Contempt Case Against Indiana Sheriff Reinstated in Discrimination Suit
On December 8, 2016, the Indiana Court of Appeals reversed and remanded a case to the superior court in a contempt lawsuit filed against the Marion County Sheriff. The plaintiff, identified only as N.M. claimed that the sheriff had wrongfully denied him a position as a volunteer sheriff's deputy based on a previously expunged felony conviction.
On October 4, 2013, the Marion County Superior Court granted H.M.'s motion to expunge certain convictions under Indiana's expungement statutes, which allow for certain convictions to be cleared from one's record after a certain period of crime-free conduct. In most cases, though, the conviction is still findable in a background search, but it is unlawful for an expunged conviction to be used to deny a person such things as housing and employment. With certain exceptions, related to future criminal conduct, the law mandates that a "person whose record is expunged shall be treated as if the person had never been convicted of the offense." See: Indiana Code section 35-38-9-10(e).
In November 2014, R.M. applied for appointment as a volunteer sheriff's deputy. As part of the screening process, the sheriff conducted a routine background check which revealed H.M.'s expunged convictions. H.M. was turned down for the position by letter which states only that a background check resulted in the decision.
H.M. then filed a verified petition for contempt against the sheriff, arguing he violated section 35-38-9-10(e) by discriminating against H.M. on a basis not permitted under Indiana law. The trial court dismissed H.M.'s petition on the sheriff's motion, but without legal analysis or reasoning. H.M. appealed, and the Court of Appeals reversed.
While recognizing the sheriff's need to appoint deputies who are qualified under separate deputization statutes, the appellate court found that the Indiana General Assembly did not limit the scope of the expungement statute by carving out a law enforcement exemption. The court, finding that it was only authorized to interpret the law before it, and not rewrite it, said if the sheriff was not satisfied with the law that he should direct his arguments to the legislature.
"It may be well that the sheriff had other bases upon which to deny H.M.'s application," the court wrote. "But ... we cannot say as a matter of law that the petition failed to adequately set forth a basis upon which H.M. might proceed in an effort to prove discrimination solely based upon his prior expunged convictions.
"According, we conclude that the trial court erred when it granted the sheriff's motion to dismiss, and we reverse the order of dismissal," and remand the case for further proceedings. See: In re the Expungement/Sealing of Records of H.M., No. 49A02-1604-MI-700 (C.A. IN), December 8, 2016.