On January 11, 2021, a unanimous New Jersey Supreme court decided the Hudson County case of In re Petition for Expungement of the Criminal Record Belonging to T.O. The principal issue under N.J.S.A. 52-1 was whether T.O.’s gubernatorial pardon permitted the granting of his expungement petition notwithstanding the statutory bars to expunging his drug and weapons offenses.
Chief Justice Rabner wrote for the Court in relevant part: We turn next to T.O.’s petition and conclude that records of his charges and convictions from around 1994 and 1996 may be considered for expungement under state law. Under the version of N.J.S.A. 2C:52-2(a) in effect when the trial court denied T.O.’s petition, someone who had multiple criminal convictions — not listed in a single judgment of conviction or committed as part of a series of events in a short period of time — was ineligible for expungement.
The Governor’s pardon, however, removed the legal disabilities linked to T.O.’s convictions. More specifically, although the pardon did not erase the facts underlying the commission of the offenses, it eliminated disabilities triggered by the convictions themselves. Here, the statutory bar to expungement under section 2(a) arose solely from T.O.’s two convictions. In light of the pardon, that disqualification — or disability — no longer exists. T.O. is therefore eligible for expungement of both of his convictions.
That does not mean expungement is automatic, however. Under the statutory scheme, once T.O. has satisfied the law’s initial requirements, the burden shifts to the State to demonstrate by a preponderance of the evidence why his petition should not be granted.
To be clear, T.O. does not argue that expungement should automatically follow the grant of a pardon. He contends that he is entitled to expungement under the existing statutory framework. The Former Governors advance a broader position and submit that a pardon should automatically result in expungement. We respectfully do not agree.
Several former New Jersey Governors joined in this case as amici. That means that while they were not original parties to the case, they have standing as former governors represented by attorneys to advance their policy views. Their involvement demonstrates the trend of the executive branch attempting to extend their powers over the judiciary and legislature at the state and national levels.
