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Court of Appeal:
Reporting Agency Might Be Liable for Disclosing Conviction
Statutes Bar Release of Such Information Where ‘Date of Parole’ Was More Than Seven Years Earlier, With That Date Being, the Opinion Says, the Date of Release, Not the End of the Parole Period
By a MetNews Staff Writer
A statute that prohibits a consumer credit reporting company from disclosing to a prospective employer any criminal conviction if it’s been more than seven years since the “date of...parole” means the onset of that period, not its conclusion, Div. Three of the Fourth District Court of Appeal held.
At issue was the meaning of language contained in the California Investigative Consumer Reporting Agencies Act (“ICRAA”) and the California Consumer Credit Reporting Agencies Act (“CCRAA”) barring such an agency from reporting a “conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years.”
Accurate Background LLC was sued by a man identifying himself only as “R. Kemp” based on a disclosure in 2020 of his conviction to Amazon.com, Inc. which had offered him a job but withdrew that offer after it learned of his criminal background. Kemp had been released from prison on parole in December 2011, with a three-year parole period.
The California Supreme Court explained in 2008 in In re Smith that “a prisoner on parole remains in constructive custody” until the end of the prison term.
Theory Rejected
Orange Superior Court Judge James J. Di Cesare overruled Accurate’s demurrer to the extent it was based on the theory that “parole” means completion of the parole period, holding that “the plain meaning of ‘from the date of...parole’ refers to the start date of conditional release.” Thursday’s opinion by Acting Presiding Justice Eileen C. Moore rejects Accurate’s bid for a writ of mandate directing that the demurrer be sustained.
(Di Cesare did sustain a demurrer but on the ground that the California statutes are preempted by a federal law—a theory rejected by Moore’s opinion—and Kemp’s writ petition challenging that ruling was granted. The 1996 federal statute, which permits reports of convictions without limitation, by own terms does not preempt state laws that were already in effect, as the California provisions were.)
Addressing the statutory language, Moore wrote:
“Under California law, the word ‘parole’ is consistent with its plain meaning: ‘Release from jail, prison, or other confinement after actually serving part of sentence.’ (Black’s Law Dict….) More specifically, the phrase date of parole is indistinguishable from the phrase parole date, which is well understood in California law to refer to the date of an inmate’s release, or the start date of his or her parole….
“In short, since a period of parole generally begins when an inmate is released from prison, we find the relevant provisions in the ICRAA and the CCRAA, which prohibit an agency from reporting a person’s criminal conviction that predates a report by more than seven years as measured ‘from the date of...parole’ plainly refers to the start date of that parole.”
Accurate’s Contention
Accurate argued that the statutes refer to records of “release, or parole” occurring more than seven years earlier. It reasoned:
“Given that parole begins immediately after release, it would be surplusage for the legislature to have included two terms in the statutes that were meant to refer to the same point in time. The trial court’s reading of the statutory language renders either the word ‘release’ or the word ‘parole’ superfluous.”
Moore responded that where a statute is unambiguous, as she said the statutes in issue are, there’s no need to resort to statutory construction, adding:
“[W]hen an inmate is released on parole, he or she is still in constructive custody. Therefore, it is reasonable to presume that by using the words release and parole, the Legislature intended to clarify that the prohibition against the reporting of a conviction that predates a report by more than seven years is to be measured from the inmate’s release from physical custody, even though a period of parole—or constructive custody—may follow.”
The case is Kemp v. Superior Court, G061122.
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