Ct. of Appeals hands down important case re: Expungement of criminal records.

   On Friday May 25th. the Court of Appeals handed down an important decision relating to  expungement.  The basic decision held that there can be no expungement in situations where a charge is dismissed with without prejudice.   Since the charge is dismissed without prejudice that means it can be refilled by the Commonwealth.  The legislature, the Court noted, did not include dismissals “without prejudice? in the category of charges that could be expunged. 

 

That being said, the decision goes on to discuss a procedure that may be of use to some of you clients.  That procedure is permitted by KRS 17.142  which permits application for the segregation of records when all charges have been dismissed, without the requirement of a dismissal with prejudice.  This procedure will not apply to court records, but it may be effective for other types of records retained by the police.
 

The decision also provides an interesting insight into expungement policies in Federal Court cases. 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.  Kentucky case law is scarce when dealing with inherent powers to expunge records. But in a proper case you might want to consider an application for expungement based on the Federal theory.

 

LAWREADER SYNOPSIS:
For full text of case click case number 2005-CA-000829
 

TO BE PUBLISHED    FAYETTE CIRCUIT COURT
COMMONWEALTH OF KENTUCKY
VS.
HOLLOWAY (DARWIN E.)
 

OPINION REVERSING
STUMBO (PRESIDING JUDGE)
KNOPF (CONCURS) AND ABRAMSON
(CONCURS IN RESULT ONLY)
 

 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
 

Case law says that a court can expunge judicial and executive records in instances that do not have statutory authority
 

 Allowing the police broad discretion in retaining arrest records enables them to utilize more efficiently their facilities for combating crime
 

expungement is ordinarily reserved for remedying the denial of an individual’s constitutional rights. 
 

KRS 17.142 permits application for the segregation of records when all charges have been dismissed, without the requirement of a dismissal with prejudice.
 

 

STUMBO, JUDGE: This appeal comes from a Fayette Circuit Court decision granting Darwin Holloway’s petition for the expungement of all records concerning a 1996 case.
 

In May of 1996, Holloway was charged with various felony and misdemeanor theft crimes. The case was submitted to the Grand Jury, but a No True Bill was returned and
the charges dismissed. In March of 2005, Holloway filed a Petition for Expungement pursuant to KRS 431.078, which states in pertinent part:
 

The Commonwealth’s response to the petition noted that KRS 431.078 applies only to convictions for misdemeanors or violations. The Commonwealth also
pointed out that KRS 431.076, which also concerns expungements, applied only to instances in which the accused was either acquitted of the charges or the charges were dismissed with prejudice
 

Thus, the Commonwealth argued, neither statute was a vehicle for relief for Holloway since a charge that results in a No True Bill finding by the Grand Jury is not
dismissed with prejudice and can be refiled by the Commonwealth. RCr 5.22(3).
 

The trial court found this to be a situation that seemed to slip between the cracks of KRS 431.078 and KRS 431.076. Neither statute directly deals with the
situation where a grand jury declines to take action on a felony charge
 

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.
 

 In U.S. v. Doe, 556 F.2d 391, 393 (6th Cir. Ohio 1977), the court states that it 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 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.
 

. Allowing the police broad discretion in retaining arrest records enables them to utilize more efficiently their facilities for combating crime.
 

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); see also 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.
 

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.
ABRAMSON, JUDGE, CONCURS IN RESULT ONLY.
 

BRIEF FOR APPELLANT:
Gregory D. Stumbo
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
NO BRIEF FILED FOR APPELLEE
 

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