Every once in awhile the Supreme Court sends a message that if an enterprising litigant will submit the right case that the court may be amenable to consider relief that they have not previously granted.   They can only work with the material sent them on appeal.


The efficient LawReader staff found such a message in a concurring opinion by Justice Cunningham issued in June of 2009.  So if you seek an expungement that is not otherwise authorized by statute, then you might consider sending this issue to the Supreme Court.


In Gibson v. Commonwealth, No. 007-SC-000481-DG (Ky. 6/25/2009) (Ky., 2009)

Justice Cunningham said:



        I concur with the excellent opinion of Justice Venters. Furthermore, it is my opinion that the trial court’s characterization of dismissing a criminal charge “with prejudice” is an unconstitutional invasion by the judiciary into an executive function, and is without any legal effect pursuant to Sections 27 and 28 of the Kentucky Constitution. The trial court has no constitutional authority to instruct the prosecution as to what crimes it can prosecute.


        I would also point out for the benefit of the hapless Appellant — with whom I am sympathetic — that upon a showing of “extraordinary circumstances” there appears to be some wiggle room for expungement, in spite of KRS 431.076. Commonwealth v. Holloway, 225 S.W. 3d 404 (Ky. App. 2007). While the issue is not before us in this case, I would be in favor of adopting the balancing test when it comes to expungement as mentioned in Holloway, and as set down in Diamond v. U.S., 649 F.2d 496 (7th Cir. 1981).



In Commonwealth v. Holloway, 225 S.W. 3d 404 (Ky. App. 2007).  The court suggested that the court has the right to grant expungements which are not otherwise authorized by KRS 431.076 under “its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights.”

The Court in Holloway said:

“The Commonwealth argues that the trial court ignored the language of the statute and failed to give it its plain meaning, that the court was without inherent power to order expungement absent legislative authorization, and that, by ordering expungement, the court violated the separation of powers. This Court agrees with the Commonwealth’s first argument, but disagrees with its other two. Regardless, this Court finds that there was no justification for expungement under the law and hereby reverses the order of the Fayette Circuit Court.

        ”Where the words used in a statute are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as it is written.” Griffin v. City of Bowling Green, 458 S.W.2d 456, 457 (Ky.1970). Here, the words of KRS 431.076 are clear and unambiguous. They plainly state that records can be expunged when there is a verdict of not guilty or when a case is dismissed with prejudice. The Legislature intentionally put the words “with prejudice” in the statute. Reading the statute to also include instances where a case was dismissed without prejudice would disregard the plain language of the statute. “[A] court may not insert language to arrive at a meaning different from that created by the stated language in a statute.” Peter Garrett Gunsmith, Inc. v. City of Dayton, 98 S.W.3d 517, 520 (Ky.App.2002).

        As for the Commonwealth’s other two arguments, case law says that a court can expunge judicial and executive records in instances that do not have statutory authority. U.S. v. Doe, 556 F.2d 391, 393 (6th Cir.Ohio 1977), the court states that “[i]t is within the inherent equitable powers of a [court] to order the expungement of a record in an appropriate case.” Kentucky case law is scarce when dealing with inherent powers to expunge records. The issue, however, has been heavily litigated in federal courts. Most federal courts hold that a court can use its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights. U.S. v. Gillock, 771 F.Supp. 904, 908 (W.D.Tenn.1991).

        The courts’ power to expunge matters from records is one of `exceedingly narrow

[225 S.W.3d 407]

scope’ to be reserved for extreme cases and is not to be used routinely. The mere fact that an individual is not convicted on the charges on which he was arrested does not entitle him to expungement of the arrest record. Rather, expungement is ordinarily reserved for remedying the denial of an individual’s constitutional rights.

        Coles v. Levine, 561 F.Supp. 146, 153 (D.Md.1983) (citations omitted). In the case at bar, there were no constitutional infractions alleged that required a remedy; nor were there extraordinary circumstances found to take into account. “To permit law enforcement officials to retain arrest records, photographs or fingerprints promotes more effective law enforcement. Allowing the police broad discretion in retaining arrest records enables them to utilize more efficiently their facilities for combating crime. Moreover, arrest records may be vital in curbing the growth of crime.” U.S. v. Rosen, 343 F.Supp. 804, 809 (S.D.N.Y.1972). Since there is a public interest in keeping criminal records, absent some showing of extraordinary circumstances, records cannot be expunged.


There is a string of cases from the United States Court of Appeals for the Seventh Circuit that use a balancing test to determine whether or not a court can expunge records. In Diamond v. U.S., 649 F.2d 496 (7th Cir.1981), that court approved a “case-by-case approach” in which “`the court must weigh the reasons advanced for and against expunging arrest records.’ If the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records, then expunction is appropriate.” Id. at 499 (citation omitted); U.S. v. Bohr, 406 F.Supp. 1218 (D.C.Wisc.1976); U.S. v. Janik, 10 F.3d 470 (7th Cir.1993). In this case, however, there have been no factual findings that Holloway’s reasons for receiving an expungement outweigh the need of the Commonwealth to retain those records.

        We note that Holloway does have another remedy that is provided by statutory authority. KRS 17.142 permits application for the segregation of records when all charges have been dismissed, without the requirement of a dismissal with prejudice. KRS 17.142 reads:

        (1) Each law enforcement or other public agency in possession of arrest records, fingerprints, photographs, or other data whether in documentary or electronic form shall upon written request of the arrestee as provided herein segregate all records relating to the arrestee in its files in a file separate and apart from those of convicted persons, if the person who is the subject of the records:

        (a) Is found innocent of the offense for which the records were made; or

(b) Has had all charges relating to the offense dismissed; or

        (c) Has had all charges relating to the offense withdrawn.

        (2) A person who has been arrested and then has come within the purview of subsection (1) of this section may apply to the court in which the case was tried, or in which it would have been tried in the event of a dismissal or withdrawal of charges, for segregation of the records in the case. Upon receipt of such application the court shall forthwith issue an order to all law enforcement agencies in possession of such records to segregate the records in accordance with the provisions of this section.

[225 S.W.3d 408]

        (3) Each law enforcement agency receiving an order to segregate records shall forthwith:

        (a) Segregate the records in its possession in a file separate and apart from records of convicted persons;

b) Notify all agencies with which it has shared the records or to which it has provided copies of the records to segregate records; and

        (c) All records segregated pursuant to this section shall show disposition of the case.

        (4) Records subject to the provisions of KRS 431.076 or 431.078 shall be sealed as provided in those statutes.

        This statute would allow Holloway to have the records held by any public agency segregated and removed from the public record. This statute does not however apply to judicial records. Commonwealth v. Shouse, 183 S.W.3d 204 (Ky.App.2006). While this remedy does not rise to the level of an expungement, it does provide for some relief.

        The order of the Fayette Circuit Court is reversed.

        KNOPF, Senior Judge, concurs



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