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Sunday, August 24, 2014

Ind. Courts - "Public access counselor OKs closed hearings on expungement"

That is the headline to a long, very important and thorough front-page story in the Sunday Martinsville Reporter-Times, reported by Brian Culp. (The story can also be accessed at the Ind. Econ. Digest). It should be read in full. Here are some quotes:

Indiana’s public access counselor released an opinion last week agreeing with two Morgan County judges who have closed the entire expungement process to the public.

The expungement law went into effect July 1, 2013. It gives a person convicted of a low-level crime a way to clear his or her record and shield the crimes from the view of the public and possible employers. Those proceedings were open to the public until changes were made to the law during the 2014 legislative session, and now the law includes a line stating: “A petition for expungement and an order for expungement are confidential.”

Morgan Superior Court I Judge G. Thomas Gray interprets that to mean expungement hearings, and what happens during them, are closed to the public.

The Reporter-Times filed a complaint in July with Luke Britt, Indiana’s public access counselor, challenging the interpretation by Gray and Morgan County Circuit Court Judge Matthew Hanson. The complaint challenged the judges’ decision to close the hearings, as well as their policy of omitting names on the court filings announcing expungement petition hearings — a practice that completely shields the public from the entire process.

Britt returned an opinion on Wednesday agreeing with the judges’ interpretation.

“A petition to expunge criminal records is a civil proceeding and not a criminal court filing,” Britt wrote in the opinion in reference to closing the hearings. “As such, it is not governed by the Open Door Law. … A civil proceeding may only be closed when the denial of access ‘is essential to preserve higher values and is narrowly tailored to that interest’ … .

“It is not the place of the public access counselor to weigh whether the courts are justified in making that subjective determination. Any challenge to the courts’ authority would be made through other legal channels. …”

Initially, Britt released an opinion that the petitions for expungement would be open until a judge granted them. However, after hearing the opinion on Monday, Gray objected and Britt issued a correction.

“A new statute effective July, 2014 … states that petitions and order for expungement are confidential,” Britt wrote in the correction. * * *

Hoosier State Press Association Director Steve Key said he understands the judges’ interpretation and the access counselor’s opinion based on the language of the statute as it was signed into law. However, he doesn’t believe the Legislature’s intent was to completely close the process from the public’s view. Key, an advocate for Indiana newspapers and media, attends legislative hearings that have potential impact on the media and public access.

“I don’t believe the intent of the legislature was to close the expungement hearing,” Key said Friday during a phone interview. “I think they were trying to clarify that once the expungement was done, it was closed.

“I think the interpretation by the courts is going further than the intent of the legislature. But I’m not surprised at the interpretation that was made, just looking at the language.”

To this point, expungement proceedings and processes weren’t being handled the same in every county, Key said. However, judges in other counties are likely to look at this opinion and begin closing their processes.

“With this ruling, other judges might rely on this and say, ‘Our best bet is to be closing expungement hearings,’” Key said. “This is going to require either the Legislature to say, ‘No we didn’t intend that,’ or the (Indiana) Supreme Court will have to step in and say it wasn’t what is intended.

“Otherwise, we have an expungement process that is secret.” * * *

Rep. Jud McMillin, the Brookville Republican and former deputy prosecutor who was lead author on the bill, confirmed that closing the entire proceeding was not the original intent. He isn’t upset, however, that judges are taking things in that direction.

“From the perspective of the person who drafted the legislation, my goal was that once a court ordered expungement, it should be gone, not that the entire proceeding should be closed,” McMillin said Friday during a phone interview. “I’m not upset they are taking that position, though.”

ILB: Here is the Public Access Counselor's August 18th opinion, including the correction noted in the story.

Posted by Marcia Oddi on August 24, 2014 11:30 AM
Posted to Indiana Courts