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CONCEALED WEAPONS: FIREARMS:
CRIMINAL LAW:
Eligibility for concealed pistol license of persons whose felony convictions have been set aside
A person convicted of a felony whose conviction has been set aside by order of a Michigan court in accordance with 1965 PA 213, as amended, if otherwise qualified, may not be denied a concealed pistol license under section 5b(7)(f) of the Concealed Pistol Licensing Act. A person convicted of one of the offenses described under section 5b(8) of the Concealed Pistol Licensing Act, whose conviction has been set aside, may nevertheless be denied a concealed pistol license on the basis of information concerning that conviction if the concealed weapon licensing board determines that denial is warranted under section 5b(7)(o) of the Act.
Opinion No. 7133 May 2, 2003 Col. Tadarial J. Sturdivant, Director
Department of State Police
714 South Harrison Road East Lansing, MI 48823
Your predecessor has asked whether a person convicted of a felony whose conviction has been set aside by order of a Michigan court in accordance with 1965 PA 213, as amended, if otherwise qualified, may apply for and obtain a concealed pistol license under the Concealed Pistol Licensing Act.
The Concealed Pistol Licensing Act (CPLA), 1927 PA 372, as amended, MCL 28.421 et seq, authorizes a county concealed weapon licensing board to issue a license to carry a concealed pistol to an eligible applicant. MCL 28.425b. An applicant is required to provide a statement whether the applicant "has ever been convicted" of a felony or a misdemeanor. MCL 28.425b(1)(e). A concealed weapon licensing board "shall issue" a license to qualified persons who have "never been convicted of a felony." MCL 28.425b(7)(f). Thus, it must be determined whether a person who has had his or her felony
conviction set aside by order of a Michigan court is properly considered "never" to have been convicted of a felony for purposes of the CPLA.
The Legislature has addressed this question in the Set Aside Law, 1965 PA 213, as amended, MCL 780.621 et seq. Under section 1 of this law, courts are empowered to set aside the conviction of a person for certain criminal offenses, provided that the person has been convicted only once, five years have expired since the date sentencing was imposed or the term of imprisonment was completed, whichever is later, and the applicant satisfies the other requirements of the act. MCL 780.621. The court may not enter its order setting aside the conviction unless it determines that the circumstances and behavior of the applicant since his or her conviction warrant setting it aside and that such an order "is consistent with the public welfare." MCL 780.621. Once entered, the effect of a court order setting aside a conviction is plainly stated in section 2(1) of the Set Aside Law:
Upon the entry of an order pursuant to section 1, the applicant, for purposes of the law, shall be considered not to have been previously convicted, except as provided in this section [2] and section 3. [MCL 780.622(1); emphasis added.]
Thus, unless one of the exceptions stated in section 2 or 3 of the Set Aside Law applies for licensing purposes under the CPLA, the effect of section 2 is clear and unmistakable and must be given effect. Storey v Meijer Inc, 431 Mich 368, 376; 429 NW2d 169 (1988).
None of the exceptions set out in section 2 implicate the CPLA. Thus, the answer to the question turns on an analysis of section 3.
Subsection 1 of section 3 requires the court to send a copy of an order setting aside a conviction to the arresting agency and the Department of State Police. Subsection 2 then describes certain
obligations of the State Police regarding that order and strictly limits the persons or entities who may have access to that order and the purposes for which such an order may be used:
(2) The department of state police shall retain a nonpublic record of the order setting aside a conviction and of the record of the arrest, fingerprints, conviction, and sentence of the applicant in the case to which the order applies. Except as provided in subsection (3),1 this nonpublic record shall be made available only to a court of competent jurisdiction, an agency of the judicial branch of state government, a law enforcement agency, a prosecuting attorney, the attorney general, or the governor upon request and only for the following purposes:
(a) Consideration in a licensing function conducted by an agency of the judicial branch of state government.
(b) To show that a person who has filed an application to set aside a conviction has previously had a conviction set aside pursuant to this act.
(c) The court's consideration in determining the sentence to be imposed upon conviction for a subsequent offense that is punishable as a felony or by imprisonment for more than 1 year.
(d) Consideration by the governor if a person whose conviction has been set aside applies for a pardon for another offense.
(e) Consideration by a law enforcement agency if a person whose conviction has been set aside applies for employment with the law enforcement agency.
(f) Consideration by a court, law enforcement agency, prosecuting attorney, or the attorney general in determining whether an individual required to be registered under the sex offenders registration act has violated that act, or for use in a prosecution for violating that act. [MCL 780.623(2); emphasis added.]
Significantly, the Legislature has also prescribed criminal penalties for a violation of these provisions:
(5) Except as provided in subsection (2), a person, other than the applicant, who knows or should have known that a conviction was set aside under this section and who divulges, uses, or publishes information concerning a conviction set aside under this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both. [MCL 780.623(5).]
1 Subsection (3), which permits a person whose conviction was set aside to obtain a copy of the nonpublic record upon payment of a fee, is not impacted here and need not be discussed.
A concealed weapon licensing board is not among the agencies or persons to whom the state police may provide access to its nonpublic record of the set aside order and related documents. Moreover, consideration in determining eligibility for licensure under the CPLA is not among the limited purposes for which a set aside conviction may be used. Indeed, the only licensing function for which the Legislature has carved out an exception is one "conducted by an agency of the judicial branch of state government." Words in a statute must be construed according to the common and approved usage of the language. MCL 8.3a. Affording the words of section 3(2) their commonly understood meaning, this exception must be read as written and may not be extended to a concealed weapon licensing board in the executive branch of government. See Taylor v Michigan Public Utilities Comm, 217 Mich 400, 402-403; 186 NW 485 (1922). Moreover, the express mention of one thing in a statute implies the exclusion of all other similar things. Jennings v Southwood, 446 Mich 125, 142; 521 NW2d 230 (1994).
The legislative history of the Set Aside Law is also instructive. When first enacted in 1965, the Set Aside Law consisted of only two sections. Section 2 of the act then provided, like its modern counterpart, that a successful applicant for an order setting aside a conviction "shall be deemed not to have been previously convicted." 1965 PA 213, section 2. Unlike current section 2, however, the original version included no exceptions to this general rule.2 Most of the exceptions contained in current section 3 were added in 1982 by 1982 PA 495. The exception stated in subsection 3(2)(e) was added in 1988 by 1988 PA 11 and subsection 3(2)(f) was added in 1994 by 1994 PA 294. Thus, when the Legislature has seen fit to add to the limited purposes for which a set aside conviction may be used, it has done so, but it has not done so with regard to licensing purposes under the CPLA.
2 Also, only a person whose crime was committed before he or she reached 21 years of age could apply for a set aside under the original act. The 1982 amendment extended the law's reach beyond persons who made "one youthful mistake" to everyone, regardless of age. House Legislative Analysis, HB 5229, H-3, September 21, 1982.
The Attorney General has considered the meaning and effect of sections 2 and 3 of the Set Aside Law and has construed that law as requiring that a person whose conviction has been set aside by a court is deemed not to have been previously convicted of the crime, except for those express limited purposes identified in the statute. See, e.g., OAG, 1973-1974, No 4774, pp 53, 55 (June 15, 1973); OAG, 1977-
1978, No 5349, p 568 (August 9, 1978); OAG, 1993-1994, No 6780, p 89 (January 4, 1994). These
opinions also construed the phrase "purposes of the law" contained in section 2(1) of the Act to apply to statutes of this state. OAG, 1973-1974, No 4774, and OAG, 1977-1978, No 5349, supra. See also McBride v Callahan, 173 Wash 609; 24 P 2d 105, 112 (1933). Thus, as the Set Aside Law contains no exceptions relevant to licensing under the CPLA, a person whose felony conviction has been set aside may be considered as "never having been convicted" for purposes of applying for a concealed weapon license and may not be denied a license to carry a concealed pistol under section 5b(7)(f) of the CPLA. MCL 28.425b(7)(f).
Under the Set Aside Law, the Department of State Police is required to retain a nonpublic record of the order setting aside a conviction and shall make it available to the courts and court agencies, law enforcement agencies, a prosecuting attorney, the Attorney General, or the Governor for the specific purposes enumerated in that statute. MCL 780.623(2). Section 5b(8) of the CPLA similarly requires the Department of State Police to maintain certain conviction information:
Upon entry of a court order3 or conviction of 1 of the enumerated prohibitions for using, transporting, selling, purchasing, carrying, shipping, receiving or distributing a firearm in this section [section 5b] the department of state police shall immediately enter
the order or conviction into the law enforcement network. For purposes of this act, information of the court order or conviction shall not be removed from the law enforcement information network, but may be moved to a separate file intended for the
3 The court order referred to here is one that has the effect of removing or limiting certain of a person's firearm rights as enumerated in section 5b(7)(d) of the CPLA, MCL 28.425b(7)(d). This section does not refer to orders setting aside felony convictions.
use of the county concealed weapon licensing boards, the courts, and other government entities as necessary and exclusively to determine eligibility to be licensed under this act. [MCL 28.425b(8). Emphasis added.]
The "prohibitions" referred to in section 5b(8) above are enumerated in section 5b(7) of the Act.4 Section 5b(7)(d) refers to certain court orders that would prohibit a person subject to the order from obtaining a permit to carry a concealed pistol. In addition, section 5b(7)(e) refers to section 224f of the Penal Code, MCL 750.224f, as a provision that prohibits a person from "possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm." MCL 750.224f removes these gun rights from a convicted felon for a period of at least three years, depending on the crime committed. Even though persons described in these sections may later have their gun rights restored or convictions or other orders set aside, section 5b(8) nonetheless prohibits the State Police from removing the information from the Law Enforcement Information Network, but allows the Department to move the information "to a separate file intended for the use of the county concealed weapon licensing boards, the courts, and other government entities as necessary and exclusively to determine eligibility to be licensed under this act." Thus, the court orders and convictions referred to in section 5b(8) of the CPLA are those that the Legislature has determined bear on the ability of persons to exercise their firearm rights.
Reading the Set Aside Law and the CPLA together, the question arises whether the State Police may divulge information concerning a set aside conviction to a concealed weapon licensing board, and whether the board may use such information, without violating sections 3(3) and 3(5) of the Set Aside Law. In that regard, statutes should be harmonized and meaning and effect given to each of them wherever possible. Nelson v Transamerica Ins Services, 441 Mich 508, 513; 495 NW2d 370 (1992).
The Legislature has provided guidance in addressing this issue in section 5b(7)(o) of the CPLA. This section provides the following among the several circumstances that must exist for a concealed weapon licensing board to issue a license:
Issuing a license to the applicant to carry a concealed pistol in this state is not detrimental to the safety of the applicant or to any other individual. A determination under this subdivision shall be based on clear and convincing evidence of civil infractions, crimes, personal protection orders or injunctions, or police reports or other clear and convincing evidence of the actions of, or statements of, the applicant that bear directly on the applicant's ability to carry a concealed pistol. [MCL 28.425b(7)(o).]
Under this section, evidence of a crime that bears directly on the applicant's ability to carry a concealed pistol is appropriately considered by the boards.
The reading of sections 5b(7)(f), 5b(7)(o), and 5b(8) of the CPLA and the Set Aside Law that best harmonizes them all and gives effect to each is one that allows the State Police to share with concealed weapon licensing boards only that information pertaining to set aside "conviction[s] of 1 of the enumerated prohibitions for using, transporting, selling, purchasing, carrying, shipping, receiving or distributing a firearm in [section 5b]." This conviction information, in turn, may be used by concealed weapon licensing boards in making the determinations required under section 5b(7)(o) of the CPLA, but may not be used under section 5b(f).
This interpretation gives effect to the Legislature's unmistakable intent to make information "that bear[s] directly on the applicant's ability to carry a concealed pistol" available "for the use" of the gun boards "as necessary and exclusively to determine eligibility to be licensed" under the CPLA. MCL 28.425b(8) and MCL 28.425b(7)(o). It is also consistent with the provision of the CPLA that requires an applicant to authorize the licensing board to access any records, including otherwise privileged
4 No other provisions of section 5b can reasonably be construed as enumerating the "prohibitions" described in section 5b(8).
information, that may pertain to the applicant's qualifications to carry a concealed pistol license. MCL 28.425b(c).
It is my opinion, therefore, that a person convicted of a felony whose conviction has been set aside by order of a Michigan court in accordance with 1965 PA 213, as amended, if otherwise qualified, may not be denied a concealed pistol license under section 5b(7)(f) of the Concealed Pistol Licensing Act. A person convicted of one of the offenses described under section 5b(8) of the Concealed Pistol Licensing Act, whose conviction has been set aside, may nevertheless be denied a concealed pistol license on the basis of information concerning that conviction if the concealed weapon licensing board determines that denial is warranted under section 5b(7)(o) of the Act.
MIKE COX
Attorney General
