Back in 2011, a client came through the clinic to expunge her record.  We provided her with the same post-clinic consultation to ensure that her rights are protected.  And so we discovered that one of the largest background check companies, Intellicorp Records Inc., sold instant background check reports--thereby reporting expunged records.

The case was filed as a nationwide class action and was settled for $18.6 million, sending a large ripple through the background check industry.  Last week, the court entered the final order approving the settlement--and Intellicorp Records, Inc. no longer sells unverified, instant background check reports.  It's a confirmation of this clinic's core strategy.

I was in a foul, foul mood, but now I am not.  Let me explain.

When a defendant does not pay all fines and fees, the court can (and often does) refer the remaining balance to a collection agency.  And the court will often (not always) refuse to set aside the conviction under 1203.4 until all the balance is paid off.  It's ass-backward to insist that the petitioner pay the money first, when he can't pay because he's unemployed.  And he's unemployed because of his conviction, which he needs to set aside so he can find a job.  And round and round we go.  But that's not (the only reason) why I was in a foul, foul mood today.

I have a client who is willing to pay--despite the fact that he's been homeless for more than a decade.  The court previously denied his petition because he didn't pay all fines.  The problem here is that the collection agency, GC Services, cannot locate his account.  The court record shows that the fines were referred to GC Services, and the court previously denied his 1203.4 petition because of it.  But GC Services can't find his account, so round and round we go.  I talked to 5 different individuals at GCS and got dropped from the call twice--before finally talking to one of their "supervisors" with a different phone number.

But then it hit me.  These are good facts to challenge (some) courts' absolute refusal to exercise their discretion to grant a 1203.4 petition with or without the full payment of all fines and fees.  In fact, the facts don't get much better than this.  So is this an opportunity for strategic appeal?

UPDATE (9/5/2013): The court granted the petition after being told what was going on.  No appeal.

This morning's hearing was in Dep't S in Norwalk, before Hon. Roger Ito, for a discretionary 1203.4 that had been previously denied about 6 months ago.  The client had a number of convictions, but the conviction to dismiss today was for possession for sale, a felony, in 2007.  While on probation for this conviction, she picked up 2 new cases, one of which resulted in a successful Prop-36 dismissal and the other, an  arrest dismissed by the prosecutor--both in 2010.

As a rule, when writing declarations for our clients, we do not address any arrest that did not result in a conviction, because, without the conviction, it is not conclusive evidence of the underlying conduct.  However, Judge Ito rightly chastised my client (well, actually, me) for not addressing in her declaration the circumstance surrounding the 2010 arrest.  As he pointed out, "in the interest of justice" analysis requires consideration of all facts before the court, and the dismissed arrest is a relevant fact for the purpose of such analysis.

From experience, I suspect that most judges have already made up their mind one way or the other before they hold a hearing.  However, there are those few judges who really look at the evidence before them before issuing their ruling.  It is for these few judges that we write a declaration and, if possible, submit evidence of rehabilitation.  It's not right to deprive them of the full facts that may be of relevance to their decision-making--especially given that the opposing side may well bring its absence up as indirect evidence of the petitioner's lack of honesty.

The lesson has a happy ending.  After a lengthy back-and-forth, the court granted the petition in the interest of justice, finding that the petitioner's interest in rehabilitation, coupled with the solid evidence of the record's hindrance therein (a letter of employment denial based solely on this one conviction), warranted dismissal.

Frankly, I wasn't well prepared for this morning's hearing for a 1203.4 motion.  My excuse is that I was covering for my coworker while she was out on vacation and that it was supposed to be a mandatory petition--because it was believed that the client had fulfilled all terms and conditions of his probation.  You can already tell where this story is going.

When the court called the matter, the judge remarked that he was going to deny the petition because there were still fines and fees owing.  That was news to me.  I acknowledged that I was not aware of this and asked how much they were so I could advise my client to pay.  It turned out to be a little over $600--something that this particular client wasn't likely going to be able to pay in the near future.  So I asked whether any restitution was owed--to which the court replied that the client had paid off more than $500 in victim restitution.  

Just assume here with me that there aren't likely any other fines and fees that would've been included in his probation terms and conditions for this particular conviction.  See, for example, People v. Pacheco (6th Dist. 2010) 187 Cal. App. 4th 1392, 1402, where that distinction is set out: "The imposition of the court security fee as a condition of probation was unauthorized because like probation costs, this fee is collateral to Pacheco's crimes and punishment and as such, its payment may not be made a condition of probation."  To complete this line of reasoning, People v. Bradus (4th Dist. 2007) 149 Cal.App.4th 636 holds that failure to pay fines and fees that are not part of probation terms and conditions does not make what is otherwise a mandatory 1203.4 petition into a discretionary one.  When I brought up this "Pacheco-Bradus" argument, the court stopped and really started looking into the case.  Of course, I wouldn't have written this post, if the story ended there with the granting of this petition.

The court found that he had been arrested (and later convicted) of drug possession in 2008, during the term of probation for the present case.  That would be a violation of the ubiquitous probation term that "probationer shall obey all laws of the land" during his term of probation.  Given that his conviction was in 2003 and resulted in a 3-year probation, I gave it one more shot and challenged the court, arguing that his probation must have terminated by that time.  Nope, the court replied.  His probation had been revoked and reinstated (without an official finding of probation violation), so the drug possession occurred before the termination of newly-reinstated probation.  Ouch.  All I could do at that point was to ask the court to vacate its denial and to allow my client to withdraw the petition.  The court granted that request, and now we'll have to refile.  Of course, now that his petition is a discretionary one, his unpaid fines and fees will come into play.

For those that attended our Certified Volunteer Training program last year, the case of Obabueki v. IBM, 145 F. Supp. 2d 371 (SDNY, 2001) should be a familiar one.  Though we didn't go into it so much, what happened in its follow-up case, Obabueki v. Choicepoint, 236 F. Supp. 2d 278 (SNDY, 2002), should also be familiar.  We recently applied the lessons learned from these cases for one of our clients.  He now has a job that pays more than the combined salaries of the entire staff at the legal dep't of A New Way of Life.  (We don't get paid a lot here.)  First, I'll explain Obabueki a little bit, followed by a short list of lessons learned--before explaining how these lessons were applied for our client.

Obabueki
By the time he applied for employment with IBM in New York, Mr. Obabueki had dismissed his 1995 conviction under California Penal Code § 1203.4.  So, in reliance on his attorney's advice, he stated on IBM's criminal record questionnaire that he was never previously convicted of a crime, but Choicepoint reported the dismissed conviction to IBM.  IBM asked Mr. Obabueki about the conviction, and he showed them a copy of the court order dismissing the conviction.  IBM subsequently denied him employment, and Mr. Obabueki sued both IBM and Choicepoint under various New York state employment laws and also under FCRA.

The district court held in Obabueki v. IBM that IBM could not be held liable under New York laws protecting job applicants with conviction history, because their decision not to hire Mr. Obabueki was based not on the precise meaning of 1203.4 (that is, whether he in fact had a conviction record), but on the discrepancy between 2 pieces of information Mr. Obabueki provided them (that is, "a lie").  According to IBM, the discrepancy (and the reason they didn't hire him) was between his initial denial of the conviction and the language of the court order granting a 1203.4 dismissal.  In Obabueki v. Choicepoint, which resulted in a jury award against Choicepoint, the court vacated the jury verdict and granted Choicepoint's motion for JNOV, holding that the denial of employment was due to Mr. Obabueki's "lie," not Choicepoint's violation of various FCRA provisions.

So what are some of the lessons we can learn from these cases?

Lesson 1: Be consistent.  
If you're going to trust the employer's compliance with Title VII and so disclose your dismissed convictions,  do so each and every time they ask you.  If not, you should never contest what shows up on the background check report with the employer.  Deal only with the background check company.  In other words, don't give the employer more than 1 version of your past history.  This applies especially if you, like Mr. Obabueki, are applying for employment outside California, where 2 CCR 7287.4 prohibits employers from even asking about misdemeanor convictions dismissed under 1203.4.

Lesson 2: Be proactive
Under FCRA and ICRAA, you have a right to inspect what the background check company has on you at any time.  Find out what background check company your prospective employer uses.  They may not tell you before you apply.  That's fine.  But they have to tell you the contact info of that background check company, including phone number, when they ask for your consent.  At least remember the name of the background check company.   As soon as you find out, you should contact the background check company and make sure that they won't report your dismissed convictions.

Lesson 3: Be aggressive
In our experience, most background check companies don't take it seriously until an attorney gets involved.  So hire an attorney.  Or call the free attorneys at A New Way of Life Reentry Project (323-563-3575)--even before you apply for a job.

Our client
Let's call him Bob.  Bob has a long list of convictions, the last of which was more than 10 years ago.  If he were applying for employment here in California, Civil Code § 1786.18 would've prevented background check companies from reporting any of those old convictions, but he had a great opportunity out of state.   He called me right after he applied for the out-of-state job but before he had to submit to a background check, asking me whether he should or should not disclose his convictions since they had all been dismissed under 1203.4.  After I explained the relative risks of each approach, he decided against disclosing them.  He gave me the name of the background check company, and I contacted them the next day, asking for a copy of his report and explaining that whatever they find in California should be dismissed under 1203.4 and cannot be reported under FCRA as obsolete arrest records not leading to conviction,  Last Friday, they issued a background check report to the employer.  It was clean.  Bob is moving to the other state in a few days.