Action One: Inundate the Administrative Office of the Courts with Polite, but Forceful Letters
Persons frustrated over the failure of New Jersey State Police to process expungement applications and expungement orders can write letters. Letters should not be written to the judge handling the matter. Nor should they be written to the prosecutor reviewing the matter. Letters, rather, should go to:Administrative Office of the Courts
Attn: Hon. Glenn A. Grant
Administrative Director of the Courts
P.O. Box 037
Trenton NJ 08625
If your application still awaits review at the prosecutor's office level, your letter should include the following:
- The date your lawyer [name him or her] filed the application;
- The fact that the prosecutor of the county where the application is pending has not yet reviewed the application;
- The fact that your lawyer [name him or her] believes that the delay is on account of the prosecutor still awaiting a response from New Jersey State Police concerning the application;
- The ways in which your not having the expungement are hurting you;
- Your lawyer [name him or her] is available to provide additional details;
- Will Judge Grant please investigate this delay and take appropriate action.
If the judge has already granted the expungement but New Jersey State Police is just sitting on it, your letter should include the following:
- The date the judge granted the expungement;
- The fact that New Jersey State Police has not yet processed the expungement order;
- The ways in which the order not being processed are hurting you;
- Your lawyer [name him or her] is available to provide additional details;
- Will Judge Grant please investigate this delay and take appropriate action.
The tone of your letters must be respectful. Your letters must be factual, not emotional. While your frustration is totally justified, a letter that focuses excessively upon your frustration will be counterproductive.
Expungement Lawyers in New Jersey™ encourage you to write these letters about every three weeks for so long as your expungement application remains stuck in the bowels of an ossified system. Start today, and mark follow up on your calendars! (Follow up letters can begin, “Dear Judge Grant: I wrote to you on [date or dates of all previous letters] and, thus far, I have seen no progress.”)
UPDATE
A few clients have adopted the letter-writing suggestions above. Judge Grant has been responding by letter to clients' concerns. This is his Honor's (redacted) form letter response:
A few clients have adopted the letter-writing suggestions above. Judge Grant has been responding by letter to clients' concerns. This is his Honor's (redacted) form letter response:
Dear [Name of Client]:
This will acknowledge receipt of your [date] letter in which you expressed frustration with the delay in the expungement process. While I can understand your frustration, I cannot intervene or advocate on your behalf regarding this matter. I am forwarding your correspondence to Lt. Michael Cerniglia of the New Jersey State Police for review and handling. Thank you.
Very truly yours,
s/Glenn A. Grant
Glenn A. Grant
Administrative Director
cc: Matthew J. Platkin, Acting Attorney General
Capt. Bradley Cherry, NJSP
Lt. Michael Cerniglia, NJSP
Allan Marain, Esq.
Steven D. Bonville, Chief of Staff
Donna Westhoven, Asst. Director
Expungement Lawyers in New Jersey™ responds to Judge Grant's letters as they arrive. We encourage victims of the expungement system's disgraceful delays to keep up their letter writing campaign to Judge Grant.
Action Two: Optional Service for Direct Court Action To Force Progress
Expungement Lawyers in New Jersey™ can seek relief directly from the court where the expungement was filed. Where the judge has not already acted upon the expungement application, the relief sought would be to ask the court to schedule a hearing for the judge to decide the application, and then to argue the case at that hearing (assuming the judge agrees to even schedule the hearing in the first place--not a “given”). Where the judge has already granted the expungement, the court procedure would be something called a Motion to Enforce Litigant's Rights (“MELR”). This MELR, if granted, would order New Jersey State Police to process the expungement order, and give it a deadline to do so.
These actions are complications above and beyond the tasks outlined in the basic expungement process. These complications would entail additional fees. Lawyer efforts would be provided at an hourly rate of $435.00, invoiced monthly, payable within ten days of invoicing. To keep billing as low as possible, Expungement Lawyers in New Jersey™ would use paralegal services where feasible. Paralegals' hourly rate would be $85.00. Regardless, these additional fees could exceed by far the fee originally paid for the basic expungement process.
For motions to require a hearing (and for the hearing itself), the law makes no provision for an award of your legal fees. Fees paid for those activities are never recovered. Provisions for recovery of legal fees from the State of New Jersey do exist on successful MELRs. However, an order for recovery of these fees is discretionary with the judge. Thus the judge may award all of the MERL fees paid, award part of those fees, or award nothing at all. And, of course, if the MELR is denied, no fee recovery will be possible.
Expungement Lawyers in New Jersey™ have filed expungement MELRs on two past occasions. On the first occasion, the court granted the motion. The court ordered New Jersey State Police to process the expungement order within two weeks. However, the court refused to award attorney's fees. This was in Middlesex County.
In the second instance, the agency processed the expungement order within three weeks of our filing the motion, before the motion was heard. The agency then argued that the motion should be dismissed, since the agency had already provided the relief sought. Expungement Lawyers in New Jersey™ disagreed. They continued to seek attorney's fees for their efforts needed to obtain that relief. The court denied their fee application. This was in Essex County. Expungement Lawyers in New Jersey™ are currently appealing that denial.
The agency involved on that second MELR was not New Jersey State Police. The agency refusing to process the expungement order was the Essex County Correction Center. That agency kept the client's name and mug shot on its web site for almost six months, until Expungements Lawyers in New Jersey™ filed the motion.
Action Three: “Sue the Bastards”
A law suit aginst the New Jersey State Police is authorized under the New Jersey Tort Claims Act. Specifically, N.J.S. 59:2-3 provides, "Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions." Processing the expungement order is a ministerial function.
To sue New Jersey State Police under the New Jersey Tort Claims Act, it is necessary to first file a tort claim notice. It is then necessary to wait six months after filing the notice. Then one has the right to file a complaint with the court.
Grounds other than the New Jersey Tort Claims Act also arguably exist. These other grounds also allow (but do not requre that) a judge to award attorney's fees to a successful litigant. When pursuing relief on grounds other than the New Jersey Tort Claims Act, there is no requirement to first file a Notice of Tort Claim. And there is no six-month waiting period before one can proceed.
Where the delays are preventing a person from purchasing or possessing firearms, relief under a federal statute, 18 § U.S.C. 925A, may be available. This claim would be based upon New Jersey's delay depriving persons from exercising their Second Amendment rights under the United States Constitution. Closely tied into this claim would a federal action under 42 U.S.C. § 1983, depriving a person of federal rights under color of State law. Finally, inability to purchase or possess firearms on account of the State's failure to process expungement applications and expungement orders may give rise to a claim under the New Jersey Civil Rights Act, N.J.S. 10:6-2c.
Expungement Lawyers in New Jersey™ are ready, willing, and able to pursue these claims on behalf of expungement applicants. However, they can do so only on an hourly rate basis, with a substantial retainer payment. Law suits under all of these grounds will encounter obstacles; success is by no means assurred. Additionally, relief, it it comes at all, would take months. The only bright side to all this is that, as mentioned, the court, if and when it eventually does grant relief, can order New Jersey State Police to provide reimbursement for reasonable attorney's fees paid.
Bottom Line: Relief under Action Three is highly speculative. Nonetheless, it is there for those with the resources and the determination to pursue it.
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