Appeals court: No judicial discretion in some expungement cases

2014-04-17T18:00:00Z 2014-04-18T11:27:05Z Appeals court: No judicial discretion in some expungement casesDan Carden dan.carden@nwi.com, (317) 637-9078 nwitimes.com
April 17, 2014 6:00 pm  • 

INDIANAPOLIS | Judges do not have discretion to deny a valid request for expungement of a low-level felony or misdemeanor criminal record, the Indiana Court of Appeals ruled Thursday.

In the first legal test of the state's 2013 expungement law, the appellate court reversed Lake Superior Judge Salvador Vasquez's decision to reject the expungement request of a Valparaiso man who pleaded guilty in 2004 to sexual misconduct with a minor, a Class D felony that Vasquez reduced to a Class A misdemeanor in 2006 after the perpetrator successfully completed probation.

Vasquez claimed a provision in the expungement law requiring him to consider the victim's response to the expungement petition gave him the option of denying the request for expungement.

But in a 3-0 ruling written by Chief Judge Nancy Vaidik, a Porter County native, the appellate court determined the statue's declaration that a judge "shall order" a low-level felony or misdemeanor conviction expunged, provided other conditions are met, bars judges from rejecting those expungement petitions.

"It is well settled that the use of the word 'shall' is construed as mandatory language," Vaidik said. "Had the Legislature intended the expungement of conviction records to be discretionary, it would have used the word 'may' instead of the word 'shall.'"

Vaidik notes the law says judges "may" grant expungement requests for more serious felonies, indicating the General Assembly preferred judicial discretion in some cases and favored automatic expungement in others.

She said the victim's response could prove helpful where the law requires a judge to weigh an expungement decision, but does not authorize a judge to deny an otherwise valid petition in a nondiscretionary case.

State lawmakers earlier this year, in House Enrolled Act 1155, eliminated the requirement that a judge consider a victim impact statement in expungement cases, effective July 1, and simplified the expungement process to make the erasure of criminal records for now law-abiding citizens nearly automatic in most cases.

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