(Posted April 20, 2023) The Supreme Court this morning turns to a statutory morass — or maybe desert is the better metaphor — in the field of expungement petitions. Williams v. Commonwealth highlights the lack of specificity in the Code for persons who seek to clear their arrest records.

The Commonwealth indicted Williams for being an accessory to a murder, but before trial, she agreed to plead to a reduced charge of obstruction of justice, a misdemeanor. She then sought expungement of her felony arrest. The prosecutor commendably had no objection.

But the judge did. The court concluded that because Williams had pleaded guilty to a crime related to her original arrest, she wasn’t one of those innocent citizens whom the expungement provisions undertake to protect. The court refused the petition. Last year, the justices decided to take a look.

Here’s the relevant passage from the statute: It applies after an acquittal, or where a “nolle prosequi is taken or the charge is otherwise dismissed ….” Williams contended on appeal, as she did below, that her felony indictment was “otherwise dismissed,” because the Commonwealth dropped that charge and allowed her to plead to a lesser offense. The question here is what that otherwise dismissed language means.

The legislature didn’t define the term or list a bunch of examples. That has left the courts to try to sort it out.

Existing precedent holds that where the subsequent charge is a lesser-included offense of the original, then the defendant isn’t innocent enough to warrant relief. But where the successor charge is “completely separate and unrelated,” the defendant can seek expungement. The justices today explain what that quoted phrase means: “a court should (1) compare the conceptual similarities and differences between the original charge and the amended charge and (2) examine whether the two charges share a common nucleus of operative facts.”

Today the Supreme Court sort-of unanimously rules that Williams is eligible for expungement consideration. At least as an abstract principle, obstruction of justice is completely separate from aiding in a murder, so six members of the court join in a published order — this means that we don’t know the identity of the author — that remands the case to allow a hearing on the merits of that request. (My barely educated guess, based solely on the writing style, is that Justice McCullough wrote this one. The bad news is that we’ll never know if I’m right or wrong.)

The order contains this language in a closing footnote: “The General Assembly, as the policy making body of our Commonwealth, remains free, of course, to narrow or to broaden the scope of the expungement statute. Whether it should do so is for that body to determine. It is not the province of the courts to ‘inquire into the wisdom of legislation.’” That’s the genteel and understated language of Supreme Courtese; the English translation is “Legislature, we can’t amend your botched wording in this statute; that’s your job.”

One member of the court isn’t content to be this discreet. Justice Mann pens a concurring opinion agreeing that Williams deserves a shot at expungement. His entreaty to the General Assembly lays out in detail the reasons why he perceives statutory guidance to be inadequate. He goes on to explain that in his view, the court’s two-part explanation, which I quote three paragraphs above this one, is unnecessary and actually adds complexity.

Will the 140 Troublemakers pick up the baton and run with it? Let’s hope so; by the narrow margin of seven-zip, the court today concludes that this statute needs major surgery. Keep in mind that it’ll be a different set of Troublemakers, as a slew of retirements and redistricting pair-ups will lead to a greatly altered General Assembly in January 2024.