Thursday, December 01, 2005

employment - arrest record - expungement

Commonwealth v. Romanik

This case involves the expungement of a criminal arrest record. It has implications for employment and perhaps other areas. N.B. Even thought the issue arose in the context of a criminal case, it appears that even entities which operate under LSC restrictions can do these cases, according to a November 2004 memo by Alan Houseman and Linda Perle of CLASP.

Defendant was a h.s. librarian who sold old issues of National Geographic, which "had been consigned to the trash," on eBay. He used that money ($325) as well as $300 of his own money to buy six used computers for the school library, "where they remain in use to this day." D's mentor had told him that this was a "creative" idea and "did not warn him against pursuing it."

However, the school district made a complaint to the DA, who charged D with library theft and misapplication of entrusted government property. At the preliminary hearing, D agreed to resign from his job in consideration for the DA dropping the charges. D then filed a motion to expunge his arrest record, which the lower court denied.

The Superior Court reversed, holding that the lower court had abused its discretion in not ordering the expungement because, on balance, the harm attendant in keeping the arrest record "far outweighed any possible interest the Commonwealth could have had in retaining such information." The Court held that there is a due process right expungement, in appropriate circumstances, which is "not dependent upon express statutory authority."

The Court also noted that the burden of proof had been misplaced. "[W]hen a charge is withdrawn or nolle prosequied [is this a word?], the burden is always on the Commonwealth to demonstrate why an arrest record should be retained….[T]he Commonwealth bears the burden of affirmatively justifying retention of the arrest record [whether] it did not, could not, or [chose] not to bear its burden of proof beyond a reasonable doubt at trial."

A "non-exclusive list of factors a court should examine in determining whether the Commonwealth has satisfied its burden" include a) the strength of the Commonwealth's case, b) the reasons why it wants to retain the record, c) the petitioner's age, criminal record and employment history, d) the length of time between the arrest and request to expunge, and e) the specific adverse consequences the petitioner may endure should expunction be denied. Applying these factors, the court said that the lower court had "manifestly abused its discretion."

Donald Marritz
MidPenn Legal Services