Metropolitan News-Enterprise


Wednesday, December 30, 2020


Page 3


Ninth Circuit:

Privacy Right in Juvenile Records Not ‘Clearly Established’


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals said yesterday that its 2003 opinion in a case was “opaque” and did not render it “clearly established” that peeking at Juvenile Court records without court permission is a constitutional violation.

A majority of the three-judge label rendering yesterday’s decision called for an en banc reconsideration of the 2003 decision in Gonzalez v. Spencer.

Yesterday’s per curium opinion was signed by Circuit Judges Richard C. Tallman and Danielle J. Hunsaker, as well as District Court Judge Roslyn O. Silver of the District of Arizona, sitting by designation. Hunsaker wrote a concurring opinion in which Silver joined.

The panel reversed an order by District Court Judge Anthony W. Ishii of the Eastern District of California denying a motion to dismiss an action against the County of Stanislaus and two of its attorneys based on qualified immunity. Such immunity exists where the conduct in issue did not violate a “clearly established” right.

The plaintiffs contended that the right of privacy in Juvenile Court records was “clearly established” in Gonzalez. There, attorney Chandra Spencer, now of the Westlake Village firm of Elder & Spencer, LLP, had looked up the juvenile records of Raul Gonzalez, who was suing the County of Los Angeles, which she was representing.

Gonzalez then sued her for invading his privacy. District Court Judge William J. Rea (now deceased) dismissed Gonzalez’s action, without leave to amend.

2003 Opinion

Reversal came in a per curium opinion signed by Circuit Judges Alex Kozinski (now retired) and Cynthia Holcomb Hall (who is deceased). They said:

“Spencer therefore had to get court permission before inspecting Gonzalez’s file. State law required her to petition the juvenile court….Although the district court could have ordered disclosure notwithstanding state law, the file was still presumptively protected until it did….Spencer could not inspect the file on her own initiative on the theory that she could have obtained permission, had she asked….Nor could the district court authorize her search retroactively. If Spencer violated Gonzalez’s constitutional rights, he is entitled at least to nominal damages, even if Spencer could have obtained the documents lawfully….

“Because Spencer improperly obtained access to Gonzalez’s juvenile court file, we need not reach the question whether Spencer’s use of Gonzalez’s file in depositions also violated his constitutional rights.”

Judge William A. Fletcher dissented.

‘Unnamed Right’

Yesterday’s per curium opinion says:

“[W]e, like the district courts, conclude that the opaque opinion in Gonzalez did not clearly establish a constitutional privacy right in juvenile records. Gonzalez did not explain what right was at issue or what constitutional source it flowed from. It did not even explain whether that unnamed right was violated by the attorney’s conduct, stating instead only that it could have been.”

It notes, with emphasis added, that the opinion says “If [the attorney] violated Gonzalez’s constitutional rights....”

The opinion declares:

“We cannot conclude that every reasonable official acting as Defendants did would have known they were violating the constitutional rights of Plaintiffs based on Gonzalez, the only authority on which Plaintiffs’ rely….

“We do not decide whether the Constitution provides a privacy right in juvenile records; rather, we decide only that no such right was clearly established at the time of the Defendants’ alleged conduct. Therefore, Defendants are entitled to qualified immunity.”

Hunsaker said in her concurring opinion:

“I write separately to emphasize one point—our en banc court should reconsider Gonzalez v. Spencer…and address in earnest whether there exists a constitutional right to privacy in juvenile records. We carefully dodge this issue today by focusing on the clearly-established-law prong of qualified immunity given the dearth of reasoning and guidance in the Gonzalez decision. But Gonzalez will continue to stymie district courts and litigants.”

She went on to say:

“The question here, whether there is a constitutional right of privacy that protects against disclosure of juvenile records, was answered in Gonzalez like an overconfident yet underprepared student—casually, without explanation or supporting authority. We should do better. And until the en banc court performs the analysis that Gonzalez neglected, our law on this issue will remain unclear.”

The case is Nunes v. Arata Swingle Van Egmond & Goodwin, 19-16815.


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