The California Court System Must Protect the Public by Allowing Criminal Background Checks for Employers and Landlords

Background

The Issue

On May 26, 2021, the California Court of Appeals, 4th A.D. (Riverside County), issued a ruling in the case of All of Us or None of Us v. Hamrick that removes significant identifiers, including date of birth and driver’s license number, from criminal records. This ruling creates significant barriers to the criminal background check process, making it difficult – if not impossible – for employers and housing providers to protect the public by conducting criminal background checks.

Following the decision out of Riverside County, superior courts in 11 counties in California, representing more than 21 million Californians (over half the state’s population), have removed date of birth search fields from their websites and/or public access terminals, even in places where background checks are required by law.

Why it Matters

Removing these significant identifiers from search databases leaves employers and housing providers unable to accurately confirm the identity of prospective employees or residents. This means that they can’t take basic steps to ensure the safety of our workplaces, neighborhoods and communities. Accurate background checks are essential to making sure someone with a history of child abuse isn’t working at a day care center, or an individual with a criminal driving record isn’t driving students on a school bus, or an arsonist isn’t living next door to you in your apartment building.

What’s Next

We are urging the California State Supreme Court to hear our case and grant our request for relief. In the event that our request is denied, we are preparing to take our case to the California Judicial Council, requesting that it update Rule 2.507 to include a subsection affirming that the rule does not require clerks to change their longstanding practices, and providing clarity on the ability to conduct background searches in the state of California.

Leading Associations

The Consumer Data Industry Association (CDIA) and the Professional Background Screening Association (PBSA) are leading the effort to overturn the decision in All of Us or None of Us vs. Hamrick, and they are also leading the effort to petition the California Judicial Council.

Litigation Timeline

  • May 26, 2021: All of Us or None of Us v. Hamrick was decided by the California Court of Appeals, 4thD. (Riverside County). The court called for the removal of significant identifiers (date of birth and/or driver’s license number) from criminal records based on an interpretation of California Rules of Court, Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)]. The Court wrote that:

    After considering the text, history, and purpose of Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)], we agree that the rule prohibits the Riverside Superior Court from allowing searches of its electronic criminal index by use of an individual’s date of birth or driver’s license number. We further conclude that the trial court erred in sustaining defendants’ demurrer to this cause of action.

  • July 7, 2021: PBSA sent a letter to California Chief Justice Tani Cantil Sakauye, who is also the Chair of the Judicial Council of California, requesting a change to Rule 2.507 by adding a new subsection to affirm that the rule does not require clerks to change their longstanding practices, and provide clarity on the ability to conduct background searches in the state of California.
  • July 15, 2021: A diverse group of trade associations and businesses, all with a keen interest in protecting the public, signed on to an amicus letter to the California Supreme Court urging the Court to take up All of Us or None of Us vs. Hamrick.
  • July 22, 2022: A second diverse group of trade associations and businesses, all with a keen interest in protecting the public, signed on to a supplemental amicus letter, again urging the California Supreme Court to take up All of Us or None of Us vs. Hamrick.
  • July 22, 2022: The Plaintiff-Appellants filed an application to the California Supreme Court asking for leave to respond to the CDIA/PBSA coordinated joint amicus.
  • August 13, 2021: CDIA and PBSA filed another letter with the California Supreme Court urging, again, the Court to take All of Us or None of Us by highlighting the practical, real-world implications of the Court of Appeal’s mistaken holding.  CDIA and PBSA noted that appellate court’s decision is already having disastrous consequences—namely, the collapse of meaningful criminal background screenings in California and enormous obstacles in getting people into jobs in virtually every sector of the economy. CDIA and PBSA provided the Court with a list of the California superior courts that have removed date-of-birth search fields from their websites and/or public access terminals in the wake of the Court of Appeal’s decision in Hamrick. The data indicate that: (1) More than half the state’s population—22.3 million Californians—currently live in a county whose superior court has removed the date-of-birth filter from its online search engine, thus severely restricting the availability of meaningful criminal background checks in that county; and (2) More than 43% of Californians currently live in a county that has eliminated the date-of-birth filter entirely—not only online, but even at the public access terminals at the courthouse.
  • August 18, 2021: The California Supreme Court granted itself an extra 30 days to consider the CDIA/PBSA petition, moving the deadline to Sept. 30.
  • September 1, 2021: The California Supreme Court denied the CDIA/PBSA petition.

What is the Judicial Council?

The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice (Hon. Tani G. Cantil-Sakauye) and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff help implement the council’s policies.

The list of Judicial Council members is available online.

The Judicial Council has many internal and advisory committees.  The rule request change has been referred to the Criminal Law Advisory Committee (CLAC).

Contact

For more information about this effort or other public record access issues, please contact:

CDIA

Eric J. Ellman, Senior Vice President for Public Policy and Legal Affairs
eellman@cdiaonline.org

Sarah Ohs, Director of Government Relations
sohs@cdiaonline.org

Mike Carone, Manager of Government Relations
mcarone@cdiaonline.org

PBSA

Melissa Sorenson, Executive Director
melissa.sorenson@thepbsa.org