*1 51,405 No. Eagle Stephens
Kenneth F. and The Wichita Beacon Pub Dorothy lishing Arsdale, Clerk, Co., Inc., I. Van Plaintiffs, Court, County District Sedgwick Defendant.
(608 972) P.2d Opinion April 5, filed 1980. Wormhoudt, Wichita, cause, argued Newkirk, Gerrit H. R. Donald Wichita, plaintiffs. was with him on the briefs for the Chubb, attorney cause, general, argued A. assistant and Robert T. Janet Stephan, attorney general, was with her brief on the for the defendant. McPherson, Ferguson, argued amicus curiae. and was on brief P. Ward Hutchinson, Branine, Chalfant, Hyter, Chalfant, was on the W. Y. *2 Company, Publishing Hutch- The d/b/a The brief curiae for Hutchinson amicus inson News. Letourneau, Entz, Merriam, McClure, Funk, Colmery, and of W. of Michael Communications, Topeka, Inc. was on the brief amicus curiae for Stauffer by was delivered opinion The of the court against in mandamus original proceeding This is an Prager, J.: capacity I. in her as Clerk of the Dorothy Van Arsdale official Kansas, her County, which arose from Sedgwick District Court of criminal plaintiffs of access to certain court files of denial files proceedings. ground Access to the court was denied on 22-4712 and that K.S.A. 1979 K.S.A. action, plaintiffs.
prohibited their disclosure these plaintiffs constitutionality challenge the of those statutes. parties stipulated as to the facts follows: Publishing Company, Eagle is a “1. Beacon Inc. Plaintiff The Wichita and corporation principal place organized existing of and the laws Kansas. Its under of Wichita, Stephens Douglas, F. is a is 825 Kansas. Plaintiff Kenneth
business East of, in, Sedgwick County, taxpayer registered and to vote Kansas. resident and publishes Company, Eagle Publishing and “2. Wichita and Beacon Inc. evening throughout morning of and to be distributed the state Kansas causes Stephens, general newspapers . . . at all times mate- of circulation. Plaintiff rial, reporter plaintiff newspaper employed by and has been has been as assigned by it to the Courts’ beat. duly appointed Dorothy presently is the and “3. Defendant I. Van Arsdale such, County, Sedgwick serving As de- of the District Court of Kansas. Clerk duty keeping maintaining charged of with the of and fendant is custodian and proceedings Sedgwick District Court of flies in criminal before the court County, Kansas .... many prior implementation years and of the statutes “4. to the enactment For above, plaintiff predecessors newspaper, paragraph 3 or its to in referred Stephens, interest, plaintiff acting through employees normal such published of regularly gathered, and sold accounts criminal course of business Kansas, County, including Sedgwick proceedings the District Court of before convictions, acquittals reports arrests, preliminary prosecutions, proceedings, published appeals. has the records of A information been source such required kept her proceedings defendant and criminal to be and maintained gathered newspaper predecessors regularly and dissemi- has office. Plaintiff indirectly, purchased, directly daily, and it or nated information has been such public. members of nominal consideration information, practice publishing gathering and “5. On account of the by plaintiff newspaper, readers have also its subscribers and as aforesaid followed activity concerning in their provided the course of criminal with information been elected, justice by community officials of criminal and the administration elected, appointed investigation those whose duties include the of com- plaints conduct, apprehension prosecution charged of criminal those crimes, adjudication guilt charged. so innocence of those newspaper’s comprise majority great “6. Plaintiff subscribers and readers Kansas, populace County, Sedgwick and of the and such electorate persons possible all are the main source of the funds that make of the activities government County, Sedgwick and functions of the Kansas .... regularly kept “7. Defendant denied access to files and records subject custody and maintained in her office and to her control in these specific instances: 8,1979 “a) August plaintiff Stephens requested permission On from one of deputies containing defendant’s to examine court file the record of proceedings prosecution Sedgwick a criminal before the District Court of County, acquittal Kansas that had in an resulted of two adult defendants. Chapter was denied Permission on the basis of the aforesaid 1979 Session 22-4712], [K.S.A. Laws of Kansas . . . “b) plaintiff Stephens requested permission August On or about defendant examine contents files in those criminal cases that had been *3 pursuant ‘expunged’ Sedgwick County, the orders of District Court of provisions Supp. 21-4619, amended, Kansas. The of K.S.A. 1978 as and orders County Sedgwick pursuant by given of the District Court of made thereto were justification as defendant for denial to and to the of access to those files.” constitutionality The statutes whose being is challenged are Supp. 21-4619, K.S.A. 1979 Supp. and K.S.A. 1979 provide pertinent part in follows: as conviction; (1) resulting “22-4712. Disclosure of not arrests in limitations. any person any any Whenever has been arrested for the violation of ordinance of city, any county any the resolution in this state or law of this state and the charges person guilty by have been dismissed or the has been not found a court or jury person pursuant 22-2406, or where the arrested been has released to K.S.A. all arrest, including fingerprints photographs person records of such and shall be by any confidential information. Such information shall not be disclosed employee justice agency, officeror of a criminal as in K.S.A. defined 22-4701, anyone employee other than officer another or of such a criminal justice attorney agency, prosecuting a or to the arrested or his or her attorney. “(2) Except any application employment in private for as a with detective a 75-7b01; agency, security personnel detective as defined K.S.A. as awith private patrol operator, 75-7b01; justice as defined K.S.A. a or with criminal agency, 22-4701, any person may as defined K.S.A.1979 so arrested state any application employment, privilege, any for license or other civil or or appearance witness, aas that he or has never she been arrested for such violation.” convictions, Expungement (a) Except provided “21-4619. of certain as (b), any person subsection convicted in this state aof misdemeanor or a Dclass or felony may petition E convicting expungement court for the of such convic- (1) elapsed person: years Satisfied sentence if or more have since the tion two (2) parole, discharged probation, or a imposed; from conditional release or was suspended sentence. any A, felony “(b) B or or violation In the case a conviction for a class C 8-285, any (a) amendments in subsection K.S.A. 1979 enumerated years thereto, person may petition expungement until five or more have no for (2) person: (1) imposed; discharged elapsed was Satisfied since the sentence pr suspended probation, parole, a sentence. conditional release filed, “(c) petition expungement a set for a When a for court shall date hearing give prosecuting thereof attor- thereon and shall notice original ney. petitions expungement . All in the . . for shall be docketed peti- Any person may who information about the criminal action. ^relevant may testify hearing. may inquire background court into the tioner at petitioner petitioner relating any reports access to or records to the shall have secretary authority. file or the Kansas adult that are on with the corrections “(d) petition, petitioner’s hearing At the on the the court shall order the expunged if the court finds: conviction “(1) petitioner felony past years in the That the has not been convicted of two any presently pending involving being proceeding crime is and no against petitioner; instituted “(2) petitioner expunge- warrant the that the circumstances behavior of the ment; and “(3) expungement with the welfare. consistent “(e) expunge- expunged, When the the order of court ordered conviction required petition. state be in the The clerk ment shall the information contained copy expungement shall to the federal of the court send certified of the order secretary investigation, investigation, the the Kansas bureau of bureau justice any agency may have a record of the other criminal who corrections entered, petitioner After shall be conviction. the order of crime, except having that: treated as been convicted of the “(1) Upon subsequent that was ex- for crime the conviction conviction prior determining punged as a sentence to be considered conviction imposed; “(2) any application (A) private employment: as a detective 75-7b01; (B) security personnel agency, with a as defined K.S.A. detective *4 75-7b01; (C) private operator, by justice patrol a as defined or with criminal K.S.A. 22-4701, petitioner, agency, the if about as defined K.S.A. asked previous convictions, place; took must disclose that the conviction may “(3) specify expungement, other circumstances the in the order of disclosed; the is to be under which conviction “(4) may subsequent prosecution for in a an offense the conviction be disclosed prior type requires a of the as an element of such offense conviction expunged. crime, pleads pays person guilty “(f) a a fine for Whenever is convicted'of a placed probation given suspended parole or is or or is a sentence a crime or ability release, person expunge the shall be informed the conditional the conviction. (e), any pursuant Subject required “(g) to subsection the disclosures any privilege, employment, right or application other civil or for license or expunged witness, person appearance a has a a whose conviction of crime been as crime, convicted of such statute state that he or she has never been under this felony a relieve an individual of the conviction does not but possession complying any relating federal law to the use or with state or felony. by persons a firearms convicted of “(h) expunged has under the Whenever the record of conviction been 12-4515, 21-4616, provisions the or K.S.A. 1977 or of this section arrest, sections, statutory predecessor the of the records of of such custodian relating the existence conviction and incarceration to that crime shall not disclose records, except requested by: of such when “(1) person expunged; record was whose “(2) justice agency, private agency private patrol a criminal detective or a operator, request accompanied request being a is and the statement that conjunction application employment agency made in with an for with such operator by person expunged; whose record has been “(3) court, upon showing subsequent a a whose a conviction of expunged; record been “(4) person pursuant such the terms of the ex- entitled to information order; pungement “(5) attorney, request prosecuting accompanied a statement that such request conjunction prosecution being made in with a of an offense that
requires prior as one of the elements of such offense.” conviction arguments parties joint Prior to oral herein filed statement respective joint their designation contentions and a of the essentially issues to be determined which are as follows: “CONTENTIONS OF PLAINTIFFS standing bring “1. Plaintiffs have .... action their own constitutional, statutory guarantees “2. The common law and of access to protection concerning government information the conduct of the and the af- forded to the dissemination of such information were established and continue to give compact exist in order to secure and effect to the terms of the constitutional enduring serving between those from time to time as officials and those appoint who and sustain them. regularly kept “3. The denial files of access to and records and maintained in Court, Kansas, County, Sedgwick custody the officeof the Clerk of the under rights plaintiffs, and control of said clerk violate and of the members of the they represent, guaranteed by Rights class seek to as the Bill of and the Constitu- tion of the State of Kansas and the First and Fourteenth Amendments of the United States Constitution. upon justification legislation “4. The relied as denial of access is void because: “a) abridges liberty press respect gathering It of the to the justice concerning dissemination of information the administration of criminal liberty adoption at existed the time of of the Constitution of this State and as State, history throughout it has continued to exist of this in violation of guarantee Rights liberty Bill of Section that ‘The shall be inviolate’; *5 “b) plaintiffs liberty generally in and of the that it It further violates the of defamation, a in civil for to them benefits of truth as defense actions denies the Rights contrary specific guarantees Bill of this of Section 11 of the of state to the given jury’; to ‘the truth in evidence the “c) upon proof purported legislated of truth restriction the Because of such publications imposed, proceedings prior and the in civil restraint on defense impaired, persons freely publish speak, right all write or their sentiments of to 11, express language Rights; notwithstanding of Bill of the Section “d) By authorizing to the of concealment of information as conduct responsible justice, frustrates the of criminal it the officials for administration State, by people generally rights self-governance of retained the of this as stated 2, people Rights specifically rights reserved in the to Section Bill of and the expressed good’ representatives,’ for their common and ‘to instruct their ‘consult provided rights suffrage Rights, of and of in Section Bill of and the election the in Articles and 5 of Constitution. “e) separate powers constitutionally legislature the violate the Such acts of testimony judiciary by purporting reserved to of this state to authorize false deny judicial pertinent proceedings to to such the course and access to evidence proceedings; “f) directly legislative trials violates the Such interference by jury, by infringes protected Rights, Bill of and fundamental due trial Section process guarantees expressed Rights; in Sections and 18 Bill of laws, legislature power by “g) make conferred Such exceed to acts Constitution, authority thereby does 1 of conferred Article since false; power change which is that which is include the to true to “h) By by judicial purporting from view of all to direct order the erasure crimes, legislation infringes powers separately evidence convictions granted judiciary granted Article 3 those to the executive to the under department 7.” Article Section under FOR DETERMINATION “ISSUES by plaintiffs? compel sought lie “1. Does mandamus to action bring standing . . action .? “2. Do pro- abridgment rights [K.S.A. 22-4712] Is invalid as an “3. Rights First Kansas or the Bill of and Constitution of tected United Constitution? Amendments States Fourteenth pro- abridgment rights Supp. 21-4619] as an [K.S.A. “4. Is invalid Rights or the First and and Constitution of Kansas tected the Bill of United Constitution? Amendments of the States Fourteenth sought by plaintiffs issue?” “5. the order of mandamus Should issues. determination We turn now to consideration Remedy? Appropriate Is I. Mandamus provides: K.S.A. 60-801 tribunal, board, compel proceeding inferior or some “Mandamus is specified duty, duty perform results corporation from some directed, office, party trust, to whom order or official station of operation law.” *6 in mandamus propriety of an action challenges the
Defendant
by state
perform acts made unlawful
public
compel a
official
our
defendant directs
support
this contention
statutes. In
of
on man
pronouncements
earlier
some of this court’s
attention to
compel
public
a
will not lie to
as follows: Mandamus
damus
County Sports
perform an unauthorized act.
officer to
Johnson
Shanahan,
253,
(1972). The
Kan.
On
concern,
availability
has broadened the
issues of statewide
expeditiously
in
resolve the issues. Mobil
mandamus
order to
(1968),
McHenry, 200 Kan.
to obtain an authoritative business, public notwithstanding in their the fact officials administration remedy Syl. adequate at law.” there also exists ¶12. speedy adjudication questions a of law for “The use of mandamus to secure discharge guidance of state officers and official boards in the of their duties is Syl. in common this state.” ¶13. designed purpose compelling proceeding “Mandamus for the discretion, performance clearly duty, involving defined the exercise of corporation duty relationship, public person or arises out of a trust or a whose Syl. corporate responsibility.” ¶[14. speedy adjudication The use of mandamus to secure questions guidance of law for the of state officers and official their discharge boards duties common this state. conceptions proper expedite use of mandamus to Our expanded beyond official business of the state have far the ancient State, rel., justiciable of matters in mandamus. ex v. limitations Comm., 327, 334-35, 295 (1931). Kan. Highway State Pac. 986 upon a Where a official’s action or refusal to act is based ap- validity challenged, statute whose mandamus lie propriate cases. Cases, See In re Insurance Tax 160 Kan. (1945); Jackson,
P.2d
Miller
166 Kan.
II. Do Plaintiffs have Standing to Maintain this Action? they contend have standing to maintain this action both individually representatives and as of all the citizens *7 of Kansas. general rules relative to standing private of a citizen to maintain a mandamus action were set forth Mobil Oil Corporation v. McHenry, 200 Kan. Syl. ¶17, where this court stated: ordinarily “While private mandamus will not lie at the instance of a citizen to compel performance public duty, of a it has been held where an individual injury specific peculiar himself, shows an or interest and to and not one that he community general, remedy shares with the of mandamus and the other
extraordinary remedies are available.” plaintiffs Have injury shown some specific or interest pe- and culiar to themselves and not one they share with the com- munity in general? We plaintiffs conclude the have shown such injury They and customers, interest. collect and sell news to their the citizens of Kansas. The denial the defendant to these plaintiffs of impairs access to official court ability their carry business, on their the collection and in- dissemination of plaintiffs formation. The they demonstrated that have the requisite standing individually. to maintain this action
III. Supp. Is K.S.A. 1979 22-4712 Abridgment Invalid as an
Rights Bill Rights Protected and Constitution of Kansas or the First and Fourteenth Amendments to the United States Constitution? proceeding
Before
questions,
constitutional
we must
initially
Supp.
determine whether K.S.A.
applies
22-4712
district court
criminal files. Defendant denied
access to
acquitted.
court file of two adult codefendants who had been
predicated
The denial
was
on the belief that K.S.A. 1979
prohibited
permitting plaintiffs
her from
to examine the
justice
employee criminal
file. Defendant
an officer
22-4701(c)(3), and
by K.S.A. 1979
as
agency,
defined
History
provisions of the Criminal
subject to various
therefore
seq.).
(K.S.A.
22-4701 et
Act
Record Information
History
part
the Criminal
as a
be construed
22-4712 should
dis-
us is whether
question
before
Act.
Record Information
arrest”
of such
as
are “records
trict court criminal records
not,
inapplicable
they
If
are
the statute
term is
in 22-4712.
used
determined.
issues need
be
and the constitutional
legislative intent as what
We must first determine
arrest.” Words
term “records
such
within the
included
ordinary meaning
given
are to
their natural
usage
common
v.
Grey
aof
statute.
arriving
proper
at the
construction
Schmidt,
Syl. ¶1,
When we construe (K.S.A. Supp. History Criminal Information Act Record arrest,” it seq.), 22-4701 et is clear that the term “records of 22-4712, public judicial used does not include court records of judicial opinions. proceedings published Under K.S.A. 1979 act, 22-4701(b)(3), Supp. definition section of the the term history specifically information” declared not “criminal record police entries, posters, to blotter records include “wanted court ” public judicial published opinions. We proceedings, or court Supp. also note that K.S.A. 1979 22-4704 authorizes the director investigation adopt of the Kansas bureau of rules and regula- tions for agencies in the executive branch government and for justice criminal agencies part “other than those that are of the judicial branch government.” provides 22-4707 for restrictions history on dissemination of criminal record information. Con- all struing of these statutes together, we have concluded that K.S.A. Supp. application 22-4712 has no to criminal court of a records district court and hence imposes it no restrictions on the right press any private of the other citizens to have access to the same. Having statute, so construed the we hold that the validity Supp. constitutional of K.S.A. 1979 22-4712 is not before the court and need not be determined this case.
IV. Is K.S.A. 1979 Abridgment Invalid as an
Rights Protected the Bill of Rights Constitution of Kansas or the First and Fourteenth Amendments to the United States Constitution? provisions of K.S.A. 1979 21-4619 are set forth in
full at the beginning opinion. of the In challenging the constitu- statute, validity plaintiffs contend, substance, tional that the statute violates rights guaranteed by certain the First and Fourteenth Amendments to the United States Constitution and Rights Kansas Bill of involving press freedom of the and the public right to know and have concerning information responsible conduct of officials for the administration of outset, justice. criminal ques- At the it should be stated subject tion of access of the been a of a great years. deal litigation question recent of restricting subject compre- access to state court records is the aof annotation, hensive annotation at A.L.R.3d 598. conflicting subject many views on the are set forth and cases are expressing points cited those different of view. It would serve no purpose survey useful litigation the entire field of this or the positions say, various taken the courts. Suffice it to most of the basic issues in this case involved have been resolved recent Supreme decisions the United States Court and of this court. constitutionality considering Before of K.S.A. 1979 21-4619, important we it make it clear this case does deem what attempt press in not involve. The statute does not to restrain the publication hands information available to or in the *9 does exclude any person. The statute the media other or trial, any any nor does it close representatives press of the deny attempt makes no to scrutiny. The statute public trial from in the court records representatives press of the access to process that is in the particular case while case criminal imposition adjudication prior finding guilty or or to provides certain simply that sentence in the case. The statute only expiration after the expunged criminal be records has a convicted criminal period of time and after extended has been petitioned proved court and to the court he these expungement. such an With rehabilitated and entitled to mind, questions presented in we turn to the observations determination. Supreme United and of
Under the decisions of the
States
Court
any
access to
right
other
to
protections
not a
which falls within the
right
court records is
United
by
afforded
the First and Fourteenth Amendments to the
public
right
public
States
to access to
Constitution.
public inspection is
in
law. Nixon
records for
based
our common
Inc.,
589,
Communications,
2d
U.S.
55 L.Ed.
Warner
(1978).
right
inspect
This
S.Ct. 1306
common-law
statutory
public
many
by
has
states
records
been buttressed
In Kansas we have K.S.A. 1979
45-201 which
codification.
provides
pertinent part
as follows:
inspection;
public
open
exceptions;
public
“45-201. Official
records
‘official
defined, (a)
state, counties, municipal-
records’
All official
records of the
ities,
bodies,
districts, commissions,
townships,
agencies
legislative
school
kept
maintained,
by
required
except
law are
records
to be
those
concerning
pursuant
juvenile
proceedings
district
to the
code which shall be
court
open
law, adoption records,
specifically
by
judge
byor
records
unless
closed
children,
by
illegitimate
specifically
by
birth of
and records
closed
law or
law,
open
personal inspection by
directive authorized
shall at
times be
for a
all
citizen,
privilege
charge
and those
of such records shall not refuse this
any citizen.”
stated,
Simply
requires
all
statute
official
records to
open
either
some
judge
unless
closed
statute.
under
statutes
generally
access
been held
the courts to include court records.
v. Warner
Nixon
Communications, Inc.,
597;
435 U.S. at
State v.
Com
Stauffer
Inc.,
munications,
225 Kan.
687 598, Access to A.L.R.3d Public 428-429; at 84 and the annotation Records. State Courts press, to including the court public, the of access of right absolute, court Nixon: as noted
records is not however, inspect copy uncontested, right records is that the to “It is files, supervisory power Every its own records has over not court absolute. might a vehicle for files have become has been denied where court and access improper purposes. . . . of the trial left to the sound discretion as to access is one best “[T]he decision court, light relevant facts and circumstances exercised in a discretion to be pp. particular case.” 598-599. has never Moreover, court records right access to in this state. In proportions right held a of constitutional been Clerk, 301, access of a Warren, right Kan. Boylan v. 39 the court was in the of the clerk of citizen to records office compel statutory. Boylan, In mandamus was issued held be 172, Article open under Section clerk to court records the court present open Our 15, Chapter Compiled Laws of 1885. 25 of above, to be statute, requires official records as noted judge specifically closed opened inspection unless for in State v. Communica recent decision law. our Stauffer 540, power of the tions, Inc., recognized the 225 Kan. this court compel opening public records legislature, documents. restrict access to official public inspection, but also to opinion, the court stated: In the keep may from if wants to general it be said the state rule “As governmental then it must do so publishing to its functions information related Corp. Broadcasting v. confidentiality See Cox
protecting
of the information.
Guarantee,
496, Bezanson,
Virginia L.
Cohn,
63
Press
at
The New Free
420 U.S.
limiting
(1977).
statute. The
some
The state is free to do so absent
Rev. 731
consistently
Amendment nor the
Supreme
‘[n]either
the First
held
Court
government
right
information or
access to
Amendment mandates
Fourteenth
Inc.,
KQED,
government’s
Houchins v.
control.’
within the
of information
sources
589, 609,
Communications, Inc., 435 U.S.
Nixon v. Warner
at 15. See also
438 U.S.
817, 834,
Procunier,
570,
(1978);
41
417 U.S.
Pell v.
Thus, Supreme as well as the Court of the United States, has recognized kept court records scrutiny appropriate under circumstances. In Nixon Warner Communications, Inc., 435 U.S. at cases are holding cited that the public inspection common-law must bow before power of court to insure that its records will not be used “to gratify private spite promote public through scandal” publication of the details publication of divorce case or for the *11 of libelous consumption, statements for or as sources of business information that might competitive harm a litigant’s standing. Nixon states that the decision as to access to court records is one best left to the sound discretion of the trial “a discretion to be exercised in light of the relevant facts and particular circumstances of the p. case.” 599.
The court having recognized the legislative judicial au- thority public to restrict access appro- to official court priate circumstances, it becomes necessary to determine whether restricting access to criminal records after a conviction has been expunged appropriate is an exercise of that authority. To deter- must, mine course, this issue we public balance the inspect judicial and copy criminal records against the legisla- policy tive to expunge criminal lapse records after the of a period considerable of time and after appropriate judicial an proceeding has been recognize, course, conducted. We the importance access to records. Such a right lightly should not be regarded or purposes. restricted for trivial Our task is to determine whether Supp. K.S.A. 1979 21-4619 provides a reasonable restriction on access to certain criminal records which the court uphold. should To do so we carefully must purpose consider the of K.S.A. degree the actually imposes. it restriction Miller,
In State v. 538, 214 Kan. (1974), P.2d 1248 this court considered the underlying purpose of statutes providing for the and expungement annulment of criminal convictions such as provided was for in K.S.A. 1972 Supp. statute, 21-4616. That 1971, applied enacted in only youthful offenders who had not yet age attained the twenty-one years at the time of the 1973, commission of the crime. In legislature the enacted K.S.A. possible the 21-4617 which made twenty-one years age were records of adult offenders who 1978, In the at the of the commission of the crime. older time 21- statute, legislature present the K.S.A. 1979 enacted Miller, In which is now before the court consideration. depth 1971 statute opinion policy discusses in the behind the following language: using law, away past years turning American correctional “Over concept, increasingly vengeance of the individ focused the rehabilitation practices development appropriate to that end. ual of means offender and today It that a criminal record a serious knowledge has become common
handicap against the The con which works rehabilitation of ex-offender. sequences penalties and of a criminal include not conviction formal incidentally imposed by imposed by restrictions law but also collateral sanctions law, society paid imposed by society. Although the criminal offender has his debt stigmatizes Morgan, 346 U.S. him with ex-convict label. United States v. pointed Supreme of the United States 98 L.Ed. S.Ct. Court following language: in the out “ . of a crime is often ‘. . Of course record conviction for serious handicap. ways lifelong who has There are dozen in which even reformed, constantly upright again, lead offended endeavored to an never thereby. reputation may prejudiced at on his time life The stain 519.) job (p. standing opportunities . . .’ his . threaten his social affect problem author in this manner: “One “ describes explicitly which are most troublesome ‘It is not the articulated disabilities reprisals social offender. It is rather the less-direct economic and the reformed adjudicated engendered vagaries criminal. The his brand as *12 persons very past, against little often discriminate with a criminal sentiment offense, severity they frequently distinguish regard and do not for persons acquitted persons con or otherwise released and between arrested and employment, perhaps particularly in the matter This is true vital victed. worth, anything concept his and a man’s of himself and as else influences much (Gough, guide Ex- accordingly his conduct.’ influences the values which Adjudication A Adult Problem pungement Records and of Juvenile Offenders: Status, 153.) U.L.Q. 147 at 1966 Wash. urged Delinquency has a the National Council on Crime and “For over decade country a passage legislation trial to annul to authorize the courts conviction, facilitating living of an thus the return to normal offender. record of may purpose which a model act to achieve this The National Council drafted Delinquency problem 97. along Crime a of the in 8 found with discussion recently Criminal Bar Association Standards for the American “More Justice necessity legislation. Criminal recognized Standards for for have Justice provides relating 4.3 as follows: § Probation “ Every jurisdiction should have method which Criminal record. ‘4.3 following mitigated be avoided or of criminal record can collateral effects probation during completion its service.’ a term on successful advisory committee which drafted this standard stated that it was not as principle concerned with the form which such statutes take as it is with the flexibility system ways should be built into the and that effective should be mitigate devised to the scarlet letter effect of a conviction once the offender has satisfactorily adjusted. Alaska, Arizona, California, including Several states Dela ware, Idaho, Indiana, Minnesota, Michigan, Missouri, Texas, Utah, Jersey, New Washington, Wyoming already progressive legislation enacted aimed at expungement of criminal records and annulment of related convictions. These variety purpose statutes take a wide of forms but all are directed to the basic assisting stigma procedure an ex-offender to overcome the of a criminal record. A setting provided aside a conviction is also in the Federal Youth Corrections Act, 18 U.S.C.A. Immigration 5021. In Mestre Morera v. § United States & Nat. Serv., (1st 1972) purpose Cir. 462 F.2d it is stated that the of that federal youthful statute is to relieve the offender not of the usual disabilities of a conviction, give criminal but also to him a second chance free of a record tainted such conviction. general way may statutes, “In a it be stated that annulment of conviction often statutes, merely called resulting do not lift disabilities from con- rights; they legal viction and restore civil restoring have the effect of the reformed quo existing prior offender to his status to the conviction. We think it clear that youthful K.S.A. 1972 21-4616 was enacted to relieve offenders from the stigma resulting social and economic from criminal convictions and to offer them participate an added incentive society to conform to social norms and to in our without the added burden of a criminal conviction. An annulment of conviction regaining statute is an aid to an dignity ex-offender in his human and self-esteem. legislative recognition It is a understanding fact that ex-offenders need the respect of others—not their scorn and ill will. Such statutes are based on the philosophy again helped fallen men can rise pp. and should be to do so.” 542-544. Miller, pointed provisions we out that the of K.S.A. 1972 permissive 21-4616 were rather mandatory than and that a great amount of discretion was vested the trial court in granting a defendant an annulment of his conviction. We held that the simply provided statute to the district courts of this state an additional tool to be used in the sound discretion of the court as an aid to the rehabilitation of offenders. The granting of an application for the annulment of part convictions was a sentencing process and, hence, function. The 1978 statute, us, now before be distinguished from the 1971 statute in provides that it for the expungement of a conviction rather than the annulment of a Although approach conviction. taken legislature help in the rehabilitation of an offender *13 exactly same, is not essentially the statutes have the same purposes provided convicted criminal with an incentive —the for rehabilitation providing him an avenue he
691 employment deny again gainful later the conviction seek the added of a criminal conviction. without burden providing expungement The Kansas for the of a criminal statute jurisdictions have, unique Other conviction is not state. likewise, legislative as a tool for enacted statutes rehabilitation, apparently chal- criminal without constitutional vary lenge grounds. on First Amendment The individual statutes substantially in toward rather their terms but all are directed types end. States which have of annulment and same enacted expungement of conviction statutes include:
Alaska, (1972). Stat. 12.62.040 Alaska § 43-1231, (first offender), Arkansas Ark. Ann. Stat. §§ (1977).
California, 1203.4, Supp. Cal. Penal Code 1203.4a 1980 §§ (West).
Connecticut, (1979). 54-76p Conn. Gen. Stat. § Georgia, Supp. Ga. Code Ann. 1979 27-2728. § Idaho, (1979). Idaho Code 19-2604 §
Illinois, (Smith Supp. Ill. Ann. Stat. 1979 38 ch. 1005-6-3.1 § Hurd).
Iowa, (West 1979). 907.9 Iowa Code Ann. § Maryland, Supp. Md. Ann. art. 737. Code § Massachusetts, Supp. Mass. Laws Ann. ch. 100A§ (Michie/Law. Co-op).
Minnesota, (West). Supp. Minn. Ann. 1980 364.04 Stat. § Nebraska, (1975). Rev. Neb. Stat. 29-2264 § Nevada, (1973). Rev. 179.245 Nev. Stat. § (West). Jersey, New Stat. Ann. 1979 2A:164-28 § N.J. Ohio, (Page). 2953.32 Ohio Rev. Code Ann. § (1979). Or. 137.225 Oregon, Rev. Stat. § (1979). Pennsylvania, R. Pa. Crim. Proc. Rules 175-185 Carolina, 34-ll-90(e). S.C. South Code § Utah, Utah Code Ann. 77-35-17.5 § considering 21-4619 as a restriction on reasonableness of records, we must consider the
public access to criminal court statutory provisions. It should be noted that practical effect of a criminal conviction 21-4619 restricts disclosure of records of pro- expunged in a after the conviction is ordered (a), involving section in cases misdemeanors or ceeding. Under *14 felonies, may petition convicting D E the offender class or if his two or more expungement court for the conviction imposed elapsed the sentence years have since he either satisfied period parole probation. Under discharged or was after a A, B, (b), serious class or C involving section in cases the more felonies, years five person may petition expungement no until the sentence or elapsed more have since the satisfied or period probation parole. or It is difficult discharged was after deny press any mean- statutory restrictions to see how such judicial proceedings records. The or ingful access to press original sentencing hearing are free to attend the trial or the any post-judgment hearings expungement proceeding or the (c) provides any person might who itself. Section petitioner may testify relevant at the hear- information about opportunity ing. This affords the victim of the crime a full to be present oppose press if If expungement he so desires. representatives to the expungement desires to send one of its hearing, it is free to do so. public’s judicial per-
As to the to observe and evaluate formance, say it would seem reasonable to misconduct of judge particular the trial in a case allowing accurately could be more observed and evaluated at the ex- by laboriously pungement hearing pouring itself rather than past emphasized It must be through again records of cases. fully press that the records are available to the conviction filed, during pretrial all and to at the time the case itself, proceedings, during the trial at the time sentence is im- and, in posed, during post-judgment proceedings, cases of the violence, period more serious for a minimum involving felonies years five after served his sentence or satis- the offender has time, factorily completed probation. all that period During his carry important can providing out its function with information which increase a citizen’s knowl- edge activity prosecutorial about criminal effec- by expungement tiveness or lack are thereof. closed newsworthy as only after the file has become as cold mashed potatoes.
It cannot be denied that the
of criminals is
rehabilitation
legitimate
legislature
concern of the State. The
must be allowed a
that end. We
enacting legislation
broad discretion
to achieve
constitutionality
aof statute
many occasions that the
have held on
in favor of its
be resolved
presumed,
that all doubts must
down, it
that,
may be stricken
validity, and
before the statute
State ex
the constitution.
clearly appear the statute violates
must
(1978);
13, 20,
P.2d 844
Kennedy, 225 Kan.
v.
rel. Schneider
Theis,
determining
In view of the defendant, conclusions reached Arsdale, Dorothy I. Van Clerk of the Sedgwick County District Court, permit directed to inspect the district court records to which access has been denied authority under the of K.S.A. 1979 22-4712. As to those criminal records which have been expunged provisions under the of K.S.A. *16 21-4619, the deny defendant is directed to plaintiffs access to in provisions accordance with the of that statute. We are certain that defendant, the as Clerk of the District Sedgwick County, Court of comply will with the judgment of this necessity court without the issuance of a formal writ of mandamus. Should the is- suance of such writ become necessary at some in time future, application one plaintiffs obtained on to this court. is,
Judgment therefore, entered in favor of the in opinion. accordance with the foregoing J., dissenting part in concurring part: in I McFarland, majority opinion concur with the except as it relates to upholding validity expungement (K.S.A. statute 21- 4619). portion From that of the majority opinion I respectfully dissent.
I believe
K.S.A. 1979
21-4619 is an unreasonable re-
striction on
access to criminal court records. In our mod-
society
ern
relies increasingly
press
keep
on the
to
it
In Sedgwick
in the
transpiring
on what is
courts.
informed
twenty-two
court. The
County
judges
there are
of the district
press obviously
in
at the same time
cannot be
all court divisions
justice.
records of
checking on the administration of
The
greater sig
even
proceedings under such circumstances take on
only
process. Open
court not
news-gathering
nificance
particular
helps
particular parties
litigation,
to
but it also
benefits
keep
justice
the administration of
As was stated
“honest.”
559-60, 49
Stuart,
Press Assn. v.
427 U.S.
L.Ed. 2d
Nebraska
Court,
(1976),
Supreme
judicial administration, especially regard criminal field. in this Its function impressive press is service over centuries. The documented record of several simply publish against guards trials but does not information about the miscar- justice by police, prosecutors, judicial processes riage subjecting ” public scrutiny extensive and criticism.’ majority are states records closed “[t]he newsworthy after the file has become as as cold mashed potatoes.” I do An informed agree. electorate must be performance of elected in order vote intelligently. its officials suppose on his judge challenged granting Let us an incumbent allegation many made ex- expungements. his improvidently granted charge graft were or a pungements procurement legitimate is made. The has a definite their in the “track the statute herein judge’s interest record.” Under procedure press is no which the can check facts—the there subsequent expungement but proceedings can scrutinize Additionally, previous expungements are closed. study analysis precludes meaningful of the records closure utilized, expungement is its effects. being of how circumstances, Although arising factually distinguishable States, 371 F.2d following statement from Welch United Cir.), (1966), significant: (10th denied U.S. 957 cert. *17 justice one-way ap in the is not a street to be “Fairness administration only proached through be an entrance limited to the accused. His cause cannot complete prominence jurors sterility. existing And automated submitted to position special contrary, To the administration of no consideration. deserves justice personal professional judge requires that the conduct of be and, knowledge, scrutiny, proper subject continued concern upon instances, report action. News media not have a authoritative 532, 541, 1628,14 Texas, subject, 2d S.Ct. L.Ed. Estes v. State U.S. denied, rehearing 2d but have 382 U.S. S.Ct. L.Ed. p. professional beyond newsworthy.” duty 291. do so extends term mistakes, bury their but adage is an old that “doctors There statute, may bury some publish judges theirs.” Under judges may a judge how much of their mistakes. No matter recidivism are past among “expungees,” judgment his his errors except gleaned as such buried from the stories, recall, fre- news and other unofficial and human old quently inaccurate sources. my opinion public’s right opera- to be informed justice unreasonably its of criminal re- being
tion of courts stricted K.S.A. 21-4619.