In Re Administrative Order No. 1-Md-2003

Dissenting Opinion by

Judge LEAVITT.

Respectfully, I dissent. The majority holds that this Court has jurisdiction over the appeal brought by the Clerk of Courts but quashes it for lack of standing. I believe the law requires the exact opposite conclusion on both issues.

The center of this controversy is an administrative order of the Court of Common Pleas of Berks County that directs the Clerk of Courts to purge the court’s public docket of any entries relating to certain ARD defendants and states that failure to do so “may subject the Clerk of Courts, James Troutman, to contempt proceedings.” Administrative Order No. 1-MD-2003, November 3, 2003. The majority does not discern any “adverse effect to Troutman, beyond that of the common citizen’s interest in seeing the law followed.” Opinion at 5.1 The Clerk of Courts, James Troutman, not the body politic, faces the possibility of jail time should the Clerk fail to carry out the court’s directive. The Clerk’s interest is substantial, direct and immediate.

The Clerk’s standing, however, is founded not on the threat of contempt but, rather, on the duties of his office. Only the Clerk of Courts, not the common citizen, has had the responsibility conferred upon him by the Pennsylvania Constitution to maintain court records for public access. Pa. Const, sched. art. 5, § 15.2 The particulars of this constitutional duty are established in the Judicial Code.3 They are also *1054addressed in the Pennsylvania Rules of Criminal Procedure, which direct a clerk of courts to “maintain the criminal case file for the court of common pleas” and a “list of docket entries” Pa. R.CRIm. P. 113(A),(B). The duties conferred on the Clerk of Courts by our Constitution, by our Legislature and by our Supreme Court give him an interest in an administrative order that directs him to purge the very records he is duty bound to maintain.4

The majority’s contrary conclusion turns entirely on Pennsylvania State Police v. Court of Common Pleas of Bucks County, 150 Pa.Cmwlth. 338, 615 A.2d 946 (1992). In that case, the State Police sought to have a court order expunging the retail theft records of Charlene Brieger set aside because the State Police had not been given notice or an opportunity to be heard in her expungement hearing. This Court held, quite properly, that the State Police had no interest in the substantive merits of whether, in a particular case, an expungement order should be entered. We reasoned that its duty to maintain a central repository of criminal records did not give the State Police an interest in whether a particular expungement order was meritorious. Thus, we held that the State Police lacked standing to participate in each and every expungement hearing. This holding does not speak to the instant controversy.5

The Clerk of Courts does not challenge the merits of a particular expungement order, and he does not seek the right to participate in the merits of any or all expungement proceedings. The Clerk challenges, rather, the scope of expungement orders in Berks County. He does so because Section 9122(e) of the Criminal History Records Information Act, states that “[pjublic records listed in Section 9104(a) ... shall not he expunged.” 18 Pa.C.S. § 9122(e) (emphasis added). Among the public records listed in Section 9104(a) are

Any documents, records, or indices prepared or maintained by or filed in any court of this Commonwealth, including but not limited to the minor judiciary.

18 Pa.C.S. § 9104(a) (emphasis added).6 Expungement requires the removal of all “trace[s] or indication that such [criminal history] information existed.” 18 Pa.C.S. § 9102.' It cannot be disputed that in Section 9122(e) the General Assembly has limited the scope of expungement orders. If neither the Clerk of Courts nor a common citizen can raise the issue of whether purging certain criminal court records in Berks County exceeds the statutory limits on ex-pungement, then who can?7

*1055On the question of the Clerk’s standing, our Supreme Court’s holding in Dauphin County Public Defender’s Office v. Court of Common Pleas of Dauphin County, 578 Pa. 59, 849 A.2d 1145 (2004) is dispositive. In that case, the President Judge of the Court of Common Pleas of Dauphin County issued an administrative order directing the Public Defender to use the Federal poverty guidelines to determine whether a criminal defendant was eligible for appointment of a public defender. Prior to the issuance of this order, the Public Defender determined eligibility by using a variety of criteria, only one of which was the applicant’s income. Believing that the court’s intrusion upon the operation of his office violated the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. §§ 9960.1 — 9960.13, the Public Defender petitioned the Pennsylvania Supreme Court for a writ of prohibition. The Supreme Court rejected the court’s argument that the Public Defender lacked standing.8

The Supreme Court reasoned that a public defender has a statutory duty to provide legal representation to eligible criminal defendants, which gave him standing to challenge an administrative order that was alleged to interfere with that statutory duty. The Supreme Court held that the Public Defender’s interest exceeds that of the common interest of all citizens in procuring obedience to the law. Dauphin County Public Defender, 578 Pa. at 64, 849 A.2d at 1148. The Supreme Court established the principle that a public official may seek review of an administrative order issued by a president judge that is alleged to interfere with that official’s statutory duty.

The Berks County Court of Common Pleas has concluded that the clerk of courts and the court are one, and that one is the court. The majority agrees, dismissing the clerk’s duties as “merely ministerial.” 9 This observation fails to account for the fact that these duties are important enough to have been assigned to an elected, constitutionally created official. I believe that Dauphin County Public Defender supports one conclusion: the Clerk has standing to pursue his claim that the administrative order in question interferes with his constitutional and statutory duty to maintain court records as public records.

I also disagree with the majority that this Court has jurisdiction over this controversy, which has been framed by the Clerk of Courts as a direct appeal of the denial of his exceptions to the President Judge’s administrative order.10 This is not *1056an appeal at all.11 The Clerk requests this Court to restrain the Court of Common Pleas from directing the Clerk to remove records from this office that, the Clerk believes, must be maintained as public records. Such a restraining order requires the issuance of a writ of prohibition. A writ of prohibition is “the means” by which a [“superior” court] exercises superintendence over [an “inferior” court] and keeps it within the limits of its rightful powers, and “jurisdiction.” Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 98-99, 61 A.2d 426, 428 (1948).12 However, only the Pennsylvania Supreme Court, not this Court, has the jurisdiction to exercise superintendency over courts of common pleas. 42 Pa.C.S. § 721(2).13

Again, the Supreme Court’s holding in Dauphin County Public Defender is dis-positive. Because the Public Defender showed that the court’s administrative order exceeded the court’s authority, the Supreme Court issued a writ of prohibition, vacating the administrative order in question. In no way did the Supreme Court intimate that, alternatively, the Public Defender could have “appealed” the administrative order to the Commonwealth Court. Here, the Clerk of Courts asserts that the Court of Common Pleas lacks authority to order court records to be expunged. The proper vehicle for resolving the Clerk’s assertion is in a writ of prohibition proceeding before the Pennsylvania Supreme Court, the only court with the authority to superintend our courts of common pleas. That resolution can be provided by a transfer of the Clerk’s “appeal” to the Pennsylvania Supreme Court pursuant to Pa. R.A.P. 751.14

The Clerk raises an important question of statutory construction. The Criminal History Records Information Act, a chapter in the Crimes Code, states that nothing “in this chapter shall be construed to apply to ... any documents, records or indices prepared or maintained by or filed in any court of this Commonwealth....” 18 Pa. C.S. § 9104(a)(2). It further provides that “[p]ublie records listed in Section 9104(a) ... shall not be expunged.” 18 Pa.C.S. § 9122(e). The Clerk of Courts understands these provisions to mean that court records are beyond the scope of any ex-pungement order. The Clerk’s understanding of the statute is finally supported by the Pennsylvania Attorney General. The Court of Common Pleas of Berks County, in contrast, construes Section 9104(a)(2) to mean that court records are not subject to the limitations in Section 9122(e).

A resolution of this dispute between the Clerk of Courts and the Court of Common *1057Pleas of Berks County will provide a definitive interpretation of the Criminal History Records Information Act, a matter of importance in every judicial district in Pennsylvania. Because I believe the Clerk of Courts has standing to pursue this question of law, but that this Court lacks jurisdiction to order the relief requested by the Clerk, I would transfer this matter to the Pennsylvania Supreme Court.

.I also disagree with the majority's determination that the Clerk’s appeal does not present a controversy because the Clerk had not yet been held in contempt for failure to comply with an expungement order. The Clerk is not required to incur court sanctions in order to resolve the issue of whether the Criminal History Records Information Act prohibits the court of common pleas from ordering the Clerk to seal court records. To follow this logic, no defendant could ever challenge an injunction order unless, or until, the defendant decided to violate the order and become the subject of contempt proceedings.

. The Pennsylvania Constitution requires a clerk of courts to maintain the "records, books and dockets” of each case filed in a court of common pleas. PA. Const, sched. art. 5, § 15.

. The Judicial Code requires that all documents relating to "[cjriminal matters including all related motions and filings” be filed in the office of the clerk of courts. 42 Pa.C.S. § 2756(a)(1). The powers and duties of the clerk of courts include the "duties as may ... be ... imposed upon the office by law, ... order or rule of court....” 42 Pa.C.S. § 2757(5) (emphasis added). One such law is *1054the Criminal History Records Information Act.

. This interest would be apparent if, for example, a president judge should issue an administrative order directing that the files of all criminal defendants, whose last name began with the letter "R,” be removed from public access.

. State Police teaches that a clerk’s duty to maintain court documents does hot authorize a clerk to judge the merits of those documents so filed. This means, for example, that a clerk of courts may not refuse to accept a complaint for filing because he believes it fails to state a cause of action. It does not teach that a clerk of courts has no interest in the maintenance of, and public access to, court records.

. Lest there be any doubt that the court records listed in Section 9104(a) are public records, 18 Pa.C.S. § 9104(b) states:

Court dockets, police blotters and press releases and information contained therein shall, for the purpose of this chapter, be considered public records.

. The flaw in the majority’s analysis is readily apparent when one looks at other types of public records that may not be expunged. They include, for example, "press releases that contain criminal history record information and are disseminated contemporaneous *1055with the incident.” 18 Pa.C.S. § 9104(a)(1). A newspaper ordered to expunge a press release, i.e., to remove all traces of it, should be allowed to challenge that order. But under the majority’s holding, the newspaper would lack standing because it had no interest in whether a particular criminal defendant’s record should be expunged.

. Even though (he Public Defender was found to have standing, the majority cites Public Defender for the contrary, i.e., that the public official here, the Clerk of Courts, lacks standing to seek review of an administrative order.

. Many government functions are ministerial, but that does not mean they are not important. The ancient writ of mandamus was developed to compel the performance of ministerial duties of government officials.

.The majority sees this case as an appeal from the final order of the common pleas court in an action against the President Judge, and grounds our jurisdiction in the premise that the President Judge has been sued in his official capacity. The caption does not so read. Nevertheless, the majority is correct that this controversy is between the Clerk of Courts and the Court of Common Pleas of Berks County. This only supports the conclusion that the Clerk’s “appeal” is really a request for a writ of prohibition.

. The process followed here appears jury-rigged for this case alone. The Clerk filed "exceptions” to the administrative order. A panel of three judges issued an opinion explaining why the Clerk's exceptions were not meritorious, but it did issue an order in connection therewith. There is no final order for this Court to review.

. The purpose of the writ or prohibition is not to pass upon the rights of litigants, but to manage the inferior court and prevent it from usurping jurisdictions and powers that it does not constitutionally and legally possess. Capital Cities Media, Inc. v. Toole, 506 Pa. 12, 19, 483 A.2d 1339, 1342 (1984).

. Section 721(2) gives the Supreme Court original jurisdiction of uses of "prohibition to courts of inferior jurisdiction.” This Court may issue writs of prohibition tó administrative agencies but not to courts of common pleas, unless the writ is ancillary to a specific proceeding addressed to our appellate jurisdiction. Municipal Publications, Inc. v. Court of Common Pleas of Philadelphia County, 507 Pa. 194, 199, 489 A.2d 1286, 1288 (1985).

. It provides that a court shall not quash or dismiss an improvidently filed case but, rather, transfer the matter to the proper court.