Trouble in North Platte

[Ruffled]

Is a set aside of a 29-year-old conviction meaningless?

http://www.northplattebulletin.com/index.asp?show=news&action=readStory&storyID=22505&pageID=3

http://www.northplattebulletin.com/index.asp?show=news&action=readStory&storyID=22541&pageID=3

[NE Bull]

WOW  With just the info here, sounds like the nullification was hunky dorry till somebody cried wolf..

[Ross Berck]

Im so tired of hearing these types of abuses by law enforcement.   I remember something like "judged by the content of you character rather than the number of guns or amount of gun powder that you own"...  So was the "machinegun" registered and a problem for a municipality or what? 

[Ross Berck]

Interesting if you click the link for the nullification it says "all civil disabilities and disqualifications imposed as a result of the conviction be removed the same as though a pardon had been issued"
 Note to LE and news people...quit using the mere possession of firearms as a "scary" news item.  There are many firearm owners out there and we dont like being made out as bad guys on the sole mention that we have firearms...

[Dan W]

Right now the Legislature's website will not display the chapter 29 laws on pardons, but the other day I was looking at this issue in another vein, and it as my understanding that only the pardons board can restore civil rights via the process laid out in chapter 29.

And that I have been told by others that have been through the process, you must specifically request that one's 2nd amendment right also be restored.

My thought is that the judge in this case may not have exactly followed current law, but I have no clue when the pardons process was last changed.

[Dan W]

I did find this...

The Nebraska Pardons Board was created through Article IV, Section 13, of the Nebraska Constitution. The Board is comprised of the Governor, the Secretary of State, and the Attorney General. The Board is not governed by the Nebraska Administrative Procedures Act, and its constitutional powers cannot be limited or modified by any act of the legislature or of the Nebraska courts. The Board has the power to remit fines and forfeitures, grant respites, grant reprieves, grant pardons, and grant commutations in all cases of conviction for offenses against the laws of the State of Nebraska, except for treason and cases of impeachment.

 The Board of Pardons does not have authority to act in such cases where the offenses are against a city municipal ordinance code or the U.S. Government; reference State of Nebraska Constitution Article IV, Section 13 and Nebraska Statutes 83-170 and 83-1,126.


It is the usual practice in the granting of pardons to hear only those misdemeanor cases where three (3) years has elapsed and those felony cases where ten (10) years has elapsed upon completion of sentencing, including any probation, supervised release, or parole term, with no further law enforcement contacts or court convictions within the waiting period.


In the state of Nebraska there are no laws or statutes that allow a complete expungement of ones criminal history. Any law enforcement contact, arrests, and convictions will remain on ones history forever. However, you can file an application to the Nebraska Board of Pardons requesting a pardon be granted on your convictions. If a pardon is granted to you, it would be indicated on your history record. It is recommended that a copy of any pardon granted be presented to any prospective employers, schools, etc.

Please feel free to contact this office if you have any questions or refer to the Pardon Boards website: www.pardons.state.ne.us.
Sonya Fauver

http://www.pardons.state.ne.us/content/new-application.pdf

[Dan W]

http://www.pardons.state.ne.us/faq.html

If an individual has had a conviction “set-aside” by a judge or court of law, is that equivalent to the receipt of a pardon?

 

The answer from the Nebraska Supreme Court is “no”.  The court issued an opinion in State v. Spady (264 Neb. 99) on June 14, 2002 that states that a set-aside “…does not result in the granting of a pardon.  Nor does it allow a court to grant a “partial pardon.”  The court is permitted to set aside convictions, but certain civil disabilities are exempted from restoration”. 

[NE Bull]

I believe in order to belong to these pyrotechnics clubs, one must have ATF permit(s), (a friend at work just went thru all that) and the story mentions the fella having a Firearm purchase permit.  So how can these be valid, yet the felony still stand?
And he had helped local law enforcement with the handling of explosives? 

Also, if he was 'picked up' on a terroristic threat, I would love to see the reasonings behind the thourough search of his home.  Something sounds fishy in north river land.!

[Ruffled]

Interesting if you click the link for the nullification it says "all civil disabilities and disqualifications imposed as a result of the conviction be removed the same as though a pardon had been issued"
 Note to LE and news people...quit using the mere possession of firearms as a "scary" news item.  There are many firearm owners out there and we dont like being made out as bad guys on the sole mention that we have firearms...

Yep. It's my thinking that at the time of the set aside, in 1985, the judge in the case DID have the authority to word that set aside the way he did. However, the current form for the order for a set aside from the Nebraska Supreme Court's website still does not preclude the restoration of civil rights (including the right to bear arms) from applying when a set aside is granted.

http://www.supremecourt.ne.gov/forms/county/CC-6-11-2.pdf

The current law regarding set asides and which rights it does not restore:

http://nebraskalegislature.gov/laws/statutes.php?statute=29-2264

Since the right to bear arms is not excluded, it looks to me like the Pardon Board is trying to do a power grab.

If you read the complete Spady decision by the Nebraska Supreme Court, it affirms the constitutionality of 29-2264 (regarding set asides).

http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bbadc&searchTerm=egdQ.NiCa.aadj.ebYb&searchFlag=y&l1loc=FCLOW

[Ruffled]

http://www.pardons.state.ne.us/faq.html

If an individual has had a conviction “set-aside” by a judge or court of law, is that equivalent to the receipt of a pardon?

The answer from the Nebraska Supreme Court is “no”.  The court issued an opinion in State v. Spady (264 Neb. 99) on June 14, 2002 that states that a set-aside “…does not result in the granting of a pardon.  Nor does it allow a court to grant a “partial pardon.”  The court is permitted to set aside convictions, but certain civil disabilities are exempted from restoration”.

However, the right to bear arms is not one of those civil disabilities which are exempted from restoration by 29-2264.

It's a devious quotation, actually. Stenberg is attempting to twist in his favor a Nebraska Supreme Court decision which ruled against him.

Who sits on the Pardon Board? The Governor, the Nebraska Secretary of State, and the Nebraska Attorney General.

[AAllen]

The statute on setting aside a conviction has changed 11 times since he had his conviction set aside.  My guess is that when this was set aside the judge had the power to restore his civil rights and did.  Currently the court does not hold that power but since his case was nullified under the old law his restoration should hold.

Unfortunately when these things change and some time goes by it can become a legal mess for those involved.  Most of the time there is no issue but when there is it takes some time for the attorneys to sort it out.  Once all the research gets done my guess is that this will get dropped, but that is my guess and I am not a Lawyer.

[Ruffled]

The statute on setting aside a conviction has changed 11 times since he had his conviction set aside.  My guess is that when this was set aside the judge had the power to restore his civil rights and did.  Currently the court does not hold that power but since his case was nullified under the old law his restoration should hold.

Unfortunately when these things change and some time goes by it can become a legal mess for those involved.  Most of the time there is no issue but when there is it takes some time for the attorneys to sort it out.  Once all the research gets done my guess is that this will get dropped, but that is my guess and I am not a Lawyer.

I'm aware of the numerous changes. They're listed in the current law. But the fact remains that set asides still are supposed to restore the right to vote, the right to sit on a jury, the right to hold public office, and the right to bear arms, since these rights are not specifically excluded from the restoration of rights under a set aside AS IT WOULD BE ISSUED NOW.

Under the current http://nebraskalegislature.gov/laws/statutes.php?statute=29-2264 , Section 4:

(4) The court may grant the offender's petition and issue an order setting aside the conviction when in the opinion of the court the order will be in the best interest of the offender and consistent with the public welfare. The order shall:

(a) Nullify the conviction; and

(b) Remove all civil disabilities and disqualifications imposed as a result of the conviction.

To correct the (at least) perceived unconstitutionality of a set aside vs. a pardon, the legislature has (in Section 5 of the statute) enumerated which rights a set aside does not restore, and for which a pardon must be obtained, but the right to bear arms is not one of the rights not restored under a set aside of conviction under current law.

[AAllen]

Ruffled, I think you need to reread section 1 of 29-2264, it specifically says the restoration of all civil rights other than the right to vote must be done through a pardon,

(1) Whenever any person is placed on probation by a court and satisfactorily completes the conditions of his or her probation for the entire period or is discharged from probation prior to the termination of the period of probation, the sentencing court shall issue an order releasing the offender from probation. Such order in all felony cases shall provide notice that the person's voting rights are restored two years after completion of probation. The order shall include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.

Edit to add:  The difference in how we are reading this law is the same reason that the pardons board would see things one way and the court another.  The winning argument would be which portion of the statute in question is newer, and which way would the court rule?  Of course that would be only for a particular case because the next case they could go a different direction.

[Ruffled]

Ruffled, I think you need to reread section 1 of 29-2264, it specifically says the restoration of all civil rights other than the right to vote must be done through a pardon,

(1) Whenever any person is placed on probation by a court and satisfactorily completes the conditions of his or her probation for the entire period or is discharged from probation prior to the termination of the period of probation, the sentencing court shall issue an order releasing the offender from probation. Such order in all felony cases shall provide notice that the person's voting rights are restored two years after completion of probation. The order shall include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.

Edit to add:  The difference in how we are reading this law is the same reason that the pardons board would see things one way and the court another.  The winning argument would be which portion of the statute in question is newer, and which way would the court rule?  Of course that would be only for a particular case because the next case they could go a different direction.

But the right to vote is automatically restored. Section 1 says that an offender shall be given information on applying for a pardon, but it doesn't say civil rights can be restored exclusively via the pardon process when a person hasn't been sentenced to incarceration (i.e., was sentenced to probation or a fine or both). It doesn't really matter which portion of the statute is newer because Section 2 is still a part of the statute. If they mean to make a set aside worthless, then strike that whole section and make the law read the way the pardon board wants them to make it read. Otherwise, a set aside is still law, and restores all civil rights except the ones enumerated in the statute.

I linked to the current order that a judge would sign, a form up on the Nebraska Supreme Court's website. This order would be submitted with a petition for set aside of conviction if you were petitioning the court for a set aside TODAY.

http://www.supremecourt.ne.gov/forms/county/CC-6-11-2.pdf

set aside shall remove any and all civil disabilities and
disqualifications allowed by law and imposed as a result of those convictions.

The right to bear arms is still one of those rights "allowed by law" to be restored by this order (again, referring back to 29-2264 and the enumerations of those rights which are not allowed by law to be restored with a set aside).

[AAllen]

Why what part of the Statute is newer is important is that when there is a conflict in the law, as there is here, the newest addition wins.

[Ruffled]

Why what part of the Statute is newer is important is that when there is a conflict in the law, as there is here, the newest addition wins.

It's all still law. There is no conflict. Section 1 doesn't say that a pardon is the only way to restore some of your civil rights.

The order shall include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.

As a matter of fact, the part that says "including application to and hearing by the Board of Pardons" is redundant because that's the only way the pardon process works. Now, if someone who has a set aside applies for a pardon, "The Nebraska Board of Pardons has the free discretion to grant or deny a pardon of a lawfully imposed sentence for any reason or no reason at all."

So, if a person with a valid set aside subjects himself to the pardon process, it can actually result in him losing rights that he currently holds with his set aside.

[Ruffled]

The difference in how we are reading this law is the same reason that the pardons board would see things one way and the court another.  The winning argument would be which portion of the statute in question is newer, and which way would the court rule?  Of course that would be only for a particular case because the next case they could go a different direction.

This has already been settled by the Nebraska Supreme Court in the Spady case, in which the set aside law was found to be constitutional.

The Pardons Board is attempting to place itself above the legislature, the courts, and the Nebraska Supreme Court. It's a wrongheaded position.

I don't see how the Pardons Board can revoke something that was granted 27 years ago, but that appears to be what they've done here.

[AAllen]

Ruffled 29-2264 was changed in 2002, most likely in part because of the Spady case, to limit the set aside.  This was again edited in 2005 to further emphasize this limitation.  Having a conviction "set aside" now seems to only include the restoration of voting rights after 2 years, for other civil rights you would need to go the pardon route.  Since this is newer law it over rides the older portions that you are quoting from section 4. 

But for the purposes of this case the conviction was set aside before this change so his rights should be restored, but with the confusion created by the changes and when they happened it will need to be reviewed carefully by the prosecuting attorneys office in discussions with his attorney, and may even require a formal opinion from the AG's office.

It's all still law. There is no conflict. Section 1 doesn't say that a pardon is the only way to restore some of your civil rights.

Since section 1 says that your right to vote is restored 2 years after the completion of probation when a conviction is set aside, and that "other civil rights" are restored by the pardons board, then that would be interpreted as the only right restored by having a conviction set aside is the right to vote since there is a different method provided for the further restoration of rights.  I will note again that this would need to be reviewed by the Supreme Court, and does not apply to the case at hand since it was set aside under the old law.

[Ruffled]

I believe that you are mistaken about set asides no longer restoring any civil rights.

According to Section 1 of 29-2264, it doesn't take a set aside to regain the right to vote. That is automatic two years after the end of probation.

The law is in the process of being updated again this year (the first reading was on January 5, 2012), and the language regarding set asides is unchanged, still allowing the restoration of all civil rights not specifically excluded within Section 5 of the statute.

The form for the court order regarding a set aside for the presiding judge to sign is current as of November 2011, and states that it restores civil rights "allowed by law." This would be all those rights not precluded from exclusion by 29-2264.

http://www.supremecourt.ne.gov/forms/county/CC-6-11-2.pdf

Take a look at the date on the form.

Since it doesn't take a set aside to regain the right to vote, what good would a set aside be if it restores NO civil rights?

[AAllen]

I guess that I should also note that the Nebraska Supreme Court has a history of ignoring Legislative intent and the law as written and doing what they want, which usually gives them the power.  For an example look at our Self Defense Laws and how they state what the person defending themselves feels is a threat but the court adds what a reasonable person would find threatening.

My guess is that the pardons board reads things the same way, where it gives them the power.