TO: Joint Procedure Committee
FROM: Andy Forward
DATE: March 26, 2010
RE: Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records
Attorney Tom Dickson sent a letter to the Chair about Rule 41 Section 5(b)(7). Under Section 5(b)(7), records of deferred impositions of sentences resulting in dismissal are not accessible to the public. Mr. Dickson and other members of the criminal defense bar were wondering whether there is a substantive reason for differentiating between dismissals resulting from a deferred imposition of sentence with dismissals resulting from any other reason.
Mr. Dickson said this issue can arise when a minor gets cited for minor in possession, and the case gets dismissed. The dismissal then remains on the minor’s public record. Mr. Dickson said this can have an affect on college admissions process.
Subdivision (b) of Section 5 is titled “Information that is not accessible to the public under state law, court rule, case law or court order, including:.” In the Appendix of Rule 41, N.D.C.C. § 12.1-32-07.2(2) and N.D.R.Crim.P. 32.1 are listed as statutes and court rules that make certain records confidential. Both pertain to deferred imposition of sentence.
I was unable to find any cases that discuss either N.D.C.C. § 12.1-32-07.2(2) or N.D.R.Crim.P. 32.1 to address the issue Mr. Dickson presents. Section 12.1-32-07.2(2), N.D.C.C., was passed by the legislature in 1989 as part of H.B. 1052. In the House Judiciary Committee minutes, I found a statement that appears to explain the reasoning behind sealing a deferred imposition record:
[T]he records are open until the individual is through the sentencing process and there is an act of withdrawal to plead guilty and a dismissal of the action, it is at that time the final orders are packed and sealed by the clerk, they are open. The value of this and the philosophy behind it is . . . that when you have an individual that has never been involved with the law before, most likely a young individual, successfully completes the probation period can then petition the courts to withdraw the plea of guilty, dismiss the action, have the packet sealed and then can later on in life legally say on applications etc. that he has never been convicted of a felony. Currently, the only way to get back into those records is that if the defendant later on in life has another brush with the law and at the point of sentencing the court can go back in and view the previous conviction.
See Hearing on H.B. 1052 Before the House Judiciary Committee, 51st N.D. Legis. Sess. (Jan. 11, 1989) (testimony of Mr. Placek).
Rule 32.1, N.D.R.Crim.P., Deferred Imposition of Sentence Records, was adopted in 1999 to provide uniformity in the processing of deferred impositions of sentence, and to prevent the disparity of treatment received by defendants depending upon their county of venue in misdemeanor cases. See Explanatory Note to N.D.R.Crim.P. 32.1.
It appears it was a legislative decision to have deferred imposition records sealed. There may be a reason why dismissals resulting from other reasons are not sealed, but I was unable to find one. A possible reason could be that criminal records are presumed open unless made confidential by a statute, rule, or regulation.
A copy of Mr. Dickson’s letter is attached along with a copy of Rule 41.