Don MORROW, Appellant, v. DISTRICT OF COLUMBIA, Appellee. In the Matter of Harry T. ALEXANDER, Judge, District of Columbia Court of General Sessions.
Nos. 22126, 22131.
United States Court of Appeals District of Columbia Circuit.
Decided April 18, 1969.
Argued Feb. 14, 1969.
Motion denied.
Tamm, Circuit Judge, dissented in part.
For decision after remand see 259 A.2d 592.
Mr. Frank D. Reeves, Washington, D. C., for appellant in No. 22,131.
Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellee.
Before PRETTYMAN, Senior Circuit Judge, and WRIGHT and TAMM, Circuit Judges.
J. SKELLY WRIGHT, Circuit Judge:
This case presents a somewhat tangled series of novel questions concerning the power of the District of Columbia Court of Appeals to restrain the District of Columbia Court of General Sessions from issuing orders outside its jurisdiction, and the jurisdiction of the Court of General Sessions to issue orders prohibiting the dissemination of police records regarding the arrests of persons tried in the Criminal Division of that court. A detailed chronology of the events is necessary to an understanding of these questions.
On August 30, 1967, Don Morrow was arrested and charged with disorderly conduct for swearing at a police officer.
When Judge Alexander ordered the case dismissed, Morrow immediately moved for an order requiring that the record of his arrest in that case be expunged from Police Department files. Judge Alexander issued an oral order instructing the Corporation Counsel not to “disseminate the information pertaining” to Morrow’s arrest.2 The District did not attempt to appeal this order. A month later, on October 26, 1967, the Corporation Counsel requested Judge Alexander to reduce his order to writing. Judge Alexander complied, issuing an order prohibiting the Police Department and other agents of the District from disseminating to anyone, including other law enforcement agencies, the record of Morrow’s arrest in the disorderly conduct case.3 The District made no attempt to appeal from this written order.
Once the Duncan Report was issued and adopted by the Commissioners, the Corporation Counsel, on November 30, 1967, moved Judge Alexander to amend his original order by limiting it in scope to the Duncan Report (the main change would thus be that the record of Morrow’s arrest in this case could be disseminated to other law enforcement agencies). Morrow opposed this motion, and moved to have the order extended to require a physical expunging of the arrest record. Morrow also moved for a subpoena duces tecum against the appropriate police official to produce certain records to determine whether the Police Department was complying with Judge Alexander’s order.
Judge Alexander denied the District’s motion to amend the order, and he issued the subpoena and set a date for a hearing on compliance. The hearing commenced on January 30, 1968. At the beginning of the hearing the District moved to quash the subpoena and also moved to have the order vacated, claiming that the Court of General Sessions had no ancillary jurisdiction to issue any order regarding the dissemination of arrest records.6 Judge Alexander denied these motions and the hearing began. The police official was questioned extensively about general procedures regarding dissemination of arrest records. The questioning lasted until 10:30 P.M. The hearing was then recessed until February 1, 1968.
At this point the Corporation Counsel moved in the District of Columbia Court of Appeals for an order of mandamus and writ of prohibition; the mandamus was to require Judge Alexander to vacate his order, the writ of prohibition was to restrain him from continuing the hearing or engaging in any other proceedings pursuant to his order. The D. C. Court of Appeals immediately issued, ex parte, a temporary restraining order prohibiting Judge Alexander from proceeding with the hearing while the D. C. Court of Appeals considered the motion for mandamus and prohibition. Morrow was allowed to intervene in the subsequent proceedings in the D. C. Court of Appeals.
On July 8, 1968, the D. C. Court of Appeals issued its decision. In the Matter of Alexander, 243 A.2d 901 (1968). It held that it had the power to issue extraordinary writs and that mandamus and prohibition were appropriate in this case because the Court of General Sessions did not have any ancillary jurisdiction in a criminal case to issue orders prohibiting dissemination of arrest records. The D. C. Court of Appeals issued the writs, ordering Judge Alexander to vacate his order.
We hold: (1) the D. C. Court of Appeals does have power to issue extraordinary writs in supervision of the Court of General Sessions; (2) while normally orders such as Judge Alexander’s will be appealable, in this case it was appropriate for the Corporation Counsel to seek, and the D. C. Court of Appeals to act upon, a petition for mandamus and writ of prohibition; and (3) the Court of General Sessions does have ancillary jurisdiction in a criminal case to issue protective orders regarding dissemination of arrest records. Accordingly, we reverse the D. C. Court of Appeals insofar as its decision was rested on the conclusion that no such jurisdiction existed in the Court of General Sessions.8 However, we do not decide the substantial issue of the proper limits of such an order. Since Judge Alexander denied the Corporation Counsel’s motion to amend the scope of his order, and since the D. C. Court of Appeals did not reach this issue, we remand to the D. C. Court of Appeals.9
I 10
The writs of prohibition and mandamus are part of the general class of prerogative or extraordinary writs. The arcane origins of the prerogative writs lie within the old common law, where “[a]t a remote date in England these writs were issued by the exercise of the royal prerogative.”11 The writs include, inter alia, certiorari, injunction, habeas corpus, mandamus, ne exeat, prohibition, and quo warranto.12 The function of the writs is varied; in general they are issued in special circumstances to aid in the jurisdiction of a court when normal relief would be unavailing. The prerogative writs are thus means to effectuate a court’s jurisdiction; the writs by themselves cannot confer jurisdiction.13
Mandamus is often issued by a court against some public official compelling him to perform a ministerial duty.16 However, it has also been used by a higher court to compel certain positive action by a lower court:
“The traditional use of the writ [of mandamus] in aid of appellate jurisdiction both at common law and in the federal courts has been to compel [an inferior court] to exercise its authority when it is its duty to do so. * * *”17
In a sense mandamus is the counterpart of the writ of prohibition in that “one is prohibitory and the other mandatory,”18 and they are often, as here, used together by a higher court to bring a lower court back within its jurisdiction.
In two prior cases the D. C. Court of Appeals has asserted its power to issue extraordinary writs. United States v. Kronheim, D.C.Mun.App., 80 A.2d 280 (1951); Mike’s Mfg. Co. v. Zimzoris, D.C.Mun.App., 66 A.2d 414 (1949). As stated, this is the first time we have been presented with this question, and we agree with the D. C. Court of Appeals that it has this power on two grounds.
First, we agree with the statement in Zimzoris, supra, 66 A.2d at 415, that:
“* * * The Act creating the [D. C. Court of Appeals] does not expressly give such power, but we think this Court being expressly authorized to hear and determine appeals and to regulate all matters relating to such appeals, has implied or inherent power to issue extraordinary writs in aid of its appellate jurisdiction. * * *”
The D. C. Court of Appeals is given by statute the power of direct appellate review over the Court of General Sessions.
Judge Alexander argues that, as a court created by Congress, the D. C. Court of Appeals is a court of limited jurisdiction; further, that limited jurisdiction carries with it a presumption of no jurisdiction in the absence of an express grant. This is, of course, true.21 However, we believe that the limited jurisdiction refers to limits on the subject matter of which the court may take cognizance. As stated in Note 10, supra, we deal here not with an extension of the jurisdiction of the D. C. Court of Appeals, but simply with the style of relief that court may grant in a case where it has jurisdiction.22 The appellate jurisdiction of the D. C. Court of Appeals over the Court of General Sessions in criminal matters is uncontested. Assertion by the D. C. Court of Appeals of the traditional armory of extraordinary writs in aid of its statutory jurisdiction does not extend that jurisdiction and thus does not offend the concept of limited jurisdiction.23
There is a second basis for the D. C. Court of Appeals’ use of the prerogative writs: the All Writs Statute,
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
(Emphasis supplied.) The 1948 revision brought together a variety of statutes, some dating to the original judicial code of 1789, which stated that the federal courts had the power to issue prerogative writs.24 The words of Section 1651 literally encompass the D. C. Court of Appeals, a court “established by Act of Congress.”25 An examination of the text of the 1948 revision of Title 28 of the Judicial Code leads us to conclude that Congress meant just what it said.
Title 28 deals mainly with federal courts, generally those created pursuant to the authority of Article III of the
“The term ‘court of the United States’ includes the Supreme Court of the United States, courts of appeals, district courts constituted by chapter 5 of this title, including the Court of Claims, the Court of Customs and Patent Appeals, the Customs Court and any court created by Act of Congress the judges of which are entitled to hold office during good behavior.”
(Supp. IV 1965-1968.) The D. C. Court of Appeals does not come within this definition since it is not specifically listed and since its judges do not hold life tenure.27
Throughout its chapters Title 28 usually refers to “courts of the United States.”28 Where a more general term is used in a chapter, such as simply “courts,” that term is specifically defined in a definitional section within the chapter.29
However, the All Writs Statute, Section 1651, contained in Chapter 111, departs from this usage by referring to “all courts established by Act of Congress.” Chapter 111 does not contain any definitional section which would limit this term to certain specific courts. Thus it appears that Congress meant something more than “courts of the United States.” Since the language in Section 1651 plainly encompasses the D. C. Court of Appeals, we conclude that the All Writs Statute applies to it as well.
This conclusion is strengthened by the fact that no specific section appears in the statute which indicates that the D. C. Court of Appeals was meant to be excluded, and we could find no reference in the legislative history so indicating. Further, there is compelling evidence that the phraseology of Section 1651 was not simply accidental, perhaps used by one set of revisers of Title 28 with intent to include only “courts of the United States.” First, the very next section, Section 1652, contains the term “courts of the United States,” clearly indicating that the revisers of that part of Title 28 were familiar with that term and used it with discrimination. Section, Chapter 115, Section 1732, regarding the use of documentary evidence, begins “In any court of the United States and in any court established by Act of Congress * * *.” By using both in the same section, it is apparent that the revisers deliberately distinguished between the limited term “courts of the United States” and the broader term used in Section 1651: “all courts established by Act of Congress.” Thus Section 1651 reaffirms the inherent power of Congress-created courts, including the D. C. Court of Appeals, to issue the extraordinary writs in aid of their given jurisdiction.
Accordingly, we hold that the D. C. Court of Appeals has the power, in appropriate cases, to issue the prerogative writs.
II
We turn to the question whether this was an appropriate case for issuance of the writs of mandamus and prohibition.30 Since the D. C. Court of Appeals had the power to issue the writs, the question is whether it exercised that power with sound discretion. From Ex parte Crane, 30 U.S. (5 Pet.) 190, 8 L.Ed. 92 (1831),
The Supreme Court has stressed the theme that the issuance of the writ is a matter of sound discretion. Will v. United States, supra; Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). The governing principles are equitable, even though the writ of mandamus technically issues at law. Duncan Townsite Co. v. Lane, 245 U.S. 308, 38 S.Ct. 99, 62 L.Ed. 309 (1917). The appellate court issues the writ in two classic situations: where the lower court has acted without jurisdiction
or power, or where the lower court has clearly abused its discretion.32
The writs are extraordinary remedies which are not to become mere substitutes for appeal. Will v. United States, supra; United States Alkali Export Ass’n v. United States, supra; Ex parte Chicago, Rock Island & Pacific Ry. Co., supra. However, the writs can be issued where an appeal would ultimately lie, United States Alkali Export Ass’n v. United States, supra, as well as where the action of the lower court would frustrate the appeal, McClellan v. Carland, supra, or would diminish the appellate jurisdiction already obtained, United States v. Mayer, supra. Among the factors to be considered are whether the matter is of “public importance,” Ex parte Republic of Peru, supra; whether the policy against piecemeal appeals would be frustrated, Roche v. Evaporated Milk Ass’n, supra; whether there has been a willful disregard of legislative policy, United States Alkali Export Ass’n v. United States, supra, or of the rules of a higher court, Will v. United States, supra; and wheth-
In this case the writs were appropriately requested by the prosecution for several reasons. The District government’s challenge was entirely to the jurisdiction of the Court of General Sessions to issue any orders of this type; the District government did not merely question the scope of the order. This type of order was unprecedented. There was a legitimate uncertainty on the part of the District government, because of the novelty of the order, whether the order was appealable at all. In any event, there was a need for a speedy determination of the question, both because the issuance of the Duncan Report and the accompanying action of the Commissioners made the issue a timely one, and because the judge was contemplating similar action in other cases. Finally, the hearing on compliance appeared to be a wide-ranging inquiry into the Police Department’s practices; the District government had a legitimate interest in preventing this type of inquiry if, as it felt, the court had no jurisdiction to entertain it in the first place. Thus the novelty of the issues, the prime question of jurisdiction, the public importance and timeliness of the judge’s order, and the hardship to the District government made this case appropriate for the extraordinary writs.33
III
It is conceded that the Court of General Sessions, Criminal Division, would have no original jurisdiction to prohibit dissemination of arrest records. The D. C. Court of Appeals held further, however, that the Criminal Division of the Court of General Sessions
“has no ancillary jurisdiction, equitable or otherwise, after disposing of a criminal proceeding, to issue orders respecting the arrest record of a discharged defendant.”34
Subsumed within this issue are three questions: (1) whether the Court of General Sessions has any ancillary jurisdiction whatever; (2) if it does, what the limits of that jurisdiction are; and (3) whether orders prohibiting dissemination of arrest records are within those limits.
A. The position of the District government below and the decision of the D. C. Court of Appeals could be taken as an assertion that the Court of General Sessions lacks any ancillary jurisdiction at all.35 This is incorrect, for all courts, absent some specific statutory denial of power, possess ancillary powers to effectuate their jurisdiction:
“* * * [E]very regularly constituted court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, and for the enforcement of its judgments and mandates. So demands, matters, or questions ancillary or incidental to, or
growing out of, the main action may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority over the principal matter, even though the court may thus be called on to consider and decide matters which, as original causes of action, would not be within its cognizance. * * *”36
Ancillary jurisdiction has been referred to as “a common sense solution” of the problems courts, especially courts of limited jurisdiction, face in attempting to “do complete justice in the premises.”37 If no such powers existed, parties would be forced to go to different courts to obtain complete relief. The notion that a party must go to several forums to obtain relief in any given situation, deriving from the ancient and formalistic distinctions between law and equity, has been discredited. The important policy of having one single expeditious resolu-
tion of a dispute has thus led to the doctrine of ancillary jurisdiction and analogous practices of courts.38
The District government here appears not to be pressing the argument that the Court of General Sessions has no ancillary powers at all; rather, it concedes that it can take action in a criminal matter going beyond the determination of guilt or innocence and sentencing. The District refers to the power of the Court of General Sessions to issue orders in matters which are “incidents of the criminal litigation.”39 It refers to such matters as calling up prisoners, protecting defendants, returning property seized from a defendant found innocent, and returning collateral posted prior to trial. These, it concedes, are within the jurisdiction of the Court of General Sessions.40 It does not seem fruitful to debate whether these matters are somehow integral parts of the original criminal
B. In determining the limits of the ancillary jurisdiction of the Court of General Sessions in criminal matters, we begin by rejecting any argument that ancillary jurisdiction somehow turns on whether the court has or does not have original equity powers. The District in its brief suggests that the issue is whether the Court of General Sessions has “equitable” ancillary jurisdiction, arguing that it does not because it is not a court of equity. However, in other places in its brief, and in the opinion of the D. C. Court of Appeals, this argument is not pressed; thus the D. C. Court of Appeals held that the Court of General Sessions has no ancillary jurisdiction, “equitable or otherwise,” to issue the order regarding the arrest record. (Emphasis added.) Further, the situations approved by the District and the D. C. Court of Appeals where, for example, the Court of General Sessions orders property returned, enjoins someone from interfering with witnesses, sequesters witnesses or orders collateral returned would appear to be non-criminal matters, to some degree equitable in nature. In any event, the distinction between law and equity is not the crux of the matter; rather, the issue is what ancillary actions a court appropriately may take in aid of its original jurisdiction. The answer to this turns on the relationship between the original matter and the ancillary order, not the label (“equitable,” “legal” or other) which is attached to that order.
We could find no clear or systematic limitations on, or definitions of, ancillary jurisdiction. Ancillary jurisdiction arises in several contexts, and, as the First Circuit stated in Walmac Company v. Isaacs, 220 F.2d 108, 113-114 (1955):
“* * * At least so far as we are aware no court has ever tried to fix its limits with any degree of precision. It springs from the equitable doctrine that a court with jurisdiction of a case may consider therein subject matter over which it would have no independent jurisdiction whenever such matter must be considered in order to do full justice. * * *”
Perhaps the most common context is when a party asks a court which has rendered judgment in its favor to issue a further order to force the opposing party to carry out the terms of the original judgment. See, e. g., Dugas v. American Surety Co., 300 U.S. 414, 428, 57 S.Ct. 515, 81 L.Ed. 720 (1937); Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 367, 41 S.Ct. 338, 65 L.Ed. 673 (1921); Root v. Woolworth, 150 U.S. 401, 410-413, 14 S.Ct. 136, 37 L.Ed. 1123 (1893). Similarly, a court in a bankruptcy case can issue ancillary orders “in aid of and to effectuate the adjudication and order made by the same court,” in order to “secure or preserve the fruits and advantages of a judgment or decree.” Local Loan Co. v. Hunt, 292 U.S. 234, 239, 54 S.Ct. 695, 697, 78 L.Ed. 1230 (1934). In this context, the court will be careful to prevent a party from “obtain[ing] by stealthy appropriation what the court had held it could not have by judicial compulsion.” Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750 (1926).
Another context in which ancillary powers have been used is in the supervision of the publicity attendant on a criminal trial. Thus in Sheppard v. Maxwell, 384 U.S. 333, 359-362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the Supreme Court noted that the trial judge should have used a wide range of powers to curb witnesses and counsel from making statements to the press. The Court merely noted that such action was “concededly within the court’s power,” id. at 361, 86 S.Ct. 1507; there was no discussion of the range of ancillary actions open to a criminal court.
“* * * The ancillary jurisdiction theory is relatively simple—once federal jurisdiction properly attaches to a primary case, the court also has jurisdiction over certain subsidiary or subordinate disputes even though it might not independently be able to proceed to adjudicate them. * * * It is well-settled that upon substitution of attorneys in litigation, a client may be required to * * * pay the attorney * * *. The precepts of the ancillary jurisdiction doctrine dictate that the federal courts should extend their jurisdiction to encompass orbital disputes subordinate to the principal action * * *.”
281 F.Supp. at 396.
Although the theory of ancillary jurisdiction may be “relatively simple,” it is apparent that it is not a theory easily quantified. The major purpose of ancillary jurisdiction, as seen from the cases cited above, is to insure that a judgment of a court is given full effect; ancillary orders will issue when a party’s actions, either directly or indirectly, threaten to compromise the effect of the court’s judgment. This purpose is joined by another, mentioned in Section A, supra, that of judicial economy; disputes related to a single dispute should be resolved in the original forum. Den v. Den, supra; David v. Blumenthal, supra.
To effectuate these purposes, and yet confine a court to proper bounds consistent with the past use of ancillary jurisdiction as discussed above, we believe that, in a situation such as the one before us, ancillary jurisdiction should attach where: (1) the ancillary matter arises from the same transaction which was the basis of the main proceeding, or arises during the course of the main matter, or is an integral part of the main matter; (2) the ancillary matter can be determined without a substantial new fact-finding proceeding; (3) determination of the ancillary matter through an ancillary order would not deprive a party of a substantial procedural or substantive right; and (4) the ancillary matter must be settled to protect the integrity of the main proceeding or to insure that the disposition in the main proceeding will not be frustrated.
C. Applying this approach to the matter in hand, we find that the Court of General Sessions here had the power to issue an order regarding the dissemination of Morrow’s arrest record. The arrest was an integral part of the criminal proceeding. The order prohibiting dissemination of the arrest record did not require an independent fact-finding process.41 The order did not deprive the District government of a procedural right, such as trial by jury.42
The next determination is whether the order deprived the District of a substantive right—the right to keep and use as it sees fit its police records. The parties have devoted much discussion to the cases which hold that arrest records can or cannot be ordered expunged or be
However, we need not resolve these factors in any refined way. It is apparent from the Duncan Report, the testimony at the compliance hearing, and even from statements in the District’s brief,46 that in the District of Columbia restraints may be put on dissemination of arrest records in cases which do not result in convictions or forfeiture of collateral. We do not decide what the proper scope of such restrictions should be; the D. C. Court of Appeals will make that determination, weighing the factors and cases cited by the parties here. It is clear, however, that the government of the District of Columbia has no absolute right to do what it wishes with police arrest records.
Finally, in view of the extensive documentation of the harm which comes from dissemination of arrest records, to employers at least, including the likelihood that employers cannot or will not distinguish between arrests resulting in convictions and arrests which do not,47 an order regarding dissemination of arrest records in a case dismissed by the court is reasonably necessary to give complete effect to the court’s order of dismissal. Accordingly, we hold that the Court of General Sessions does have the power to issue an order regarding the arrest record in a criminal case which has been before the court.
IV
Our holding is limited. We do not decide whether the order in this case was appropriate or proper in scope; it is for the D. C. Court of Appeals to make that determination on the remand. However, we think it is apropriate to discuss, without drawing conclusions, some of the considerations regarding dissemination of arrest records, both for the guidance of the D. C. Court of Appeals and for clarification of the underlying issue which triggered the various proceedings in this case.
Congress has required the keeping of two sets of police records relating to arrests. One set is the collection of arrest books, authorized by
As a practical matter, it is only the central criminal files which are at issue here; it would be virtually impossible to check on the arrest record of a person by using the precinct arrest books because one would have to know the approximate date and place of each arrest. The requirement that arrest books be open to the public is to prevent any
In 1954 the Corporation Counsel, prior to the enactment of the above mentioned sections of the District of Columbia Code, issued a ruling stating that police records could not be made public because to do so would violate a person’s right of privacy. In 1956, after the sections of the code were enacted, the Corporation Counsel reversed himself, stating that all records, including the central criminal files which are not required to be public, could be disseminated to interested persons. In 1963 the Corporation Counsel delineated the scope of “interested persons” as “Detective Agencies, Credit Associations and the like.”49
This new policy ushered in an era of hard times for job applicants in the District. The Duncan Report noted that the entire central arrest record was reproduced and furnished without cost to government agencies and to the person arrested. The Report found further that “institutional and other non-governmental employers in the District of Columbia area routinely require job applicants to obtain and provide copies of their arrest records * *.”50 It was brought out at the compliance hearing in this case that a select group of about 50 private companies is furnished arrest records routinely upon request.51 A total of more than 3,500 records was disseminated a week at the time the Duncan Committee studied the problem.52
The arrest records, the Duncan Report found, are often difficult to understand; thus it may be hard for an untrained person to discern that several notations really relate to just one arrest, or that an arrest did not result in a prosecution. The Report then detailed the enormous influence dissemination of these records has on a person’s job opportunity. It noted that some groups “calculated that between 60% and 90% of the male working population in some predominantly Negro areas of the District of Columbia is systematically excluded from between 25% and 50% of the jobs available to them in relation to their skills.”53 There was a similarly disastrous effect on a person’s chances for government employment, and even for getting some city licenses and permits. The Report noted the irony of this practice at a time when government was declaring an all-out effort to employ the underprivileged, a group with a high incidence of arrest.
The Report’s recommendations, as adopted by the Board of Commissioners, are set out in the appendix. The major points relevant here are that arrest records cannot be furnished to employers unless the record is recopied to include only those arrests resulting in convictions or forfeitures of collateral; complete and unexpurgated arrest records can, however, be disseminated to other law enforcement agencies.
The main evil produced by dissemination of arrest records thus seems to be the adverse effect on job opportunity. To this extent, it appears that the Duncan Report rules would be a good rule of thumb as to the appropriate scope of a court order prohibiting dissemination of arrest records. However, other evils, such as unjustified invasion of privacy, particularly where innocent persons are arrested, may result from such dissemination in particular cases, indicating the possible need for a flexible rather than a fixed rule.
The Corporation Counsel’s argument that a person somehow lost his right of privacy in records pertaining to his arrest when Congress enacted
The Duncan Report rules, even if adopted by the court as a guide, could not be applied mechanically. They leave much room for interpretation. Dissemination is allowed to “law enforcement agents” for “law enforcement purposes.” It may be appropriate in a particular case for a judge to set limiting definitions to those phrases—for example, a situation where a defendant could show that a law enforcement agent was intending to divulge the arrest record to a state legislative committee conducting a general investigation.
In sum, the D. C. Court of Appeals will have before it the issues of what records can be disseminated and to whom, whether in particular types of cases physical expungement is necessary, or whether no order is required. Should the court adopt a flexible individual case approach, the record in Morrow’s case seems sufficiently complete to make a determination whether the interests of law enforcement indicate that the order should be restricted to the Duncan Report rules or to some other limitations.
V
Two further issues bear brief comment: (1) whether an order prohibiting dissemination of police records can run against the Police Department; and (2) when a hearing on compliance with such an order is appropriate. As to the first, the D. C. Court of Appeals stated that Judge Alexander’s order was invalid because it prohibited the Police Department from disseminating arrest records although only the Corporation Counsel was present and taking part in the prosecution. This position is incorrect. The prosecution was by the District of Columbia government. Although it may be true that in a criminal case brought by the District not every branch or agency of the District of Columbia government is before the court for all purposes, certainly any agency of that government, if given notice of an order, can be bound where its duties are relevant to the subject matter of the order.
The District of Columbia is a municipal corporation,
There should be a proper reluctance to force government officials to go through a searching inquiry into the practices of their departments; unless a clear need for such an inquiry is shown, it is best avoided. We hold today that judges of the Court of General Sessions have the power to issue orders prohibiting dissemination of arrest records. If such an order is issued and the District government contests its scope, or contests its appropriateness at all in a particular case, it can appeal that order to the D. C. Court of Appeals. In the meantime it is presumed to be complying with the order. If the defendant questions this compliance, he can petition the court for an order to show cause and ultimately a hearing on compliance. The court should first request from the District government a statement of whether that government is complying; if the response is in the affirmative, the presumption of the correctness of government ministerial action should require that the defendant make some showing to the contrary before a hearing is commenced. And if a hearing is appropriate, it should be limited as narrowly as possible to the specific issue of compliance with the particular order.
In this case we note that Judge Alexander did ask the Assistant Corporation Counsel prior to the hearing, “[C]an you affirm [whether the District government] has or has not * * * complied with [the order]?” To which counsel replied, “No, sir, I am not in a position to do that.” Given this position, a hearing may have been appropriate. However, the Corporation Counsel’s response may well have been a result of the conflicting pressures and positions the District government was taking vis-à-vis the jurisdiction of the court to issue the order in the first place.
The D. C. Court of Appeals stayed the hearing. It will continue to be stayed until after the D. C. Court of Appeals’ decision on remand on the proper scope of the order. At that time it is open to the defendant to request another showing of compliance by the District government; however, the hearing itself should not be reinstituted until the District has had a chance to state whether it is in compliance, and until the defendant has made some showing that the District has not been complying if it states that it has. Further, if the hearing does recommence, the scope of the questioning should be restricted to the record in Morrow’s case plus only that additional evidence needed to resolve the fate of his particular arrest record.
Reversed and remanded to the District of Columbia Court of Appeals.
Walter N. Tobriner
President
Board of Commissioners, D. C.
Charles T. Duncan November 2, 1967
Corporation Counsel, D. C.
Revisions and Adoption by the Board of Commissioners of Recommendations of the Committee to Investigate the Effect of Police Arrest Records on Employment Opportunities in the District of Columbia
At the Board meeting on October 31, 1967, the recommendations of the Arrest Records Committee were adopted, subject to certain modifications. The recommendations, as revised and approved by the Board, are as follows:
- That no record, copy, extract, compilation or statement concerning any record relating to any juvenile offender or relating to any juvenile with respect to whom the Metropolitan Police Department retains any record or writing, shall be released to any person for any purpose except as may be provided under
D.C.Code, Section 11-1586 ; provided, that the release of such information to members of the Metropolitan Police Department, and the dissemination of such information by the Metropolitan Police Department to the police departments of other jurisdictions wherein juveniles apprehended in the District of Columbia may reside, shall be authorized; provided further, that the release of such information to individuals to whom the information may relate or to the parents or guardians or duly authorized attorneys of such individuals, shall be authorized in those cases in which applicants therefor present documents of apparent authenticity indicating need for such information for reasons other than employment. The term “employment”, in the context of this paragraph, shall not include military service. - That unexpurgated adult arrest records, as provided under
D.C.Code, Section 4-134a , shall be released to law enforcement agents upon request, without cost and without the authorization of the persons to whom such records relate and without any other prerequisite, provided that such law enforcement agents represent that such records are to be used for law enforcement purposes. The term “law enforcement agent” is limited in this context to persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate. The term includes judges, prosecutors, defense attorneys (with respect to the records of their client defendants), police officers, Federal agents having the power of arrest, clerks of courts, penal and probation officers and the like. It does not include private detectives and investigators; personnel investigators, directors and officers; private security agents or others who do not ordinarily participate in the process involving the detection, apprehension, trial or punishment of criminal offenders. - That, subject to the foregoing, adult arrest records, as provided under
D.C.Code, Section 4-134a , shall be released in a form which reveals only entries relating to offenses which have resulted in convictions or forfeitures of collateral. - That, subject to the foregoing, adult arrest records, as provided under
D.C.Code, Section 4-134a , shall be released in a form which reveals only entries relating to offenses committed not more than 10 - That, subject to the foregoing, copies or extracts of adult arrest records, as provided under
D.C.Code, Section 4-134a , or statements of the non-existence of such records shall be released to applicants therefor upon the payment of fees to be based upon the cost of editing and producing such copies, extracts or statements; provided, that applicants who are not the persons to whom such records may relate must, in addition to the required fees, present releases in appropriate form executed by the persons to whom the records may relate; provided further, that no fee shall be required with respect to any record solicited by any agent of the Federal or District of Columbia Government for a governmental purpose. - That Article 47 of the Police Regulations of the District of Columbia be amended to provide that it shall be an offense punishable by a fine not to exceed $50.00, for any person to require as a condition of employment the production of any arrest record or copy, extract or statement thereof at the expense of any any employee or applicant for employment to whom such record may relate.
The foregoing revised and approved recommendations will become effective 90 days after October 31, 1967. In the interim the Metropolitan Police Department is requested to establish and submit the fee (based on cost) which will be charged for arrest record information. The Department is also requested to submit a proposed form on which such information will be transmitted to applicants.
C-C
CTDUNCAN/THJOHNSON/ahm
11-02-67
cc: C-C Office File
TAMM, Circuit Judge, concurring in part and dissenting in part:
While I agree in the result reached by the majority in its treatment of the law in parts I, II, and IIIA of its opinion, I cannot assent to the imprecise handling of the law in the remainder thereof and therefore note my disapproval.
Today’s holding gives to any judge, in any court, at any time, the power to issue an order regarding the dissemination of an arrest record of a defendant who, for whatever reason, has his case dismissed. It is my view that such a grant of power in this case neither conforms to the applicable law nor adheres to a sound approach to criminal justice.
The majority, in treating the case law in this area in footnote fashion,1 lays down valuable precedent for the propositions that: (1) determinations regarding arrest records of defendants are ancillary to a criminal court’s principal jurisdiction of determining guilt or innocence of a particular individual; (2) orders will issue requiring certain agencies charged with maintaining criminal records not to disseminate those records where the criminal proceeding terminated in favor of that individual; and (3) these agencies, through representation by the city attorney, are before the court for jurisdictional purposes even though not before the court as a named party. The precedential value of these holdings is readily apparent and footnote citations of authority coupled with seven or eight pages of policy discussion hardly seem adequate to fortify so far-reaching a decision.
The court, apparently striving to achieve a legal first in treating the significant legal question of whether de-
The court goes on to say that a matter is ancillary where the order would not operate to deprive a party of a substantial procedural or substantive right. If this also is true then the order in question cannot be ancillary for a party to that proceeding is the public trust which, by statute, has an important substantive right in maintaining records of arrests and in using them consistent with the promotion of public safety and welfare. When an order is entered in derogation of that use, without a full fact-finding hearing, the public is deprived of due process of law. Finally, the majority holds that a matter will be ancillary where its resolution must be effected to protect the integrity of the main proceeding or its disposition, without such resolution, would be frustrated. If this, too, is true then I cannot see how dissemination of an arrest record with the disposition thereof properly noted could serve either to frustrate the disposition of the main proceeding or to penetrate its integrity. The fact remains, regardless of the ultimate outcome, that the defendant was arrested.
“In the absence of statutory direction * * * the power to maintain * * * a city police system carries with it the right * * * to exercise reasonable discretion in such maintenance * * *. Courts should be cautious about interference * * *.”
State ex rel. Mavity v. Tyndall, 224 Ind. 364, 366, 66 N.E.2d 755, 757 (1946). As the majority notes, few courts have sought to interfere and then, only when the arrest was a form of harassment of Negroes seeking to exercise their voting rights,3 or where the attempt to keep the arrest record of an individual amounted to a form of spite.4
The court here leaves the impression that it also does not choose to enter this area in any substantial degree as it leaves open the resolution of the scope of this problem for the District of Columbia Court of Appeals on remand. However, the court does hold that it is “apparent from the Duncan Report, the testimony at the compliance hearing, and even from statements in the District’s brief, that in the District of Columbia restraints may be put on dissemination of arrest records * * *.” (Citation omitted.) (Majority opinion at 22.) With this statement I have no great quarrel for I believe that a court of the District of Columbia; namely, the United States District Court for the District of Columbia, does have the power to enjoin unlawful police practices but only in cases where the Police Department is made a party and the many issues are fairly tried.5 What I disagree with in the court’s opinion is that the D.C. Court of General Sessions, sitting in criminal division, has the power to meet and fairly decide the policy, legality and even the constitutionality of the complained of practices through its assertion of ancillary jurisdiction. The police department is lawfully in possession of these records and only an independent fact-finding proceeding before a court of general equity jurisdiction can be used to test any subsequent unlawful use thereof.6 I, too, abhor any practice of the Police Department which serves to make available copies of an accused’s arrest record, indiscriminately, to the private sector of the community. A man’s arrest record, under our system of innocence until proven otherwise, should be of no consequence to those not engaged in official crime prevention and detection, but I am unwilling to replace an evil that exists with an equally evil substitute. However, as a means for identification and apprehension of criminals, an arrest record does serve the police community as a most valuable tool. Nation, state and city-wide crime detection and prevention are based upon a system of information and communication. Statistical experience tells them that persons with arrest records commit a higher percentage of crimes than persons who do not have arrest records.7 When a young lady notifies the police that eight young nurses have been brutally murdered in their dormitory by a man of a given description, the police take that description and any finger prints
The majority opinion, in any event, proceeds to pile brushwood around the stake of effective law enforcement. In the case before Judge Alexander the information was dismissed on the ground that it was brought by an improper prosecutorial authority. At no time was the allegation made that the arrest here in question was improper. Insofar as I can determine there is no authority for the holding of an arrest invalid where prosecution thereon was frustrated by a procedural mishap. The appellant, Morrow, not only succeeded in evading the truth but also achieved the issuance of an order directing virtual expungement of his arrest record. If such treatment is accorded and condoned in this case, then every defendant, whose case terminates in his behalf, has the right, by citing In re Alexander, to invoke the “ancillary jurisdiction” of the trial court to enjoin dissemination of his arrest record. I cannot condone such treatment for it is my view, as I have said, that should a defendant desire to enjoin such dissemination on the grounds of illegal arrest or even where a guilty defendant feels that the dissemination is violative of his rights and the applicable law, each should come into the district court and press his right. That is exactly what that court was created for and when it is properly utilized both the system and the right are upheld. To hold otherwise is to transform a government of law into a governo a batere—a government to be fought.
Finally, I turn to the question of whether an order prohibiting dissemination of police records can run against the Police Department where it is not a party named. The majority’s position is that since the Corporation Counsel represented the District of Columbia government in the prosecution of this case and since the Police Department is merely a branch of the District government, it can be bound by an order since its duties are relevant to the main proceeding. What this position fails to realize is that the Corporation Counsel wears many hats, and even though each hat bears the District of Columbia label, each signifies a different function. The division which seeks to prosecute would not be the division which sought to defend the Police Department practices. I think fundamental fairness to all interests demands notice and participation by that branch charged with the duty being challenged. For these reasons, I would, respectfully, dissent in part.
EDWARD A. TAMM
UNITED STATES CIRCUIT JUDGE