COMMONWEALTH vs. TINA BOE. [Note 1]

CYPHER, J. We are asked by the commissioner of probation to vacate an order of a Boston Municipal Court judge expunging the defendant's record, and to limit the defendant's remedy to the scheme in the sealing statute, G. L. c. 276, § 100C, second par. For reasons which follow, we affirm the judge's expungement order.

Background. We summarize the relevant facts from the undisputed findings of the Boston Municipal Court judge. Following an automobile accident on July 12, 2006, in the Roslindale

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section of Boston, the driver of the damaged car (victim) sought information from the driver of the car that struck hers and injured her passenger. That driver said the car was not his; he threatened to return to the scene with a gun, and drove away without giving his name, address, or registration, as required by G. L. c. 90, § 24(2)(a 1/2 )(1). The victim called the Boston police and reported the accident to an officer. She described the car which struck hers, reported the license number, and described its driver as a short Hispanic male who wore a Red Sox cap and a plaid shirt.

The police traced the license number given by the victim through the registry of motor vehicles, and on July 15, 2006, another police officer mailed a citation to the registered owner, the defendant, Tina Boe. On July 19, 2006, the officer applied for a criminal complaint in the Boston Municipal Court Department.

Responding to notice of a hearing before a clerk-magistrate on September 11, 2006, Boe arrived on time, but mistakenly was directed to an arraignment session by a court employee. After a long wait, she asked another employee about her case, and was told she was in the wrong area. She was then directed to the clerk's office, where she learned that a criminal complaint had been issued, and was informed that she would receive a summons by mail for the next court date.

On September 26, 2006, Boe was arraigned after an attorney was appointed for her. At a pretrial hearing on November 3, 2006, the Commonwealth and the defendant filed a joint motion requesting that all information in the case be expunged on the ground that Boe mistakenly was identified as the perpetrator of the charged crime. The judge allowed the motion, dismissed the complaint, and ordered expungement of Boe's record.

On January 18, 2007, the commissioner of probation (commissioner) filed a motion to reconsider and vacate the judge's expungement order. [Note 2] The judge denied that motion in a written decision on May 7, 2007, and the commissioner appeals, asserting that the judge lacked authority to issue an order of expungement

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and that the only remedy available to Boe is sealing of her record pursuant to G. L. c. 276, § 100C. [Note 3]

Discussion. The commissioner argues that because the complaint filed against Boe was dismissed, the corresponding language of the records sealing statute, G. L. c. 276, § 100C, applies, and that when that statute is applicable, a judge has no authority to order expungement. [Note 4] We think that argument ignores the particular circumstances of the proceedings against Boe that cause this case to fall outside the ambit of the sealing statute.

The judge found that the complaint was defective because it was based on two fundamental errors. First, the police wrongfully assumed that Boe was the operator of the car, merely because she was the registered owner. No investigation had been conducted to determine who actually operated the car at the time of the accident. The police knew from the victim's report that the operator said he was not the owner of the car and that the operator was a male. Second, that error was compounded by the error of a court employee in misdirecting Boe, who had no previous experience with court proceedings. Moreover, the judge found that the error also was compounded by the clerk-magistrate in "issuing a complaint against a female [d]efendant when the underlying police report clearly identified the wrongdoer in the case as a male." Boe had no opportunity to demonstrate the error of the police to the clerk-magistrate.

Because Boe mistakenly was charged with a crime committed by a man not identified by the police, no "deliberate act of prosecution against [her]" could be maintained. [Note 5] Commonwealth

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v. S.M.F., 40 Mass. App. Ct. 42, 44 (1996). We agree with the judge's conclusion that the complaint "should never have been issued," and that it created an "unwarranted entry" of a criminal record for Boe.

Nevertheless, although the commissioner acknowledges that the complaint erroneously identified Boe, he asserts that her case falls within the provisions of G. L. c. 276, § 100C, because cases falling within that statute are deemed to begin by a "deliberate act of prosecution against the named person," Commonwealth v. S.M.F., supra, and court records accurately reflect that Boe was charged and appeared in court, and that the charge was dismissed. [Note 6] We disagree. It is one thing to initiate a prosecution against a person who has a colorable involvement in a crime, but it is unacceptably Kafkaesque to initiate a prosecution where that person is disconnected from the charged crime. To allow Boe's name to be carried forward in court records in these circumstances would, as the judge found, constitute a miscarriage of justice, because sealing "

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does not render the sealed records inaccessible to law enforcement authorities." Commonwealth v. S.M.F., supra at 45.

"When records are sealed under G. L. c. 276, § 100C, they do not disappear; they continue to exist but become unavailable to the public. . . . Under the sealing procedure, . . . the raw data continues to be available to law enforcement officials (police, probation officers, and courts). If the person with a sealed record should subsequently become involved with prosecutorial authority, that individual does not enjoy as clean a slate as one whose record has been expunged." Commonwealth v. Roberts, 39 Mass. App. Ct. 355, 356 (1995).

"When § 100C or other confidentiality statutes [such as G. L. c. 276, § 100B] are not applicable, the trial courts may invoke their inherent power to order expungement of criminal records. See Police Commr. of Boston v. Municipal Ct. of the Dorchester Dist., 374 Mass. 640, 660-665 (1978)." [Note 7] Commonwealth v. S.M.F., supra at 44.

The judge recognized that the sealing remedy of § 100C was neither applicable nor adequate, and properly applied the purging recognized by statute. [Note 8] "If purging is recognized by statute, it cannot be, as the [commissioner] contends, that sealing is the universal and exclusive means of avoiding damage to the reputation of persons whose names have mistakenly found their way into criminal records." Commonwealth v. S.M.F., supra at 45-46.

No one whose name mistakenly has been introduced into criminal records should be subjected to the future "cloud of prosecution" which will remain if that person's record is not cleared.

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Police Commr. of Boston v. Municipal Ct. of the Dorchester Dist., supra at 659, quoting from United States v. Dooley, 364 F. Supp. 75, 78-79 (E.D. Pa. 1973).

The order to expunge Boe's record from the court, the department of probation, and the criminal history systems board is affirmed.

So ordered.

GRASSO, J. (dissenting). I respectfully dissent. Were we writing on a blank slate, we might well affirm the order to expunge Boe's probation and court records as an appropriate exercise of a judge's inherent common-law power to accomplish substantial justice in the circumstances. [Note Dissent-1] We may not do so, however, because G. L. c. 276, § 100C, prescribes how the records of dismissed prosecutions, even those commenced without substantial basis or after an apparently slipshod investigation, shall be maintained. See Commonwealth v. Gavin G., 437 Mass. 470, 475 (2002) (where statutory protections have been enacted by the Legislature, other remedies, including expungement, are inappropriate). The majority's holding that § 100C is neither applicable nor adequate and that expungement is authorized by G. L. c. 6, § 171, blinks at the plain language of § 100C and the teaching of numerous opinions of the Supreme Judicial Court and this court regarding the lack of authority of a judge to order the expungement of probation and court records of criminal proceedings. [Note Dissent-2] See Commonwealth v. Gavin G., supra.

The law is now well established that where the Legislature has prescribed the remedy for dealing with the sealing or expungement

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of criminal records, judges may not rely on the ancillary power of the court to substitute their view of the appropriate remedy. That G. L. c. 276, § 100C, is such a legislative expression of prescribed remedy is beyond doubt. See Commonwealth v. Gavin G., supra.

In Commonwealth v. Vickey, 381 Mass. 762, 766 (1980), and Commonwealth v. Balboni, 419 Mass. 42, 45-46 (1994), the Supreme Judicial Court was careful to note that its decision in Police Commr. of Boston v. Municipal Ct. of the Dorchester Dist., 374 Mass. 640, 678 (1978), did not undercut the specific language of the sealing statutes. Where the Legislature has set forth sealing as the prescribed remedy for limiting access to the record of a judicial proceeding, a judge lacks the power to enlarge on the prescribed remedy. See Commonwealth v. Balboni, 419 Mass. at 44-47. [Note Dissent-3] Likewise, in Commonwealth v. Roe, 420 Mass. 1002, 1002 (1995), the court rejected a defendant's request for expungement of her probation record and the police records of her arrest. "[I]n the case of adult defendants, the existence of the sealing statute, G. L. c. 276, § 100C, is sufficient, in cases that are appropriate for sealing, to protect the confidentiality of criminal records, and, as a result, defendants do not have expungement as an available remedy." Ibid. In Commonwealth v. Roberts, 39 Mass. App. Ct. 355, 357 (1995), this court concluded that the statutory grant of power to purge records contained in G. L. c. 6, § 171, does not expand the remedy set forth in G. L. c. 276, § 100C, and permit expungement.

"The sealing provisions of § 100C, second par., express the State's interest in preserving confidentiality and avoiding harm that may arise from the unnecessary maintenance and dissemination of criminal records." Commonwealth v. Doe, 420 Mass. 142, 151 (1995). Indeed, in Doe, the Supreme Judicial Court recognized that a defendant's interest in the confidentiality of his records has "the potential for conflicting with the right of access to records submitted in connection with criminal proceedings

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guaranteed by the First Amendment to the United States Constitution." Id. at 147. "Even though a case has not been prosecuted, information within a criminal record may remain useful, . . . and, of course, is presumed open to the public and the media." Id. at 151. [Note Dissent-4] Balanced against the harm arising from the unnecessary maintenance and dissemination of criminal records is the harm to the integrity of the criminal process arising from the improper, unequal, or arbitrary disposition of criminal cases owing to favoritism or other impermissible bases. See Commonwealth v. Pappas, 384 Mass. 428, 431 (1981) (statutory requirement of prompt citation designed to prevent or discourage "fix" or corrupt manipulations of criminal processes); Commonwealth v. Cameron, 416 Mass. 314, 316 n.2 (1993). Requiring the record of a dismissed prosecution to be maintained and not expunged avoids the even greater mischief that could ensue were a case to be dismissed by a judge and the record expunged, without trace of that proceeding remaining.

Most recently, in Commonwealth v. Gavin G., 437 Mass. at 475, the court reiterated its admonition that a judge does not possess the inherent power to expunge probation records in the face of G. L. c. 276, § 100C. Rejecting the juvenile's claim that the special interests of the juvenile justice system empowered a Juvenile Court judge to order expungement of juvenile probation records, [Note Dissent-5] the court emphasized that because a detailed statutory scheme protects the confidentiality of probation records, other remedies such as expungement are inappropriate. "[I]t is for this very reason -- the protection of adult records by way of sealing under G. L. c. 276, § 100C -- that we have held that judges have no authority to expunge adult records." Ibid. Where the Legislature has struck a balance between an adult's (or a juvenile's) interest in not being unfairly prejudiced by his record and

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the needs of the courts and law enforcement agencies for information pertaining to court proceedings, judges do not have the authority to reset that balance on a case-by-case basis. Id. at 476.

The majority's suggestion that the defective nature of the complaint against Boe renders G. L. c. 276, § 100C, inapplicable and warrants expungement is an illusory distinction that was categorically rejected in Gavin G.:

"Conspicuously absent from [the] entire legislative scheme governing court and probation records, whether for adults or juveniles, is any suggestion that the Legislature intend such records be destroyed. . . . As illustrated by G. L. c. 276, § 100C, the Legislature was not ignorant of the fact that some persons are wrongly accused of crime and wrongly brought before the courts on these charges. When addressing the precise predicament of a wrongfully accused adult unfairly acquiring a criminal record, the Legislature still opted for sealing, not destruction or expungement of records. As to both juveniles and adults, the Legislature is apparently satisfied with provisions for confidentiality and sealing of records to address the precise problem posed by . . . wrongful or mistaken accusations of criminal conduct." (Footnote omitted.)

Id. at 482-483.

Likewise, the majority's contention that Gavin G. is inapposite misapprehends the essential reasoning of the case regarding probation and court records. What occurred to Boe is not, as the majority would have it, the kind of occurrence in which expungement is a permissible and appropriate step to prevent information in the record from being misleading and inaccurate. Indeed, Gavin G. observed:

"[E]xpungement of the record following the dismissal of charges . . . cannot be treated as merely 'correcting' a record that is 'inaccurate' in the sense that the person should not have been charged. . . . [T]he probation records accurately reflect that [the defendant] was charged with particular offenses on a particular date, that the matters were heard in court on particular dates, that [the defendant] attended court on those dates, and that the charges were dismissed on a particular date. Whether the proceedings

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chronicled in the probation records should have occurred does not change the fact that they did occur, and [the defendant's] contention that he should not have been charged in the first place does not make the records themselves 'inaccurate.' "

Id. at 483 n.13.

The majority's reliance on Commonwealth v. S.M.F., 40 Mass. App. Ct. 42 (1996), is similarly misplaced. There, an impostor who had stolen S.M.F.'s identity and papers was arrested, identified herself as S.M.F., appeared before the court on the criminal charges, and continued to perpetrate a fraud by passing herself off as S.M.F. In such circumstances, we concluded that G. L. c. 276, § 100C, was inapplicable and not a bar to expungement. To correct the fraud, the trial court was authorized to expunge S.M.F.'s probation and court records and to substitute the impostor Doe in her place. "[T]he deliberate act of prosecution was not against S.M.F. . . . Jane Doe was the person arrested and the Commonwealth has every intention to press the prosecution against Jane Doe if it can find her." Id. at 45.

Here, as in Gavin G., and in contrast to S.M.F., the complaint was sought and issued against Boe; Boe appeared in court, and the charge brought against Boe was dismissed. Regardless whether the charge against Boe may have been brought improvidently, the charge did, in fact, occur, and the record of the charge against her is neither fictitious nor false. See Commonwealth v. Gavin G., supra ("where the person seeking expungement was never actually charged or brought before the court, but [her] name was used by the actual defendant," expungement is permissible and appropriate).

General Laws c. 276, § 100C, represents the Legislature's considered determination regarding the appropriate remedy in circumstances such as this. To the extent that the Legislature has prescribed a system that the majority views as unacceptably Kafkaesque, it is the province of the Legislature, not of this court, to strike the appropriate balance of interests. I would vacate the order of expungement and remand to the Boston Municipal Court Department so that the judge might entertain a motion to seal the defendant's record in conformity with the statute.