Supreme court deals with issue of sealing records

Paul Pfeifer
By Paul Pfeifer

On July 13, 2009, Michelle D. Henneman – formerly Michelle Schussheim – filed a petition for a domestic-violence civil protection order (“CPO”) against her husband, Alan Schussheim. Michelle alleged that he had pushed her to the floor and threatened and shoved one of their daughters.

A magistrate granted an ex parte CPO the day Michelle filed the petition. “Ex parte” means the magistrate granted the CPO without notice to Alan, and he had no chance to contest it.

At a hearing eight days later, with Michelle and Alan both present, the magistrate modified the order but specified that it would remain in effect for one year. But shortly after that, Michelle filed a motion to dissolve the order. On August 14, 2009, the trial court dismissed the case and dissolved the CPO.

Then, in April 2011, Alan filed an application to expunge and seal the record of the CPO proceedings. His application eventually led to a case that came before us – the Ohio Supreme Court.

In filing his application, Alan asserted that he and Michelle were going through a divorce at the time she obtained the CPO, that he was never charged with domestic violence, and that the existence of the record violated his constitutional right to privacy and could have adverse effects on his employment in regard to wage increases, promotions, and transfers.

Significantly, Michelle filed an affidavit in support of Alan’s application. She declared that she didn’t object to sealing the record and that she believed expungement was in her – and their children’s – best interest.

After conducting a hearing, the magistrate recommended that the application be denied. The magistrate noted the absence of any statutory authority to expunge or seal records in civil cases or CPOs.

The magistrate also referenced an Ohio Supreme Court case from 1981 called Pepper Pike v. Doe. In that case, our court recognized that courts have inherent authority to expunge and seal criminal records in “unusual and exceptional circumstances” and noted that the basis for the authority is the constitutional right to privacy.

At the time the motion for expungement was filed in Pepper Pike, a person who had been convicted of an offense could seek expungement and sealing of criminal records in accordance with a state law. But, there was no law that authorized expungement and sealing of records of those charged with – but not convicted of – criminal offenses.

Therefore, the 1981 court considered whether a trial court had the power to grant the judicial remedy of ordering the expunging and sealing of records in the absence of legislative authorization to do so.

Based on the constitutional right to privacy, the 1981 court recognized that courts have the power to grant this remedy and established a balancing test requiring courts to weigh “the interest of the accused in his good name and right to be free from unwarranted punishment against the legitimate need of government to maintain records.”

The court in Pepper Pike further explained that “where there is no compelling state interest or reason to retain the judicial and police records, such as where they arise from a domestic quarrel and constitute vindictive use of our courts, the accused is entitled to this remedy.” That court cautioned that this was an “exceptional case” and the courts should not construe the decision “to be a carte blanche for every defendant acquitted of criminal charges.”

The magistrate in Alan Schussheim’s case decided that even if the Pepper Pike decision applied to Alan’s case, sealing the record would be inappropriate under the balancing test. In adopting the magistrate’s decision, the trial court agreed with the magistrate’s analysis and concluded that any adverse economic consequences were speculative and insufficient to justify sealing the records.

Alan turned to the court of appeals, but that court concluded that the trial court lacked statutory authority to expunge the CPO records and declined to apply the doctrine of judicial expungement established in Pepper Pike.

After that, Alan’s case came before us for a final review. Alan urged that a domestic-violence CPO is subject to a judicial expungement in accordance with Pepper Pike and also because such an order implicates the accused’s constitutional rights to due process and equal protection. He also argued the court should use the balancing test set forth in Pepper Pike to determine whether to grant this judicial remedy.

As mentioned in Pepper Pike, there was statutory authorization for courts to expunge and seal the records of those charged with, but not convicted of, criminal offenses. Similar to that situation, no statutory authorization exists for the court to expunge and seal records relating to a dissolved CPO in adult proceedings.

But, as in Pepper Pike, we concluded that a court had the inherent authority to order the expungement and sealing of records that relate to a dissolved CPO in “unusual and exceptional circumstances.” In deciding whether to grant this remedy, the court must determinee whether the “interest of the accused in his good name and right to be free from unwarranted punishment” outweighs the “legitimate need of government to maintain records.”

We concluded that Alan’s case appeared to involve “unusual and exceptional circumstances,” because the person who filed the petition for a CPO later moved to dissolve it and now claims that she believes expungement is in her best interest, and her children’s.

Plus, the fact that no related criminal charges were filed is also a factor to be weighed when the trial court considers Alan’s request to expunge and seal the records. The trial court can consider whether Alan’s interests outweigh the government’s need to maintain the records.

By a four-to-three vote, we concluded that courts have the inherent authority to expunge and seal records when a case involves unusual and exceptional circumstances and when the interests of the party seeking expungement outweigh the legitimate need of the government to maintain records.

Therefore, we reversed the court of appeal’s judgment and sent the case back to the trial court for further proceedings consistent with our opinion.

EDITORS NOTE: The case referred to is: Schussheim v. Schussheim, 137 Ohio St.3d 133, 2013-Ohio-4529. Case No. 2012-1235. Decided October 6, 2013. Majority opinion written by Justice Terrence O’Donnell.

Paul Pfeifer is an Ohio Supreme Court Justice.