NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2021 VT 90
Nos. 2021-118 & 2021-119
State of Vermont Supreme Court
v. On Appeal from Superior Court, Franklin Unit, A.P. Criminal Division State of Vermont November Term, 2021 v.
Z.P.
Michael S. Kupersmith, J. (Ret.)
Thomas J. Donovan, Attorney General, and Ultan Doyle, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Ian P. Carleton and Sarah J. Heim of Sheehey Furlong & Behm P.C., Burlington, for Defendants-Appellants.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Treadwell, Supr. J., Specially Assigned
¶ 1. REIBER, C.J. In these consolidated appeals, defendants A.P. and Z.P. challenge
the superior court’s denial of their motions for expungement. They argue that the court erred by
interpreting 13 V.S.A. § 7603(g) to provide an avenue for expungement only to individuals who
have been arrested or cited but not charged with criminal offenses by information or indictment.
We agree, and reverse and remand.
¶ 2. On April 20, 2020, the Franklin County State’s Attorney charged A.P. and Z.P.
with several felony counts arising from an alleged assault and kidnapping. The State’s Attorney also filed a juvenile petition charging Z.P. with two counts of sexual assault; these charges were
transferred to the criminal division. On June 8, the Attorney General’s Office (hereinafter the
State) took over prosecution of all three cases.
¶ 3. The State subsequently determined that it could not prove the charges against
defendants beyond a reasonable doubt and dismissed all charges without prejudice on December
30, 2020. On January 19, 2021, Z.P. filed a motion to seal his arrest record and any records relating
to the arrest and subsequent dismissal of charges. See 13 V.S.A. § 7603(a) (providing that unless
party objects in interests of justice, court shall order sealing of criminal history record related to
citation or arrest within sixty days of final disposition of case if court does not find probable cause
at arraignment or charge dismissed without prejudice, or at any time if parties so stipulate). A.P.
likewise filed a motion to seal on January 27. The State did not oppose the sealing motions. The
superior court ordered the records sealed on January 28.1
¶ 4. During that same period, the State had received two public records requests seeking
materials relating to defendants’ cases—one from Vermont Public Radio (VPR) filed on January
4, 2021, and one from VTDigger filed on January 21. The State redacted identifying information
from VPR’s requested materials and was awaiting payment of copying costs to release the redacted
documents to VPR, and was estimating the cost of responding to VTDigger’s request. Both
requests were pending at the time that the superior court sealed the records on January 28.
¶ 5. On January 29, one day after the superior court ordered the records sealed, the State
filed motions with the court asking it to reconsider the sealing orders. The State asked for a delay
in sealing within the sixty-day timeframe under § 7603(a) so that it could comply with the
outstanding public records requests. The superior court denied these motions, explaining that the
1 In two of the dockets, the sealing orders appear to show that in one place the court checked the box indicating expungement under § 7603(e) while otherwise clearly ordering the record sealed. Neither party argues that the court ordered expungement, so we interpret these orders to seal but not expunge the records. 2 matters had been sealed and no request to delay had been received before the court issued the
sealing orders.
¶ 6. Subsequently, defendants filed motions under § 7603(g) to expunge all records
relating to the charges. See 13 V.S.A. § 7603(g) (permitting person to file petition requesting
expungement of criminal history record at any time and directing court to order expungement if in
interests of justice or if parties so stipulate).
¶ 7. The State opposed these motions, primarily based on the outstanding public records
request. The State indicated that it was “not opposed to the eventual expungement” of the records
but wanted a court to determine whether it was required to disclose the requested records before
they were expunged.2 The State explained that it had recently denied VTDigger’s public records
request for these cases, and VTDigger intended to appeal that denial to the civil division of the
Washington Superior Court. See 1 V.S.A. § 319 (permitting appeal from denial of public records
request to civil division). Until the court resolved that dispute, the State maintained that
expungement was not in the interests of justice.
¶ 8. The superior court denied the expungement motions. It explained that the charges
were dismissed without prejudice prior to trial and were therefore properly sealed under 13 V.S.A.
§ 7603(a) but ineligible for expungement under § 7603(e). See 13 V.S.A. § 7603(e) (providing
that unless party objects in interests of justice, court shall order expungement of criminal history
record related to citation or arrest within sixty days of final disposition of case if defendant
acquitted or charge dismissed with prejudice, or at any time that parties so stipulate).
¶ 9. Defendants filed motions asking the court to reconsider its denial. Because the
State dismissed the charges without prejudice and did not stipulate to expungement, defendants
2 As to the sexual assault charges, the State additionally opposed expungement because it had dismissed these charges without prejudice “so that they could possibly be refiled in the future,” and argued on this basis that expungement of these charges was not in the interests of justice. 3 conceded that expungement was inappropriate under § 7603(e) but clarified that they moved for
expungement under § 7603(g). Subsection (g) is broader than subsection (e), they argued, as it
provides for expungement “at any time” if the court finds that “expunging the record serves the
interests of justice.” Id. § 7603(g). Moreover, they contended that because the State opposed
expungement, § 7603(b) required the court to hold a hearing before it could rule on the motion.
See id. § 7603(b) (“If a party objects to . . . expunging a record pursuant to this section, the court
shall schedule a hearing to determine if . . . expunging the record serves the interests of justice.”).
¶ 10. The superior court denied defendants’ motions for reconsideration. It concluded
that § 7603(g) “applies if the only criminal history record in a criminal proceeding is arrest or
citation” and “no prosecution follows, [so] no indictment or information is filed.” If an indictment
or information is filed, the court stated that other provisions of § 7603 may apply. The court
reasoned that if defendants’ reading of the statute was correct, then “[e]very criminal case would
be eligible for expungement,” rendering superfluous other provisions in § 7603 providing for
expungement or sealing. And because the court concluded that the records were ineligible for
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NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2021 VT 90
Nos. 2021-118 & 2021-119
State of Vermont Supreme Court
v. On Appeal from Superior Court, Franklin Unit, A.P. Criminal Division State of Vermont November Term, 2021 v.
Z.P.
Michael S. Kupersmith, J. (Ret.)
Thomas J. Donovan, Attorney General, and Ultan Doyle, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Ian P. Carleton and Sarah J. Heim of Sheehey Furlong & Behm P.C., Burlington, for Defendants-Appellants.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Treadwell, Supr. J., Specially Assigned
¶ 1. REIBER, C.J. In these consolidated appeals, defendants A.P. and Z.P. challenge
the superior court’s denial of their motions for expungement. They argue that the court erred by
interpreting 13 V.S.A. § 7603(g) to provide an avenue for expungement only to individuals who
have been arrested or cited but not charged with criminal offenses by information or indictment.
We agree, and reverse and remand.
¶ 2. On April 20, 2020, the Franklin County State’s Attorney charged A.P. and Z.P.
with several felony counts arising from an alleged assault and kidnapping. The State’s Attorney also filed a juvenile petition charging Z.P. with two counts of sexual assault; these charges were
transferred to the criminal division. On June 8, the Attorney General’s Office (hereinafter the
State) took over prosecution of all three cases.
¶ 3. The State subsequently determined that it could not prove the charges against
defendants beyond a reasonable doubt and dismissed all charges without prejudice on December
30, 2020. On January 19, 2021, Z.P. filed a motion to seal his arrest record and any records relating
to the arrest and subsequent dismissal of charges. See 13 V.S.A. § 7603(a) (providing that unless
party objects in interests of justice, court shall order sealing of criminal history record related to
citation or arrest within sixty days of final disposition of case if court does not find probable cause
at arraignment or charge dismissed without prejudice, or at any time if parties so stipulate). A.P.
likewise filed a motion to seal on January 27. The State did not oppose the sealing motions. The
superior court ordered the records sealed on January 28.1
¶ 4. During that same period, the State had received two public records requests seeking
materials relating to defendants’ cases—one from Vermont Public Radio (VPR) filed on January
4, 2021, and one from VTDigger filed on January 21. The State redacted identifying information
from VPR’s requested materials and was awaiting payment of copying costs to release the redacted
documents to VPR, and was estimating the cost of responding to VTDigger’s request. Both
requests were pending at the time that the superior court sealed the records on January 28.
¶ 5. On January 29, one day after the superior court ordered the records sealed, the State
filed motions with the court asking it to reconsider the sealing orders. The State asked for a delay
in sealing within the sixty-day timeframe under § 7603(a) so that it could comply with the
outstanding public records requests. The superior court denied these motions, explaining that the
1 In two of the dockets, the sealing orders appear to show that in one place the court checked the box indicating expungement under § 7603(e) while otherwise clearly ordering the record sealed. Neither party argues that the court ordered expungement, so we interpret these orders to seal but not expunge the records. 2 matters had been sealed and no request to delay had been received before the court issued the
sealing orders.
¶ 6. Subsequently, defendants filed motions under § 7603(g) to expunge all records
relating to the charges. See 13 V.S.A. § 7603(g) (permitting person to file petition requesting
expungement of criminal history record at any time and directing court to order expungement if in
interests of justice or if parties so stipulate).
¶ 7. The State opposed these motions, primarily based on the outstanding public records
request. The State indicated that it was “not opposed to the eventual expungement” of the records
but wanted a court to determine whether it was required to disclose the requested records before
they were expunged.2 The State explained that it had recently denied VTDigger’s public records
request for these cases, and VTDigger intended to appeal that denial to the civil division of the
Washington Superior Court. See 1 V.S.A. § 319 (permitting appeal from denial of public records
request to civil division). Until the court resolved that dispute, the State maintained that
expungement was not in the interests of justice.
¶ 8. The superior court denied the expungement motions. It explained that the charges
were dismissed without prejudice prior to trial and were therefore properly sealed under 13 V.S.A.
§ 7603(a) but ineligible for expungement under § 7603(e). See 13 V.S.A. § 7603(e) (providing
that unless party objects in interests of justice, court shall order expungement of criminal history
record related to citation or arrest within sixty days of final disposition of case if defendant
acquitted or charge dismissed with prejudice, or at any time that parties so stipulate).
¶ 9. Defendants filed motions asking the court to reconsider its denial. Because the
State dismissed the charges without prejudice and did not stipulate to expungement, defendants
2 As to the sexual assault charges, the State additionally opposed expungement because it had dismissed these charges without prejudice “so that they could possibly be refiled in the future,” and argued on this basis that expungement of these charges was not in the interests of justice. 3 conceded that expungement was inappropriate under § 7603(e) but clarified that they moved for
expungement under § 7603(g). Subsection (g) is broader than subsection (e), they argued, as it
provides for expungement “at any time” if the court finds that “expunging the record serves the
interests of justice.” Id. § 7603(g). Moreover, they contended that because the State opposed
expungement, § 7603(b) required the court to hold a hearing before it could rule on the motion.
See id. § 7603(b) (“If a party objects to . . . expunging a record pursuant to this section, the court
shall schedule a hearing to determine if . . . expunging the record serves the interests of justice.”).
¶ 10. The superior court denied defendants’ motions for reconsideration. It concluded
that § 7603(g) “applies if the only criminal history record in a criminal proceeding is arrest or
citation” and “no prosecution follows, [so] no indictment or information is filed.” If an indictment
or information is filed, the court stated that other provisions of § 7603 may apply. The court
reasoned that if defendants’ reading of the statute was correct, then “[e]very criminal case would
be eligible for expungement,” rendering superfluous other provisions in § 7603 providing for
expungement or sealing. And because the court concluded that the records were ineligible for
expungement, it determined that defendants were not entitled to a hearing under § 7603(b).
¶ 11. Defendants appealed,3 arguing that the superior court erroneously interpreted
§ 7603(g). They maintain that the court’s interpretation contravenes the plain language of the
statute, which permits an individual who has been charged but not convicted of a crime to petition
for sealing or expungement “at any time.” 13 V.S.A. § 7603(g). Further, they contend that the
legislative history shows the Legislature’s intent to provide an avenue for sealing or expungement
at any time. The State agrees with defendants’ argument and concedes that the superior court
erred.
3 We granted defendants’ stipulated motion to consolidate their appeals. 4 ¶ 12. Statutory interpretation is a question of law that we review de novo. State v. Berard,
2019 VT 65, ¶ 7, 211 Vt. 39, 220 A.3d 759. The touchstone of this inquiry is legislative intent.
Id. ¶ 12. “If the intent of the Legislature is apparent on the face of the statute because the plain
language of the statute is clear and unambiguous, we implement the statute according to that plain
language.” Flint v. Dep’t of Lab., 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. We do not read
statutory language in isolation; we read and construe together “the whole and every part of the
statute, together with other statutes standing in pari materia with it, as parts of a unified statutory
system.” Berard, 2019 VT 65, ¶ 12 (quotation omitted).
¶ 13. Section 7603(g) provides:
A person may file a petition with the court requesting sealing or expungement of a criminal history record related to the citation or arrest of the person at any time. The court shall grant the petition and issue an order sealing or expunging the record if it finds that sealing or expunging the record serves the interests of justice, or if the parties stipulate to sealing or expungement of the record.
13 V.S.A. § 7603(g). The statute defines “[c]riminal history record” as “all information
documenting an individual’s contact with the criminal justice system, including data regarding
identification, arrest or citation, arraignment, judicial disposition, custody, and supervision.” Id.
§ 7601(2).
¶ 14. We conclude that the plain language of § 7603(g) entitles any person who has been
charged but not convicted of a crime to file a petition for expungement at any time. The statute
expressly provides that a person may petition for sealing or expungement “at any time.” Id.
§ 7603(g). It contains no qualifying language either limiting eligibility under that subsection to
persons who were arrested or cited for a crime but never charged or indicating that a person may
only file a petition under that subsection after they are arrested or cited and before they are charged.
¶ 15. By its terms, the statute defines the record eligible for expungement as the person’s
“criminal history record related to the citation or arrest.” Id. We cannot conclude that this
5 language means that a person may only file a petition for sealing or expungement under § 7603(g)
if they have been arrested or cited for a crime, but not charged. The statute defines “criminal
history record” as “all information documenting an individual’s contact with the criminal justice
system,” which could include numerous arrests, charges, or convictions. Id. § 7601(2).
Consequently, the language in § 7603(g) limiting sealing or expungement to the record related to
a citation or arrest ensures that if a court grants the petition, only the portions of the person’s record
related to that particular citation or arrest are sealed or expunged. And plainly, charges filed
against a person in connection with an arrest or citation are related to that arrest or citation. See
Related, Black’s Law Dictionary (11th ed. 2019) (defining related as “[c]onnected in some way;
having some relationship to or with something else”).
¶ 16. Further, when read in context with the other provisions in § 7603 and chapter 230
as a whole, it is clear that this language applies to all records generated from an arrest or citation
that does not result in conviction. The disputed language is not unique to § 7603(g); two other
provisions in § 7603 providing for sealing or expungement use the same phrase. Section 7603(a)
directs the court to “issue an order sealing the criminal history record related to the citation or
arrest of a person” under certain circumstances. Id. § 7603(a). Likewise, § 7603(e) directs the
court to “issue an order expunging a criminal history record related to the citation or arrest of a
person” under certain circumstances. Id. § 7603(e). The superior court here indicated that
although § 7603(g) did not apply when an information or indictment has been filed, “other
subsections of section 7603 may apply.” But if we adopted the superior court’s interpretation of
§ 7603(g), a person would also be ineligible for sealing or expungement under subsections (a) and
(e) if an information or indictment has been filed. See Baldauf v. Vt. State Treasurer, 2021 VT
29, ¶ 19, __ Vt. __, 255 A.3d 731 (explaining that we interpret subsections of statute in harmony
and presume Legislature chooses statutory language intentionally). Given the plain language of
6 the statute, we cannot conclude that the Legislature intended § 7603 to apply in such narrow
circumstances.
¶ 17. Moreover, § 7603(g) is part of chapter 230 of Title 13, which provides for the
expungement and sealing of criminal history records. See 13 V.S.A. ch. 230. Under this chapter,
three sections allow for sealing or expungement under different circumstances: § 7602, titled:
“Expungement and sealing of record, postconviction; procedure;” § 7603, titled: “Expungement
and sealing of record, no conviction; procedure;” and § 7609, titled: “Expungement of criminal
history records of an individual 18-21 years of age.” Rather than distinguishing between arrest or
citation and prosecution, the section titles distinguish between conviction and no conviction, and
between individuals based on their age. This further indicates that the Legislature intended § 7603
to apply in instances where a person is charged with a crime but not convicted. See Weale v. Lund,
2006 VT 66, ¶ 8, 180 Vt. 551, 904 A.2d 1191 (mem.) (“We consider the title in construing a
statute.”).
¶ 18. This interpretation effectuates the Legislature’s intent that any person charged with
a crime be potentially eligible for expungement. However, a court can only order expungement
under this provision if it finds that expungement serves the interests of justice or if the parties
stipulate to expungement. See 13 V.S.A. § 7603(g). Moreover, as defendants note, if a court
denies a petition for expungement filed under chapter 230, the person cannot file another
expungement petition for at least two years unless the court authorizes a shorter period. Id. § 7605.
Under these provisions, the Legislature sought to ensure that expungement is only granted in
appropriate situations and that expungement petitions do not overwhelm the courts.
¶ 19. Contrary to the superior court’s conclusion, this interpretation does not render
superfluous the other provisions in § 7603. As we explained, § 7603(a) and (e) direct the court to
issue sealing or expungement orders under certain circumstances. Supra, ¶ 16. Similarly,
§ 7603(f) directs the court to “issue an order to expunge a record sealed pursuant to subsection (a)
7 or (g) of this section eight years after the date on which the record was sealed.” 13 V.S.A.
§ 7603(f). In part, these subsections provide a mechanism for automatic sealing or expungement
at a certain point—within sixty days of final disposition under § 7603(a)(1) and (e)(1), and after
eight years under § 7603(f). It is true that subsections (a) and (e) also permit the prosecuting
attorney and defendant to file a stipulated petition at any time to seal or expunge a record.
However, subsection (g) differs because it entitles a defendant to file a petition for expungement
at any time and permits a court to order expungement, even over the prosecuting attorney’s
objection, if it concludes that “sealing or expunging the record serves the interests of justice.” Id.
§ 7603(g). Accordingly, § 7603(g) creates a distinct avenue for expungement and does not render
superfluous other provisions in the statute.
Reversed and remanded for the superior court to hold a hearing under 13 V.S.A. § 7603(b) to determine if expunging defendants’ criminal history records related to arrest or citation will serve the interests of justice.
FOR THE COURT:
Chief Justice