RESPONSE TO COLORADO LEGISLATIVE DIVORCE BILL

By Rick Johnson

April 18, 2002

Dear Reader:

Senate Bill 02-049, sponsored in the Senate by Senator Gordon, and in the House by Representative Mitchell, would deny reasonable and constitutionally protected access to virtually all Colorado court records in domestic relations matters.

This bill deserves defeat. Barring that action, it deserves to be amended to provide access by persons (other than the parties and various governmental entities) with reasonable and legitimate interests. That may not forestall a Constitutional challenge, but it at least would provide some measure of protection for the public interest in the interim.

Both the Federal and Colorado Constitutions guarantee public trials. There is no equivocation. How can a trial be public if the records can be sealed against public inspection? Access to court records traditionally has been a guarantor both during and after trials, often long after trials have concluded, of equity and propriety in this most key element of state power vs. the individual citizen.

This is not a trifling matter. The Public Interest means just that – The public Interest. Restrictions that bar access to court records of any kind without a compelling state interest are anathema to the public interest.

There apparently has been some suggestion that this measure, in some part, would help limit the opportunities for identity theft. As a former investigator for the Jefferson County and Denver County District Attorneys’ Offices, and an investigator in private practice since 1987, I know that the telephone directory, newspaper death notices, and, in fact, someone’s trash can, are far more useful tools in identity theft than a divorce record. That’s hardly a compelling state interest.

In fact, my reading of a draft of the bill dated February 12, 2002, in the Senate fails to reveal even a hint of a motive or purpose. This draft seems to be a single paragraph making records confidential, followed by a list primarily of governmental or government-related persons or agencies that are granted exceptions.

If there are too few members of the Colorado Legislature with a firm and useful understanding of Constitutional principals to defeat this wrong-headed bill, then there should be an effort to amend it to:

First, provide access to the records for licensed private investigators, and/or;

Second, to make exceptions for specific purposes, much as has been done for access to Colorado motor vehicle documents.

Proposals such as this one do serve at least one good purpose – they tend to remind us that the Constitution was written, not to protect government against its citizens, but to limit the power of government to run willy-nilly over the rights of its citizens.

Sincerely yours,

Rick Johnson