Green Light to Expunge?

Records of 209A orders live long and are unforgiving. Even an ex parte order that lasts a mere 10 days and is not renewed creates a record that will haunt the Defendant if there is ever another 209A case against him or in bail proceedings, just to name a few instances. Two recent decisions by Massachusetts courts may well have paved the road to expunge some of these records. These cases and their implications are discussed below.

In March of 2006 the Massachusetts Appeals Court ruled on a case that’s been dragging for four years, and the ruling shed light on an issue that’s been dragging on the minds of falsely accused 209A Defendants for much longer: does a District Court judge have the inherent power to expunge a 209A Restraining Order from the statewide domestic violence registry when the order was obtained through fraud on the Court. In short, perhaps surprising but much welcomed: YES. The case was Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725 (2006).

The case commenced when a couple (for reference, court designated pseudonyms of Jones and Adams will be used) obtained mutual 209A Restraining Orders against one another, which were later extended for one year. Sometime during this time period, after Jones was charged with violations of the 209A Order and criminal harassment in two different courts, Adams filed a motion to vacate the 209A Order against her and to expunge all records of the order. Here ensued the typical game of judicial ping pong. The judge granted the motion to vacate after finding 19 statements made by Jones to be false, but denied the motion to expunge. Adams filed a second motion to expunge the now vacated 209A Order, which the Commissioner of Probation (the office maintaining these records) opposed. The judge granted Adams’ motion to expunge, but the Commissioner filed a motion to reconsider. The judge denied the Commissioner’s motion, and the Commissioner appealed claiming that the judge had no authority to allow the expungement. The Commissioner argued that, while the Legislature specifically authorized and directed the development and implementation of a system containing records of all issuances and violations of 209A orders in Massachusetts, there was no provision for expungement of data because, according to the Commissioner, the purpose of the system was to preserve “complete information about a Defendant.”

The Commissioner was correct in that the 209A Law did not contain any provisions allowing for expungement of even incorrectly issued orders. While it is no surprise and no secret that the 209A statute is a poorly written and overly broad piece of legislation, short of the legislature specifically saying that no expungements are allowed, this vagueness left a hole and an opportunity for judges to make some good law on top of bad, for a change. This is exactly what the Appeals Court decided to do by returning to the lower court judges the power that was never expressly taken away by Chapter 209A, but which the judges were timid to exercise in 209A settings: the power to fix judicial errors and to attempt “to secure the full and effective administration of justice” when there has been a finding of fraud on the court. In such instances, said the Appeals Court quoting various earlier cases, “lack of statutory authorization is immaterial,” moreover, such power “cannot be restricted or abolished by the legislature.”

In this case, vacating the 209A Order against Adams is insufficient to protect the integrity of the courts and does not send an appropriate message to the public. Vacating the order leaves a record of the order in the system. Not only does this leave a permanent mark against Adams, but it also leaves, in perpetuity, a record of a fraudulently obtained court order. Although labels such as “dismissed” or “closed” are applied to records in the system, no explanation is provided as to why the order was dismissed or the case closed. Many vacated 209A orders are vacated because of the victim’s failure to prosecute. Law enforcement officials will not be notified that the order was vacated because it was obtained by fraud on the court. Rather, they may presume it was vacated because of the victim’s failure to prosecute or because of insufficient evidence. The perpetuation of a fraud amounts to a defiling of the court itself when law enforcement officials rely on inaccurate information produced by the court. Just as vacating the order is an insufficient remedy in those circumstances, sealing the record of the order is equally inadequate. When records are sealed, they do not disappear. While sealed records become unavailable to the public, the raw data continues to be available to law enforcement officials (police, probation officers, and courts). Law enforcement officials would retain access to information that is inaccurate and misleading and was obtained through fraud on the court. Therefore, sealing would not remedy the defiling of the court.

Id. at 731-732 (citations omitted).

Bravo? Can we run and request that all vacated 209A orders now be expunged? Not quite. First, the court made it clear that only orders procured through fraud on the court are subject to expungement. As an example of the type of orders NOT to be expunged the court cited the Vaccaro v. Vaccaro case, where a 209A order was vacated because there was not enough evidence to extend it, as opposed to an order initially obtained by fraud. 425 Mass 153 (1997). The court said that, in the case of a merely vacated order or a dismissal for failure to prosecute, but where there is no finding of fraud, there exists “value” to law enforcement officials in retaining records of its issuance.

Second, the court set out a rather stern definition of what it considers fraud, namely “where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Adams, at 729-730 (citations omitted).

Third, the court spoke of the timing for a motion to expunge, ruling that 209A defendants “have adequate opportunity to assert [the fraud] argument” at the 10 day and the extension hearings. “If the judge does not make a finding of fraud on the court, the defendant will have no basis for a subsequent motion to expunge the record of the order from the system. Nothing in G. L. c. 209A, or in this opinion, requires a hearing on a defendant’s motion for expungement. Furthermore, the ‘clear and convincing evidence’ standard of proof required for demonstrating a fraud on the court finding will necessarily limit the number of instances when expungement may even be considered as an appropriate remedy.” Id. at 736-737.

Far short of an open floodgate, the Adams case seems to offer an ever so slight crack in the door for expunging certain 209A orders when backed by strong evidence of fraud and brought at the precisely right time.

Less than six months after the Appeals Court decided Adams, much closer to the daily reality of 209A Orders, Judge Gregory Flynn in the Waltham District Court rendered a decision applying the new standards from Adams. The case was Chamberlain v. Khanlian, Waltham District Court Docket No. 0651-RO-99. Here the Plaintiff failed to appear at the 10 day hearing and the 209A Order against the Defendant expired on that day. Another 11 days after that, the Defendant brought a motion to expunge the record alleging fraud on behalf of the Plaintiff. The Defendant supported his motion with several affidavits that set out facts in support of the fraud. The Plaintiff failed to appear at the hearing on the motion to expunge, but the Commissioner of Probation appeared and opposed the expungement in this case as well, though this time claiming that its sole purpose in opposing the motion was to make sure that the standards set out in Adams are followed.

“In light of the allegations made in the relevant pleadings, the factual support presented by the accompanying affidavits, the failure of the petitioner to appear to be heard on the allegations of fraud, the court is clearly convinced that the original restraining order was granted only upon a fraudulent set of facts presented to the Court,” wrote Judge Flynn. “Accordingly, in conformity with the standards set forth in Commissioner of Probation v. Adams, the motion to expunge was allowed.”

This being an “unpublished” District Court case, no further light into Judge Flynn’s reasoning or rationale is shed from his brief decision. It is interesting to note, however, that seemingly the timing standards set in Adams by the Appeals Court were not met here. In Adams, the Appeals Court noted that the Defendant’s only opportunities to raise allegations of fraud would be at the 10 day hearing or any further extension hearings. Here the 10 day hearing came and went without a motion to expunge. Yet, Judge Flynn still allowed the expungement when the motion was brought 11 days later. It is also interesting to note that both defendants in the two cases discussed above were women, and both had career motivated reasons for seeking expungements: one was an attorney while the other was a licensed pharmacist.

Whether other judges will see Adams as Judge Flynn did, and whether dozens of the falsely accused men in Massachusetts will be able to obtain relief from this turn in the law — only time will tell.