dissenting:
I respectfully dissent because I do not think that section 5(d) of the Criminal Identification Act (Act) gives the trial court discretion to grant or deny a petition for expungement filed by a petitioner pursuant to subsection (c). See People v. Howard, 372 Ill. App. 3d at 505-06; 20 ILCS 2630/5(c), (d) (West 2004).
There are five facts that are critical to the decision in this appeal. First, the trial court vacated the petitioner’s 1993 convictions for aggravated criminal sexual assault and for attempted murder and rob-beiy based on DNA testing. Second, after the trial court vacated the 1993 convictions, the Governor granted the petitioner a pardon of his 1993 convictions and incorporated an “order” in the pardon permitting the expungement pursuant to the provisions of the Act. Third, the expungement petition was filed on February 10, 2005. Fourth, the State filed no objections to the expungement petition. Finally, the trial court denied the petition because it felt Holland was ineligible for ex-pungement due to a prior felony conviction for which he did not seek or receive a pardon.
The majority states that it followed the rules of statutory interpretation and viewed the statute as a whole, and then the majority holds that the entry of an expungement order is not mandatory. 374 Ill. App. 3d at 127. The majority also holds that subsection (d) clearly references subsections (a), (b) and (c) without differentiation and grants discretion to the trial court to enter an order granting or denying the expungement petition. 374 Ill. App. 3d at 127.
I think the majority is in error. I think the Howard court correctly held (1) that subsection 5(a) makes expungement subject to the circuit court’s discretion (see 20 ILCS 2630/5(a) (West 2004) (“[the specified judges] may upon verified petition of the defendant order the record of arrest expunged”)), and (2) that subsection 5(c) makes expungement subject to the Governor’s discretion but it is mandatory. People v. Howard, 372 Ill. App. 3d at 506. I think expungement is mandatory when an expungement petition is filed with the court with a pardon incorporating an authorization or order permitting the expungement attached to the petition.
In my opinion, subsection (d) merely prescribes the procedure for parties to file objections when expungement petitions are initially filed (1) with the court pursuant to subsection (a) or (b), or (2) with the Governor pursuant to subsection (c). See 20 ILCS 2630/5(a), (b), (c), (d) (West 2004). First, subsection (d) delineates the parties (the State’s Attorney, The Department of State Police, the arresting agency, and the chief legal officer of the unit of local government affecting the arrest) that are entitled to receive notice of the expungement petition. Second, subsection (d) provides that if the parties receiving notice do not object within 30 days from the date of the notice, the court shall enter an order granting or denying the petition. 20 ILCS 2630/5(d) (West 2004). Finally, I submit that the only reason that subsection (d) refers to subsections (a), (b) and (c) is because the legislature wanted a uniform procedure for State’s Attorneys and other interested government agencies to object to expungement petitions regardless of whether the expungement order was initially requested from a court or from the Governor when requesting a pardon.
I note that the power to expunge is a creature of statute. People v. Bushell, 101 Ill. 2d 261, 268 (1984). I also note that the legislature promulgated the Criminal Identification Act and empowered the judicial branch to grant expungements in subsections (a) and (b). See 20 ILCS 2630/5(a), (b) (West 2004). I further note that the legislature expanded the Governor’s constitutional power to pardon by empowering the Governor to authorize expungements in subsection (c). 20 ILCS 2630/5(c) (West 2004); Ill. Const. 1970, art. V, §12 (the Illinois Constitution provides that the Governor has the power to grant pardons after conviction for all offenses on such terms as he thinks proper). The legislature codified the judicial branch’s expungement power in subsections (a) and (b), and the executive branch’s expungement power in subsection (c) so that it would be clear that the judicial and executive branches had independent expungement power. See 20 ILCS 2630/5(a), (b), (c), (d) (West 2004).
Although the Governor issued a pardon with an order permitting the expungement of the petitioner’s 1993 convictions pursuant to subsection (c), the majority still holds that subsection (d) gives the court discretion to grant or deny the petition. I disagree with the majority. The trial court does not have the power to grant or deny ex-pungement petitions that are filed pursuant to subsection (c) because these petitions are predicated on the Governor’s pardon which incorporates an authorization or an order that the pardoned conviction be expunged. People v. Howard, 372 Ill. App. 3d at 506. Because the expungement authorization was obtained from the Governor after a pardon and was incorporated in and is inextricably connected to the pardon, the court has no discretion to deny authorizations or orders that are incorporated in pardons attached to expungement petitions because the Governor has the constitutional power to pardon (Ill. Const. 1970, art. V, §12), and the statutory power to authorize the ex-pungement of convictions that have been pardoned. 20 ILCS 2650/5(c) (West 2004). Because the Governor was given the power to authorize expungements in subsection (c), the trial court cannot deny an ex-pungement petition brought pursuant to subsection (c) unless the Governor’s pardon and expungement order are so palpably and conclusively wrong as to warrant an inference of fraud or inadvertence. In this case, the Governor’s pardon was not based on fraud because it was based on the court’s 2003 order that vacated the petitioner’s 1993 convictions. See People ex rel. Guidotti v. Bell, 372 Ill. 572, 577 (1939).
While the court has no discretion to grant or deny expungement petitions filed pursuant to subsection (c) with a Governor’s pardon and expungement authorization or order issued pursuant to subsection (c) attached to the petition, the court does have discretion when petitions are filed pursuant to subsections (a) and (b). The court was given expungement authority and the power to purge information from its records in subsection (a)1 and the power to correct its own orders in subsection (b)2 .
The majority cites Chesler v. People, 309 Ill. App. 3d 145 (1999), as authority for its holding that “the trial court retains full discretion to either grant or deny an expungement petition under subsection (d).” 374 Ill. App. 3d at 127. The majority’s reliance on Chesler is misplaced for two reasons: (1) because Chesler did not obtain a pardon from the Governor as the petitioner did in this case, and (2) because Chesler did not predicate his expungement petition on subsection (c) as the petitioner did in this case. Therefore, since subsection (c) is at issue in this case but was not involved in Chesler, that case does not support the majority’s holding.
In this case, given the fact the Governor has pardon and expungement power, and given the fact there is no evidence of fraud connected to the Governor’s pardon or order permitting the expungement of the petitioner’s 1993 convictions, the petitioner has a right to have his 1993 convictions expunged, and the trial court has no discretion to deny the expungement petition. People v. Howard, 372 Ill. App. 3d at 503-07; Bell, 372 Ill. at 577. In my opinion, the majority’s decision sets the courts on a collision course with separation of powers principles. Ill. Const. 1970, art. II, §1. The Illinois Constitution provides (1) that there are three branches of government, a legislative, executive and judicial branch, and (2) that no branch shall exercise power belonging to the other. Ill. Const. 1970, art. II, §1. If the court can deny expungement petitions filed pursuant to subsection (c) with a Governor’s pardon incorporating an expungement authorization or order issued pursuant to subsection (c) attached to the petition, the judicial branch will be invading the province of the executive and acting as a superior executive branch.
In conclusion, I agree with the majority that this case should be remanded. However, I think this case should be remanded with directions to the trial court to enter an order granting petitioner’s ex-pungement petition.
Subsection (a) permits the court to grant an expungement after an acquittal or release without a conviction. 20 ILCS 2630/5(a) (West 2004).
Subsection (b) permits the court to grant an expungement if a conviction is made in the name of the wrong person. 20 ILCS 2630/5(b) (West 2004).