L.D. 1911, An Act to Automatically Seal Criminal History Record Information for Certain Crimes

The 132nd Legislature of the State of Maine

State House

Augusta, Maine

Dear Honorable Members of the 132nd Legislature:

By the authority vested in me by Article IV, Part Third, Section 2 of the Constitution of the State of Maine, I am hereby vetoing L.D. 1911, An Act to Automatically Seal Criminal History Record Information for Certain Crimes.

This bill would direct the Judicial Branch to review decades of criminal docket files - much of this work by hand - to identify those that are to be removed from the public record. The sealing of these records would occur without regard for whether the subjects of the files have requested that they be sealed, whether victims have objected, or whether a compelling public interest exists in the records remaining accessible.

There are several significant problems with the legislation. First, as drafted, L.D. 1911 would mandate the sealing of records for Class D domestic violence assault - a result that is plainly contrary to the public interest. Second, a ruling by the U.S. Court of Appeals for the First Circuit strongly suggests that categorically sealing criminal records without conducting a case-by-case review of the circumstances violates the First Amendment. Third, this legislation would commit the State to hiring seven permanent employees to conduct the work of sealing records. Only a fraction of this cost has been appropriated. This is a significant on-going expense that could be avoided by allowing interested persons to request that their records be sealed, rather that requiring the Judicial Branch to seal all records eligible records as a matter of course.

L.D. 1911 would direct the Judicial Branch generally to seal records of misdemeanor convictions - designated in Maine law as Class D and Class E crimes - five years after the date of conviction. The bill sets forth a list of exceptions in the form of specific misdemeanor offenses, the records of which are expressly ineligible to be sealed. These include assault (17-A M.R.S. §207), stalking (17-A M.R.S. §210), misdemeanor sex crimes (17-A M.R.S. §§251-285), criminal operating under the influence (29-A M.R.S. §2411) and many others. Omitted from this list of exemptions, however, is the Class D crime of domestic violence assault (17-A M.R.S. §207-A). While this was apparently an oversight, I cannot endorse legislation that would conceal from public view criminal records of intimate partner violence.

I also share the concerns expressed by the Maine Press Association and others that automatically sealing criminal records unduly burdens the First Amendment. A criminal conviction is the culmination of work by all three branches of government. The Legislature has enacted a statute prohibiting certain conduct, the Executive has prosecuted a violation of the statute, and the

Judiciary has entered judgment. This process should be transparent, and records documenting this work should remain available and subject to public scrutiny except where there a compelling public interest exists to justify secrecy, as is true, for example, for juvenile cases. See, Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509 (1st Cir. 1989). It is difficult to see how L.D. 1911 could withstand constitutional review in federal court.

Finally, L.D. 1911 would require the Judicial Branch to review every criminal docket by hand to determine whether to seal the record. Maine law already permits a person to file a post judgment motion to seal records of certain Class E crimes. See, 15 M.R.S. Ch. 310-A. However, this bill directs the Judicial Branch to seal records categorically, which would require seven new employees, including two judges, at a cost of over $1 million annually. These new positions received funding only for the last three months of the current biennium, but would become part of the baseline budget inherited by the next Legislature. Our criminal justice system has many pressing needs, and I question whether the work required by this bill would burden an already overworked Judiciary and detract from efforts to protect public safety.

For these reasons, I return L.D. 1911 unsigned and vetoed, and I urge the Legislature to sustain this veto.

Sincerely

Janet T. Mills Governor