MARVIN MANDEL, Governor                       3095

service on him of the petition to object to the
expungement. If the state's attorney does not
object within the thirty day period, the records
shall be forthwith expunged. The agency shall
notify the court of its compliance with the order.
A copy of the order shall be furnished to the person
so charged."

Expungement in these cases would, therefore, appear to be
mandatory, upon petition, with no discretion vested in
the court.

Discretion is vested in the court in probation
without verdict cases, or where there has been a nol pros
or stet, but the limits on the judicial discretion in
such circumstances are nowhere described.

Section 729(B) states:

"If any person is granted probation without
finding a verdict in any criminal prosecution, or a
nolle prosequi is entered in the proceedings or a
court places the proceedings upon the stet docket,
the person may petition the court having
jurisdiction requesting expungement (1) upon the
expiration of the term of probation or after one
year if no term is stated in the case of probation
without finding a verdict; (2) after one year in the
case of a nolle prosequi, or (3) after three years
in the case of a stet. If the court, after a
hearing and determination of the matter, makes a
finding of good conduct, the court may immediately
order expungement of all records and shall furnish
the person in question with a copy of the order."

Lastly, I would like to comment on the provisions of
Section 730(a), which states:

"Expunged records may not be reviewed or
opened by any person except by order of court upon
good cause shown, or except in a valid emergency
situation, for investigative purposes only, by
direct order of the head of the law enforcement
agency which made the arrest."

My reading of this section suggests that court records in
a "valid emergency situation" may be opened or reviewed
by direct order of a head of a law enforcement agency. I
have serious doubts as to the constitutionality of a
provision that authorizes the head of any executive
agency to open or review records which have been sealed
by the judicial branch of government.

It may very well be that requests for expungement
will be so few in number as to avoid the serious problems