Thursday, September 03, 2009

New California law tries to conceal evidence

Effective January 1, 2010, California has passed a new law to make family court expert opinion secret. The law provides that a judge may appoint child custody evaluators to write reports for the court. These reports had been ordinary pieces of evidence, like other court evidence. But Family Code sect. 3111 now says:
(b) The report shall not be made available other than as provided in subdivision (a), or ...
Section (a) just allows copies to the parties and the court:
At least 10 days before any hearing regarding custody of the child, the report shall be filed with the clerk of the court in which the custody hearing will be conducted and served on the parties or their attorneys, and any other counsel appointed for the child pursuant to Section 3150. The report may be considered by the court.
The really outrageous part of this law is the new penalty section:
(d) If the court determines that an unwarranted disclosure of a written confidential report has been made, the court may impose a monetary sanction against the disclosing party. The sanction shall be in an amount sufficient to deter repetition of the conduct, and may include reasonable attorney's fees, costs incurred, or both, unless the court finds that the disclosing party acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
I don't see how this could possibly be consistent with First Amendment free speech rights. Just what is an "unwarranted disclosure"?

I had an evaluation by a gay shrink who a report criticizing me for feeding my kids broccoli, and recommending that I be ordered to see a dietitian about it. Can I describe that on my blog? Would that be an unwarranted disclosure? How would anyone know?

And look at the penalty! Usually fines are limited by law, but this law lets the judge impose any fine he wants.

This is just the latest in family court restrictions on free speech. Sooner or later, this is going to get the attention of federal judges who will declare it to be unconstitutional.

1 comment:

Anonymous said...

do you know which legislator sponsored this bill?