James N. San Vito and his sister Patricia petition for the expungement of their arrest records, pursuant to N.J.S.A. 2A:85-15 et seq. (L. 1973, c. 191). The exceptional circumstances of this matter dictate an interpretation of this new statute.
The facts are not in dispute and relatively simple. Petitioners were arrested on November 24, 1970 in Montvale, Bergen County, on a charge of possession of a controlled dangerous substance, in violation of the then existing law, N.J.S.A. 24:18-4. Additionally, James was charged under N.J.S.A. 24:18-37 with maintaining a narcotics nuisance.
A probable cause hearing held in the Montvale Municipal Court resulted in the case being referred to the Bergen County grand jury, which subsequently found "no bill."
Upon the filing of the expungement petition I issued an order for a hearing on April 26, 1974. As required by the statute, N.J.S.A. 2A:85-16, petitioners served notice of the hearing upon the Montvale Chief of Police, the Bergen County Prosecutor and the Attorney General. In response to that notice the Attorney General's office sent me the following letter:
The Attorney General's Office will consent to an order of expungement in the above-captioned matter if the petitioner stipulates therein that he will never institute civil proceedings against law enforcement officers involved in this case.
If such a representation cannot be made, we will object to the entrance of an order of expungement in which case only the sealing remedy would be available. See P.L. 1973, Chapter 191, Paragraph 4(a).
The State maintained this position at the scheduled hearing; petitioners' attorney strongly opposed it. He candidly stated that although his clients never contemplated suing the State, he could not, in good conscience, consent to such a provision in the expungement order. Subsection 3(a) of the statute (N.J.S.A. 2A:85-17(a)) provides:
At the time appointed for the hearing, if there is no objection from those law enforcement agencies notified of the hearing, and no reason appears to the contrary, the court may grant an order directing the clerk of the court and the parties upon whom notice was served to expunge from their records all evidence of said arrest including evidence of detention related thereto, and specifying those records to be expunged.
Subsection 4(a) -- N.J.S.A. 2A:85-18(a) -- goes on to say:
If an objection is made by any law enforcement agency upon which notice was served, the court shall determine whether there are grounds for denial. If the court determines there are no grounds for denial it may grant an order directing the clerk of the court and the parties upon whom notice was served to seal their records of said arrest, including evidence of detention related thereto, and specifying those records to be sealed.
Section 5 (N.J.S.A. 2A:85-19) directs that no court shall grant an expungement order or seal the records of arrest where "ground for denial" exists. ...