Harrison v. Norris

• Decision Date: 31 October 1990
• Docket Number: No. 21677-CA,21677-CA
• Citation: 569 So.2d 585
• Parties: J.B. HARRISON, Jr., Plaintiff-Appellant, v. James A. NORRIS, Jr., District Attorney, Defendant-Appellee. 569 So.2d 585
• Court: Court of Appeal of Louisiana — District of US

Page 585

569 So.2d 585

J.B. HARRISON, Jr., Plaintiff-Appellant, v. James A. NORRIS, Jr., District Attorney Defendant-Appellee.

No. 21677-CA.

569 So.2d 585

Court of Appeal of Louisiana, Second Circuit.

Oct. 31, 1990.

Writ Denied Dec. 14, 1990.

Jones & Johnson by Neal G. Johnson, Monroe, for plaintiff-appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, James A. Norris, Jr., Dist. Atty., Lee E. Ineichen, Asst. Dist. Atty., Monroe, for defendant-appellee.

Before MARVIN, C.J., FRED W. JONES, Jr., SEXTON and HIGHTOWER, JJ., and LOWE, J. Pro Tem.

MARVIN, Chief Judge.

After a reargument, as mandated by LSA-Const. Art. 5, Sec. 8(B), in this appeal arising out of a mandamus action under the Public Records Act to compel the district attorney to permit Harrison, a convicted felon, to inspect and obtain a copy of the prosecution records upon which the State relied for conviction, we reverse the trial court's judgment and render a judgment in favor of Harrison enforcing the Public Records law. LRS 44:1 et seq.; LSA-Const. Art. 12, Sec. 3.

Relying on Bizal v. Connick, 489 So.2d 343 (La.App. 4th Cir.1986), writ denied, and because Harrison stated his intent to seek post-conviction relief, the DA contends his records are not public records subject to disclosure under the express provisions of LRS 44:3 A(1) because his records pertain to "criminal litigation" that is either "pending" or "reasonably anticipated."

The DA relies solely on Sec. 3 A(1) and does not assert that his records are otherwise privileged or protected against public access because they contain "confidential" or "internal security" materials contemplated by Sec. 3 A(2) and (3). We emphasize and here edit and reproduce Sec. 3 A:

A. Nothing in this Chapter shall be construed to require disclosure of records, or the information contained therein, held by the offices of ... district attorneys, ... which records are:

(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled; or

(2) Records containing the identity of a confidential source of information ... or (3) Records containing security procedures, ... or internal security information; or

(4) The records of the arrest of a person until a final judgment of conviction or the acceptance of a plea of guilty by a court of competent jurisdiction....

(5) Records containing the identity of an undercover police officer ... or

(6) Records concerning status offenders as defined in the Code of Juvenile Procedure.

In accord with the standards of LRS 1:1 et seq., we interpret the PR Act to determine the meaning of the terms "criminal litigation" [that is] "finally adjudicated or otherwise settled," and to determine whether a threatened or instituted PCR action constitutes criminal litigation that is "pending" or "reasonably anticipated" so as to make the DA's prosecution record "privileged" against or not subject to public access.

We distinguish Bizal, supra. Rendering judgment for Harrison, we hold that a PCR action under CCrP Arts. 924 et seq., whether threatened or instituted, is not "criminal litigation" contemplated by LRS 44:3 A(1) so as to render the records upon which the DA relied for a conviction inaccessible or "privileged" against inspection by the PR Act. We do not decide what DA records pertaining to criminal litigation may be otherwise privileged from disclosure under LRS 44:3 A(2), as "confidential," or A(3) as "internal security" records.

FACTS

Harrison was convicted of several crimes, including forgery, and was sentenced to 20 years at hard labor and fined a total of $113,000. His convictions and sentences, which were appealed, became final and he began serving his sentence. State v. Harrison, 505 So.2d 783 (La.App. 2d Cir.1987), writ denied. CCrP Art. 922.

Harrison was thereafter convicted of related crimes in federal court and was given sentences to run concurrently with the state sentences. His habeas corpus action filed in federal court in 1988 was dismissed in February 1989 without prejudice because he had not pursued or exhausted PCR remedies in the state court. See 28 U.S.C. Sec. 2254.

Harrison hired new counsel, Johnson, who obtained permission on August 11, 1989, as directed by the PR Act, to inspect materials in the DA files upon which Harrison was convicted. During the course of his inspection, Johnson stated Harrison's intent to institute a PCR proceeding, whereupon the DA terminated the inspection, announcing that the files were considered "open and pending" in anticipation of Harrison seeking PCR.

Harrison instituted his mandamus action to enforce the PR Act on August 25. On September 1, 1989, he instituted his PCR action in the same court. The facts summarized above were stipulated to the trial court which rejected Harrison's demands, citing Bizal, supra, and Sec. 3 A(1).

LAW

The PR Act must be liberally construed in favor of public access which is guaranteed by LSA-Const. Art. 12, Sec. 3, as implemented by the PR Act. See Sec. 31. Access to a public record can be denied only when the law specifically and unequivocally provides against access. See Title Research Corp. v. Rausch, 450 So.2d 933 (La.1984); Cormier v. Di Guilio, 553 So.2d 806 (La.1989); Webb v. City of Shreveport, 371 So.2d 316 (La.App. 2d Cir.1979), writ denied; Bartels v. Roussel, 303 So.2d 833 (La.App. 1st Cir.1974), writ refused. An action to enforce the PR Act is a civil action.

Nothing in the PR Act requires disclosure of records held by district attorneys that pertain

... to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled; * * * See Sec. 3 A quoted supra.

This section clearly contemplates that a person shall have access to DA records pertaining to criminal litigation after the criminal litigation is "finally adjudicated" or "otherwise settled."

From its inception in 1940, the PR Act only temporarily denied access to DA records. Acts 1940, No. 195, Sec. 3 read:

The provisions of this Act shall not apply to public records, ... when the same are held by any ... district attorney ... as evidence in the investigation for or prosecution of a criminal charge, until after such public records have been used in open court or the criminal charge has been finally disposed of; ... See State v. Vallery, 214 La. 495, 38 So.2d 148, 149 (1948). (Emphasis added.)

Former LRS 15:541 provided: "A case is finally disposed of by any judgment ... that ... refuses to grant a new trial, ... to arrest judgment, or that imposes sentence." See now CCrP Art. 922, discussed infra.

The 1972 amendment incorporating the language now in Sec. 3 A(1) defers public access to the records on which the DA relied for successful prosecution until the criminal litigation is "finally adjudicated or otherwise settled." Compare CCrP Art. 922.

In the context of the PR Act and considering that some of the words and phrases in Sec. 3 A(1) are "technical" and have acquired a peculiar and appropriate meaning in the light of other statutes, we trace the thread of LRS 44:3 as it is interwoven with other laws relating to district attorneys, criminal prosecutions, and public records.

The terms "criminal litigation," "criminal proceedings," and "criminal prosecution" are not specifically defined by statute, but their respective meaning may be discerned.

Criminal prosecutions are under the charge and control of the DA. CCrP Art. 61. Criminal prosecution is "instituted" either by indictment by a grand jury or by an information which is a written accusation of crime made by the district attorney. CCrP Arts. 382-384. A "defendant" in a criminal prosecution, as defined in Art. 934(4), is the person who has been charged with (arrested, Arts. 203(4), 218) or accused (by information or indictment, Arts. 382-384) of an offense as defined in Art. 933(1).

The public record of an arrest may be expunged under LRS 44:9, if, among other things, prosecution has been instituted and such proceedings have been finally disposed of by dismissal (Sec. 9 A(2)) or by a nolle prosse (Sec. 9 B) or where "[t]he district attorney declines to prosecute." Sec. 9 C(1)(c). As contemplated by Sec. 9, once prosecution has been instituted, the [criminal] proceedings may be "disposed of" and thus "otherwise settled," as contemplated by Sec. 3, or the proceedings, as "criminal litigation," may continue until "finally adjudicated" as Sec. 3 provides.

The law also contemplates that a judgment or adjudication against a defendant in a criminal proceeding (Arts. 859-862) becomes final when the defendant does not appeal or seek appellate rehearing in an appeal within the delays provided or when rehearing is denied by the supreme court or the appellate court. Arts. 911-913, 921-923.

A criminal prosecution is brought only in the name of the state against the criminal defendant. The party injured by the crime is not a party to the criminal prosecution and his rights to civil remedies are not affected by the criminal prosecution. Art. 381.

The term "criminal prosecution" was once said to be more limited than the term "criminal proceedings," which includes other matters before trial such as a grand jury proceeding. See Comment under Art. 381.

A criminal prosecution consists of a series of proceedings which begin when the formal accusation is made by indictment or information and which terminate when the adjudication or judgment against the state or the defendant becomes final. See State v. Shushan, 206 La. 415, 19 So.2d 185 (1944).

The word litigation, in its common and approved usage and dictionary definition, means a legal contest by judicial process. In the light of other statutes and in the context of the PR Act, we construe the term criminal litigation in LRS 44:3 A(1) to mean an adversarial contest begun by formal accusation and...