State v. EXPUNGED RECORD NO. 249,044State v. EXPUNGED RECORD NO. 249,044
We are called upon in this case to determine the constitutionality of
FACTS and PROCEDURAL HISTORY
On January 9, 1998, Appellee was arrested by the Rapides Parish Sheriff‘s Office for the felony offenses of Obstruction of Justice, in violation of
The trial court ordered appellee‘s arrest record expunged, but not destroyed. After the time limitations for instituting prosecution of the crimes expired, Appellee filed a Rule to Modify Judgment or, Alternatively, Petition for Declaratory Judgment where he asserted that “(o)n January 9, 2002, the Petitioner became vested with the right to have the January 9, 1998 arrest record completely destroyed as if it never existed.” In the alternativе, Appellee argued that
On March 11, 2002, the trial court granted Appellee‘s motion and directed all appropriate entities to destroy all records in connection with Appellee‘s arrest of January 9, 1998. The Rapides District Attorney‘s Office appealed the decision to the Third Circuit Court of Appeal.
The Court of Appeal concluded that
Regarding the constitutionality of the statute, the Court of Appeal determined that there was no evidence in the record that the Attorney General had ever been served, as required by law when the constitutionality of a statute is at issue. Id. As a result, the Court of Appeal determined that the issue of constitutionality was not properly before the court, and thus the case was remanded to the trial court for further proceedings. The Attorney General was subsequently served, and on February 10, 2003, a hearing was held in the trial court on the constitutional issue.
On April 3, 2003, the trial judge signed a final judgment declaring
LAW and DISCUSSION
The determinatiоn of a statute‘s constitutionality is a purely judicial function, which is constitutionally vested in the courts.
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
Under the general rules of statutory construction, courts begin their review with the premise that legislation is the solemn expression of legislative will, and, therefore, the interpretation of the law primarily involves the search for the legislature‘s intent. Cole-Miers Post 3619 V.F.W. of De Ridder v. State, Department of Revenue & Taxation, Office of Alcoholic Beverage Control, 1999-2215 (La.1/19/00), 765 So.2d 312. However, legislative intent is not the appropriate starting point for statutory interpretation. Rather, the appropriate starting point is the language of the statute itself. In re Louisiana Health Service and Indem. Co., 98-3034 (La.10/19/99), 749 So.2d 610, 615.
In the present case,
B. (1) Any person who has been arrested for the violation of a felony offense or who has been arrested for a violation of
R.S. 14:34.2 ,R.S. 14:34.3 , orR.S. 14:37 may make a written motion to the district court for the parish in which he was arrested for the expungement of the arrest record if:(a) The district attorney declines to prosecute, or the prosecution has been instituted, and such proceedings have been finally disposed of by acquittal, dismissal, or sustaining a motion to quash; and
(b) The record of arrest and prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution. (Emphasis added)
However, only expungement, not destruction, of a felony arrest record is allowed.
(2) If, after a contradictory hearing with the district attorney and the arresting law enforcement agency, the court finds that the mover is entitled to the relief sought for the above reasons, it shall order all law enforcement agencies to expunge the record of the same in accordance herewith. (Emphasis added).
Expungement and destruction are different.
“Expungement” means removal of a record from public access but does not mean destruction of the record. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry or the Louisiana State Board of Examiners of Psychologists.
In Savoie, supra, this court concluded that, “the word `expungement’ is distinct from the word `destruction’ and that the two words cannot be used interchangeably or to mean the sаme thing. Public records which may be `expunged’ need not be `destroyed.‘” Id. at 410. Appellee argues that the inability to have his record destroyed creates a burden on the class of individuals arrested for felony violations. The record of their arrest and prosecution continues to exist, while the record of the misdemeanor arrest is destroyed. The question for the court is whether or not that burden is constitutional.
Constitutional Framework
The doctrine of equal protection is embodied in our state and federal constitutions.
The federal courts have used a three-tier system in order to determine whether a statute violates the equal protection clause. Racial classifications are constitutionally suspect, and subject to the most rigid scrutiny, because the core of the
Similarly, classifications that infringe upon substantive due process rights, such as the right to interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and the right to vote, Harper v. Virginia Bd. Of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), and 1st Amendment rights, such as the right to free speech, Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), and the right to associate, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), are also strictly scrutinized and thus held unconstitutional absent a compelling governmental justification.
The middle-tier level of analysis, commonly referred to as intermediate scrutiny, is applied by the courts in cases involving important, but not fundamеntal interests, such as cases involving gender, Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), alienage, Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), illegitimacy, Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), and wealth, Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941). When applying equal protection intermediate scrutiny analysis, the Court will uphold government conduct if it is substantially related to an important governmental interest.
Lastly, the lowest level of equal protection analysis is referred to as minimal scrutiny. Where legislation does not burden a suspect class or a constitutionally protected right, then the legislative act faces minimal scrutiny. This scrutiny is commonly referred to as the rational basis test. For example, the rаtional basis test is applicable in cases that involve economic legislation, City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), and social legislation, City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
In Sibley v. Bd. Of Sup‘rs of Louisiana State U., 477 So.2d 1094, (La.1985) this court joined a growing number of state
Louisiana‘s equal protection analysis articulated by the court in Sibley, supra, commands the court to decline enforcement of a legislative classification of individuals in three different situations:
(1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely;
(2) When the statute classifies persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; and
(3) When the law classifies individuals on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest. Id. at 1107.
Under the first situation, statutory classifications based on race or religious beliefs are absolutely forbidden classifications. In Louisiana Associated General Contractors, Inc. v. State of Louisiana, through the Division of Administration, Office of State Purchasing, 95-2105 (La.3/8/96), 669 So.2d 1185, this court held that the minority-set aside provisions of the Louisiana Minority and Women‘s Business Enterprise Act violated the equal protection clause of the Louisiana Constitution. Id. In so doing, this court concluded that
Under the second situation, a statute is unconstitutional unless the proponents of the statute prove that the classification substantially furthers an appropriate state purpose. In Manuel v. State of Louisiana, 95-2189 (La.1996), 692 So.2d 320, 338 this court applied this level of equal protection analysis in a case involving the constitutional challenge of a statute that raised the minimum drinking age from eighteen to twenty-one. Id. at 340. This court made the following determination,
(T)he standard of scrutiny appropriate for review of a statute that classifies persons on the basis of age is whether the сlassification substantially furthers an appropriate governmental purpose. There is general agreement that improving highway safety is an appropriate governmental purpose, and an important one. The narrow issue is thus whether the age classification in these statutes substantially furthers that purpose.
The court held that the law raising the minimum drinking age did substantially further the appropriate government interest of improving highway safety. Id. at 338.
In Med Exp. Ambulance Service, Inc. v. Evangeline Parish Police Jury, 96-0543 (La.11/25/96), 684 So.2d 359, the court employed this criteria to scrutinize an ordinance that required an owner or operator of an ambulance to obtain an operating permit. The court held that when an ordinance or statute does not affect fundamental rights, but is merely an economic or social regulation, it need only have a rational relationship to a legitimate governmental interest. Id. at 365.
In the case sub judice, the statutory classification distinguishes between persons who have been arrested for the violation of a felony offense and persons who have been arrested for the violation of a misdemeanor offense. The classification is determined by an individual‘s arrest status, either misdemeanor or felony.
Since the challenged classification is predicated on grounds other than birth, race, age, sex, social origin, physical condition, or political or religious ideas, the minimal standard of scrutiny is the appropriate level of equal protection analysis. Therefore, under Louisiana‘s equal protection analysis, as set out in Sibley, supra, appellee “has the stringent burden of demonstrating that the classification does not suitably further any appropriate governmental interеst.” Id. For the reasons that follow, we conclude that the trial court erred in assigning the burden of proof, and that appellee has failed to meet his burden of proof.
Under the minimal level of equal protection analysis, great deference is given to legislative determinations, and a classification is constitutional if it has a rational relationship to a valid state interest. Louisiana Seafood Management Council v. Louisiana Wildlife and Fisheries Com‘n, 97-1367 (La.5/19/98), 715 So.2d 387. Protecting the public health, safety and welfаre of citizens is a valid state interest within the meaning of the rational relationship test for determining whether a statute violates equal protection principles. Med Exp. Ambulance Service, Inc. v. Evangeline Parish Police Jury, supra.
Appellee argues that he has been denied equal protection of state and federal laws, and has been singled out for disfavored legal status and general hardship. Appellee cites Utz v. Cullinane, 520 F.2d 467 (1975), for the proposition that there is no rational reason to retain a “collection of dismissed, abandoned or withdrawn arrest records so that later those records may be bootstrapped for some unearned and undeserved significance.”
Also, appellee urges that he has been injured in his reputation, and he has suffered loss of a significant liberty interest. He asserts that this law inflicts on him and other persons similarly situated “immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed by the State.” Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
The purpose of a statute may be eithеr the elimination of a public mischief or the achievement of a public good.5 This court
In State v. Bradley, 360 So.2d 858 (La.1978), we held that a portion of
expungement of criminal records under
La.R.S. 44:9(C) , as opposed to destruction of such records underLa.R.S. 44:9(B) and(E) , removes such records only from public records. In my view, expungement does not affect the collection and processing of criminal history record information by the Louisiana Department of Public Safety or the Louisiana Bureau of Criminal Identification and Information ... nor does it affect the non-public dissеmination of criminal history record information to any court, criminal justice agency, or law enforcement agency involved in the detection, investigation, apprehension, prosecution, sentencing, confinement, release, or rehabilitation of criminal offenders. This interpretation ofLa.R.S. 44:9 is supported by Subsection F of that statute, which provides:F. For investigative purposes only, the Department of Public Safety may maintain a confidential, nonpublic record of the arrest and disposition. Thе information contained in this record may be released, upon specific request, therefor and on a confidential basis, to any law enforcement agency. The receiving law enforcement agency shall maintain the confidentiality of such record.
We concede that expunged, but undestroyed, arrest records can impact a citizen in significant areas, i.e. credit applications, licenses, job opportunities, perhaps admission to a college or university and eligibility for educational loans or grants. However, under the minimal standard of equal protection scrutiny, disfavored or unequal treatment alone is insufficient to prove a statute is unconstitutional where the State, under its police powers, has a legitimate interest being served by the classification.
CONCLUSION
In conclusion, we hold that appellee, the party challenging the constitutionality of the statute, has failed to meet his stringent burden of proving that
PER CURIAM.
Rehearing is granted for the sole purpose of clarifying one statement contained in this court‘s original opinion. In our original opinion, we stated the following:
We concede that expunged, but undestroyed, arrest records can impact a citizen in significant areas, i.e. credit applications, licenses, job opportunities, perhaps admission to a college or university and eligibility for educational loans or grants.
881 So.2d at 112. In its application for rehearing, the State contends this statement is at odds with the provisions of the Public Records Act and
I. Except to those agencies listed in Subsection G of this Section, no person whosе record of arrest and conviction has been expunged pursuant to the provisions of this Section shall be required to disclose that he was arrested or convicted for the subject offense or that the record of the arrest and conviction has been expunged, unless otherwise provided in this Section.
Accordingly, we issue this clarification to recognize the potential applicability of
In all other respects, rehearing is denied.
JOHNSON, J., would deny rehearing application of Rapides Parish District Attorney James C. Downs and Rapides Parish Sheriff William Earl Hilton and assigns reasons.
Because
An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, the Louisiana Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry or the Louisiana State Board of Examiners of Psychologists.
The medical agencies are specific, but “law enforcement agencies” and “criminal justice agencies” could be broadly construed.
Additionally, the scope of disclosure required by the statute is an issue.
Except to those agencies listed in Subsection G of this Section, no person whose record of arrest and conviction has been expunged pursuant to the provisions of this Section shall be required to disclose that he was arrested or convicted for the subject offense or that the record of the arrest and conviction has been expunged, unless otherwise provided in this Section.
However, we know from our own experience that there are agencies other than those listed in
22. Have you ever been cited, arrestеd, charged, or convicted for any violation of any law other than as a juvenile? (Omit traffic violations.)
NOTE: This should include matters that have been expunged or been subject to a diversion program.
The applicant who fails to make full disclosure of an expunged record is
Without doing an exhaustive search of all employers, educational institutions, lenders, etc., I remain оf the opinion that an individual once accused of a criminal offense, can be negatively impacted over the course of his lifetime.