Since House Bill 1256 became law; NDCC Ch. 12-60.1 there has been some controversy over the interpretation of the law. So much so that cases with similar facts have been treated differently. Some are being petitions to seal have been granted and some have not. State Attorneys believe they have the right interpretation of the law, but recently a judge in Cass County disagreed and granted the petition to seal. The State Attorney’s responded with an appeal and the case will now go before the ND Supreme Court sometimes in June or July.
What’s the problem?
Let’s start with the basics of this law and work our way from there.
The Sixty-sixth Legislative Assembly of North Dakota (2019-2020) enacted new laws related to sealing North Dakota criminal records. The new laws were signed by the Governor and became effective August 1, 2019. This was a pretty cool moment as I was there for the signing with the Governor and many other legislators.
Under N.D.C.C. Chapter 12-60.1, the following may petition a North Dakota state court to seal their criminal records:
- An individual who pled guilty to or was found guilty of a misdemeanor offense and the individual has not been charged with a new crime for at least three years from the date of release from incarceration, parole, or probation.
- An individual who pled guilty to or was found guilty of a felony offense and the individual has not been charged with a new crime for at least five years from the date of release from incarceration, parole, or probation.
This is where lies the problem.
Misdemeanor: “ the individual has not been charged with a new crime for at least three years from the date of release from incarceration, parole, or probation.”
Felony: “ the individual has not been charged with a new crime for at least five years from the date of release from incarceration, parole, or probation.”
The language is vague in the law as to the timeline of the new offense. The State Attorneys are interpreting it from the crime. Meaning that any crime committed within the timeframe of 3 years of a misdemeanor and 5 years from a felony cannot be sealed.
Here is an example:
Let’s say I committed a felony in 2000, one in 2002 and one in 2010. They way the State Attorneys are interpreting the law mean the only one I can petition to seal is 2010. Leaving the older and quite possible lesser felonies open to the public. Being that the felony committed in 2010 has had no felony offenses within 5 years of completion of all that the state ordered for the debt to society.
The logic doesn’t line up. If the last felony can be sealed because of completions and the priors cannot, it becomes a moot point and a waste out the petitioners, judges and states attorneys time in court and accomplishes nothing.
Legislative intent for this bill was to create housing options, employment opportunities and that’s why the bill should be interpreted from the last crime committed for a timeline. Then, the petitioner can seal everything going backwards and his/her debt can be fully paid off and they can move on to bigger and better things in their life.
It’s in my opinion that the state attorneys office is creating red tape for criminal backgrounds and becoming the biggest barrier to change in our state for those who are reformed.
I reached out to the Supreme Court to find out what I could about the appeal and got a response from Chief Justice Jensen.
“ Good morning Mr. Martin,
Thank you for contacting the Court seeking information on a pending appeal. You described a case involving the new statutory provisions allowing the sealing of criminal court records. The pending appeal is actually multiple district court files consolidated for appeal. The Supreme Court docket numbers are 20200008-202000010.
Although our trial courts are experiencing significant challenges as a result of the current emergency, the Supreme Court docket continues mostly uninterrupted. Absent a request for an extension of time to file written materials by one of the parties, the case you are interested in will likely be scheduled for argument in June. If it is not scheduled for June it will be scheduled for September.
The rules of judicial conduct prevent me from commenting on the specifics of the case you are interested in. Please note, because the district court granted the request to seal the record(s), and no request has been made to stay the district court order, much of the normal appellate record may not be open to the public.
Again, thank you for your inquiry. Please feel free to initiate additional contact if this email has not answered your questions.
Jon J. Jensen
North Dakota Supreme Court”
Side note; Chief Justice Jensen is an amazing judge.
What I find most interesting about all of this is that the record is sealed. It makes me wonder how their can even be a fact finding process when the records are sealed.
N.D.C.C. Chapter 12-60.1 states that criminal records include both court records and prosecution records.
Court records include:
- Any documents or information collected, received, or maintained by court personnel in connection with a judicial proceeding;
- Any index, calendar, docket, register of actions, official record of the proceedings, order, decree, judgment, minute, and any information in a case management system created or prepared by court personnel relating to a judicial proceeding; and
- Information maintained by court personnel pertaining to the administration of the court or clerk of court office and not associated with a particular case.
N.D.C.C. Chapter 12-60.1 does not specifically define the types of records that are considered prosecution records
It will be really interesting to see how this plays out. Either way the Supreme Court rules, we will know where we need to work next. For the people in court or back at the next legislative session.
We will keep you updated with all criminal justice reform projects