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In re Expungement of Arrest/Charge Records of T.B.

Supreme Court of New Jersey

January 8, 2019

In the Matter of the Expungement of the Arrest/Charge Records of T.B. In the Matter of the Expungement of the Arrest/Charge Records of J.N.-T. In the Matter of the Expungement of the Arrest/Charge Records of R.C.

          Argued October 10, 2018

          On certification to the Superior Court, Appellate Division whose opinion is reported at 451 N.J.Super. 391 (App. Div. 2017).

          Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellants T.B., J.N.-T., and R.C. (Joseph E. Krakora, Public Defender, attorney; Stephen P. Hunter, of counsel and on the briefs).

          Sarah Luciano, Deputy Attorney General, argued the cause for respondent, the State of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah Luciano and Emily R. Anderson, Deputy Attorneys General, of counsel and on the briefs).

          Tess Borden argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Tess Borden, Alexander Shalom, Edward Barocas, and Jeanne LoCicero, on the brief).

          RABNER, C.J., writing for the Court.

         Drug court is designed to rid participants of drug dependency, help them develop skills and get job experience, and encourage them to continue their education. Statistics demonstrate the program's efficacy in empowering participants to lead productive lives. In these consolidated appeals, the Court considers whether drug court graduates who have a third- or fourth-degree conviction for a drug sale offense must satisfy the public-interest standard required by N.J.S.A. 2C:52-2(c)(3) when they seek expungement under the 2016 drug court expungement statute, N.J.S.A. 2C:35-14(m), and, if so, how the standard should be applied.

         The three appeals involve similar facts. T.B., J.N.-T., and R.C. had criminal records. All three pled guilty to third-degree offenses, entered the drug court program, and successfully graduated. All applied to expunge their entire record under the new drug court expungement statute, N.J.S.A. 2C:35-14(m). The trial court granted all three applications.

         The Appellate Division vacated the expungement orders and remanded, concluding that the new statute "expressly imports" the public-interest standard. 451 N.J.Super. 391, 400-01, 408 (App. Div. 2017). The panel added that "Drug Court graduates bear the burden to show they satisfy the public interest test" and must also present transcripts of hearings and copies of presentence reports for all third- or fourth-degree drug sale offenses they seek to expunge. Id. at 405-06 (citing In re Kollman, 210 N.J. 557, 572-73, 577 (2012)). Because the trial court did not conduct its public-interest analysis in accordance with Kollman, the panel vacated the expungement orders and remanded for reconsideration. Id. at 405-08.

         The Court granted the applicants' petitions for certification, 231 N.J. 400 (2017); 231 N.J. 409 (2017); 231 N.J. 410 (2017), and stayed the parts of the appellate judgment that vacated the expungement orders, 231 N.J. 411 (2017); 231 N.J. 412 (2017).

         HELD: The plain language of the 2016 drug court expungement statute requires judges to determine whether expungement would be consistent with the public interest. N.J.S.A. 2C:35-14(m)(2); id. § 52-2(c)(3). Successful graduates who have committed certain offenses and apply for expungement are entitled to a rebuttable presumption that expungement is consistent with the public interest.

         1. Expungement offers a second chance to rehabilitated offenders who have made a commitment to lead law-abiding lives. The relevant statutes have evolved over time and have steadily expanded opportunities for expungement. In 2010, the Legislature provided for expungement after five years if the applicant has not been convicted of a crime or an offense since the conviction "and the court finds . . . that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction." Kollman, 210 N.J. at 570-71 (quoting N.J.S.A. 2C:52-2(a)(2) (2010)). Some crimes are not eligible for expungement. Section 2(b) of the general expungement statute lists categories of serious offenses that cannot be expunged. Section 2(c), as enacted in 1979, made certain drug crimes ineligible for expungement except for small quantities of marijuana and hashish. In 2010, the Legislature added a third exception that allows for the expungement of drug sale offenses when "the crimes involve . . . [a]ny controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest." N.J.S.A. 2C:52-2(c)(3) (emphasis added). To make the finding under either section, courts are to give "due consideration to the nature of the offense" and to "the [individual's] character and conduct since conviction." N.J.S.A. 2C:52-2(a)(2), -2(c)(3). Section 2(c)(3) lies at the center of this appeal. (pp. 4-7)

         2. In In re LoBasso, the Appellate Division outlined various factors to consider in deciding whether expungement is in the public interest under section 2(a)(2). 423 N.J.Super. 475, 491-95 (App. Div. 2012). In Kollman, the Court adopted and applied the analysis to section 2(c)(3), 210 N.J. at 574-77, placing on the applicant the burden of proof to demonstrate that expungement was consistent with the public interest, id. at 573, and directing applicants to provide transcripts and presentence reports as part of their petition, id. at 577. (pp. 7-8)

         3. The Legislature passed a broad-ranging law in 2016, commonly known as the drug court expungement statute, which allows drug court graduates to apply to expunge their entire criminal record but carves out a number of exceptions: expungement is not available when the court finds that (1) "the need for the availability of the records outweighs the desirability of having the person freed from any disabilities associated with their availability," or (2) "the person is otherwise ineligible for expungement pursuant to paragraph (2) of this subsection." N.J.S.A. 2C:35-14(m)(1). Paragraph 2, in turn, limits the availability of expungement for drug court graduates as follows: "A person shall not be eligible for expungement under paragraph (1) of this subsection if the records include a conviction for any offense barred from expungement pursuant to subsection b. or c. of N.J.S.A. 2C:52-2. Id. § 35-14(m)(2) (emphases added). (pp. 8-10)

         4. Under section 14(m)(2), offenses like homicide, aggravated sexual assault, robbery, and the other crimes listed in N.J.S.A. 2C:52-2(b) are barred. The same is true for first- and second-degree drug sale offenses that are automatically barred under N.J.S.A. 2C:52-2(c). Yet third- and fourth-degree offenses for which expungement is not consistent with the public interest are also barred under section 52-2(c). Had the Legislature intended to exclude those cases from the limiting language in section 14(m)(2), it could have said so. But it did not. The plain language of section 14(m)(2) thus includes cases under N.J.S.A. 2C:52-2(c)(3) and calls for a public-interest assessment before third- or fourth-degree drug sale offenses can be expunged. (pp. 16-17)

         5. In considering how the public-interest analysis should be carried out under the new drug court expungement statute, the Court again starts with the statute's text. First, the drug court expungement statute allows judges to order the expungement of a person's entire criminal record. Second, the new law dispenses with the formal application process imposed by N.J.S.A. 2C:52-7 through -14. Third, the law directs that judges "shall grant" expungement unless (1) the need for the availability of the records outweighs the benefits of expungement to the applicant, or (2) the person is otherwise ineligible under section 14(m)(2). N.J.S.A. 2C:35-14(m)(1). In other words, the new law starts with a presumption that expungement shall be granted, subject to certain exceptions. Fourth, the new law places certain notification obligations on the State. Id. § 35-14(m)(2). Read as a whole, the above features reveal how the new law tends to favor expungement for successful graduates. (pp. 17-19)

         6. To determine whether expungement is consistent with the public interest, courts are to consider "the nature of the offense and the petitioner's character and conduct since conviction." N.J.S.A. 2C:52-2(c)(3). Kollman, which drew heavily on LoBasso, addressed the kind of information those factors encompass and placed the burden on the applicant to show that expungement under the general expungement statute is consistent with the public interest. 210 N.J. at 573-76. Drug court, however, focuses directly on many of the concerns described in Kollman as part of a rigorous program of supervision. For a period of up to five years, a specialized team of judges, treatment providers, probation officers, substance abuse evaluators, public defenders, prosecutors, and court staff closely track each defendant's behavior. Throughout that time, each defendant's achievements are monitored with care, and missteps often result in court appearances. Judges and other members of the drug court team thus become quite familiar with each participant and have a basis to assess each defendant's "character and conduct since conviction." N.J.S.A. 2C:52-2(c)(3). In light of the rigorous monitoring that is the hallmark of drug court, as well as the new law's overall policy in favor of expungement for successful graduates, participants are entitled to a rebuttable presumption that expungement is consistent with the public interest. As an integral part of the drug court team, prosecutors may draw on their knowledge of an applicant's character and conduct after conviction, as well as other information, to try to rebut the presumption. For the same reasons that warrant a rebuttable presumption in those cases, drug court graduates are not required to provide copies of all relevant transcripts and reports when they ask the drug court judge to expunge their records. T.B.'s, J.N.-T.'s, and R.C.'s applications should proceed before the trial court consistent with the above principles. (pp. 20-24)

         REVERSED and REMANDED to the trial court.

          JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER's opinion.

          OPINION

          RABNER CHIEF JUSTICE.

         With the strong support of all three branches of government, the court system has operated a drug court program for more than two decades. Defendants who participate in the program undergo a period of intensive supervision for up to five years. During that time, they are monitored closely by a team of treatment providers, probation officers, substance abuse evaluators, public defenders, prosecutors, and court staff. A trial judge heads the team.

         Drug court is designed to rid participants of drug dependency, help them develop skills and get job experience, encourage them to continue their education, and equip them to advance in other ways. At its core, the program tries to keep participants drug free and empower them to lead productive lives.

         According to the Administrative Office of the Courts, more than 5400 individuals have successfully completed drug court since 2002, when the program went operational statewide. Administrative Office of the Courts, New Jersey Adult Drug Court Program: New Jersey Statistical Highlights (Aug. 6, 2018), https://www.njcourts.gov/courts/assets/criminal/njstats.pdf. Nine out of ten participants are employed when they graduate. Ibid. Two out of three have a driver's license at graduation. Ibid. More than half have medical benefits. Ibid. And participants must have clean drug tests for one continuous year to be able to graduate. Administrative Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey (Drug Court Manual) 42 (July 2002), https://www.njcourts.gov/courts/assets/criminal/dctman.pdf.

         In 2016, the Legislature expanded opportunities for expungement for successful drug court graduates. They may now apply for the expungement of "all records and information relating to all prior arrests, detentions, convictions, and proceedings." N.J.S.A. 2C:35-14(m)(1). The law does not allow certain serious offenses to be expunged, however. See id. §§ 35-14(m)(2); 52-2(b), (c). In these consolidated appeals, we consider how the expungement statute for drug court graduates applies to individuals convicted of certain third- or fourth-degree offenses related to the sale and distribution of drugs.

         We find that the plain language of the new law requires judges to determine whether expungement would be consistent with the public interest. See id. §§ 35-14(m)(2); 52-2(c)(3). In light of the statute's overall approach, which generally favors expungement in a number of ways, and the rigorous nature of the drug court program, we conclude that successful graduates who have committed certain offenses and apply for expungement are entitled to a rebuttable presumption that expungement is consistent with the public interest. Prosecutors, who play an integral role in drug court, become familiar with graduates from years of intensive supervision in the program. Prosecutors can draw on their knowledge of an applicant's character and conduct since conviction, as well as other information, to try to rebut the presumption.

         The above approach is consistent with our understanding of the Legislature's intent. It also simplifies the expungement process for drug court graduates to allow them to try to reintegrate into society without the collateral consequences of a criminal record.

         Because the Appellate Division applied a different standard, we reverse its judgment and remand the three cases to the trial court for further proceedings.

         I.

         To better understand the parties' arguments and the rulings of the trial court and Appellate Division, we begin with an overview of relevant ...


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