Mosley v. Lowe
298 Ga. 363
| Ga. | 2016Background
- In Feb. 1996 Belinda Lowe was arrested for simple assault; the charge was nolle prossed in May 1996 when the victim failed to appear.
- Georgia substantially amended OCGA § 35-3-37 (effective July 1, 2013), replacing expungement with an expanded automatic "restriction" regime for non-conviction records.
- The amended statute contains an express mechanism for applying restriction to arrests that occurred before July 1, 2013 by written request to the arresting agency and prosecutorial review.
- In Aug. 2014 (after the amendments), Lowe requested restriction of her 1996 arrest; the Clayton County Solicitor General (Mosley) denied the request.
- Lowe petitioned the superior court for review; the superior court reversed, holding the amended statute applies to pre-2013 arrests and does not violate the constitutional ban on retroactive laws.
- The Georgia Supreme Court affirmed, concluding the statute clearly covers pre-2013 arrests and that applying it only affects a public right (access to records), not a vested private right.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2013 amendments to OCGA § 35-3-37 apply to arrests occurring before July 1, 2013 | Lowe: the amended statute's text and subsection (n)(1) permit restriction requests for pre-2013 arrests | Mosley: amendments should not apply retroactively to prior arrests | Held: The statute's plain language applies to pre-2013 arrests (amendments control) |
| Whether applying the amended statute retroactively violates the Georgia Constitution's prohibition on retroactive laws | Lowe: no constitutional problem because only public access rights are limited | Mosley: retroactive application would impair vested rights, violating the Constitution | Held: No violation — the change affects a public right (access) that cannot vest as a private right, so retroactive application is permitted |
| Whether Lowe's 1996 nolle prosequi fits within the amended statute's eligibility for restriction | Lowe: nolle pros disposition is explicitly covered by subsection (h)(2)(A) and no disqualifying exception applies | Mosley: (conceded below that if statute applies, Lowe would be eligible) | Held: Lowe is eligible for restriction because the 1996 charge was nolle prossed and no statutory exception applies |
Key Cases Cited
- Deal v. Coleman, 294 Ga. 170 (clarifies that statutes granting public access create public, not private, rights and that modifying such schemes retroactively does not violate the Constitution)