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Juvenile Records – Sealing or Expungement

March 27th, 2014 · No Comments

In our July 2008 post about juvenile court records, we noted that most juvenile court records are confidential. This is done to protect the juvenile, on the theory that juveniles are more prone to bad decisions than adults (i.e., they do “dumb things”), but that they can be rehabilitated. Law enforcement agencies and the court system can see juvenile records, but the general public cannot.

Background checks for the purposes of employment and housing – and sometimes for college admission, financial aid, etc. – are the general public’s main interest in court records. Since most juveniles are not yet in the labor or housing market, the general public doesn’t miss much by not being able to view these records. But what happens when the juvenile turns 18?

That answer varies from state to state, but in most states the juvenile’s record can remain confidential. In some states, juvenile records are automatically sealed when the juvenile reaches the age of 18, although in most states the juvenile must petition the court to have the record sealed. Sealing of records is called expungement or expunction in many jurisdictions, or “setting aside” in some.

Not all juvenile records can be sealed. Serious juvenile offenses, such as those which would be felonies if the juvenile were tried as an adult, cannot be sealed in most states. Many states do not allow sealing of records until the detention or term of probation has been completed, or if the person is convicted of another offense after turning 18.

Once a record is expunged or sealed, it doesn’t simply disappear. It continues to be accessible to law enforcement, the court system, and some licensing authorities – just as it did before the juvenile turned 18. But the general public still cannot see it, and a person with a sealed record can usually answer “no” to the question “Have you been convicted of a crime or a juvenile offense?” on an application for a job, a rental, college admission, etc.

The key word is usually. Because if sealing or expungement is not automatic when the juvenile turns 18, and if the juvenile fails to petition the court, the record does become public. It can then be acquired by commercial background check providers and can no longer be hidden – even if a petition for sealing or expungement is later granted. In states that do not automatically seal juvenile records at age 18, it is extremely important for the juvenile to file a timely petition to seal or expunge. As usual, the process varies from state to state; follow the links to examples from Michigan, Texas, and Ohio’s Cuyahoga County.

This post was suggested by recent news in my home state of Washington, which is poised to join the majority of other states. Washington does have a process for sealing juvenile court records, as can be see here, here, here, and here. But Washington sells its criminal court records to commercial background check providers, and those sales include juvenile records of those who have turned 18. Even worse, those sales of records can take place mere days after the juvenile turns 18, making it extremely difficult for the juvenile to have a petition granted in time to keep the record from being widely distributed on the internet.

That is about to change. House Bill 1651 was just passed by the state legislature, and is awaiting its expected signature by the Governor. The bill provides for automatic sealing of juvenile records – except for serious felonies, sex offenses, and drug offenses – when the juvenile turns 18, is released from detention, or completes probation (whichever comes later). If someone objects, or if the court is aware of a good reason not to seal, the court then holds a hearing to decide whether or not to seal the record. With this act, Washington changes from one of the most draconian states with regard to juvenile records, to one of the most forgiving. One of the major policy arguments for the change was that existing law puts Washington young people at a disadvantage to those from other states who could say “no” on an application and get a job that would be denied to someone from Washington with a similar juvenile offense.

How does your state handle the confidentiality of juvenile records? Check CourtReference; just select your state, then select the “Self Help and Legal Research” court resource category, and look for links that discuss the sealing or expungement of juvenile records.

→ No CommentsTags: Court Systems · Finding Court Records · Michigan · News · Ohio · Texas · Washington

WHY STATE COURTS MATTER.

March 18th, 2014 · No Comments

From our early civics lessons we know that there are two court systems in the United States judiciary-federal and state.  On this CourtReference site, we focus exclusively on the courts from each of the 50 states and the District of Columbia.  State courts have broad jurisdiction to interpret the laws that govern our everyday lives: where we live, where we work, with whom we marry, procreate, and divorce (or any combination thereof!), and where we ultimately may be laid to rest.  From cradle to grave, we abide by the laws of our resident state, and are subject to the rulings from our state courts.

But we also recall from our civic education that we are subject to a “dual sovereignty” of federal and state governance.  Under the United States system, power is shared between both entities.  The US Constitution expressly grants certain powers to the federal government and reserves the remainder to the states.  As James Madison delineated the authority of the federal government to the state governments in the Federalist Papers (Number 45):

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

(Source: Library of Congress, THOMAS,  The Federalist Papers)

Too pedantic for practical purposes?  Regarding our dual court systems, federal courts resolve disputes involving the US Constitution and laws and regulations passed by Congress. Federal courts also have exclusive jurisdiction over:

1) cases in which the United States is a party;

2) cases between citizens of different states, if the amount in controversy exceeds $75,000;  and

3)  cases involving bankruptcy, copyright, interstate and international commerce, maritime, and patent law.

State courts retain jurisdiction over issues involving the state constitution and laws and regulations passed by the state legislature.  State courts also preside over state civil and contractual disputes, state criminal offenses, family law, personal and professional injury (workers’ compensation) claims, real property, probate, and traffic disputes.  There may be other causes of action not listed here, but generally speaking, state courts preside over matters that individual citizens commonly encounter.  On this CourtReference site, you can find your state, county, municipal or specialty court, with links providing valuable information about each court’s services, programs, resources, and contact information.  All for free!  So,  if you find yourself involved in any of the above actions, your recourse will be state court, but your preparation should start with CourtReference!

In conclusion, where we live profoundly impacts how we live.  Think about the compelling and controversial issues of the day. Do you support same-sex marriage? 17 states permit marriage for same-sex couples (at the time of this publication).   Do you prefer to live in  a “duty to retreat” state or a “stand your ground” state in terms of self-defense?  Currently, 31 states allow a “stand your ground” justification for the use of deadly force in self-defense.  Whether you prefer to reside in a “right to work” state or one that offers “death with dignity” options for end-of-life decisions, the choice of where you call “home” will define the course, quality, and values  of your daily life.

 

 

 

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Chancery Court

January 30th, 2014 · No Comments

Unless you live in Delaware, Mississippi, or Tennesse, you may not be familiar with the term Chancery Court. But Chancery Courts were part of the English judicial system for hundreds of years, were brought to the American colonies, and were part of most U.S. states’ early judicial systems.

The name itself originated outside of the judicial system; in Europe, starting with the Roman Empire, the Chancellor was in charge of government records. When today’s English legal system first began to develop after the Norman Conquest, the Chancery was the public records office, under the direction of the Lord Chancellor. Because the Lord Chancellor was the keeper of the royal seal and a chief advisor to the Crown, it was a powerful office - a government bureau, staffed with bureaucrats.

As the English common law system grew, parties unsatisfied with its limitations began to petition the Lord Chancellor, and the judicial role of the Chancery expanded. Although the courts of common law retained jurisdiction over lawsuits – disputes between parties that could be resolved by an award of money damages – the Court of Chancery had jurisdiction of matters of equity – things that could be resolved by a writ of specific performance (an order to do something), an injunction (an order to not do something), or some other resolution based on a sense of fairness. Because “fairness” was a more flexible standard than common law’s reliance on precedent, having a case heard in the Court of Chancery was an attractive prospect, so the caseload grew. But corruption in the form of exorbitant fees and conflict with the system of common law courts dogged the Chancery until major reforms in the 19th century combined the courts into a single system. Yet the distinction between law and equity remained – they required different remedies – so the English judicial system included a Chancery Division. The judges were now actual judges instead of the Lord Chancellor or his minions.

Courts of Chancery in the U.S. were generally merged with courts of law around the same time that occurred in England, e.g., New York in 1846, Michigan in 1847. Delaware, Mississippi, and Tennessee retained their separate Chancery Courts, while other states retained the distinction between law and equity cases in their merged systems. For example, New Jersey Superior Courts in each county have Chancery Divisions which handle general equity, contested probate, and family cases. Circuit Courts in larger counties in Illinois have Chancery Divisions, most notably in Cook County. Many South Carolina counties have a Master in Equity, who can  hear cases that may be heard without a jury and make a recommendation to Circuit Court. South Carolina Masters in Equity may make final decisions in some cases, although those decisions can be appealed to Circuit Court or the state Supreme Court.

Note that chancery cases are always civil cases, never criminal. Since equity generally includes orders to do or refrain, rather than resolution of money disputes, chancery cases can include wills, the administration of estates, trusts, and guardianships and conservatorships for children and incompetent adults – although in many states, these types of cases are handled by probate courts. Chancery cases may also include divorce and adoptions, although in many states those cases are handled by family courts or trial courts of general jurisdiction.

The Delaware Court of Chancery is probably the best-known U.S. chancery court, because it hears cases involving the many corporations that are chartered in this corporation-friendly state. It can order specific performance or an injunction, which are typical remedies in contract or intellectual property cases, but it can also award money damages in technology cases where over $1 million is in dispute. In addition to its business caseload, it also hears cases involving land disputes, trusts, probate, and guardianships.

In Mississippi, Chancery Court judges are still called Chancellors and, like their early English antecedents, they also have local government administrative duties. In court, they hear cases involving family law (including divorce), probate, guardianship, real estate, and mental health commitments. In counties without a County Court, the Chancellor or an appointed referee sits as Youth Court judge to hear juvenile matters.

In Tennessee, Circuit Courts and Chancery Courts are separate but share jurisdiction over many types of cases: most general civil cases, family law, probate, and guardianships. Circuit Courts may hear equity cases if no objection is raised. In effect the main difference between Circuit and Chancery Court in Tennessee is that Chancery Court has exclusive jurisdiction over cases filed by the state against corporations, and cases involving land disputes; Circuit Court has exclusive jurisdiction over administrative appeals. Tennessee Chancery Court judges are also called Chancellors, but they have no additional local government administrative duties.

Find information about your own state’s trial courts at CourtReference.

→ No CommentsTags: Court Systems · Delaware · Illinois · Michigan · Mississippi · New York · South Carolina