Denise Callahan continues to cover all the developments in the case of Oxford Judge Rob Lyons in the Ohio Supreme Court. She spent hours contacting the municipal and county court judges in Butler and Warren counties to find out how they handle minor misdemeanors in their courts.
Judges in Butler County vary widely in how they handle requests to seal or expunge minor misdemeanor convictions.
A survey by this newspaper of court personnel in Butler, Warren and Hamilton counties shows a majority of municipal and county court judges hold hearings and make people wait a year before they seal or expunge the record in minor misdemeanor cases.
But if someone gets cited and convicted for a minor misdemeanor in West Chester Twp., Area III Court Judge Dan Haughey will seal the records after a hearing on the matter immediately, similar to what his counterpart in Oxford was doing before he was sued for the practice.
Hamilton Judge Dan Gattermeyer said he won’t seal minor misdemeanors.
“We don’t seal minor misdemeanor records, it doesn’t seem to us the statutes allows for that,” Gattermeyer said. “Although I’m not saying anybody else does it right or wrong.”
Middletown Municipal Court Judge Mark Wall said if it’s a first offense a record might never have to be made.
“The prosecutor has a diversion program so if you don’t have any prior record it’s a way for you to avoid a conviction of any kind,” Wall said. “Then you can turn right around and immediately seal your arrest record.”
Sealing minor misdemeanor cases became an issue after Oxford Judge Rob Lyons was sued by a local newspaper over the sealing of a former Miami University student’s records involving a “rape flier” incident. The Ohio Supreme Court also recently agreed to listen to a second case against Lyonsabout records he has supposedly inappropriately sealed.
Prosecutor Mike Gmoser has asked his assistants to object to all sealing requests. He said there is a mandatory one-year waiting period — after all costs, fines and probation period have been satisfied — for sealing misdemeanors. Convicted felons must wait three years before they can apply to have their records sealed. People who have been acquitted, or otherwise had their case tossed, can apply immediately.
George Jonson, the attorney representing Lyons, said in his opinion state law allows the practice of sealing records immediately because the statute is “silent” on the issue of minor misdemeanors.
“It’s kind of a words matter thing,” Jonson said. “If the statute is silent, then it doesn’t cover what’s not discussed. So since there is no statute that says you have to wait a certain period of time to seal minor misdemeanors, the judge’s position is that he may immediately do so.”
All 14 Hamilton County municipal judges and five Warren County judges — one judge couldn’t be reached for comment — say the statute is clear. Judge Joe Kirby, who was a county court judge before moving to common pleas recently, said he and Judge Don Oda have discussed the issue.
“It always was a year, even if it was a minor misdemeanor,” Kirby said. “Our feeling was if there is a conviction there had to be a waiting period of at least a year.”
Haughey has sided with Lyons and even overruled a recent objection by Gmoser’s office and sealed a record. He said the statute is subject to judicial interpretation and he hopes the high court will clear the issue up. He noted the legislature has recently eased the rules on expunging — to help with the job situation — which basically erases a court record. Haughey said that should be a signal Ohio is most interested in the economy and jobs.
Fairfield Judge Joyce Campbell, who agrees with theone-year-waiting period, agrees the legislature has been breaking down some legal barriers for job-seekers, but she doesn’t necessarily agree with all of them.
“If we can get rid of their criminal record, maybe they have a better shot at getting a job and becoming a productive member of society,” she said. “Quite frankly, if I’m an employer, wouldn’t I want to know if somebody stole from a former employer? I would.”
Area II Judge Kevin McDonough said he doesn’t get many requests and he decides them on a case-by-case basis. He also believes the statute doesn’t directly address minor misdemeanors.
If the Supreme Court decides immediate sealing is OK, some experts question what will happen to those who have never had their records sealed or are in waiting mode. Former Hamilton County Prosecutor Mike Allen said high court decisions aren’t usually retroactive, but added there is no ending date on when people can make sealing requests. He has had people come back 25 or 30 years after their felony conviction.
Haughey and the other judges said the high court should give some clarity to the issue, rather than just decide Lyons’ case.
“This particular issue is not settled, even here in Butler County. If you go from one end of Butler County you’ll find in the courts three different interpretations of what is appropriate as it relates to the sealing of a minor misdemeanor…,” he said. “Hopefully we can get some consistency for our constituents and our citizens, because they deserve that.”
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