IN THE MATTER OF THE EXPUNGEMENT OF B.K.

RECORD IMPOUNDED

                       NOT FOR PUBLICATION WITHOUT THE
                     APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
     Although it is posted on the internet, this opinion is binding only on the
       parties in the case and its use in other cases is limited. R. 1:36-3.




                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5592-15T1

IN THE MATTER OF THE
EXPUNGEMENT OF B.K.1

_____________________________

             Submitted November 28, 2017 – Decided December 26, 2017

             Before Judges Leone and Mawla.

             On appeal from Superior Court of New Jersey,
             Law Division, Middlesex County, Docket No. M-
             151-15.

             B.K., appellant pro se.

             Christopher S. Porrino, Attorney General,
             attorney for respondent State of New Jersey
             (Sarah E. Miller, Deputy Attorney General, of
             counsel and on the brief).

PER CURIAM

       Petitioner B.K. appeals from a July 25, 2016 order denying

with prejudice his motion to add the New Jersey State Parole Board

(Board) and Executive Clemency Assistant (CA) in the Division of




1
   We utilize petitioner's initials, therefore his reserved motion
M-5567-16 is granted.
Criminal Justice to an expungement order the trial court had

previously entered.    We affirm.

     The following facts are taken from the record.         In December

1991, B.K. pled guilty to 
N.J.S.A. 2C:35-10(a)(3) for possession

of marijuana in excess of 50 grams.       B.K. filed three petitions

for clemency.   Specifically, on January 17, 2006, Governor Richard

Codey denied B.K.'s first petition for clemency.         On January 22,

2010, Governor Chris Christie denied B.K.'s second petition for

clemency.    On November 10, 2010, Governor Christie denied B.K.'s

third petition for clemency.

     B.K. then filed a petition for expungement, which was granted

by the trial court on June 6, 2015.      The order stated the:

            [1] Attorney General of New Jersey

            [2] Superintendent of the New Jersey State
            Police, c/o Expungement Unit

            [3] Prosecutor of Middlesex County

            [4] Chief(s) of the Highland          Park    and
            Jamesburg Police Department(s)

            [5] Clerk of the New Jersey Superior Court,
            Appellate Division

            [6] Deputy Clerk/Trial Court Administrator,
            Middlesex County Superior Court

            [7] Middlesex County        Family   Courthouse,
            Division Manager

            [8] Clerk(s) of the Highland          Park    and
            Jamesburg Municipal Court(s)

                                    2                            A-5592-15T1
          [9] Chief Probation Officer of the Middlesex
          County Probation Department

          [10] Division of Criminal Justice, c/o Records
          and Identification Unit

          [11] Middlesex County Sheriff, c/o Records
          Unit

          shall   remove   from        their    records   all
          information   relating        to   [B.K.]'s   adult
          record[.]

     In November 2015, B.K. filed a motion to add the Board and

the CA to the expungement order.        The trial court dismissed the

motion without prejudice concluding "no legal basis exists that

would substantiate granting said amendment."

     In May 2016, B.K. filed a second motion seeking the same

relief.   On July 25, 2016, the trial court dismissed the motion

with prejudice for the same reasons as in the earlier order.        This

appeal followed.

     A trial court's adjudication of an expungement order is an

issue of law subject to de novo review.         See E.A. v. N.J. Real

Estate Comm'n, 
208 N.J. Super. 65, 66-67 (App. Div. 1986).             "A

trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special

deference."   Manalapan Realty v. Manalapan Twp. Comm., 
140 N.J.
 366, 378 (1995).



                                   3                            A-5592-15T1
       When the question of law turns on the interpretation of a

statute, we look to the language and plain meaning of the statute

to resolve any ambiguities in the statute's interpretation.        See

State v. K.M., 
220 N.J. Super. 338, 339-40 (App. Div. 1987). "When

a statute is clear on its face, a court need not look beyond the

statutory terms to determine the legislative intent."        State v.

Churchdale Leasing, 
115 N.J. 83, 101 (1989).

       Petitioner argues his expungement order should be amended to

include the Board and the CA.    B.K. asserts his records with both

entities should be expunged pursuant to 
N.J.S.A. 2C:52-1, 2C:52-

11, and 2C:52-15.

       "The purpose of expungement is to eradicate the stigma of a

record of an arrest and prosecution."     K.M., 
220 N.J. Super. at
 340.    Applications that do not fall within the aforementioned

statutory parameters are not subject to expungement.     See ibid.

       
N.J.S.A. 2A:167-5 addresses clemency petitions and states:

            Any person who has been convicted of a crime
            and by reason thereof has been deprived of the
            right of suffrage or of any other of his civil
            rights or privileges . . . may make
            application for the restoration of the right
            of suffrage or of such other rights or
            privileges.

The effect of clemency is to "remove[] the legal disabilities

attendant to the conviction" and restore a person's civil rights.

Brezizecki v. Gregorio, 
246 N.J. Super. 634, 639 (Law Div. 1990);

                                  4                           A-5592-15T1
see also Hozer v. Treasury Dep't, 
95 N.J. Super. 196, 230 (App.

Div. 1967).   When clemency is granted, "[t]he guilty offender is

discharged and released from the penalties suffered as a result

of the transgression."        Brezizecki, 
246 N.J. Super. at 638.

Clemency grants the offender "a new credit and capacity."       In re

Court of Pardons, 
97 N.J. Eq. 555, 567 (E. & A. 1925).

     Nothing in the expungement statute indicates the Legislature

contemplated including either the agencies or documents involved

in the clemency process. The Supreme Court has stated "the breadth

of the expungement statute – on its face – is limited to those

government agencies that are statutorily required to be served

with the expungement order."      G.D. v. Kenny, 
205 N.J. 275, 297

(2011)   (citing   
N.J.S.A.   2C:52-10,   -15).   
N.J.S.A.   2C:52-10

specifies the agencies that must be served:

           A copy of each petition . . . shall be served
           pursuant to the rules of court upon the
           Superintendent of State Police; the Attorney
           General; the county prosecutor of the county
           wherein the court is located; the chief of
           police or other executive head of the police
           department of the municipality wherein the
           offense   was   committed;  the    chief  law
           enforcement   officer   of  any    other  law
           enforcement agency of this State which
           participated in the arrest of the individual;
           the   superintendent   or   warden    of  any
           institution in which the petitioner was
           confined; and, if a disposition was made by a
           municipal court, upon the magistrate of that
           court.


                                  5                           A-5592-15T1
     Neither the Board nor the CA are included on the list of

agencies that must be served.       Their omission from the list is

crucial.   Expungement may be summarily granted if "there is no

objection from those law enforcement agencies notified or from

those offices or agencies which are required to be served under

N.J.S.A.   2C:52-10,"   
N.J.S.A.   2C:52-11,   or   denied   "following

objection of a party given notice pursuant to 2C:52-10," 
N.J.S.A.

2C:52-14(b).   The statute requires records "shall be removed from

the files of the agencies which have been noticed of the pendency

of petitioner's motion and which are, by the provisions of this

chapter, entitled to notice."      
N.J.S.A. 2C:52-15.

     Moreover, clemency applications are wholly distinct from the

criminal records delineated in the expungement statute.       Clemency

petitions are not mentioned among the documents which must be

expunged under 
N.J.S.A. 2C:52-1.       
N.J.S.A. 2C:52-1(a) provides

"expungement shall mean the extraction and isolation of all records

on file . . . concerning a person's detection, apprehension,

arrest, detention, trial or disposition of an offense within the

criminal justice system."   Those criminal records do not encompass

records from a separate clemency application which come after the

disposition of the offense within the criminal justice system.


N.J.S.A. 2C:52-1(b).



                                   6                            A-5592-15T1
      As noted by the State in its brief, "any search of a person's

criminal case history . . . will not reflect if that person applied

for a civil pardon."             
N.J.S.A. 2C:52-1(b) provides: "Expunged

records shall include complaints, warrants, arrests, commitments,

processing records, fingerprints, photographs, index cards, 'rap

sheets' and judicial docket records."

      We recognize 
N.J.S.A. 2C:52-1(b) contains the word "include"

thereby      indicating    that    the    records     it   enumerates     are    not

exhaustive.      However, as noted, clemency applications are not of

the   same    category     of    record   nor    do   they    possess     the   same

characteristics      of    the    sort    of    record     contemplated    by    the

Legislature as subject to expungement.2               Therefore, based on the

plain language of the statute, clemency applications are not

subject to expungement under 
N.J.S.A. 2C:52-1.

      Beyond the plain language of the aforementioned statutes,

B.K. contends the expungement statute should be read to include

the clemency applications maintained by the CA and the Board so

as    to   eliminate      "the    collateral     consequences     imposed       upon

otherwise law-abiding citizens who have had a minor brush with the


2
  "Under the ejusdem generis principle of statutory construction,
when specific words follow more general words in a statutory
enumeration, we can consider what additional items might also be
included by asking whether those items are similar to those
enumerated." Bd. of Chosen Freeholders v. State, 
159 N.J. 565,
576 (1999).

                                          7                                 A-5592-15T1
criminal justice system."    In re Expungement Petition of J.S., 
223 N.J. 54, 66 (2015) (quoting In re Kollman, 
210 N.J. 557, 568

(2012)).   B.K. argues we should "examine [the statute] . . . in

the context of the overall scheme in which the Legislature intended

the provision to operate[.]"   N.J. Dept. of Envtl. Prot. v. Huber,


213 N.J. 338, 365 (2013) (citing Merin v. Maglaki, 
126 N.J. 430,

436 (1992)).   He argues because 
N.J.S.A. 2C:52-1 is ambiguous as

to whether it applies to clemency applications, "the Court may

supply terms omitted by the Legislature if it is clear that they

are necessary to manifest the legislative intent" to allow for the

expungement of his clemency applications.       State v. Froland, 
193 N.J. 186, 196 (2007) (citing Bd. of Chosen Freeholders v. State,


159 N.J. 565, 576 (1999)).

     However, we have refused to extend the expungement statute

to encompass civil records, even if held by state agencies, merely

to eliminate the collateral consequences of criminal convictions.

E.A., 
208 N.J. Super. at 68.    We have held:

           Where the Legislature has been so meticulous
           in establishing what is within the scope of a
           statute, a court is hard-pressed to expand
           that coverage by divining a legislative
           purpose that is more inclusive. It is clear,
           from both the specific provisions of the
           expungement statute and its general tenor,
           that the Legislature intended it to encompass
           only criminal charges and their consequences.



                                  8                           A-5592-15T1
          [In re M.D.Z., 
286 N.J. Super. 82, 86 (App.
          Div. 1995).]

     A "remote factual connection with an arrest [or] a criminal

charge" does not cause civil records to be "subject to [the same]

treatment as . . . criminal [records]."                  Id. at 87.     In M.D.Z.,

we declined to extend the expungement statute to include civil

records, stating: "Indeed, the concern over unwarranted stigma is

at the basis of the expungement statute, yet the Legislature has

not seen fit to extend its effacing effect to civil matters."                   Id.

at 88.

     Although     N.J.S.A.       2C:52-1     requires     the    "extraction    and

isolation"   of    criminal      records     upon   receiving      an   order   for

expungement, for agencies with an administrative component and

responsibilities, not all records are subject to an expungement

order.   See      Zemak,   304    N.J.     Super.   at    384.     Therefore,     in

determining whether the records of a law enforcement agency are

subject to an expungement order, we must review the functional

purpose of the records.          Id. at 384-85.

     Pursuant to the New Jersey Constitution, "[t]he Governor may

grant pardons and reprieves in all cases other than impeachment

and treason, and may suspend and remit fines and forfeitures.                      A

commission or other body may be established by law to aid and




                                         9                                 A-5592-15T1
advise the Governor in the exercise of executive clemency."          N.J.

Const. art. V, § 2, ¶1.

       The   Legislature   designated   the   Board   as   the    entity

responsible for advising the Governor in the granting of clemency

pursuant to 
N.J.S.A. 2A:167-7, which provides:

             The governor, in his discretion, may, prior
             to granting or denying any such application,
             refer the same to the state parole board for
             its investigation, and in such case the board
             shall make a full and complete investigation
             and report thereon in writing to the governor
             with its recommendation in the case.

       Thus, because an application for clemency is one whereby the

petitioner seeks civil relief, it is not the same as the criminal

records created for the criminal justice function.         Although the

Board may exercise law enforcement responsibilities, its function

in the clemency process is a civil, administrative, and advisory

one.   To extend the reach of 
N.J.S.A. 2C:52-1(b) would contradict

the plain meaning of the statute and the Legislature's intent.

       Even where administrative files contain information regarding

criminal proceedings, those records are not subject to 
N.J.S.A.

2C:52-1. M.D.Z., 
286 N.J. Super. at 86-88. Moreover, if an agency

is subject to an expungement order, administrative records that

fall outside the scope of 
N.J.S.A. 2C:52-1(b) are not subject to

the order.     Zemak, 
304 N.J. Super. at 384.



                                  10                             A-5592-15T1
     Furthermore, the legislative history of 
N.J.S.A. 2C:52-1 is

silent and reveals no intent by the Legislature to include clemency

petitions in the records subject to expungement.           Indeed, since

the enactment of the statute, nearly three decades ago, neither

administrative documents nor clemency petitions have been added

or contemplated for inclusion into the language of the statute.

It is for the Legislature to amend the statute to include clemency

applications as records subject to expungement.

     Therefore,   we   do   not   find   the   statutory   language   for

expungements to be ambiguous.       The clemency application records

for B.K. maintained by the Board and the CA are not subject to an

expungement order under 
N.J.S.A. 2C:52-1 based upon the statute's

plain language.   The trial court did not err in denying B.K.'s

motion.

     Affirmed.




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