CA: Senator renews attempt to seal records in divorce cases (Burkle's Law)

SACRAMENTO (AP) - A Democratic lawmaker has introduced a bill to allow a divorcing spouse to keep financial records private, less than a month after a court struck down a similar law that opponents contend was passed to help a wealthy campaign donor.

Earlier this month, Sen. Kevin Murray, D-Culver City, took over a Senate bill dealing with homeland security that was awaiting action in the Assembly and turned it into a measure dealing with financial records in divorce cases.

It would require a court to seal certain financial records at the request of one of the spouses in a case involving divorce, marriage nullification or legal separation.

Murray's amendments, added to the bill on Feb. 16, followed a Jan. 20 decision by the state 2nd District Court of Appeal in a case involving billionaire Ron Burkle, who was trying to keep financial records in his divorce case sealed.

In that ruling, a three-judge panel found that a 2004 law cited by Burkle in his attempt to seal the financial records was "unconstitutional on its face."

"The First Amendment provides a right of access to court records in divorce proceedings," the court said in a decision written by Associate Justice Paul Boland.

"While the privacy interests protected by (the 2004 law) may override the First Amendment right of access in an appropriate case, the statute is not narrowly tailored to serve overriding privacy interests."

Murray's bill is narrower than the 2004 law. But it still would require a divorce court, at the request of one of the spouses, to seal or redact information about the couple's assets, liabilities, income, expenses or residential addresses.

Murray's office did not return a phone call Monday seeking comment. He told The San Diego Union-Tribune that the legislation, which is awaiting a hearing in the Assembly Judiciary Committee, is needed to protect privacy rights and avoid identity theft.

"There's too much financial information disclosed in a divorce that makes either party vulnerable to attack," he said.

He said neither Burkle, who has contributed to several Democrats and two campaign committees controlled by Gov. Arnold Schwarzenegger, nor his aides asked him to introduce the bill.

"Is he interested in it? Sure," Murray told the newspaper. "Clearly, his name is on the court case. Clearly, it's not lost on anybody that he's involved somewhere."

A spokesman for Burkle, Frank Quintera, also said Burkle didn't ask for Murray's legislation or the 2004 law.

"Mr. Burkle is neither the author or the sponsor of the (Murray) bill, and as far as I know has no comment on the bill," he told The Associated Press.

Fred Silberberg, a veteran Los Angeles family law attorney, said he suggested the bill to Murray following the appeals court decision.

"I don't believe the public has the right to know everything that goes on in a divorce proceeding," he said, adding that he hadn't heard of Burkle until the appeals court issued its decision.

He said the court found First Amendment problems with the 2004 law because it required a judge to seal an entire document if it contained financial information.

The Murray bill would only require a court to redact "that portion of the information that relates directly to the financial issues, such as an account number, or the address of property," he said. "The old statute was the entire document."

But Tom Newton, general counsel for the California Newspaper Publishers Association, which joined The Associated Press and Los Angeles Times in challenging the 2004 law, said Murray's bill would still undermine the concept that court proceedings should be public.

"This throws the whole thing out by allowing one party to make it a private proceeding," he told the Union-Tribune.

Did you see Michael Hiltzik's column on Feb 3, Backdoor Bill Would Seal Data on Divorce? And more little details, including links to some of the court documents hosted on his LA Times blog, Private Justice:

California is certainly not unique in becoming a two-tier state: special highways for those who can afford the tolls, schools for those who can pay the tuition, beaches for those who can pay the mortgage, etc., etc. But the creation of a court system for those who can pay the judges is a particularly insidious development.
Sealing court records is one way that the wealthy and powerful make the courts their own. If only the litigants know the basis for a judge's rulings, then that judge belongs to them. the case, its particulars, and its lessons are taken out of the flow of history and placed in a safe deposit box forever.
In Re the Marriage of Burkle represents that menace in spades, as well as another element that is unique to California: privately-paid judges with all the authority of the real thing. ...
(snip)
Mrs. Burkle's complaint
Court of Appeal ruling
New request to seal documents

From the Article:

Golden State: Backdoor Bill Would Seal Data on Divorce
Reasonable people may differ about the merits of an obscure bill filed last year in Sacramento to shore up the state Office of Homeland Security.
But one question about it legitimately interests all of us: How and why did it become transformed, as though by the touch of a magic wand, into a bill that helps out one of California's wealthiest citizens in his exceedingly ugly divorce?
The apparent beneficiary of this legislative legerdemain is Ronald W. Burkle, a prominent investor and former supermarket magnate who has been trying for more than year to keep the lid on scads of financial details piled up in his divorce case.
(snip)
But meanwhile, state Sen. Kevin Murray (D-Culver City) has come to his aid. On the heels of the appellate ruling, Murray quietly implemented what is known as a "gut-and-amend" job on the homeland security measure, which had been gathering dust on a committee shelf. He struck out the old language and replaced it with a fresh version of the overturned law, much as one might scoop out a cantaloupe and fill it with crab dip.
The new bill would require judges to shroud only the financial details at issue, not the entire document. But because it still would prohibit them from making the customary balance test between privacy and openness at their own discretion and line by line, Janet Burkle and the newspapers still object.
The bill, which is currently in committee, also would allow privately paid judges to seal documents. This is very intriguing. It just happens that one of the issues in Burkle's case is precisely whether such judges — a corps mostly made up of retired Superior Court judges paid by rich litigants to conduct quasi-private trials — can seal public records. (The Burkles' handpicked judge regretfully concluded that he didn't have that authority.)

Too much to post, given excerpt requirements. Worth a read.

I'm so glad that "Homeland Security" legislation has such a high priority with our legislators (/sarcasm) Here's the gut-and-amend action for SB 1015:

BILL NUMBER: SB 1015	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  FEBRUARY 16, 2006
	AMENDED IN SENATE  AUGUST 30, 2005
	AMENDED IN SENATE  AUGUST 17, 2005
	AMENDED IN SENATE  AUGUST 15, 2005
	AMENDED IN SENATE  JULY 1, 2005

INTRODUCED BY   Senator  Romero   Murray 
    (   Principal coauthor: 
 Assembly Member   Parra  
) 
    (   Coauthors:  
Senators   Ackerman,   
 Kehoe,     and Poochigian
 ) 
    (   Coauthor:  
Assembly Member   La Suer   )


                        FEBRUARY 22, 2005

    An act to add and repeal Section 12016.1 of the
Government Code, and to add and repeal Section 11105.06 of the Penal
Code, relating to homeland security, and declaring the urgency
thereof, to take effect immediately.   An act to amend
Section 2024.6 of the Family Code, relating to dissolution of
marriage. 



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1015, as amended,  Romero   Murray 
 Office of Homeland Security.   Dissolution of
marriage: financial declarations.  
   Existing law permits a party to request that documents listing or
identifying the parties' assets and liabilities be sealed in
specified family law proceedings, including dissolution of marriage.
 
   This bill would extend those provisions to include documents
listing or identifying the parties' income or expenses, permit those
records to be sealed or redacted, and make related changes. The bill
would require the Judicial Council to adopt rules governing
procedures for sealing, unsealing, redacting, and restoring those
records.  
   (1) Existing law requires the Governor to appoint a Director of
Homeland Security to coordinate homeland security activities in the
state, and to appoint a deputy director of homeland security to serve
at the pleasure of the director. Existing law sets forth certain
duties of an Office of Homeland Security in state government.
 
   Existing law also authorizes the Attorney General to furnish
specified summary criminal history information to certain peace
officers of the state, subject to specified conditions. 

   This bill would, until January 1, 2007, provide that the Office of
Homeland Security shall be considered a Class II criminal justice
agency and would require the Attorney General to furnish state
summary criminal history information to persons employed within the
Office of Homeland Security whose duties and responsibilities require
the authority to access criminal history and other intelligence
information, and who have been cleared to do so by both the state
Department of Justice and the United States Department of Homeland
Security for these purposes.  
   (2) The California Public Records Act specifies that certain
security, investigatory, and other information of certain law
enforcement entities is not subject to disclosure.  

   This bill would, until January 1, 2007, specify that the Office of
Homeland Security is a law enforcement organization as required for
receipt by employees of the office of confidential intelligence
information pursuant to these provisions.  
  (3) This bill would declare that it is to take effect immediately
as an urgency statute. 
   Vote:  2/3   majority  . Appropriation:
no. Fiscal committee: yes. State-mandated local program:  no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


   SECTION 1.    The Legislature finds and declares as
follows:  
   (a) The people have a right of privacy in their financial affairs,
as well as in matters relating to marriage.   
   (b) The law of this state requires any party to a proceeding for
dissolution of marriage, nullity of marriage, or legal separation to
disclose fully in documents that are filed with the court hearing
that proceeding, thereby becoming a matter of public record, detailed
and sensitive financial information, including the nature, extent,
and location of the party's assets and liabilities and income and
expenses, and information, such as social security numbers and bank
account numbers, that can be used to identify and locate the party's
assets, liabilities, income and expenses.  
   (c) The sensitive financial information which the law compels a
party to a proceeding for dissolution or nullity of marriage or legal
separation to disclose into the public record is subject to use for
improper purposes, particularly including but not limited to, the
burgeoning crime of identity theft, yet is rarely if ever a matter of
legitimate public interest.  
   (d) The Legislature also finds that protecting the sensitive
financial information subject to this section will further the prompt
and efficient resolution or settlement of proceedings for the
dissolution or nullity of marriage or legal separation by preventing
or discouraging the disclosure or threatened disclosure of that
information for improper purposes or to secure collateral or unfair
advantages.  
   (e) Existing law concerning the sealing of court records was not
enacted or otherwise promulgated with consideration of the extensive
financial disclosures required of parties to a proceeding for
dissolution or nullity of marriage, or legal separation. Much of
existing law concerning the sealing of court records was also enacted
or otherwise promulgated prior to the current epidemic of identity
theft and the current widespread use of electronic data bases,
containing sensitive financial and other personal information, which
data is vulnerable to misuse. Existing law was enacted prior to the
widespread concern over and federal legislation designed to protect
and guard against, the misuse of personal information and child
abduction.  
   (f) For these reasons, the Legislature finds that existing law
concerning the sealing of court records does not adequately protect
the right of privacy in financial and marital matters to which
parties to a proceeding for dissolution or nullity of marriage are
entitled. It is the intent of the Legislature to protect more fully
that right of privacy while acknowledging and balancing the public's
right of access to public records and judicial proceedings.
Accordingly, it enacts this act. 
   SEC. 2.    Section 2024.6 of the   Family
Code   is amended to read: 
   2024.6.  (a)  Upon   Notwithstanding any
other provision of law, upon  request by a party to a 
petition   proceeding  for dissolution of marriage,
nullity of marriage, or legal separation, the court shall order 
sealed or redacted any portion of  a pleading that lists the
parties' financial assets  and   , 
liabilities  and   , income or expenses, or
 provides the location  of, including a residential address,
 or identifying information about  ,  those assets
 and   ,  liabilities  sealed
  , income, or expenses. Subject to the direction of the
court, no more of   any pleading shall be sealed or
redacted than is necessary to prevent identification or location of
the financial information subject to this section  . The request
may be made by ex parte application. Nothing sealed  or redacted
 pursuant to this section may be unsealed  or restored
 except upon petition to the court and  a showing of 
good cause  shown  .
   (b) Commencing not later than  July 1, 2005  
____  , the Judicial Council form used to declare assets
 and   or  liabilities of the parties in a
proceeding for dissolution of marriage, nullity of marriage, or legal
separation of the parties shall require the party filing the form to
state whether the declaration contains identifying information on
the assets  and   ,  liabilities  ,
income, or expenses  listed therein. If the party making the
request  set forth in subdivision (a)  uses a pleading other
than the Judicial Council form, the pleading shall exhibit a notice
on the front page, in bold capital letters, that the pleading lists
 and   or  identifies financial information
and is therefore subject to this section.  By the same date, the
Judicial Council shall also adopt rules setting forth the procedures
to be used for sealing, unsealing, redacting, and restoring
pleadings pursuant to this section. 
   (c) For purposes of this section, "pleading" means a document that
sets forth or declares the  parties'  assets
 and   ,  liabilities, income  and
  or  expenses  , a   of one
or both of the parties, including, but not limited to marital
settlement agreements, exhibits, schedules, transcripts, or any
document incidental to any declaration or  marital settlement
agreement that lists  and   or  identifies
 the parties' assets and liabilities, or any document filed
with the court incidental to the declaration or agreement that lists
and identifies  financial information.
   (d)  For purposes of this section and notwithstanding any
other provision of law, "court" includes a privately compensated
judge. 
    (e)    The party making the request  to
seal a pleading  pursuant to subdivision (a) shall serve a
copy of the pleading  containing financial information subject to
this section  on the other party  or parties  to the
proceeding and file a proof of service with the request  to
seal the pleading  .  
   (e) 
    (f)  Nothing in this section precludes a party to a
proceeding described in this section from using any document or
information contained in a  sealed  pleading 
sealed or redacted pursuant to this section  in any manner that
is not otherwise prohibited by law.    All matter omitted in this
version of the bill appears in the bill as amended in Senate, August
30, 2005 (JR11)

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