Opinion
No. 74P19
06-26-2024
STATE of North Carolina v. Justin Alexander VANDERGRIFF
Anton M. Lebedev, Attorney at Law, For Justin Alexander Vandergrift. Daniel P. O’Brien, Special Deputy Attorney General, For State of North Carolina. Adam Everett, Assistant District Attorney, For State of North Carolina. Joseph L. Hyde, Special Deputy Attorney General. Teresa M. Postell, Special Deputy Attorney General, For State of North Carolina.
From N.C. Court of Appeals P19-123; From Wake 12CR735488
Anton M. Lebedev, Attorney at Law, For Justin Alexander Vandergrift.
Daniel P. O’Brien, Special Deputy Attorney General, For State of North Carolina.
Adam Everett, Assistant District Attorney, For State of North Carolina.
Joseph L. Hyde, Special Deputy Attorney General.
Teresa M. Postell, Special Deputy Attorney General, For State of North Carolina.
ORDER
Allen, J. For the Court
The following order has been entered on the motion to seal filed on the 6th of March 2024 by Defendant:
Motion Denied by order of the Court in conference, this the 26th of June 2024.
Justice DIETZ concurring.
I agree with my dissenting colleague that expunging criminal records serves laudable goals. See post (Earls, J., dissenting). In fact, I agree with most of what is in the dissent. I write to address what is not in it.
The dissent portrays this motion to seal as a straightforward matter that needs no briefing, no argument, no adversarial process. All we need to do is seal the requested records and move on. But spend a moment contemplating this motion and what emerges are deeply complicated and novel legal questions with strong arguments on both sides. This is anything but simple.
Take, for example, the dissent’s insistence that this Court’s authority to seal the records is obvious. That authority, according to the dissent, comes from our constitutional power to create rules of procedure for the appellate courts. See N.C. Const., art. IV, § 13(2).
But is it that simple? What if there were no laws governing expunction? Could this Court, on its own initiative, seal the records of certain criminal defendants solely because we believed they were worthy of expunction? I don’t think so. Choosing who is entitled to have their records expunged, and choosing which records should be expunged, are policy questions for lawmakers, not legal questions for judges.
That is where things get tricky, because there is ambiguity in what our lawmakers intended. The statutes described by the dissent only reference records of trial courts and state agencies. See N.C.G.S. §§ 15A-145 to 15A-153 (2023). This Court is neither of those.
Moreover, our decisions are not the same as those of trial courts. Our opinions are more than mere court records; they are part of the law’, seiwing to hone past decisions or to fill the gaps in other positive law. See Benjamin N. Cardozo, The Nature of the Judicial Process (1921). We cannot seal that away from the public. We could no more hide our precedential decisions than we could mask the contents of the General Statutes.
Even sealing the remainder of an appellate record (everything but the opinion) creates problems. Our opinions frequently reference what the parties did or did not argue in their briefing, and almost always describe facts from the appellate record. As a result, future litigants use the appellate record of a decision to help interpret the decision’s meaning and to explain why that decision is the same as, or different from, their own case. We do the same. See, e.g., State v. Richardson, 385 N.C. 101, 200, 891 S.E.2d 132 (2023) (examining record in previous decision to determine if an issue not mentioned in the decision had been raised in the case).
Of course, not every case before this Court yields a written opinion—here, for example, we dismissed the defendant’s petition in a boilerplate order. But that does not mean we should reflexively seal the record here. Why would the General Assembly intend for us to expunge some defendants’ appellate records but not others, based solely on whether this Court happened to issue an opinion? That is something far beyond any defendant’s control. Nothing in the language of the expunction statutes supports that sort of unjust, bifurcated approach.
Still, though, the dissent makes fair points. If this Court’s records remain public, sealing the corresponding trial court records accomplishes little. After all, at present, this Court’s decisions and records are more readily available through our online search functionality than those of the trial courts. But, again to be fair, there is limited ability to scrape our database for information. It is designed for individual searches, not mass data collection.
Is there a solution to this dilemma? Perhaps. In juvenile cases that come to our appellate courts, we have a procedure that requires litigants to replace party names with pseudonyms. See N.C. R. App. P. 42(b). We could create a similar procedure for litigants whose records are expunged, permitting them to submit filings that replace identifying information with pseudonyms or redactions. Other states use this approach. See, e.g., Ind. Code § 35-38-9-1(f)(4). Notably, though, these other states enacted the process by statute—meaning policymakers, not judges, chose it.
In sum, this is not a straightforward matter. Without further legislative guidance, it remains unclear whether this Court’s records are covered by the new expunction laws and, if so, which of our records the General Assembly intended to be expunged. The defendant did not address these statutory interpretation issues in the motion. There is no response from an opposing party. The limited filings before us simply do not provide a vehicle to resolve the difficult legal questions we face. Thus, I join the majority’s order. When these questions are answered, if the defendant in this case is entitled to have his appellate record expunged, I see nothing in the Court’s order today preventing him from applying for that relief.
Justices BERGER and ALLEN join in this concurring opinion.
Justice EARLS dissenting.
Mr. Vandergrift moves to seal appellate records linked to an expunged misdemeanor conviction. Beyond question, this Court can grant that relief—we are constitutionally vested with "exclusive authority to make rules of procedure and practice for the Appellate Division." N.C. Const., art. IV, § 13(2). That rule-making power reaches the sealing of appellate records. See N.C. R. App. P. 42. Today, however, the Court denies Mr. Vandergrift's modest request—not for lack of power, but for lack of will. That is regrettable.
Recent statutory changes allow North Carolinians to expunge certain convictions from their records. See generally N.C.G.S. §§ 15A-145 to -173 (2023). The purpose of those provisions is laudable. Recognizing the longstanding barriers that often attach to a criminal conviction, an expungement "legally eliminates the record" of a past offense, thus "offer[ing] the possibility of sweeping aside a wide range of legal and socioeconomic consequences at once." See J.J. Prescott and Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133(8) Harv. L. Rev. 2460, 2463 n.10 (2020); see also id. at 2468 (canvassing the sprawling harms of a criminal record, such as "exclusion from employment, obstacles to social integration, and a vast array of collateral legal consequences that often last a lifetime"). But by declining to seal the appellate records linked to an already-expunged conviction, this Court undermines the legislature’s efforts to give people with criminal records a second chance. As logic dictates and scholarship confirms, an expunction has far less practical value if vestiges of the offense remain enshrined in publicly accessible appellate websites and databases. See id. at 2470.
In my view, when a party asks to seal appellate records for an expunged conviction, granting that relief is within this Court’s constitutional authority and faithful to the purpose of expunctions. It ensures that North Carolinians have the second chance our legislature promised them. Because I would thus allow Mr. Vandergriff's request, I dissent from the denial of his motion.
Justice RIGGS joins in this dissenting opinion.