A Douglas County judge on Monday reinstated an order to seal the record of a Baldwin City police sergeant after acknowledging that the Kansas statute used to set it aside did not apply.
Clint Epperly, who has been an officer in Baldwin for nine years, was charged in 2014 with two counts of misdemeanor false impersonation for statements allegedly made on social media. The charges were later dropped.
District Court Chief Judge James McCabria granted a petition to expunge that record in December, but rescinded the order a day later after learning of another petition filed on Epperly’s behalf to expunge a separate criminal case in Lyon County. McCabria’s order also rescheduled the Douglas County expungement hearing until after the Lyon County case was settled.
On Jan. 4, attorney Tyler Pettigrew filed a motion to dismiss the order setting aside Epperly’s Douglas County expungement, stating that the Kansas statute cited by McCabria applied to civil procedure and could not be used in a criminal case.
On Monday, McCabria said that after looking into the matter further, he found a Kansas Supreme Court case that supported Pettigrew’s argument. However, he said he believed the statutes related to expungement are not completely precise in how they are to be applied.
“I will just say that I have always had the impression that expungement is sort of a quasi-civil, quasi-criminal creature,” McCabria said. “It’s a creature of statute. Nobody has the constitutional right to have an expungement considered.”
In his motion, Pettigrew also questioned whether the Lyon County case should have had any bearing on the Douglas County decision.
In the Lyon County case, Epperly was acquitted on charges of felony misconduct and misdemeanor theft stemming from a 2008 traffic stop made while he was employed by the Kansas Highway Patrol.
According to court documents, Epperly was accused of removing multiple items from a semi-tractor trailer that was seized and impounded during a drug investigation. He was acquitted after a bench trial in January 2010. A Lyon County judge granted the petition to seal Epperly’s record in that case on Jan. 24.
Pettigrew argued that the Lyon County case had no relevance because it happened five years before charges were made in Douglas County, and because it was a case in which Epperly was acting in an official capacity. The Douglas County case, he said, involved Epperly’s speech as a private citizen.
“Therefore, the Lyon County Petition for Expungement has no relationship to this case and no bearing on whether or not the expungement of the arrest record in this case is in the best interest of justice or consistent with the public welfare,” Pettigrew wrote.
On Monday, McCabria addressed one additional point made in the motion. In his argument, Pettigrew stated that only relevant evidence is admissible, and because he asserted that the Lyon County case was not relevant, he did not include the information in the Douglas County petition.
However, Pettigrew pointed out that one page of the original petition submitted in Douglas County included an affidavit incorrectly addressed to Lyon County court and including the Lyon County case number.
“Mr. Epperly was in no way attempting to hide the ball about the Lyon County Petition for Expungement,” Pettigrew wrote. “Mr. Epperly would proffer that, had the Court inquired about the Lyon County Petition, he would have been forthcoming about it.”
In addition to the inadvertent inclusion of the Lyon County information in Douglas County filings, Pettigrew said the court also had the option of checking for a criminal record or asking Epperly if he had any pending petitions for expungement.
McCabria discounted the accuracy of Pettigrew’s assertions, saying that a records search would have violated judicial ethics for conducting an independent investigation, and the mislabeled affidavit wasn’t so far out of the ordinary that it would alert the court of another case.
“I don’t feel I need to go on with addressing any of the other issues in the motion,” McCabria said. “I didn’t have the authority to enter the order that I did, and I don’t need to go beyond that in the ruling today.”
In both Douglas and Lyon counties, Epperly’s expungements include exceptions pertaining to law enforcement including access for potential employers who are determining eligibility for law enforcement certification. Both judges also specified that the sealed information would be accessible in any trial where Epperly is called as a witness.