Delaware Court Creates Expungement Remedy for Quickly Dismissed Protection-from-Abuse Orders

"[T]he parties argued as public figures employed in the areas of law and civil service, their livelihoods are tied to their reputation."


My quick thoughts about A.H. v. D.P. (Del. Fam. Ct. Feb. 12, 2020):

  1. I can certainly see why the parties might want to have the matters sealed and expunged.
  2. But at the same time, the court made decisions and issued orders, using the coercive power of the state, because the judge at least tentatively believed the parties that there was something improper afoot. That counsels in favor of keeping the files open to the public (though not necessarily keeping the orders in the separate DELJIS law enforcement system described by the court).
  3. Moreover, it seems likely that either there was some abuse by one or both parties, or there were misstatements by one or both parties alleging abuse. I suppose it's possible that it was all just an innocent mistake all around, but that doesn't seem the likely scenario.
  4. And though the parties' prominence highlights the risk of damage to their reputation, it also suggests that Delawareans might have reason to be interested in how the parties' actions reflect on their qualities. Are the parties high-level government officials or employees, as the "employed in the areas of law and civil service" suggests? "The parties asserted the records will impact their reputations and therefore, their employability, resulting in a manifest injustice"—but perhaps their prospective employers (who might or might not be the citizens of Delaware as a whole) might have a legitimate interest in knowing what happened in this case.
  5. Relatedly, could the parties' "employ[ment] in the areas of law and civil service" have helped them get an expungement remedy that others might not have gotten? I have no reason to doubt the sincerity of the judge in this case—but judges are humans and humans have a tendency to sympathize with people who are socially or professionally close to them, especially where discretionary decisions are involved. Might this have happened here? That's very hard to tell when the record is sealed and expunged.

Here are the facts in a nutshell: In August and September 2019, A.H. and D.P. filed Petitions for Orders of Protection from Abuse against each other, which led the Delaware Family Court to issue ex parte Protection from Abuse orders. But shortly after, they filed a Joint Motion to Rescind All Orders of Protection from Abuse, which the court granted, dismissing the matters before there were full hearings on the merits..

The parties also "filed Confidential Joint Motions to Seal all Files and Proceedings and to Expunge all Records Associated with Petition and Counter-Petition," arguing that "expungement was necessary to prevent injustice, as their reputations would be tarnished by temporary orders, despite the final dispositions of dismissal." A Delaware Family Court Commissioner granted the sealing order but decided against expungement, because Delaware statutes don't provide any authority for expungement of Protection from Abuse records (as opposed to criminal records). But the Delaware Family Court (Judge Mark D. Buckworth) ruled in the movants' favor.

First, the judge concluded that the Family Court should have the inherent power, pursuant to the state constitution (and presumably state common law) to grant expungements in such cases:

Notwithstanding the lack of statutory authority, the Family Court must offer procedural relief from PFA records, which have the potential to cause harm, despite a judicial dismissal. Under Article I § 9 of the Delaware Constitution, "every person for an injury done him or her in his or her reputation, person, movable or immovable possessions, shall have remedy by the due course of law, and justice administered."  Family Court is the appropriate venue to establish procedure to overcome the obstruction of due process that exists without an appropriate expungement procedure for dismissed Petitions for Orders of Protection from Abuse….

Although a PFA record is civil in nature, because temporary PFA orders are submitted to Delaware Justice Information System (DELJIS), a dismissed Petition for Order of Protection from Abuse may impose unwarranted damage based upon an unfounded or unproven claim. The policy purpose behind Delaware's criminal expungement statutes states that a criminal history is a hindrance to a person's present and future ability to obtain employment, housing, education or credit. Without similar relief from dismissed PFA proceedings, an obstruction of due process exists for civil litigants.

Due to the serious nature of PFA petitions, there are often temporary ex parte orders entered in an effort to protect the petitioner from the alleged abuser until a hearing on the merits can occur. When any PFA order is issued, it must be entered into DELJIS on or before the next business day. An entry in DELJIS creates a public record in the court and criminal law enforcement management systems. If no hearing on the merits occurs, or a hearing occurs and no finding of abuse is made by the Court, the matter is dismissed, but the entry in DELJIS remains. If a party has had a temporary ex parte PFA order issued against them, their DELJIS report indicates "PFA History." If the petition is dismissed after the issuance of a temporary ex parte PFA order, the "PFA History" indicator on the respondent's DELJIS report remains.

DELJIS is the same platform used to manage Delaware criminal histories. Findings reported in DELJIS are discoverable in a number of background investigations. Therefore, a person designated by DELJIS to have "PFA History" without a finding of abuse or consent, is subject to the same unwarranted damage, which may occur as the result of an arrest or other criminal proceedings, which are unfounded or unproven.

In Carlacci v. Mazaleski (2002), the Supreme Court of Pennsylvania found expungement to be the proper mechanism to remedy a potential harm to the reputation of an individual against whom a PFA was sought, but subsequently dismissed. The Supreme Court of Pennsylvania further scrutinizes the potential effects of dismissed PFA actions to address the potential injustice associated with PFA actions that include a temporary order before dismissal. The Supreme Court of Pennsylvania ultimately found when PFA proceedings are dismissed by court order or never evolve beyond a temporary order stage; they shall be subject to immediate expungement. The Court finds Carlacci v. Mazaleski to be persuasive authority in determining the appropriate remedy for civil litigants subject to dismissed PFA proceedings in Delaware.

And the judge concluded that expungement was proper here:

When looking at the facts of the case at hand, neither party has a finding of abuse subsequent to a full hearing on the merits, nor a PFA order resulting from consent. Instead, the parties were each awarded temporary PFA orders resulting from ex parte hearings. Before hearings on the merits could be heard, the petitions related to this matter were dismissed and the temporary ex parte PFA orders were subsequently rescinded.

Further, there are no pending Petitions for Order of Protection from Abuse related to either party nor does either party have previous or subsequent PFA proceedings against them.

After reviewing the parties DELJIS summaries, neither party has any criminal domestic violence convictions nor pending criminal charges….

[T]he parties argued as public figures employed in the areas of law and civil service, their livelihoods are tied to their reputation. The parties further argued the existence of record relating to their Cross-Petitions for Order of Protection from Abuse subjects the parties to manifest injustice. The parties asserted the records will impact their reputations and therefore, their employability, resulting in a manifest injustice.

The Court acknowledges the serious and often cumulative nature of the proceedings surrounding a Petition for Order of Protection from Abuse. Here, the nature of the dismissals coupled with the parties' recurrent agreement demonstrated through several joint filings, the lack of PFA history prior or subsequent to this matter, the lack of domestic violence related criminal history and the imminent manifest injustice, necessitates the Court to grant immediate expungement as the appropriate remedy.

Tell me what you think.

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  1. So it still comes down to different rules for the elites and the common man?

    1. Or perhaps a long overdue acknowledgement that these types of orders are not (should not?) have the long term effects that they currently do. Things applied to the elites often trickled down to the hoi polloi. Think CD players and flat screen TVs.

  2. Given the potential consequences of such ex parte orders they perhaps should not be entered into the system at all and only entered when there is a determination on the merits.

    While domestic abuse is a problem, it has also been weaponized in some cases to get back at a partner, just as some allegations of sexual abuse have proven to be unfounded.

    I’m not sue of the law in this case but would such an order lead a police officer to determine that subject of such an order was not allowed to possess a gun?

    1. Guns have also been weaponized in some cases to get back at a partner. Just as it has been proven that some guns have been used to kill others. Given the potential consequences of such actions perhaps they should not be allowed at all.

      I’m not sure of the law on this issue but would such a fatal shooting lead a judge to determine that the now deceased person was not allowed to file an ex parte petition for a PFA?

      1. You’ve obviously missed a point somewhere. If a person is adjudged abuser in most jurisdictions that person may not posses a gun. If there is a record of an obviously questionable Protective Order in an readily available police data base, and these has no determination of the merits of the order then an officer may well arrest someone erroneously under those laws, when in fact there would not have been much cause for that arrest. The unlawful possession of a firearm is generally a felony with severe consequences. I have not said that someone could not file a protective order, but that if such an order were issued it not be entered into the permanent system until a determination on the merits, that is a hearing where the parties present evidence to a judge. If the judge or as in this case the parties decide there order should be withdrawn, then there should be no permanent record of the initial ex parte order.

    2. That was my first impression too — that both parties got ex parte orders against, which were then rescinded, and that implies they were basically just ways to harass each other; maybe the first was valid an the second legal revenge, or maybe the first was a spur-of-the-moment result of anger, and the second actually had merit (but only a little); or both were stupid tantrums; or both were very valid and spurred “wiser” heads wanting to preserve family honor and reputation into knocking some sense into the juniors.

      One can imagine quite a few scenarios, all indicating that ex parte orders are rubbish, and yes, it would be be both interesting and useful to know the background. I wonder if the judicial system itself, quite apart from whatever portion of it is represented by the parties, has a stake in keeping things mum because they want ex parte orders to be available for the elite to bash common folk.

      1. Or perhaps it is indicative of a tendency of lawyers in divorce cases to file every possible piece of paperwork in order to gain some sort of strategic advantage for their client. One wonders if the clients even knew about the filings in the first place.

        Moreover, given the implications of orders of protection with regard to one’s Second Amendment rights, ought there be any permanent record at all of an ex parte order issued automatically and without presentation of any evidence that there was any basis in fact for its issuance?

  3. “arguing that “expungement was necessary to prevent injustice, as their reputations would be tarnished by temporary orders, despite the final dispositions of dismissal.””

    How is in unjust for people to discover accurate information about a temporary order that didn’t end up going anywhere?

  4. As a practical matter, it has to be said that the ex parte nature, and lack of decision on the merits is not going to be considered when a third party uses that fact in their decision making. That said that may not be an argument in favor of sealing and expungment so much as a call for creation of some other mechanism to ensure that these facts do not create an effect wildly out of proportion to the actual meaning of them.

  5. But at the same time, the court made decisions and issued orders, using the coercive power of the state, because the judge at least tentatively believed the parties that there was something improper afoot.

    That is no less true of a criminal case which leads to an acquittal. A document is filed on an ex parte basis (the complaint, citation, or indictment). That document is found by a reviewing magistrate to set forth a prima facie showing of wrongdoing. In general, the court then uses the coercive power of the state on the accused wrongdoer. For instance, it will likely impose bail or conditions of release or both. And, in cases of alleged domestic violence or harassment, a no-contact order will often be part of these conditions.

    Obviously, these processes are subject to abuse, either by complainants or by the agents of the state itself. But if there is a failure of proof on the merits, then we generally do not elevate the interest in policing such abuses over and above the interest of the exonerated person.

    At least in my “inherent authority” jurisdiction, the strongest case for sealing records is when a person has had an adverse determination may while having been given no opportunity to challenge that determination (or, when given that opportunity, prevailed). I suspect similar principles govern in other “inherent authority” jurisdictions. Thus, it makes sense that a party who requests a hearing and prevails at that hearing, either on the merits or because the other party withdraws or defaults, should routinely be able to have the initial petition and ex parte order sealed.

    Certainly this may result in abuses. You seem to indicate a worry that both parties in the case above might be trying to seal the cases in order to hide the fact that they brought meritless petitions. But abuses of process are endemic in protective-order cases. And my experience is that experienced family law attorneys generally regard settlements in mutual protective-order cases is being in the best interests of the the children the parties have in common. It is hard to believe that the effect will be significant on net.

    1. A criminal case that leads to acquittal is a decidion on the merits and both sides had an ability to present a case. When an ex parte order is entered permanently into a record before there is even a hearing or opportunity to present facts to a judge that presents a very different picture.

  6. “perhaps their prospective employers (who might or might not be the citizens of Delaware as a whole) might have a legitimate interest in knowing what happened in this case”

    By “prospective employers” do they mean other police departments? Even in cases where cops actually do something wrong, they (a) don’t necessarily lose their original jobs and (b) if they do they often end up working at some other department.

    So I would imagine that an ex parte order, without even proof of wrongdoing, would be even less of an obstacle to employment.

    Or by “prospective employers” do they mean the private sector? Unlike the public sector, private sector employees have to worry about legal fallout if they hire a bad apple.

    1. Conclusion: If they didn’t actually do anything wrong, it would arguably be unfair to blab to *private* employers about it, since the incentive would be for a private employer to avoid any whiff of scandal, however manufactured.

      1. And let’s even keep this in the public sector for a moment — imagine the effect of this ex parte order on an individual with a history of such an order being on their record. What is the impact on licensure and employment?

        1. But wait: Say that an order was issued even though the target “didn’t actually do anything wrong.” Wouldn’t that be some evidence that the requester of the order might well have done something wrong, in filing an unfounded petition? (Not conclusive evidence, to be sure, since there’s a possible explanation that’s innocent all around, but some evidence.)

          And if that’s so, why should the person’s employers — including the citizens of Delaware — be entitled to have a sense of what happened, in evaluating the requester’s qualities? One might think that would be especially true when both requesters are apparently “public figures employed in the areas of law and civil service.”

  7. The actual law has very little impact on what happens in family court. This is yet another example of that. When your opinion starts with “Notwithstanding the lack of statutory authority…” you’ve got a problem.

    This is probably a good policy, and it should be available to every litigant. But that’s the legislature’s prerogative, not the court’s.

  8. “…though not necessarily keeping the orders in the separate DELJIS law enforcement system descried by the court…”

    A typo?? I thought ‘descry’ meant “to see” or “to view.” Not sure how it fits into the above sentence. Does descry have a special meaning within a legal context?

    1. Whoops, fixed, thanks!

  9. As always, conserving the peace is too often taken for granted by people to used to it to have no awareness of how bad life can be without it, and comes below supposedly higher social goals. Yet conserving the peace must be society’s main goal. Without it, there is no civil society to do anything else.

    A big part of conserving the peace is to allow people in the middle of a dispute to realize they’ve made a mistake and walk away from it without totally destroying their lives. A wise society will allow this.

    I think the interest in open courts sometimes has to give way to the interest in resolving disputes and conserving the peace.

    1. The serial rapist who buys and uses the courts to enforce silence may be the poster example of the need for open courts.

      But the divorcing couple who doesn’t want the public to know everything they’ve said to each other just to get a fresh start is probably the poster example of where open courts against the wishes of the parties become more an exercise in voyeurism and schadenfreude than civic virtue.

      This case seems closer to the second than the first.

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