EE-1-I&J-143
CHARLES R. GARRY, esq.
GARRY, DREYFUS, MCTERNAN, BROTSKY, HERNDON, & PESONEN, INC.
1256 Market Street
San Francisco, California 94102
Tel: 864-3131
Attorneys for Defendant
IN THE MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
THE PEOPLE OF THE STATE OF CALIFORNIA, plaintiff
Vs.
JAMES WARREN JONES, Defendant
NO. 31464943
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO VACATE ORDER SEALING RECORDS
I
THE COURT ACTED WITHIN ITS AUTHORITY IN ORDERING THE RECORDS IN THIS CASE SEALED AND DESTROYED.
“The principle is well established that a court may order the expungement of records, including arrest records, when that remedy is necessary and appropriate in order to preserve basic legal rights.”
Sullivan v. Murphy, 478 F.2d 938 at 968 (C.A.D.C., 1973).
Plaintiff is simply wrong in his assertion that the order sealing these records is void on its face because it does not come within the provisions of Penal Code Sections 851.7 and
—–
2
1203.45 or Welfare & Institutions Code Section 71.
The Court never claimed to be sealing the records under the authority of the provisions cited by plaintiff, as becomes immediately apparent upon examination of Exhibit 1 to plaintiff’s Points and Authorities in Support of the Motion to Vacate. This document, entitled “Disposition of Arrest and Court Action[“], has a section at the bottom where action subsequent to the dismissal is recorded. Under the category of “record sealed” there are four boxes, three of which indicate that the record was sealed pursuant to the provisions cited by plaintiff. The fourth box, and the one checked on this document, indicates that the record was sealed for other reasons.
There are many cases where records have been sealed for reasons other than the application of a specific legislative provision. The most common situation in which this occurs is when “the continued existence of the records may seriously and unjustifiably serve to impair fundamental rights of the persons to whom they relate.” Wilson v. Webster, 467 F.2d 1282 at 1283-284 (9th Cir. 1972).
In Wilson the Court held that the District Court had been wrong in refusing to hear the plaintiffs’ plea to have arrest records sealed, though there was no apparent statutory authority for stealing the records. The Court stated at page 1284.
“The plaintiffs’ allegations, [of violation of their civil rights by the county sheriff and other county officers] in our opinion, were sufficient to tender an issue and to require a full inquiry.”
—–
3
See also Hughes v. Rizzo (E.D.Pa. 1968) 282 F.Supp. 881, 885; Sullivan v. Murphy, supra.
Since the records have been sealed by court order, this Court does not have before all of the facts and circumstances which Judge Stomwell considered when he ordered the records closed. What we do know is that there was no evidence of any violation of the law. (See Exhibit 4 of plaintiff’s memo.) We also know that James Jones is, and was at the time of his arrest, a political and religious leader whose activities have gained him various enemies. But at this point, four years later, the Court can only speculate as to why this man was arrested when there was no evidence of any violation of the law.
Under these circumstances, the Court certainly cannot rule out the possibility that Judge Stomwell found it necessary to seal these records to protect fundamental rights of James Jones. In fact, all indications point to exactly that conclusion. Thus, neither the order itself nor the limited authority we have indicate that the Court acted without authority.
The cases cited by plaintiff in support of his argument that the Court is without power to seal records in the absence of statutory authority are inapplicable to this situation. Both cases arose in the context of petitioners seeking a writ of mandate ordering the lower court to seal their records, thus requiring not only authority, but a duty of the lower courts to seals the records. See McMahon v. Municipal Court, 6 Cal.App.3d 194, 85 Cal.Rptr. 782 (1970) and Loder v. Municipal Court, 17 Cal.App.3d 859, 132 Cal.Rptr. 464
—–
4
53 P.2d 624 (1976).
Furthermore, in Loder, supra, after stating that there was no legislative authority to seal the records, the Court went on to consider the constitutional arguments made by the plaintiff in support of his plea to have the record sealed. Though plaintiff’s arguments are ultimately rejected in that case, the Court’s consideration thereof makes it clear that the Courts are empowered to seal records for reasons other than specific statutory authority. The Court can only guess as to what these reasons may have been in the case of Mr. Jones’s arrest.
II
TO UNSEAL THE RECORDS IN THIS CASE WOULD BE AN UNCONSTITUTIONAL INVASION OF JAMES JONES’S RIGHT TO PRIVACY.
Article 1, Section 1 of the California Constitution guarantees all people the right to privacy. The scope and significance of this right is described in White v. Davis, 13 C.3d 757 at 774, 120 Cal.Rptr. 94, 533 P.2d 222 (1975) as follows:
“Fundamental to our privacy is the ability to control circulation of personal information. This is essential to social relationships and personal freedom. The proliferation of government records over which we have no control limits our ability to control our personal lives.”
To unseal the records of Mr. Jones’s arrest would be a gross infringement of this right.
The well-established test of whether there has been an invasion of the right to privacy is whether or not a person’s personal and objectively reasonable expectation of privacy has
—–
5
been infringed by unreasonable governmental intrusion. Armenta v. Superior Court of Santa Barbara County, 61 C.A.3d 584, 132 Cal.Rptr. 586 (1976); Jacobs v. Superior Court 36 C.A.3d 489 at 493-494, 111 Cal.Rptr. 449 (1973).
In applying this test the Court must take into account the totality of facts and circumstances involved in the context of each case. Jacobs, supra.
In this case, the records were sealed and ordered destroyed by court order on February 1, 1974. It was certainly reasonable for Mr. Jones to assume that the Court acted within its power in making such an order. Thus, his personal and objectively reasonable expectation was that the records would be destroyed, or at least, would remain sealed.
Nearly four years went by during which Mr. Jones believed himself to be safe from any danger that this matter would be reopened. He had been harassed and malign by the Los Angeles Police Department and the City Attorney, who arrested and filed a complaint against him though there was no evidence of any violation of the law. (See Exhibit 4 of plaintiff’s memo.) He could never be made completely whole for the damage caused by this arrest. But to the extent possible within the judicial system he had, he thought, at least been protected from future harm arising from the same incident. Four years later the Attorney General wishes to destroy that protection by reopening these records.
Any incursion into individual privacy must be justified by a compelling state interest. White v. Davis, supra. In the
—–
5
plaintiff’s memo, he points to no interest of the government, compelling or otherwise, in reopening these records. Under these circumstances, the State in fact has no legitimate interest, compelling or otherwise, in reopening the records.
This case differs from Loder, supra. and the cases on which Loder relies in holding that the government does not violate an arrestee’s right to privacy by retaining records of arrest for limited purposes.
None of the various governmental uses of arrest records, which in combination amounted to a substantial governmental interest in that case, applied to the records of Mr. Jones. These legitimate uses of arrest records were to identify a defendant, to facilitate prompt and public reporting of facts, and to aid various officials in making decisions about exercising discretion with regard to the arrestee in the future. None of these uses would be reasonable legitimate four years after the arrest when the complaint was dismissed and the records were sealed because there was no evidence of any violation of the law.
Further evidence that there is no compelling state interest in this case is that Judge Stomwell, who was aware of all of the circumstances of the case when he ordered the records sealed, was obviously convinced that the government had no legitimate and/or compelling interest in these records. Otherwise, he would not have orbited and sealed in the first place. Since the records have been sealed, it is impossible to re-create the precise set of
—–
7
circumstances with which Judge Stomwell was faced when he made this decision. We must assume, however, that he was aware of the various purposes to which such records are put. Nevertheless, he ordered that the records be sealed and destroyed.
Another distinction between this case and others involving arrest records is that here the arrestee was given governmental assurance, in the form of a court order, that these records will be forever sealed and destroyed. The arrestees in other cases did not have such an order, and thus had no reason to expect that their records would be sealed. In reliance on the court’s order Mr. Jones did not pursue the matter further nor try to vindicate himself in any way. He brought no suits charging illegal arrest, false imprisonment, abuse of process, harassment or malicious prosecution. He made no public charges against any of the city officials involved. He did not insist on a trial which would establish his innocence conclusively. Ironically, had he proceeded to trial, been acquainted and been found factually innocent, he would now be eligible to have his records sealed pursuant to Penal Code Section 851.8. Had he pursued any of these actions, he might now be protected from the damage that could result from the reopening of his record. This failure to further protect himself it is an objective manifestation of his personal and objectively reasonable expectation of privacy in this matter.
Conclusion
The order sealing the records relating to Mr. Jones’s arrest it is not void on his face and thus cannot be vacated now.
—–
8
There is nothing in the record that indicates the Judge acted beyond the scope of his authority in ordering the records sealed. Furthermore, to unseal the records at this time would be an unreasonable and unconstitutional invasion of Mr. Jones’s right to privacy, protected by Article 1, Section 1 of the California Constitution.
Dated: December 5, 1977
Respectfully submitted,
GARRY, DREYFUS, MCTERNAN, BROTSKY, HERNDON, & PESONEN, INC.
By /s/ CHARLES R. GARRY
CHARLES R. GARRY
—–
PROOF OF SERVICE BY MAIL
I am a citizen of the United States; my business address is 1256 Market Street at Civic Center, San Francisco 94102. I am employed in the City and County of San Francisco, where this mailing occurs; I am over the age of 18 years and not a party to the within cause. I served the within
Points and Authorities in Opposition to Motion to Vacate Order Sealing Records
on the following person(s) on the date set forth below, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mailbox at San Francisco, California, addressed as follows:
Evelle J. Younger, Attorney General
Jack R. Winkler, Chief Assistant
Attorney General-Criminal DivisionS. Clark Moore,
Assistant Attorney GeneralWilliam R. Pounders
Deputy Attorney GeneralMichael Nash
Deputy Attorney General
800 Tishman Building
3580 Wilshire Boulevard
Los Angeles, CA 90010
I certify or declare under penalty of perjury that the foregoing is true and correct. Executed on December 5, 1977 at San Francisco, California.
Susan Richartz
Signature
– —-