State ex rel. Thurman v. Franklin

• Decision Date: 07 June 1991
• Docket Number: No. 17153,17153
• Citation: 810 S.W.2d 694
• Parties: STATE ex rel. Delores K. THURMAN and Mary Helen Antwiler, as Personal Representative of the Estate of Howard M. Bradley, Relators, v. Honorable James A. FRANKLIN Jr., Judge, Camden County Circuit Court, Twenty-Sixth Judicial Circuit, Respondent.
• Court: Missouri Court of Appeals

Page 694

810 S.W.2d 694

STATE ex rel. Delores K. THURMAN and Mary Helen Antwiler, as Personal Representative of the Estate of Howard M Bradley, Relators, v. Honorable James A. FRANKLIN Jr., Judge, Camden County Circuit Court, Twenty-Sixth Judicial Circuit, Respondent.

No. 17153.

Missouri Court of Appeals,

Southern District,

Division Two.

June 7, 1991.

Fred R. Bunch, Clinton and C. Michael Fitzgerald, Warrensburg, for relators.

Richard Paul Wacker and M. Douglas Harpool, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, for respondent.

SHRUM, Judge.

This is an original proceeding in prohibition. We must decide if our preliminary order to respondent Circuit Judge James A. Franklin Jr. should be made absolute. Our preliminary order prohibited the respondent from enforcing his order that the Henry County sheriff testify at deposition concerning his knowledge of arrests of Howard M. Bradley. The sheriff claimed he could not answer the questions because Bradley's arrest records are closed to the public. We have concluded that the sheriff may testify about Bradley's arrests to the extent that his knowledge is in no way derived from or refreshed by Bradley's closed arrest records. Accordingly, we modify the preliminary order and, as modified, the writ is made absolute.

FACTUAL AND PROCEDURAL SYNOPSIS

American Family Mutual Insurance Company had issued an automobile liability insurance policy to Bradley. Three days after American Family had issued the policy, Bradley wrecked the insured motor vehicle. Bradley and a passenger, Lisa Kay Thurman, died from injuries sustained in the accident. One of the relators in this action, Mary Helen Antwiler, is the personal representative of Bradley's estate. The other relator, Delores Thurman, the natural mother of Lisa Kay Thurman, filed suit against Bradley's estate claiming damages for the wrongful death of Lisa Kay. American Family then initiated a declaratory judgment suit seeking to avoid coverage on the policy claiming Bradley made a material misrepresentation on his insurance policy application in that he denied having been arrested for anything except motor vehicle violations. Relators, in their separate answers, denied the misrepresentation allegation.

In the course of discovery, American Family directed a subpoena to the Henry County sheriff for "[a]ll files, logs, notes, correspondence, reports or other documents in your possession or under your control pertaining to ... Howard Mark Bradley...." On relators' motion to quash the subpoena, the trial court ruled: "[A]s to the production of any closed records relating to criminal charges, sustained; and, as to personal appearances to give testimony by deposition, overruled."

At the deposition, American Family's attorney asked the sheriff various questions including whether the sheriff had arrested Bradley, whether he had been threatened by Bradley, and whether Bradley had charges pending against him when he died. The attorney attempted to use Clinton Daily Democrat newspaper accounts of Bradley's arrests in his efforts to depose the sheriff. After the sheriff, on the advice of the Henry County prosecutor and pursuant to §§ 610.100-610.120 RSMo, refused to answer, American Family sought an order compelling the sheriff to answer the deposition questions. Respondent sustained the motion to compel, and this prohibition proceeding followed.

The petition for a writ of prohibition alleged that "any criminal records of decedent Howard M. Bradley are closed records pursuant to Chapter 610." Based on the relators' petition, we issued our preliminary writ whereby we ordered the respondent to take no action to enforce his order compelling the sheriff to answer. Respondent, here represented by the attorneys for American Family, answered the relators' petition with a denial that Bradley's records are closed and an averment that "the provisions of Chapter 610 RSMo pertaining to closed arrest records apply to public records and official documents and do not extend to the personal recollections and observations of private citizens and public officials" (emphasis in original).

In considering whether to make our preliminary order absolute, we faced the initial issue of whether Bradley's arrest records were closed pursuant to Chapter 610. In order to resolve that threshold issue, we followed the procedure used by our supreme court in State ex rel. Curtis v. Crow, 580 S.W.2d 753 (Mo. banc 1979). Pursuant to Rule 68.03, we appointed the Honorable Mary A. Dickerson as a master to conduct a hearing and make findings of fact concerning every arrest of Bradley in Henry County and the subsequent history of those arrests.

We have received the master's report which contains her findings of fact. Disregarding motor vehicle violations, the report reveals Bradley was arrested in Henry County on January 10 or 11, 1974. Criminal charges were filed in connection with the January 1974 arrest, but the charges were dismissed by the state. The report reveals additional non-traffic related arrests of Bradley on May 28, 1986, and December 3, 1986. Criminal charges were filed in connection with each of those arrests but all the charges were dismissed. The report of the master also reveals that, with one exception noted below, the clerks of the Henry County courts, the sheriff's office, and the highway patrol treat their records regarding these arrests as closed. A summary attached to the master's report states that the Henry County Associate Circuit Court shows one of the January 1974 charges to be an "open case"; nevertheless, the report recites that Bradley was bound over to the circuit court on that charge, the charge subsequently was dismissed, and the Henry County Circuit Court treats the case as "closed." None of the parties has filed exceptions to the master's report.

We now renew our consideration of our preliminary order. Initially, we note that prohibition is the proper procedure to review a trial court's order when it is alleged that such order improperly requires discovery. State ex rel. Knight v. Barnes, 723 S.W.2d 591, 593 (Mo.App.1987); State ex rel. Robinson v. Crouch, 616 S.W.2d 587, 592 (Mo.App.1981). Prohibition is a proper means of contesting the enforcement of discovery of allegedly privileged information. State ex rel. Cain v. Barker, 540 S.W.2d 50, 51 (Mo. banc 1976); State ex rel. Gonzenbach v. Eberwein, 655 S.W.2d 794, 795 (Mo.App.1983).

ANALYSIS AND DECISION

Missouri's Arrest Records law is found at §§ 610.100-610.120, RSMo 1986 & Cum.Supp.1990. ¹ In its original form, the Arrest Records act provided for closing of arrest records "to all persons except the person arrested" and required, under circumstances not relevant to this case, that arrest records be "expunged." ² In 1981, the Arrest Records statute underwent a major revision, as explained in Martin v. Schmalz, 713 S.W.2d 22 (Mo.App.1986).

Expungement provisions were totally eliminated. Arrest records which would have been subject to destruction or obliteration under the predecessor law are now "closed records," maintained but inaccessible to the general public and confidential except to the defendant, and to courts, administrative agencies, and law enforcement agencies for the limited purposes of prosecution, litigation, sentencing and parole considerations. Sec. 610.120, RSMo.Cum.Supp.1984. Thus, attention is now focused not upon the existence of the record of an arrest not resulting in conviction, but rather upon the accessibility and the use of such a record. The legislative intent, to prevent the abusive use of groundless arrests and meritless charges, is accomplished by restricting public access to arrest records....

713 S.W.2d at 25. The Schmalz court was construing § 610.120 as amended in 1983; that version of § 610.120 is set out in full in the Schmalz opinion. 713 S.W.2d at 23. In 1989, § 610.120 was amended again and was renumbered § 610.120.1. The 1989 version of § 610.120.1 is current and is set out in footnote 1. For exceptions applicable to the case before us, we look to the current version of § 610.120 because the Arrest Records law must be given retrospective as well as prospective operation. Schmalz, 713 S.W.2d at 25. We note that the 1989 amendment to § 610.120 removed "litigation" from the list of specific uses permitted for closed records.

Based upon the facts reported by the master, we hold that the Arrest Records statute requires closure of the official records of Bradley's arrests. Bradley was arrested and charged in January 1974 but the case was dismissed in 1977. Pursuant to the law in effect in 1977, official records pertaining to the 1974 case became closed to all persons except Bradley. Section 610.105, Mo.Laws 1973. Charges filed against Bradley in connection with the 1986 arrests were dismissed, one charge in 1986 and one in 1987. Thus, pursuant to § 610.105, official records pertaining to Bradley's 1986 arrests are closed except as provided in § 610.120. Section 610.120, RSMo 1986 & Cum.Supp.1990, contains no exceptions applicable to Bradley's arrest records.

Having concluded that Bradley's arrest records are closed within the meaning of the Arrest Records act, we now must determine whether the statute's prohibition on disclosure extends beyond the physical records themselves to encompass information contained within the records. In construing statutes, our primary responsibility is to ascertain the intent of the legislature. Community Fed. Sav. & Loan Ass'n v. Director of Rev., 752 S.W.2d 794, 798 (Mo. banc 1988).

In State ex rel. Curtis v. Crow, our supreme court analyzed the legislature's intent in enacting § 195.290, RSMo Supp.1975 (now repealed) ³, a provision that permitted expungement of the records of drug convictions under certain circumstances. The court held that a newspaper that was the defendant in a libel suit could not discover records maintained by the prosecuting attorney's office...