Bill Text: CA SB982 | 2009-2010 | Regular Session | Amended
Bill Title: Deceased Child Victims' Protection and Privacy Act.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Engrossed - Dead) 2010-08-11 - In Assembly. Read first time. Held at Desk. [SB982 Detail]
Download: California-2009-SB982-Amended.html
BILL NUMBER: SB 982 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 3, 2010
AMENDED IN SENATE JULY 1, 2010
AMENDED IN SENATE JUNE 7, 2010
AMENDED IN SENATE MAY 26, 2010
AMENDED IN SENATE MAY 3, 2010
INTRODUCED BY Senator Hollingsworth
(Principal coauthor: Assembly Member Fletcher)
(Coauthors: Senators Ducheny and Harman)
FEBRUARY 8, 2010
An act to add Section 130 to the Code of Civil Procedure, relating
to victims' rights, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 982, as amended, Hollingsworth. Deceased Child Victims'
Protection and Privacy Act.
Existing law prohibits the making of a copy, reproduction, or
facsimile of any kind of photographs, negatives, or print of the
body, or any portion of the body, of a deceased person taken by or
for the coroner at the scene of death or in the course of a
postmortem exam or autopsy made by or caused to be made by the
coroner, except for use in a criminal proceeding in this state that
relates to the death of that person, or except as a court of this
state permits, as specified.
The Public Records Act generally provides that public records, as
defined, are open to public inspection and every person has a right
to inspect any public record. The act sets forth specified exemptions
from those provisions, including an exemption for specified
investigatory or security files compiled by law enforcement entities.
This bill would enact the Deceased Child Victims' Protection and
Privacy Act. The bill would provide that, when a minor who is not
within the jurisdiction of the juvenile court, as specified, is
killed as a result of a criminal act and a person has been convicted
of the crime and sentenced, or been found to have committed the act
by a juvenile court and adjudged a ward of the juvenile court, upon
the request of a qualifying family member of the deceased minor, the
autopsy report and evidence associated with the examination of the
victim in the possession of a public agency would be sealed and would
not be disclosed, except as specified. The bill would also provide
that a coroner or medical examiner shall not be liable for damages in
a civil action for any act or omission taken in compliance with
these provisions. These provisions would not be construed to
limit the authority of the court to seal records or
restrict the dissemination of an autopsy report or evidence
associated with the examination of a victim, as specified. In
addition, these provisions would establish an independent basis upon
which an autopsy report or other evidence associated with the
examination of a victim may be withheld from public disclosure;
however, these provisions would not apply if the exemption from the
Public Records Act described above applies.
Because the bill would impose additional duties on local
officials, such as the county coroner, the district attorney, or the
public defender, relating to preventing the disclosure of this
information, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as the
Deceased Child Victims' Protection and Privacy Act.
SEC. 2. The Legislature hereby finds and declares all of the
following:
(a) (1) Thousands of Californians are murdered each year, a
statistic that has remained steady for over 30 years. The emotional
pain suffered by the families of these lost victims is unimaginable.
That pain is relived through criminal proceedings, which serve as a
troubling reminder of the suffering that loved ones endured before
their lives were taken.
(2) No document is more telling of the specific nature of a victim'
s injuries than the autopsy report crafted by a medical examiner. For
the family of a crime victim, the writing and diagrams contain the
details of a loved one's last experiences in this world.
(3) Both the California and United States Constitutions have been
construed to vest privacy rights in the families of deceased victims,
prohibiting the unnecessary disclosure of that information.
(b) The purpose of this act is to protect the privacy of the
families of deceased victims minor victims of
violent crimes by allowing them to request that autopsy
reports not be subject to public records act requests.
(c) This act is intended to limit the unnecessary
dissemination of autopsy and private medical information
concerning a murdered child by acknowledging a family's
right to privacy in those documents when there is no compelling
interest in disclosure. This act allows child by
allowing families to request that the autopsy report of the
victim be sealed from public inspection. This act does not
is not intended to affect the dissemination of
the those reports to law enforcement
agents or prosecutors, and it does not affect their
obligations to provide that information to defendants, with a
protective order, in compliance with state and federal discovery
obligations. This act does not affect the ability of civil litigants,
in a suit related to the death of the victim, from subpoenaing those
records after a showing of good cause to the trial court.
, prosecutors, defendants, or civil litigants under state and
federal discovery laws.
SEC. 3. Section 130 is added to the Code of Civil Procedure, to
read:
130. (a) Notwithstanding any other law
Subject to the provisions of this section , when a child who is
under 18 years of age is killed as a result of a criminal act and a
person has been convicted and sentenced for the commission of that
criminal act, or a person has been found to have committed that
offense by the juvenile court and adjudged a ward of the juvenile
court, upon the request of a qualifying family member of a
the deceased child, the autopsy report and
evidence associated with the examination of the victim in the
possession of a public agency shall be sealed and not disclosed,
except as provided in this subdivision.
(1) Nothing in this section shall prohibit the use of autopsy
reports and evidence during criminal court proceedings.
(2) Disclosure of
all autopsy information and evidence to law that an
autopsy report and evidence associated with the examination of the
victim which has been sealed pursuant to this section may be
disclosed, as follows:
(1) To law enforcement,
prosecutorial agencies and experts hired by those agencies,
public social service agencies, or child death review teams
is not limited by this section. to be used
solely for investigative, prosecutorial, or review purposes, and may
not be disseminated further.
(3) Disclosure to
(2) To the defendant and the
defense team and experts hired by the defense team in the
course of criminal proceedings or related habeas proceedings
is not limited by this section, except that the defendant and
defense team are prohibited from disseminating the autopsy report and
evidence outside of the defense team, except during criminal court
proceedings.
(4) Civil
to be used solely for investigative and review purposes and may
not be disseminated further.
(3) To civil litigants, in a
cause of action related to the victim's death, may obtain
copies of autopsy reports and evidence with a death
with a court order upon a showing of good cause and proper
notice under Section 129, except that the litigants are
prohibited from disseminating the autopsy report and evidence outside
of the litigation team, except during court-related proceedings.
(5) Section 129 to be used solely to
pursue the cause of action, and may not be disseminated further.
(b) Nothing in this section shall prohibit the use of autopsy
reports and evidence in relation to court proceedings.
(c) Nothing in this section shall abrogate
the rights of victims, their authorized representatives, or insurance
carriers to request the release of information pursuant to
subdivision (f) of Section 6254 of the Government Code. However, if a
seal has been requested, an insurance carrier receiving items
pursuant to a request under that subdivision is prohibited from
disclosing the requested items except as necessary in the normal
course of business. An insurance carrier shall not, under any
circumstances, disclose items received pursuant to subdivision (f) of
Section 6254 of the Government Code to the general public.
(6) This provision
(d) This section may not be
invoked by a qualifying family member who has been charged with or
convicted of any act in furtherance of the victim's death. Upon the
filing of those charges against a qualifying family
member, any seal maintained at the request of that qualifying family
member under this section shall be removed.
(7)
(e) A coroner or medical examiner shall not be liable
for damages in a civil action for any reasonable act or
omission taken in good faith in compliance with this
section.
(8)
(f) If sealing of the autopsy report has been requested
by a qualifying family member and another qualifying family member
opposes sealing, the opposing party may request a hearing in the
superior court in the county with jurisdiction over the crime leading
to the child's death for a determination of whether the sealing
should be maintained. The opposing party shall notify all other
qualifying family members, the medical examiner's office that
conducted the autopsy, and the district attorney's office with
jurisdiction over the crime at least 10 court days in advance of the
hearing. At the hearing, the court shall consider the interests of
all qualifying family members, the protection of the memory of the
deceased child, any evidence that the qualifying family member
requesting the seal was involved in the crime that resulted in the
death of the child, the public interest in scrutiny of the autopsy
report or the performance of the medical examiner, and
any impact that unsealing would have on pending
investigations or pending litigation , and any other
relevant factors . Official information in the possession of a
public agency necessary to the determination of the hearing shall be
received in camera upon a proper showing. This section shall
not apply where a public agency has independently sealed the autopsy
report as an investigative file.
(9) An
In its discretion, the court may, to the extent allowable by law
and with good cause shown, restrict the dissemination of an autopsy
report or evidence associated with the examination of a victim. This
section shall not apply if a public agency has independently
determined that the autopsy report may not be disclosed pursuant to
subdivision (f) of Section 6254 of the Government C ode
because it is an investigative file. In that instance, nothing in
this section shall preclude the application of Sections 6258 and 6259
of the Government Code.
(g) If a seal has been maintained
pursuant to this section, a qualifying family member, or a biological
or adoptive aunt, uncle, sibling, first cousin, child,
or grandparent of the deceased child may request that the seal
be removed. The request to remove the seal shall be adjudicated
pursuant to paragraph (8) subdivision (f)
, with the party requesting the removal of the seal being the
opposing party.
(10) If an autopsy report is not sealed or is unsealed after a
hearing conducted pursuant to paragraph 8 or 9, the court may order
that the autopsy report itself may not be televised, published on the
Internet or in print, or displayed in a public manner.
(11)
(h) Nothing in this section shall limit the public
access to information contained in the death certificate including:
name, age, gender, race, date, time and location of death, the name
of a physician reporting a death in a hospital, the name of the
certifying pathologist, date of certification, burial information,
and cause of death.
(12)
(i) When a medical examiner declines a request to
provide a copy of an autopsy report that has been sealed
pursuant to this section, the examiner shall cite this section as the
reason for declining to provide a copy of the report.
(b)
(j) For purposes of this section:
(1) A "child who is under 18 years of age" does not include any
child who comes within either of the following descriptions:
(A) He or she was a dependent child of the juvenile court pursuant
to Section 300 of the Welfare and Institutions Code at the time of
his or her death.
(B) He or she was residing in a state or county juvenile facility,
or a private facility under contract with the state or county for
the placement of juveniles, as a ward of the juvenile court pursuant
to Section 602 of the Welfare and Institutions Code at the time of
his or her death.
(2) "Defense team" means supervisors, attorneys, investigators,
paralegals, support staff, defendant, and other experts consulted for
the purposes of investigation and defense of the person accused of
killing the deceased child victim.
(3) "Evidence"
(2) "Evidence associated with the
examination of a victim" means any object, writing, diagram,
recording, computer file, photograph, video, DVD, CD, film, digital
device, or other item that was collected during, or serves to
document, the autopsy of an individual a
deceased child .
(4)
(3) "Qualifying family member" means the biological or
adoptive parent, spouse, or legal guardian.
(c)
(k) Nothing in this section shall limit the discovery provisions
set forth in Chapter 10 (commencing with Section 1054) of Title 6 of
the Penal Code.
(l) Nothing in this section shall be construed to limit the
authority of the court to seal records or restrict the dissemination
of an autopsy report or evidence associated with the examination of a
victim under case law, other statutory law, or the rules of court.
(m) The provisions of this section are severable. If
any provision of this section or its application is held invalid,
that invalidity shall not affect other provisions or applications
that can be given effect without the invalid provision or
application.
SEC. 4. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
SEC. 5. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to prevent, as soon as possible, autopsy information
concerning deceased children from being made available to the public,
it is necessary that this act take effect immediately.
