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Justices consider whether arrest after filing can halt expungement

March 2, 2017

Indiana Supreme Court justices focused on the phrase “upon receipt” in analyzing whether an expungement must be granted to a qualified petitioner. But they also puzzled over whether the Legislature would have intended the second-chance statute to extend to people who have subsequent run-ins with the law.

Counsel for both the petitioner and the state agreed on one thing: The expungement statute is written so that questions like these continue to arise.

Justices heard arguments Thursday in T.A. v. State, 62 N.E.3d 436 (Ind. Ct. App. 2016). In this case, a 19-year-old petitioned to expunge juvenile arrests that did not involve delinquency adjudications. After the petition was filed, but before the court conducted a hearing, T.A. was arrested for an apparent misdemeanor. The trial court denied the petition, but the Court of Appeals reversed and remanded with instructions to grant it.

“This case involves a narrow question of statutory interpretation,” Deb Markisohn of the Marion County Public Defender Agency argued on behalf of T.A. Indiana Code 35-38-9-1(e) reads, “Upon receipt of a petition for expungement, the court … shall grant the petition unless … criminal charges are pending against the person.” She urged the court to vacate its grant of transfer and reinstate the COA opinion.

“The juvenile court erred by holding that the date of the hearing controlled,” she said.

Markisohn told justices “upon receipt” should be interpreted to mean the file-stamped date the petition was filed in the clerk’s office. She said such a reading “gives words their plain and ordinary meaning. ... That’s an easy way to have a bright-line rule” so that all parties would know the operative date is the one file-stamped on the petition.

But Chief Justice Loretta Rush wondered why courts may set hearings after receipt of expungement petitions, and whether Markisohn’s interpretation would rob the court of discretion if it learns of circumstances that could void a petition. What happens, she asked, if a litigant seeking to expunge an old arrest comes to court drunk or stoned?

Justice Steven David suggested that when a court sets a hearing on a petition, evidence may be presented at that time, and the petitioner may be the only one who knows of subsequent arrests or charges. He wondered whether such a scenario would allow petitioner to “manipulate the statute and play fast and loose” with courts and prosecutors. Would a court have discretion, he asked, to deny a petition if someone was charged with murder after filing a petition.

Markisohn said a plain reading of the statute still would obligate the court to grant the petition, though collateral charges could arise for the petitioner’s criminal acts in such situations.

Deputy Attorney General Eric Babbs argued that the courts should have discretion to decide on an expungement grant, and they should be able to consider arrests or charges that happened after a petition was filed. “There is no legislative intent to ignore facts at the time of the court’s hearing,” he said.

He said the statute contemplates expungement hearings as well as permits prosecutors opportunities to object to expungements in some cases. “All of those procedural steps are steps the statute contemplates,” Babbs said, noting it would seem to make hearings moot if evidence could not be presented.

Justice Robert Rucker said the case boiled down to interpretation of legislative intent, an indication the statute is ambiguous. He asked both Babb and Markisohn what the harm would be in adopting the Court of Appeals opinion that says the trial court should have granted T.A.’s petition based on the date it was filed rather than a later date. Markisohn said there would be no harm, but Babbs disagreed.

“There is no legislative intent requiring the court to close its eyes” to facts available at the time of the hearing, he said. He also said consideration of arrests or charges after the filing of a petition would further the Legislature’s intent that the so-called second-chance statute was meant to benefit petitioners who’ve “shown a capacity to be law-abiding citizens.”

Attorneys did find common ground on the expungement statute under I.C. 35-38-9-1 during Thursday’s argument. Under questioning about that statute’s ambiguities from Justice Mark Massa, Markisohn said, “It’s not the most carefully drafted statute, I agree.”  

Later, Babbs replied to questions from the court, “The statute could have been written a little more clearly, I’ll grant you that.”

Justice Geoffrey Slaughter did not participate in this case. The oral argument may be viewed here.

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