specially concurring:
I agree with the result that the majority reaches but have significant disagreement regarding the bounds of discretion that a trial court may exercise in deciding whether to expunge arrest records pursuant to section 5(a) of the Criminal Identification Act (Act) (20 ILCS 2630/5(a) (West 2002)). In my view, the broad discretion adopted by the majority from People v. Wells, 294 Ill. App. 3d 405 (1998), and Chesler v. People, 309 Ill. App. 3d 145 (1999), is not a proper construction of the legislative intent but, instead, is more nearly at odds with that intent. I would hold that under the Act, a trial court’s discretion to expunge arrest records must be based on all the pertinent factors but should be exercised only upon proof of actual or probable injury from the denial of expungement, thereby construing the Act in accordance with the more selective standard of the federal courts. In this case, therefore, because defendant has not alleged or proved any special circumstances that would warrant expungement, I would hold that the trial court did not err in denying his petition.
The majority’s exposition of development of Wells and Chesler (352 Ill. App. 3d at 1118-1120) provides a sufficient grounding for my analysis. Preliminarily, I note that the language of the Act does not compel either a broad or a narrow construction of the trial court’s power of expungement. As the majority has observed, section 5(a) simply says that the trial court “may” grant a petition. 352 Ill. App. 3d at 1118. It is a fair inference that, by the use of such general terminology, the legislature intended the courts to “fill in the gaps” by defining the trial court’s discretion more precisely. Indeed, this is exactly the assumption of Wells and Chesler.
In addition, the majority noted that “under section 5(a), a defendant who has a prior conviction, even of a misdemeanor, is barred from seeking the expungement of arrest records from a case in which he was acquitted, even if his arrest was illegal.” 352 Ill. App. 3d at 1122. From this, I also conclude that the legislature attached little significance to the presumption of innocence per se. Thus the legislature declined the opportunity to equate an acquittal with the right to the expungement of the related arrest records.
With these considerations in mind, I now turn to the federal case law of expungement. As in Pennsylvania, expungement in the federal system is (with exceptions not pertinent here) a creature of the judiciary. See United States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975). This form of judicial relief “is committed to the discretion of the trial court, but it is not a remedy to be granted frequently.” United States v. Friesen, 853 F.2d 816, 817-18 (10th Cir. 1988). The trial court’s decision must still rest on the facts of each case rather than on any definitive set of criteria (Diamond v. United States, 649 F.2d 496, 498-99 (7th Cir. 1981); United States v. Bohr, 406 F. Supp. 1218, 1219 (E.D. Wis. 1976)), and the trial court must balance the considerations for and against granting relief (Diamond, 649 F.2d at 499; Linn, 513 F.2d at 927). Nevertheless, the defendant must make a “factual showing of harm or ‘extreme circumstances.’ ” Friesen, 853 F.2d at 817. Such a standard is not satisfied by the mere fact of an acquittal. Diamond, 649 F.2d at 498; Linn, 513 F.2d at 927-28.2
Friesen illustrates the federal rule and its application. There, the defendant, an attorney, was acquitted of conspiring to manufacture cocaine. He moved to expunge his arrest records, alleging in general terms that he was being “ ‘grievously injured *** in terms of employment availability, reputation in the community, and possible denial of professional licensing.’ ” Friesen, 853 F.2d at 817. Without taking evidence, the trial court granted expungement. The government appealed. The appellate court reversed and remanded the cause for a full evidentiary hearing.
The appellate court reasoned that the defendant’s mere allegation of potential harm was an insufficient ground for expunging his arrest records, even though he had been acquitted. Prior cases had established that expungement would have been proper had the arrest itself been tainted by a clear lack of probable cause (Friesen, 853 F.2d at 817, citing Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir. 1973)), by an improper harassing motive (Friesen, 853 F.2d at 817, citing United States v. McLeod, 385 F.2d 734 (5th Cir. 1967)), or by being based on an unconstitutional statute (Friesen, 817 F.2d at 817, citing Kowall v. United States, 53 F.R.D. 211 (W.D. Mich. 1971)). However, the defendant’s arrest had been lawful, and there was sufficient evidence of the defendant’s guilt for the jury to consider. Thus, as in Linn, there was no reason to conclude that the defendant had been harassed or unfairly singled out, or that his constitutional rights had been violated. Friesen, 853 F.2d at 818; see Linn, 513 F.2d at 928.
The court also rejected the defendant’s assertion that the possible harm to his reputation, employment opportunities, or professional license supported the trial court’s order of expungement. Observing that the trial court had not actually taken evidence, the appellate court concluded that there was “no factual basis in this record which supports these assumptions.” Friesen, 853 F.2d at 818. However, the court remanded the cause to give the defendant a chance to prove that he was in fact being “grievously injured” and that these injuries were so severe as to create “unusually compelling circumstances” that might justify relief. Friesen, 853 F.2d at 818. Thus, typical problems with employment and professional licensing opportunities are not enough; rather, they must rise to the level of “unusually compelling circumstances” to warrant expungement.
As Friesen illustrates, the discretion of the federal courts to order expungement is not broad, but the courts are nonetheless empowered to consider any pertinent circumstances. Generally, however, even a defendant who has been acquitted may not have the records of his arrest expunged unless he demonstrates the existence of extreme circumstances warranting the expungement, such as that the arrest itself was improper or that he has suffered or likely will suffer substantial harm from the retention of the records. In such a case, the defendant has proved that either (1) the State has committed an independent wrong; or (2) he faces an undue injury that outweighs the State’s interest in law enforcement.
Adopting these standards would strike a proper balance between the needs of law enforcement and the rights of defendants to be free of undue prejudice from the retention of their arrest records and properly give effect to the legislative intent embodied in section 5(a) of the Act. Moreover, the typical potential harm or injury of retaining arrest records should be the province of the legislature to address. As the majority observes, courts have acknowledged a variety of such potential injuries, such as damage to the person’s dignity or reputation (see United States v. Kalish, 271 F. Supp. 968, 970 (D. P.R. 1967)), or lessened opportunities for schooling, employment, credit, and professional licensing (see Capone, 282 Pa. Super, at 461, 422 A.2d at 1385; Commonwealth v. Malone, 244 Pa. Super. 62, 68, 366 A.2d 584, 588 (1976)). If, for instance, the legislature considers it improper to consider a person’s arrest record when determining his or her eligibility for a professional license, it is free to ban such consideration. Of course, the fact that the legislature is unlikely to do that underscores the caution courts should exercise in this area. What is likely is that the legislature would enact a comprehensive scheme of professional licencing that would detail how to consider arrest records in connection with professional licences. Such a scheme would logically treat different kinds of licences differently. Legislatures, not courts, are equipped to enact such detailed comprehensive schemes. See, e.g., Carter-Shields v. Alton Health Institute, 201 Ill. 2d 441, 462 (2002) (“the General Assembly has broad regulatory power ***, and it is within the discretion of the legislature to not only determine what is required in the public interest and welfare, but also to determine the measures needed to secure such interest”).
If the legislature considers it improper for employers to inquire into prospective employees’ arrest records, it should outlaw that practice directly. Once again, of course, the legislature has not done so and is unlikely to do so. That approach would likely cause less confusion and uncertainty than destroying one source of accurate information while still allowing employers to rely on that information. To put the matter concretely: what if a person whose arrest record has been expunged is asked by a potential employer, “Have you ever been arrested?” May the person reply “no” because the official record of his arrest has been destroyed? Or must he be strictly factual and say “yes” even though one purported aim of expungement is to protect him from having this information used to his detriment? In any event, I agree that it is a fair assumption that arrest records cause harm to nearly everyone who has such a record. The legislature, wisely in my view, has not seen fit to follow the Pennsylvania case law that grants an expungement to any and all defendants who are acquitted (see, e.g., Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770 (1997) (ex-pungement automatic for acquitted defendant); Commonwealth v. W.P., 417 Pa. Super. 192, 612 A.2d 438 (1992) (presumption in favor of expungement for defendant whose prosecution terminated without conviction); Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981) (same)) and decrees that the typical harm of an arrest record warrants expungement. Since, e.g., nearly everyone will experience employment problems due to an arrest record, it is not enough to cite that as a justification for expungement. Rather, there must be “extreme circumstances” to warrant the expungement of an arrest record.
This conundrum reinforces my conclusion that the expungement of arrest records must not be undertaken lightly. In a sense, expungement creates a legal fiction, in that the law says that the defendant has never been arrested while reality says that he has. Of course, such fictions are common in the law, and they are not inherently wrong or undesirable. In the context of an illegal arrest, for instance, expungement simply embodies the maxim that “equity considers that as done which ought to be done.” Cesena v. Du Page County, 145 Ill. 2d 32, 38 (1991). In other situations, the use of the fiction may be necessary to prevent demonstrable, undue prejudice to an individual. However, I believe that the discretionary power to expunge ought to be narrow, because “[t]he judicial editing of history is likely to produce a greater harm than that sought to be corrected.” Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir. 1972); see generally George Orwell, 1984 (First Signet Classics 1950) (1949).
Applying the foregoing analysis to the case at bar, I would hold that the trial court did not abuse its discretion in denying defendant’s petition for expungement. Defendant’s acquittal was, by itself, insufficient to support his claim for relief. Moreover, defendant did not attempt to prove that his arrest was unlawful or undertaken for an improper purpose, such as harassment. Also, while defendant’s motion to reconsider asserted that denying expungement would “perpetuate further embarrassment and irreparable harm,” defendant did not specify this harm or attempt to introduce evidence to support his general allegations of injury. Hence, I agree with the majority that the trial court did not abuse its discretion in denying defendant’s petition for expungement.
At least two states have also adopted the restrictive federal standards for expungement. See State v. Howe, 308 N.W2d 743, 748-49 (N.D. 1981); State v. Motchnik, 149 Vt. 113, 539 A.2d 548 (1987).