Bound v. Biscotti

663 N.E.2d 1376, 76 Ohio Misc. 2d 6, 1995 Ohio Misc. LEXIS 87
CourtLakewood Municipal Court
DecidedDecember 29, 1995
DocketNo. 93 CVH 2459
StatusPublished
Cited by3 cases

This text of 663 N.E.2d 1376 (Bound v. Biscotti) is published on Counsel Stack Legal Research, covering Lakewood Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bound v. Biscotti, 663 N.E.2d 1376, 76 Ohio Misc. 2d 6, 1995 Ohio Misc. LEXIS 87 (Ohio Super. Ct. 1995).

Opinion

Patrick Carroll, Judge.

The issue in this case is the authority of a trial court to seal an arrest record of one who was never prosecuted. The material facts in this case are not in dispute.

In July 1971, the plaintiff, then age nineteen, was stopped along with others in a car by the Lakewood police. After the plaintiff and the other occupants got out of the car, a marijuana pipe was found in the car. All of the occupants of the vehicle were arrested and taken to jail.

The plaintiff spent one night in jail. After being questioned about the pipe by the police, the plaintiff was released from jail. No criminal charges were ever filed against the plaintiff in any court arising out of this incident.

Over twenty-four years later, a record of this incident and the arrest of the plaintiff is still being maintained and disseminated. The plaintiff commenced this action to seal this arrest record. The Lakewood Chief of Police, as a custodian of the plaintiff s arrest record, was named in this case as the defendant.

The Chief of Police, through the Lakewood Law Department, filed an answer in response to the plaintiff’s complaint. The defendant did not deny any of the factual allegations contained in the plaintiffs complaint. The defendant did assert affirmative defenses of lack of jurisdiction, including subject matter [8]*8jurisdiction. The defendant also asserted that the arrest record was a public record pursuant to R.C. 149.43 and, therefore, not subject to expungement or sealing.

An evidentiary hearing was held in this case. The plaintiff appeared at the hearing with counsel. The law department was present without the defendant. The record shows that notice of the hearing was given to both sides, but that the city decided that the law department, without the Chief of Police, would appear.

At that hearing the plaintiff testified to the facts of the arrest. The plaintiff also testified that he had received ño other criminal convictions other than traffic matters since the time of his arrest in this case. Nor were any other criminal charges pending.

The plaintiff testified that he is currently living outside the state of Ohio. According to his testimony, the plaintiff is employed as a software engineer. The plaintiff testified that he is a member of a gun club and recently applied for a small arms permit. The permit request was denied on the basis of past “criminal activity for drugs,” when a record check revealed the 1971 arrest.

The city submitted no evidence to either challenge the testimony of the plaintiff or support its affirmative defenses. While the city asserted that the affirmative defenses were legal, rather than factual in nature, the city declined the court’s request to submit a brief in support of its position.

I. Authority of the Court to Seal Records

The initial inquiry concerns the court’s authority to seal an arrest record in which a formal criminal charge was never filed in any court. The issue of a court’s authority to seal a criminal record was addressed by the court in State v. Stadler (1983), 14 Ohio App.3d 10, 14 OBR 13, 469 N.E.2d 911.

“In Ohio, the authority for the return, sealing or expungement of a criminal record exists in three ways: two are statutory (R.C. 109.60 and R.C. 2953.31 et seq.) and one is judicial (Pepper Pike v. Doe [1981], 66 Ohio St.2d 374 [20 O.O3d 334, 421 N.E.2d 1303]). It must be noted at the outset that the maintenance of criminal records is generally predicated upon a compelling state interest in such records.” Id. at 10, 14 OBR at 13, 469 N.E.2d at 912.

Neither of the statutory remedies indicated by the court in Stadler is applicable to the present case. R.C. 109.60 is limited to the return of fingerprints and identification of the defendant. This statute is also limited to persons found not guilty or to cases dismissed and, as such, is not applicable to the present case in which criminal charges were never filed. Moreover, the relief sought by the plaintiff in this case goes beyond that provided by R.C. 109.60.

[9]*9Similarly, R.C. 2958.52(A)(1) refers to sealing of a record for a person “who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment or information.” A review of this statute shows that it is limited to those cases in which a criminal complaint was filed with the court. In the present case, no complaint was ever filed with the court; therefore, the provisions of this statute are not applicable. The second part of this statute, R.C. 2953.52(A)(2), refers to a no-bill by the grand jury. Again, the prosecutor did not submit the case to the grand jury and, therefore, this second provision is also not applicable to this case.

Notwithstanding the lack of express statutory authority, the court in Stadler, supra, and others have recognized the inherent power of a court to order the sealing of an arrest record. State v. Weber (1984), 19 Ohio App.3d 214, 216, 19 OBR 359, 360-361, 484 N.E.2d 207, 209; see, also, State v. Netter (1989), 64 Ohio App.3d 322, 323, 581 N.E.2d 597, 597-598 (court’s authority to seal record may be either statutory or judicial).

The municipal court’s judicial authority to seal a criminal record, without express statutory authority, was initially recognized by the court in Pepper Pike v. Doe (1981), 66 Ohio St.2d 374, 20 O.O.3d 334, 421 N.E.2d 1303. In Pepper Pike, the municipal court denied the request to seal records on the grounds that the municipal court lacked statutory authority to do so. In reversing this decision, the Ohio Supreme Court adopted the law of other jurisdictions that recognized the municipal court’s power to grant this judicial remedy. 66 Ohio St.2d at 377, 20 O.O.3d at 336, 421 N.E.2d at 1306.

In Pepper Pike, criminal charges of assault were filed in the municipal court, but later dismissed. At the time Pepper Pike was decided by the Supreme Court, statutory expungement was limited only to persons who had been convicted of a criminal offense. After the Supreme Court’s decision, R.C. 2953.51 et seq. was enacted to provide for the sealing of a record in which the defendant was acquitted or charges were dismissed. As the court noted in State v. Winkelman (1981), 2 Ohio App.3d 465, 468, 2 OBR 561, 565, 442 N.E.2d 811, 815-816, the decision in Pepper Pike was directed towards the inequity that results from the availability of statutory expungement for convicted first offenders, but not for those who were not convicted. See, also, State ex rel. Lewis v. Lawrence Cty. (1994), 95 Ohio App.3d 565, 642 N.E.2d 1166, fn. 2.

A similar inequity would exist to deny the court’s ability to seal a record for one against whom a criminal complaint was raised, but never filed in court.

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Cite This Page — Counsel Stack

Bluebook (online)
663 N.E.2d 1376, 76 Ohio Misc. 2d 6, 1995 Ohio Misc. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bound-v-biscotti-ohmunictlakewoo-1995.