417 F.2d 728 (D.C. Cir. 1969), 22126, Morrow v. District of Columbia

Docket Nº:22126, 22131.
Citation:417 F.2d 728
Party Name:Don MORROW, Appellant, v. DISTRICT OF COLUMBIA, Appellee. In the Matter of Harry T. ALEXANDER, Judge, District of Columbia Court of General Sessions.
Case Date:April 18, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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417 F.2d 728 (D.C. Cir. 1969)

Don MORROW, Appellant,

v.

DISTRICT OF COLUMBIA, Appellee. In the Matter of Harry T. ALEXANDER, Judge, District of Columbia Court of General Sessions.

Nos. 22126, 22131.

United States Court of Appeals, District of Columbia Circuit.

April 18, 1969

Argued Feb. 14, 1969.

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Mr. Ralph J. Temple, Washington, D.C., for appellant in No. 22, 126.

Mr. Frank D. Reeves, Washington, D.C., for appellant in No. 22, 131.

Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellee.

Before PRETTYMAN, Senior Circuit Judge, and WRIGHT and TAMM, Circuit judges.

J. SKELLY WRIGHT, Circuit Judge:

This case presents a somewhat tangled series of novel questions concerning the power of the District of Columbia Court of Appeals to restrain the District of Columbia Court of General Sessions from issuing orders outside its jurisdiction, and the jurisdiction of the Court of General Sessions to issue orders prohibiting the dissemination of police records regarding the arrests of persons tried in the Criminal Division of that court. A detailed chronology of the events is necessary to an understanding of these questions.

On August 30, 1967, Don Morrow was arrested and charged with disorderly conduct for swearing at a police officer. 22 D.C.CODE 1107 (1967). On September 25, 1967, the Corporation Counsel of the District of Columbia brought him to trial in the Criminal Division of the Court of General Sessions, Judge Alexander presiding. Judge Alexander ordered that the case be dismissed because prosecutions under that section of the code can only be brought by the United States Attorney. 1 The Corporation Counsel did not appeal from this dismissal, and the United States Attorney did not seek to prosecute Morrow.

When Judge Alexander ordered the case dismissed, Morrow immediately moved for an order requiring that the record of his arrest in that case be expunged from Police Department files. Judge Alexander issued an oral order instructing the Corporation Counsel not to 'disseminate the information pertaining' to Morrow's arrest. 2 The District did not attempt to appeal this order. A month later, on October 26, 1967, the Corporation Counsel requested Judge Alexander to reduce his order to writing. Judge Alexander complied, issuing an order prohibiting the Police Department and other agents of the District from disseminating to anyone, including other law enforcement agencies, the record of Morrow's arrest in the disorderly conduct case. 3 The District made no attempt to appeal from this written order.

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Shortly after this order was entered the Duncan Report 4 was published. This report was the result of a study of the use of arrest records by employers ordered by the District of Columbia Board of Commissioners; Charles T. Duncan, Corporation Counsel for the District, was appointed chairman of the committee to make the study. The Report found that the use of arrest records by prospective employers was widespread, and the consequences of a person having been arrested, even if the charges were subsequently dismissed, were severe. The Report recommended that the Commissioners adopt rules prohibiting the dissemination to employers of records of arrests where no conviction resulted. The Report also recommended, however, that complete arrest records should be disseminated to law enforcement agencies. On November 2, 1967, the Commissioners adopted virtually all of the Report's recommendations, and the recommendations became law 90 days later. 5

Once the Duncan Report was issued and adopted by the Commissioners, the Corporation Counsel, on November 30, 1967, moved Judge Alexander to amend his original order by limiting it in scope to the Duncan Report (the main change would thus be that the record of Morrow's arrest in this case could be disseminated to other law enforcement agencies). Morrow opposed this motion, and moved to have the order extended to require a physical expunging of the arrest record. Morrow also moved for a subpoena duces tecum against the appropriate police official to produce certain records to determine whether the Police Department was complying with Judge Alexander's order.

Judge Alexander denied the District's motion to amend the order, and he issued the subpoena and set a date for a hearing on compliance. The hearing commenced on January 30, 1968. At the beginning of the hearing the District moved to quash the subpoena and also moved to have the order vacated, claiming that the Court of General Sessions had no ancillary jurisdiction to issue any order regarding the dissemination of arrest records. 6 Judge Alexander denied these motions and the hearing began. The police official was questioned extensively about general procedures regarding dissemination of arrest records. The questioning lasted until 10:30 P.M. The hearing was then recessed until February 1, 1968.

At this point the Corporation Counsel moved in the District of Columbia Court of Appeals for an order of mandamus and writ of prohibition; the mandamus was to require Judge Alexander to vacate his order, the writ of prohibition was to restrain him from continuing the hearing or engaging in any other proceedings pursuant to his order. The D.C. Court of Appeals immediately issued, ex parte, a temporary restraining order prohibiting Judge Alexander from proceeding with the hearing while the D.C. Court of Appeals considered the motion for mandamus and prohibition. Morrow was allowed to intervene in the subsequent proceedings in the D.C. Court of Appeals.

On July 8, 1968, the D.C. Court of Appeals issued its decision. In the Matter of Alexander, 243 A.2d 901 (1968). It held that it had the power to issue

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extraordinary writs and that mandamus and prohibition were appropriate in this case because the Court of General Sessions did not have any ancillary jurisdiction in a criminal case to issue orders prohibiting dissemination of arrest records. The D.C. Court of Appeals issued the writs, ordering Judge Alexander to vacate his order.

Judge Alexander and Morrow then petitioned this court to exercise its discretion to grant an appeal from the D.C. Court of Appeals. 7 We did so on September 26, 1968. In his argument to this court Judge Alexander took the position that the D.C. Court of Appeals had no power to issue mandamus or prohibition. He also argued that, assuming such a power, it was inappropriate here. Morrow argued that the D.C. Court of Appeals was wrong on the merits in that Judge Alexander's order was bottomed on proper jurisdiction. The Corporation Counsel conceded before this court that the Court of General Sessions may have some ancillary equitable jurisdiction to issue protective orders in cases before it, but argued that that jurisdiction does not extend to any order regarding dissemination of arrest records; therefore the mandamus and writ of prohibition were proper. We have never previously ruled on any of these issues.

We hold: (1) the D.C. Court of Appeals does have power to issue extraordinary writs in supervision of the Court of General Sessions; (2) while normally orders such as Judge Alexander's will be appealable, in this case it was appropriate for the Corporation Counsel to seek, and the D.C. Court of Appeals to act upon, a petition for mandamus and writ of prohibition; and (3) the Court of General Sessions does have ancillary jurisdiction in a criminal case to issue protective orders regarding dissemination of arrest records. Accordingly, we reverse the D.C. Court of Appeals insofar as its decision was rested on the conclusion that no such jurisdiction existed in the Court of General Sessions. 8 However, we do not decide the substantial issue of the proper limits of such an order. Since Judge Alexander denied the Corporation Counsel's motion to amend the scope of his order, and since the D.C. Court of Appeals did not reach this issue, we remand to the D.C. Court of Appeals. 9

I 10

The writs of prohibition and mandamus are part of the general class of prerogative or extraordinary writs. The arcane origins of the prerogative

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writs lie within the old common law, where 'at a remote date in England these writs were issued by the exercise of the royal prerogative.' 11 The writs include, inter alia, certiorari, injunction, habeas corpus, mandamus, ne exeat, prohibition, and quo warranto. 12 The function of the writs is varied; in general they are issued in special circumstances to aid in the jurisdiction of a court when normal relief would be unavailing. The prerogative writs are thus means to effectuate a court's jurisdiction; the writs by themselves cannot confer jurisdiction. 13

Frequently the writs are considered to be tools inherent in an appellate court's power to supervise a lower court. 14 This is so especially when the lower court is felt to be exceeding its jurisdiction. The writ of prohibition in particular often serves this function. Thus '(the writ of prohibition's) principal purpose at the present time is to prevent an encroachment, excess, usurpation, or assumption of jurisdiction on the part of an inferior court or tribunal * * *.' 15

Mandamus is often issued by a court against some public official compelling him to perform a ministerial duty. 16 However, it has also been used by a higher court to compel certain positive action by a lower court:

'The traditional use of the writ (of mandamus) in aid of appellate jurisdiction both at common law and in the federal courts has been to * * *...

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