Old Lewdness Arrest Quashed

Fired bus driver not given notice that paying fine was guilty plea

A New Jersey school bus driver who lost his job when a security check turned up an old public lewdness charge won a court victory when U.S. District Judge David Trager ruled on February 27 that federal officials violated his rights by recording a criminal conviction on his record.

In December 2003, the state of New Jersey hired a private investigation firm to do background checks of state employees in a variety of positions, including school bus drivers. The firm turned up the fact that in 1992 Kevin Dean had been apprehended by a plainclothes police officer at Gerritsen Inlet, which is federal parkland, and was issued a Violation Notice for public lewdness.

The Violation Notice gave Dean the choice of either mailing in a fine or appearing at a hearing to contest the violation. Dean says the officer told him that if he just mailed in the fine and didn’t bother with a lawyer, the incident would “fall off your record in a few years and no one will know about this little incident.”

Dean followed the officer’s advice and mailed in the fine. Contrary to his expectations, however, the government recorded this as a guilty plea, which was permanently entered on his record. And the record was still there 11 years later in 2003 when the security firm did the background check. The security firm reported to New Jersey officials that Dean was convicted of public lewdness.

New Jersey disqualifies those convicted of public lewdness from serving as school bus drivers, so Dean was fired. He appealed his discharge administratively, claiming he had not pled guilty to the charge, but New Jersey authorities told him the only way he could reapply for his bus driver position would be to “challenge the accuracy of his criminal record.”

Dean filed a motion with the federal court in Brooklyn seeking to get the “conviction” quashed. He raised an argument based on Due Process of Law, guaranteed by the 14th Amendment, contending that neither the plainclothes officer nor the Violation Notice clearly communicated that mailing in the fine instead of insisting on a hearing would leave him with a criminal conviction on his record. Indeed, what the police officer told him led him to believe otherwise.

Amazingly, even though it could not come up with a copy of the original Violation Notice, and a blank notice from that time confirmed that there was no clear indication on the form that sending in the check would be treated as a guilty plea, the Justice Department insisted that there was no failure of notice to Dean.

But Trager decided, “At a minimum, Dean should have been advised when he was deciding whether to pay the fine that payment constituted a guilty plea and he was thereby accepting a federal conviction on his permanent record. The Violation Notice in use at the time gave no warning that payment of the fine would have such a result. Without such a warning, Dean cannot have made a knowing waiver of his rights. Assuming that one accepts the government’s argument that his payment of the fine constituted a conviction, then the conviction must be set aside as violative of the basic due process right of fair notice.”

Trager ordered the government to adjust Dean’s record “to indicate that no conviction resulted from his 1992 arrest and payment of the fine.”

Now Dean can apply for reemployment as a New Jersey bus driver, if he still wants it now that his name has appeared in lights. The New York Law Journal featured this as its big headline case of the day on March 1, so there is no anonymity at this point for Dean.

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