BISMARCK - If North Dakota voters pass Measure 3 to legalize recreational marijuana, its passage would call for expungement of marijuana-related convictions within 30 days of Dec. 6.
Legal observers say the 30-day expungement process can’t be done and opens the state up to lawsuits. Specifically, Measure 3’s language says: "Any individual who has an illegitimate drug conviction as defined in this chapter shall hereby have their records expunged and sealed by the court automatically."
David Owen, chair of Measure 3’s sponsoring committee, said the intent is to seal records of convicted persons "so they can move on with their life."
Bob Wefald, a former state attorney general and retired district judge, called Measure 3’s expungement provision “remarkably horrible.”
"Here's the problem with this bill: It is poorly, poorly drafted," he said.
Aaron Birst, legal counsel for the North Dakota Association of Counties, said Measure 3 presents questions over the scope of records that would be expunged. There’s the official court record, but also state’s attorneys’ files and other county records.
Wefald said such records extend to sheriffs, police departments, the state Department of Corrections and Rehabilitation, the state Game and Fish Department, municipal courts and old county courts.
Under the North Dakota Supreme Court’s records retention schedule, misdemeanor case records are to be retained for 10 years. Felony case records are retained for 30 years.
Expunging and sealing records are two different processes.
"Expunged means you wipe away any reference to that case as if it never, ever existed," said state court administrator Sally Holewa.
One example of sealing court records is deferred impositions, where a defendant is generally placed on probation and ordered to pay court fees.
If they successfully complete those terms, their conviction is essentially wiped off their record, sealed and inaccessible to the public. Many defendants of the Dakota Access Pipeline protests were adjudicated with deferred impositions.
Anyone may motion to have a case record sealed, but their reason must be "compelling" enough to overcome the presumption of openness to the public, according to Holewa.
Information from the attorney general's website says anyone with a guilty plea or conviction cannot have the information of their criminal offense expunged.
Circumstances are narrow for expungements in North Dakota, limited to victims of human trafficking, unruly and delinquent juvenile records, unconstitutional arrests, DNA profiles in certain cases and - interestingly enough - records for possession of an ounce or less of marijuana, if the conviction is a first-time offense with no others within two years.
Expunging marijuana-related convictions also presents issues in cases with other charges, Holewa said - potentially leading to case-by-case expungement with individually redacted and electronically refiled court documents.
She couldn't offer an estimate of how often expungements occur: "I can't count what's no longer there."'A bigger problem than anyone anticipated'
Legal observers say Measure 3’s expungement process is impossible to achieve.
Owen says otherwise, pointing to the $1.1 million fiscal impact estimated by the attorney general’s office to hire and train 124 temporary staff to expunge about 179,000 records in 30 days.
"If you have that detailed of a plan, it means you know how to do it," Owen said.
The Bismarck Tribune sought details of the expungement process from the attorney general's office, to which spokeswoman Liz Brocker said: "You are welcome to check back with us after the election."
Birst said the process appears “almost undoable” in its sweep.
“Again, assuming that that means your state’s attorney records, your law enforcement records, your court records, there’s just no way in 30 days to essentially grab those files, find them and shred them, whatever the case may be,” he said.
Wefald pointed to potential issues in hiring temporary employees to expunge records in December during the holiday season.
Strained state budgets are another concern, he said, and so are potential lawsuits that could be brought over records not expunged in time.
"I think the expungement is a bigger problem than anybody has ever anticipated," Wefald said.
Holewa said the process appears "not feasible" and "difficult," given the time frame and need to hire temporary, full-time staff after deep cuts to court personnel in 2017.
"How much time would we need? It depends on how much we find," she said.
Owen said the fiscal impact appears to be a small price to pay for wiping convictions for who he says are people who have gone to jail or had their lives destroyed for “the possession of a plant.”
"The problem is this affects you for your whole life," he said.