Posted: February 24, 2022
Rules of Criminal Procedure – Comment Period Closed April 10, 2022
URCrP042. Expungement. (NEW). This new proposed rule tracks the legislative changes regarding expungements.
Utah Court Rules – Published for Comment
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Posted: February 24, 2022
URCrP042. Expungement. (NEW). This new proposed rule tracks the legislative changes regarding expungements.
Please edit this so that it is internally consistent before it is adopted. At line 21 I think you meant “(b)(1)(A)(i) and (ii)” instead of “(b)(1)(A) and (B)” since (B) prohibits and does not grant automatic expungement. Line 22 refers to “slate eligible under (b)(1)(C)” but it should state “slate eligible under (b)(1)(A)(iii).” Line 32 should read “(b)(1)(A)(i) and (b)(1)(A)(ii)” instead of the way it now reads. Since there is no subsection (d)(1) line 36 should read “(b)(2)(A).”
Just read it and came here for the same reason that Judge Westfall did. “Automatic” expungements for the reports mandated in (b)(1)(C) appear at (b)(1)(A) (i) and (ii). And “clean slate eligible” cases are at (b)(1)(A)(iii).
I agree with Judge Westfall’s recommendation to fix the numbering error. Here are ten additional concerns:
1. Proposed subsection (b)(3)(A) says that the prosecutor must e-file an objection, but the list of cases is coming from the AOC via email and under the e-filing system the objection would be e-filed in the case with the sitting judge. Unless the AOC plans to look at every single case to see whether an objection was e-filed, it seems that sending objections to an AOC email would be the only way to let the AOC know about the objection. And yet subsection (3)(B) says that if the objection is not properly e-filed, it will be rejected. The rule should be changed so that either the objection needs to be submitted to the AOC or the judge court receiving the order from the AOC must check the docket for an objection and be restrained by any e-filed objection.
2. Proposed subsection (c)(2) doesn’t address district attorneys, excluding Salt Lake County from the rule. Additionally, it turns county/district attorneys into forwarding services when it says a petitioner can give any petition to the county attorney if “the petitioner is unable to locate the prosecutor’s office.” This will incentivize pro se and represented petitioners to send all expungement petitions to the county/district attorney, leaving it to the county/district attorney to figure out where the petition belongs, resulting in increased work for county attorneys and increased delay in responses to petitions.
3. Proposed subsection (c)(4)(B) tells prosecutors to “include” an approved form victim objection, a copy of the petition, certificate of eligibility, and copies of statutes and rules. But it’s not clear where all these documents should be “included” under the proposed rule. With the passage of SB35 in the 2022 General Session of the Utah Legislature, the statutory requirement for prosecutors to provide notice via first-class mail was removed and replaced with a requirement to “make a reasonable effort to provide notice to any victim of the conviction or charge.” This change was necessitated by the impracticality of prosecutors finding the mailing address of a crime victim years or even decades after the offense. Very few mailed notices are getting to crime victims. In a few cases, prosecutors may have an email address that is still valid. Overwhelmingly, if any valid contact information still exists in the prosecutor’s file, it is a phone number. While the Expungement Act requires certain items be included with a victim notice, those requirements provide rights to the victim to receive documents as a matter of policy, they do not affect the judicial process. Accordingly, they should not be included in the rule and including them may open the door for procedural challenges to expungement petitions unrequired and unanticipated by the Expungement Act.
4. Proposed subsection (c)(4)(C) requires prosecutors to file a “certificate” either verifying the date of service of notice or a “certificate” disclosing the efforts to notify the victim. This is not required by statute, adds extra work for prosecutors, and can be accomplished by using the current form stipulation for prosecutors with an extra line indicating that the prosecutor’s reasonable efforts to notify the victim were unsuccessful.
5. Proposed subsection (c)(4)(D) requires judges to make a finding about the adequacy of the prosecutor’s efforts to notify the victim, but under the statute, judges may grant a hearing after 60 days if no objection is received. This language implies that judges won’t really be able to grant an expungement without a hearing if the victim hasn’t received notice. The ultimate result will be unnecessary delays and denied expungements.
6. Proposed subsection (c)(5)(A) gives victims 35 days to respond after the court provides notice to the prosecutor. There’s a problem with that since the court doesn’t provide the notice to the prosecutor. See lines 55-60. The Expungement Act provides 60 days for responses after a petition has been filed before a judge may grant the petition without a hearing. See Utah Code Ann. Subsection 77-40-107(6). Those sixty days provide a buffer for the appropriate prosecutor to receive notice of the petition (a necessity further delayed by proposed subsection (c)(2)), for the prosecutor to attempt to locate and notify the victim, and for the victim to submit any desired stipulation or objection to the prosecutor or the court. The court is not able to know when the victim received notice unless the court takes it upon itself to serve notice on the victim, a requirement not anticipated by the statute. Accordingly, this proposed time restriction should be removed and replaced with the 60 days from filing timeline in the Act.
7. Proposed subsection (c)(5)(A) and (B) requires a victim, a non-party to the criminal case, to file an objection in the court and serve legal notice of the objection to the prosecutor and the defendant. Who will be paying for the victim’s attorney to do this? The statute directs prosecutors to provide victims with instructions for registering an objection with the court. As the victim is most often neither law-trained nor represented, many prosecutors provide victims with the option of either filing an objection themselves or providing the objection to the prosecutor who then files the objection. All the statute requires is that the victim is given instructions for “registering an objection with the court.” This proposed subsection dictates how a victim can exercise their statutory rights. It wrongly assumes that victims have all the legal savvy needed to file an objection with the court and serve notice on the parties in accordance with the rules of civil procedure. This proposal will impair rather than empower victims’ voices.
8. Proposed subsection (c)(5)(D) addresses when a victim has not been served notice within sixty days by saying the victim can request permission for additional time to respond. This won’t help victims who never receive notice as they’ll never know to ask for an extension. Moreover, pursuant to proposed subsection (c)(4)(C), the prosecutor must file a certificate with the court within seven days of notifying the victim. So this language suggests prosecutors may no longer have time limits to serve notice to victims. And again, all this is a full-scale reversal from the statute’s language and policy which alleviated the burden of “first class mail” to making a reasonable effort to notify victim.
9. Regarding proposed Subsection (c)(5)(E), expungement orders are bells that can’t be easily unrung. Many agencies destroy records after receiving an expungement order even though the Expungement Act refers to sealing or otherwise restricting access. There is no way to undestroy a record. This also provides a substantive right beyond the language in the Expungement Act.
10. Proposed subsection (c)(8) contradicts the statute which requires waiting 60 days after a petition is filed before a court can grant an expungement without a hearing. The 60 days builds in time for a prosecutor to be notified and to attempt to notify the victim. If (c)(8) is implemented, the statutory 60 days will be shrunk to as little as 36 days by any proactive petitioner, in violation of the Act.
Judge Westfall is right, but by the time the committee gets done incorporating the necessary changes outlined by Will and maybe mine, the cross references will have changed too!
My comments closely align with those made by Will, so I have grouped them using the same numbers he did and addressed those issues in turn.
1. The requirement to e-file an objection to a clean slate eligible case, and state the grounds for that objection, is intentional. The programming of CORIS will remove the cases for which an objection is filed from the clean slate eligible list of cases that are forwarded to the Presiding judges for automatic expungement. Plus, the courts in which the objections are filed can determine the validity of any objection (there are only three valid reasons to object) and hold further hearings if necessary. Lastly, if a defendant ever wonders why a case that they had assumed had been expunged through clean slate has not been, the objection in the court file will provide the reason. It is a quite elegant solution.
However, the rule should recognize there are two lists being promulgated with different procedures needed. First is the list of (pre-objection) Clean Slate Eligible (CSE) cases that need to go the prosecutor, be screened for objections and then refiltered by the AOC to remove cases with objections. That will take time. Let it take time and then when the filtered list of CSE cases is ready, they will be included in the next month’s list of auto expungement cases.
That list of cases for Automatic Expungement (BTW, why do we remove the e before the m in judgment, but not in expungement) would include acquittals; cases dismissed with prejudice, except successfully completed PIAs; and the filtered list of CSE cases. The rule should reflect that those two processes are running alongside each other, not sequentially, every month.
2. Interestingly, the reference to county attorney (and omission of district attorney) is in SB 35 (line 947-953 and codified at 77-40a-305(5)(b)). But to fix it, just add a definition to the rule that says “county attorney” includes “district attorneys” or just use both. To the substantive point. Every criminal case has a prosecuting entity. It is only those instances where people are seeking to expunge the records of an arrest that did not result in charges that need to go to the County/District Attorney, as the statute requires that. I think we need to break that little subset out of the main process, it will be less confusing.
More importantly, the proposed rule completely shifts the statutory burden of providing notice of these petitions from the courts to petitioners. See 77-40a-305(5)(a). Every court knows who every prosecuting agency is. We require every agency to provide us an email address. The rule should mirror the statute and require the court to email notice to the prosecuting agency (or county attorney/DA for unfiled arrests) and start the clock counting from there.
3. This rule of procedure should follow the substantive law. It is probably a good idea to have standard forms, for the prosecutors to file objections to clean slate, to notify courts of waivers of hearing etc. But when the statute only requires reasonable effort, then I don’t think a procedural rule should dictate the substance of that effort.
4. My comments here address the valid the concerns raised by Will in 4, 5, and 6. To the point in #4, We can accomplish this by a prosecutor filing a declaration covering the three available scenarios: 1. They have sent notification to a known victim at the contact information they possess. 2. They have, after reasonable effort, been unable to locate any contact information for a known victim. Or, 3. There is no discernable victim for the offenses for which expungement is sought. The prosecutor can file that certification by itself or in conjunction with a motion to waive any hearing, or with an objection. In scenarios 1 or 2, the court will have to wait the full 60 days before entertaining the petition as the statute allows that much time before proceeding. In the third case, where the prosecutor has identified no victim, and waives a hearing, the court can then entertain the petition as soon as the waiver is received. What is the point in waiting a full 60, when the only one who could object has indicated they will not? But in an abundance of caution, we could set everything on hold for 60 days.
5. See # 4 above.
6. Again, appears to be more substance than is required by the statutory scheme.
7. Victims should be allowed to file objections directly; through a prosecutor; or also just to indicate that they would like to address the court at a hearing. This would move the case onto a hearing calendar and notice would go from the court to all interested parties. Much simpler process for those cases which require it.
8. Handling the cases as per #7 above would alleviate the need for this.
9. Will is right. The statutory process for expungement is what it is. It does not include an “undoing” provision. There may be other mechanisms in our rules for addressing the issue. But this provision seems to add a substantive aspect to the statutory scheme.
10. This was addressed above, I think within the ambit of the statute, divide the cases into two types: 1. We potentially COULD receive an objection within 60 days (no prosecutor response OR identified victims) and those where we will NOT receive an objection (waiver from prosecutor AND no victim). In the latter scenario, I think proceeding upon receipt of the waiver would be appropriate.
I thank the Committee for engaging in this effort. For all the reasons outlined by Judge Westfall, Mr. Carlson, and myself, it does look like the Committee will have to redraft this proposal to more closely align with the statutory substance of the new Expungement Act.
Good Luck.