Dear PBSA Members,
Your Government Relations leadership, Date of Birth Redaction Task Force and PBSA partners have been working tirelessly the past several months with significant progress to report. We are continuing to address this issue from 3 angles: (1) a request to the CA Judicial Council for a change to California Rule of Court 2.507, (2) CA legislation requiring a change to California Rule of Court 2.507, and (3) pursuing litigation.
Within this communication you will find detailed updates on all three of these items, however, first is a brief summary of the litigation efforts along with a request for your help.
Brief Summary of Litigation
PBSA has prepared motions to intervene as a plaintiff in both the Sonoma and Merced lawsuits which we intend to file tomorrow, Tuesday, February 22nd. The goal being to file a cross-complaint against the courts and their clerks seeking the opposite relief from the relief the plaintiffs are seeking (i.e., to maintain the status quo and leave the DOB search fields up on the court websites). Given the existence of Hamrick [the case that became the catalyst of removing DOB from records], we have little or no expectation of prevailing at the trial level initially, as the trial court will be bound to follow that opinion. Rather, the expectation is to get the issue before the respective appeals courts (i.e. we will lose quickly at the trial court level because trial courts are bound by the Hamrick decision) and convince at least one of the appeals courts to split from Hamrick. If we have at least one appeals court that splits, all courts, except those in Riverside County will have the ability to follow whichever appeals court decision they choose. And a split in appeals courts decisions makes it more likely the California Supreme Court will take up review.
We anticipate this will be a very long process, lasting throughout 2022 and likely into 2023. This effort also comes at significant expense. The PBSA Board strongly supports this effort on behalf of our membership. As was the case in 2019 when we pursued litigation in Arkansas, we do not want any states to set precedent by removing access to records or redacting identifiers to the point that the records are unusable thereby starting a trend that could be followed by other states. To that end the Board has committed to funding a significant portion of the litigation, however we need to call upon you, our members, to help us pay for this litigation as well. We’re anticipating this litigation could run in excess of $500,000. Please reach out to Melissa Sorenson (email: [email protected]) to discuss how you can help support this litigation.
California Judicial Council
PBSA made a rules change request to the California Judicial Council requesting clarification that Rule 2.507 allow for the use of date of birth and driver’s license as a search term, or filter to the results returned. That request was made early in 2021 when PBSA knew how disastrous the opinion in All of Us of None v Hamrick would be but before date of birth redaction was being implemented and the disastrous results could be cited. PBSA’s request was denied by the Judicial Council in December of 2021.
On February 11th, CDIA filed a follow-up request to the Judicial Rules Council to again consider clarification to rule 2.507. CDIA and PBSA have engaged a group of allied associations and organizations and are requesting that they submit letters to the Judicial Council in support of CDIA’s request. Our hope is that this new request, now that we have seen redaction implemented in LA County, California along with requests from other organizations and associations will help the Judicial Council see the importance of this request and recognize that the issue is one impacting far more than just background screeners – it’s impacting California consumers, employers, housing providers, volunteer organizations and communities across the state.
California Legislation
On Thursday, February 17th California Senate Bill 1272 was introduced by Senator Bradford. This effort was in large thanks to CDIA and some joint members of PBSA and CDIA and the lobbyists retained by CDIA and member companies.
Introduction of the bill is a large hurdle in and of itself, we are thrilled to see this bill introduced just prior to the deadline for introductions. The next step will again be working with allied organizations and associations to support the bill and meet with California Congressional offices to see this bill through committee and ultimately a vote. The bill currently awaits committee referencing. One important note: both the California Constitutional Rule as well as the Legislative Joint Rule 55 – requiring the bill be in print 30 days before it can be acted upon by committee – have been suspended. This means the bill can be heard in committee immediately once it is referenced, helping speed the process. More to follow once referencing is complete.
California Litigation
As you can see from the above, there are a lot of moving pieces to address this issue on behalf of industry and PBSA has been working closely with CDIA in order to manage the significant lift involved. While CDIA has taken the lead on the legislative front, PBSA will be taking the lead with respect to litigation.
As you may recall, the California Supreme Court denied PBSA and CDIA’s Amicus Letter requesting the Court review the Court of Appeal’s published opinion in its entirety. That left us with the option to pursue our own litigation or watch for similar litigation to be filed and motion to intervene in that litigation. The latter option presented itself, PBSA is prepared to file motions to intervene on Tuesday, February, 22nd, 2022.
In early December 2021, a Southern California–based law firm called Fineman Poliner filed two virtually identical putative class actions in state court, in the Northern California counties of Sonoma and Merced. Both lawsuits were brought on behalf of Doe plaintiffs and named the local superior courts and their clerks as defendants. Among other things, the lawsuits seek an injunction to prevent the courts in these two counties from “disclosing the date of birth of Plaintiff and all others similarly situated on the [court’s] website to any requestor, unless and until the requestor sustains his, her, or its burden of proof that the requestor is authorized by law to receive such information.”
PBSA reviewed the complaints with its outside counsel and determined that it is vital for our industry to have a voice in these matters. This is particularly so, because each lawsuit is a potential vehicle to either affirm or create a split from the ruling in All of Us or None—Riverside Chapter v. Hamrick.
Hamrick, as you may recall from previous PBSA updates, is an appellate decision from May 2021. It held that California Rule of Court 2.507(c) requires superior courts to remove DOB and other identifiers from the criminal records accessible on their websites. Currently, the trial courts in all 58 counties in California are bound by the ruling in Hamrick, although there has not been 100% compliance to date. If we can convince at least one sister appeals court to split from Hamrick’s ruling, trial courts across the state will be freed up to use their discretion as to this issue, and to include these important search fields on their websites or not, as they see fit.
Litigation provides, at best, a county-by-county chance, and is not a complete solution to the problems for our industry posed by Hamrick. However, PBSA hopes litigation will be able to provide some amount of interim relief from the onerous regime imposed by Hamrick while PBSA and other advocates continue to pursue a more comprehensive and permanent legislative and/or administrative solution at the state level in California.
To that end, PBSA has prepared motions to intervene as a plaintiff in both the Sonoma and Merced lawsuits which we intend to file tomorrow, Tuesday, February 22nd. The goal being to file a cross-complaint against the courts and their clerks seeking the opposite relief from the relief the plaintiffs are seeking (i.e., to maintain the status quo and leave the DOB search fields up on the court websites). Given the existence of Hamrick [the case that became the catalyst of removing DOB from records], we have little or no expectation of prevailing at the trial level initially, as the trial court will be bound to follow that opinion. Rather, the expectation is to get the issue before the respective appeals courts (i.e. we will lose quickly at the trial court level because trial courts are bound by the Hamrick decision) and convince at least one of the appeals courts to split from Hamrick. If we have at least one appeals court that splits, all courts, except those in Riverside County will have the ability to follow whichever appeals court decision they choose. And a split in appeals courts decisions makes it more likely the California Supreme Court will take up review.
We anticipate there may be additional lawsuits in other California counties throughout 2022, which PBSA will monitor closely. We will continue to keep you posted as events develop.
Restatement of the Ask
We anticipate this will be a very long process, lasting throughout 2022 and likely into 2023. This effort also comes at significant expense. The PBSA Board strongly supports this effort on behalf of our membership. As was the case in 2019 when we pursued litigation in Arkansas, we do not want any states to set precedent by removing access to records or redacting identifiers to the point that the records are unusable thereby starting a trend that could be followed by other states. To that end the Board has committed to funding a significant portion of the litigation, however we need to call upon you, our members, to help us pay for this litigation as well. We’re anticipating this litigation could run in excess of $500,000. Please reach out to Melissa Sorenson (email: [email protected]) to discuss how you can help support this litigation.
PBSA is represented in this litigation by Cindy D. Hanson, David N. Anthony, Harold D. Melton, Peter N. Villar, Elizabeth Holt Andrews, and Leah Tedford of Troutman Pepper Hamilton Sanders LLP.
