Expunctions Are Not Civil Rights

In re Sang Man Shin
Supreme Court of Nevada
March 26, 2009

Holding: Expunctions are not civil rights and cannot be compared within the same scope as a pardon. Nevada Record Sealing § 179.245(5) regulates expunctions of criminal records and therefore a person does not have any civil rights pursuant to it. A court may therefore deny an application of expunction if the person does not meet the requirements of the statute.

Why This Case is Important: A pardon serves to restore to a person all their civil rights and relieves the person of all disabilities brought upon by their conviction. NRS 179.245 allows for the expunction of a criminal offense. NRS 179.245(5) limits such expunctions to crimes that are not related to a sexual offense.

The power to grant pardons in Nevada belongs exclusively to the Pardons Board. This power is granted to the Pardons Board by the Nevada Constitution, which only addresses the procedures and effects of a pardon. The Nevada Constitution does not mention anything regarding expunction of criminal offenses, thereby allowing the Nevada Legislature to enact laws on that matter.

Furthermore, nothing in the Nevada Constitution states that a pardon by the state would require all records of the pardoned crime to be erased. Past case law from the United States Supreme Court, the United States Courts of Appeals, and most state courts have revealed that a pardon does not extinguish the fact that the person committed the particular crime in the past. Following this precedent, a pardon in Nevada will not erase all records of the crime and the person who committed the crime. The pardon will restore to the person their civil rights and rid the person of all disabilities following the conviction, but not the historical fact that the person committed the crime.

Therefore, nothing links a pardon to expunction or visa versa. A person wishing to get their records sealed in the State of Nevada must meet the requirements of NRS 179.245 and all the regulations such as NRS 179.245(5), which does not allow the sealing of records for crimes related to a sexual offense.

Facts of This Case: The defendant in this case was found guilty of attempted lewdness with a minor in 1987. He was sentenced to two years imprisonment, which was suspended and was subsequently placed on probation. The defendant maintained a clean record for 15 years and sought pardon in 2002, which was granted. In 2006, the defendant applied to have his criminal record expunged pursuant to NRS 179.245.

The district court granted the defendant’s request. Subsequently, the State of Nevada moved to set aside the order based on the argument that defendant was a convicted sex offender and NRS 179.245(5) stated that crimes against a child or a sexual offense prevented defendant from having his record sealed. The court agreed with the State’s argument and ordered the defendant’s record unsealed. Defendant then appealed this decision, arguing that the district court could not unseal his records because his pardon granted him the right to expunge his criminal records and that NRS 179.245(5) was unconstitutional because the Legislature does not have the power to affect his civil right to seek an expunction. The Supreme Court of Nevada agreed with the State and held that defendant did not have any constitutional right to a record expunction.

The Supreme Court of Nevada stated that when there is no specific constitutional limitation mentioned, the power to enact laws such as the procedures to grant an expunction is granted to the Legislature. Upon a review of the Nevada Constitution, there is no mention of criminal record expunctions. NRS 179.245 was enacted by the Legislature to address such matter. NRS 179.245 allows the district court discretion in sealing criminal convictions, but does not allow the sealing of records related to a sexual offense.

Furthermore, the Supreme Court of Nevada stated that even though NRS 179.245(5) was silent on whether a pardon by the State would require a sealing of a sex offender’s record, an examination of previous case law from the United State Supreme Court, the United State Courts of Appeals, and other states’ decision showed that a pardon does not erase all guilt associated with a conviction. Even if the person was pardon, the fact that that person committed that particular crime in the past still remains. Therefore, the pardon granted to defendant in this case does not grant the right to erase the historical fact that defendant had committed the particular crime.

Key Language: A pardon and an expunction are separate. A grant of pardon by the state does not automatically grant the right to have all criminal records related to the pardoned crime expunged. Even though a pardon restores to a person all their civil rights, because the Nevada Constitution does not specifically state anything relating to expunction of criminal records, the State Legislature has the power to enact laws regarding such matters. Therefore, a person must meet all requirements of NRS 179.245 in order for the court to seal their criminal records, even if they were pardoned.

Expert Advise: “In the State of Nevada, a person must meet the full requirements of NRS 179.245 in order to have their records sealed. A person with a criminal conviction related to a sexual offense will not qualify under the statute, even if the person was granted a pardon.” -Attorney Mathew Higbee.

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