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Commonwealth v. Zoe

Appeals Court of Massachusetts, Suffolk

June 17, 2019


          Heard: May 8, 2019

         Complaint received and sworn to in the Brighton Division of the Boston Municipal Court Department on April 29, 1997.

         After dismissal, a petition to seal the record, filed on November 2, 2015, was heard by David T. Donnelly, J., and a motion to unseal the record was heard by him.

          Michelle R. Peirce for the defendant.

          LaRonica K. Lightfoot, Assistant Attorney General, for Board of Registration in Medicine.

          Present: Milkey, Hanlon, & Sacks, JJ.

          MILKEY, J.

         The defendant challenges an order by a Boston Municipal Court judge requiring that certain sealed criminal records be "unsealed." For the reasons that follow, we vacate the order and remand for further proceedings consistent with this opinion.


         In March 1997, the defendant and his then-roommate apparently got into an altercation, and in April of that year they each pursued criminal charges against the other in the Boston Municipal Court. The charges against the defendant were dismissed. Almost two decades later, the defendant applied to the Board of Registration in Medicine (board) for a medical license. On his application, the defendant disclosed four sets of criminal charges he previously had faced, but he did not mention the charges stemming from the roommate incident (April 1997 charges). The board issued the defendant a medical license notwithstanding the prior charges he had disclosed. However, when the board subsequently learned of the April 1997 charges -- which had not yet been sealed -- it commenced an investigation into whether the defendant's failure to disclose them on his application warranted enforcement.[3]

         Representing himself, in November 2015, the defendant filed a motion on the closed criminal docket requesting that the April 1997 charges be sealed for "good cause" pursuant to G. L. c. 276, § 100C. After a pro forma hearing in which an unidentified representative of the Commonwealth stated that he or she had no objection to the sealing, [4] a Boston Municipal Court judge allowed the defendant's request and ordered the records of the April 1997 charges sealed. The defendant subsequently separately requested that the records be sealed by the Commissioner of Probation (Commissioner) pursuant to the automatic sealing procedures of G. L. c. 276, § 100A.[5] Because the April 1997 charges met the qualifying criteria set forth in § 100A, the Commissioner allowed the sealing of the records pursuant to that section. As the board acknowledges in its brief, "[t]he Commissioner is required to seal the criminal records automatically under G. L. c. 276, § 100A[, ] if the individual meets the objective statutory requirements."

         The board eventually learned that the April 1997 charges had been sealed, and it concluded that this potentially could interfere with its enforcement efforts. Accordingly, it decided to request that the records be "unsealed" on the grounds that the defendant had not disclosed the pendency of the board's investigation when he had asked the judge to seal them pursuant to § 100C. The board did not file an original action against the District Court or the Commissioner seeking such relief. Instead, without moving to intervene, the board simply filed a motion to that effect on the closed criminal docket. There is no indication in the record that the board notified the Attorney General, the District Attorney, or the Commissioner that it was taking such action. The defendant, now represented by counsel, opposed the board's motion, arguing that: (1) there is no procedure through which the board -- a third party to the sealing process -- can request that sealed records be unsealed, (2) in any event, the records independently were sealed pursuant to the automatic provision in § 100A, and (3) the sealing of the April 1997 charges in fact would not impede the board's ability to use them in any enforcement proceeding.[6] Nevertheless, the judge allowed the board's motion and issued an order that on its face appears to order that the records of the April 1997 charges be unsealed.


         Sections 100A and 100C set forth independent paths through which a defendant may seek to have criminal records sealed. See Commonwealthv.Pon, 469 Mass. 296, 298-306 (2014) (distinguishing automatic sealing provisions of § 100A from discretionary sealing provisions of § 100C). Where, as here, the charges at issue meet the criteria of § 100A, a defendant is entitled to have the records sealed and need pursue only ministerial approval from the Commissioner.[7] The judge had no authority to override the terms of the statute providing for such automatic sealing. Assuming arguendo that the judge retained authority to reconsider his earlier decision to have the charges sealed pursuant to § 100C, whether he should do so was no longer of any consequence once the charges independently had been sealed pursuant to § 100A. See id. at 298-299 (subsequent sealing of records pursuant to § 100A rendered moot question as to whether judge should have sealed them pursuant to § 100C). Because the Commissioner already had sealed the April 1997 charges pursuant to § 100A by the time the board filed its motion, that motion was moot from its inception. Accordingly, we vacate the ...

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