Recipient of Final Expunction Order in McNairy Cnty. Circuit Court Case No. 3279 v. Rausch

• Decision Date: 27 May 2022
• Docket Number: M2021-00438-SC-R11-CV
• Parties: RECIPIENT OF FINAL EXPUNCTION ORDER IN MCNAIRY COUNTY CIRCUIT COURT CASE NO. 3279 v. David B. RAUSCH, Director of the Tennessee Bureau of Investigation, and Tennessee Bureau of Investigation
• Court: Tennessee Supreme Court

645 S.W.3d 160

RECIPIENT OF FINAL EXPUNCTION ORDER IN MCNAIRY COUNTY CIRCUIT COURT CASE NO. 3279

v.David B. RAUSCH, Director of the Tennessee Bureau of Investigation, and Tennessee Bureau of Investigation

No. M2021-00438-SC-R11-CV

Supreme Court of Tennessee, AT NASHVILLE.

January 26, 2022 Session¹

FILED May 27, 2022

Daniel A. Horwitz and Lindsay B. Smith, Nashville, Tennessee, for the appellant, Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; and Robert W. Mitchell, Miranda H. Jones, and Mallory K. Schiller, Assistant Attorneys General, Law Enforcement and Special Prosecutions Division, for the appellees, David B. Rausch, Director of the Tennessee Bureau of Investigation, and the Tennessee Bureau of Investigation.

Sharon G. Lee, J., delivered the opinion of the Court, in which Roger A. Page, C.J., and Jeffrey S. Bivins and Holly Kirby, JJ., joined.

Sharon G. Lee, J.

In this interlocutory appeal, we address whether the Tennessee Bureau of Investigation ("the TBI") may refuse to comply with a final expungement order issued by a trial court. We conclude that the TBI lacks authority to refuse to comply with a final expungement order. Thus, we reverse the trial court's judgment, grant the Plaintiff's motion for partial judgment on the pleadings, and remand this matter to the trial court for any further proceedings consistent with this opinion.

I.

This appeal arises from the trial court's denial of cross-motions for partial judgment on the pleadings. The parties do not dispute the relevant facts, and the following summary derives from the allegations of the complaint, which are taken as true, and from admissions in the record.²

In February 2015, the Plaintiff, an unnamed citizen of McNairy County, Tennessee, negotiated a judicial diversion agreement³ in McNairy County Circuit Court Case Number 3279. Tenn. Code Ann. § 40-35-313(a) (2019 & Supp. 2021).⁴ This agreement resolved two criminal charges. The State agreed to dismiss one criminal charge, and the Plaintiff consented to complete four years of probation in exchange for the dismissal of the remaining charge and expungement of both charges.

By February 2019, the Plaintiff had successfully completed four years of probation. He petitioned for expungement of his records and paid the then-applicable $350 expungement fee.⁵ The State of Tennessee, through an assistant district attorney general, consented to expungement and submitted an agreed, joint, proposed expungement order to the trial judge, who approved and entered the order on February 19, 2019. The order provides:

It is ordered that all PUBLIC RECORDS relating to such offense above referenced be expunged and immediately destroyed upon payment of all costs to clerk and that no evidence of such records pertaining to such offense be retained by any municipal, county or state agency , except non-public confidential information retained in accordance with T.C.A. § 10-7-504 and T.C.A. § 38-6-118.

(Emphasis added). Neither the State nor the Plaintiff filed any post-judgment motion or appeal following entry of the expunction order. The TBI did not seek to intervene in the expungement proceeding.

Thirty days later, in March 2019, the expunction order became final. State v. Allen , 593 S.W.3d 145, 154 (Tenn. 2020) ("[A] trial court's order becomes final thirty days after its entry, unless a timely notice of appeal or appropriate post-trial motion is filed."). A copy of the expunction order was sent to the TBI within thirty days of its entry as required by law.⁶ The TBI's receipt of the expunction order triggered another statute, Tennessee Code Annotated section 40-32-102(b), which provides that "[t]he [TBI] shall remove expunged records from the person's criminal history within sixty (60) days from the date of receipt of the expunction order."

Later in 2019, however, the Plaintiff learned that the TBI had not removed all records related to Case No. 3279 from his criminal history and had continued to report the existence of one of the expunged charged offenses. The Plaintiff, through counsel, notified the TBI by email that it should abide by the expunction order and that its noncompliance violated the expunction order and state law. The TBI responded that it had been advised by an assistant attorney general with the Tennessee Attorney General's Office that the TBI did not have to remove the expunged records from the Plaintiff's criminal history because Tennessee Code Annotated section 40-32-101(a)(1)(D) makes sexual offenses ineligible for expunction, even if a person successfully completes a judicial diversion program under Tennessee Code Annotated section 40-35-313.

The Plaintiff sued the TBI in the Chancery Court for Davidson County,⁷ and as relevant to this appeal, sought declaratory and injunctive relief under Tennessee Code Annotated section 1-3-121.⁸ The Plaintiff and the TBI filed cross-motions for partial judgment on the pleadings. See Tenn. R. Civ. P. 12.03. By its motion, the TBI challenged the trial court's subject matter jurisdiction, asserting that Tennessee Code Annotated section 1-3-121 does not clearly and explicitly waive sovereign immunity. The TBI also argued that, even if the trial court had jurisdiction, the lawsuit lacked merit. The TBI maintained that it did not have to comply with the Plaintiff's expunction order in Case No. 3279 because sexual offenses are statutorily ineligible for expunction. The TBI moved for permission to file under seal the unredacted criminal record of Case No. 3279 for the trial court's review.

The Plaintiff argued that final expunction orders are binding on the TBI and that it cannot substitute its judgment of an offense's eligibility for expungement for the determination of a court. The Plaintiff also asserted that principles of res judicata preclude the TBI from even contesting the propriety of the Plaintiff's expunction order. And finally, the Plaintiff argued that the TBI's only statutorily assigned duty in expungement proceedings is to remove expunged records from a person's criminal history within sixty days of receiving an expunction order.

In March 2021, the trial court ruled on the motions, rejecting the TBI's challenge to subject matter jurisdiction and concluding that Tennessee Code Annotated section 1-3-121 waives sovereign immunity. The trial court also held that as a matter of law, under Tennessee Code Annotated section 40-32-102(b), the TBI is required to comply with the expunction order and remove the expunged records from a person's criminal history if the TBI does not intervene and object within sixty days of receiving an expunction order. After sixty days, an expunction order is final, unappealable, and res judicata; and the TBI must comply with the expunction order. The trial court, however, also found that Tennessee Code Annotated sections 40-32-101(a)(1)(D), 40-35-313(b), 40-39-207(a)(2) and 40-39-209 create an exception to section 40-32-102(b) related to sexual offenses. Thus, according to the trial court, if an offender has been convicted of a sexual offense, as identified in section 40-32-101(a)(1)(D), the TBI need not comply with the expunction order. Instead, the TBI, under Tennessee Code Annotated sections 40-39-207(a)(2) and -209, has to determine whether the offense is eligible for expunction under section 40-32-101. If the TBI concludes the offense is not eligible for expunction, the party seeking expunction is given due process under section 40-39-207(g)(1) to contest the TBI's determination.

Applying this ruling, the trial court declined to grant either party's motion for partial judgment on the pleadings, explaining that the pleadings did not establish whether Case No. 3279 involved a sexual offense for purposes of the exception the trial court had recognized. The trial court also reserved a ruling on the TBI's motion to file under seal the unredacted criminal record in Case No. 3279.

In April 2021, the trial court denied the Plaintiff's motion to revise the March 2021 order but allowed the Plaintiff to seek an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The trial court certified the question for interlocutory appeal as "under what circumstances, if any, the Tennessee Bureau of Investigation may refuse to comply with a final expungement order issued by a court of record." Order, Recipient of Final Expunction Ord. in McNairy Cnty. Cir. Ct. Case No. 3279 v. Rausch , No. 20-967-III (Ch. Ct., Davidson Cnty. Apr. 21, 2021). The Court of Appeals denied the Plaintiff's application for interlocutory appeal. Order, Recipient of Final Expunction Ord. in McNairy Cnty. Cir. Ct. Case No. 3279 v. Rausch , No. M2021-00438-COA-R9-CV (Tenn. Ct. App. May 11, 2021) (denying application for permission to appeal). We granted the Plaintiff's application for permission to appeal to consider "[u]nder what circumstances, if any, may the Tennessee Bureau of Investigation refuse to comply with a final expungement order issued by a court of record." Order, Recipient of Final Expunction Ord. in McNairy Cnty. Cir. Ct. Case No. 3279 v. Rausch , No. M2021-00438-SC-R11-CV (Tenn. Aug. 9, 2021) (granting application for permission to appeal).⁹

II.

We review de novo with no presumption of correctness the trial court's ruling on the cross-motions for judgment on the pleadings under Tennessee Rule of Civil Procedure 12.03. Franks v. Sykes , 600 S.W.3d 908, 911 (Tenn. 2020). Issues of statutory interpretation, as well as the preclusive effect of a final order, are questions of law which we also review de novo. See Willeford v. Klepper , 597 S.W.3d 454, 464 (Tenn. 2020) ; Colonial Pipeline Co. v. Morgan , 263 S.W.3d 827, 836 (Tenn. 2008) ; Allen , 593 S.W.3d at 153 ; In re Taylor B.W. , 397 S.W.3d 105, 111 (Tenn. 2013).

Subject Matter Jurisdiction and Sovereign Immunity

The TBI challenges the trial court's subject matter...