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Can records of civil forfeitures be expunged?

June 15, 2016

A case before the Indiana Supreme Court is raising new questions about court records, expungements and the relationship between the two.

Indiana resident D.A. was convicted of dealing in marijuana and possession of cocaine in February 2003. During his arrest, the state filed a civil forfeiture action for the $720 seized from him. In August 2014, his petition to expunge his conviction records was granted but 13 days later, he requested the court amend the order to include the civil forfeiture proceeding.

After the Madison Circuit Court denied the request and the Indiana Court of Appeals reversed, the Supreme Court granted transfer. Oral arguments in D.A. v. State of Indiana, 48S02-1604-MI-000183, were heard June 2.

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Barnes & Thornburg LLP associate David Frazee, who has been following the case but is not involved in it, said he is not surprised the Supreme Court accepted transfer. Given the sheer number of people who have a civil forfeiture accompanying their convictions, the outcome of this case — whether affirming or reversing the trial court — will ripple far beyond those directly involved.

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D.A.’s attorney, Andrew Barker of Barker Hancock & Cohron LLC, claimed the expungement statute, Indiana Code 35-38-9, is ambiguous. Pointing to the language, he said the law allows for court files to be expunged that “relate to the person’s felony conviction.” The Legislature could have limited the application to only criminal matters but instead it used broad language that demonstrates the General Assembly’s intention to include civil cases connected to the criminal conviction.

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Indiana Deputy Attorney General Henry Flores Jr. argued the plain language of the expungement statute does limit the application to criminal conviction records. The forfeiture is separate from the criminal act since by nature forfeitures are civil actions that can happen without the owner of the property being charged or convicted of a crime. Attorneys commenting on the case were not convinced by the state’s argument. Calling the state’s argument a “little bit outlandish,” Andrew Ault, senior attorney at Indiana Legal Services, said the civil forfeiture has everything to do with a criminal conviction.

Chief Justice Loretta Rush inquired into the state’s thinking during oral arguments. She told Flores she could not think of anything more closely connected to a criminal conviction than a civil forfeiture, and she asked what was the harm in expunging the civil forfeiture?

Flores responded that expanding the statute would, in part, bring countless litigation and burden both prosecutors and the courts, which would have to examine the ancillary collateral material to determine if it is related to the criminal conviction.

Attorneys do not expect a decision from the Supreme Court will clear up the questions spurred by the expungement statute.

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Tarek Mercho of Mercho Caughey & Delay said the ambiguity that is in the statute will have to be interpreted as different situations arise. It will not put to bed all the issues surrounding what is and is not related to the expungement, he said.

Still Mercho questioned why the state was fighting a civil forfeiture and speculated the “state of Indiana is looking for ways to keep people in the system.”

The case of first impression divided the Court of Appeals.

In a December 2015 opinion, Judges Edward Najam and James Kirsch overturned the Madison Circuit Court, finding that the civil forfeiture was related to the criminal conviction and should be expunged. However, Judge Michael Barnes dissented. He argued the Legislature crafted the statutes, and the list of records subject to expungement did not include civil forfeitures.

That was a theme Justice Robert Rucker picked up in oral arguments. He asked Barker why the Indiana General Assembly did not include civil forfeitures in the list of records that could also be expunged.

“Rather than the court to say, yes it is there, seems to me the Legislature could have included it if they wanted to include civil forfeitures,” Rucker said.

Barker replied, “They could have, judge, but they didn’t and I don’t think they needed to with the language they selected.”

Rucker countered, “So the silence on behalf of the Legislature in this area means that we now open up all civil forfeitures …?”

Barker responded, “The Legislature chose the words ‘related to’ and chose the words ‘court file.’”

Rucker asked, “And you think they… contemplated civil forfeitures?”

Barker concluded, “I think they contemplated civil forfeitures for any potential case, judge, where there’s a significant nexus.”

Also in his dissent, Barnes maintained connecting a civil forfeiture to a criminal conviction would be giving preferential treatment to the lawbreaker. The individual who has property forfeited but is never convicted would not be able to get the complaint expunged whereas the felon would be entitled to relief.

Mercho noted in that scenario, the individual who has no conviction would have nothing to remedy. This person would not have to check the box on employment applications or otherwise publicly disclose the forfeiture.

Ault agreed and noted forfeitures without a criminal charge are very rare.

“It would actually be very bad policy to deny expungement of the 99.9 percent of the cases where the owner is charged with a crime to protect the 0.01 percent of forfeiture defendants who are not charged with a crime,” he wrote in an email.•

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