Thursday, August 17, 2017
Court of Appeal Declares
Judge Can’t Order Deletion of Convictions From Website
First District Says That What Is Commonly Referred to as ‘Expungement’ Doesn’t Justify Writ Ordering Real Estate Bureau to Remove References to Agent’s Misdemeanor Record
By a MetNews Staff Writer
A Superior Court judge had no authority to order the California Bureau of Real Estate to remove from its website a document which reflected a real estate agent’s three convictions for misdemeanors, the First District Court of Appeal held yesterday.
The opinion, by Presiding Justice James Humes of Div. One, reverses the decision of San Francisco Superior Court Judge Harold E. Kahn requiring the deletion of a “statement of issues” which the bureau publicly filed when it instituted an administrative proceeding upon denial of Belinda Skulason’s application for a real estate license in 2000. It reflected the three convictions.
In 2004, she was granted a restricted license, and in 2010 was granted a license without restrictions. She now works for Coldwell Banker in San Jose.
The statement of issues, in electronic form, was accessible on the bureau’s website—until Kahn issued a writ of mandate ordering that it be taken off. The basis for the action was that the convictions had been dismissed following Skulason’s successful completion of probation.
Humes said the relevant Penal Code sections provide for dismissal of convictions, under some circumstances, with the person being “released from all penalties and disabilities resulting from the offense of which he or she has been convicted.” He stressed that this is not truly an “expungement,” though commonly termed such, because there is no finding of factual innocence or nullification of the conviction.
“Skulason does not dispute that the statement of issues is a public document, that she admitted the truth of the convictions when she settled the administrative proceeding, or that her convictions are a matter of public record,” Humes noted.
He found her various arguments in support of Kahn’s order unpersuasive.
She argued that the dismissal provisions must be read in tandem with Labor Code §432.7 which provides that where a conviction has been judicially dismissed under the Penal Code sections, “[n]o employer...shall ask an applicant for employment to disclose, through any written form or verbally, information...concerning” such a conviction “nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring...any record...concerning a conviction that has been judicially dismissed” pursuant to the sections.
Skulason argued that this imposes a duty on the bureau not to make the fact of the convictions accessible by potential employers. Humes responded:
“By its own terms, Labor Code section 432.7 prohibits conduct by ‘employers,’ and nothing in its language can be read as imposing a duty on non-employers such as the Bureau. In her petition, Skulason alleged that at least one potential employer denied her a job because it learned about her convictions from the statement of issues posted on the Bureau’s website. But just because Labor Code section 432.7 may create a duty enabling Skulason to assert a cause of action against a potential employer does not mean that it creates a separate duty applicable to the Bureau.”
“We are similarly unconvinced by Skulason’s argument that the posting imposes a penalty or disability by violating her constitutional right to privacy….Skulason cannot make such a showing because the statement of issues and the fact of her convictions are matters of public record.”
The real estate agent argued that posting information on her convictions on a website makes it easy for a potential employer to find it and therefore constitutes a penalty. Humes acknowledged that there is a publicizing effect, but said:
“Although we acknowledge these adverse consequences, Skulason has not provided, and we have not found, any legal authority establishing, or defining the scope of, any duty that would restrict the Bureau’s ability to post publicly available information about a licensee on its website. Skulason does not explain whether any such duty would apply to other sensitive, publicly available information unrelated to convictions, or whether the duty would be binding on all governmental agencies, including non-licensing ones. At oral argument, Skulason’s counsel posited that the duty arises only when the Bureau is informed that a conviction has been subsequently dismissed (i.e., that the Bureau has no independent obligation to inquire into the status of a conviction) and that the duty would not be satisfied if the Bureau left a conviction reference on its website but separately informed website visitors that the conviction had been dismissed. No authority, however, was offered to support these assertions.”
The opinion reverses Kahn’s $42,430.19 award of attorney fees, under the private attorney general statute.
The case is Skulason v. California Bureau of Real Estate, A147047, A147814.
Copyright 2017, Metropolitan News Company