The STATE of North Dakota, Plaintiff and Appellee, v. Henry H. HOWE, a/k/a Henry H. Howe, Jr., Defendant and Appellant.
Crim. No. 569-A.
Supreme Court of North Dakota.
July 23, 1981.
307 N.W.2d 743
Hjellum, Weiss, Nerison, Jukkala & Wright, Jamestown, and Stephen Pevar, Denver, Colo., for defendant and appellant; argued by Stephen Pevar, Denver, Colo. Appearance by Henry Howe, Grand Forks, and Charles M. Carvell, Jamestown.
ERICKSTAD, Chief Justice.
The appellant, Henry H. Howe, requests this Court to determine whether or not an arrestee who is not subsequently convicted of any crime is entitled to expunction of his criminal arrest records. We hold that a person whose arrest does not result in conviction is entitled to expunction of his arrest records only if he was wrongfully arrested in violation of his constitutional rights. We reverse and remand for further proceedings consistent with this opinion.
The circumstances underlying this case are recited in State v. Howe, 257 N.W.2d 413 (N.D.1977), but we will briefly reiterate those facts which are relevant to the issue raised on this appeal. During September of 1975, two criminal complaints and two warrants of arrest were issued against Howe who was then engaged in the practice of law at Valley City. One complaint charged Howe with tampering with a witness in violation of
The charges under
On December 13, 1980, more than three years after this Court had set aside his conviction, Howe filed a motion with the district court, as a proceeding in the criminal case, for expunction of his arrest records, and specifically:
“1. For an Order, directing the Sheriff of Cass County, the Sheriff of Barnes County, and the Director of the Bureau of Criminal Investigation in Bismarck, North Dakota, as well as any other person or agency in possession of original or duplicate arrest records relating to the arrest of the defendant for violation of North Dakota Century Code Sections 12.1-09-01, 12.1-08-05, and/or 19-03.1-23, to return any and all such original or duplicate records to the defendant, Henry H. Howe, Attorney at Law, P.O. Box 34, Grand Forks, ND, 58201, forthwith and without delay, and, further expunge any reference to such arrest from any official docket or register. The Word ‘Record’ in this order shall include, but shall not be limited to, any fingerprint card, computer card, or case card retained by the agency, whether or not such record represents an officially required, or informally kept, agency record.
“2. For a further order directing the Clerk of the District Court of Barnes County to expunge any record or docket
entry relating to the conviction of the defendant for violation of NDCC Section 12.1-08-05.1 “3. For such other and further relief as may seem appropriate.”
Howe sent NOTICE OF MOTION by mail to the following parties: the Cass County Sheriff, the Barnes County Sheriff, the Director of the Bureau of Criminal Investigation, the North Dakota Attorney General, the Barnes County States Attorney, and the Barnes County Clerk of the District Court. No written response was filed by any of these parties; however, on December 30, 1980, counsel did appear on behalf of the Barnes County States Attorney, the Barnes County Sheriff, and the Barnes County Clerk of the District Court to argue the merits of the motion. At that hearing, the district court judge ruled from the bench that he was appointing the attorney representing the Barnes County parties to represent all parties named by Howe in his motion. Subsequent to the hearing, the court determined that it had no statutory or other authority to order the expunction of arrest records, and it entered an order denying Howe‘s motion from which he has filed this appeal.
Preliminary to discussing the merits of Howe‘s request for expunction of his arrest records, it is necessary to determine whether or not Howe properly raised this matter by his motion. This Court has stated that a criminal action is pending until its final determination upon appeal or until the time for appeal has passed. State v. Jager, 91 N.W.2d 337 (N.D.1958). There is no statute or procedural rule which allows this type of motion to be filed in a criminal case more than three years after a final determination has been made by this Court upon appeal.
The relief requested by Howe is of a civil nature, and he should have commenced a civil action against the custodians of the arrest records which he desired to have expunged.2 By filing a motion and mailing notice to the named parties Howe failed to properly effect service of process as required by
Howe requests this Court to declare that an arrestee whose arrest does not result in a valid conviction is entitled to expunction of his arrest records. The adverse consequences which an individual may incur by the mere presence of an arrest record has been recognized by both federal and state courts. I. e. Menard v. Saxbe, 498 F.2d 1017 (D.C.Cir.1974); Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972). The extent of the potential harm was deftly stated by the Colorado Supreme Court in Davidson, 503 P.2d at 159-160:
“Notwithstanding the absence of a conviction, the mere record of arrest often
works as a serious impediment and basis of discrimination in the search of employment, in securing professional, occupational, or other licenses, and in subsequent relations with the police and the courts. Most employers and employment agencies inquire whether an applicant has been arrested. An affirmative answer to this question, regardless of whether a conviction resulted, is often sufficient to deny the applicant further consideration. Where there are two or more applicants for the same job, those with previous arrest records clearly stand in a less favorable position than do other applicants. “Moreover, it is common knowledge that a man with an arrest record is much more apt to be subject to police scrutiny—the first to be questioned and the last eliminated as a suspect in an investigation. If he is subsequently arrested, his arrest record may arise to haunt him in presentence reports, which often include not only prior convictions but also prior arrests. Prosecutors use arrest records in determining whether or not to formally charge an accused or even whether or not to allow a person to sit as a juror. And the existence of an arrest record often results in the denial of bail pending trial. The seriousness of the arrest record problem, although perhaps questionable in the past, is now too well documented to be doubted.” 503 P.2d at 159-160. (Footnotes and case cites omitted.)
So too, however, the courts have recognized the legitimate need for retention of arrest records to assist in efficient law enforcement. I. e. Loder v. Municipal Court for the San Diego Judicial District, 17 Cal.3d 859, 553 P.2d 624, 132 Cal.Rptr. 464 (1976).
Although our legislature has enacted various statutes dealing with the retention, use, and destruction of public records, there is no statutory authority for expunction of arrest records in this state.3
“12-60-16. Report of arrested person‘s transfer, release, or disposition of case.—In any case in which a sheriff, police department, or other law enforcement agency makes an arrest and transmits a report of the arrest to the bureau of criminal investigation or to the federal bureau of investigation, it shall be the duty of such law enforcement agency to furnish a report to such bureaus whenever the arrested person is transferred to the custody of another agency or is released without having a complaint or accusation filed with a court.
“When a complaint or accusation has been filed with a court against such an arrested person, the law enforcement agency having primary jurisdiction to investigate the offense alleged therein shall receive the disposition of that case from the appropriate court and shall transmit a report of such disposition to the same bureaus to which arrest data has been furnished.”
§ 12-60-16, N.D.C.C.
The foregoing provision, in the absence of additional legislation, demonstrates that the legislature, while recognizing the need to maintain accurate arrest records reflecting the ultimate disposition of an arrest, has not seen fit to provide for the expunction of arrest records when a conviction is not obtained.
Notwithstanding the absence of statutory authority for expunction, Howe asserts that the courts of this state have an inherent authority to order the expunction of arrest records for those who are not subsequently convicted on the ground that the retention
The prevailing view of the federal judiciary is that there is an inherent authority in the courts to order expunction of arrest records which should be exercised only in the unusual or extreme case where the harm to the individual from the retention of his arrest records outweighs the government‘s need to maintain that record for law enforcement purposes. See, Diamond v. United States, 649 F.2d 496 (7th Cir., 1981); United States v. Schnitzer, 567 F.2d 536 (2nd Cir. 1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978); United States v. Linn, 513 F.2d 925 (10th Cir. 1975), cert. denied, 423 U.S. 836, 96 S.Ct. 63, 46 L.Ed.2d 55 (1975); Sullivan v. Murphy, 478 F.2d 938 (D.C.Cir.1973), cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973); Urban v. Breier, 401 F.Supp. 706 (E.D.Wis.1975); United States v. Dooley, 364 F.Supp. 75 (E.D.Pa.1973). These courts have developed a case-by-case approach wherein the equities for and against expunging an arrest record are balanced and expunction is ordered only in extreme cases such as where an arrest is made without probable cause or is otherwise unlawful or where the statute under which an arrest is made is subsequently held to be unconstitutional. This limited right to expunction on a case-by-case basis has been followed by a number of state courts as well. See, Bradford v. Mahan, 219 Kan. 450, 548 P.2d 1223 (1976); Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971).
Howe asserts two grounds allegedly entitling him to expunction of his arrest records—the constitutional right of privacy and the constitutional right of procedural due process of law.
First, Howe asserts that all persons whose arrests do not result in conviction have a constitutional right of privacy—a right to be left alone—which entitles them to expunction of their arrest records. Although the basis upon which the courts have provided an expunction remedy is varied and not always clearly articulated, a number of courts appear to have based the remedy on an individual‘s constitutional right of privacy. See, United States v. Kalish, 271 F.Supp. 968 (D.Puerto Rico 1967); Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971). However, we believe that the United States Supreme Court in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), has rejected the notion that there is a constitutional privacy right in a valid arrest record which would entitle an exonerated arrestee to any limitation of its retention by law enforcement officials.
In Paul, supra, a man was arrested in Louisville on a charge of shoplifting. Prior to the disposition of the charge, the Louisville Chief of Police published a flier, which was distributed to approximately 800 merchants in the Louisville metropolitan area, of “active shoplifters” which included the fact of Davis’ arrest on the shoplifting charge. Subsequent to the distribution of the flier, the shoplifting charge against Davis was dismissed. Davis then filed a claim for relief against the Louisville Chief of Police under
“While there is no ‘right of privacy’ found in any specific guarantee of the Constitution, the Court has recognized that ‘zones of privacy’ may be created by more specific constitutional guarantees
and thereby impose limits upon government power. See Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176-178 (1973). Respondent‘s case, however, comes within none of these areas .... In Roe the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are ‘fundamental’ or ‘implicit in the concept of ordered liberty’ as described in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, 292 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection—matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct. “Respondent‘s claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State‘s ability to restrict his freedom of action in a sphere contended to be ‘private,’ but instead on a claim that the State not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this matter.” 96 S.Ct. at 1166.
In light of the Paul, supra, decision we conclude that there is not a constitutional right of privacy which would entitle an exonerated arrestee to expunction of valid arrest records.
Second, Howe asserts that those whose arrest does not result in conviction have a constitutional right of procedural due process under the
Although we believe Howe‘s assertion of a right to expunction of arrest records is stated too broadly, we conclude that a more narrow right of expunction does exist. It is clear that the courts have the power to fashion a remedy, without legislative authorization, to vindicate the violation of a person‘s constitutional rights. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In the absence of statutory authorization for such relief, we believe the courts have authority, as well as an obligation, to expunge the arrest records of one who is wrongfully arrested in violation of his constitutional rights. The remedy of expunction should be provided, for instance, when an arrest is made without probable cause or when an arrest is based upon a criminal statute which is subsequently determined to be unconstitutional. In such instances the legitimate need to use the arrest records for law enforcement purposes is severely undermined by the fact that the arrest was invalid and should never have occurred. In such instances the arres
The district court denied Howe‘s request for expunction on the ground that it was without authority to order such relief. In view of our holding, it is necessary, therefore, to remand this case for further proceedings to determine whether or not Howe was wrongfully arrested without probable cause or otherwise in violation of his constitutional rights so as to entitle him to expunction of his arrest records. We reverse and remand for further proceedings in accordance with this opinion.
PEDERSON, J., and MUGGLI, District Judge, concur.
HATCH and MUGGLI, District Judges, sitting in place of VANDE WALLE and PAULSON, JJ., disqualified.
PEDERSON, Justice, concurring specially.
Because I agree that the trial court erred in concluding as a matter of law that it had no jurisdiction to hear Mr. Howe‘s plea, I concur in the opinion authored by Chief Justice Erickstad. I am, however, constrained to add some comments.
The availability and the worth of “expunction” as a remedy should not be presupposed. As necessity is mightier than the law and is the mother of invention, the elimination of the evil complained of may well require the design of a new tool.
The paradox is evident. Courts are not free to legislate at will—courts need not always deny a remedy merely because the Legislature has failed to provide for it by statute. To deserve society‘s support, courts are obliged to recognize the deterring factors—we do not call them handicaps—which compel self-imposed judicial restraint. Free men and women can be injured by unwarranted invasion of privacy—whether we should call it a natural right or constitutional in scope has not been settled in the minds of judicial scholars. See City of Grand Forks v. Grand Forks Herald, Inc., 307 N.W.2d 572 (N.D.1981). An ad hoc, one-step-at-a-time approach will head us in the right direction. The invasion of privacy may perhaps be remediable only by suit against the person who misuses information when there is no remedy that will actually withhold the information from that person.
HATCH, District Judge, concurring specially.
I concur in Chief Justice Erickstad‘s opinion, but with the understanding that on remand, the district court will only have jurisdiction over the Barnes County Sheriff, the Barnes County States Attorney, and the Barnes County Clerk of District Court.
SAND, Justice, concurring and dissenting.
I agree that a criminal case such as State of North Dakota v. Henry Howe, the one in question, cannot be converted into a civil case particularly where the criminal case has run its course and has terminated, as was the case here. On 1 August 1977 this court on appeal reversed Howe‘s conviction and remanded the case. The motion which ultimately came before this court on appeal was filed on 13 December 1980 and sought an order directing the sheriff of Barnes County, Bureau of Criminal Investigation, as well as other agencies in possession of arrest records, for alleged violations of
Even where motions are permitted after trial has been completed there are certain limitations. For example, a motion for a new trial on newly discovered evidence may be heard if the motion is made within 30 days after discovery of the new evidence. But in any event it must be made within two years, unless the matter is on appeal, and then it must be heard within a certain time after the appeal has been resolved.
Similarly, a motion or application for reduction of sentence must be not only made but actually disposed of within 120 days after the entry of judgment because after the 120 days the court loses jurisdiction.
It seems axiomatic and proper that in order for a motion to be heard and considered a basic action has to be pending unless there is a specific statute or rule providing that the proceedings may be initiated by motion. For example, this court in an amercement proceeding under
I agree with the following statement in Justice Erickstad‘s opinion:
“The relief requested by Howe is of a civil nature, and he should have commenced a civil action against the custodians of the arrest records which he desired to have expunged. By filing a motion and mailing notice to the named parties Howe failed to properly effect service of process as required by
Rule 4 of the North Dakota Rules of Civil Procedure such as would allow the district court to acquire personal jurisdiction over them.”
However, I cannot agree with the following statement:
“. . . we conclude that the voluntary general appearance made by the Barnes County Sheriff, the Barnes County State‘s Attorney, and the Barnes County Clerk of District Court, at the December 30, 1980, hearing submitted those parties to the personal jurisdiction of the district court under
Rule 4(b)(4), N.D.R.Civ.P. Consequently, the district court had subject matter jurisdiction as well as personal jurisdiction over those parties so as to enable it to enter a valid jurisdictional order against them.”
I cannot agree with this conclusion.
The record shows the following. After an opening remark the Court asked:
“Are all of those parties represented? I see you are, Mr. Howe?
“MR. HOWE: Yes, Your Honor.
“THE COURT: So you are represented—Are you appearing on your own behalf? “MR. HOWE: I am appearing on my own behalf, yes.
“THE COURT: Mr. Paulson, are you appearing for whom?
“MR. PAULSON: I think I am probably appearing for the State‘s Attorney for Barnes County. I guess that would be on my own behalf. And I guess I am appearing for the Clerk of the District Court, Barnes County. And also for the Sheriff of Barnes County.
I did discuss this matter with the Attorney General‘s office just by way of note, and letter too, correspondence that I received in the last few days. They had a schedule conflict so they weren‘t going to appear. But they assisted me in preparing or furnishing me some material with respect to my making an oral response.
I discussed the propriety of making some type of return to this motion and they sort of agreed that it wasn‘t necessary. It seems like with all of these people joined in the thing that there would be more—at least an attempt to make a formal response. But we haven‘t made any formal response as such. But we are here, appearing to give—I and I guess I have assumed representation for the other parties too, although I guess the Attorney General‘s office and Bureau of Criminal Investigation and Sheriff of Cass County can appear on their own. I guess I wasn‘t assuming representation for them. Let‘s say I am representing the Barnes County people.
“THE COURT: I think however, I will appoint you as counsel for all of the six including yourself.
“MR. PAULSON: I think the issues to be raised would be comparable with all six parties as joined as motionees, if that‘s the correct title. I will accept that.”
Thereafter the court called upon Mr. Howe, who explained his position and repeatedly, in his argument, stated that this was a continuation or a final step in the criminal proceedings. Mr. Paulson then stated his position. No evidence was introduced.
These proceedings do not establish conformity with
In the final analysis from the record as set out above, the parties involved did not voluntarily appear. An appearance was imposed upon them by the court in directing that the state‘s attorney represent the various parties. I cannot conceive that such discourse or procedure constitutes a voluntary appearance. If this constitutes a voluntary appearance, then it would behoove all parties in such instances to refrain from not appearing but to appear and make it a special appearance challenging jurisdiction. This is not contemplated by our rules of procedure. The courts, including the appellate courts, are to be champions of due process. If they fail in this, all else is for naught.
This case is substantially different than the case of Bryan v. Miller, 73 N.D. 487, 16 N.W.2d 275 (1944), in which an appeal for trial anew was taken to district court from justice court and the technical issue of having made a proper deposit in lieu of undertaking was raised. The parties appeared and challenged the procedure relating to the deposit. But in the instant case the parties appeared by court appointment of counsel for the parties.
The parties did not make a general appearance, rather the “appearance” was made by appointment of the court. Neither did the parties participate at the “trial.” See Olson v. Brodell, 128 N.W.2d 169 (N.D.1964), where party invoked jurisdiction of court to permit amendment to complaint. For further discussion on appearances, general and special, consult 5 Am.Jur.2d 1, et seq.
After reviewing the foregoing activities I am convinced that the proceedings as disclosed by the transcript do not in any manner describe any action which could be deemed a general appearance and even less a voluntary general appearance.
The denial of the motion by the district court should be affirmed without prejudice. If Howe wishes to proceed as contemplated by either the Civil Rules of Procedure or by statute, he should be permitted to do so. In that event, the court could devote its effort to the merits of the action rather than to procedural matters. Such procedure would not only be in complete harmony with judicial economy but would enhance it.
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