The issue under consideration is this: To what extent (if at all) does the Full Faith and Credit Clause of the United States Constitution require Jurisdiction B to honor, in Jurisdiction B, the legal rights that flow from an expungement granted by a court in Jurisdiction A relating to arrests or convictions in Jurisdiction A?



Only one federal decision addresses this issue. That decision is White v. Thomas, 660 F.2d 680, 685 (5th Cir., 1981). White held that Jurisdiction B (in that case, Texas) was not required to honor an expungement in Jurisdiction A (in that case, California). Parenthetically, what White had expunged was not a criminal conviction; it was a California juvenile detention, following a shooting.

The Full Faith and Credit Clause reads as follows:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

Numerous cases hold that, despite the Full Faith and Credit Clause, Jurisdiction B need not honor a pardon granted by Jurisdiction A. Thus Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914) held that the State of New York was not required to give effect to a pardon granted by the President of the United States to a person previously convicted of a federal felony. The Presidential pardon operated only with regard to the sovereign that issued it--in that instance, the federal government. The pardon had no extraterritorial effect.

Over a half century later, the United States Court of Appeals for the Seventh Circuit held that the converse was also true: The United States was not required to give effect to a pardon granted by the governor of Montana to a person previously convicted of a felony in that state, Thrall v. Wolfe, 503 F.2d 313, 316 (7th Cir. 1974), cert. den., 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed. 2d 652 (1975). This Thrall holding has been accepted in other jurisdictions. Yacovone v. Bolger, 645 F.2d 1028, 1036, (D.C. Cir., 1981), cert. den., 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed. 2d 130 (1981), reached the same conclusion with respect to a United States Postal Service employment applicant who had a Vermont pardon from a Vermont shoplifting conviction. And earlier, Groseclose v. Plummer, 106 F.2d 311, 313, 314 (9th Cir., ) cert. den., 308 U.S. 614, 60 S.Ct. 264, 84 L.Ed. 513 (1939), held that California was not required to give effect to a Texas pardon.

Adverting to rulings relating to pardons, courts have denied recognition to expungements issued by other jurisdictions. Pardons are public acts. Pardons constitute forgiveness by the sovereign's executive, either the governor or the President. Expunctions constitute pronouncements from courts. The Full Faith and Credit Clause addresses itself to public acts, Records, and judicial proceedings. If their refusal to recognize foreign pardons is sound, then extension of that refusal to foreign expungements is probably equally sound.

A different argument is sometimes advanced. Jurisdiction B is not barred from criminally prosecuting a defendant for the same acts for which Jurisdiction A has already tried him, assuming both jurisdictions have jurisdiction over the defendant. This is on account of the dual sovereign doctrine. See Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977), cert. denied, 434 U.S. 1033, 98 S. Ct. 765, 54 L. Ed. 2d 780 (1978). It is thus reasoned that if Jurisdiction B could try a defendant for an offense notwithstanding Jurisdiction A's final disposition of the case, then “obviously” Jurisdiction B could disregard an expungement granted by Jurisdiction A.

But it is not obvious. Nor is it correct. The cases that allow Jurisdiction B to try a defendant previously tried in Jurisdiction A do so not under the Full Faith and Credit Clause but, rather, under their interpretation of the Double Jeopardy Clause in the Fifth Amendment. The reasoning behind that interpretation is that trial in Jurisdiction A of an offense allegedly committed contrary to the laws of Jurisdiction A cannot limit the ability of Jurisdiction B to examine an offense allegedly committed contrary to the laws of Jurisdiction B. But using the White v. Thomas example, it was never suggested that White was ever detained for violating laws of Texas. What was at issue was whether actions of White had implicated laws of California. By its decree, the California court had held that they had not.

As mentioned, White v. Thomas is the only federal case that has considered the Full Faith and Credit Clause in the context of expungements. Several State cases, however, have dealt with the issue. The holdings in those cases unamimously follow the federal lead. Thus Delehant v. Board, 317 Ore. 273, 281, 282, 855 P.2d 1088, 1092, 1093 (1993), held that Oregon was not required to recognize Idaho's expunction of that plaintiff's Idaho conviction; State v. Edmondson, 112 N.M. 654, 660, 818 P.2d 855, 861 (N.M. App.), cert. quashed, 112 N.M. 641, 818 P.2d 419 (N.M. 1991) held that New Mexico was not required to recognize Texas's expunction of that defendant's Texas conviction; and Ballard v. Board of Trustees, 452 N.E.2d 1023, 1025, 1026 (Ind. App., 1983), held that Indiana was not required to recognize Arizona's expunction of an Arizona conviction in deciding whether to continue a police officer's pension.

Persons obtaining a New Jersey expungement hope that other States will afford to their expungement the same recognition that New Jersey gives. Similarly, those who have obtained expungements for activities in other States hope that New Jersey will recognize them. Results in other jurisdictions have been discouraging. The United States Supreme Court has yet to weigh in. Expungement Lawyers in New Jersey™ are prepared to carry this issue there.

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