Quick note.... California Penal Code 1203.4 does not allow expungement of offenses that are classified as infactions. The legislature probably deemed infractions too insignificant to justify the burden placed on the court. However, in the post-9-11 economy, background checks are utilized by more than 80 percent of employers. Our law firm receives several requests to expunge infractions a month from people who were denied employment because of an infraction.
To date, we have not challenged this law. However, reading some case law leads me to think that a challenge based on equal protection grounds might be successful.
In particularly, Newland v. Board of Governors of California Community Colleges, 19 Cal.3d 705, 566 P.2d 254
"We turn therefore to plaintiff's argument that the statutory requirement for a certificate of rehabilitation denies misdemeanants to equal protection of the law because it discriminates in favor of felons and against misdemeanants. The decisions clearly hold that a legislative classification, such as that involved here, violates the constitutional requirement of equal protection of the law unless it rationally relates to a legitimate state purpose. Neither our cases nor those of the United States Supreme Court have settled on a particular verbal formula to express this proposition. Some decisions require that the classification ‘bear some rational relationship to a conceivable legitimate state purpose’ ( D'Amico v. Board of Medical Examiners (1974), 11 Cal.3d 1, 16, Cal.Rptr. 786, 797, 520 P.2d 10, 21); others that the classification must rest upon ‘some ground of difference having a fair and substantial relation to the object of the legislation’ ( Reed v. Reed (1971), 404 U.S. 71, 75-76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225; Brown v. Merlo (1973), 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212)."
And..
"This statutory discrimination against misdemeanants can claim no rational relationship to the protective purpose of section 13220.16. This amendment stands as a legislative recognition that many of the persons barred for life under the unamended version of section 13220.16 were fit to teach. The Legislature could not possibly or sensibly have concluded that misdemeanants, as opposed to felons, constitute a class of particularly incorrigible offenders who are beyond hope of rehabilitation."
The logic in Newland may successfully be applied to a Constitutional challenge to Penal Code section 1203.4 denial of relief to those convicted of infractions.
Check back in the future as we expand this topic or post details on a challenge.
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2 comments:
It is outrageous that we are sidelining whole groups of promising young people because of infractions where no one was harmed, just petty community annoyance against young people who have nowhere to go but are classified as adults with all the responsibilities but are not allowed into bars and nightclubs. They are then harassed for congregating on streets. My daughter finally got a job with an infraction on her record but was told that the principal routinely tosses all resumes that show any record of any kind.
What I don't understand is why isn't everyone clamoring about something as judicially / legislatively troubling as verbage such as "rational relationship to a conceivable legitimate state purpose"
Under this "reason" for denying MANY constitutional rights on MANY fronts, California has ultimate authority. As long as a state law or action justifies its denials of constitutional rights of individuals, no one is safe. The Constitution keeps of free. It's been "retired" by California at the very least. We should all be very, very scared right now.
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