Announcer: SJC-13153, the matter of an impounded case.
-: Okay, Attorney Quirion.
Oh, you're on mute.
-: I apologize for that.
Good morning chief justice and justices of the court.
My name is Pauline Quirion,
and I represent the appellant in this matter.
This case presents the question
of whether the trial court abused its discretion
in denying expungement of the appellants,
decriminalized marijuana charges,
and in finding that expungement
was not in the best interest of justice
under section 100K for chapter 276.
Simply put, this is a case where things went terribly wrong
as to the judge's interpretation and application
of the expungement law in several ways,
first while a judge has discretion in applying the law,
that discretion is not without limits,
here the judge's denial of the petition
was against the weight of the evidence,
and the arguments made below,
which were all in favor of expungement,
nothing was said or presented below or even hinted
to the possibility that there would be a benefit
that would flow from preserving the record
or that preserving the record
would advance the interest of justice,
in fact, the petitioner's attorney explained to the judge
that records would be destroyed if they were expunged,
and there was no opposition
from the assistant district attorney in the courtroom
and on upon the reconsideration motion,
the district attorney's office filed
an expungement specifically stating that it was unjust
to maintain the record when the underlying offenses
were no longer a crime.
Second, the judge's written findings of fact also fell short
and reflected a misinterpretation of the law,
the judge's findings denying the expungement
only found that destruction of the records
was not in the interest of justice,
rather than weighing the facts of the circumstances
or the arguments presented at the hearing
on reconsideration,
the judge used the fact that an order granting expungement
of records results in destruction
or a ratio of records as a basis,
all by itself for a final.
-: Can I ask a question about,
this involves an intersection of
convictions for marijuana with other offenses, right?
The marijuana offense obviously is no longer an offense,
but the others are,
he gave a false name to the place,
he's driving with a suspended license,
and then the judge uses this term,
the court does not find that it is in the interest
of justice to destroy,
he answered all records relating to these charges.
I'm just wondering is the fact
that we've got an intersection
of criminal behavior here matter,
because I mean, it's not as if the judge
just had a marijuana offense, the 2003 one for example,
and he refused to expunge that one,
but rather, the sort of an integration
of criminal offenses here.
-: No, that shouldn't affect whether a petitioner
is entitled to relief,
I mean, the legislature specifically
carved out six categories of situations
where someone could expunge a record,
including decriminalized defenses,
it didn't say,
and if you've got other cases on your record,
you can expunge,
and if that.
-: By removing the marijuana,
I'm not disagreeing with you necessarily,
but it just seems to me it's different
because when you remove the marijuana offense from the,
you know, the incident,
it changes it in some respect,
you got a full picture of what was going on here,
so I'm just trying to understand,
does that give the judge some discretion
that you have to address?
-: Well, I think there are two points
that can be made that I think would resolve that issue.
Number one, the expungement statute
doesn't just provide for destroying records,
it also provides for a ratio of records,
so what can happen is, they can simply erase or redact,
the expunged defense from the records,
which would leave the other offenses intact,
and then in response to the issue of the other offenses
that were on his record,
it's relevant here that in this situation,
the petitioner had sealed all of his records,
so under the statute, these other offenses,
technically speaking because they were sealed,
in some courts what they'll do is,
they'll put a piece of paper covering it up,
and, you know, in terms of the,
to block it out,
but in this instance they were sealed,
so they weren't relevant to the proceeding,
and section 100A chapter 276 specifically says that,
sealed records are not admissible at a later hearing,
unless it's on a subsequent offense
at the time of sentencing,
and then there's also a special exception,
if you were in the probate family court
or in the two and nine, eight proceeding,
the district attorney or counsel for plaintiff
could file a motion to get access to the record,
and then there's an in-camera review
and a determination of relevancy,
and there's a whole other proceeding.
But the fact that there may have been other things
on his record is not an impediment
to expunging his,
you know, his records.
-: I know it's not an impediment,
but, you know, it's an abusive discretion standard
we're dealing with,
and it just, it complicates the analysis,
I'm not saying it prevents him, but, or her from doing that,
but, you know, we have to find it's an abuse of discretion,
which it's, you know, different.
-: I think.
-: Before you answer Justice Kafker,
can I piggyback off of that.
Are we hampered here by not,
I don't believe that CORI is in the record here.
Am I right about that?
-: Well, what happens is when there is a court proceeding,
they tend to destroy the CORI,
but the facts of the case were that the.
-: No, no,
in our record dependence,
because the reason why I'm asking that is,
to Justice Kafker's point,
you made the point about a ratio.
If I remember the pleadings correctly,
you're relying on another statute for that, right?
Where there's co-defendants,
and in that they could redact parts of,
they could redact parts of the order
that had to do with just the petitioner,
but not the other co-defendants,
that's not actually in this statute, right?
-: The statute is silent on a ratio,
but I think in applying the statute
common sense is going to apply,
and specifically the section 100A prohibits
the use of other offenses in any kind of proceed,
and basically other than a subsequent sentencing event
that happens after a subsequent conviction,
so in this instance,
I don't think that that should be a reason
for denying the petition.
And as I started to say, the.
-: Let me finish my point,
because,
although it might be a qualifying reason for expungement
that this crime has now been decriminalized,
the statute also then gives the judge,
the discretion to deny the petition,
if it's not in the judges,
consider judgment in the best
in the interest of justice,
so to the extent that the petitioner is saying,
I'm suffering all of these harms,
and the judge has in front of them a CORI,
that shows all of these other crimes
that are not sealed or not expunged
that detract from that,
right?
That the idea here is that there are still
going to be the same kind of considerations
that you be suffering
if you've got all of these other charges
that are in front of the judge that we don't know,
the record doesn't seem to indicate
whether we know that or not.
-: Well, I mean there are several ways to run a CARI
and in a sealing or even an expungement situation,
the CORI that's run,
shouldn't be reflecting cases that are sealed,
because those are barred from consideration
under section 100A.
-: So I'm saying, we don't know what's in front of the judge,
so isn't a remand?
The proper disposition here.
-: I don't actually think that,
I think everything is on the record
and it's basically documentary evidence,
so, this court actually could address the problem,
but more importantly,
I would hope that this court would clarify
the best interest of justice standard,
which is not defined in the statute,
and here what happened was, the judge just found that
there was a destruction of the records
that was not in the interest of justice,
rather than weighing the facts of the circumstances
of the arguments that were presented,
and then judge use the fact that
an order granting expungement
results in destruction of the records,
that's the basis all by itself for finding that
expungement was not in the best interest of justice,
this was essentially an objection
to the very purpose of the statute,
which precisely provides for expungement
rather than a weighing of the specific facts
and considerations for or against expungement of the record,
so I would hope at a minimum,
that this court would clarify that
the fact that the records maybe destroyed
or erased as a result of expungement that in and of itself,
is not a reason for denying expungement,
and in this case,
there was ample evidence in favor of expungement,
in this situation the cases were old,
that the petitioner had been denied employment,
and fundamentally, if you think about section 100K,
the interest of justice by necessity
implies that there has to be some fairness
in maintaining the record that advances
or promotes the interest of justice,
and as the district attorney indicated
in his ascent,
in her ascent rather,
there is an inherent in fairness in maintaining a record
when the underlying offense has been,
is no longer a crime.
And in this instance,
if you look at all the categories under section 100K,
it's also important to realize the legislature said that
you don't even have to have a hearing,
so it wasn't anticipated these cases would be simple enough,
that they would be done on the papers,
and I think it's important that
in terms of a judge hearing a case,
they have to weigh the advantages and disadvantages
of either maintaining the records or expunging the records,
and then also the effects on a particular petitioner,
and I think in particular,
what was raised at the argument was that
the race implication involved in the case,
because if you're police now have access
to Pouri in their cruisers,
and there is a problem in society with black people,
in particular being stopped by the police,
so he had articulated that concern,
so to some extent, expungement can be used as a way
to mitigate racism and a lot of the problems
that people encounter in terms of police stops,
and the other thing for this court to consider is,
the effect of denying the expungement,
which not only is inconsistent with the purpose
of the statute,
but if you're unemployed, like the petitioner in this case,
you wanna apply for lots of jobs
and you're gonna be foreclosed from federal employment
and if you get your expungement petition allowed,
then the order is sent to the FBI,
asking them to also expunge their records,
and there's no federal law that allows you
to seal or expunge records,
there are many.
-: Can I ask,
so give me an example of what you would consider
best interest of justice in keeping a record,
or are you just saying that every one of these things
should be expunged regardless.
Give me an example that you want us
to define best interests,
give me one where you find,
one where it should be preserved.
-: Well, I think this is exactly the case
where it shouldn't be preserved.
-: Try my question just once,
give me an example,
where it would work against the view
that every expungement should be allowed.
-: Every case is gonna be grounded in a particular facts,
I think you're hard pressed when you have a situation
involving decriminalize records
to say it's not in the interest of justice to expunge,
but there might be a situation.
For example, if somebody were a fugitive from justice,
or if in the course of the proceedings,
the person had an outburst
because they were inpatient there,
it took a long time to call their case,
I mean, there may be factual circumstances,
but they certainly don't exist in this case,
so it's a little hard to speculate,
in particular because the offense itself is decriminalized,
and as the district attorney's office pointed out,
there's no utility to these cases,
because the offense.
-: You want us define best interest,
give me a definition of best interests
that is applicable there.
-: Well, I think,
first off, I think with the definition of the best interest,
the court should first look at the fairness
of maintaining the record,
versus the fairness of granting the expungement,
so one of the big questions is,
does maintaining the record,
advance or promote the interest of justice,
and the same with expungement,
does it promote or advance the interest of justice?
So here, in terms of decriminalize offenses
or the other categories under section 100K,
these are all basically innocent people
or people who shouldn't have been prosecuted,
and then you have the instance where the offense itself
is decriminalized,
so, the first,
so I think the first prong of the test would be,
the fairness of maintaining the record versus expunging it,
and then the benefits and the disadvantages
related to maintaining the records
versus expunging them,
and I think, it's not that I'm trying
to evade your question,
it's just I'm hard pressed to come up with any reason
why one would maintain,
you know, a decriminalized offense,
because it has really no utility,
and then I think the other important thing
for the court to also consider is the whole body of law,
the legislature has gone to great extents
to give people second chances,
and as this court articulated in the pond case,
any case or criminal charge, regardless of what it contains,
it can be an impediment to housing and also employment,
and the court also said there's a compelling interest
on behalf of the Commonwealth,
that people will be reintegrated into society can get jobs.
So, expungement deals with the unfairness
of the situation on its face,
when you have an offense that was decriminalized,
but also.
-: I'm gonna say that your time's up,
and we'll go ahead and go to Attorney Doherty.
-: Thank you.
Kimberly: Thank you.
-: Chief justice Budd,
and may I please the court Andrew Doherty
for the Commonwealth.
I'm a little unclear how many of these cases
the court has reviewed,
so I may start with very general principles first,
and in defining what the best interests
of justice standard is,
I think the best place to look is,
the Boston police commissioner case of 1978,
where Justice Leacos describes the two interests at stake,
when a juvenile looks to expunge police records.
Now there's significant differences between that case
and a statutory scheme that describes expungement,
but the interest that Justice Leacos described,
seemed very relevant to the question
of whether expungement is in the best interest of justice.
So my first principle starts there,
the second general theme that I'd asked the court to adopt
when defining what the best interests is.
-: Mr Doherty why don't you remind us
what those two interests were,
that describe.
-: The first is,
what harm might befall the petitioner,
as a result of the existence of this record,
and we'll be able to talk about some of the questions
that both you and justice Georges asked
when I sort of get to that point.
But the second point is,
what is the utility to the public interest
caused by the ongoing maintenance
and access to these records?
-: Okay, so let me take those two interests,
and again, it becomes more complicated
when we have someone with another record
and the other record arises out of the same offense,
a similar incident, right?
The 203 one is a separate one,
but the second one, the giving the false name,
the driving with a suspended license,
it's all the same event where they detect the marijuana,
right?
-: It is, and.
-: Could you just apply then Justice Leacos's two,
so what's the interest,
what harm might befall the petition?
So here we've got a petitioner with a record already,
he has another record,
so do we measure the harm in terms
of someone without a record versus a record,
or is that a different inquiry?
-: So,
there's a couple questions,
I think we should start with the fact
that I think it's ambiguous that
you could divorce the two criminal cases
when there's a mixture within a docket, right?
Because this court record as a whole has both expungeable
and not expungeable offenses described in there.
So there is some ambiguity that I described in my brief
about the conflict there,
but secondarily, I think,
when the district attorney,
and this gets to,
when we talk about the utility of that record,
when the district attorney has sense to a petition,
as he did in this case or even doesn't object,
what we are saying is this record has no utility
to the public interest,
and.
-: I mean, you know,
with all due respect,
if we had a different DA's office,
they might be arguing differently,
so I'm a little confused how far we go with that,
you know.
-: And I don't wanna jump ahead,
but I think that is an interesting question,
I also think with many of these cases,
it's gonna be hard pressed to come up with a basis
for why an objection is warranted in many of these cases,
certainly in cases,
several.
-: I'd be confused about coming up with a justification
of preserving 2003 marijuana possession alone,
I get it, but this is a little harder than that,
giving a false name to a cop,
driving with a suspended license,
those are more serious offenses,
and they're integrated here with the marijuana.
-: I agree with you,
I would also say that those offenses are not eligible,
and the court records and CORI records
and probation records are not eligible for expungement
for those offenses.
But I do think that the marijuana offense
in that mixture of charges is an expungeable event,
now would that mean that.
-: I totally agree that it's an expungeable event,
but we've got to,
we're analyzing an abusive discretion standard, right?
It's just,
I'm not sure I would have done what the judge did,
but that's not the standard we're doing.
-: Well, I would also just add,
and only because I'm also handling a separate appeal
with this judge where his,
the basis for his refusal was that police records
and district attorney records were gonna be expunged,
this is before the appeals court,
so I don't know that,
but the judge saying all records are gonna be destroyed,
and that's why he has a problem,
but he wasn't referring to the fact that he believes,
I think incorrectly that Boston police department records
and the district attorney's records
are gonna be straight.
So, there is some question about that,
if this was remanded and he said,
I don't wanna get rid of the reckless driving,
I would agree that that is not something that should be,
an expunction that we could then go back to,
how best to resolve the ambiguity in the statute
about whether or not he can redact,
the portions of the complaint
and not destroy the entirety of the court record,
which contains expungeable events.
-: Attorney Doherty,
can I go back to the question I asked Attorney Quirion.
Do we have enough to be able to,
to assess what was in front of the judge here?
Because let me give you an example,
again, I didn't see the CORI and the appendix,
and perhaps I just missed it,
but let's say between these two events,
there's a 2003,
and when was the latest one?
-: 2006.
-: Okay, let's say between 2006,
and when the petition was prosecuted,
there were all of these other charges
that we don't know anything about,
that the judge, when he's presented with the petition
gets the CORI,
and I'm not even talking about the stuff that was sealed,
maybe there were other things that were not sealed
that were in front of the judge,
on the one hand, you have a petitioner saying,
I have all of the,
to use one to Justice as Diseano's phrases,
the parade of horribles,
that are gonna befall him,
if the court doesn't allow this petition,
but the judge is looking and saying,
but there's a litany of other charges between 2006 and now,
that are still on your record that are not sealed,
that are not expungeable,
that are not eligible for expungement,
and the judge then goes to the interest of justice
and say, you haven't met your burden,
because even though it's presumably a charge
that can be expunged,
it's not in the best interest,
because all of these other things are still there.
So again, do we have enough here to say
that the judge abused his discretion?
-: I think you do,
because I think no matter what's on his CORI,
any individual charge is gonna have with it,
some cloud of prosecution,
however weighty that cloud may be,
that is something that falls into defendant's side,
and I think here if he had 100 charges on his record,
there is at least some grain of weight
to the cloud of prosecution that's associated
with any criminal record.
Now, would that outweigh the slightest bit of utility
to that record?
I don't know that it would,
but here where there is no utility to the record,
that should fall in favor of expungement for this defendant,
I do think the court is certainly relevant,
and in terms of weighing the defendants,
the defendants harm,
from that cloud of prosecution,
but it's relevant,
but it doesn't,
I can't see that it.
-: The direct question is abuse of discretion,
and I think what we're asking you,
and what we're hampered by,
and, you know,
we don't have anybody on the other side
that judges in a party here,
okay?
So,
I'm gonna give you a hypothetical,
so this judge has the CORI in front of him
and sees that there is three beginnings on the record,
a trespass and a stolen motor vehicle,
and all the weak cases that are subject to expungement,
and the judge may say, what difference does it make?
This is rearranging the deck chairs on the Titanic,
the guy is not gonna get a job anyway,
because he's got all the beanie cases,
is that an example,
where it wouldn't be an abuse of discretion?
And I get, the judge probably if that were the case,
the judge probably should have made five minutes
that said that,
but, would that be the abuse of discretion?
-: I would say if there was something to weigh
against the defendant, the harm to the petitioner,
yes.
I don't think it would be an abuse of discretion,
if that had diminished the harm to the petition.
-: Right,
cause the other offenses would be an impediment
to gainful employment as well.
-: Well, I don't think,
respectfully,
I don't think any sealed defenses
are an impediment to most forms of employment.
-: I talked about my hypothetical where,
the CORI would show other criminal offenses,
and I guess what Justice Georges has been asking.
-: Sure,
right.
I think that if the sole basis
for an petitioner's expungement claim,
is this clouded prosecution,
a significant CORI is going to diminish
the weight of that harm,
but I don't know that it erases it,
and if there's nothing to balance against it,
I don't know that,
well, I don't think that it's.
-: What I don't understand is,
and I get that the section two,
the sub section was probably geared more
towards these marijuana cases, right?
These antiquated cases, the matters that are decriminalized,
but we still have within the same legislation,
an abuse of discretion, interest of justice overlay,
so if this was self-executing,
they be self-executed,
and I know you,
(inaudible)
probably we shouldn't have hearings on these things,
and maybe you're right,
but the judge still has a role in this,
right?
-: I wanna be very clear,
I do not think these are self-executing,
I think that the only presumption
that I would put on the table here is that
a criminal record creates a cloud of prosecution.
-: And I don't think councils are gonna self execute this,
we may want them to be,
but the statute doesn't make themselves executed, right?
-: Absolutely not,
and unfortunately it hasn't quite defined
what balance it needs to be made
in the best interest of justice,
and so,
I suppose when,
in considering those two things,
it's the use to the state versus the use.
(inaudible)
-: And I think this is why
you both brought a very valuable case
to allow us to articulate what that standard is.
-: Let me follow up on that point Justice Gaziano,
and ask the Attorney Doherty,
do we have everything in our record
that the motion judge had before him?
-: I do not know if he had
the defendant's board of probation record.
-: He would absolutely have had that,
he absolutely would have had it.
Absolutely.
-: So it is not part of the record.
You know, I understand the court's concern,
you know, in thinking about this,
and this just sort of came to me,
if a decriminalized offense had a history
of defaults on the record,
where for two years the defendant was in default,
where there was multiple defaults probation violations,
even though it's a decriminalized record,
I can certainly see that being something
that would be of use to,
not just the court,
but the Commonwealth in considering bail conditions
for a defendant or something else.
I think that that is a interest
that that would certainly be something
that would work against expungement,
because it wouldn't just erase the record,
the criminal record,
but also a history of default,
so that's one thing that I think the CORI
would have reflected if there was any.
I wanna,
there's one other,
I'm just trying to think,
I just,
in one of the caveat, I would just ask the court,
in thinking about the best interest of justice,
is to be very clear that there is a very large distinction
between sealing and expungement
and that expungement which is an extreme remedy,
in that it is the utter
and permanent destruction of a record,
it is irrevocable,
and there is a very,
limited amount of harm that is caused to a petitioner,
it's not related to most forms of employment,
it is only related to law enforcement,
and those,
gun licensure as well as the care protection of children,
all of which are extraordinarily compelling public interest,
but all others are forbidden from looking at this record.
So in weighing both the petitioner's interest
and the public interest,
just ask the court to make clear
that that's how a judge should be looking at this.
In the 15 seconds I've left,
I just wanted to point out another end to unit,
I think is problematic and is a part of the record
and the court may wish to consider,
which is,
I think because of the way the sealing statutes work,
this petitioner had to unseal his record
in order to seek an expungement,
that seems to me to be very much at odds
with the intent of the legislature
and whether it's an inadvertent or not,
there is a significant problem I see,
where a petitioner needs to make a public record
that he is seeking to make private,
and I believe that is an interplay
between the ceiling statutes, A, B and C,
and the effect of that,
and the fact that,
that's not addressed in the 2018 legislature.
So I just ask the court to consider that if it can,
it is reflected in the record,
and I think as well in the defendants brief.