-: SJC-13465 in the matter of an Impounded Case.
-: Okay, attorney Curien, whenever you're ready.
-: Good morning, Your Honors,
may it please the court, my name is Pauline Curien,
and I represent the petitioner in this matter,
which poses the question as to whether
the juvenile record ceiling statute Chapter 276,
Section 100B applies to the sealing
of juvenile court youthful offender records
rather than the adult criminal record sealing statute.
The commissioner's present application
of the adult sealing statute to youthful offender offenses
not only puts children in the hopeless situation
of having lifetime never sealable records
and also poses longer waiting periods,
at a critical time in their lives
when they might be entering the workforce
or pursuing higher education of some kind.
But more importantly,
the commissioners action in applying the adult statute
flies in the face of the decision of this court
and the legislature's action
in creating a separate juvenile justice system
apart from the criminal justice system.
-: Would you agree that really 100A and 100B
don't answer the question that we need to
sort of dig into Chapter 119, Section 53 and Section 60,
and see which one of those two is most applicable?
-: Well, I think that there is some language,
for example, in Section 100A,
that uses the terminology criminal court
and criminal court appearance or disposition.
And so I think there,
in terms of excluding youthful offender offenses,
from Section 100A,
I think, from the perspective of the appellant,
that language can be helpful,
though obviously- -: Does B say delinquency?
-: Yes. -: Yeah, I mean,
it's a problem.
I think something's,
clearly the legislature didn't contemplate.
-: Sort of the jump ball, maybe go to the other two.
-: Well, I think, you know,
I'll jump further into the argument
as to Section 60A, which I think-
-: It's a question.
It's not an answer, honestly.
It's not an answer, it's a question.
The question is whether 276, you know,
whether 100A and 100C really considering
the period of time when the youthful offender statute passed
comparison to when 100B passed.
If we're really, gee, we really don't know.
And Section 53 broadly protects juveniles
and Sections 68 seems to say, wait a minute,
interpret youthful offender records, sort of like adults.
And what's the interaction
between those two might be more helpful
in trying to get this right.
-: Well, I can specifically address the interaction
between Section 60A and Section 53,
but I would note that in Commonwealth versus Gavin,
this court specifically referred to the fact that
Section 100C pertained to the criminal court,
and therefore it was not applicable to juveniles
who wanted to seal records
immediately after a positive disposition.
But jumping to Section 60A.
First of all, there is no language whatsoever
in Section 60A of Chapter 119
that says anything about criminal record sealing.
And there's no legislative history
that indicates the legislature ever intended
to deal with criminal record sealing
when it passed the statute.
Moreover, in terms of if you look at
the exact wording of the language in Section 60A,
it doesn't lend itself when you read it for the first time
to even have you think about that it might apply
to criminal record sealing when it was enacted in 1938.
This was before the advent
of computers and other technology.
The function of 60A was to prohibit the public
from publicly inspecting any court records
that had to do with juvenile offenses.
So, when the legislature amended the statute in 1996,
what it did was it continued the same function
of prohibiting access to those,
to delinquency records,
but it carved out a special exception
for youthful offender records,
but it didn't do anything in terms of
changing when or how these juvenile records,
in terms of youthful offenders, would be sealed.
And it's notable that at the time that the legislature
amended Section 60A
we had a criminal record sealing statute for adults.
We had a juvenile record sealing for adults.
So more naturally, if the legislature
had wanted youthful offenders
to be more severely punished in terms of record sealing,
there would be plain language and an amendment
to the juvenile sealing statute
saying you exclude youthful offender-
-: It works the other way, too, though, right?
-: Well, I think in this case- -: You know,
had the legislature, that argument, right?
Had the legislature wanted to protect YOs,
that they would've mentioned them in the-
-: Right, well, I think you have to,
I think as- -: That's why
this case is so hard.
And what we're looking at as well is
when you look at the YO scheme,
some of it is juvenile protection and some of it is adult,
and we have to kind of navigate to see is it more
like an adult prosecution
or is there more like a delinquency proceeding?
And I done know.
-: I think obviously- -: I mean, I think you both
make good arguments, and that's why it's a tough case.
-: Well, I think with youthful offenders,
they are still children.
And if the legislature had wanted youthful offenders
to be punished in the identical way as adults,
it would have simply put them under the jurisdiction
of the adult criminal court,
rather than keeping them within the-
-: But they get jury trials.
They get public access,
there's lots of things, and they can go to state prison.
-: Well, that's true.
But it's also notable that the legislature
was very specific about it.
All Section 60A did was open the court files
to public inspection.
There was another provision that also was enacted,
opened up the courtroom proceedings.
But that's a far cry from having anything to do
with criminal record sealing.
And the, the function of 60A is different
because what it does is it deals with
public inspection of the records.
And when you get to criminal record sealing,
that's a separate stage of the proceeding.
And as this court noted in Commonwealth versus Pong,
you know, once you get to the stage of sealing,
the public has already had access to the trial,
media had had access to the proceedings,
and we're at a different juncture.
And even even cases with
a lot of publicity at the time,
the public interest fades very, very quickly.
So, in this instance, you know,
as the U.S Supreme Court said,
"Children are not miniature adults."
So I think the use of Section 60A,
in terms of having it apply to record sealing,
really undermines the goals of the juvenile justice system,
and the goal of the juvenile justice system
is to rehabilitate children and provide
those opportunities. -: But there's also a goal
of whether something is sealed or not.
And again, Section, this is a hard case,
and you may be right.
And Section 63 may be dispositive in your favor.
It may well be dispositive in your favor,
but 60 thematically
recognizes youthful offender cases are different.
And somebody who has an adjudication as a youthful offender,
that might be, because of the seriousness of the crime,
might be something that an employee oughta know,
that a municipality oughta know
before somebody's a coach,
that may be circumstances for that serious a crime
that make it different.
-: Well, I think that the fact that the proceedings
were open doesn't convey the any clear intent
to affect criminal record sealing.
And the mandate of Section 53,
which applies to interpretation of Section 60A
says that, "As far as practicable,
"children are not to be treated as criminals,
"but are to be treated as children in need of aid
"and guidance and encouragement."
So obviously, you know, using Section 60A
to bar the sealing of criminal records
permanently for children or delaying their sealing
isn't something that advances the interest of children
or in any way advances the notion of rehabilitation.
And Section 53 in particular has a second sentence
that says specifically that juvenile proceedings
are not criminal proceedings.
Just as this court has said on many occasions
in the Conner case or in Commonwealth versus Dones,
you know, children are not labeled as criminals,
and the proceedings, even for youthful offenders,
are not criminal proceedings.
So, in terms of Section 60A it talks about
a criminal court case,
but how can you have a record that's equivalent
to an adult criminal record
when the proceeding isn't criminal
to have a criminal proceeding?
A criminal proceeding obviously
would entail a criminal record.
But here these are not criminal proceedings.
So there's no criminal record,
and there's no criminal case because it's a juvenile case.
And the legislature specifically has chosen
to leave youthful offenders, you know,
in the juvenile court.
Under the old system,
when children were transferred to the Superior Court,
obviously, you know,
their records then were treated the same way
under Section 100A,
but in this instance, you know,
we don't have any indication
that the legislature ever meant to do that.
So the Office of the Commissioner of Probation
basically fails to demonstrate
the requisite legislative intent
that the adult sealing statute would apply
to juveniles in this situation,
so any ambiguity is read in favor of the juvenile
in terms of application of Section 53.
And, in terms of the broader picture
in terms of criminal record sealing, as amici point out,
in particular, the children who tend to be involved
in juvenile court proceedings
and youthful offender proceedings in particular
tend to be Black and Latino and Hispanic,
so clearly there are racial disparities.
So if you go down this road
and you start treating youthful offender records
as adult records that are never sealable,
what you're doing is exasperating the racial disparities
that exist within the juvenile justice system
and in the criminal justice system at large.
And then the other factor that this court has to consider
is its own opinion in Diatchenko,
this court, as well as the U.S Supreme Court,
have recognized that children
are less culpable for their offenses than adults,
because of all of the science and the advancements made
in terms of understanding brain development
and child development in general.
And then finally, I would also add that
one also has to consider sort of the Pandora's box
or the tsunami of collateral consequences
that could result from a decision of this court
that said that for sealing purposes,
a youthful offender record is tantamount
to either an adult conviction or an adult record.
Because if you look at what happens with the interplay
with Chapter 151B,
paragraph 9 in Section 4 specifically prohibits
questions about cases
unless there was a criminal conviction.
So if we go down this road
and we open up youthful offender records
to a classification where they're equivalent
to an adult criminal case,
then that means a lot of those protections would be lost.
The same with the immigration area of law.
There are no opinions yet on whether
a youthful offender adjudication is an adult case
or it's equivalent to a conviction.
So it could open up a loss of rights for children at large
that go well beyond the particulars in this case.
And the last thing I would add, it's also of importance
that the Commissioner of Probation's own legal counsel
years ago issued a publication
indicating that the Section 100B applied
both to youthful offenders and to delinquency cases,
and they both had a three-year waiting period.
So clearly there's ambiguity
in terms of the statute when even the legal counsel
for the Commissioner of Probation
doesn't know how to interpret it.
And then, it's unclear how long
that the Commissioner of Probation
has engaged in this practice,
even though they say it's longstanding,
that doesn't appear to be the case in terms of practitioners
who are out there who do record sealing.
So in this instance, I would urge the court
to find that Section 100B applies
to the petitioner in this case
and to issue a ruling that clarifies Section 100B,
applies to all youthful offender cases.
-: Okay, thank you very much.
Attorney Pomponio.
-: Good morning.
May it please the court, Nina Pomponio,
on behalf of the Office of Commissioner Probation
within the Massachusetts probation Service.
When the Office of the Commissioner of Probation, or OCP,
sought to operationalize the intent of the legislature
with the two administrative sealing statutes,
one for criminal court appearances
and the other for delinquency court appearances,
it looked to Chapter 119-
-: You're in a rock in a hard place, we get it right.
-: Yes. -: So,
what about the fact that these are remedial statutes
and that we should err towards the sealing part of it,
because of that aspect of it,
and that would be the tipping point
because of the nature of the statute we have here?
-: Well, I'd like to say from the outset
that the Office of Commissioner Probation
does welcome this court's guidance
on how to interpret these statutes.
However, when we looked to these statutes,
we saw a very direct instruction in 119 60A.
It stated that the records of youthful offender proceedings
shall be treated like the records
of adult criminal court records.
So this seemed like a very direct indication,
especially given the timing of this amendment.
So when the legislature
carved out the exception for youthful offenders,
carved out that exception for our most serious crimes,
it then amended 119 60A to add the Section that
"The youthful offender proceedings
"shall be open to the public inspection
"in the same manner and to the same extent
"as adult criminal court records."
-: So 60A took something that was ambiguous to you,
crystallized it to make it an adult.
-: It gave us the best indication
of the legislature's intent, in our opinion,
because at the time of this amendment,
the two sealing statutes existed.
-: I don't know if there's any legislative intent to glean,
because it's silent.
-: You're- -: I don't think
there's any ambiguity.
I just think it's just not addressed.
-: You're absolutely correct, Your Honor.
Of course we had to operationalize it, correct?
You know, we were receiving petitions
to seal youthful offender records.
So this seemed like the best indication
where the two sealing statutes existed,
criminal court appearances, delinquency court appearances,
and then we have 119 60A amended to say,
"Treated like criminal court records."
That, to us, seemed like the best indication
we should treat the sealing like criminal court records.
-: I agree with you, this is difficult and everything,
but don't you have to fold into the analysis Section 53?
-: Absolutely, Your Honor.
We do not take the position
that youthful offender proceedings
are criminal proceedings for all purposes
and in all manners.
What we are saying is that we are treating the records
of these proceedings similarly to
how we treat the records of criminal court proceedings.
We do this because, again, of 119 60A.
We could not, of course, take the position
that they are criminal proceedings.
As this court has pointed out already
with my sister's argument,
100A speaks to dispositions, not convictions.
It never says the word adult.
So we really are looking at a criminal court appearance
versus a delinquency court appearance,
as this court has pointed out,
a youthful offender is neither.
So where is the best indication of where we might put these?
And given that 119 60A was amended with the knowledge
of these two options,
it seemed like the best place to put them.
-: Are you arguing that that's how we should look at it?
-: Again, we welcome the interpretation of this court.
I think we are here today to articulate
why our position was rational at the time,
where we were stuck between a rock and hard place
as this argument started.
We tried to take a rational interpretation.
So again, we welcome the opinion of the court,
but we're here to merely defend
that this wasn't an arbitrary distinction.
It wasn't, as my sister seems to indicate,
a intent to harbor children with records forever.
You know, I don't agree with all of the characterizations
my sister makes of these records.
I think it muddies the waters quite a bit.
As we know, as we explained in our brief,
the record system is incredibly complex in Massachusetts.
And anytime we're talking about access to a record,
it's gonna matter who is asking,
when they're asking, and what record,
which I'm happy to discuss more of this,
if this court would like me to.
We also don't disagree that there's a number
of strong policy arguments
in favor of placing youthful offender records
within the 100B system for delinquency court appearances.
Again, OCP sought to effectuate
the intent of the legislature at best it could
when there was no clear instruction.
And our purpose, the probation's purpose,
is not to insert our own policy judgments
on top of that of the legislatures
or this court.
I think that the numbers that counsel gave,
and I don't know if, I think it was in her brief,
said there are like 14 cases,
there's not a lot of these cases, that occur, the YOs?
-: I do not have a statistic on how many occur.
I don't believe we actually break them down in that way.
When I think- -: I guess the next question
I ask is how often does this come up for you folks?
-: We don't break down our sealings in that way.
I can tell you how many things we've sealed under 100B
and how many things we've sealed under 100A,
but I don't think I could tell you.
I don't think we've broken them down
further than that over the years.
We do seal approximately 55,000 charges a year.
-: Because if we ask the legislature to act on this,
which I think you could probably anticipate
is going to happen one way or the other,
I'm just wondering how many cases are affected.
But you don't have that information.
-: I don't have that specific number.
What might be helpful to know is,
is that there are youthful offender records
kind of fall in a middle ground of protections,
between delinquency records and adult criminal records.
So, with youthful offender records
their court files are public under 119 60A,
the court proceedings are public under 119 60A.
However, they do not appear on the CORI,
the Criminal Offender Record Information,
which is maintained by DCJIS,
and they do not appear on that CORI
based upon a 2018 amendment,
the Criminal Justice Reform Act.
And that's whether or not they're sealed,
they're not gonna appear on that CORI.
And the CORI is the thing
that a person would get when there's a background check.
-: Just we have another YO case I think on Wednesday
that talks about the numbers, so that's what I was-
-: Oh, you were looking at that?
I didn't recall any numbers from any of our filings.
-: Yeah, that's what I confirmed.
-: I'm curious where they got those numbers.
The CARI, on the other hand,
the Criminal Activity Record Information,
which is maintained by Probation,
the youthful offender record will stay on there
whether or not it's sealed as well.
So really what we're talking about is the court file,
because, again, the CARI includes sealed records,
'cause it's for the use only
for the courts and law enforcement.
The CORI never contains youthful offender records
based upon that 2018 change to the statute.
So really what we're talking about is the court file
and whether it remains public
or is subject to that sealing time periods,
as needed- -: That's why you're
saying 60A has the most application?
-: It's another reason why.
I mean, of course, that change was made in 2018,
but it's another reason why.
-: Let me see if I can understand
why it might not apply, 60A.
It doesn't say anything about sealing.
And when it talks about the records
of youthful offender proceedings conducted
pursuant to an indictment should be open
to the public inspection, same manner as criminal.
Well, the criminal record open to the public,
but if it's sealed it isn't.
-: But it's sealed under 276 100A
for criminal court appearances.
So what we're saying is youthful offender proceedings
would then, therefore, be sealed under 100A
for criminal court appearances.
So it's not that it's never sealed.
I think my sister might have stated never sealed,
but what she's referring to is this particular offender
has a number of charges for intimidation of a witness.
And under 276 100A,
the criminal court appearance statute,
there are specific offense restrictions
that are never sealable.
One of them, in fact, is intimidation of a witness.
Those same offense restrictions do not appear under 100A.
So that's why, to this particular petitioner,
this matters quite a bit,
because that sealing would only apply
if his youthful offender proceeding
was treated as a delinquency court appearance.
But again, you know, I put into context
that we are talking about the court file,
because it wouldn't appear on that CORI, regardless.
Another thing that my sister brought up
that I thought was important to indicate
is that the appeals court in JJ
had previously determined that because 100C,
the discretionary sealing statute,
for non-convictions uses the word conviction,
that juvenile proceedings did not,
juvenile delinquency proceedings
did not fall under that statute.
Meaning that juveniles always have to wait the three years
under 100B to get sealing,
whether or not the case is adjudicated delinquent or not.
Here, with this court's recent clarification in JF,
paragraph 1 of 100C entitles criminal court conviction,
criminal court non-convictions,
not guilties, no probable cause, and No Bill,
to immediate automatic sealing.
So that is, again, another protection
that would be available to youthful offender proceedings
should it fall under 100A.
Should it fall on 100B I think, again, it's less clear.
I may be back before you determining whether or not
it would have to wait that time period under 100B.
So because, as we started this conversation
with the fact that it is not mentioned anywhere,
we really don't know how to treat them
and where to put them.
So we have to look at that best analogy,
which is that the clerk's records
are treated like adult criminal records.
If there's no further questions from the court,
I'd just like to remind the court that MPS recognizes
that the sealing of records serves our mission
to support individuals and families
in achieving long-term positive change.
As such, again, we welcome this court's guidance
on the interpretation of the statutes.