Opinion
No. 94SA150
Decided January 17, 1995
Original Proceeding
RULE MADE ABSOLUTE.
Osgood, Simpson and Harris, L.L.C., Steven E. Harris, Boulder, Colorado, Attorney for Petitioner.
Alexander M. Hunter, District Attorney, Twentieth Judicial District, William F. Nagel, Appellate Chief Deputy District Attorney, Boulder, Colorado, Attorneys for Respondents.
In this original proceeding pursuant to C.A.R. 21, we issued a rule directing the respondent, Boulder County District Court, to show cause why it should not be prohibited from unsealing the criminal justice records of the petitioner, E.J.R., which it ordered sealed by a final order more than two years earlier. The Boulder District Attorney's Office asked the district court to unseal the criminal records of E.J.R., which request was granted. Because we hold that E.J.R. has a vested interest in the district court's previous and final order sealing his criminal conviction records, we now make the rule absolute and direct the district court to vacate its March 15, 1994 order.
In the petition, the respondents are set forth as "The District Court, County of Boulder, Colorado, and the Honorable Richard McLean, as one of the judges of the District Court." We refer to the respondents jointly as "Boulder County District Court" or "district court."
I
On April 12, 1991, E.J.R. filed a petition with the Boulder District Court asking that court to seal the criminal justice records of his prior convictions, pursuant to section 24-72-308, 10B C.R.S. (1988) (Sealing Statute). As required by the Sealing Statute, E.J.R. provided the district attorney with notice of his petition. The district attorney did not object to E.J.R.'s request that his records be sealed. Subsequently, the district court issued its order sealing E.J.R.'s criminal justice records on May 13, 1991. The district attorney did not appeal the district court's May 13 order.
The parties did not question whether the district court's order was a final order. For purposes of this proceeding we assume that it was.
Two years later, E.J.R. was arrested in a separate, unrelated criminal matter. E.J.R. was charged with aggravated robbery, and his case was set for trial. The deputy district attorney assigned to prosecute the aggravated robbery case against E.J.R. was aware of E.J.R.'s past criminal record. While preparing for trial, the district attorney filed a petition with the district court pursuant to section 24-72-308(1)(e) of the Sealing Statute, seeking an order to allow him to inspect E.J.R.'s sealed criminal justice records to determine if E.J.R. had sealed records of a felony conviction. In his petition, the district attorney argued that section 24-72-308(1)(a) of the Sealing Statute, as reenacted in 1988, prohibited the sealing of records of felony convictions. Therefore, the district attorney reasoned, if E.J.R.'s petition to seal his criminal records was filed after the effective date of the reenacted statute, the court's order sealing E.J.R.'s records would be void.
Section 24-72-308(1)(e), 10B C.R.S. (1988) provides:
Inspection of the records included in an order sealing criminal records may thereafter be permitted by the court only upon petition by the person who is the subject of such records or by the prosecuting attorney and only for those purposes named in such petition.
The Criminal Justice Records Act was enacted by the Colorado Legislature in 1977 and includes the Sealing Statute at §§ 24-72-301 to -309 C.R.S., which allows for the sealing of records regarding criminal proceedings. In 1988 the Sealing Statute was repealed and reenacted at § 24-72-308(1)(a), narrowing the category of eligible persons. Prior to its repeal and reenactment, the Sealing Statute, § 24-72-308 at (3)(a) provided that:
Any person in interest may petition the district court 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 for basic identifying information.
§ 24-72-308(3)(a), 10 C.R.S. (1982).
After the 1988 repeal and reenactment, the statute, at (1)(a) provided:
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.
§ 24-72-308(1)(a), 10B C.R.S. (1988) (emphasis added).
The district court agreed, concluding that the order to seal E.J.R.'s records had been entered without subject matter jurisdiction because the sealed records included prior criminal convictions which should not have been sealed under the Sealing Statute after the 1988 amendments. Thus, on March 15, 1994, the district court ruled that its May 13, 1991 order to seal E.J.R.'s records was void and granted the district attorney's request that E.J.R.'s records be unsealed.
In this proceeding to review the district court's March 15 ruling, E.J.R. claims that he has a privacy right, asserted pursuant to the Sealing Statute, in keeping his records sealed. In addition, E.J.R. asserts that his privacy rights vested at the time the May 13, 1991 order of the district court sealing his criminal records became final and the time for appeal expired.
II
We recently addressed the issue of whether citizens have a vested right to seal criminal conviction records under the Sealing Statute in People v. D.K.B., 843 P.2d 1326 (Colo. 1993). In D.K.B., we concluded that the Sealing Statute was amended in 1988 to "narrow the category of persons eligible for the statutory process applicable to the sealing of arrest and criminal records information." Id. at 1328. In that case we held that the 1988 amendment limited the beneficiaries of the Sealing Statute so as to make it available only to persons who seek to have records sealed regarding "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." Id. (citing § 24-72-308, 10B C.R.S. (1988)). In discussing the interest created by the statute, we disapproved of the court of appeals' conclusion that any interests created by the statute "vested" in the right to petition. D.K.B., 843 P.2d at 1331. We stated:
A right is only vested when it is not dependent upon the common law or the statute under which it was acquired for its assertion, but has an independent existence. . . . Here, the respondents' ability to petition and to have the balancing test applied is clearly dependent upon and wholly derived from the statute. As the trial court recognized . . ., this right is inchoate rather than vested. It does not exist in the sense of a vested right until it is exercised.
Id. (citations omitted). We merely held that "a convicted person has no . . . vested right to petition" under the Sealing Statute, inasmuch as the Sealing Statute did not create substantive rights but, being remedial in nature, created a limited right to petition. Id. at 1329, 1330-31 (emphasis added); see also id. at 1332-35 (Kirshbaum, J., specially concurring).
A
Under the facts present here, D.K.B. is not controlling. Unlike the petitioners in D.K.B. whose petitions to seal records were denied, E.J.R.'s petition was granted by the district court and his criminal records were sealed more than three years ago. Moreover, the district attorney did not object to E.J.R.'s April 1991 petition to seal his records and failed to appeal the very order he now seeks to set aside years later. The privacy right E.J.R. now asserts before us is not found in the Sealing Statute, which only created a limited right to petition; E.J.R.'s privacy right "has an independent existence" created on May 13, 1991, by issuance of the district court order sealing the records after notice and without objection by the district attorney. When the district court's order became final and the district attorney and other interested persons failed to appeal, E.J.R.'s privacy right vested.
In essence, after the final order was entered by the district court sealing his criminal convictions records and the period for appeal passed, E.J.R.'s interest vested. E.J.R.'s right is no longer "dependent upon the common law or the statute under which it was acquired for its assertion, but has an independent existence." Id. at 1331. Because E.J.R.'s interest exists as a consequence of the district court's May 13, 1991 order sealing his records, it naturally follows then that the question of whether E.J.R.'s petition to seal was filed before or after the effective date of the reenacted statute is irrelevant.
B
The district court erred in concluding that the order to seal E.J.R.'s records had been entered without subject matter jurisdiction. Generally, when courts have the power to adjudicate issues in the class of suits to which a particular case belongs, a court's interim orders and final judgments, whether right or wrong, are not subject to collateral attack for lack of subject matter jurisdiction. 7 James W. Moore, Moore's Federal Practice, 60.25[2] at 228-9 (2d ed. 1993). The United States Supreme Court addressed the issue of the effect of a collateral attack upon a judgment of a trial court when the statute under which the judgment was rendered was later declared invalid. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 319-320, 84 L.Ed. 329 (1940). In Chicot, the Supreme Court held that, where the issue of jurisdiction was "not alleged in the proceedings," and later the jurisdiction of the trial court was challenged, the judgments and decrees of the trial court are "not absolute nullities." Id. As set forth by the opinion of Chief Justice Hughes, writing for a unanimous court,
The argument is pressed that the District Court was sitting as a court of bankruptcy, with the limited jurisdiction conferred by statute, and that, as the statute was later declared to be invalid, the District Court was without jurisdiction to entertain the proceeding and hence its decree is open to collateral attack. We think the argument untenable. The lower federal courts are all courts of limited jurisdiction, that is, with only the jurisdiction which Congress has prescribed. But none the less they are courts with authority, when parties are brought before them in accordance with the requirements of due process, to determine whether or not they have jurisdiction to entertain the cause and for this purpose to construe and apply the statute under which they are asked to act. Their determinations of such questions, while open to direct review, may not be assailed collaterally.
In the early case of McCormick v. Sullivant, 10 Wheat. 192, 6 L.Ed. 300, . . . this Court said: "But this reason proceeds upon an incorrect view of the character and jurisdiction of the inferior courts of the United States. They are all of limited jurisdiction; but they are not, on that account, inferior courts, in the technical sense of those words, whose judgments, taken alone, are to be disregarded. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may, upon a writ of error or appeal, be reversed for that cause. But they are not absolute nullities."
Id. This analysis applies here with even greater force as our district courts are courts of general jurisdiction.
In 1988 the Sealing Statute was repealed and reenacted with amendments. See n. 4, supra. Because the statute was simultaneously reenacted with only a partial change in wording, the district court did not lose subject matter jurisdiction to interpret the amended statute as a consequence of the repeal and reenactment. See Callahan v. Jennings, 16 Colo. 471, 27 P. 1055 (1891) (portion of amended sections which are merely copied without change are to be considered to have been the law all along). Because the statute continued to permit the petitions seeking the sealing of certain criminal records, a ruling or order of the trial court that is irregular or erroneous because it misapplies the law is not later open to collateral attack.
The district attorney in this case has argued that the order of the district court sealing E.J.R.'s criminal convictions is void, and has sought relief under C.R.C.P. 60(b)(3). In this case, however, the trial court order was not void because the court retained proper subject matter jurisdiction over the issue before it. The court's judgment was, however, in error, according to our later decision in D.K.B. When the trial court ordered E.J.R.'s criminal records sealed, it was acting in accordance with current practice and law, therefore the subsequent invalidation of that practice by D.K.B. rendered the judgment erroneous but not void within the meaning of C.R.C.P 60(b)(3). King v. Everett, 775 P.2d 65, 67 (Colo.App.) cert. denied, 786 P.2d 411 (Colo. 1989). It is well settled that a judgment is not void simply because it is erroneous or is based upon precedent which is later deemed incorrect. Davidson Chevrolet v. City and County of Denver, 138 Colo. 171, 330 P.2d 1116 (1958); Chicot, 308 U.S. at 376 (citing McCormick v. Sullivant, 10 Wheat. 192, 23 U.S. 192 (1825)); Maesch v. Maesch, 761 F. Supp. 584, 586 (S.D. Ind. 1989); see King, 775 P.2d at 66 (in the interest of finality, the concept of void judgments is narrowly construed and does not include erroneous applications of law). An erroneous judgment is one rendered in accordance with the method of procedure and practice allowed by the law, but contrary to the law. Davidson, 138 Colo. at 174-75, 330 P.2d at 1118. In this case, the statute provides and the district court followed the method of procedure and practice which allows courts to close and seal records. However, because E.J.R. did not meet the requirements of the statute regarding which records could be sealed, the district court acted contrary to the law when it issued its order sealing E.J.R.'s records. Hence, the May 13, 1991 order is erroneous but not void. Because the district attorney failed to contest E.J.R.'s petition before the trial court and then failed to appeal, the district attorney may not now, two years hence, use Rule 60 as a substitute for an appeal he failed to timely pursue. Maesch, 761 F. Supp. at 587; see Lubben v. Selective Serv. Sys. Local Board No. 27, 453 F.2d 645, 651 (1st Cir. 1972) (failure to prosecute an appeal bars relief under Rule 60(b)).
The federal cases referred to herein cite Fed.R.Civ.P. 60(b)(4) for void judgments. Our corresponding rule is C.R.C.P. 60(b)(3), which establishes the same principles and provides the same language as the federal rule.
The district court's action was erroneous only if the claims of the prosecutor are correct in that the record contained a felony conviction.
C
We have long recognized that a definite public interest exists in the assured final adjudication of controversies and conclusiveness of judgments. See, e.g., McLeod v. Provident Mutual Life Insurance Co. of Philadelphia, 186 Colo. 234, 240-41, 526 P.2d 1318, 1322 (1974). As stated in 1 Abraham Freeman, Law of Judgments § 305 at 602-3 (1925):
The law aims to invest judicial transactions with the utmost permanency consistent with justice. That the formal pronouncements of legal tribunals upon causes submitted to them should enjoy every possible degree of finality and conclusiveness would seem to be a necessary predicate to the proper functioning of the courts themselves. . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown.
In this case, permitting the district court, three years later, to reverse its earlier final judgment would undermine the security and validity of a judicial decision which determined rights with notice and the opportunity to object and later appeal. We have previously recognized the importance of finality in judgment. See, e.g., Ravin v. Gambrell, By and Through Eddy, 788 P.2d 817, 820 (Colo. 1990) (requirement of prejudice recognizes the policy of encouraging finality of judgments); Craig v. Rider, 651 P.2d 397, 403 (Colo. 1982) (competing with the policy favoring resolution of disputes on their merits is the important interest in finality of judgments). Today, under these facts, we reaffirm that practice.
III
In sum, because E.J.R.'s interest in preserving the privacy of his criminal records is predicated on an order of the district court and not on the Sealing Statute, and because the order became a final judgment that the district attorney failed to appeal, we conclude E.J.R. has a vested right in preserving the confidentiality of his criminal records. We hold that the March 15, 1994 order of the district court that E.J.R.'s sealed records be unsealed constitutes an abuse of discretion. Accordingly, we make the rule absolute, and direct the district court to vacate its March 15, 1994 order.
CHIEF JUSTICE ROVIRA dissents, and JUSTICE ERICKSON and JUSTICE VOLLACK join in the dissent.