it traditionally has been construed that the petitioner asks the circuit court for expungement any petitioner who has any prior conviction including if he's been pardoned because he still has that conviction he is in eligible for expungement under subsection the circuit court van exercises discretion consider certain factors and determines whether or not to grant expungement with the enactment of subs ection c is the people's position that the legislature intended to have a governor determine whether or not a particular petitioner should be eligible for expungement so he's been par he still has a conviction technically at least in the case of power and that's the case then the conviction that has been pardoned still stands as a conviction and the governor then is authorized to make a recommendation that are authorized or is eligible for expungement then the circuit court is still free to exercise its discretion in determining whether or not to grant expungement this construction allows the statue to stand pretty much on harming the traditional approach is maintained there is no separation of powers problem if this construction is is that is accepted this construction should be accepted because the language in subsection c the pardons themselves say are bad they are permit ing expungement all of these words are permissive there's no mandatory of language whatsoever this however then combined with subsection d that the language in subsection d clearly states that the circuit court is so still as your side it's discretion and granting explanation even when the case comes before it under a gubernatorial pardon under our position that there is no need to consider the legislative debates to construe the statute because the statute is clear enough on its face from the plain language of the statute but if this court goes forward in does consider the legislative debates and allows the states to the stand as a whole a voice in the constitutional problem there is no separation of problems or separation of powers problem if we take an instruction by howard in holland then that does create  separation of powers problem then we have the governor saying to the circuit court you must rubber stamp my order in this flies in the face of the petitioner filing a petition a petition suggest asking seeking permission it's not i'm here and you have to do what i'm telling you to do a petition petition suggested he's asking if the governor directs the circuit court that he simply must rubber stamp what the governor has done then we have a separation of powers problem because the executive is time the judiciary what to do under the state's construction i wonder there is no separation of powers problem because again the governor makes something makes the petitioner eligible for case the petitioner had been pardoned asked for expungement and expungement was the night because he had a conviction for which he had been pardoned but nevertheless had a conviction and as our position that subsection c remedy is that all she look at subsection c six where there's going to judicial determination of actual innocence of the languages that the court shall order and expungement so there is no question that the legislature knows how to make a mandatory statement used authorized again the governor is permitted on a permissive language no mandatory language so it's our position then that subsection c was simply allowing the governor five zero two two and as a matter of fact i have represented mr dana holland for the past seven years as he's tried to under the effects of his two wrongful convictions that began back in one nine hundred ninety three i'd like to use my time which i know i'm going to keep track of myself to address the main points in our argument regarding the proper construction of section five of the criminal identification act and mr ames wor on behalf of mr howard will address and we bought some of the state's arguments mr holland lost ten years of his life to convictions for true crimes of which he was absolutely innocent in two thousand and three using the results from post conviction d n a testing he was able to win his release from prison and for the five years between then and now he's been trying to cleanse his record all of those convictions and those arrests first he petitioned the governor for a pardon and he was granted the fullest pardon that our governor grants which was a complete pardon based on actual innocence and expressly triggering the provisions of section five of the criminal identification act the the next month after receiving that pardon mr holland filed a petition in the circuit court seeking expungement which was denied because the chief justice of the criminal division in cook county case is going to go back to the circuit court we find ourselves today or you find yourselves to answer the question of whether he's entitled to expungement under five c or whether he has to go through the process all over again offering evidence of his actual innocence and his personal and criminal history as he did during the pardon proceedings the i want to agree with the state is that the best said that under five c which is the substantive provision that governs expungement petitions by pardon me she said that under that section there may be an order and church that's not what it says it says and struck down getting rid of the extra may strip down to his essence it says that a qualifying petition or may have a court order in church so the question is what is the plain ordinary meaning of may have what do you mean when you say somebody may have something when i tell my son you may have a cookie i have intitled my son to a cookie he now has authority to go to the cookie jar and get the cookie and he doesn't have to ask his father or anybody else for permission he's entitled to it and i submit that the same reading should be given here to subsection five well i had this statue was written by the legislature and the legislature in this was then has chosen to set up a scheme under which if the petitioner can come in and demonstrate that he's convinced our chief executive officer of the state of illinois that he's worthy of expungement then he's entitled or it's creating an entitlement and that's what the legislature does the legislature creates entitlements is i don't see a separation of powers here that would that would cut against my position i think that the states argument as expressed in its reach is that  but no i don't see that as a separation of powers argument there's lots of i mean the court has a function here the court has to find this is the right petitioner that the petitioner has in fact received pardons that it's the right kind of pardon that  filed in the right and just as the court is required to take certain actions upon making findings and other situations upon making those findings here the court is compelled to issue an order governor has issued a pardon based on actual innocence and what you well i'm just saying that's the best one instance  i guess i'm not really sure what it is but there is an instance when the governor was pardoned is it creates a cause of action and other than that i think this is yes some i think this is perhaps somewhat unusual i don't know if it's unique it may be that i do know that in an election cases the courts sometimes are called upon to certify elections that's getting way outside of my area of expertise so i'm not sure what's involved in that that's maybe another similar example but in this case again though the statute as written is simply telling the court if you make these findings yes you sh or you entitle the petitioner to an order and i don't think that's at all different from any other instances in which if a court makes certain findings the court is required to take certain action that's what the legislature does and i think there's been other cases i think it was referred to as a situation like that so there are objections that might be valid just because the petition proceed under five c doesn't mean it's proper under five  you know just because they have provision five days says the court may grant turchynov i can't grant a petition for which a petitioner is not eligible under the preceding sections all that it does always has to go back to the stanley howard is a man who was wrongfully convicted of a murder he did not commit this is the final step in his long journey to put finally put to rest the damage that was done to him by detectives at chicago's area two under the command of john birch the state's position is fundamentally flawed because it was rigged it would require a rewriting of the statute it would rule choir the circuit court to become the subject of the stat court and upon serving notice to the state's attorney and various other entities he may have a court order entered under the state's interpretation we would have to rewrite the statute to say that the circuit court may enter an order but the language is the petitioner may have a court order entered circuit courts don't have court orders entered the enter orders and that's one difficulty with the state's position  regard to the separation of power you have any further i do the legislature in many respects governs how expungement singh court or the court records are kept in the criminal identification act there are a number of ways where the court where the legislature dictates to the court you must keep certain records in a certain way you must keep them for certain amount of time you must make them publicly available you must  different if they were telling us not to grant it well the difference is between the governor directing the state the court to do something and the legislature directing the court to consider certain things as to whether the three predicates have been met is that if this is not at all uncommon for example if a jury finds somebody guilty of two murders the court is then bound to there's no discretion there and certainly that doesn't implicate separation of powers concerns the legislature is setting up a circumstance by which the petitioner may come into court under subsection  and i do want to address the legislative history and this court need not reach that issue because the statute says sure the language is clear but if you go back to look at the legislative history the original version of the mentioned that this could pose a problem because anyone who had a pardon would have their records expunged and the legislature then amended the petition amended it and took out and added the requirement that the pardon explicitly authorize expansion and by you but the legislature did not alter any of the other language that came before the language saying that the petitioner may have a court order an sex if there's additional terminations of actual innocence then expungement is mandated the difference here i think is twofold the first is that there is not a judicial determination when there is a good notorious pardon my only response to be at is those are rare circumstances and again circumstances where there's been introduced in the terminations here we're mixing the branches going from the executive to the judicial as opposed to a judicial determination then mandates a particular sentence so if you have a judicial determination i think that makes a difference is within the same branch and also is regarded in everything you've got a judicial determination it's not  hind closed doors there's an open proceeding you know that you can follow any citizen can follow how this determination was arrived at and i think that makes a difference and the other obvious response in this circumstance is  regardless of whether the legislature could have done that although it argued they cannot they didn't again the language in subsection c is all her missing and i certainly apologize for not being exact enough in my language when i was discussing the statute before but it doesn't change my fundamental point that the language in subsection c is permissive the court of the statute uses the word may it uses the word power here are separation of powers issue here is because you have the executive branch making a determination and then telling the to do so granted what they must do whereas the legislature and the other circumstance there's a judicial i think i may have misunderstood her last point because i i think i was going to agree with that that the legislature couldn't have intended for someone like mr holland who has proven his innocence has convinced the governor of his innocence and that he's  through hoops again and do it all over again in the circuit court but i may have misunderstood her but i wanted to just address perhaps another spend on separation of powers here if you know honor's were to and people x from out again versus snyder and the governor's pardon powers are very very broad in illinois and the illinois constitution states that the governor may issue pardons on such terms as he or she sees fit but in this instance both mr howard and mr holland received the most the fullest possible pardon triggering these expungement provisions other states that have looked  at the relationship between expungement and pardons some of them have found that in the case of a full pardon as if these pardons were expungement is automatically a part of that because of course if the intention of the chief executive is to cleanse the person of all consequences of the conviction expungement is part of that and this state under the criminal identification act it is a requirement of  that certain agencies and the courts maintain workers of arrests and convictions and so if it is the intention of the governor to relieve a person all of the legal consequences of his or her conviction only that would include being relieved all of the stigma of being associated with these cases of which the governor has pardoned that person so they had i think it's was possible pardon and i certainly argue as to my specific facts that that applies in this case but you can if you look at the breadth of the power of pardon granted to the governor under our constitution it says that the governor made issue pardons on such terms as he or she sees fit and again the record keeping of the state is a consequence of the conviction so under the constitution  the governor can include that as part of any part if the governor sees fit it would have to be articulated i mean it's not i would necessarily flow with the pardon but if it were articulated that would be a term that the governor sees fit and that perhaps that was something that the legislature recognized in writing the statute as it did  even if the legislature can write the statute this way i think it's very arguable they had a person who received a pardon such as mr holland did could go into court anyway and seek to enforce the pardon and ha