APPEAL from the Circuit Court of Jackson County; the Hon. JOHN
H. CLAYTON, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
The city of Carbondale appeals from an order of the Circuit Court of Jackson County denying its petition to intervene and its motion to dismiss, and granting the petition of Arthur J. Valentine to expunge the record of arrest pertaining to him from the official records of the city of Carbondale.
Valentine was a police officer employed by the city of Carbondale. He has since been dismissed from service. On December 14, 1975, an information was filed by the State's Attorney of Jackson County charging him with the offense of rape. On December 22, 1975, the information was dismissed for lack of sufficient evidence on motion of the State's Attorney; no indictment was sought or returned against Valentine.
On January 9, 1976, Valentine moved to expunge the official record of his arrest from the arresting agencies as provided in section 5 of "An Act in relation to criminal identification and investigation" (Ill. Rev. Stat. 1975, ch. 38, par. 206-5). The motion was directed to the Honorable John H. Clayton, chief judge of the First Judicial Circuit. Neither the city of Carbondale nor any other governmental entity that could be described as an "arresting agency" was made a party to the proceedings or served with notice of the motion.
The city of Carbondale sought leave to intervene and file a motion to dismiss, which leave was denied by Judge Clayton. An order was entered on February 17, 1976, expunging the record of Valentine's arrest from the official records of the Carbondale Police Department, the Illinois State Police and the office of the sheriff of Jackson County and requiring the return to Valentine of all photographs, fingerprints or other records of identification relating to the arrest of Valentine by these arresting agencies.
In the trial court the city attempted to raise the unconstitutionality of the statute in question, as contrary to the fourteenth amendment of the United States Constitution and article I, section 2, of the Illinois Constitution of 1970, in denying to the "arresting authority" and specifically the city of Carbondale due process of law. The same assignment of error is made on appeal. Additionally, the city argues that the statute contravenes section 18 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 18) in that it authorizes the entry of an order or judgment requiring the city to perform acts, that is, "expunge" records, in the absence of jurisdiction over the city.
The petition to intervene filed pursuant to section 26.1(1)(b) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 26.1(1)(b)) stated that Valentine was appealing his dismissal from service and that the city had an interest in maintaining Valentine's arrest record as the allegations resulting in his arrest were in part the basis for his dismissal.
The statute in question requires all police agencies in the State of Illinois to furnish to the Department of Law Enforcement fingerprints and descriptions, including apparently photographs, of all persons arrested on charges of violating certain penal statutes of the State. All photographs, fingerprints or other records of identification must be returned to the person so charged upon his acquittal or release without prosecution. The statute provides further that if the person has no previous conviction of any criminal offense or municipal ordinance, the chief judge of the circuit, or any judge designated by the chief judge, may, additionally, upon verified petition of the person so charged and acquitted or released, order the record of arrest expunged from the official records of the arresting authority. The statute provides that notice of the filing of such a petition to expunge shall be served on the State's Attorney and, unless the State's Attorney objects within 30 days, the court shall enter an order granting or denying the petition.
The city has framed its attack on the trial court's order of expungement in terms of intervention, want of jurisdiction over the city and unconstitutionality of the statute. It suggests further that no evidence was adduced at the hearing on the petition of Valentine indicating that the city was an arresting entity.
• 1 The short answer to the latter complaint is that the order is inoperative as to the city if in fact it was not an arresting authority as it then has nothing to expunge from its records. As to intervention as of right or discretionary intervention, it is clear that the statute providing for expungement does not contemplate an adversary proceeding in which the city may participate. It does not require that the city be made a party as it intends the State's Attorney or appropriate prosecuting authority to be the spokesman for the public and to represent the public interest, including that of the city of Carbondale and its police department.
The city argues that its interest in maintaining accurate and complete criminal identification records is not parallel to the prosecuting authorities' duty to prosecute law violators. This may be true, but the legislature in its wisdom may enact legislation extending to individuals arrested rights and privileges that may reduce the effectiveness of a police department's criminal identification system; it may impose on municipalities and their employees the burden of performing acts other than in an adversary framework; in this context the concept of jurisdiction expressed in the Civil Practice Act is meaningless unless the statute imposing the duties falls from some constitutional infirmity.
Thus the issue is whether a statute may authorize a court to enter an order requiring a municipality through its officers and employees to perform acts without first giving the municipality notice and an opportunity to be heard.
The statute before us has been amended from time to time, presumably in response to the decisions in Maxwell v. O'Connor, 1 Ill. App.2d 124, 117 N.E.2d 326 (1st Dist. 1953) (no jurisdiction in criminal court of Cook County); Kolb v. O'Connor, 14 Ill. App.2d 81, 142 N.E.2d 818 (1st Dist. 1957) (statute not applicable to Chicago police commissioner); People v. Lewerenz, 42 Ill. App.2d 410, 192 N.E.2d 401 (1st Dist. 1963) (statute only applicable to Department of Public Safety); and City of Chicago v. Mayers, 68 Ill. App.2d 442, 216 N.E.2d 298 (1st Dist. 1966) (improper parties defendant). These authorities are thus of no assistance in deciding the question in the instant case in view of the present wording of section 5 (Ill. Rev. Stat. 1975, ch. 38, par. 206-5). The recent case of St. Louis v. Drolet, 39 Ill. App.3d 27, 348 N.E.2d 289 (3d Dist. 1976), aff'd sub nom. In re St. Louis, 67 Ill.2d 43, 364 N.E.2d 61 (1977), did not present the issues now before us.
The General Assembly has expressed its continuing concern with the right of privacy of those falsely accused of crime, notwithstanding the continuing resistance of law enforcement agencies to the full implementation of the public policy evidenced by section 5 (Ill. Rev. Stat. 1975, ch. 38, par. 206-5). As indicated, the statute has been the subject of numerous amendments to meet the procedural difficulties developed in the cases cited above. The statute strikes a balance between a concern for effective record keeping by law enforcement agencies and the right of privacy of individuals, and vests in the circuit ...