COA: Law enforcement may not refuse to hire based solely on expunged criminal histories

The Indiana Court of Appeals ruled Thursday that law enforcement agencies are not permitted under state statute to refuse to hire new employees solely because those people have prior criminal histories that have since been expunged.

After being convicted on criminal charges, H.M. petitioned for and was granted expungement in October 2013. About a year later, H.M. applied for a job with the Marion County Sheriff as a volunteer sheriff’s deputy, but was denied the position after the sheriff conducted a background check.

H.M. filed a petition for contempt in Marion Superior Court in December 2015 under the cause of his expungement proceedings, which named the state of Indiana. A one-month delay ensued during which the trial court attempted to identify the proper respondent for the contempt petition. Finally, in January 2016, the sheriff appeared by counsel, and in February, he filed a motion to dismiss.

H.M. then moved to strike the sheriff’s motion, but the trial court denied H.M.’s motion while also granting the sheriff’s motion to dismiss.

H.M. appealed in In re the Expungement/Sealing of Records of H.M. v. State of Indiana and Marion County Sheriff, 49A02-1604-MI-700, arguing that the trial court had erroneously denied his motion to strike and granted the sheriff’s motion to dismiss. H.M. contended that the sheriff’s motion should have been stricken because it was not filed with the 20-day window required for responses to a complaint such as the contempt petition.

Indiana Court of Appeals Judge L. Mark Bailey wrote in a Thursday opinion that “whether the petition for contempt is or is not a form of pleading, we would be remiss not to note that an extended period of time passed after the petition was filed, during which time it appears that the correct responsive party had not been properly identified or filed an appearance. During this period, it appears from the CCS that only on December 23, 2015 – twenty days after the petition was filed – was the requirement for counsel for the Sheriff, rather than counsel for the State, established.”

Thus, Bailey wrote, the trial court was within its discretion to grant an extension of time for the sheriff to respond because the “failure to act was the result of excusable neglect.”

However, Bailey also wrote that although a sheriff may properly access the expunged criminal history of a deputy sheriff candidate, that information may not be used for an adverse action – such as a denial of employment – “because of” that criminal history.

“It may well be that the Sheriff had other bases upon which to deny H.M.’s application,” Bailey wrote. “But given the precise nature of H.M.’s allegation in the petition and the breadth of the anti-discrimination provisions of the expungement statute, we cannot say as a matter of law that the petition failed to adequately set forth a basis upon which H.M. might proceed in an effort to prove discrimination solely based upon his prior expunged convictions.”

Thus, the trial court’s decision was reversed and the case was remanded for further proceedings consistent with the appellate court opinion. Judge Michael Barnes wrote in a concurring opinion to “urge our Legislature to examine this provision of Indiana law and carve out some sort of law-enforcement exception.”

“I simply favor, for some of the most sensitive positions in our society, an approach that would provide more discretion to hiring agencies,” Barnes wrote.