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In the Matter of Expungement of the Arrest/Charge Records of T.B. (A-18/19/20-17) (079813) (decided January 8, 2019), the New Jersey Supreme Court held that successful drug court graduates presumptively meet the “public interest” when the court considers their expungement applications under N.J.S.A. 2C:35-14(m).  Additionally, they are not required to provide copies of all relevant transcripts and reports otherwise required under In re Kollman for those convicted of third or fourth degree drug sale or distribution offenses.

In these consolidated cases, three separate drug court graduates sought review of appellate division determinations which denied their applications for expungement under N.J.S.A. 2C:35-14(m).  The applicants had all previously pled guilty to third degree drug sale offenses, and the appellate courts held that they were required to meet the “public interest” -- a standard which applies to petitioners with such convictions before their petitions could be granted.  This standard is imported into the drug court expungement statute by explicit language.  As per N.J.S.A. 2C:35-14(m), “a person shall not be eligible for expungement . . . if the records include a conviction for any offense barred from expungement pursuant to subsection b or c of N.J.S.A. 2C:52-2.”

Under subsection c of N.J.S.A. 2C:52-2, “in the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve . . . any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.” (emphasis added).

To be sure, meeting the “public interest” is an additional burden on applicants, and can be a heavy lift for drug court graduates who may have multiple such offenses and would otherwise have been entitled to an “expedited” expungement process.  The Supreme Court in Kollman previously held that applicants bear the burden of proof in public interest expungements and that they are additionally required to submit pre-sentence investigation reports and trial and sentencing transcripts to the expungement court in addition to their petitions. 

Before the Supreme Court, petitioners and amicus argued that the additional requirement of meeting the public interest was an undue additional burden on drug court expungement petitioners who had already been through an unusually rigorous court-ordered program of rehabilitation and that the statute could be interpreted to not require as drug offenses are not completely “barred” from expungement and therefore not subject to the expungement prohibition. 

Ultimately, given the additional burden on what should be an expedited application, the exceptional nature and the rigor of the drug court program, the likelihood that the court is already very familiar with and has ready access to criminal case records of drug court graduates, the Supreme Court held that it shall be presumed that expungement is consistent with the public interest if the person seeking expungement has been discharged upon graduation from a term of drug court and that they are not required to provide additional documents per in re Kollman.

01/04/19: J.G. v. J.H. (Published App. Div decision by J. Koblitz). In this LSNWJ case, Grace Kelly persuaded Judge Koblitz and the other Appellate Division panel members that ”Because the welfare of children is paramount whether the parents are married, divorced or never-married,” they must be provided (most of) the procedures required for custody and parenting time in a divorce litigation. Specifically, the court held:

“[Prior to [an FD] plenary hearing, the parties should have been sent to mediation, Rules 1:40-5 and 5:8-1, and, if they were unable to resolve the issues, they should have been required to submit a Custody and Parenting Time/Visitation Plan pursuant to N.J.S.A. 9:2-4(e), Rule 5:8-5(a) and Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 218 (App. Div. 2001). The required procedures for custody and parenting time cases are outlined in Administrative Directive #01-02, ‘Standards for Child Custody and Parenting Time Investigation Reports’ (Apr. 2, 2002), and include use of alternate dispute resolution, followed by an investigation report when ‘conflicting information from the parties make it difficult to make a determination in the best interest of the child regarding custody/shared parenting time.’ A Social Investigation Report should be ordered where ‘conflicting information regarding which parent can serve the long term best interest of the child is presented before the court but the psychological fitness of both parties is not in question.’ Ibid.”

Additionally, the court detailed how court appearance in this non-dissolution case failed to provide required hearing procedures, including an opportunity for each side to present evidence, cross-examine witnesses, and make legal arguments.