on March 25, 2010 in COMMONWEALTH vs. TINA BOE 456 Mass. 337 (2010) the Supreme Judicial Court ruled that a Boston Municipal court judge did not have the authority to expunge a criminal record .
After being mailed a citation for violating G. L. c. 90, § 24(h) (2) (a 1/2 ) (1), by leaving the scene of an accident after causing personal injury and subsequently being charged for the same, At a pretrial hearing on November 3, 2006, Boe and the Commonwealth filed a joint motion to dismiss the complaint and to expunge “all information regarding this case . . . from the criminal record of the Probation Department, Commissioner of Probation, and other appropriate agencies.” [FN3] The parties asserted that expungement was appropriate because the complaint should not have issued in the first instance where the Officer erroneously assumed that Boe, as registered owner, was operating the Honda at the time of the accident when, in fact, the police report clearly described the operator of the Honda as male. A judge allowed the motion, dismissed the complaint, and issued an order directing the commissioner to expunge Boe’s criminal record. After objection by the commission, The judge denied the commissioner’s motion, concluding that because the criminal complaint had been issued erroneously based on misidentification of Boe as the perpetrator of the crime, expungement of her criminal record was “appropriate” and “just” relief. The judge stated that sealing Boe’s record pursuant to § 100C would be an “inadequate” remedy when balanced against the wrongful basis and misleading circumstances on which the complaint was issued, and that Boe should not have to live under a “cloud of prosecution” with a sealed record.
In ruling that the Judge had acted in error, the SJC stated
“In order further to restrict access to probation records, the Legislature has enacted a comprehensive scheme for sealing such records, which are maintained by the commissioner. See G. L. c. 276, §§ 100A, 100B, and 100C (sealing statutes). As applicable to the present case, G. L. c. 276, § 100C, states, in relevant part:
“In any criminal case wherein a nolle prosequi has been entered, or a dismissal has been entered by the court, . . . and it appears to the court that substantial justice would best be served, the court shall direct the clerk to seal the records of the proceedings in his files. The clerk shall forthwith notify the commissioner of probation and the probation officer of the courts in which the proceedings occurred or were initiated who shall likewise seal the records of the proceedings in their files.”
Putting aside for a moment the confluence of events that resulted in the issuance of a criminal complaint against Boe, Massachusetts appellate decisions have construed the unambiguous language of G. L. c. 276, § 100C, as conferring on a judge the authority, in appropriate circumstances, to order sealing, but not expungement, of the probation and court records of dismissed prosecutions. See Commonwealth v. Roe, 420 Mass. 1002 (1995).
We recognize that a court can exercise its inherent power to “correct” its own records. See Bolduc v. Commissioner of Correction, 355 Mass. 765, 767 (1969) (court had plenary power to order that mittimus be corrected so as to conform with sentence actually imposed); Webb v. Cohen, 280 Mass. 292, 293 (1932) (“There is an inherent and necessary power in a court of justice acting on the motion of an interested party . . . or on its own motion to correct errors and remedy omissions in its records in order that they shall speak the truth”). Here, however, there is no evidence that Boe’s probation record is inaccurate or false such that expungement would be permissible under the court’s inherent authority to “correct” the record. Boe was charged with a particular offense on a particular date, a show cause hearing was held, a complaint issued, and the matter ultimately was dismissed. That Boe should not have been charged with a crime in the first place does not render the information in the record inaccurate or misleading, and, in such circumstances, the Legislature has concluded that the appropriate remedy is the sealing of her record. [FN15] See Commonwealth v. Gavin G., supra at 482-483 & *349 n.13 (whether proceedings chronicled in probation records should have occurred does not change fact that they did occur, and contention that charges should not have been filed in first instance does not make records themselves “inaccurate”).
3. Conclusion. The portion of the expungement order that is directed to the commissioner is reversed. This case is remanded to the Boston Municipal Court so that the judge may entertain a motion to seal Boe’s record in conformity with G. L. c. 276, § 100C.”
Attorney Ronald A. Sellon