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In the Missouri Court of Appeals Western District T.V.N., ) ) Respondent, ) WD82341 ) v. ) OPINION FILED: ) November 12, 2019 MISSOURI STATE HIGHWAY ) PATROL CRIMINAL JUSTICE ) INFORMATION SERVICES, ) ) Appellant. )
Appeal from the Circuit Court of Boone County, Missouri The Honorable Joshua C. Devine, Judge
Before Division One: Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge
The Missouri State Highway Patrol Criminal Justice Information Services ("Central
Repository") appeals from a judgment expunging T.N.'s1 2016 arrest record pursuant to
section 610.122.2 The Central Repository argues that because T.N. had a 2011 speeding
1 We refer to this party by initials to protect his identity, as to do otherwise would defeat the purpose and intent of Missouri's arrest and conviction records expungement statutes, particularly where the party filing the appeal is the party who unsuccessfully opposed expungement. 2 All statutory references are to RSMo 2016 as supplemented through the date of T.N.'s petition to expunge his arrest record (July 23, 2018) unless otherwise noted. conviction, he was statutorily ineligible for expungement of the arrest record, even though
the speeding conviction had been expunged pursuant to section 610.140. Because
expungement of T.N.'s 2011 speeding conviction pursuant to section 610.140 restored him
to the status he occupied prior to the conviction as if such conviction had never taken place,
it was not legally erroneous to expunge T.N.'s 2016 arrest record. The trial court's
judgment is affirmed.
Factual and Procedural Background
On July 23, 2018, T.N. petitioned the trial court to expunge an arrest record
generated after T.N. was accused of leaving the scene of an accident on February 5, 2016.
The Central Repository opposed the petition.
At a hearing on the petition, T.N. testified that although he was arrested on
February 5, 2016, no charges were ever filed in the matter. T.N. acknowledged that he had
been convicted of a misdemeanor speeding charge in April 2011. The speeding conviction
was expunged, however, shortly before T.N. filed the petition to expunge his 2016 arrest
record.
The trial court entered a judgment and order on October 31, 2018, expunging the
2016 arrest record ("Judgment"). The Judgment found that T.N. had not been convicted of
any prior or subsequent misdemeanors or felonies. The Central Repository filed this timely
appeal.
Standard of Review
We review the trial court's Judgment to determine if it is supported by substantial
evidence, is against the weight of the evidence, or erroneously declares or applies the law.
2 Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court's construction and
application of statutory requirements is a question of law we review de novo. W.C.H. v.
State, 546 S.W.3d 612, 614 (Mo. App. E.D. 2018).
Justiciability of Appeal
Before addressing the merits of the Central Repository's appeal, we are required to
address T.N.'s motion to dismiss, which argues that the Central Repository is not aggrieved
by the Judgment and has no right of appeal under section 512.020. Section 512.020 affords
the right of appeal to "[a]ny party to a suit aggrieved by any judgment of any trial court in
any civil cause . . . ." "A party who has not been aggrieved by a judgment has no right or
standing to appeal." Jackson Cty. Bd. of Election Comm'rs v. Paluka, 13 S.W.3d 684, 687
(Mo. App. W.D. 2000) (citation omitted).
"Courts have a duty to determine if a party has standing prior to addressing the
substantive issues of the case." CACH, LLC v. Askew, 358 S.W.3d 58, 61 (Mo. banc 2012).
"'Because standing is a question of law, review of the issue on appeal is de novo." Schweich
v. Nixon, 408 S.W.3d 769, 773 (Mo. banc 2013) (quoting CACH, 358 S.W.3d at 61).
"'Standing requires that a party have a personal stake arising from a threatened or actual
injury.'" Id. at 774 (quoting State ex rel. Williams v. Mauer, 722 S.W.2d 296, 298 (Mo.
banc 1986)); see also CACH, 358 S.W.3d at 61 ("A party has standing to sue when it has
a 'justiciable interest in the subject matter of the action.'") (quoting Garrison v. Schmicke,
193 S.W.2d 614, 615 (Mo. 1946)). "A party establishes standing, therefore, by showing
that it has 'some legally protectable interest in the litigation so as to be directly and
adversely affected by its outcome.'" Schweich, 408 S.W.3d at 775 (quoting Mo. State Med.
3 Ass'n v. State, 256 S.W.3d 85, 87 (Mo. banc 2008)); see also Mo. Soybean Ass'n v. Mo.
Clean Water Comm'n, 102 S.W.3d 10, 25 (Mo. banc 2003) (holding that to establish
standing, a party must demonstrate "'a pecuniary or personal interest directly at issue and
subject to immediate or prospective consequential relief'" (quoting Northgate Apartments,
L.P. v. City of North Kansas City, 45 S.W.3d 475, 479 (Mo. App. W.D. 2001))). "[A]s
used in section 512.020, 'aggrieved' means 'suffering from an infringement or denial of
legal rights." Jackson Cty. Bd. of Election Comm'rs, 13 S.W.3d at 687-88 (quoting Gov't
Emps. Ins. Co. (GEICO) v. Clenny, 752 S.W.2d 66, 68 (Mo. App. S.D. 1988) (other citation
omitted)).
The Central Repository is a "division within the Missouri state highway patrol
responsible for compiling and disseminating complete and accurate criminal history
records." Section 43.500(2). "Criminal history record information" is defined to include
"information collected by criminal justice agencies on individuals consisting of identifiable
descriptions and notations of arrests, detentions, indictments, informations, or other formal
criminal charges, and any disposition arising therefrom, sentencing, correctional
supervision, and release." Section 43.500(5). The stated purpose for the Central
Repository is described in section 43.503.1:
For the purpose of maintaining complete and accurate criminal history record information, all police officers of this state, the clerk of each court, the department of corrections, the sheriff of each county, the chief law enforcement official of a city not within a county and the prosecuting attorney of each county or the circuit attorney of a city not within a county shall submit certain criminal arrest, charge, and disposition information to the central repository for filing without undue delay in the form and manner required by sections 43.500 to 43.543.
4 Other provisions in sections 43.500 to 43.543 address the Central Repository's obligation
to disseminate collected and maintained criminal history record information to authorized
persons. See, e.g., sections 43.507, 43.531, and 43.532. The Central Repository thus has
an interest in ensuring that the criminal history record information it maintains is complete
and accurate.
T.N. does not contest that the Central Repository has an interest in ensuring that the
criminal history record information it maintains is complete and accurate. However, T.N.
argues that because expungement of an arrest record requires a court to make a
determination that an arrest was based on false information, the Central Repository is
neither aggrieved nor prejudiced by a judgment that expunges the arrest record. Section
610.122.1(1). T.N. argues that the Central Repository has no personal or property interest
in maintaining false records.
T.N.'s argument ignores that demonstrating an arrest was based on false information
is but one of several eligibility requirements a petitioner must establish to secure a
judgment expunging an arrest record. Section 610.122. Here, the Central Repository is
challenging whether T.N. satisfied the eligibility requirement of no prior or subsequent
misdemeanor or felony convictions.
Moreover, T.N.'s argument ignores that the Central Repository is a required party
in an action seeking to expunge an arrest record. Section 610.123.2 requires a petition
seeking to expunge an arrest record to "name as defendants all . . . central state depositories
of criminal records or others who the petitioner has reason to believe may possess the
records subject to expungement." Section 610.123.2 thus reflects the General Assembly's
5 recognition that the Central Repository is aggrieved by a judgment expunging an arrest.
This conclusion is consistent with section 610.124.2 which expressly provides that "[a]ny
petitioner, or agency protesting the expungement [of an arrest record], may appeal the
court's decision in the same manner as provided for other civil actions." See Parker v.
Swope, 157 S.W.3d 350, 353 (Mo. App. E.D. 2005) (noting that an order directing
expungement of arrest records violates the rights of entities ordered to expunge records,
including the Central Repository, authorizing an appeal).
We find that the Central Repository is aggrieved by a judgment expunging an arrest
record, and has standing to appeal pursuant to section 512.020. An order directing the
Central Repository to destroy arrest records implicates the Central Repository's statutory
responsibility to compile and disseminate complete and accurate criminal history records,
and thus violates the direct legal interests of the Central Repository which "'has an interest
in vindicating and upholding its official acts and procedures.'" Jackson Cty. Bd. of Election
Comm'rs, 13 S.W.3d at 688 (quoting Mo. Health Facilities Review Comm. v. Admin.
Hearing Comm'n, 700 S.W.2d 445, 448 (Mo. banc 1985)) (holding that the Missouri Ethics
Commission was an aggrieved party under section 512.020 with standing to appeal an order
or judgment implicating the laws it administers); see also State ex rel. Hawley v. Pilot
Travel Ctrs., LLC, 558 S.W.3d 22, 31-32 (Mo. banc 2018) (holding that statutes
enumerating the duties of the Board of Trustees of the Missouri Petroleum Storage Tank
Insurance Fund afford the Board standing to bring actions to protect the ability to carry out
the general administration of the Fund).
T.N.'s motion to dismiss this appeal is denied.
6 Analysis
The Central Repository's single point on appeal argues that the trial court committed
legal error when it expunged T.N.'s 2016 arrest record. The Central Repository claims that
because section 610.122 requires a petitioner to establish that he has no prior or subsequent
misdemeanor or felony convictions, T.N. was statutorily ineligible to expunge his 2016
arrest record even though his 2011 misdemeanor speeding conviction had been expunged.
Resolution of the Central Repository's point on appeal requires us to construe
section 610.122, which addresses the expungement of arrest records. "This Court's primary
rule of statutory interpretation is to give effect to legislative intent as reflected in the plain
language of the statute at issue." Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d
670, 672 (Mo. banc 2009). "When determining the legislative intent of a statute, no portion
of the statute is read in isolation, but rather the portions are read in context to harmonize
all of the statute's provisions." BASF Corp. v. Dir. of Revenue, 392 S.W.3d 438, 444 (Mo.
banc 2012) (per curiam). "In ascertaining legislative intent, [a] statute should be read in
pari materia with related sections, and the . . . statutes should be construed in context with
each other." Street v. Dir. of Revenue, 361 S.W.3d 355, 358 (Mo. banc 2012).
Among other things, section 610.122.2 provides:3
A record of arrest shall only be eligible for expungement under this section if:
(1) The subject of the arrest has no prior or subsequent misdemeanor or felony convictions . . . .
3 The Central Repository does not challenge T.N.'s satisfaction of all other statutory requirements for expunging his 2016 arrest record.
7 The Central Repository argues that the plain language of section 610.122.2(1) renders T.N.
ineligible to expunge his 2016 arrest record because he had a prior misdemeanor
conviction. T.N. asserts that the plain language of section 610.122.2(1) does not render
him ineligible because at the time he filed a petition seeking to expunge his 2016 arrest
record, he no longer had a prior conviction because the 2011 misdemeanor speeding
conviction had been expunged.
Section 610.122.2(1) uses the phrase "has no prior or subsequent . . . convictions"
to describe one eligibility requirement for expunging an arrest record. The word "has" is
the present tense, third person singular of the word "have." WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 1036 (2002). Section 610.122.2(1) thus refers to whether a
petitioner has a prior or subsequent conviction in the present tense--that is, at the time the
petition seeking expungement is filed.
When T.N. filed a petition to expunge his 2016 arrest record, his 2011 misdemeanor
speeding conviction had already been expunged pursuant to section 610.140.4 Section
610.140.8 describes the effect of expungement of a conviction:
The order [of expungement] shall not limit any of the petitioner's rights that were restricted as a collateral consequence of such person's criminal record, and such rights shall be restored upon issuance of the order of expungement. Except as otherwise provided under this section, the effect of such order shall be to restore such person to the status he or she occupied prior to such arrests, pleas, trials, or convictions as if such events had never taken place.
4 Though it is not clear from the record the date on which T.N.'s 2011 misdemeanor speeding conviction was expunged, the record strongly suggests this occurred shortly before T.N. filed the petition to expunge his arrest record on July 23, 2018. We assume, therefore, that the version of section 610.140 which controlled the expungement of T.N.'s misdemeanor conviction is the version that became effective on January 1, 2018. However, it is not imperative to our analysis to know which version of section 610.140 controlled the expungement of T.N.'s conviction. The subsections of section 610.140 that are relevant to our analysis in this Opinion did not materially change between the version of section 610.140 which took effect on August 28, 2012, and the version of section 610.140 which took effect on January 1, 2018, save a change in subsection numbering.
8 Section 610.140.8 expressly prohibits reliance on an expunged conviction to limit rights
previously restricted as a collateral consequence of the conviction. And section 610.140.8
expressly directs that previously restricted rights "shall be restored upon issuance of the
order of expungement." (Emphasis added.) "'Shall' means 'shall.' It unambiguously
indicates a command or mandate. To suggest any other meaning is to ignore the plain
language of the statute." Frye v. Levy, 440 S.W.3d 405, 408 (Mo. banc 2014).
Pursuant to section 610.122.2(1), a collateral consequence of T.N.'s 2011
misdemeanor speeding conviction was the restriction of T.N.'s ability to expunge his 2016
arrest record. Pursuant to section 610.140.8, expungement of T.N.'s 2011 misdemeanor
speeding conviction eliminated this collateral consequence, and restored T.N.'s right to
seek to expunge his 2016 arrest record as a matter of law. In other words, a combined
reading of section 610.140.8 and section 610.122.2(1) requires us to conclude that when
T.N. filed his petition to expunge his 2016 arrest record, he did not have a prior
misdemeanor or felony conviction.
The Central Repository disagrees and argues that expungement of the 2011
misdemeanor speeding conviction merely limited public access to T.N.'s conviction
records without eliminating the conviction itself. The Central Repository notes that section
610.140.8 is subject to express exceptions which permit an expunged conviction to be used
to a petitioner's detriment, demonstrating that a "conviction" remains a conviction after
expungement, though the record of conviction is not publicly available. The Central
9 Repository relies on these exceptions to argue that T.N. still "has" a conviction that renders
him ineligible to expunge his 2016 arrest record pursuant to section 610.122.2(1).
The Central Repository's argument disregards the plain language of section
610.140.8, which states that the effect of an expungement order is to "restore such person
to the status he or she occupied prior to such arrests, pleas, trials, or convictions as if such
events had never taken place." (Emphasis added.) "'When interpreting a statute, this Court
must give meaning to every word or phrase of the legislative enactment.'" State ex rel.
Jackson v. Dolan, 398 S.W.3d 472, 479 (Mo. banc 2013) (quoting State v. Moore, 303
S.W.3d 515, 520 (Mo. banc 2010)). "Courts never presume that our legislature acted
uselessly and should not construe a statute to render any provision meaningless."
Caplinger v. Rahman, 529 S.W.3d 326, 332 (Mo. App. S.D. 2017) (en banc). To give
effect to the words used in section 610.140.8, the question is not whether a conviction still
exists, in the technical sense, after it is expunged. Instead, the proper question is how a
conviction can be used once expunged. Section 610.140.8 resolves this question by
expressing in plain terms the legislature's intent to restore rights collaterally impacted or
limited as if an expunged conviction never occurred. See, e.g., State v. Merritt, 467 S.W.3d
808, 811, 815-16 (Mo. banc 2015) (holding that section 571.070.1(1), which criminalizes
the knowing possession of a firearm by a person who has been convicted of a felony, would
"not apply to felony convictions that have been pardoned or expunged").
It is true that the legislature's intent to restore rights as if an expunged conviction
never occurred is subject to limitation by the phrase "[e]xcept as otherwise provided under
this section." Section 610.140.8 (emphasis added). The phrase "except as otherwise
10 provided" underscores, however, that in the absence of an express statutory exception, an
expunged conviction is intended to be a legal nullity insofar as its collateral effect on the
rights of a petitioner.
The Central Repository points to express exceptions that appear in section 610.140,
including section 610.140.8 (which permits an expunged conviction to be considered as a
prior offense in determining the sentence to be imposed for any subsequent conviction),
and section 610.140.9 (which requires disclosure of an expunged conviction in connection
with licensure, certificate, or permit applications to practice in a profession, or with respect
to certain employment applications). These exceptions are of no relevance in this case,
however.
The Central Repository also points to the exception which appears in section
610.140.12:
A person may be granted more than one expungement under this section provided that during his or her lifetime, the total number of offenses, violations, or infractions for which orders of expungement are granted to the person shall not exceed the following limits:
(1) Not more than two misdemeanor offenses or ordinance violations that have an authorized term of imprisonment; and
(2) Not more than one felony offense.
A person may be granted expungement under this section for any number of infractions. Nothing in this section shall prevent the court from maintaining records to ensure that an individual has not exceeded the limitations of this subsection. Nothing in this section shall be construed to limit or impair in any way the subsequent use of any record expunged under this section of any arrests or findings of guilt by a law enforcement agency, criminal justice agency, prosecuting attorney, circuit attorney, or municipal prosecuting attorney, including its use as a prior offense, violation, or infraction.
11 (Emphasis added.) Focusing on the emphasized language, the Central Repository argues
that the trial court had an obligation to use T.N.'s expunged conviction record to establish
that he had a "prior offense" which disqualified him from expunging the 2016 arrest record
pursuant to section 610.122.2(1).
We disagree. The emphasized language in section 610.140.12 must be read in the
context of the subsection within which it appears. BASF Corp., 392 S.W.3d at 444 ("When
determining the legislative intent of a statute, no portion of the statute is read in isolation,
but rather the portions are read in context to harmonize all of the statute's provisions.").
Subsection 610.140.12 prevents a person from perpetually "refreshing" by limiting the total
number of expungements that can be secured. In this same vein, the subsection's permitted
use of expunged records by law enforcement or criminal justice agencies to establish a
prior offense, violation, or infraction appears intended to prevent a person from avoiding
consequences (such as the enhancement of charges or sentences, for example) should the
person commit subsequent offenses. But see Merritt, 467 S.W.3d at 815 (holding that an
expunged felony conviction could not be relied on to later charge a person with unlawful
possession of a firearm). The use of an expunged conviction by law enforcement or
criminal justice agencies for this purpose is distinguished, however, from a petitioner's
right to be relieved of the collateral consequences of an earlier conviction by having
previously limited rights restored. We conclude that a limit on one's right to take advantage
of the arrest expungement procedures described in section 610.122 is not within the
parameters of section 610.140.12.
12 Once T.N.'s 2011 misdemeanor speeding conviction was expunged, he no longer
had a prior conviction for purposes of section 610.122.2(1). The trial court did not commit
legal error by entering its Judgment expunging T.N.'s 2016 arrest record.
Point denied.
Conclusion
The trial court's Judgment is affirmed.
__________________________________ Cynthia L. Martin, Judge
All concur