Judge Waves His Magic Wand, But Cannot Deny a Seal and Expunge

Most decisions by judges do not get overruled, even when they’re wrong.  For some, this may only re-enforce their bad IMG_0461behavior because the fact is, challenges to bad rulings are often not made because most clients do not have the time or money to appeal (for those unaware, it is far more expensive to appeal a case than to handle it right from the beginning).  One of the most commonly overturned decisions is the denial of a sealing or expunging of a criminal record.

Sealing and expunging is an abnormal process for most judges, because the law presumes that a seal and expunge should be granted.  In effect, the presumption that sealings should be granted strips the judge of any meaningful participation.  If the petition is drafted properly—the presumption is that the expunge must be granted (yes, this is more difficult than it looks, and no, you can’t find this online because each is slightly different).  Ok, so why all the denials on petitions to seal and expunge?  Well, there’s one little provision in Section 943.0585 that judges like to hang their hat on.  It reads that “any request for expunction of a criminal history record may be denied at the sole discretion of the court.”  So, what does “sole discretion of the court” mean?  Sounds like trouble, right?  Wrong.  To show how limited a judge’s decision is on a seal and expunge, we’re going to take a look at the Orlando appeal found in M.N. v. State of Florida, 18 Fla. L. Weekly Supp. 921a (2010-AP-12, April 25, 2011).  In this case, the prosecutor objected to the petition to seal M.N.’s misdemeanor disorderly conduct.  Seems kind of odd, and I don’t know the facts here, but I can’t even dream up facts in a disorderly conduct that would warrant a denial of a petition to seal (sure, I can dream up felony charges that should not be sealed, but a misdemeanor?). 

In M.N., the prosecutor’s objection caused the petition to seal to go to a hearing.  At the hearing, the prosecutor presented no witnesses and no evidence to support their position that the sealing should be denied.  Without any evidence presented, the county court judge denied the petition to seal, and M.N. appealed.  As a side note here, I know the judge that denied this petition to seal, and this particular county court judge is an excellent judge, so when I read this appellate court ruling, I really could not believe it, given the excellent rulings I’ve seen from this judge over the years.  Anyway, M.N.’s case went up on appeal twice.  Right out of the gate, the appellate judges noticed one glaring problem, the judge did not say “why” he denied the sealing.  His final order was simply “it is ORDERED and ADJUDGED as follows: The Defendant’s Petition to Seal is hereby DENIED.”

Now, if you’ve read this far and not falling asleep, you’ll recall that this one sentence denial should be legal, because Florida statute 943.0585 states that the expunge “may be denied at the sole discretion of the court”.  This is true, but there are plenty of strings attached.  The above one sentence denial order is unlawful, because, if you’re going to deny a seal, the law requires an explanation.  (See Kanji v. State, 4 So. 3d 65, involving a denied expunge that was overturned because the court gave no reason as to why it did so).

To make things easy for M.N.’s judge (again, an excellent judge, typically), the appellate court sent the case back down and asked the judge to issue an amended order providing a reason based upon the facts and circumstances.  The appeals court knew that the one sentence denial was not enough.  So, the judge added some magic words that are so vague as to be meaningless, and sent the appeals court the following amended order: “it is hereby ORDERED and ADJUDGED as follows: Based upon the nature of the offense and the totality of the circumstances, the Court exercises its discretion and Denies the Defendant’s Petition to seal”.  So, the new order has three “new” reasons, (1) the nature of the offense, (2) the totality of the circumstances, and (3) the court exercising its discretion.  Is this wording any better of an explanation?  Does this new wording give the defendant any idea as to what facts and circumstances led to the denial?  No.  All three of these important sounding statements are hallow legalese that lack any sort of substance, you’ll understand why as our analysis continues.

First off, denying a petition to seal or expunge is a tricky business, because I haven’t seen any facts or circumstances which qualify for denial.  The appellate court felt that the second opinion was no better than the first, holding that, “simply because a trial court has statutory authority to ‘exercise its discretion’ does not in and of itself allow the denial of a petition without a finding of good reason(s) based on evidence presented at a hearing”. [emphasis added]  And, they went further, reasoning that “it is not enough for the order to just to say, as this one did, that it was based on ‘the totality of the circumstances’ without specifically setting forth what those facts and circumstances were”.

Let me highlight an important aspect of denying a petition to seal or expunge—the denial must be based upon evidence.  That’s right, evidence.  Where can you find this evidence?  The only place to find it is at the petition hearing itself.  The state must present evidence, typically in the form of witnesses.  Without witnesses, without evidence, the court has no basis upon which to deny the seal or expunge.  The M.N. court put it this way: “Here the trial court was unable to set forth specific reasons because there was no evidence, testimonial or documentary, presented at the hearing.  The prosecutor’s statements in her argument were not evidence.  The ‘nature of the offense’ was the only other reason stated in his amended order.  It is well settled that the nature of the charge or offense by itself is not a legally sufficient reason to deny a petition to seal.” Id.  As you might expect, M.N.’s denial was overturned and his petition to seal was granted.

One of the things that bothered me about the county court judge’s decision is that it contained the same old vague, meaningless words we find in court orders when the judge (a) is too lazy to articulate an intellectually honest opinion, or (b) simply wants a particular decision.  Under (a) and (b), the judge waves the magic wand of ‘exercising discretion’ or the ‘totality of the circumstances’–and voila—everyone thinks the opinion is valid, legal, and justified.

There are certain words in every profession that dumb down the discussion, but sound important. Magic wands are a poor substitutes for actual analysis.  We’ve come to recognize the terms used by politicians, but we’re slow to recognize these terms from other professions.   In criminal defense, the two big ones used in this case were: (1) “I’m exercising my discretion” and (2) “under the totality of the circumstances”.  But, criminal judges are not alone in their intellectual laziness.  Some scientists, confronted with things they cannot explain, wave the magic wand of known as “that’s just the way things are”.  When confronted with such a cop out, I guess there’s no reason to look any further, science has figured it out and everyone should just move along.  In cosmology, when physicists can’t explain the fine tuning of our universe, they wave the magic wand of (1) we’re just lucky, or (2) there’s a zillion other universes out there.  Really?  Do we have proof of either of these?  In biology, to explain how life began, biologists wave the magic wand of (1) “over billions of years”, or (2) it happened by “chance” or “at random”.  Does time and “randomness” explain the mechanisms at work?  Does an appeal to lots of time and chance really explain anything?  In the study of human consciousness, some scientists claim that consciousness is an “emergent” property of complex systems.  Does the word “emergent” really tell us anything?  The word “emergent” doesn’t explain, mechanically, how pieces of stardust somehow arranged themselves into complex living organisms that are now conscious.  Anyway, I could go on, but you get the point.

Basically, when you see professionals from different walks of life waving their magic wands, brace yourself.  Then, ask for a real explanation.

[PIC: my cat Nikey, sticking out his tongue]