By Seaborn Larson MONTANA STATE NEWS BUREAU
When voters approved recreational cannabis in the fall of 2020, they also created a path for people previously convicted of now-legal actions to have their records cleared. While some say the process has worked well and quickly, the pace of requests hasn’t met what the state anticipated, some seeking expungement are hitting snags and defense attorneys say in certain places stigma has created roadblocks.
Initiative 190 allowed people to be resentenced if they are actively serving a sentence, re-designating a conviction from a felony to a misdemeanor, or have their convictions expunged entirely for acts that were legal after the start of this year. The legislation that retooled parts of the ballot initiative put funding toward a specialized court that would centralize expungement proceedings, although the state Supreme Court has yet to set that up because of the low number of such filings so far. In the meantime, cases that have been filed are working their way through the traditional court system, a route granted by the original ballot initiative.
Some attorneys say expungement cases have sailed through the courts and that the process has been accessible. New state laws tell judges hearing expungement petitions that they must presume the case qualifies unless a prosecutor can raise a legitimate issue against it. The entire proceeding may include a hearing, but state law doesn’t require one to obtain an expungement.
But other lawyers say expungement petitions are still facing a roadblock: stigma against cannabis that lingers in some of the state’s district courts. Back in April, a judge in Richland County sentenced a man to five years in prison, for something that by that point was no longer a crime under the state’s new legalization structure.
The majority of convictions that qualify for expungement were misdemeanors, such as possession of paraphernalia or an ounce or less of marijuana.
Possession of more than 1 but less than 2 ounces of marijuana is now a civil infraction, a designation lower than a misdemeanor that carries a sentence of community service or a fine. Possession of 2 or more ounces of cannabis, or 16 grams of marijuana concentrate, remains a felony.
Missoula attorney Marty Judnich said his firm’s clients in Billings, Bozeman and Missoula have had little trouble clearing their records of charges that are now legal.
“Ninety-nine percent of what we’ve dealt with is just misdemeanor stuff,” Judnich told the Montana State News Bureau. “You get folks from all backgrounds, where they made a mistake when they were younger, now they’re older and have a career and a family. They just want to clear up their record, put their mistakes behind them and the expungement law has been able to do that for a lot of people.”
Not all smooth sailing
Since legalization, a handful of cases have reached the state Supreme Court after prosecutors challenged the petition for expungement and won. The Supreme Court’s rulings so far signal the circumstances of these cases must fall squarely within the bounds set by the Legislature in 2021 when it comes to what qualifies for expungement, with little room for forgiveness outside those lines.
Daniel Rairdon, for example, was convicted in 2002 in Flathead County for a felony based on his possession of eight marijuana plants, which he had grown on land adjacent to rental property where he was living. He received a three-year deferred sentence, and the case was closed in 2008.
In January, after voters legalized recreational cannabis, Rairdan petitioned for his felony charge to be expunged or redesignated as a civil infraction. But prosecutors argued he did not have written permission to grow marijuana from the landowner, a requirement for growing cannabis under today’s marijuana laws, and therefore didn’t qualify for expungement or redesignation. The district court judge denied Rairdan’s petition, and in September the state Supreme Court affirmed the lower court’s decision.
Then there’s Lloyd Maier, who pled guilty in 1992 to possessing over 60 grams of marijuana. In April, Maier petitioned Yellowstone County District Court for expungement or redesignation.
The district court judge denied Maier’s petition because police had found 32 marijuana plants at his residence at the onset of the case. The state Supreme Court wrote in its order that the expungement does not turn on the facts of the case, but the charge Maier pled guilty to — which would still qualify as a felony.
The Supreme Court’s decision noted that Maier’s plea agreement and resulting conviction also did not specify the circumstances of Maier’s possession. Under the new laws, those who cultivate at home are allowed to possess more than 1 ounce, as long as it is kept in a locked space on the property. Maier’s case record made no mention of whether it was stored in a locked space or wasn’t — only that he possessed greater than 2 ounces.
The Supreme Court denied Maier’s petition, but said in similar cases, an evidentiary hearing may be required to determine the circumstances of possession.
In Richland County, Paul Hagler pled guilty to possessing 60 grams or less of marijuana in 2015. The amount was actually 0.06 grams, but the charge at that time carried a penalty of three years in prison at the most. At the time, Hagler was still serving an earlier sentence from 2010, although Montana Department of Corrections records show he has no felony convictions. District court Judge Katherine Bidegaray sentenced Hagler to a five-year commitment with the Department of Corrections to be served on probation, which would begin after the 2010 sentence ended in 2018.
Between Hagler’s arrest and sentencing, voters in November 2020 legalized recreational cannabis and possessing the amount that Hagler pled guilty to having in back in 2015. In February of this year, prosecutors filed a petition to revoke Hagler’s sentence in the marijuana case, but the judge sentenced him in April to five years in prison on the original marijuana charge, two years longer than even pre-legalization statutes allowed.
Teal Mittelstadt, Hagler’s attorney who challenged his district court sentence, said the case illustrates how bias against marijuana is still determining cases in the lower courts.
“There is a stigma against cannabis,” Mittelstadt said in an email. “I cannot speak to the entire state, but in the counties I have practiced, it is present.”
In September Hagler, represented by Mittelstadt, petitioned the Supreme Court to be released from prison on the improper sentence. The Supreme Court granted the petition after the state Attorney General’s Office, in consultation with the Richland County Attorney’s Office, conceded Hagler should be immediately released from prison. The potential expungement of Hagler’s case will be decided at the district court level, not during the proceedings regarding his imprisonment, the justices wrote.
The expungement cases so far have moved through the district court where that person was convicted. But House Bill 701, the Legislature’s cannabis regulation framework bill, still gave the authority to the Montana Supreme Court to establish a marijuana expungement court.
The Supreme Court, which gathers data on expungement statistics, has yet to determine if hiring an expungement court judge would be justified, court Administrator Beth McLaughlin told a legislative interim committee in November.
Montana has had an expungement statute since 2017, allowing each citizen a one-time petition to clear records of an arrest, investigation, detention and any court proceedings that may have been related to a misdemeanor offense. With most cannabis charges formerly falling under misdemeanor offenses, this means Montanans already had access to an expungement process to clear a majority of marijuana-related misdemeanor convictions since 2017.
In 2020, the courts saw 135 total expungement petitions statewide, McLaughlin said. The figure includes every expungement petition, not cannabis alone.
“Those are happening, certainly not at the level that we anticipated they would,” McLaughlin told the legislative Economic Affairs Interim Committee, which is monitoring the implementation of the state’s recreational marijuana program. “We are unsure at this point if we are going to hire a full-time standing master to run an expungement court. It may not be the best use of tax dollars if there’s not the caseload to justify it.”
To help the process along at the district court level, the Supreme Court is compiling a form to guide people through the process without need for an attorney. The form is expected to be complete by the end of the year and available to the public after a final round of vetting by prosecutors, public defenders and judges.
McLaughlin also notified lawmakers of a handful of wrinkles in state code introduced by HB 701 that may complicate the expungement process and require judges to dive into the underlying facts of the case. For example, the former cut-off between a misdemeanor and a felony was 60 grams, but under the new law that limit is 2 ounces; 60 grams equates to 2.12 ounces. Additionally, it was previously a felony to distribute cannabis in any fashion, but new laws allow a person to “gift” up to 1 ounce to someone else. Consequently, a felony distribution charge could be expunged if details in the case show the cannabis was gifted, but not if it was sold.
McLaughlin said the court will notify the Law and Justice Interim Committee for a potential clean-up bill ahead of the 2023 Legislature.