Monday, February 24, 2020

Delaware Court Creates Expungement Remedy for Quickly Dismissed Protection-from-Abuse Orders

By Eugene Volokh - February 24, 2020 at 08:02AM

My quick thoughts about A.H. v. D.P. (Del. Fam. Ct. Feb. 12, 2020):

  1. I can certainly see why the parties might want to have the matters sealed and expunged.
  2. But at the same time, the court made decisions and issued orders, using the coercive power of the state, because the judge at least tentatively believed the parties that there was something improper afoot. That counsels in favor of keeping the files open to the public (though not necessarily keeping the orders in the separate DELJIS law enforcement system descried by the court).
  3. Moreover, it seems likely that either there was some abuse by one or both parties, or there were misstatements by one or both parties alleging abuse. I suppose it's possible that it was all just an innocent mistake all around, but that doesn't seem the likely scenario.
  4. And though the parties' prominence highlights the risk of damage to their reputation, it also suggests that Delawareans might have reason to be interested in how the parties' actions reflect on their qualities. Are the parties high-level government officials or employees, as the "employed in the areas of law and civil service" suggests? "The parties asserted the records will impact their reputations and therefore, their employability, resulting in a manifest injustice"—but perhaps their prospective employers (who might or might not be the citizens of Delaware as a whole) might have a legitimate interest in knowing what happened in this case.
  5. Relatedly, could the parties' "employ[ment] in the areas of law and civil service" have helped them get an expungement remedy that others might not have gotten? I have no reason to doubt the sincerity of the judge in this case—but judges are humans and humans have a tendency to sympathize with people who are socially or professionally close to them, especially where discretionary decisions are involved. Might this have happened here? That's very hard to tell when the record is sealed and expunged.

Here are the facts in a nutshell: In August and September 2019, A.H. and D.P. filed Petitions for Orders of Protection from Abuse against each other, which led the Delaware Family Court to issue ex parte Protection from Abuse orders. But shortly after, they filed a Joint Motion to Rescind All Orders of Protection from Abuse, which the court granted, dismissing the matters before there were full hearings on the merits..

The parties also "filed Confidential Joint Motions to Seal all Files and Proceedings and to Expunge all Records Associated with Petition and Counter-Petition," arguing that "expungement was necessary to prevent injustice, as their reputations would be tarnished by temporary orders, despite the final dispositions of dismissal." A Delaware Family Court Commissioner granted the sealing order but decided against expungement, because Delaware statutes don't provide any authority for expungement of Protection from Abuse records (as opposed to criminal records). But the Delaware Family Court (Judge Mark D. Buckworth) ruled in the movants' favor.

First, the judge concluded that the Family Court should have the inherent power, pursuant to the state constitution (and presumably state common law) to grant expungements in such cases:

Notwithstanding the lack of statutory authority, the Family Court must offer procedural relief from PFA records, which have the potential to cause harm, despite a judicial dismissal. Under Article I § 9 of the Delaware Constitution, "every person for an injury done him or her in his or her reputation, person, movable or immovable possessions, shall have remedy by the due course of law, and justice administered."  Family Court is the appropriate venue to establish procedure to overcome the obstruction of due process that exists without an appropriate expungement procedure for dismissed Petitions for Orders of Protection from Abuse….

Although a PFA record is civil in nature, because temporary PFA orders are submitted to Delaware Justice Information System (DELJIS), a dismissed Petition for Order of Protection from Abuse may impose unwarranted damage based upon an unfounded or unproven claim. The policy purpose behind Delaware's criminal expungement statutes states that a criminal history is a hindrance to a person's present and future ability to obtain employment, housing, education or credit. Without similar relief from dismissed PFA proceedings, an obstruction of due process exists for civil litigants.

Due to the serious nature of PFA petitions, there are often temporary ex parte orders entered in an effort to protect the petitioner from the alleged abuser until a hearing on the merits can occur. When any PFA order is issued, it must be entered into DELJIS on or before the next business day. An entry in DELJIS creates a public record in the court and criminal law enforcement management systems. If no hearing on the merits occurs, or a hearing occurs and no finding of abuse is made by the Court, the matter is dismissed, but the entry in DELJIS remains. If a party has had a temporary ex parte PFA order issued against them, their DELJIS report indicates "PFA History." If the petition is dismissed after the issuance of a temporary ex parte PFA order, the "PFA History" indicator on the respondent's DELJIS report remains.

DELJIS is the same platform used to manage Delaware criminal histories. Findings reported in DELJIS are discoverable in a number of background investigations. Therefore, a person designated by DELJIS to have "PFA History" without a finding of abuse or consent, is subject to the same unwarranted damage, which may occur as the result of an arrest or other criminal proceedings, which are unfounded or unproven.

In Carlacci v. Mazaleski (2002), the Supreme Court of Pennsylvania found expungement to be the proper mechanism to remedy a potential harm to the reputation of an individual against whom a PFA was sought, but subsequently dismissed. The Supreme Court of Pennsylvania further scrutinizes the potential effects of dismissed PFA actions to address the potential injustice associated with PFA actions that include a temporary order before dismissal. The Supreme Court of Pennsylvania ultimately found when PFA proceedings are dismissed by court order or never evolve beyond a temporary order stage; they shall be subject to immediate expungement. The Court finds Carlacci v. Mazaleski to be persuasive authority in determining the appropriate remedy for civil litigants subject to dismissed PFA proceedings in Delaware.

And the judge concluded that expungement was proper here:

When looking at the facts of the case at hand, neither party has a finding of abuse subsequent to a full hearing on the merits, nor a PFA order resulting from consent. Instead, the parties were each awarded temporary PFA orders resulting from ex parte hearings. Before hearings on the merits could be heard, the petitions related to this matter were dismissed and the temporary ex parte PFA orders were subsequently rescinded.

Further, there are no pending Petitions for Order of Protection from Abuse related to either party nor does either party have previous or subsequent PFA proceedings against them.

After reviewing the parties DELJIS summaries, neither party has any criminal domestic violence convictions nor pending criminal charges….

[T]he parties argued as public figures employed in the areas of law and civil service, their livelihoods are tied to their reputation. The parties further argued the existence of record relating to their Cross-Petitions for Order of Protection from Abuse subjects the parties to manifest injustice. The parties asserted the records will impact their reputations and therefore, their employability, resulting in a manifest injustice.

The Court acknowledges the serious and often cumulative nature of the proceedings surrounding a Petition for Order of Protection from Abuse. Here, the nature of the dismissals coupled with the parties' recurrent agreement demonstrated through several joint filings, the lack of PFA history prior or subsequent to this matter, the lack of domestic violence related criminal history and the imminent manifest injustice, necessitates the Court to grant immediate expungement as the appropriate remedy.

Tell me what you think.


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