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Kentucky Supreme Court rules that expungement fees can be waived

The ruling reverses a lower court’s finding that the required fees for a criminal expungement must be paid regardless of the person’s financial situation.

LOUISVILLE, Ky. (CN) — The Kentucky Supreme Court has ruled that individuals can have expungement fees waived if they can show that they cannot afford to pay.

The state’s highest court issued its unanimous ruling on Thursday, finding that individuals who are seeking to have criminal convictions expunged may do so even if they cannot afford to pay the associated fees.

The case came before the court after Kentuckian Frederick Jones appealed a Kentucky Court of Appeals ruling which found that Jones could not have his expungement fees waived even if he could not afford to pay.

In 2018, Jones sought to have a 1998 theft conviction removed from his record but did not pay the filing fee. Instead, Jones sought a trial court order that said he did not have to pay the fees because of his financial hardships.

The trial did not grant the request, citing that the expungement fee was not covered under the state’s in forma pauperis, or IFP statute, which is used by individuals seeking to waive court fees based upon their financial status.

In its ruling, the Kentucky Supreme Court found that the IFP statute applies to expungements, which purpose is to provide access to the courts for indigent people.

“An indigent person is unable to achieve his or her aim—expungement—unless he or she pays both the filing fee and the expungement fee. Payment of both fees is required to complete the expungement process and obtain all of its benefits,” wrote Justice Michelle Keller who authored the opinion. “We can identify no other situation in our Commonwealth where a judge renders a judgment that a litigant is entitled to a benefit under the law, but that litigant cannot obtain the benefit of that judgment unless and until he pays a fee.”

Attorney Michael Abate, who represented Jones and argued on his behalf before the Kentucky Supreme Court, said he was “thrilled” by the court’s opinion.

“Money should not be a barrier to accessing courts, to reinstate fundamental rights,” Abate said.

With the ruling, all individuals across Kentucky seeking expungement can now apply to get the fees waived if they show that they cannot afford to pay. This could allow many more people to seek expungement, as a financial barrier is now lifted.

Expungement can be an important step for people with a criminal conviction in being able to fully reenter and reengage with society and Abate believes this ruling will greatly improve their ability to do so.

“For people its going to impact every aspect of their lives,” Abate said. “It’s going to make them financially able to reengage, make it easier to get housing.”

During oral arguments several constitutional arguments were raised, but the Kentucky Supreme did not issue findings on those questions and stuck strictly to the statutory arguments in its ruling.

Kentucky argued that the fees could not be waived because the expungement is not considered a separate action under the IFP statute from the original criminal case.

The ruling dispatched that argument, finding that the procedures of an expungement clearly identify it as a separate action from its original case.

“However, we note that an expungement is completely separate from the underlying criminal case. The mere fact that a filing fee is required is evidence of this, as filing fees are not required for other types of motions (such as a motion to suppress or a motion in limine) that would ordinarily be filed as part of a criminal case,” the ruling states.

These collected expungement fees are split among Kentucky’s Department for Libraries and Archives, Kentucky’s State Police, its state’s attorneys and the state’s deputy circuit clerks.

The Kentucky Supreme Court acknowledged that these state agencies may now be missing relied upon funds but stressed that such an outcome could not be factored into their decision.

“We recognize the hardship our holding may place on the agencies who benefit from the expungement fee. However, we cannot allow that potential hardship to color our analysis of the statutes at issue. We merely interpret the statutes as enacted by the General Assembly,” the ruling stated.

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