BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session SB 209 S Senators Corbett & Harman B As Introduced Hearing Date: March 31, 2009 2 Civil Code 0 GMO:jd 9 SUBJECT Civil Actions: Access by Persons with Disabilities DESCRIPTION This bill would require a Certified Access Specialist (CASp) inspection report, submitted to the court in an action involving alleged violations of disability access laws to trigger an early evaluation conference, to remain confidential rather than be under seal and subject to protective orders of the court. The bill would specify who would have access to the CASp report and when confidentiality of the report would terminate. BACKGROUND In 2008, landmark legislation was enacted to increase enforcement of disability access laws while providing a measure of relief to businesses that are in compliance or that attempt to comply with federal and state disability access laws. (SB 1608, Corbett et al., Ch. 549, Stats. 2008.) SB 1608 created the California Commission on Disability Access, required all inspections relating to permitting, plan checks, or new construction in privately owned buildings to be conducted by a building inspector who is a Certified Access Specialist (CASp), and established a procedure for a business sued for violations of construction-related disability access requirements to request a court-ordered stay and early evaluation conference (EEC) to resolve the complaint (if possible), if the business had been inspected by a CASp. SB 209 is a follow-up bill to address some issues, raised by the Judicial Council and the California Newspaper Publishers (more) SB 209 (Corbett & Harman) Page 2 of ? Association about the sealing of a CASp report filed with the court by a qualified defendant, that were too late for inclusion in the final version of the bill. These issues were identified in a Letter to the Journal dated August 14, 2008, signed by all authors and co-authors of SB 1608 and submitted to both the Senate and the Assembly. CHANGES TO EXISTING LAW 1. Existing law requires a court, in an action involving a construction-related accessibility claim, to issue an order granting a 90-day stay of the proceedings and scheduling an early evaluation conference, pursuant to a request by a defendant who claims that the premises alleged in the complaint to have been non-compliant with disability access laws had been inspected by a Certified Access Specialist (CASp). (Civil Code Sec. 55.54.) Existing law requires the court's order pursuant to Sec. 55.54 to direct the defendant to file with the court under seal and to serve on all parties a copy of the CASp report at least fifteen (15) days before the date set for the early evaluation conference. Existing law makes the submitted CASp report subject to a protective court order maintaining the confidentiality of the report. (Civil Code Sec. 55.54(c).) This bill would make the CASp report confidential instead of "under seal." This bill would specify that the CASp report is available only to the court, the parties to the action, the parties' attorneys, those individuals employed or retained by the attorneys to assist in the litigation, and insurance representatives or others necessary to the settlement of the case, unless access is granted by the court upon a showing of good cause by any party. 2. Existing law provides that the court may lift the seal and protective order on a CASp inspection report at the conclusion of the stay or at a later time upon a showing of good cause by any party, and that the seal and protective order terminates upon conclusion of the claim. (Civil Code Sec. 55.54(e)(4).) This bill would instead provide that a CASp inspection report filed with the court shall remain confidential throughout the SB 209 (Corbett & Harman) Page 3 of ? stay and for the duration of the litigation until the conclusion of the claim, unless there is a showing of good cause by any party, and shall terminate upon conclusion of the claim unless the owner of the report obtains a court order sealing the report. COMMENT 1. Stated need for the bill SB 209 intends to make the stay and early evaluation conference available to defendants in construction-related accessibility litigation less cumbersome for the courts to implement. During the final weeks of the last legislative session, the Judicial Council and the California Newspaper Publishers Association addressed the burdens and benefits of keeping records under seal, and agreed that making the records confidential instead would serve the purposes and goals of SB 1608. The authors agreed, but due to the lateness of the session, the authors were unable to amend the bill. Thus, a Letter to the Journal was submitted. SB 209 results from the commitment made by the authors to address those concerns. 2. Keeping CASp inspection reports confidential instead of under seal Under SB 1608, a business that is sued for violations of disability access laws may request a stay of the proceedings and an early evaluation conference (EEC) where the lawsuit may be settled, if the business had been inspected by a certified access specialist (CASp). The CASp report must be submitted to the court no later than fifteen days prior to the date set for the EEC. The CASp report is filed under seal and subject to a protective order maintaining confidentiality of the report until the conclusion of the claim, unless a showing of good cause is made to the court to order the record unsealed. Sealing specified records in any proceeding involves the court reviewing those records, extracting them from the publicly-accessible file, and keeping those records separate in a sealed and marked envelope. To unseal any sealed record, it generally requires a formal application to the court, perhaps a hearing if there is opposition, and another review by the court to determine whether the record should be unsealed or not. Although this process may be a little more onerous than the simple maintenance of a "confidential" portion of a court file, SB 209 (Corbett & Harman) Page 4 of ? the real burden of the sealing/unsealing process is on a person who wishes to access the sealed record. If this person is not a party to the litigation (such as a potential plaintiff who wants to know what the CASp reported vis-?-vis the defendant business entity, or a neighboring business in the same building who wants to know what improvements the CASp-inspected business premises has to make to its premises, or a newspaper reporter who wants to write about ADA-compliant or non-ADA compliant businesses), it is highly unlikely that he or she can get a record unsealed. In other words, the burden is high, once a record is sealed, to unseal the record. This is why, in certain instances, a sealed record is automatically unsealed at a given point of reference (such as after so many years, or when a juvenile turns 18). Based on concerns raised by those who want to minimize the practice of sealing records and the burden such a process imposes on the courts, SB 209 would instead make the CASp report confidential. Thus, the CASp report would simply be kept in a file folder separate from the publicly-accessible portion of the court's file, still accessible but only to those specified under SB 209. 3. CASp report available to litigants and involved parties, and to others only upon showing of good cause Although the CASp inspection report would become confidential (rather than sealed), SB 209 would allow disclosure of the CASp inspection report to the court, parties to the action, the parties' attorneys, and others necessary to the settlement of the case. The report would remain confidential throughout the stay and for the duration of the litigation, until the conclusion of the claim, whether by dismissal, settlement, or final judgment on the action. However, it may be disclosed to any party upon petition and a showing of good cause. Further, under this bill, the confidentiality of the CASp report would terminate upon the conclusion of the claim, making the CASp report available to any member of the public, unless the owner of the report obtains a court order pursuant to the California Rules of Court to seal the report. Support : Judicial Council of California; American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO SB 209 (Corbett & Harman) Page 5 of ? Opposition : None Known HISTORY Source : Authors Related Pending Legislation : None Known Prior Legislation : SB 1608 (Corbett et al., Ch. 549, Stats. 2008). (See Background.) **************