People v. D.K.B.

• Citation: 843 P.2d 1326
• Decision Date: 11 January 1993
• Docket Number: 91SC654,Nos. 91SC631,s. 91SC631
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. D.K.B., Respondent. The PEOPLE of the State of Colorado, Petitioner, v. R.C.F., Respondent.
• Court: Colorado Supreme Court

Page 1326

843 P.2d 1326

The PEOPLE of the State of Colorado, Petitioner, v. D.K.B., Respondent.

The PEOPLE of the State of Colorado, Petitioner, v. R.C.F., Respondent.

Nos. 91SC631, 91SC654.

Supreme Court of Colorado En Banc.

Jan. 11, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Cheryl A. Linden, Asst. Atty. Gen., Appellate Section, Matthew S. Holman, Asst. Atty. Gen., Crim. Enforcement Section, Denver, for petitioner in No. 91SC631.

Paul Joseph Skok, Denver, for respondent D.K.B.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Maurice G. Knaizer, Deputy Atty. Gen., Dianne E. Eret, First Asst. Atty. Gen., Laurie Rottersman, Asst. Atty. Gen., General Legal Services Section, Denver, for petitioner in No. 91SC654.

Mark T. Langston, Boulder, for respondent R.C.F.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari in two cases, D.K.B. v. People, 824 P.2d 68 (Colo.App.1991), and R.C.F. v. People, No. 89CA1589 (Colo.App., Aug. 15, 1991), to consider the Criminal Justice Records Act of 1977, as amended in 1988. §§ 24-72-301 to -309, 10B C.R.S. (1988). Specifically, we will examine whether the court of appeals erred in holding that the application to convicted persons of the current version of the statute governing the sealing of arrest and criminal records violated the constitutional prohibition against retrospective legislation. Because we find that the statute does not impinge on the prohibition against such legislation, we reverse the judgments of the court of appeals.

I.

The Colorado legislature enacted the Criminal Justice Records Act in 1977. §§ 24-72-301 to -309, 10B C.R.S. (1982). See also 1977 Colo.Sess.Laws, ch. 340 at pp. 1244-1250. This was a comprehensive act defining criminal justice records and providing for the maintenance and public inspection of such records. The Act also permitted certain criminal justice records to be sealed and established the conditions under which such records could be removed from public inspection by sealing. Section 24-72-308(1) of the Act provided that:

Any person in interest may petition the district court of his residence or of the district in which the arrest and criminal records information pertaining to him is located for the sealing of all or any part of said record, except basic identification information. ¹

In addition to subsection (1) quoted above, the remaining subsections of section 24-72-308 established how the court was to consider the petition for sealing records. After notice to the affected law enforcement authorities, the court was required to hold a hearing at which the court would balance the interests asserted by the petitioner against the public interest in retaining the records. If the court found that the petitioner's interests outweighed the public interest, then it could seal such records or any part of them, except basic identification information.

The 1977 statute was repealed and re-enacted in 1988. § 24-72-308, 10B C.R.S. (1988). See also 1988 Colo.Sess.Laws ch. 190 at p. 980. At that time, the legislature narrowed the category of persons eligible for the statutory process applicable to the sealing of arrest and criminal records information. The revised section 24-72-308 reads in part as follows:

Any person in interest may petition the district court of the district in which any arrest and criminal records information pertaining to said person in interest is located for the sealing of all of said records, except basic identification information, if the records are a record of official actions involving a criminal offense for which said person in interest was not charged, in any case which was completely dismissed, or in any case in which said person in interest was acquitted.

(emphasis added). The effect of this change is that persons who have been convicted of criminal offenses no longer can invoke the petition and hearing provisions of the statute. In all other relevant respects, the statute remained the same.

In 1969, D.K.B. pled guilty to voluntary manslaughter, and he served his sentence until it was fully discharged in 1973. In 1990, D.K.B. petitioned the trial court to have the records of his manslaughter conviction sealed. D.K.B. alleged that he had had no further arrest or criminal record since his 1969 felony conviction; that justice would be served by sealing his records because D.K.B. is a productive member of society; and that the harm to D.K.B.'s privacy or the dangers of unwarranted adverse consequences to him outweighed the public interest in retaining the records. In a written order, the trial court denied D.K.B.'s petition, citing the amended statute as permitting criminal records to be sealed only if a criminal case is dismissed or the defendant is acquitted.

R.C.F. pled guilty to a class 4 felony (conspiracy to distribute a schedule II controlled substance) in 1983. §§ 12-22-301 to -322, 5A C.R.S. (1973) (Colorado Controlled Substances Act). He was sentenced to the Department of Corrections, where he was confined until 1987, when he was resentenced to four years probation. In 1989, R.C.F. petitioned to have the records of his felony conviction sealed. R.C.F. alleged that his 1983 felony conviction constituted his entire criminal record; that he was rehabilitated; that he desired to become bonded to pursue an employment opportunity; and that justice would be served by sealing his records because the danger of adverse, unwarranted consequences to him outweighs the public interest in open records. He also alleged that the applicable law was section 24-72-308(3) of the repealed 1977 statute.

The district attorney opposed R.C.F.'s petition and, after the case was briefed and argued, the trial court denied the petition. The trial court's written order rejected R.C.F.'s claim that the 1988 amendments denied him a vested substantial right and characterized the 1977 statute as creating "at best" an unmatured contingency.

D.K.B. and R.C.F. (hereafter "respondents") appealed the trial court rulings. In D.K.B. v. People, 824 P.2d 68 (Colo.App.1991), the court of appeals held that the legislature's repeal and reenactment of the statute eliminated a prior vested right--the right of a convicted person to petition and be heard on having one's criminal record sealed in order to ensure that person's right to privacy. Therefore the court found that the statute was unconstitutionally retrospective in its application. Colo. Const. Art. II, § 11. ² Relying on its decision in D.K.B., the court of appeals, in an unpublished decision, held that R.C.F. also had a vested right in petitioning the court to have his records sealed, and therefore the trial court erred in refusing to hear his petition. Because we disagree and find that a convicted person has no such vested right to petition, we reverse the judgments of the court of appeals in these two cases.

II.

A.

To place the 1977 and 1988 statutes in perspective, we briefly review the relevant caselaw. We recognized the existence of a right to privacy in Colorado in Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970). In doing so, we followed in the footsteps of the United States Supreme Court, which found that there is a constitutional and fundamental right to privacy independent of the enumerated protections of the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The comprehensive confines and boundaries of this right, however, were not set forth in Rugg, but were left to be delineated in future cases. Rugg, 173 Colo. at 175, 476 P.2d at 755 ("We do not attempt to comprehensively define the right of privacy, nor to categorize the character of all invasions which may constitute a violation of such right.").

One such case is Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972), in which we found that the right of privacy extended to the arrest records of a woman who had been acquitted of criminal charges. In Davidson, we held that "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." 180 Colo. at 130, 503 P.2d at 161. This recognition of an individual's right to privacy in otherwise public records seeks to protect "the individual interest in avoiding disclosure of personal matters." Martinelli v. Dist. Ct., 199 Colo. 163, 612 P.2d 1083, 1091 (1980) (quoting Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977)). We identified this aspect of the right to privacy as "the right to confidentiality." Martinelli, 612 P.2d at 1091. Under Davidson, an acquitted criminal defendant's right of privacy (or the right to confidentiality) in an arrest record "is a fundamental right implicit in the concept of ordered liberty and that it is as well within the penumbras of the specific guarantees of the Bill of Rights." Davidson, 180 Colo. at 131, 503 P.2d at 161 (quoting Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211, 217 (1971)). ³

The right to confidentiality that we recognized in Davidson was qualified rather than absolute. We held that the acquitted person's interest in sustaining her right to privacy must be balanced against the public interest in maintaining such records for effective law enforcement. Davidson, 180 Colo. at 130, 503 P.2d at 161. See also Martinelli, 612 P.2d at 1091. Thus, "absent a compelling showing of necessity by the government," the acquitted person should be entitled to the return of her fingerprints and photographs. Davidson, 180 Colo. at 131, 503 P.2d at 161 (quoting Eddy, 487 P.2d at 217).

Although the balancing of public and private interests in arrest and conviction records discussed in...