How Permanent Forfeiture of Public Employment Effects Expungement Eligibility in New Jersey

In re Expungement Petition of D.H.
Supreme Court of New Jersey
September 14, 2010

Holding: A mandatory order of permanent forfeiture of public employment pursuant to N.J.S.A. § 2C:51-2 may not be expunged along with the conviction that originally triggered the order of permanent forfeiture.

Why This Case is Important: In New Jersey, expunging a conviction will alleviate the legal liabilities that flow from a conviction. The purpose of the expungement statute is to allow the former offender to solidify her role as a law-abiding citizen and move forward with her professional goals. However, an order pursuant to N.J.S.A. § 2C:51-2 for permanent forfeiture of public employment is separate from the legal disabilities that flow from a conviction, and therefore cannot be expunged.

N.J.S.A. § 2C:51-2 states that when an offense involves or touches the offender’s public office, position or employment, then the offender will permanently forfeit their position of public office. This means that the offender will be forever disqualified from holding any office or position of honor, trust or profit under the state or any of its administrative or political subdivisions. N.J.S.A. § 2C:51-2(d). Such an order may arise from a conviction arising from a person’s employment. In this case, the petitioner was convicted of unauthorized access of a computer.

If such a petitioner applies to expunge her criminal records, she will be entitled to expungement if she can establish the statutory requirements. Once the statutory requirements are met, then the burden falls to the state to establish that the petitioner’s records should not be expunged. If the petitioner establishes that she is eligible for expungement, then the court may expunge the records of her criminal conviction. However, although this means that the legal disabilities are removed, an order of permanent forfeiture pursuant to N.J.S.A. § 2C:51-2 cannot be removed.

The New Jersey Supreme Court determined in this case that the intent of section 2C:51-2 was to preclude those who have violated the trust of their position from a second chance. In order to give effect to the legislature’s mandate, the Court reasoned that an expungement could not remove the disabilities of 2C:51-2. Furthermore, the Court recognized that the expungement statute itself contained language that made the exception that an expunged conviction will remove the legal disabilities of the conviction, except as provided by the law. Being that section 2C:51-2 was meant to be a permanent preclusion from public office, the Court concluded that such an order could not be expunged.

Facts of This Case: In 1999, the petitioner in this case was convicted of unauthorized access of a computer. Pursuant to her plea agreement, she consented to an order of forfeiture of public employment. In 2008, the petitioner filed for a petition seeking tp expunge the records of her conviction and the order of forfeiture of public employment. The trial court granted her request. On appeal, the appellate division affirmed the trial court’s decision. The State once again appealed, and the New Jersey Supreme Court affirmed in part and reversed in part.

The New Jersey Supreme Court first affirmed the decision to expunge the petitioner’s conviction. The Court determined that the petitioner had satisfied the burdens of the statute and had established she was eligible under the expungement statute. The Court further held that the State had failed to prove that the petitioner was ineligible under the expungement statute.

The New Jersey Supreme Court then reversed the decision to expunge the petitioner’s order of forfeiture of public employment. The Court reasoned that N.J.S.A § 2C:51-2 was mandated by the legislature to forever disqualify persons who breached the trust of the state. In order to give effect to the legislature’s intent, the Court held that the order could not simply be expunged. The Court affirmed their decision in the expungement statute itself, citing N.J.S.A. § 2C:52-27, which states the legal disabilities of an expunged conviction will be removed unless otherwise provided by law; in this instance, the Court determined that this was as “otherwise provided by law.” The Court also recognized that N.J.S.A. § 2C:51-2 had its own mechanism to relieve the permanent forfeiture, and that the petitioner would need to apply for the relief through that provision.

The New Jersey Supreme Court therefore affirmed the decision to expunge the criminal records, and reversed the decision to expunge the order of permanent forfeiture.

Key Language: The entry of an order of expungement should have no effect – either direct, collateral or preclusive – on separate mandatory order of forfeiture of public employment.

Expert Advise: “An order of expungement will remove the legal disabilities of a conviction. Only in some instances will that removal be restricted. This case demonstrates that an order pursuant to N.J.S.A. § 2C:51-2 is one of those instances where an order of expungement will not remove the legal disabilities that flow from a conviction.” -Attorney Mathew Higbee.

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