Commonwealth v. Boe

Grasso, J.

(dissenting). I respectfully dissent. Were we writing on a blank slate, we might well affirm the order to expunge Boe’s probation and court records as an appropriate exercise of a judge’s inherent common-law power to accomplish substantial justice in the circumstances.1 We may not do so, however, because G. L. c. 276, § 100C, prescribes how the records of dismissed prosecutions, even those commenced without substantial basis or after an apparently slipshod investigation, shall be maintained. See Commonwealth v. Gavin G., 437 Mass. 470, 475 (2002) (where statutory protections have been enacted by the Legislature, other remedies, including expungement, are inappropriate). The majority’s holding that § 100C is neither applicable nor adequate and that expungement is authorized by G. L. c. 6, § 171, blinks at the plain language of § 100C and the teaching of numerous opinions of the Supreme Judicial Court and this court regarding the lack of authority of a judge to order the expungement of probation and court records of criminal proceedings.2 See Commonwealth v. Gavin G., supra.

The law is now well established that where the Legislature has prescribed the remedy for dealing with the sealing or ex-*653pungement of criminal records, judges may not rely on the ancillary power of the court to substitute their view of the appropriate remedy. That G. L. c. 276, § 100C, is such a legislative expression of prescribed remedy is beyond doubt. See Commonwealth v. Gavin G., supra.

In Commonwealth v. Vickey, 381 Mass. 762, 766 (1980), and Commonwealth v. Balboni, 419 Mass. 42, 45-46 (1994), the Supreme Judicial Court was careful to note that its decision in Police Commr. of Boston v. Municipal Ct. of the Dorchester Dist., 374 Mass. 640, 678 (1978), did not undercut the specific language of the sealing statutes. Where the Legislature has set forth sealing as the prescribed remedy for limiting access to the record of a judicial proceeding, a judge lacks the power to enlarge on the prescribed remedy. See Commonwealth v. Balboni, 419 Mass, at 44-47.3 Likewise, in Commonwealth v. Roe, 420 Mass. 1002, 1002 (1995), the court rejected a defendant’s request for expungement of her probation record and the police records of her arrest. “[I]n the case of adult defendants, the existence of the sealing statute, G. L. c. 276, § 100C, is sufficient, in cases that are appropriate for sealing, to protect the confidentiality of criminal records, and, as a result, defendants do not have expungement as an available remedy.” Ibid. In Commonwealth v. Roberts, 39 Mass. App. Ct. 355, 357 (1995), this court concluded that the statutory grant of power to purge records contained in G. L. c. 6, § 171, does not expand the remedy set forth in G. L. c. 276, § 100C, and permit expungement.

“The sealing provisions of § 100C, second par., express the State’s interest in preserving confidentiality and avoiding harm that may arise from the unnecessary maintenance and dissemination of criminal records.” Commonwealth v. Doe, 420 Mass. 142, 151 (1995). Indeed, in Doe, the Supreme Judicial Court recognized that a defendant’s interest in the confidentiality of his records has “the potential for conflicting with the right of access to records submitted in connection with criminal proceed*654ings guaranteed by the First Amendment to the United States Constitution.” Id. at 147. “Even though a case has not been prosecuted, information within a criminal record may remain useful, . . . and, of course, is presumed open to the public and the media.” Id. at 151.4 Balanced against the harm arising from the unnecessary maintenance and dissemination of criminal records is the harm to the integrity of the criminal process arising from the improper, unequal, or arbitrary disposition of criminal cases owing to favoritism or other impermissible bases. See Commonwealth v. Pappas, 384 Mass. 428, 431 (1981) (statutory requirement of prompt citation designed to prevent or discourage “fix” or corrupt manipulations of criminal processes); Commonwealth v. Cameron, 416 Mass. 314, 316 n.2 (1993). Requiring the record of a dismissed prosecution to be maintained and not expunged avoids the even greater mischief that could ensue were a case to be dismissed by a judge and the record expunged, without trace of that proceeding remaining.

Most recently, in Commonwealth v. Gavin G., 437 Mass, at 475, the court reiterated its admonition that a judge does not possess the inherent power to expunge probation records in the face of G. L. c. 276, § 100C. Rejecting the juvenile’s claim that the special interests of the juvenile justice system empowered a Juvenile Court judge to order expungement of juvenile probation records,5 the court emphasized that because a detailed statutory scheme protects the confidentiality of probation records, other remedies such as expungement are inappropriate. “[I]t is for this very reason — the protection of adult records by way of sealing under G. L. c. 276, § 100C — that we have held that judges have no authority to expunge adult records.” Ibid. Where the Legislature has struck a balance between an adult’s (or a juvenile’s) interest in not being unfairly prejudiced by his record and *655the needs of the courts and law enforcement agencies for information pertaining to court proceedings, judges do not have the authority to reset that balance on a case-by-case basis. Id. at 476.

The majority’s suggestion that the defective nature of the complaint against Boe renders G. L. c. 276, § 100C, inapplicable and warrants expungement is an illusory distinction that was categorically rejected in Gavin G:.

“Conspicuously absent from [the] entire legislative scheme governing court and probation records, whether for adults or juveniles, is any suggestion that the Legislature intend such records be destroyed. ... As illustrated by G. L. c. 276, § 100C, the Legislature was not ignorant of the fact that some persons are wrongly accused of crime and wrongly brought before the courts on these charges. When addressing the precise predicament of a wrongfully accused adult unfairly acquiring a criminal record, the Legislature still opted for sealing, not destruction or ex-pungement of records. As to both juveniles and adults, the Legislature is apparently satisfied with provisions for confidentiality and sealing of records to address the precise problem posed by . . . wrongful or mistaken accusations of criminal conduct.” (Footnote omitted.)

Id. at 482-483.

Likewise, the majority’s contention that Gavin G. is inapposite misapprehends the essential reasoning of the case regarding probation and court records. What occurred to Boe is not, as the majority would have it, the kind of occurrence in which expungement is a permissible and appropriate step to prevent information in the record from being misleading and inaccurate. Indeed, Gavin G. observed:

“[Ejxpungement of the record following the dismissal of charges . . . cannot be treated as merely ‘correcting’ a record that is ‘inaccurate’ in the sense that the person should not have been charged. . . . [T]he probation records accurately reflect that [the defendant] was charged with particular offenses on a particular date, that the matters were heard in court on particular dates, that [the defendant] attended court on those dates, and that the charges were dismissed on a particular date. Whether the proceed*656ings chronicled in the probation records should have occurred does not change the fact that they did occur, and [the defendant’s] contention that he should not have been charged in the first place does not make the records themselves ‘inaccurate.’ ”

Id. at 483 n.13.

The majority’s reliance on Commonwealth v. S.M.F., 40 Mass. App. Ct. 42 (1996), is similarly misplaced. There, an impostor who had stolen S.M.F.’s identity and papers was arrested, identified herself as S.M.F., appeared before the court on the criminal charges, and continued to perpetrate a fraud by passing herself off as S.M.F. In such circumstances, we concluded that G. L. c. 276, § 100C, was inapplicable and not a bar to expungement. To correct the fraud, the trial court was authorized to expunge S.M.F.’s probation and court records and to substitute the impostor Doe in her place. “[T]he deliberate act of prosecution was not against S.M.F. . . . Jane Doe was the person arrested and the Commonwealth has every intention to press the prosecution against Jane Doe if it can find her.” Id. at 45.

Here, as in Gavin G., and in contrast to S.M.F., the complaint was sought and issued against Boe; Boe appeared in court, and the charge brought against Boe was dismissed. Regardless whether the charge against Boe may have been brought improvidently, the charge did, in fact, occur, and the record of the charge against her is neither fictitious nor false. See Commonwealth v. Gavin G., supra (“where the person seeking expungement was never actually charged or brought before the court, but [her] name was used by the actual defendant,” expungement is permissible and appropriate).

General Laws c. 276, § 100C, represents the Legislature’s considered determination regarding the appropriate remedy in circumstances such as this. To the extent that the Legislature has prescribed a system that the majority views as unacceptably Kafkaesque, it is the province of the Legislature, not of this court, to strike the appropriate balance of interests. I would vacate the order of expungement and remand to the Boston Municipal Court Department so that the judge might entertain a motion to seal the defendant’s record in conformity with the statute.

Unchallenged though they are, the judge’s findings derive from representations of defense counsel and the prosecutor in seeking dismissal of the complaint, not from an evidentiary hearing. We pass over this anomaly because the circumstances surrounding the investigation and issuance of the complaint against Boe, the legal adequacy of the charge, and the basis for its dismissal are immaterial where the charge was brought against Boe, and not someone else.

Because the charge against Boe arose as a result of citation and a summons to appear in court, she was not arrested. In consequence, no records of arrest arose, and her motion to expunge did not encompass a request to expunge police records such as photographs, fingerprints and the like.

In Balboni, especially, the court noted that the absence of a legislative scheme and the unique goals of the juvenile justice were determinative factors that gave rise in Police Commr. of Boston, supra, to the decision that a judge had inherent authority to order the expungement of police records. See Commonwealth v. Balboni, 419 Mass, at 45.

In consequence, the court endorsed a two-stage proceeding for hearings to seal under § 100C. Commonwealth v. Doe, 420 Mass, at 149-150. Where none of the parties challenges the appropriateness of sealing Boe’s probation and court records pursuant to § 100C, we need not address whether the statutory requisites for sealing have been satisfied.

Because the police department involved did not appeal from the judge’s expungement order, the court did not address the propriety of the portion of the expungement order pertaining to the police records. Commonwealth v. Gavin G., 437 Mass, at 472 n.3.