KY Supreme Court rules, in opinion written by Justice Keller, expungement not conditional on fee payment

By Tom Latek
Kentucky Today

Kentucky Supreme Court unanimously overturned a lower court ruling, which held that the fee for an indigent person to have a felony conviction expunged from his record could not be waived.

The opinion effectively rules that low-income people should not have to pay fees to have old felony convictions cleared from their backgrounds.

In 1998, Frederick Jones pled guilty to one felony count of theft by failure to make the required disposition of property. As a result, he spent several months behind bars, then five years on supervised probation.

Jones filed for expungement at Jefferson Circuit Court in August 1998, a move that would remove the conviction from his record, but he did not pay a filing fee saying he was indigent. Jones sought to proceed in forma pauperis, or IFP, under state law, which would allow him to proceed without payment of costs and fees. The trial court denied his IFP motion, saying the legislature did not intend the law to apply to applications for expungements, which the Court of Appeals affirmed.

Jones argued that an application for expungement is an “action” under the IFP statute and that the Due Process and Equal Protection Clauses of the United States and Kentucky constitutions require low-income individuals be afforded access to expungements without fees.

Prosecutors argued that there is no constitutional right to a cost-free expungement and that the application of the IFP statute to the expungement statute is at odds with the language of the law. They also said that if the IFP statute does apply to expungements, then it only applies to waive the $50 filing fee and not the $250 expungement fee.

In the nine-page opinion written by Justice Michelle Keller, the High Court stated:

“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. 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. Because of this, the IFP statute applies to both the $50 filing fee and the $250 expungement fee. Any other holding would be contrary to the purpose of the IFP statute.”

The Justices sent the case back to Jefferson Circuit Court for proceedings consistent with the opinion.