Ancillary Enforcement Jurisdiction: the Misinterpretation of Kokkonen and Expungement Petitions

• Publication year: 2020

Ancillary Enforcement Jurisdiction: The Misinterpretation of Kokkonen and Expungement Petitions

Brandon Salky

ANCILLARY ENFORCEMENT JURISDICTION: THE MISINTERPRETATION OF KOKKONEN AND EXPUNGEMENT PETITIONS

Abstract

Criminal records do not always provide the disposition of the case. Therefore, in some circumstances, individuals who were arrested and subsequently had their charges dismissed or who were acquitted at trial are not always distinguishable from those convicted of a crime. For those individuals who were convicted of a crime, criminal records additionally do not always provide information on the crime you were convicted of. Consequently, the proliferation in access to background checks has resulted in the stigma associated with an arrest record becoming a significant barrier to employment and housing opportunities for individuals with a record.

Prior to the Supreme Court's decision in Kokkonen v. Guardian Life Insurance Co. of America, nearly every federal circuit had held that district courts had ancillary jurisdiction to entertain motions to expunge criminal records solely under equitable considerations. District courts, in deciding these petitions, would balance the interests of the individuals in having their records expunged against the interests of the public in having the records widely available. Because of the great strength of the public interest in the availability of these records, a court would only grant these petitions in extraordinary circumstances.

The Court in Kokkonen attempted to clarify the scope of the murky and ill-defined ancillary jurisdiction doctrine. The Court set forth two circumstances in which ancillary jurisdiction had generally been asserted: "(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent. . . and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees . . . ." After this decision was cast down, there has been a domino effect of federal circuits holding they no longer have the authority to assert ancillary jurisdiction over equitable expungement motions reasoning that they do not fall within the reach of the test Kokkonen articulates.

Unfortunately for individuals with criminal records, these circuit courts interpret the Court's decision in Kokkonen far too narrowly. Accordingly, this Comment argues that neither the language of the holding in Kokkonen nor the holding itself warrant the restrictive interpretation that these circuits apply.

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These lower courts are disregarding the qualifying language the Court employed and the cues the Court gave that demonstrate its intent was not to set a strict standard for ancillary jurisdiction.

Introduction...........................................................................................1257

I. Issues Equitable Expungement has the Potential to Remedy...........................................................................................1260

A. Employment Issues ................................................................. 1260
B. Housing Issues........................................................................ 1262
C. Increase in Recidivism............................................................ 1263

II. Sources of the Courts' Jurisdiction to Expunge Records .. 1264

A. Equitable Powers .................................................................... 1265

1. A Court Should Only Expunge Criminal Records in Extreme Circumstances .................................................... 1266

B. Expungement Statutes............................................................. 1268

1. Federal Statutes................................................................ 1268
2. State Statutes .................................................................... 1269

C. Violations of the Constitution ................................................. 1271

1. Federal Courts ................................................................. 1271
2. State Courts ...................................................................... 1272

III. Overview of Ancillary Jurisdiction and the Kokkonen Decision.........................................................................................1274

A. Ancillary Jurisdiction ............................................................. 1274
B. Traditional Exercises of Ancillary Jurisdiction...................... 1276
C. The Kokkonen Decision .......................................................... 1279
D. The Two Prongs of Kokkonen................................................ 1282

IV. Equitable Expungement Before and After Kokkonen.........1289

A. Equitable Expungement Prior to Kokkonen........................... 1289
B. Equitable Expungement After Kokkonen ............................... 1292

V. The Constraining Misinterpretation of Kokkonen..............1297

A. The Misinterpretation ............................................................. 1298
B. The Area Between the Prongs: Kokkonen (1.5) ..................... 1301

Conclusion...............................................................................................1304

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"The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct."

—Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957)

Introduction

The United States has a glaring need for an equitable mechanism to enable a federal court to expunge criminal records. This need is exemplified by the fact that out of the roughly 327 million people living in the United States today,¹ more than 100 million have arrest records.² To put that into perspective: If the 100 million people in the United States with arrest records formed their own country, that new country would rank in the top twenty countries by world population.³ Even more startling, researchers have estimated that by the age of twenty-three, nearly one-third of Americans⁴ and roughly 50% of African-American males will have been arrested.⁵

If an individual is arrested, that individual has a criminal record.⁶ However, the fact that an individual has a record is not indicative of whether that individual committed any criminal act.⁷ Accordingly, criminal records are misleading, which stems from the fact that they do not always distinguish between individuals who have had their charges dismissed, are acquitted at trial, or are convicted of a crime.⁸

This lack of delineation about the ultimate outcome of a case is displayed in a study conducted by the National Employment Law Project.⁹ The study found

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that 50% of FBI records do not include the final disposition of the case.¹⁰ Additionally, the study discovered that "a majority of the U.S. population live in states where more than 30 percent of the arrest records . . . do not include . . . the final outcome of the case."¹¹ Thus, the stigma associated with a record, regardless of conviction, and what the conviction was for, can pose substantial problems for an arrestee in today's society. Loretta Lynch, while Attorney General of the United States, observed that in the current state of society in the United States, the stigma associated with a criminal record places an individual at a sometimes-insurmountable disadvantage:

Too often, Americans who have paid their debt to society leave prison only to find that they continue to be punished for past mistakes. They might discover that they are ineligible for student loans, putting an education out of reach. They might struggle to get a driver's license, making employment difficult to find and sustain. Landlords might deny them housing because of their criminal records—an unfortunately common practice. They might even find that they are not allowed to vote based on misguided state laws that prevent returning citizens from taking part in civic life.¹²

This stigma has extreme negative consequences in employment and housing opportunities, as well as increases the chances of recidivism.¹³ Accordingly, these consequences act as a catalyst for a self-feeding cycle that is arduous for a person with a criminal record to detach themselves from.

The cycle begins with an arrest. Afterwards, a person either has her charges dismissed, pleads guilty, or is convicted or acquitted at trial.¹⁴ Regardless of the outcome of the case, that person now has a record¹⁵ which plays a stifling role in her ability to gain employment.¹⁶ This record, coupled with the struggle to find employment, further contributes to a lack of housing opportunities.¹⁷ Altogether, the difficulty of finding adequate employment and stable housing

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has a strong correlation to increased recidivism rates.¹⁸ Thus, the cycle starts over again, with an arrest.

Prior to the Supreme Court's decision in Kokkonen v. Guardian Life Insurance Co. of America,¹⁹ a district court had the authority, through the exercise of ancillary jurisdiction, to save an individual from this vicious cycle solely under equitable considerations.²⁰ A court could exercise its ancillary jurisdiction in response to an individual's petition to have their record expunged.²¹ However, after the Court decided Kokkonen, circuit courts, starting with the Ninth Circuit, began holding one by one that the Court's decision precluded district courts from exercising ancillary jurisdiction to hear expungement petitions that raise solely equitable considerations.²² This comment argues that this interpretation of Kokkonen is far narrower than the language of Kokkonen suggests and further asserts that a district court's jurisdiction to expunge criminal records under solely equitable considerations is not precluded by the Supreme Court's holding.

Part I of this Comment provides an overview of the employment and housing issues presented to individuals with criminal records as well as discusses how those issues lead into increased...