-: SJC 13614, in the matter of an impounded case.
-: Okay, Attorney Jellison, whenever you're ready.
-: Let's see what we got.
Good morning, and may it please the court.
With the 2018 Criminal Justice Reform Act,
the legislature made a policy decision
that children under the age of 12
do not have the capacity to commit crime,
and it therefore decriminalized their conduct.
It did so with the explicit intent
to ensure that criminal records
did not generate from that conduct
because the legislature believed
that they did more harm than good.
That's the context in which we're answering the question
of what the meaning of no longer a crime
in General Law 276, section 100K(a)(2) means.
And I'm asking the court to hold
that that language makes eligible for expungement
juvenile records generated from the conduct
of children under the age of 12.
I believe that both the plain meaning of that language
and the legislative intent back up
the request for that holding.
So I would say, in 2013, when my client was alleged
to have engaged in this conduct-
-: Can I ask you just to deal
with the rest of that sentence,
which at the time of expungement
is no longer a crime except in cases
where the elements of the original criminal offense
continue to be a crime under a different designation.
So that doesn't take us to,
okay, this is a rape if he's not a juvenile?
-: So I don't think so.
And I think that in that, the rest of that sentence,
the thing that's doing the most work
are the words under a different designation.
So the crime is still the same,
it's still under the same designation.
And my assumption of what the legislature
meant by that language is statutes are recodified.
A statute is recodified, it's a different number,
but it's the same conduct.
A statute uses different language.
So for example, we used to use the outdated
and offensive terminology mental retardation
in a lot of our statutes.
We've now changed that to intellectual disability.
I don't think someone could come in and say,
I wanna expunge my conviction of assault and battery
on a person who is mentally retarded
using the outdated language,
because that's changed to now intellectual disability.
So it's my contention that that language
is talking about something else.
It's not talking about this situation
where the age of the person is really the thing
that makes it not a crime.
And I think to the extent that that language
makes this ambiguous in any way,
we have to turn to the intent of the legislature.
-: Can I ask you to stick with the plain meaning though,
because assault and battery is still a crime.
And I think your opposing counsel says,
and you agree with that, right?
-: Yes. -: All right,
and what your opposing counsel says
is that what the amendments do
is provide a capacity kind of defense.
You can't commit assault and battery
or be charged for it until you're 12.
-: That's correct.
-: So how does that fit with the
plain meaning of the statute?
You're saying you win under plain meaning, you say.
-: Yes.
-: But can you explain that to me?
-: Yes, so my argument under plain meaning,
and I think that even if this does not carry the day,
it is certainly plausible
and that we would move to the ambiguity.
But my argument under plain meaning
is that the conduct that my client
was alleged to have engaged in in 2013,
if he engaged in that conduct,
meaning he is an 11-year-old,
engaged in that conduct in 2023,
it would no longer be a crime.
It would not be criminalized.
He could not be charged.
There would be no record generated.
-: Isn't that different than,
it would still be a crime.
He could not be charged.
Is there a difference there?
-: So I don't think so.
And I wanna point to the fact that
the change to section 52, 119 section 52,
the term jurisdictional doesn't come up in that statute.
I know that we see it as a jurisdictional statute.
But it is really the definition of delinquent child.
And to me, that's saying that capacity,
subject matter jurisdiction and what's a crime
are very tied up in one another.
So we don't have subject matter jurisdiction
or the court doesn't have subject matter jurisdiction
over something unless it is a crime.
And I think what they're saying is that
when children this young are engaging in conduct,
that is their conduct.
Their conduct at that age is not a crime.
And I'm looking to that,
the fact that we're talking about the conduct
of those children and less what that conduct is.
-: If an 11-year-old kills somebody, that's not a crime.
Is that what you're saying?
-: And so I thought if I might get this question,
I don't believe so.
And given that there's no jurisdiction
over children under 12,
but I haven't looked at the particular murder statute
under 119, so I would say I'm not sure.
But any other conduct, 'cause there are special rules
when it comes to murder,
but any other conduct would not be a crime.
-: So what do we do with the language,
'cause I'm also very interested in the second clause
of that section that points to,
it doesn't just say where it's not a crime.
It says where the elements
of the original criminal offense continue to be a crime
under a different designation.
This seems to me to be a conduct-based definition,
and you're steering away from that.
What are we supposed to do with the language
that refers to elements of the original offense?
-: Yeah, and I think I alluded to this.
Yes, I agree with you that it says elements.
I agree that that relates to conduct,
but I think that the end of the sentence matters there,
and I think that when it says
under a different designation,
they're trying to say something with that.
So I didn't read it to be as applicable
to the situation because of that.
I really think they were looking at where
there's some sort of-
-: So because rape is, these elements
of the original offense are still called rape?
-: Right. -: Then that's-
-: And are still under the same code numbers.
That was my interpretation of it.
But I think that where, as I said,
I think that where there's at least a plausible,
I think that where my interpretation is at least plausible,
I think you really do have to go to the legislative intent.
-: Can we look at context of this type of expungement
versus other types in the carve-out
that you find for Chapter 265 offenses
that's not included in K, but it's included in other?
-: Sure.
-: If we look at that, is the argument that
the legislature, when they wanted to,
carved out these crimes of violence
for other types of expungement,
but for K, because it's special,
it may have been just intended for the marijuana cases,
but K, because it's special,
doesn't have the same restrictions.
-: I would agree that that would support my argument,
that it's explicit in other statutes,
but it's not explicit in this one, certainly.
I believe that supports my argument.
-: K is basically broader than the other expungements.
-: Absolutely, K is broader.
And I think there's good reason for that.
I think if we delve into the legislative intent,
the legislature is treating children under 12
very differently than it's treating children over 12.
It's providing very limited second chances
for children over 12.
It's providing very limited expungement
for children over 12.
But for children under 12,
it is removing them from the system.
And the language, to me, this court's language
in Laszlo L., and I'm moving to the legislative intent,
and if you want me to move back to the plain meaning,
please let me know.
But I'm moving on to the legislative intent,
and this court has held that the legislature
intended to make sure that for children under 12
that their conduct doesn't result in a juvenile record
that may later adversely affect a child.
The legislature's goal of giving children
in their position a second chance
by removing the possibility of juvenile court adjudications
with all of its intended consequences.
The goal of protecting children under 12
and children with a minor misdemeanor
is from the long-lasting effects of involvement
in the juvenile justice system.
The language that Senator Brownsberger used
when he talked about this,
that they were decriminalizing childhood behaviors
in an effort to cut the chains that hold people down
when they're trying to get back up on their feet.
You know, I think that one of the best indications
that the legislature was not worried
about these records no longer being in existence
is that they will never be in existence.
A child under the age of 12 cannot be charged.
A record will not issue, and none of the reasons
that you could use a record in the future
would be, you'd be able to use for these children under 12.
So these records will not exist anymore.
I think if the legislature was concerned about that,
they may have done something different.
But instead, they removed these children entirely
from the criminal legal system.
They don't allow them to be charged with crimes.
They don't allow them to be prosecuted.
And they very explicitly said
that they did not want these children to have records.
They found that having juvenile records
from this type of conduct where the child
did not have capacity to commit a crime
don't have any predictive value,
and that they're more harmful than they are good.
So to the extent that my reading
of the statute is plausible,
and I think perhaps there could be
some different plausible readings of it,
you look to the intent of the legislature,
and the intent of the legislature is beyond clear.
They did not wish for these children
to be caught up in the juvenile legal system.
They did not wish for these children
to have the attendant consequences
of the juvenile legal system,
which include these records.
-: I just wanna clarify.
So there are two issues, right?
Whether or not he's entitled to try for expungement,
and then whether he gets expungement.
-: Correct, yes. -: Okay, so you're just saying,
right now you're just saying
he should have the opportunity to apply?
-: Yes, he should be eligible under 100(k)(a)(2),
and then, I mean, I would ask this court to remand
to the juvenile court for a consideration
of best interest of justice,
and I think that some of the commonwealth's arguments,
the venue for those is really within
that best interest of justice step of this process.
So, yes, I'm simply asking that children
who had records created for conduct
when they were under 12 be eligible for expungement
under 100(k)(a)(2), and that the decisions
of whether or not that's in the best interest of justice
be made by a juvenile court judge upon petition,
and that's what would happen in this case.
-: I think there seems to be a little bit of dispute
in the briefing about records
that are eligible for expungement
and records that are not eligible for expungement,
such that they will continue to exist
even if your client were to be able
to obtain expungement of expungeable records.
Can you speak to what records will continue to exist
versus what will not?
I know you, in your brief, spoke about,
wrote about the possible use of these in SDP proceedings,
but I was interested in the arguments
about arrest records and so forth in 4198(f).
-: Yeah, so I think the best I can do
is point you to GLC 276, section 100(e),
which gives a definition of expungement.
So this is what's supposed to happen,
the permanent erasure or destruction of a record
so that no record, the record is no longer accessible to
or maintained by the court, any criminal justice agencies,
or other state agency, municipal agency, or county agency.
So I think that that covers most records.
I don't know internally what police officers do,
like what police stations do, but from my reading
of the definition of expungement in this statute,
it would be that all records
for criminal justice agencies would be
either destroyed or no longer accessible.
In some way, shape, or form,
I don't know the mechanics of that,
and I don't know if that answers your question well enough.
-: Thanks.
-: Well, if there are no further questions,
then I'll wrap up.
I think, for me, the touchstone of this
is that the legislature made it
so that these records will no longer exist.
They were very clear about their reasons for doing that.
And when you read this provision together,
when you're looking at an ambiguous statute,
you're looking at the legislative intent,
you're looking at the fact that this is a remedial statute
and needs to have liberal construction.
If you look to the matter of impoundment case
where this court looked,
even when it was construing 276-100 A and B,
it looked to 119 section 53
to interpret the statute to the benefit of juveniles.
And I think that when you look at all of that together,
if we're seeing this,
if I have a plausible reading of this statute
and it is ambiguous,
the intent, the fact that it's a remedial statute,
and section 53 compels you to allow these types of matters
to be eligible for expungement,
and I would ask for a remand.
Thank you. -: Thank you.
Attorney Lee.
-: Good morning.
May it please the court.
Mary Lee, Assistant District Attorney
from the Bristol District for the Commonwealth.
The juvenile who was charged in this case
is seeking a reversal of the denial
of the motion for expungement.
The standard of review is de novo
because it is a question of law.
And section 276, section 100 K itself requires
that the person seeking expungement
show clear and convincing evidence
that the offense meets the provision.
So the juvenile has moved under 100 K, A2,
which is, in layman's terms,
it was a crime when it was charged
and it's no longer a crime.
And I agree it doesn't just apply to marijuana,
but the Commonwealth's position is that
it does not apply to things that are still crimes,
like rape and assault and battery,
or assault and battery with substantial bodily injury,
as in this case.
And that if the legislature had meant
to include the records that the juvenile
was asking for, it would've been very easy
for them to do so, either in 100 K,
by saying anyone who was charged with an offense,
who at the time of the crime was under the age of 12,
may have their records expunged,
or to do so in the same statute,
in the statute that we're creating at the same time
in the 2018 Act, section 100 F,
where they actually talked about
expunging juvenile records.
When they talk about expunging,
so the Commonwealth's point is,
here, it is by no means clear
that the defendant's position is correct.
In fact, they have to put-
-: But all the defendant needs to do
to get to the legislative intent
and remedial statutes is to come up
with a plausible reading.
-: Right, to show some ambiguity, is that what you mean?
-: That's right.
-: So here, the legislature did not make
a clear statement in 100 K that would include
the juvenile, because he has to bring in
what they did to 119, section 52,
the definition of delinquent child.
But they did make a very clear statement
in the juvenile expungement statute, 100 F,
that says it has to comply with 100 I and 100 J.
And 100 J says no sexual assaults against children,
among many other serious crimes.
-: That's the problem I had,
because when you read K, it's broad,
and it could be ambiguous.
But then when you go to the other,
you go to 100 F, et cetera,
it does have the car votes for serious crimes.
And I just wonder if that works against you, actually.
I know you're gonna say opposite, but just tell me.
-: I understand that the inference you were drawing,
that that hurts me, and hurts the Commonwealth's position.
And I disagree.
The legislature has spoken specifically
about what juvenile records may be expunged.
When you have a specific statute
versus a more general statute, which would be 100 K,
you're governed by the specific statute, 100 F,
which says you have to meet 100 J.
-: So is your argument,
if we're looking at intent of the legislature,
we should consider the entire expungement statute,
the intent of the legislature
is not to expunge child rape cases?
-: Right.
And so this is important.
First of all, under Doane's, this court's case in Doane's,
it says you don't read in things.
And the juvenile can only win here
if you read in something that's not there.
And if you ignore the explicit language
of the legislature in 100 F.
And I agree, this statute is to protect juveniles,
it's to help juveniles, but not just juvenile defendants.
It's also out there to protect sexual assault victims
and the juvenile sexual assault victim here.
And this 2018 act,
there are many provisions throughout the act,
and I'm sorry to have included such a large addendum.
-: But going forward, as your opposing counsel points out,
there's never gonna be a record ever again
for a kid under 11, or 11 and under, right?
So going forward, there are never records here to expunge
'cause they're not gonna be any, right?
-: Right.
-: So we're dealing with this,
did the legislature intend to maintain
all these old records
when going forward, they're saying never,
we're just not gonna have, if you're under 11,
we don't want you to keep these things.
Does that really make sense?
-: I think it does make sense.
One, because the juvenile and the amicus brief
is talking about, well, they should be treated the same.
And it's like a repugnancy argument under Laszlo L.
Of course, the legislature must have meant
all these old records would be there.
But the legislature knew
that those old records would be there.
And the legislature created an expungement provision
in 100(f) for juvenile records,
which would include people under 11.
And yet they still put in that carve out,
but not these types of cases, they're too serious.
And so the legislature has struck that balance.
And most respectfully,
I certainly don't mean any disrespect to this court,
but it is the legislature that determines
where that line gets drawn.
And the legislature determines what the balance is.
And they said, don't expunge sexual assault cases.
-: I'm confused though, just going forward.
And again, you know this much better than I do.
If a 10-year-old sexually assaults going forward,
there's never gonna be a record to expunge, right?
'Cause they're all gonna be outside
the juvenile justice system, right?
Or is there gonna be records?
-: So there are gonna be records
because if it gets reported to the police,
even though charges can't be taken out,
the police could create a report.
There's gonna be probably DCF records
if the system is working correctly.
There will be records out there
and DCF reports to the DA's office
when there are crimes against children that are serious.
And so the DA's office will have records.
So even if the juveniles are taken out of the system,
there are gonna be records.
And then I just wanna speak to something
my sister said to be clear.
In terms of expungement,
the records that are going to be expunged
are the court records, the probation records,
and then you get to CJIS.
And that's the big difference
between what is currently available publicly for juveniles
and what is not.
The juvenile in this case appears to be
trying to prevent CJIS from reporting to DCF,
to the early childhood for summer camps
and early childhood matters,
law enforcement, and the courts.
Because everything else for juvenile stuff
is already confidential by statute.
In addition to that,
this court in Attorney General versus District Attorney
of the Plymouth District said that police records
and district attorney's records do not get expunged.
They do not get redacted.
We get to keep our records.
We just can't show them to anyone under 100Q
of the new statute,
which I'm not sure that statute was in place
at the time of AG, I can't remember.
It should, yes, it would have been.
What gets expunged is the court records,
commissioner probation, police records in the public log,
which is 4198F, but sexual assault cases
are not supposed to be in the public log.
It should be in 4197D, already non-public.
What I'm suggesting to the court
is that not all the records get expunged.
Additionally, because the record's about two people
and not just one person, redaction is used
rather than total expungement of the record
so you'd take out information about the juvenile
who's seeking expungement and not the victim himself.
So the victim, I guess, could move for expungement
of the entire record if he wanted to.
-: Even with your qualification where you just said it,
going forward, there'll never be,
the records we're dealing with
for the expungement purposes,
there's never gonna be a record
for a 10-year-old sexual assault, nor, right?
So going forward, we're never gonna have this issue.
-: In court records. -: But we're gonna,
but that's what we're dealing with, right?
-: Yes.
-: But you're saying, okay, the legislature intended
that to be the case going forward,
but going backwards, we're gonna keep those things,
even though, okay, I'm just trying to make sure
I understand the practicality.
-: That is my position,
because if the legislature wanted to say that,
they would've carved that out
in the juvenile expungement statute.
-: So the legislature, can you respond to the argument?
I think it might be clearest in the reply brief,
that an alternate, obviously the legislature
essentially decriminalized everything for the under 12s
through adjusting the jurisdiction of the juvenile court,
but they equally could've put in a provision
into every single statutory criminal law saying,
except that it shall not be a crime
if it's committed by someone under 12,
and then had a separate statute
about common law crimes, I suppose.
And would you agree that if the legislature
had done it that way, had amended every single criminal law
to exempt children, that this would apply?
-: I'm sorry, I have to take issue with your question,
because it's not our position that decriminalizes
these actions, the conduct is still criminal.
-: Oh, sorry, I totally understand your point on that,
but I just meant, they made it impossible
to prosecute these offenses by virtue of adjusting
the jurisdiction of the juvenile court,
which is a very simple and easy way of doing that,
and an alternative way would've put a note
in every single criminal law, correct?
-: So the way the legislature could've done this
is put in either 100F, where they've created
the expungement for juvenile records,
that all records of children under 12
should be expunged, or can be expunged.
Or they could've put another provision in 100KA
to say all records of people under 12 can be expunged.
But they didn't do either of those things.
Instead, they created a statute that said
juvenile records can be expunged,
except for here, on sexual assault cases.
And the reason would be that the 2018 Act
is also a proponent of helping the investigation
and resolution of sexual assault cases,
and even gave sexual assault victims,
gave them a Bill of Rights,
and allowed them to find out the status of their cases,
even when closed for many years.
So someday, when this juvenile victim is an adult,
he can go and look at his records at the police station,
he can look at the records at the DA's office,
and if they are expunged, he can't see them,
or he can't see them with his cousin's name in them,
if it's ordered expunged, despite his rights
that are being given in 4197D,
that's still in existence,
and his right under the Victim's Right Statute in 250AB,
and the 2018 Act itself that gives him a right
to know the status of his case,
because the legislature drew this balance.
The legislature decided these specific things in 100KA2,
no more, I'm sorry, 100K, no more than those,
can be expunged, and juvenile records can be expunged
if they meet 100J, which this does not,
and we wanna make sure sexual assault victims
get their fair shake in terms of getting access
to their records or getting access to the status of a case.
-: You mean those were the crime occurred
before the statute went into effect?
I mean, 'cause those victims going forward
aren't gonna have that ability, right?
-: So victims going forward would be able
to get whatever records are at DCF
or the police station or the DA's office
because they don't fall within
the expungement statutes at all.
So going forward, records will be created,
and they'll be in different places,
not at CEGIS, not at the court, not at-
-: So can the victims get that information
even if this is expunged? -: If this is expunged?
-: Yeah, from other places? -: So that's my problem.
I included my record appendix, which I redacted
because I wanted to make sure the juveniles
are both protected, and also there was a graphic picture.
I'm happy to provide an unredacted version
to the court if you need it.
The picture showed the injury that was in this case.
So here, we have those records.
If these get expunged, and we have to take out
all reference to the juvenile, then in 10 years,
the juvenile wants to come to us and say,
oh, I'm sorry, the juvenile victim comes to us and says,
oh, hey, I'm having, whatever, I'm going through therapy,
or I'm fighting with my family, or I'm being gaslighted.
I wanna see the records.
And we're like, we can only show you the records
that have no reference to the perpetrator
because that's all been expunged.
And he can't get them from us because of a 100(q).
So we keep the records- -: But are they,
they're not in other places right now?
You said- -: I have,
the DA's office has them, the court has that,
and the police department would have it.
The only people who would have to redact
is the court.
-: I'm confused, though, because you said that,
pursuant to the district attorney,
to AG versus district attorney case,
that the records that are held by the DA's office
do not have to be expunged.
So why do they fall within 100(q),
which says no person shall make records expunged
pursuant to, da, da, da, da, da, available for inspection
in any form by any person?
Why would those records be covered by 100(q)?
-: So we get to keep those records unexpunged.
We don't have to go and destroy our records,
but we can't show them to anybody under 100(q).
That's what I read 100(q) to say.
-: But they weren't expunged.
-: We have the unexpunged version of them.
We can't show the unexpunged version even to the victim
if these get expunged.
-: Because you read that- -: That's how I read that.
That we're prohibited from giving those out.
-: So they're both expunged and not expunged.
-: They're unexpunged, so we have access to them,
the police have access to them,
but we can't give them out to anybody,
I think, including other law enforcement.
That's how I'm reading 100(q).
So the idea, I see my time is running out.
The idea that just because there are no court records
made for people who are under 12
doesn't mean there won't be records.
But those records that get created in the future
won't even be subject to any expungement.
-: Those records don't cause any problems
'cause they can't be distributed to, you know,
anyone else, you know, if he's arrested,
the police can look at it, but-
-: The police can share it with the DA's office and DCF,
but I don't know that we could share it.
I don't actually know that there's a provision
covering just arrest records.
Prior to the 2018 Act, there was no expungement statute,
there was, the sealing statutes covered it,
and juvenile records were not considered quarry,
but they were still protected
because of Chapter 119, Section 60A.
So I'm not sure that those records
would even fall within protections,
except for the police, because they fall under 4197(d),
they're not public record
when they're sexual assault records.
-: Okay. -: If there are any
other questions, I'm happy to answer them.
Otherwise, I would ask that the judge's decision
be affirmed in this case.