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THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM J. JOURNEY, )
) Court of Appeals No. A-4018
Appellant, ) Trial Court No. 4FY-S89-17CR
)
v. ) O P
I N I O N
)
STATE OF ALASKA, )
) [No. 1293 - April 23, 1993]
Appellee. )
________________________________)
)
STATE OF ALASKA, )
)
Petitioner, ) Court of Appeals No. A-4076
) Trial Court No. 4FA-S88-
2275CR
v. )
)
DAVID JEFFERSON, )
)
Respondent. )
________________________________)
Appeal in A-4018 from the District Court,
Fourth Judicial District, Fairbanks, Charles
Pengilly, Judge. Petition for Review in A-
4076 from the Superior Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: Paul Canarsky, Assistant Public
Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
In these consolidated cases we are asked to consider
the circumstances under which courts may order criminal records
expunged.
FACTS
1. Journey
William Journey was convicted of disorderly conduct
after pleading no contest to the charge; he received a suspended
imposition of sentence and was placed on probation. After
successfully completing his probation, Journey moved to have his
conviction set aside in accordance with the provisions of AS
12.55.085(e).1
At the evidentiary hearing on his motion, Journey
requested District Court Judge Charles Pengilly to expunge all
records relating to his arrest and conviction. Journey asserted
that he had originally understood that his record would be
expunged upon completion of the suspended imposition of sentence;
Journey testified that he had been hampered in attempting to
secure employment because of his arrest record. Judge Pengilly
set aside Journey's conviction but declined to order his record
expunged. The judge concluded that the suspended imposition of
sentence statute did not expressly authorize the court to order
Journey's record expunged and that the court had no inherent
authority to issue such an order. Journey then appealed.
2. Jefferson
David Jefferson was charged with misconduct involving a
controlled substance in the third degree for selling a small
quantity of cocaine to an undercover agent. He moved to suppress
the evidence against him, arguing that the undercover agent's
surreptitious electronic monitoring of the transaction had
violated the requirements of State v. Glass.2 After Jefferson
prevailed on his suppression motion, the state dismissed the
charge.
More than two years later, Jefferson moved to expunge
all records relating to the arrest and charge. At an evidentiary
hearing, he testified that his arrest record had hampered his
efforts to secure employment.
In addressing Jefferson's motion to expunge, Superior
Court Judge Mary E. Greene initially determined that sentencing
courts have inherent authority "to take action to remove
materials from a person's criminal record, and I don't think
there's any separation of powers problem." The judge next found
that computer-generated arrest records can work hardship and
unfairness because they are confusing and potentially misleading
when interpreted by employers and other members of the public.
Thus, in Judge Greene's view, the central question in
Jefferson's case was: "When does it become so unfair that the
court should exercise [its] inherent power?" In answer to this
question, the judge reasoned that, because Jefferson's case had
been dismissed as the result of a violation of his constitutional
rights, it was "an appropriate case to expunge the arrest record
for the dangerous drugs in so far as law enforcement and the
public are concerned."
The state petitioned this court to review Judge
Greene's decision. We granted the petition and ordered
Jefferson's case consolidated with Journey's appeal.
DISCUSSION
The issue presented in these cases is one of first
impression for Alaska. In their briefing on the issue, the
parties agree that no Alaska statute, rule, or judicial decision
expressly vests sentencing courts with the power to expunge
criminal records; nor is the exercise of such power expressly
prohibited. For this reason, the parties concentrate their
arguments on inherent judicial authority to order records
expunged.
In our view, however, this case requires no definitive
resolution of the inherent authority issue. Even assuming that
Alaska courts have inherent power to order criminal records
expunged, we believe that this power could not properly be
exercised in Journey's or Jefferson's case.
Decisions dealing with various forms of request to
expunge criminal records are plentiful and reach diverse results.3
In states whose statutes do not expressly grant the power, a few
courts have flatly declined to find inherent judicial authority
to expunge criminal records, deeming the subject to fall within
the sole province of the legislative and executive branches.
See, e.g., State v. Gilkinson, 790 P.2d 1247 (Wash. App. 1990);
Billis v. State, 800 P.2d 401 (Wyo. 1990). But see Eddy v.
Moore, 487 P.2d 211 (Wash. App. 1971).
Many courts, however, have tended toward a more
flexible approach, finding power to expunge when a constitutional
right of the arrestee (typically the right to privacy) is shown
to outweigh the public's interest in retaining the disputed
records. See, e.g., Davidson v. Dill, 503 P.2d 157 (Colo.
1972)(en banc).4
Other courts have deemed this balancing approach
unnecessary, finding that existing statutory or regulatory
provisions restricting the use and dissemination of criminal
records adequate-ly protected the right to privacy. See, e.g.,
Loder v. Municipal Court, 553 P.2d 624 (Cal. 1976). Courts in
this category have nevertheless acknowledged inherent authority
to expunge records in exceptional cases, when necessary to
prevent or avoid constitution-al violations. See, e.g., Springer
v. State, 621 P.2d 1213, 1219 (Or. App. 1981).
Federal courts have uniformly claimed inherent power to
expunge criminal records, but have tempered their claim with the
recognition that this power should only be used to preserve basic
legal rights in extraordinary circumstances.5 These courts have
consistently proclaimed that the power to expunge is "a narrow
one, [which] should not be routinely used whenever a criminal
prosecution ends in acquittal, but should be reserved for the
unusual or extreme case." United States v. Linn, 513 F.2d at
925, 927 (10th Cir. 1975).
The types of exceptional circumstances in which the
federal courts have found it appropriate to expunge records have
included the case of an arrest that was made solely on the basis
of the arrestee's status, see Sullivan v. Murphy, 478 F.2d 938,
968-69 (D.C. Cir. 1973), an arrest that was made under an
unconstitutional statute, see Kowell v. United States, 53 F.R.D.
211, 213-14 (W.D.Mich. 1971), arrests that were made for the
purpose of harassment or intimidation, or that resulted from
entrapment, see United States v. McLeod, 385 F.2d 734, 750 (5th
Cir. 1967), and a purported arrest that was shown never to have
actually been made, see Menard v. Saxbe, 498 F.2d 1017, 1019
(D.C. Cir. 1974).
Few of the decisions finding inherent authority to
order records expunged pinpoint the source from which this power
arises. On the whole, they suggest that the power to expunge
inheres either in the court's expressly conferred authority to
preside over trials and sentencings in criminal cases or in its
traditional role as enforcer of constitutional guarantees.
No matter what theoretical source of power they base
their decisions on, however, courts finding inherent judicial
authority to expunge criminal records make it clear that this
power -- arising, as does all inherent judicial authority, from
necessity -- should be sparingly used. Notably, no court has
seriously questioned the legitimacy or importance of the
government's interest in obtaining and retaining records dealing
with individuals who pass through our criminal justice system;
none has viewed inherent judicial authority to expunge as a power
to be used routinely; and none has suggested that the
government's interest in maintaining accurate criminal histories
can be outweighed by an individual's right to privacy in any but
exceptional circumstances.
For present purposes it is sufficient to observe that
neither Journey's nor Jefferson's case presents the type of
exceptional circumstances that could conceivably warrant a
discretionary exercise of inherent judicial authority to expunge.
This conclusion follows regardless of whether we analyze
Journey's and Jefferson's cases on the assumption that inherent
authority to expunge emanates from the trial court's statutory
jurisdiction to hear criminal cases or from its duty to enforce
constitutional guarantees.
We turn first to the issue of whether an order to
expunge might have been justified in Journey's and Jefferson's
cases by inherent authority arising from the trial court's
general power to preside over criminal cases.
Journey was convicted of disorderly conduct after
pleading no contest to the charge. Although Journey received a
suspended imposition of sentence and had his conviction set aside
after he successfully completed his assigned period of probation,
he has never established his factual innocence or formally chal
lenged the validity of the conviction or the legitimacy of the
underlying arrest.
Journey asserted below that he expected his criminal
record to be expunged when he completed his probation. But this
expectation was evidently neither engendered nor fostered by the
state; it reflects, at most, Journey's misunderstanding of the
suspended imposition of sentence statute, which offers no such
relief. If Journey believed that he entered an uninformed plea
of no contest based on his mistaken understanding of the law, he
could have requested that his plea be withdrawn. His mistaken
expectation afforded him no basis for an order expunging his
record.
Jefferson stands on somewhat different footing than
Journey. Jefferson was never convicted; his charge was dismissed
after the superior court found that the state had obtained
evidence in violation of the limitations of a Glass warrant.
Nevertheless, the primary purpose of the exclusionary rule that
mandated the dismissal of Jefferson's case -- deterrence of
unlawful police conduct -- was wholly unrelated to the fairness
of the prosecution. The dismissal implicated neither the
validity of the substantive information upon which Jefferson's
charge was brought nor the fundamental fairness of the charges
against him. Cf. Moreau v. State, 588 P.2d 275, 280 (Alaska
1978).
While the deterrent purpose of the exclusionary rule
justified the suppression order that led to dismissal, the same
rationale cannot justify an order expunging Jefferson's arrest
record, since the incremental effect of the additional sanction
would at most be negligible. Cf. Waring v. State, 670 P.2d 357,
362 (Alaska 1983). Nor does the constitutional violation in
Jefferson's case involve the type of flagrant, shocking, or
deliberate misconduct that might require corrective measures
beyond the usual remedy of suppression. Id. at 362-63. In
similar situations, courts holding themselves inherently
empowered to expunge criminal records have recognized that an
order to expunge cannot be justified. See United States v.
Bagley, 899 F.2d 707, 708 (8th Cir. 1990).
In short, whatever inherent authority to expunge
criminal records Alaska courts might possess by virtue of their
expressly granted powers to preside over criminal cases,
invocation of that authority would have amounted to an abuse of
discretion in the specific circumstances of Journey's and
Jefferson's cases.
We turn next to the question of whether the court's
inherent power to enforce constitutional guarantees might have
justified ordering Journey's or Jefferson's record expunged.
Journey and Jefferson insist that the issuance of
orders to expunge in their cases can be justified by the need to
enforce the Alaska Constitution's guarantees of liberty, privacy,
and due process of law.6 They allege that they have encountered
difficulty with potential employers who had access to their
arrest records. Both also assert that the records are
potentially misleading, and they complain that, under Alaska law,
no procedures have been enacted to protect them against
inaccuracy or against the inappropriate dissemination of their
records.
Citing State Department of Revenue v. Oliver, 636 P.2d
1156, 1167 (Alaska 1981), Journey and Jefferson maintain that the
state must shoulder the burden of showing a compelling interest
in the retention of criminal records that outweighs the harm they
have suffered. We find this argument unpersuasive in its current
context.
Oliver established a balancing test for enforcement of
the right to privacy in the context of a governmental effort to
obtain information from potential taxpayers to determine their
liability under the Alaska's income tax laws. The taxpayers'
case disputed the government's authority to obtain the
information, which was exclusively in their possession in the
form of financial records and other personal documents.
By contrast, in the present case, the propriety of the
state's having initially obtained and retained information
relating to Journey's and Jefferson's criminal histories is
undisputed and, we think, indisputable. Journey and Jefferson
have cited no precedent questioning -- on constitutional grounds
or otherwise -- the state's authority to obtain and retain
information relating to individuals lawfully brought before the
courts to answer to criminal charges. Indeed, the complaints
Journey and Jefferson voice relate not to the obtaining or
retention of such information, but rather to its potential misuse
and unwarranted dissemination. It is of course readily
conceivable that actual or potential misuse of criminal records
could, in some cases, pose a sufficient threat to the
constitutional guarantees of liberty, privacy, or due process to
require intervention by the courts, either on behalf of an
individual or a class of individuals. It is also arguable that,
under certain circumstances, an order expunging criminal records
might be appropriate to prevent or remedy a violation of these
rights, even though the disputed records were properly obtained
and retained in the first instance.7
However, in such cases, because the need to avoid or
remedy a constitutional violation is the source of the court's
power to expunge, no order expunging records would be justified
absent proof that a constitutional violation had actually
occurred or was threatened. Moreover, even upon proof of a past
or imminent constitutional violation, an order to expunge would
be justified only upon a further showing that less drastic
remedies -- such as limiting, regulating, or enjoining misuse or
improper dissemination of the disputed criminal records -- could
not cure or prevent the threatened harm.
Neither Journey nor Jefferson made any such showings.
At most, they advanced speculative testimony, based on
supposition or hearsay, suggesting possible misuse or unwarranted
dissemination of their criminal records.
In any event, the proper forum for cases like the
present ones -- which advance claims of misuse or inappropriate
dissemination of criminal records but do not call into question
the validity of the original prosecution or the legitimacy of the
state's right to obtain the disputed information in the first
instance -- would appear to be a separate civil action against
the state. Even assuming the existence of inherent judicial
power to expunge as a remedy for a claimed constitutional
violation stemming from misuse or inappropriate dissemination of
criminal records, it is entirely unclear, as a procedural and
jurisdictional matter, how such a claim could be properly raised
and entertained in the procedural context of a previously-filed
criminal case -- especially a closed criminal case.
Beyond questions of procedure and jurisdiction, sound
policy, too, would appear to dictate requiring the assertion of
such a claim in a separate civil action -- a more formal and
structured procedural setting in which the respective burdens of
the parties are clearly defined, all relevant factual and legal
issues can be fully developed and explored, and a wide array of
potential remedies will be available to the court.
CONCLUSION
In the present cases, we conclude that Judge Pengilly
did not err in denying Journey's request to expunge his criminal
record. We further conclude that Judge Greene erred in ordering
Jefferson's record expunged. Accordingly, the court's order as
to Journey is AFFIRMED; the court's order as to Jefferson is
REVERSED.
_______________________________
1. AS 12.55.085(e) provides that when a person
successfully completes probation after receiving a suspended
imposition of sentence, "the court may set aside the conviction
and issue to the person a certificate to that effect."
2. State v. Glass, 583 P.2d 872, 881 (Alaska 1978), aff'd
on reh'g, 596 P.2d 10 (1979).
3. For a voluminous review of cases on the subject, see
Vitauts M. Gulbis, Annotation, Judicial Expunction of Criminal
Record of Convicted Adult, 11 A.L.R.4th 956 (1982); Deborah
Sprenger, Annotation, Expunction of Federal Arrest Records in
Absence of Conviction, 97 A.L.R. Fed. 652 (1990); and Gary D.
Spivey, Annotation, Right of Exonerated Arrestee to Have
Fingerprints, Photographs, or Other Criminal Identification or
Arrest Records Expunged or Restricted, 46 A.L.R.3d 900 (1972).
4. The court in Davidson v. Dill adopted the following
balancing test:
[A] court should expunge an arrest record or
order its return when the harm to the
individual's right of privacy or dangers of
unwarranted adverse consequences outweigh the
public interest in retaining the records in
police files.
503 P.2d 157, 161 (Colo. 1972)(en banc).
5. See, e.g., United States v. Schnitzer, 567 F.2d 536,
538 (2d Cir. 1977), cert. denied, 435 U.S. 907 (1978); Morrow v.
District of Columbia, 417 F.2d 728, 740 (D.C. Cir. 1969); United
States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975); Menard v.
Saxbe, 498 F.2d 1017, 1023 (D.C. Cir. 1974); United States v.
McMains, 540 F.2d 387, 389 (8th Cir. 1976); Natwig v. Webster,
562 F.Supp. 225, 227 (D.R.I. 1983); United States v. Bohr, 406
F.Supp. 1218, 1219 (E.D.Wisc. 1976).
6. Article 1, section 1 of the Alaska Constitution
guarantees "that all persons have a natural right to life,
liberty, the pursuit of happiness, and the enjoyment of the
rewards of their own industry[.]"
Article 1, section 22 of the Alaska Constitution
provides that the "right of the people to privacy is recognized
and shall not be infringed."
Article 1, section 7 of the Alaska Constitution states:
No person shall be deprived of life, liberty,
or property, without due process of law. The
right of all persons to fair and just treat
ment in the course of legislative or
executive investigations shall not be
infringed.
7. Cf. Davidson v. Dill, 503 P.2d 157, 159, 161 (Colo.
1972) (espousing a balancing test for a situation involving an
individual who had been arrested for and was subsequently
acquitted of loitering).
