BILL ANALYSIS
SB 1015
Page 1
Date of Hearing: March 21, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 1015 (Murray) - As Amended: March 9, 2006
SUBJECT : FAMILY LAW: PRIVACY REQUESTS IN DIVORCE CASES
KEY ISSUES :
1)should the parties' financial information GENERALLY BE KEPT
SECRET in DIvorce proceedings, UPON REQUEST BY EITHER PARTY?
2)Is this PROPOSAL, WHICH REQUIRES THE COURT TO REDACT FINANCIAL
INFORMATION WITHOUT AN opportunity FOR THE COURT to BALANCE
the public right of access to court documents against the
individual interests of the party seeking privacy,
sufficiently narrowly tailored to COMPLY WITH THE FIRST
AMENDMENT?
3)how might the bill be amended to better comport with the
constitutional dictates enumerated in the recent appellate
court case?
SYNOPSIS
This bill seeks to address complex constitutional concerns
raised recently in the case of Burkle v. Burkle . In that case,
the appellate court held that family court records containing
personal and financial information could only be sealed from
public view if a four-part "public access" test set forth by the
California Supreme Court in NBC v. Superior Court could be
satisfied. Applying this test, the court found that Family Code
Section 2024.6, which the Legislature enacted in 2004 to protect
the privacy of divorcing couples, painted with too broad a
privacy brush, and therefore is facially unconstitutional under
the First Amendment. The appellate court stated that, by
requiring a family court, upon request, to seal the entirety of
court pleadings which listed any financial information about the
requesting parties, Family Code Section 2024.6 violated two of
the NBC constitutionality requirements. Specifically, the court
held that: 1) the broad sealing required in the current version
of the statute is not sufficiently narrowly tailored to serve
the stated "overriding interest" of avoiding identify theft and
other crimes; and 2) there is a "less restrictive means"
SB 1015
Page 2
available for achieving those objectives, namely, the targeted
redaction of specific financial or other information that could
reasonably be shown, on a case-by-case basis, to increase the
risk of identify theft or others crimes.
This bill seeks to modify Family Code Section 2024.6 principally
in two ways. First, the measure sets forth (unlike its
predecessor legislation) specific legislative findings to
support the contention that parties to a marital dissolution
have an overriding interest in being able broadly to protect
their private financial lives from press and public view.
Second, the bill seeks to retain the existing presumption in
favor of allowing a party in a divorce proceeding to shield all
of his or her financial information, but instead of requiring
entire pleadings to be shielded, the measure calls for the
mandatory redaction, or marking out, of only those parts of
court documents that list any financial information about the
petitioning party.
In support of the bill, the author states that while open
records principles should generally govern court records, the
simple fact that people get divorced in our society should not
mean they lose their right to financial privacy. Also in
support, the Family Law Section of the State Bar writes that the
bill properly balances the public's right to know against the
privacy needs of family law litigants.
Notwithstanding the bill's proposed statutory changes, however,
this analysis concludes that, absent the substantial amendments
recommended in the analysis, it appears likely a court would
find the proposed measure continues to possess the
constitutional flaws identified in the recent appellate
decision. The analysis therefore recommends for the author's
and the committee's consideration that the measure be amended
to, most importantly, replace the bill's current presumption in
favor of privacy for all financial information with the Burkle
court's required balancing test that retains the court's
discretionary ability to determine, on a case-by-case, fact
specific basis, whether the party who is requesting the
shielding of his or her financial information has adequately
shown "a substantial probability of prejudice to the requesting
party's privacy interest of higher value that outweighs the
public's right of access to the court records." The analysis
also recommends additional amendments to address the bill's
treatment of the "private judging" issue.
SB 1015
Page 3
As they did with the original legislation enacting Family Code
Section 2024.6, a plethora of media organizations strongly
oppose this bill, stating, among other things, that the measure
continues to paint with far too broad a secrecy brush, and that
the bill, like its predecessor, will again quickly be found to
be a facial violation of the First Amendment due to its broad
sweeping and mandatory nature. The National Organization for
Women also opposes the bill, as do the Coalition of Family
Equity, and the Commission on the Status of Women. Several
First Amendment-oriented organizations also oppose the
legislation.
SUMMARY : Seeks to modify the existing statute designed to
shield financial information in marital dissolution cases to
address a finding of unconstitutionality made by the appellate
court in the recent decision of Burkle v. Burkle . Specifically,
this bill:
1)States legislative intent and findings including that existing
law does not adequately protect the right of privacy in
dissolution or nullity of marriage or legal separation
proceedings, and that the Legislature intends to more fully
protect that right; that in the context of divorce
proceedings, the unnecessary public disclosure of financial
assets, liabilities, income or expenses and residential
addresses raises a substantial probability of prejudice to a
financial privacy interest that overrides the public's right
of access to court records; and that the redaction of
documents containing such information is the least restrictive
means of protecting the financial privacy of the parties while
recognizing the public's right of access to court records.
2)Provides that, notwithstanding any other provision of law,
upon request by either party to a proceeding for dissolution
or nullity of marriage or legal separation, the court shall
order redacted any portion of a pleading containing the
parties' financial assets, liabilities, income or expenses or
provides the location of, including a residential address, or
identifying information about those assets, liabilities,
income or expenses. Requires that, subject to the direction
of the court, no more of any pleading than is necessary to
protect the parties' overriding right to privacy may be
redacted. Requires that pleadings include any document that
sets forth assets, liabilities, income or expenses, a marital
SB 1015
Page 4
settlement agreement or any document attached to such an
agreement that lists financial information. The request may
be made by ex parte application, and any pleading sealed or
redacted pursuant to this procedure may not be restored except
upon petition to the court and good cause shown.
3)Authorizes a privately-compensated temporary judge to order
pleadings redacted under #2, above.
4)Requires that the party making the request to redact a
pleading serve a copy of the pleading containing the financial
information subject to the request on the other party and file
a proof of service with the request to redact.
5)Does not preclude a law enforcement or government regulatory
agency, otherwise authorized, to access the unredacted
pleadings.
EXISTING LAW :
1)Provides that Congress shall make no law abridging the freedom
of speech, or of the press. (U.S. Constitution, First
Amendment.)
2)Explicitly and specially protects the right to privacy of all
Californians under the California Constitution. (California
Constitution, Article I, Section 1.)
3)Provides that court proceedings shall be public, except as
provided in Family Code Section 214 or other provisions of
law. (Code of Civil Procedure Section 124.)
4)Provides that records may only be sealed by establishing an
overriding interest that overcomes the right of public access,
among other factors. These court rules also provide that no
record may be sealed solely by the stipulation of the parties.
(Cal. Rules of Court R. 243.1)
5)Provides that any electronic record in proceedings under the
Family Code, including dissolution of marriage, should not be
available to the public by remote Internet access. (Cal.
Rules of Court R. 2073(c).)
6)Provides that when a case is heard by a privately compensated,
temporary judge, a motion to seal records must be decided by
SB 1015
Page 5
the presiding judge or judge designated by the presiding
judge. (Cal. Rules of Court R. 244.)
7)Provides that the court may, when it considers it necessary in
the interests of justice, direct the trial of any issue of
fact joined in a family law proceeding to be private, and may
exclude all persons except the officers of the court, the
parties and their witnesses and counsel. (Family Code Section
214.)
8)Requires the court, upon request by a party in a dissolution
or legal separation, to seal any pleading that list the
parties' financial assets and liabilities and provides the
location or identifying information about those assets and
liabilities. Upon petition, allows the court to unseal
pleadings if "good cause" is shown. (Family Code Section
2024.6.) Holds Family Code Section 2024.6 unconstitutional
under the First Amendment. ( Burkle v. Burkle (January 20,
2006) 135 Cal.App.4th 1045.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS: This bill raises thorny and controversial issues
regarding our state constitution's special privacy protection on
the one hand, and our concomitant federal and state
constitutional commitments to maximize open access to court
proceedings on the other. Just two years ago, in 2004, the
Legislature passed by strong bi-partisan votes, and the Governor
signed, urgency legislation which established a new mechanism
for divorcing or separating parties to require family courts to
seal entire pleadings that contained any of their financial
information. (AB 782 (Kehoe), Ch. 45, Stats. of 2004.) The
stated purpose of that earlier bill was to protect divorcing
couples from being forced to expose their private financial
information to public view solely because they were getting
divorced. On January 20, 2006, however, the Second District
Court of Appeals, based in Los Angeles, held that the key
provision of AB 782, Family Code Section 2024.6, was an
unconstitutional violation of the First Amendment's right of
public access to court proceedings. This bill seeks to address
the court's declared constitutional infirmities in Family Code
Section 2024.6 by, among other things, adding legislative
findings including that unnecessary public disclosure of
financial information in a dissolution proceeding outweighs the
public's right to access court documents and proceedings, and by
SB 1015
Page 6
modifying Family Code Section 2024.6 to require targeted
redaction of all financial information rather than broad sealing
of entire court documents.
Notwithstanding the proposed statutory changes, however, this
analysis concludes below that, absent the amendments
recommended, it appears likely a court would find this proposal
continues to possess similar constitutional flaws identified in
the recent appellate decision.
Author's Arguments in Support : According to the author, while
open records principles should generally govern judicial records
and court proceedings, the time has come to make a
carefully-tailored exception for records and information in
divorce cases that affect only the parties to the dissolution or
legal separation. The author cites numerous anecdotes not only
of stolen identities but also of intrusive and allegedly unjust
media publicity about divorcing couples with substantial assets.
In most cases, the author states, the public clearly has no
need to know what assets a divorcing couple have accumulated,
where those assets are located, and how those assets are to be
divided.
The Long-Standing First Amendment Right of Public Access :
Though the constitutional right of access to civil proceedings
is not as well-developed as the right to attend criminal
proceedings, federal courts that have addressed the question
generally have held that the First Amendment provides a right of
access to federal civil proceedings, and that the First
Amendment carries with it "some freedom to listen." According
to one federal court, "[T]he [same] policy reasons for granting
public access to criminal proceedings apply to civil cases.
These policies relate to the public's right to monitor the
functioning of courts, thereby insuring quality, honesty and
respect for our legal system." ( In re Continental Illinois
Securities Litigation (1984) 732 F.2d 1302.)
The Press-Enterprise Cases : The U.S. Supreme Court, in a series
of cases brought by the Press-Enterprise newspaper, has
articulated a test to determine whether the First Amendment
right of access applies to proceedings outside of the criminal
trial. The two-part test asks "whether the place and process
have historically been open to the press and general public,"
and "whether public access plays a significant positive role in
the functioning of the particular process in question."
SB 1015
Page 7
( Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1.)
Generally the courts have concluded that the First Amendment
right of access therefore applies to civil proceedings as well
as criminal proceedings. They have also concluded that the
First Amendment right of access equally applies to court
documents as well as court proceedings.
California's Dual Tradition of Access and Privacy : It is also
well-established policy in California to allow maximum public
access to judicial proceedings and records. ( Estate of Hearst
(1977) 67 Cal. App. 3d 777.) Cases have held that "judicial
records are historically and presumptively open to the public
and there is an important right of access which should not be
closed except for compelling countervailing reasons." ( Pantos
v. City and County of San Francisco (1984); Champion v. Superior
Court (1988).) However California also has a long tradition of
recognizing and protecting privacy. Unlike many states, as
noted above our state constitution specifically and specially
recognizes the right to privacy. In addition, our courts,
including our Supreme Court, have specifically extended our
right of privacy to financial privacy. ( Valley Bank of Nevada
v. Sup. Ct. (1975) 15 Cal.3d 652, 656.)
Some Precedent for Court Closure in Certain Family and Other
Types of Cases : While California has historically sought to
allow maximum public access to judicial proceedings and records,
it is also important to note there have been some careful
statutory exceptions to this tradition. These include
dependency actions (Welfare & Institutions Code Sections 300.2,
346, 350, 827), paternity actions (Family Code Section 7643),
adoptions (Family Code section 8611), mediation of custody and
visitation rights (Family Code section 3177), and conciliations
(Family Code section 1818). Other proceedings may be closed at
the discretion of the court, e.g., custody hearings (Family Code
section 3041). In these family-related instances, the
Legislature has determined that it is necessary to close these
proceedings in order to protect the participants from harm that
could result from public intrusion into very private matters.
In addition, mental health hearings under the
Lanterman-Petris-Short Act to establish a conservatorship or
force an involuntary commitment may be closed, unless a public
hearing is requested by a party to the proceedings. (Welfare &
Institutions Code section 5118.) Finally, our courts also have
statutory authority to take broad steps to protect trade
secrets. (Civil Code section 3426.5.)
SB 1015
Page 8
The Controlling California Case of NBC v. Superior Court : As
noted, the seminal state Supreme Court case on public access to
civil proceedings which controls the constitutional analysis of
this legislation is NBC Subsidiary (KNBC-TV) Inc. v. Sup. Ct.
(1999) 20 Cal.4th 1178, written by Chief Justice Ronald George.
In that case, Sondra Locke sued Clint Eastwood for deceit,
intentional interference with prospective economic advantage and
breach of fiduciary duty, based on an alleged promise by
Eastwood to Locke to assist in the development of various movie
projects. Out of express concern to ensure a fair trial given
the intense press interest in the case, the trial court ordered
that all proceedings which occurred outside the presence of the
jury be closed to the public and to the press. On appeal,
however, the appellate court found the trial court's closure
order to violate the First Amendment. The appellate court
directed the trial court to vacate the secrecy order, and the
California Supreme Court then affirmed the appellate court's
"open access" order and held that First Amendment scrutiny is
triggered by the closure of civil proceedings.
Under the NBC test adopted by our Supreme Court, which is
largely consistent with the tests adopted by the federal courts,
civil proceedings and records in California cases, whether civil
or criminal, are presumed to be open to the public and the
press. In order to close a trial or a hearing, or in order to
seal court records, there are two basic requirements that must
be met: (1) The court must make sure that the public is given
notice of the possible closure or sealing, and must hold a
hearing; and (2) the court must make a number of findings in
order to justify a decision denying access. The notice
requirement is not a rigorous one. If a motion to close court
proceedings is made in open court during a hearing, the trial
judge must announce in open court that he or she intends to
close the proceeding. If a motion is made in writing, the
motion must be included on the public docket of the case prior
to being decided. The Supreme Court then set forth a four-prong
test, discussed below, that would, as with the earlier challenge
of Family Code Section 2024.6, determine the constitutionality
of this measure.
The Recent Burkle Appellate Decision : In June of 2003, Janet
Burkle filed for dissolution of her marriage to Ronald Burkle.
Mr. Burkle thereafter moved to seal financial information in
various pleadings. The court redacted certain financial
SB 1015
Page 9
information it concluded could risk injury to the parties, such
as addresses and account numbers, but not other information,
such as asset account balances. After the Legislature passed AB
782 as an urgency measure in May 2004, Mr. Burkle sought to seal
several dozen pleadings in his case. On February 28, 2005,
instead of sealing the pleadings as requested, the trial court
found that Family Code Section 2024.6 violated the First
Amendment, and gave Mr. Burkle sixty days to appeal the
decision, which he did. In a decision filed two months ago, on
January 20, 2006, the Second District Court of Appeals agreed
with the trial court that Family Code Section 2024.6 was an
unconstitutional violation of the First Amendment. Mr. Burkle
then sought review by the California Supreme Court on February
27, 2006, and the decision by the State Supreme Court, either
granting or denying review of the court of appeal decision, is
pending.
In its holding, the Court of Appeal in the Burkle case first
determined that the well settled principle that civil court
proceedings are presumptively open to the public, as set forth
in NBC v. Superior Court (supra) applies "with equal force in
divorce cases as in any other ordinary civil case." ( Burkle at
10.) In reaching that conclusion, the court noted, based on the
U.S. Supreme Court analysis in Globe Newspapers Co. v. Superior
Court (1982) 757 U.S. 596, that divorce proceedings have
historically been open to the public, and, additionally, there
is institutional value to having such proceedings generally open
to the public. The court noted that public access to civil
proceedings including divorce cases enhances public confidence
in the judicial system, provides the public with the ability to
scrutinize the proceedings, places a check on judicial power,
and enhances truth finding.
As a result of the presumption of openness to divorce
proceedings, the Burkle court determined that court records
could only be sealed if the four-part test set forth by the
California Supreme Court in NBC (noted above) could be
satisfied. Specifically, that test holds that mandatory sealing
of court records is permissible only if: (1) there is an
overriding interest to support the sealing; (2) there is a
substantial probability of prejudice to that interest absent
sealing; (3) the sealing required is narrowly tailored to serve
the overriding interest; and (4) there is no less restrictive
means available to achieve the overriding interest. The court
then concluded that the first prong of the test could be
SB 1015
Page 10
satisfied in the challenge to Family Code Section 2024.6 by the
overriding interest of protecting privacy, particularly of
avoiding identify theft or other crimes relating to the misuse
of personal financial information. The court appeared less
comfortable with the argument that the statute satisfied the
second prong of NBC - that sealing the records would prevent
identity theft and other abuse - but following established
constitutional principles it deferred to the Legislature's
judgment on that point.
However the Burkle court found that Family Code Section 2024.6
failed both the third and fourth prongs of the Supreme Court's
NBC constitutionality test. The mandatory sealing of all
pleadings that contain financial information, the court found,
goes far beyond preventing identity theft and other potential
crimes:
The reach of the statute extends far beyond the
overriding interest in protecting divorcing litigants
from identify theft, kidnapping, stalking, theft or
other financial crimes . . . . It is plainly not
narrowly tailored to seal only information which
arguably presents a risk of identity theft or other
misuse, such as credit card numbers, account numbers,
social security numbers and the like. ( Burkle at
13-14.)
Moreover, determined the court, the ex parte application for
sealing allowed by Section 2024.6 (which, like the current bill,
permitted a party to seek a court order on shortened notice and
with limited or no opportunity for the other side to oppose)
failed to allow for the "particularized determinations in
individual cases" necessary to ensure that the statute satisfies
constitutional requirements. ( Burkle at 14, quoting Globe .)
Most importantly for purposes of this legislation, the Burkle
court noted that Family Code Section 2024.6 failed to allow for
any judicial discretion when making these privacy
determinations, but instead mandated that the court, upon
petition by either party, to seal the entire documents that
contained any of the information. Finally, the court held that
the fourth prong of the test failed because there was a far less
restrictive means of protecting the release of the information
rather than wholesale sealing of entire pleadings. The court
stated that the redaction (or marking out) of the specific
financial information to be protected could protect the privacy
SB 1015
Page 11
of the information while still permitting access to the
remainder of the document.
Current Law Already Appears to Allow for the Redaction Of Social
Security Numbers, Bank Account Numbers And Address Information :
In evaluating the need for this measure, some have inquired
about the status of current law regarding the ability for
divorcing parties to protect the confidentiality of their social
security numbers and other highly sensitive identifying
information. It is therefore important to note that it appears
clear that absent this legislation and, indeed, absent Family
Code Section 2024.6, current law already allows for the
redaction of social security numbers from any pleading or other
document filed with the court in a dissolution, nullity of
marriage or separation proceeding, except a document created for
purposes of collecting child or spousal support. (Family Code
Section 2024.5.) And other sensitive identifying personal
information, such as bank account numbers and residential
addresses, appear to already be subject to possible redaction
upon request by a party, under Rule of Court 243.1 (noted
above).
In Its Current Form, It Appears Unlikely This Bill Would Be
Found To Satisfy the Constitutional Requirements Set Forth In
The Burkle Case: The author argues that this bill is narrowly
tailored to survive constitutional attack. He argues that the
bill narrowly, and appropriately, protects the financial privacy
of divorcing litigants, and that the redaction required in the
proposal is limited to no more than is necessary for that
purpose.
In any constitutional analysis of a legislative act, it is well
established that the Legislature is vested with the power to
determine whether a matter serves a public purpose. Legislative
findings are to be given great weight by the courts, and are to
be upheld unless found to be arbitrary and unreasonable.
Indeed, courts must presume a legislative act is constitutional,
resolving any doubts in favor of the act's constitutionality,
unless there is clear and unquestionable conflict between the
legislative act and the state or federal constitution. ( Amwest
Surety Ins. Co. v. Wilson (1995) 11 Cal. 4th 1252.) Given this,
a court must give great weight to this bill's findings regarding
the privacy of financial information in dissolution proceedings,
and must presume that the bill is constitutional.
SB 1015
Page 12
Following the Burkle case, it is clear that protection of at
least some of an individual's sensitive financial information is
an overriding state interest, thus satisfying the first prong of
the test. The state surely has an overriding interest in
protecting individuals, including divorcing parties, from
identity theft, kidnapping, harassment and other abuse that
could occur with the release of certain sensitive financial
information. However the key question here is precisely what
sensitive financial information will a court find could, if
compromised, reasonably be found to increase the risk of
identity theft and other crimes. This certainly would appear to
be the case with social security numbers, bank account numbers
and residential addresses, where release of the information
could doubtless facilitate the commission of financial crimes.
It is not nearly as certain, however, that a court would accept
a legislative declaration that public access to such general
financial information as the types and amounts of assets and
liabilities, and the basic income, of divorcing parties, could
similarly lead to significant harm. As the bill's news
organization opponents state, the bill "makes no distinction
between the sealing of a social security or bank account number
on the one hand and the sealing of the identity of a basic
community asset, such as a 1984 Oldsmobile Cutless Supreme on
the other. It's hard to imagine significant issues of identity
theft or even grand theft would arise from disclosure of this
asset information. Yet, under [the bill], a court would be
barred from refusing to seal a record that listed the old Olds."
To the extent this legislation requires family courts to treat
all financial information about the parties identically for
purposes of secrecy (requiring redaction), it therefore appears
possible that the measure might be found to be constitutionality
deficient even as to the "overriding interest" prong.
Regarding the second prong of the NBC test, the measure, as
noted, requires the court, upon request of either party, to
redact any portion of a pleading with specified financial
information. Contrary to the appellate court's admonition in
Burkle , under this bill there appears to be no ability of the
court to make an individualized determination of the probability
of prejudice to the party's privacy interest, and whether that
individual privacy interest overrides the public's "right to
know" in the particular case. Instead, based on the legislative
finding that unnecessary public disclosure of financial
information raises a substantial probability of prejudice to a
financial privacy interest that overrides the public's right to
SB 1015
Page 13
know, the measure requires the court to order all such
information redacted. This determination is automatic, upon
request of a party, and as noted above, such request may even be
made through ex parte application. The information may only
later be restored upon a petition to the court, with the burden
of showing "good cause" for making the unknown information
public placed on the party seeking openness rather than on the
party seeking privacy. Given that under this bill a court
apparently could not weigh the substantial probability of
prejudice to the overriding interest, but must instead simply
order the redaction, it seems likely that this bill would be
found to violate the second prong of the NBC constitutionality
test outlined in Burkle . In addition, it could also be found
that the bill's placement of the burden of proof on the party
seeking open access also is violative of the First Amendment.
Turning to the third prong of the NBC test, the bill must be
narrowly tailored to serve the overriding interest in protecting
the financial privacy of divorcing couples. Again, given the
bill's requirement that the court must redact financial
information simply upon request from one of the parties, without
the ability to make an individualized determination on the
substantial probability of prejudice to the requesting party's
privacy interest that outweighs the public's right of access,
the bill similarly does not appear to satisfy the third prong of
the NBC constitutionality test. While the bill may protect the
financial information of divorcing couples, without a
case-by-case determination, it is unclear if that privacy
interest overrides the public's right to access court records in
a particular case, a seminal requirement set forth in the Burkle
case. In addition, since this bill appears to apply not only to
pleadings filed by the parties, but to all documents in the
case, including, potentially, the court's own judgment, the
measure could be found to be overbroad.
Finally, the last prong of the NBC constitutionality test
requires that there are no less restrictive alternatives than
redacting the records in question. Assuming that a court will
accept, as the Burkle court did, that there is an overriding
interest in keeping all financial information in divorce cases
private (see discussion above), it would appear likely that the
court would conclude that the redaction method in the bill is
the least restrictive alternative available to protecting that
information.
SB 1015
Page 14
Case Law Required Amendments for the Author's, and the
Committee's, Consideration : Based upon the above application of
the NBC public access requirements, it appears that to improve
the chances that this bill would survive future constitutional
challenge, the bill should be amended substantially as follows:
Suggested Amendment #1
Fundamentally, based on the legal analysis of the bill above
under the NBC First Amendment test, the Committee may wish to
discuss with the author his openness to amend the measure to
require that, before a court may order redaction, it must make
an individualized determination that the party requesting
redaction has made a showing of substantial probability of
prejudice to the party's privacy interest that outweighs the
public's right of access to the information. As the Burkle case
requires, such a court determination cannot be automatic, but
instead must be made only when the party requesting redaction
has made the required showing. Therefore, should the Committee
wish to pass this bill, it may wish to discuss with the author
adding the following "balancing test" amendment to Section
2024.6(a) :
On page 3, line 15:
Section 2024.6(a) Notwithstanding any other provision
of law, upon request by a party to a proceeding for
dissolution of marriage, nullity of marriage, or legal
separation, and upon a showing of substantial
probability of prejudice to the requesting party's
privacy interest that overrides the public's right of
access to the court's records, the court shall order
redacted any portion of a pleading that lists the
parties' financial assets, liabilities, income or
expenses. Subject to the discretion direction of the
court, no more of any pleading shall be redacted than
is necessary to protect the parties' overriding right
to privacy.
Suggested Amendment #2
In addition, in order to ensure that the bill is narrowly
tailored to serve the overriding interest of protecting the
divorcing couple, the Committee may also wish to limit the
SB 1015
Page 15
definition of pleadings to only those documents filed with the
court . This would ensure that court judgments and other court
documents are accessible to the public.
On page 4, line 3:
(c) For purposes of this section, "pleading" means a
document filed with the court that sets forth or declares
the assets, liabilities, income or expenses of one or both
of the parties, including, but not limited to a marital
settlement agreement that lists and identifies the parties'
assets, liabilities, income or expenses , exhibits,
schedules, transcripts, or any document incidental or
attached to any declaration or marital settlement agreement
that lists or identifies financial information.
Suggested Amendments for the Author's and the Committee's
Consideration Regarding The Authority Of Temporary Judges And
Other Privately Compensated Judges To Redact And Seal Court
Records : As noted above, this bill applies not only to
proceedings conducted by regular public judges, but also to
matters involving a variety of non-public judges who are
compensated by the parties. The use of privately-compensated
nonpublic judges may arise in two ways: either by stipulation of
the parties to have the matter (or some discrete part of the
case) heard and decided by a temporary judge or referee pursuant
to Court Rule 244 and 24.1, or by court appointment of a referee
pursuant to Code of Civil Procedure section 639. These
privately-compensated temporary judges and referees are lawyers
who are temporarily given virtually all of the powers of a
public judge - although not the power to seal records, as
explained below. They are likewise subject to most, but not
all, of the rules of judicial ethics. ( See Code of Judicial
Ethics Canon 6D (temporary judges and referees are not subject
to Canons 2C, 3C(5), 3E(3), Canon 4 and Canon 5.)
When privately-compensated judges and referees are used, the
proceeding is typically conducted in a private office away from
the court. Even where proceedings are conducted away from the
courthouse, however, pleading and other court records in these
cases are supposed to be filed with and maintained by the court,
and to be treated as public records just as they would be if the
matter were heard by a public judge. (Rule of Court 243.)
Nevertheless, controversy has sometimes arisen regarding
docketing of court records and compliance with public access
SB 1015
Page 16
requirements in cases handled by privately compensated temporary
judges. (See, e.g., Divorces from Private Judges Raise Issue,
Daily Journal, February 28, 2006.)
Perhaps because these proceedings are often conducted in private
- and because privately-paid judges may have, or may be
perceived to have, inherent financial incentives to satisfy
parties for the purpose of obtaining future appointments, unlike
public judges who are free to weigh the competing public and
private interests without a pecuniary stake in the outcome -
Rules 244 and 244.2 prevent privately-compensated judges and
referees from sealing records. Thus currently a request to seal
records in these cases must be heard by the presiding judge or a
judge designated by the presiding judge.
It also appears worth noting that divorcing parties choosing to
opt out of the public court system and use a private arbitrator
or referee to resolve their conflict have significantly greater
privacy protections. These parties, upon agreement, can keep
most financial matters out of the court system and out of the
public's view. Parties can even agree upfront to forgo their
access to the public court system in a prenuptial agreement.
This has already led to the charge that California has two tiers
of justice - the private system for wealthier individuals, and
the public system for everyone else. The credibility of the
court system depends, in part, on its perception of fairness for
all Californians. It would therefore appear to be an
undesirable result to give additional incentives for famous or
wealthier individuals to avoid the public court system, and,
therefore, the state has a strong interest in not discouraging
use of the public court system.
Suggested Amendment #3
Because this measure changes the current rules regarding sealing
of court records for "private judging" only for marriage cases,
and because the proposed change appears at odds with maximizing
public access to the courts, the Committee may also wish to
discuss with the author his openness to amend the bill's
"private judging" changes by deleting proposed subdivision (d)
of section 2024.6 on page 4, lines 11-14.
ARGUMENTS IN SUPPORT: As noted above, the Family Law Section of
the State Bar (known as Flexcom) is in support of this measure,
writing, in part, that the bill "properly balances the public's
SB 1015
Page 17
right to know against the privacy needs of family law litigants
to be reasonably and rationally protected in their persons and
estates." The Bar section also recommends that the bill be
amended to make it clear that its "confidentiality" protections
apply to any proceeding dissolving a domestic partnership
relationship recognized under the California Domestic Partner
Rights and Responsibilities Act of 2003 (AB 205, effective
January 1, 2005).
Though not commenting on this particular legislation, it is also
worth noting that a leading judicial expert in California has
recently opined that in his view, personal information in
dissolution proceedings should generally be treated as
confidential. Judge Leonard Edwards, a highly respected
superior court judge in Santa Clara County and a past president
of the National Council of Juvenile and Family Court Judges,
recently wrote a detailed and thoughtful article on
confidentiality in family and juvenile courts, stating that
while in general family court records should be open and
accessible:
In marital dissolution cases, the public interest is
questionable. What public interest is served by learning
how two married persons divide their property, settle
alimony (spousal support) issues or share time with their
children? Have people given up their right to have some
aspects of their lives remain private simply by filing a
legal action to dissolve their marriage? These should be
private matters between the parties. . . . [C]ourt records
regarding the filing of a marital dissolution and the entry
of a final decree should be a part of the public record,
accessible to the public, but the details of the property
settlement and the alimony need not be public. (Judge
Leonard Edwards, Confidentiality and the Juvenile and
Family Courts, Juvenile and Family Court Journal (Winter
2004).)
ARGUMENTS IN OPPOSITION : The California Newspaper Publishers
Association (CNPA), on behalf of many news organizations
statewide, opposes the bill, arguing that it will, like its
predecessor, be found unconstitutional on its face. CNPA also
opposes the part of the measure allowing privately compensated,
temporary judges to redact private financial information,
arguing that the bill favors the wealthy who desire secrecy:
"For those litigants who can afford to hire a "temporary" judge
SB 1015
Page 18
at $375-an-hour to hear their divorce, [the] bill allows those
litigants to demand that their privately paid temporary judge
seal their divorce court papers. Because there is little
oversight of these temporary judges who are privately paid, we
believe that this would lead to unchecked secrecy for wealthy
divorcing couples."
An attorney representing Ms. Burkle wrote the Committee stating,
among other things, that the bill violates both the separation
of powers doctrine, because it purports to limit the powers of
the courts, and equal protection principles, by applying only to
parties to a dissolution, and not to all litigants.
California Aware, a non-profit organization group dedicated to
protecting public access, states in opposition that the latest
amendments in the bill "do nothing to save the bill from the
fatal First Amendment defects identified in Burkle ? The approach
to the suppression of information by 'redaction' rather than
'sealing' presents a distinction without a material difference."
The California First Amendment Coalition states that the bill
violates First Amendment rights because "[r]edactions of
specified information would be just the beginning. That
information would remain at issue in hearings in divorce cases.
Maintaining the confidentiality of redacted information will,
therefore, require not only the alteration of records, but also
the closing of proceedings that historically have been fully
open to the public."
The California NOW chapter also opposes the bill, stating, among
other things, that "[o]pen and honest disclosure [required in
divorce cases] can only be effective if there are real
deterrents against it. The incentive to omit, mislead or
fabricate increases where there is less likelihood that the
truth or accuracy of information will be scrutinized?" The
Coalition for Family Equity also states in opposition that the
measure "promotes new levels of secrecy in divorce proceedings
above and beyond what is reasonably necessary for protection of
the participants."
Judicial Council Concerns: The Judicial Council has not yet
taken a position on this measure. However it wrote the
Committee stating a host of concerns, including that the bill's
redaction requirements will increase the workload of family
SB 1015
Page 19
courts and it would "consume significant amounts of judicial
officer time."
REGISTERED SUPPORT / OPPOSITION :
Support
Family Law Section of the State Bar (Flexcom)
Fred Silberberg of Silberberg & Ross, L.L.P.
Opposition
California Aware
California Commission on the Status of Women
California First Amendment Coalition
California National Organization for Women
California Newspaper Publishers Association
Coalition for Family Equity
Analysis Prepared by : Drew Liebert and Leora Gershenzon / JUD.
/ (916) 319-2334