166 Ill. App. 3d 658 (1988), petitioner replied that respondent's motion was untimely because it was filed more than 30 days after the expungement orders issued. Petitioner also argued that the effect of the pardon was to "acquit" him of his crimes. Consequently, petitioner concluded, he was eligible for expungement pursuant to section 5 of the Act.
On March 22, 2000, the parties argued the merits of their respective filings before the circuit court. The court concluded that respondent's motion to vacate was untimely because it was filed more than 30 days after the expungement orders issued. The court also rejected respondent's position that the expungement orders were void. Relying on Holum, the court noted that an order is void if the court lacks subject matter or personal jurisdiction or if the order is based on a lack of authority. Holum, 166 Ill. App. 3d at 661. However, the Holum court noted that the latter situation applies only in "clear-cut" circumstances. Holum, 166 Ill. App. 3d at 661. The court reasoned that, at the time the expungement orders issued, it had jurisdiction over the parties and the subject matter. Further, the court opined that this was not a clear-cut case. The court also reiterated that the pardon gave petitioner "all of his rights that he would have enjoyed had he never been convicted." The court opined that this language "could not [have been] more clear." Thus, the court found that petitioner was entitled to expungement of his records. Respondent now appeals.
Respondent asks us to determine whether petitioner is eligible to have his records expunged pursuant to section 5 of the Act where petitioner's convictions were subject to a gubernatorial pardon. The trial court determined that it lacked jurisdiction to address the propriety of the expungement orders because respondent's motion to vacate, which was filed more than 30 days after the expungement orders issued, was untimely, and the orders were not void.
Respondent does not dispute that his motion to vacate was filed more than 30 days after the expungement orders issued. However, he claims that the expungement orders may be attacked at any time because they are void. Respondent advances two reasons in support of his position. First, he notes that section 5(f) of the Act (20 ILCS 2630/5(f) (West 1998)) deems "void" any order that violates section 5. Respondent asserts that the expungement orders violated section 5 because expungement is not available to an individual, such as petitioner, who has been previously convicted of a criminal offense. See 20 ILCS 2630/5(a) (West 1998). Respondent also points out that section 5(c) of the Act (20 ILCS 2630/5(c) (West 1998)) allows expungement after a pardon only when the pardon specifically authorizes expungement. Petitioner's pardon did not ...