#25955-r-LSW

2012 S.D. 9

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA
                                   ****

                  IN THE MATTER OF THE EXPUNGEMENT
                        OF RECORDS RELATED TO
                       MISTY JO OLIVER, Petitioner.
                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                   ROBERTS COUNTY, SOUTH DAKOTA
                                ****

                       HONORABLE JON S. FLEMMER
                                Judge
                                ****

MARTY J. JACKLEY
Attorney General

PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota                      Attorneys for respondent and
                                          appellant State of South
                                          Dakota.

RONALD A. PARSONS, JR.
Johnson, Heidepriem, &
 Abdallah, LLP
Sioux Falls, South Dakota

and

THOMAS L. SANNES of
Delaney, Vander Linden,
 Delaney, Nielsen & Sannes, PC
Webster, South Dakota                    Attorneys for petitioner
                                         and appellee Oliver.
                                 ****

                                         ARGUED NOVEMBER 16, 2011

                                         OPINION FILED 02/08/12
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WILBUR, Justice

[¶1.]        Misty Jo Oliver’s record contains two misdemeanor convictions. She

asked the trial court to expunge her record of convictions pursuant to SDCL 23A-3-

26 through SDCL 23A-3-33 (collectively, “the expungement statutes”). The trial

court granted her request. The State appealed on the grounds that under both the

expungement statutes and the South Dakota Constitution the trial court was

without jurisdiction to expunge records of Oliver’s convictions. Because we hold

that the trial court did not have statutory authority to grant the expungement, we

reverse.

                 FACTS AND PROCEDURAL BACKGROUND

[¶2.]        Oliver was convicted of misdemeanors in 2000 and 2004. In 2011,

Oliver filed a motion for expungement in Roberts County, South Dakota. The State

appeared at the hearing on the motion but presented no opposition. The trial court

granted Oliver’s motion and filed an order of expungement.

[¶3.]        After the expungement order was filed, the state’s attorney’s office filed

a motion to set aside the order arguing that granting it exceeded the trial court’s

statutory and constitutional authority. However, because the motion was never

served on Oliver’s counsel, the trial court could not decide the merits of the motion.

The Office of the Attorney General filed a notice of appeal with this Court.

[¶4.]        Despite the State’s acquiescence to the motion for expungement, we

may consider this issue for the first time on appeal because we are asked to

determine whether the trial court acted beyond its constitutional and statutory




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jurisdiction. See State v. Neitge, 2000 S.D. 37, ¶ 9, 607 N.W.2d 258, 260 (citing

State v. Haase, 446 N.W.2d 62, 64 (S.D. 1989)).

                             STANDARD OF REVIEW

[¶5.]        Issues of statutory and constitutional interpretation are questions of

law. Gray v. Gienapp, 2007 S.D. 12, ¶ 15, 727 N.W.2d 808, 812. We review the

interpretation and application of each de novo. See State v. Goulding, 2011 S.D. 25,

¶ 5, 799 N.W.2d 412, 414 (“Statutory interpretation and application are questions of

law that we review do novo.”); Kraft v. Meade Cnty. ex rel. Bd. of Cnty. Comm’rs,

2006 S.D. 113, ¶ 2, 726 N.W.2d 237, 239 (“Constitutional interpretation is a

question of law reviewable de novo.”).

                                     ANALYSIS

Statutory Analysis

[¶6.]         In conducting statutory interpretation, “[w]e give words their plain

meaning and effect, and read statutes as a whole . . . .” State v. Miranda, 2009 S.D.

105, ¶ 14, 776 N.W.2d 77, 81. “[R]esorting to legislative history is justified only

when legislation is ambiguous, or its literal meaning is absurd or unreasonable.” In

re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D. 1984).

[¶7.]        The parties dispute the meaning of SDCL 23A-3-27. The statute, titled

“Motion for expungement of arrest record” provides:

             An arrested person may apply to the court that would have
             jurisdiction over the crime for which the person was arrested, for
             entry of an order expunging the record of the arrest after one
             year from the date of any arrest, if no accusatory instrument was
             filed, or at any time after an acquittal.

(Emphasis added.)


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[¶8.]           The State and Oliver set forth divergent readings of the statute. The

State argues that the plain language of SDCL 23A-3-27 limits a court’s authority to

grant an expungement to: (1) individuals who have been arrested but have never

been charged with a crime; and (2) individuals who have been acquitted. In

contrast, Oliver argues that SDCL 23A-3-27 does not limit a court’s authority to

grant an expungement, but rather establishes when certain individuals may seek

expungement. Specifically, under Oliver’s reading of the statute, an arrested

person, “if no accusatory instrument was filed,” may apply to have records expunged

“one year from the date of arrest” and an acquitted person may apply for

expungement “at anytime after acquittal.” According to Oliver, other individuals,

for example, individuals like Oliver who have been convicted, are not subject to

SDCL 23A-3-27 but are still eligible to have a conviction expunged.

[¶9.]           The United States Supreme Court has repeatedly stated that “[i]t is a

‘fundamental canon of statutory construction that the words of a statute must be

read in their context and with a view to their place in the overall statutory

scheme.’” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 133, 120 S. Ct. 1291, 1301, 146 L. Ed. 2d 121 (2000) (quoting Davis v. Mich.

Dep’t of Treasury, 489 U.S. 803, 809, 109 S. Ct. 1500, 1504, 103 L. Ed. 2d 891

(1989)). Similarly, this Court has stated that “[i]t is inappropriate to select one

statute on a topic and disregard another statute which may modify or limit the

effective scope of the former statute.” Appeal of AT & T Info. Sys., 405 N.W.2d 24,

28 (S.D. 1987). Oliver’s reading of the statute violates both these rules of statutory

construction.


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[¶10.]       Oliver begins her statutory analysis by correctly noting that SDCL

23A-3-26 broadly defines expungement. Specifically, the statute defines

expungement as:

             [T]he sealing of all records on file within any court, detention or
             correctional facility, law enforcement agency, criminal justice
             agency, or Department of Public Safety concerning a person’s
             detection, apprehension, arrest, detention, trial or disposition of
             an offense within the criminal justice system. Expungement
             does not imply the physical destruction of records.

Id. However, Oliver fails to read the definition of expungement in relation to its

“place in the overall statutory scheme,” by temporarily ignoring the subsequent

statute, SDCL 23A-3-27.

[¶11.]       After noting that expungement is broadly defined by SDCL 23A-3-26,

Oliver directs this Court to SDCL 23A-3-30. This statute provides that a “court

may enter an order of expungement if satisfied that the ends of justice and the best

interest of the public as well as the defendant or the arrested person will be served

by the entry of the order.” Oliver then appends that broad definition of

expungement onto SDCL 23A-3-30 and reasons that, because Oliver’s “conviction”

can be categorized as a “disposition of an offense within the criminal justice

system,” a court can grant an expungement of conviction so long as it makes the

necessary findings under SDCL 23A-3-30. Oliver uses this reading as the backdrop

for her argument that the plain language of SDCL 23A-3-27 “simply establishes a

time frame under which an arrested person who has never been indicted or charged

may apply to have those records expunged.”

[¶12.]       Oliver’s reading misses the overall scheme of the expungement

statutes, and therefore, as a matter of statutory interpretation, cannot be accepted.

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First, although the Legislature defined “expungement” broadly, the statutory

scheme cannot be read to give courts broad jurisdiction to grant expungement.

Moreover, contrary to Oliver’s assertions, SDCL 23A-3-30 does not grant

jurisdiction, rather it provides the standard to be applied by the court (i.e. “if

satisfied that the ends of justice and the best interest of the public as well as the

defendant or the arrested person will be served by the entry of the order”) in

determining if expungement is appropriate. This is a standard a court would reach

only if it has authority to act under SDCL 23A-3-27.

[¶13.]       When read in context of the entire statutory scheme, it is clear that the

Legislature intended that the provisions of SDCL 23A-3-27 “limit the effective scope

of the former statute,” SDCL 23A-3-26. First, as the State correctly asserts, the

plain language of SDCL 23A-3-27 provides that a court’s ability to enter an order of

expungement is limited to: (1) individuals who have been arrested but have never

been charged with a crime; and (2) individuals who have been acquitted.

Specifically, a reading of the plain language indicates that the Legislature intended

the phrase “if no accusatory instrument was filed, or at any time after an acquittal”

to limit the court’s authority. Second, the Legislature chose language which limits

the expungement to the “record of the arrest.” If the Legislature had intended to

allow expungement of a conviction it would have included that language in the

statute.

[¶14.]       In the alternative, Oliver argues that the State’s interpretation of the

expungement statutes would lead to an “absurd” result, and therefore, should be

avoided. According to Oliver, it is “absurd” that both “an individual who was


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arrested but never charged” and “an individual who was arrested, charged, tried,

and acquitted could obtain such an order, but records related to an individual who

was wrongfully arrested and charged, but had those charges dropped or dismissed,

could never be expunged.” We disagree. As the State points out, it is quite possible

that the Legislature felt there was a qualitative difference in conduct resulting in

charges (unless acquitted) and conduct that does not result in charges being filed.

This distinction is not facially absurd. Moreover, even if we found the statutory

language absurd or ambiguous, and looked beyond the language of the statute to

determine legislative intent, we would still arrive at the same result.

[¶15.]        “When called upon to construe ambiguous statutes, courts may look to

‘the legislative history, title, and the total content of the legislation.’” Zoss v.

Schaefers, 1999 S.D. 105, ¶ 6, 598 N.W.2d 550, 552 (quoting LaBore v. Muth, 473

N.W.2d 485, 488 (S.D. 1991)). A review of the legislative history reveals that when

SDCL 23A-3-27 was initially introduced, the bill afforded courts the discretion to

expunge conviction records. Specifically, the bill provided: “Any defendant . . . may

apply, by motion to the court where the conviction was entered, for entry of an order

expunging the conviction after two years from the date of a judgment of conviction.”

H.B. 1105, 85th Leg. Sess., (S.D. 2010) (emphasis added). The initial inclusion and

subsequent removal of “conviction,” supports our reading of the legislative

language. If it had been the will of the Legislature to include conviction records,

they would have left the language in the statute.

[¶16.]        Oliver counters by pointing to the Legislature’s rejection of a 2011

amendment to the expungement statutes. The amendment would have explicitly


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provided that a “court may not expunge any records of a guilty plea, conviction, or

suspended imposition of sentence.” S.B. 31, 86th Leg. Sess. (2011). According to

Oliver, the rejection of the amendment “should send a strong message that [the

Legislature] did not intend expungement to be jurisdictionally limited to cases

where no information or indictment was filed or that ended in an acquittal.”

However, “‘subsequent legislative history will rarely override a reasonable

interpretation of a statute that can be gleaned from its language and legislative

history prior to its enactment.’” Doe v. Chao, 540 U.S. 614, 626-27, 124 S. Ct. 1204,

1212, 157 L. Ed. 2d 1122 (2004) (quoting Solid Waste Agency of N. Cook Cnty. v.

United States Army Corps of Eng’rs, 531 U.S 159, 170 n.5, 121 S. Ct. 675, 682, 148

L. Ed. 2d 576 (2001)).

Constitutional Analysis

[¶17.]       Adopting the reading of the statute which Oliver urges would also force

this Court to address a constitutional problem: whether granting courts jurisdiction

to expunge convictions is an unconstitutional infringement on Article IV, § 3 of the

South Dakota Constitution. This provision vests in the governor the power to

“grant pardons, commutations, and reprieves . . . .” Id. We have previously stated

that “[i]f an alternate construction of a statute would involve serious constitutional

difficulties, then that interpretation should be rejected in favor of one which avoids

such constitutional infirmities.” State v. Heisinger, 252 N.W.2d 899, 903 (S.D. 1977)

(citing First Am. Bank & Trust Co. v. Ellwein, 198 N.W.2d 84, 95 (N.D. 1972)).

[¶18.]       Notably, the effect of a pardon and an expungement are the same.

Both restore “the status the person occupied before the person’s arrest, indictment,


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or information.” Compare SDCL 23A-3-32 (effect of order of expungement), with

SDCL 24-14-11 (effects of pardon). Therefore, because the effect of an

expungement, like that of a pardon goes beyond mere regulation of records, Oliver’s

contention that the expungement statutes can be differentiated from the governor’s

pardoning power is erroneous. Nonetheless, because we reject Oliver’s reading and

hold that the expungement statutes do not apply to convictions, the conviction

pardoning power remains solely reserved to the governor, and we “avoid[] such

constitutional infirmities.”

                                  CONCLUSION

[¶19.]       The trial court’s decision expunging Oliver’s convictions is reversed.

[¶20.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

SEVERSON, Justices, concur.




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