It’s not every day that you get every former living governor of New Jersey to agree on an issue — and agree to file an amicus brief in a case.
That was just one of the reasons that Bill Palatucci and Guillermo Artiles of McCarter & English recently were able to win a case before the New Jersey Supreme Court that argued that the state constitution gives the governor the sole power to pardon, and that the courts must accept such a pardon as full, free and clear.
The case involved the ability of someone with criminal convictions who is pardoned to be able to have those convictions expunged even though a statute bars such relief for those with more than one conviction. In other words, the governor’s ability to grant a pardon can override the Legislature’s power to regulate expungements.
The Supreme Court reversed the judgment of the Appellate Division granting the petition for expungement and remanded the matter to the trial court to enter an appropriate form of order.
“The case examined the pardon power afforded to the governor, and how far does that power go,” Artiles said.
Artiles said a clarification was needed.
“Failure to rectify the errors below would not only have created serious tension between the separation of powers afforded by the constitution, but also weaken the governor’s pardon power and give the Legislature abilities over executive clemency not contemplated by the constitution,” he said. “Such a decision is likewise contrary to the universal interest in criminal justice reform in New Jersey.”
Petitioner Tommy Odom, represented by Palatucci, who filed the petition when he was an attorney at the Gibbons law firm, pleaded guilty to aggravated assault in May 1994 and to possession of a controlled dangerous substance in May 1996. Jennifer Hradil and Brendan Kelly of Gibbons continued to represent the petitioner when the case was argued in front of the Supreme Court in October 2020, where Hradil handled the oral arguments.
“The Supreme Court’s decision defines the legal effect of a gubernatorial pardon and rejected the lower courts’ application of the expungement statute to deny petitioner the full benefits of the pardon he received,” Hradil said. “Gibbons is pleased that the Supreme Court has unanimously agreed that an applicant may not be denied an expungement based on pardoned convictions and that their client — who has dedicated himself to community service and literally transforming his life in the years after he left prison — can finally benefit from an expungement of his criminal records.”
In January 2018, then-Gov. Chris Christie gave Odom a full pardon for his prior convictions. Odom attempted to move forward and make good on his executive clemency by petitioning for an expungement of his now-pardoned convictions. Odom’s expungement was denied, however, as a result of a New Jersey law limiting expungements for people convicted of multiple offenses.
The courts below reasoned that Odom’s pardon did not allow for expungement of his prior convictions, because he had more than one statutorily allowed conviction (two separate crimes in multiple years). The Supreme Court disagreed with the lower courts and said the gubernatorial pardon power allowed for the legal disabilities associated with the two convictions to be removed via expungement.
Nine living governors — everyone from Jim Florio to Christie — signed onto the brief.
