Appeals from the Superior Court of the District of Columbia (D-74-02) (Hon. Cheryl M. Long, Trial Judge)
Before Terry, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
In these consolidated appeals, the District of Columbia challenges a decision by the trial court to grant appellee's motion under Super. Ct. Crim. R. 118 to seal the record of his arrest for disorderly conduct. The District makes three arguments. First, it contends that the trial court mistakenly ordered the United States Attorney's Office to respond to appellee's motion, and that consequently the District did not learn of the court's order directing a response until the deadline for responding had passed. Second, the District maintains that the court erred in treating appellee's motion to seal as conceded because the motion did not make a prima facie showing that he was entitled to relief, as the case law requires. Third, the District asserts that the trial court's reasons for granting appellee's motion were legally unsound. We agree with the first and third arguments (we do not reach the second) and remand the case for further proceedings, specifically including the filing of a response by the District to appellee's motion to seal and consideration of that response by the court before ruling anew on appellee's motion.
Appellee Houston was arrested for disorderly conduct on January 12, 2002. Later that same day, the Corporation Counsel no-papered the disorderly conduct charge. *fn1 A "No Paper and Change of Charge Slip," which is in the record, bears the signature of an Assistant Corporation Counsel.
On April 5, 2002, Mr. Houston filed a motion, pursuant to C riminal Rule 118, to seal the record of his arrest. The motion requested -- incorrectly -- that "the United States Attorney" be ordered to collect and seal all records of Houston's arrest on January 12, including photographs, fingerprints, and computer files. The certificate of service accompanying the motion stated that a copy had been served on "the Office of the United States Attorney," but it made no mention of the Corporation Counsel, nor did the motion itself. On May 28 the court ordered the United States Attorney's Office to respond to appellee's motion by June 28. *fn2
The District of Columbia did not learn of the court's May 28 order until July 17. On August 7 the Corporation Counsel, on behalf of the District, filed a motion requesting more time to respond to appellee's motion, explaining that "[t]he Order to respond, as well as the defendant's motion, had been sent to the U.S. Attorney's Office instead of the Office of the Corporation Counsel. By the time the order reached this office, the deadline imposed by this Court for a response had already passed." *fn3 On August 22, without ruling on the Corporation Counsel's motion, the trial court granted appellee's motion to seal, stating: "No opposition or any other pleading was filed by the United States. Consequently, the Court will treat the motion as conceded." [Emphasis added.] The court ordered that "the disorderly conduct charge shall be expunged by the Metropolitan Police Department, to the extent prescribed in D.C . Code 33-541 (e)(2) and Super. Ct. C rim. R. 32 (f)(1)." *fn4
On August 29, one week later, the Corporation Counsel filed a second motion requesting more time to respond. *fn5 The court denied this motion on September 9, explaining that it had "already granted Defendant's Motion to Seal on August 22, 2002, based on the charge being no-papered, this Court's acceptance of Defendant's version of the facts surrounding the arrest (not disputed through the Form 163), and the lack of timely opposition to Defendant's motion." The District noted appeals from both the August 22 order and the September 9 order.
The District's primary argument on appeal is that the trial court abused its discretion in denying the District's motion for more time to respond to Mr,. Houston's motion to seal because the court ordered the wrong prosecutor, the United States Attorney, to file a response. As a consequence, the District did not learn of the court's May 28 order until the deadline for responding (June 28) had passed. We agree with the District that in these circumstances the court abused its discretion.
Rule 118 (c) makes clear that if a response to a motion to seal an arrest record is warranted, the court must order the prosecutor who handled the case to respond to the motion. The rule states in part, "In the event the motion is not [summarily] denied, the Court shall order the prosecutor to file a response to the motion, if the prosecutor has not already done so." The word "prosecutor" in the rule cannot be construed to mean anything other than the prosecutor who originally brought the case. We say this because there are two prosecutors in the District of Columbia, the United States Attorney (representing the United States) and the Corporation Counsel (representing the District). Their respective duties are set forth in various statutes, mainly in D.C. Code § 23-101 (2001). Mr. Houston ignores this distinction when he argues that the trial court's order directing the United States Attorney to respond was correct because the United States Attorney's office represents "the government." This argument is unpersuasive because Rule 118 (c) specifically states that the trial court shall order "the prosecutor" -- not "the government" -- to respond to a m otion to seal. Given the division of prosecutorial authority between two separate offices, and particularly in light of D.C. Code § 23-101, we can only conclude that the use of the word "prosecutor" in this rule was the result of a conscious choice by its drafters, no doubt in an effort to avoid any uncertainty as to which prosecutor would be the relevant one in a given case.
Moreover, the record affirmatively shows that it was an Assistant Corporation Counsel who no-papered appellee's disorderly conduct charge, and for that reason, if no other, the court should have ordered the Corporation Counsel to respond to the motion to seal. Even if the trial court overlooked the "No Paper and Change of Charge Slip" in the court file, it should have recognized that the Corporation Counsel prosecutes disorderly conduct charges in the District of Columbia. See D.C. Code § 23-101 (b) ("Prosecutions for . . . disorderly conduct . . . shall be conducted in the name of the District of Columbia by the Corporation Counsel or his assistants"); United States v. Bailey, 495 A.2d 756, 760 n.10 (D.C. 1985) (noting that "prosecuting authority for crimes committed in the District is bifurcated" and that the Corporation Counsel prosecutes certain types of misdemeanors, such as disorderly conduct). Thus the court erred in ordering the United States Attorney's office -- which had no prior contact w ith this case at all --to file a response to Mr. Houston's motion.
We are also satisfied that the District's motions for additional time to respond demonstrated excusable neglect -- or, more precisely, we hold that the court abused its discretion in refusing to find excusable neglect. The District explained in its motions that it needed more time because the court had mistakenly ordered the United States Attorney's Office to respond, and hence it did not even know about the court's order until the deadline for responding had passed. When the deadline for responding to a motion has passed, Super. Ct. Crim. R. 45 (b)(2) allows the court, in its discretion, to extend the time for responding "if the failure to act was the result of excusable neglect." "To demonstrate excusable neglect, [a party] must show that he has done all he could do under the circumstances to [file a response] within the time prescribed by the rules." Thomas v. United States, 586 A.2d 1228, 1229 (D.C. 1991); see also, e.g., Pryor v. Pryor, 343 A.2d 321, 322 (D.C. 1975) ("Excusable neglect has been held to include lack of knowledge of entry of a judgment"). Put another way, there must be "some reasonable basis for non-compliance with the time specified in the rules." Dada v. Children's National Medical Center, 715 A.2d 904, 908 (D.C. 1998) (citation omitted). On the specific record before us, we conclude that the District's explanation showed a "reasonable basis" for its failure ...