Justices grant expungement petition that led to change in law

Editor’s note: This article has been revised to replace references to the expungement plaintiff’s name with his initials after the Indiana Supreme Court ruled in his favor.

Confusion over prolonged expungement wait times that Indiana’s longest-serving judge called “unjust” was settled Wednesday when the Indiana Supreme Court declared a new law that eliminated the confusion applies retroactively.

In a 4-1 ruling, the Indiana Supreme Court ordered the Elkhart Superior Court to grant the expungement that N.G. has sought beginning in 2018. He had been convicted 13 years earlier of Class D felony theft, but because the conviction had been reduced to a misdemeanor in 2016, the court reasoned he would have wait for five years from the entry of the reduced conviction to qualify for an expungement.

The Indiana Court of Appeals in a 2-1 decision affirmed the trial court in a ruling that retiring Judge John Baker wrote in dissent was “unjust and ill-advised.”

While N.G. lost his case in court, he won in the Indiana General Assembly this year.

Senate Enrolled Act 47 makes clear that in cases such as N.G.’s, the date of the felony conviction controls expungement eligibility, not any subsequent reduction.

The majority of the Indiana Supreme Court agreed that the change in the law should apply retroactively in this case. While the legislation was not expressly retroactive, the majority read it as such in N.G. v. State of Indiana, 19S-XP-673.

“Here, the amendment to the misdemeanor expungement statute is remedial — it cured a defect in the prior law,” Chief Justice Loretta Rush wrote for the majority joined by all justices except Geoffrey Slaughter. “And, given the broad goals behind Indiana’s expungement scheme, coupled with the urgency with which the legislature addressed this issue, we find that applying the remedial law retroactively to (N.G.) effectuates its purpose.”

The change in law, the majority held, “cured a mischief that existed in the prior statute, namely, confusion on when the waiting period begins for certain ex-offenders seeking expungement. … In short, we find that the remedial amendment is aimed at making expungement immediately available for individuals who (1) successfully petition for conversion of a minor felony to a misdemeanor and (2) wait five years from their felony conviction date before seeking expungement. To effectuate that purpose, we apply the remedial law retroactively to (N.G.).”

Dissenting Justice Geoffrey Slaughter, however, took a hardline view that because the statute was not expressly retroactive, the court’s analysis required it to “speculate” about legislative motives. “The better interpretative approach looks not to what the legislature thought but to what it said,” Slaughter wrote, meaning that in this case, N.G.’s case required a decision based on the language of the statute in place at the time his case arose.

He would thus affirm the COA majority that denied N.G.’s expungement appeal that Baker criticized.

“Applying that statute, I would affirm the trial court’s denial of his petition for the same reasons Judge Crone recites in his thoughtful opinion,” Slaughter wrote.

The case attracted an amicus brief in support of N.G. from the Indiana University Robert H. McKinney School of Law Civil Practice Clinic.