Commonwealth v. Pon

• Decision Date: 15 August 2014
• Docket Number: SJC–11542.
• Citation: 14 N.E.3d 182,469 Mass. 296
• Parties: COMMONWEALTH v. Peter PON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 296

14 N.E.3d 182

COMMONWEALTH

v.Peter PON.¹

SJC–11542.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted April 7, 2014.

Decided Aug. 15, 2014.

Pauline Quirion, Boston (Susan Malouin with her) for the defendant.

Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth.

Rahsaan D. Hall, for Lawyers' Committee for Civil Rights and Economic Justice & another, amici curiae, submitted a brief.

Rebecca A. Jacobstein, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.²

Opinion

CORDY

, J.

Under G.L. c. 276, § 100C

, second par., inserted by St. 1973, c. 322, § 1, a former criminal defendant whose case resulted in the entry of a nolle prosequi or a dismissal may obtain discretionary sealing of his or her criminal record where a judge determines that “substantial justice would best be served” by sealing. This provision, which is part of the over-all criminal offender record information (CORI) statutory scheme, is intended to enable such individuals to overcome the inherent collateral consequences of a criminal record and achieve meaningful employment opportunities. See Globe Newspaper Co. v. District Attorney for the Middle Dist., 439 Mass. 374, 384, 788 N.E.2d 513 (2003). In 2010, the Legislature enacted extensive reforms to the CORI scheme, extending access to official CORI records to more employers, housing providers, and other organizations, for limited use, and simultaneously broadening the scope of the sealing provisions to enable more individuals to shield their records from public view. See generally St. 2010, c. 256. Given the demonstrable legislative concern in these reforms about the negative impact of criminal records on the ability of former criminal defendants to reintegrate into society and obtain gainful employment, particularly in an age of rapid informational access through the Internet and other new technologies, it is apparent that the stringent standard for discretionary sealing we articulated nearly twenty years ago, in Commonwealth v. Doe, 420 Mass. 142, 149–152, 648 N.E.2d 1255 (1995), no longer achieves the proper balance of interests. We granted the defendant's application for direct appellate review following the denial of his request for discretionary sealing of his criminal record under G.L. c. 276, § 100C, and now set forth a new standard for determining when substantial justice would best be served by the sealing of certain criminal records under G.L. c. 276, § 100C, second par.³

Background. The defendant was charged in October, 2007, with operating a motor vehicle while under the influence of alcohol (OUI) and leaving the scene of property damage following

a motor vehicle accident. He admitted to facts sufficient for a finding of guilty. In September, 2008, a judge of the Boston Municipal Court Department ordered a continuance without a finding for one year with a rehabilitation program, pursuant to G.L. c. 90, § 24D

, involving probation and a recommended forty-five day suspension of his driver's license. On October 22, 2009, a judge dismissed the case on the recommendation of the probation department.

Three years later, in November, 2012, the defendant filed a petition to seal his criminal record, pursuant to G.L. c. 276, § 100C

, due to its impact on his employment opportunities.⁴ At a hearing on the petition, the Commonwealth objected to the sealing of the case because, it contended, the employment consequences articulated by the defendant were attributable to earlier, more serious charges and not to the OUI charge at issue. See note 34, infra. The judge denied the petition and further denied the defendant's motion for reconsideration. We granted the defendant's application for direct appellate review.

After oral argument before this court, the Commissioner of Probation sealed the defendant's criminal record pursuant to the administrative process set forth in G.L. c. 276, § 100A

.⁵ Accordingly,

the question of whether the judge abused his discretion by denying the defendant's petition to seal his criminal record is moot because the defendant has attained his desired relief through another process.⁶ See Ott v. Boston Edison Co., 413 Mass. 680, 680, 602 N.E.2d 566 (1992)

; Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703, 341 N.E.2d 902 (1976).

Nonetheless, we exercise our discretion to revisit the standard for discretionary sealing under G.L. c. 276, § 100C

. We may answer a question that is no longer important to the parties “where the issue [is] one of public importance, where it was fully argued on both sides, where the question [is] certain, or at least very likely, to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot.” Lockhart v. Attorney Gen., 390 Mass. 780, 783, 459 N.E.2d 813 (1984). The sealing of criminal records is of public importance, and the parties have addressed the merits of the current standard and the need for clearer guidance. Moreover, this issue undoubtedly will arise again for offenders who seek to seal their criminal records prior to the eventual sealing provided for in G.L. c. 276, § 100A, and will again be rendered moot by the passage of time inherent in the due course of litigation and appellate review. See Commonwealth v. Humberto H., 466 Mass. 562, 574, 998 N.E.2d 1003 (2013), quoting Lockhart, supra. Further, the issue has “general application to the work of the trial court” and merits discussion by this court “in order to

promote the proper administration of justice.” Doe, 420 Mass. at 143, 648 N.E.2d 1255

.⁷

, ⁸

Discussion. This case concerns the balance between the public's right of access to criminal court records and the State's compelling interest in providing privacy protections for former criminal defendants to enable them to participate fully in society. In particular, we must consider that balance in relation to the substantive and procedural standards that govern review of a petition for discretionary sealing under G.L. c. 276, § 100C

, second par. The defendant asserts that our existing substantive standard does not adequately recognize the compelling interests in support of sealing, and asks that we adopt a more flexible standard that advances the legislative intent behind the 2010 CORI reforms.⁹ The Commonwealth contends that our existing jurisprudence properly captures the balance of interests at stake and merits only minor clarification. It further asks this court to affirm the two-step hearing procedure articulated in Doe, 420 Mass. at 149–150, 648 N.E.2d 1255

, in order to ensure that adequate constitutional safeguards are afforded to the public. We conclude that a new substantive standard is necessary to achieve the legislative purpose of discretionary sealing and modify the procedure currently in place for reviewing petitions for sealing.

1. Substantive standard for sealing under G.L. c. 276, § 100C

. a. Statutory framework and legislative history. Under

G.L. c. 276, § 100C

, second par., an individual may petition the court for sealing of a criminal case ending in a dismissal or entry of a nolle prosequi, as early as the time of the disposition or at any point thereafter.¹⁰

Id. If “it appears to the court that substantial justice would best be served, the court shall direct the clerk to seal the records of the proceedings in his files.” Id.

This provision was introduced in the 1970s shortly after the passage of the initial CORI Act (act), which authorized the creation of a comprehensive criminal justice information system that would afford limited access to court-based criminal records. See G.L. c. 6, §§ 167

–178B ; St. 1972, c. 805. See also St. 1973, c. 322, § 1, inserting G.L. c. 276, § 100C. The act and its subsequent amendments attempted “to balance the public interest in having access to certain types of criminal justice information against the interest of personal privacy,” Brant, Barron, Jaffe, Graceffa, & Wallis, Public Records, FIPA and CORI: How Massachusetts Balances Privacy and the Right to Know, 15 Suffolk U.L.Rev. 23, 59–60 (1981) (Brant), “recognizing that ready access to a defendant's prior criminal record might frustrate a defendant's access to employment, housing, and social contacts necessary to ... rehabilitation.” Globe Newspaper Co., 439 Mass. at 384, 788 N.E.2d 513.

Section 100C

, and related sealing provisions in G.L. c. 276, §§ 100A and 100B, facilitated this balance by requiring or permitting the sealing of records of certain convictions, juvenile records, and nonconvictions, whose availability did not serve criminal justice purposes. See G.L. c. 276, § 100A, inserted by St. 1971, c. 686; G.L. c. 276, § 100B, inserted by St. 1972, c. 404; G.L. c. 276, § 100C, inserted by St. 1973, c. 322.¹¹ See also Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 479, 373 N.E.2d 1128 (1978) ; Brant, supra at 65 & n. 292. Once an individual's record is sealed, he or she may answer “no record” to any question regarding criminal history, and courts and the probation department must report that “no record” exists to anyone who inquires. See What Is Sealing of a Record?, Massachusetts Criminal

Offender Record Information Law § 5.2 (Mass. Cont. Legal Educ. 1st ed. 2012). Sealing therefore removes some of the social and economic barriers created by a criminal record. See Globe Newspaper Co., 439 Mass. at 384, 788 N.E.2d 513

.

The substantive standard for discretionary sealing under § 100C

, second par., where “substantial justice would best be served,” is not defined in the statute, nor does the phrase lend itself to a clear definition. See Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 601, 925 N.E.2d 9 (2010)

, S.C., 465 Mass. 297, 988 N.E.2d 845 (2013). Where the words of the statute are ambiguous, we strive “to make it an effectual piece of legislation in...