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Court of Appeal:
Judge Erred in Acting Based on Prospect Bill Would Pass
Opinion Says Preliminary Injunction Barring Release of Autopsy Reports to News Media Was Improperly Issued on the Basis of Pending Legislation That Would Permit Relatives of Crime Victims to Obtain Sealing Orders
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that a judge erred in issuing a preliminary injunction barring Ventura County from releasing to news agencies autopsy reports on 11 victims of a mass shooting, with that action based entirely on the prospect that a pending bill will be enacted exempting such reports from a disclosure statute.
The Los Angeles Times, The Associated Press, and the Ventura Star News are seeking copies of the reports pursuant to the California Public Records Act (“CPRA”) and the families of victims are pursuing a “reverse CPRA” action in an effort to have the reports permanently sealed.
The bill that was pending when Ventura Superior Court Judge Henry J. Walsh issued the preliminary injunction died. A revamped bill, AB 268, authored by Assembly member Jacqui Irwin, D-Thousand Oaks, would amend Code of Civil Procedure §130 to require that “the court, upon the request of a qualifying family member,” order the sealing of an autopsy report “when the victim is killed as a result of a criminal act,” under specified circumstances; it is pending in committee.
Effectively Stayed Litigation
In ruling as he did, Walsh “effectively stayed the consolidated cases for the duration of the 2021-2022 legislative session,” Justice Steven Z. Perren of Div. Six observed in yesterday’s unpublished opinion, saying that this is something a judge “cannot do.”
He declared:
“We hold that while a trial court may consider a prospective change of law under narrow circumstances, such circumstances were not present here. The court erred when it issued the preliminary injunction without first assessing the probability of respondent families prevailing at trial under existing law. We decline, however, to usurp the province of the trial court and consider the propriety of the injunction sought by respondents. We remand the cause to the trial court for hearing.”
Proper Consideration
Elaborating on circumstances where pending legislation might be taken in to account, the jurist wrote:
“A looming, seismic shift in the statutory framework governing a pending dispute can raise well-founded concerns about case management and trial preparation. The signing of a bill, for example, could justify a brief trial continuance if the law’s effective date lands mid-trial and creates uncertainty over which version of the law applies. The same might be true if the bill were passed but awaiting the Governor’s approval or veto.
“Such was not the situation here. The trial court did not know if or when AB 268 might pass, and, assuming it did, what form it would take once reconciled, and, if signed, codified.”
Walsh, in deciding whether to issue a preliminary injunction, should have focused on the usual factors: the likelihood that the proponents of injunctive relief—here, the family members—would prevail on the merits and the relative harm to the parties by granting or not granting immediate relief, Perren said.
Walsh’s Comment
He quoted Walsh as saying:
“Privacy once invaded cannot retroactively be again made private.”
That’s true, Perren remarked, but added:
“The appearance of a potential legislative solution on the horizon, however, did not allow the court to bypass a meaningful analysis into the prerequisites for issuing a preliminary injunction—particularly the families’ likelihood of prevailing on the merits of their case at trial.”
A judge must act based on current law, he said.
The shooter was Ian Long, 28, who entered the country/western Borderline Bar & Grill in Thousand Oaks on Nov. 7, 2018. Bullets killed 11 patrons, nine men and three women. A sergeant in the Ventura County Sheriff’s Department, Ron Helus, also died from a bullet wound. Long committed suicide.
Times’s Explanation
Explaining why it seeks the autopsy reports, the Times has said:
“It was not until almost a month after the shooting that authorities announced that Sgt. Helus was not killed by the shooter, but by a bullet from another responding officer. While the district attorney’s report, released more than two years later, claims that none of the other victims were shot by law enforcement, the public is entitled to disclosable records, such as autopsy reports, which would confirm or refute this claim.”
The Dec. 17, 2020 report of the District Attorney’s Office says Helus was accidentally shot by California Highway Patrol officer Todd Barrett and notes that “if Long had survived, he could have been prosecuted for the provocative act murder of Sergeant Helus.”
The case is Los Angeles Times Communications v. Housley, B310585.
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