MarchReport-toFlip - page 9

not offend the Supremacy Clause for a
state court to order the sealing of federal-
conviction records — i.e., those records
in the possession of state courts, agen-
cies, and officials that are not required to
be maintained under federal law.
Several Ohio cases support the
finding that §2953.32 cannot be con-
strued as affecting federal records either
maintained or in the custody of federal
The case of
In re Pacifico
that despite the fact that common pleas
“courts in the state are without jurisdic-
tion or constitutional authority to order
federal courts, agencies, or officials to
seal federal criminal records, common
pleas courts may, nevertheless, expunge
federal conviction records maintained
in Ohio by state officials or agencies,
provided that the records are not main-
tained or utilized by those state officials
or agencies pursuant to any federal law.”
Id. The issue was further clarified when
the Supreme Court of Ohio stated that
“where the State of Ohio has created
disability resulting from a federal convic-
tion, it may constitutionally provide for
the removal of that disability; by con-
trast, where the federal government has
created, or mandated, a disability from a
federal conviction, the State of Ohio may
not provide for the removal of the feder-
ally created disability without offending
the supremacy clause.”
Applying to have a federal conviction
expunged can be a nuanced process and
the assistance of experienced counsel
is highly recommended. A court that
receives an application for expungement
must conduct a hearing on the applica-
tion and must give notice of the hearing
to the state prosecutor, who will be given
the opportunity to object to the applica-
tion. Some courts have also adopted the
practice of notifying the United States
attorney who originally prosecuted the
case. The court may also order a proba-
tion officer to conduct an investigation of
the applicant. Ultimately, the decision of
whether to grant the application resides
in the discretion of the judge.
Although expungement can go a long
way toward removing evidence of a con-
viction from the public domain, it is not
a perfect solution. Employers, landlords,
and licensing boards may be prohib-
ited from asking an applicant about
an expunged conviction, but nothing
prevents them from learning about such
a conviction by searching old newspaper
archives or typing a person’s name into
Google — none of which is erased by an
order granting expungement. Nor is an
individual protected from an adverse
employment or other decision should an
expunged conviction come to light. Ex-
pungement merely makes the conviction
harder to find.
Equally, Ohio law allows state agen-
cies or officials to obtain access to sealed
records under specific circumstances.
Ohio Revised Code §2953.32(B) permits
inquiries about expunged convictions
where, “the question bears a direct and
substantial relationship to the position
for which the person is being consid-
This provision has been utilized
to allow the consideration of a sealed
conviction in an application to carry a
concealed handgun,
in the ability to
hold public office,
and in registration
as an intern before the State Board of
Finally, expungement of a federal
conviction by an Ohio court does not
eliminate disabilities resulting from a
federal conviction. For example, a felony
conviction, even after expungement, con-
tinues to act as a bar to the possession of
a firearm imposed under federal law.
Johnson chairs the white-collar defense and corporate
investigation practice group at Porter Wright. Klaus is
an associate in Porter Wright’s litigation department,
focusing on complex commercial litigation.
In re Pacifico,
129 Ohio App. 3d 152, 157 (8
Dist. 1998).
State ex rel. Gains v. Rossi
, 86 Ohio St. 3d 620 (1999).
4 Ohio Revised Code §2953.32(B).
In re Forster
, 161 Ohio App.3d 627 (11
Dist. 2005).
State v. Bissantz
, 40 Ohio St. 3d 112 (1988).
Szep v. Ohio State Board of Pharmacy
, 106 Ohio App. 3d
621 (11
Dist. 1995).
8 18 U.S.C § 922((g).
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March 2016 CBA REPORT
Feature Article
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