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Just days after a Journal story revealed that criminal records expungement petitions would be automatically sealed from the public before a judge considered their merit, the state Administrative Office of the Courts announced a reversal of the proposed practice Tuesday.
The automatic sealing, which is awaiting approval by the state Supreme Court, would have added another layer of confidentiality to the new sweeping criminal expungement law that takes effect Wednesday.
“Until the Supreme Court has approved new rules, recommendations from the Administrative Office of the Courts will not be put into place for the sealing of expungement petitions,” AOC spokesman Barry Massey said Tuesday.
Under the recommendation now on hold, court hearings on such petitions would be open to the public. But because the petitions would be sealed, there would be no notice of the hearings on public court docket sheets. As a result, the public wouldn’t know when or where the hearings would occur.
The decision by the AOC to wait until the Supreme Court decides to act was lauded by the executive director of the New Mexico Foundation for Open Government.
“There’s no accountability when even the process is sealed,” said Melanie Majors, FOG executive director. “Without an open process, how is the public to know what this law is designed to do and that it is not being abused? The process needs to remain open until a record is actually expunged.”
Under the new expungement law, New Mexico courts can limit public access to a wide range of public arrest and conviction records after a waiting period. There are some exceptions for convictions for crimes against children, offenses that caused great bodily harm or death to another person, certain sex offenses, embezzlement or DWIs.
People seeking to remove all public documentation of their arrests or convictions can file a petition on their own, or through their lawyers, under the law, signed by Gov. Michelle Lujan Grisham in April. The records can still be used internally by law enforcement and courts.
The Legislature left it up to the AOC and the state Department of Public Safety to develop rules to implement the law.
As a result, the AOC had proposed that courts around the state seal the petitions at the time they are filed with clerk’s offices, the Journal reported Sunday.
The law requires the petitioners to present documentation to the judge showing their records are eligible for expungement. A judge is supposed to ensure there are no outstanding criminal charges against the person and render a decision in 30 days. The proposed AOC rules would also have required automatic sealing of expungement petitions that were denied.
But Massey told the Journal on Tuesday, “There will be no automatic sealing of any petitions, including those not granted.”
Celina Jones, an AOC attorney, told the Journal last month that a “judges user committee” had agreed with the AOC idea of sealing the petitions from the outset. That committee of about 20 judges helps advise the Supreme Court on court operations and procedures.
But Massey said Tuesday that another group – the Supreme Court’s committee on Rules of Civil Procedure for State Courts – will be considering whether changes are needed in the rules of procedure because of the expungement law.
And any rules proposed would be subject to the Supreme Court’s rule-making process, which includes publishing them for a public comment period. The Supreme Court makes the final decision.
Currently, there are court rules that allow for the sealing of court records in civil proceedings, but that’s not automatic. A party in the case or member of the public must first make a sealing request, and the motion must be approved by a judge.
“I can understand the court’s hesitance to categorically seal all of the petitions to expunge,” said Christopher Dodd, New Mexico Criminal Defense Lawyers Association board member.
But he said he hopes the court understands that granting a petition to expunge and then leaving it unsealed and available to the public would render the process meaningless.
He anticipates petitioners and attorneys having to file a motion to seal the proceedings along with their petition to expunge.
“If the court grants the petition to expunge, I would anticipate that the court would also grant the motion to seal,” he said.
The state judiciary has provided forms on its website for people who want to file petitions.