July 2000

Letters

Editor:

Re: John Mills' March 2000 Bar News article entitled Calculating Child Support Transfer Payments: A New Approach.

I agree wholeheartedly that the child support transfer payment calculation system is flawed. I have long believed that the economic table and worksheets wrongly ignore two important factors in determining the basic transfer payment: 1) The total family income on the table assumesx that only one household is being supported, not two households, as is the case after divorce. The combined dollar contribution toward the children's expenses totally ignores the fact that after divorce, the same two parents' incomes must now support two households and cannot afford the same standard of living that one household enjoyed. 2) Absolutely no credit is given for the non-majority parent's contribution to the children's expenses during his or her residential time. Even a parent who has the base level 25 percent of residential time must pay for housing, utilities, insurance, food, gas, clothing and incidental expenses for his/her children. Unless the parent has substantial residential time, he or she is given no credit for paying directly for some of the children's costs. Even in 50/50 parenting plans it is often a struggle to get a court to proportionally reduce the presumptive transfer payment for the presumed support-paying parent (i.e., the father).

It is time that we take a serious look at our parenting and support laws, and be realistic about modern family life pre- and post-divorce. As long as we have a "winner take all" system we will continue to breed bitterness and resentment between divorcing parents, guaranteeing no end in sight for expensive custody battles.

The May issue of Bar News includes a letter from David A. Thorner on page 14. Mr. Thorner wrote to inform attorneys of a change to RCW 36.01.050 that was made in 1997. Since he pointed it out, I wanted to also let practitioners know that the legislature amended the statute again this year, effective June 8, 2000. It provides that actions against counties now be brought in the superior court of the two nearest judicial districts, not counties, as was previously the case. OAC retains its authority to designate which two judicial districts those will be.

I recently had the good fortune to discover "free CLE" through the efforts of the Washington Digital Law Library and its director, Ed Hiskes. Its CD is free upon request. The subjects and instructors on the disk are well-chosen, and the production is of the highest professional quality.

This project is worthy of the Bar's support. It has demonstrated to me that CLE can be done both effectively and cheaply. I urge the Bar to utilize the technology that is readily available to us and to authorize us to fulfill our entire CLE requirement through the use of proven technology, rather than limiting our use of technology to 15 hours of CLE. While such limitation may perhaps have been valid years ago, it is not valid today and it should be repealed.

J. A. Vander Stoep's thoughtful letter expressing concern over practice imbalances on the Board of Governors, as well as Yvonne Ward's and Harold Federow's comments were considerably well expressed in the May 2000 issue. I was struck by Mr. Federow's, "For better or worse, we have an elected Board of Governors."

Yeah, well, maybe. I ran for the 8th District position last year which had about 2,500 members. I was astonished to find that the votes for my respected and successful opposing candidate, as well as my vote totals, came to about 20 percent of the eligible voting members!

I have recently seen several advertisements for telephone-delivered CLE programs. These programs are great because they allow for "live credit" CLE to be delivered directly to law offices without wasted time and travel expense. Unfortunately, tuition fees for this form of CLE often exceed $50 per hour.

However, RealNetworks, Inc. (a Seattle company) has developed an Internet-based alternative to telephone delivery — the RealAudio system. Currently, hundreds of radio stations are using RealAudio to provide Internet users with live access to programming. There is no reason this technology cannot be used for Internet broadcasts of live CLE programs.

The technology is easy to use. A computer with a microphone and an Internet connection is placed at the location of a CLE speaker. A free program from Real-Networks, called "RealProducer," captures audio from the microphone and transmits it to a server computer on the Internet. The server computer then re-transmits to listening computers in law offices, where the audio is reproduced using the free "Real-Player" program. Thousands of computers can listen simultaneously to an audio program, with real-time feedback provided to the CLE speaker via chat and e-mail. The best thing about this system is its low cost — less than $2 per hour, per listener.

I hope that WSBA management will look into this technology as a possible means to provide inexpensive "live" CLE credit to WSBA members.

In re Halverson tells us that an attorney may be suspended for a long time for having a sexual relationship with a client. Some lawyer and judge friends of mine have asked for my opinion on the following questions:

1. Does the ruling apply only to dissolution clients, or does it apply to clients seeking help on a real estate project?

2. Does the ruling apply if the lawyer has not written a book on the subject?

3. Is there any statute of limitations?

Guidance from any lawyers claiming expertise in this area would be appreciated.

Others more articulate than I are making the case for restricting access to court files in family law cases, especially when the alternative is online availability to the entire Internet. May I add my two cents' worth?

When the judges get divorced, their files are routinely sealed. Shouldn't the courtesy the judges grant each other be available to ordinary folks, too?

Justice Talmadge states in The Privacy of Court Records: Striking a Delicate Balance, "The courts must also carefully consider whether certain kinds of information now demanded of litigants, particularly in the family law context, must become part of the court file at all."

In the family law context, Justice Talmadge was no doubt referencing the requirement in the petition that all litigants divulge their full address, social security number, birth date and driver's license number. Additionally, if the matter includes a temporary or permanent child support order, litigants are required (with very limited exceptions) to divulge under oath employer addresses and phone numbers, and detailed financial information including income, assets, long- and short-term debts, disabilities and medical conditions, various benefits received, work history, etc. into the public court record.

The divulging requirements increased as a result of the federal Welfare Reform Act and the state law passed in order to comply with the federal law. For example, the federal welfare reform law requires that states pass laws which require that the social security number of any individual who is subject to a divorce decree, support order or paternity determination be placed in the records related to the matter. This portion of the federal law was obviously for the purpose of making child support more uniform and improving child support collections. The federal law was overkill in that it required disclosure of social security numbers of divorce litigants without children. Nonetheless the requirement is the law. Washington would have risked cut-off of federal funds, and maybe worse, if it refused to pass laws including this requirement.

Washington complied with the social security requirement by amending RCW 26.09.020 to require that the social security number be stated in the petition regardless of whether there are children for whom support is sought. Similarly, the Washington petition statute was also amended to require divulging each litigant's last known address regardless of whether support is sought. (Prior to this change the practice was to allege only residence in the county so as to state a basis for jurisdiction and venue.) Note that the social security number and addresses are also required in the Department of Health form, which I believe is a less publicly available document that could have sufficiently met the federal law requirements and protected privacy. Washington's statute is overkill in that this information is required to be placed in publicly available pleadings, but nonetheless this is the law also.

Under the federal statute, divulging a driver's license number is only required in or after a child support order is entered. Washington's amendment to RCW 26.09.020 did not require divulging the driver's license number in all petitions. Nonetheless, in the aftermath of the state and federal welfare reform acts, the forms committee revised the mandatory petition form to require divulging a driver's license number. Similarly, for the first time the mandatory forms committee is requiring each litigant's birth date in the petition.

There is no rational purpose whatsoever for collection of divorce litigants' driver's license numbers or birth dates into a publicly available pleading where no children are involved. Neither the driver's license nor the specific birth date (as distinguished from the litigant's age range stage of life) are used in determining the divorce issues. The potential exists for improper use of the information. In cases where children are involved, collection of the information arguably serves a legitimate purpose in enforcement of child support post-decree, but the information will be restated on the child support order so it is duplicative on the petition. Attorneys should simply refuse to provide this information on the petition.

The federal Welfare Reform Act requires each state to "have in effect safeguards, applicable to all confidential information handled by the state agency, that are designed to protect the privacy rights of the parties, including (A) safeguards against unauthorized use or disclosure of information relating to proceedings or actions to establish paternity, or to establish or enforce support. . . . " However, Washington has not complied with the federal statute by safeguarding the extensive private information required to be put into the court records in child support orders and financial declarations. To the contrary, by requiring disclosure of all this information in public court records but not requiring safeguards, the Washington legislature facilitates identity theft and other casual abuse of private information.

A new wrinkle is that the conversion of paper court records to electronic records mentioned by Justice Talmadge could make electronic access to such private information cheaper, easier and more anonymous, and could facilitate the aggregation of this information from many cases. Those with an interest in such improved access and aggregation include not only identity thieves, scam artists and other criminals, but also legitimate businesses who value the information for marketing and for use in a host of decisions related to employment, insurability, credit, etc. Additionally, the easy access to such information could tempt government to use the information for purposes not initially contemplated.

Contrary to Justice Talmadge's considerations, both federal and state laws require that most of this very personal information be included in child support orders, worksheets and financial declarations. Absent a finding that these statutes are unconstitutional, the courts cannot unilaterally choose to delete the information from the court record. The court's only choice is to seal the records or portions with the private information. By unnecessarily duplicating the number of places the sensitive information appears in the record, the court increases the number of pleadings that need to be sealed. In that respect it might be helpful if the court could require the forms committee to reduce the number of instances that sensitive information is required in the record. Even with reduced numbers of pleadings to be sealed, the prospect of routinely sealing would be a nightmare for the judicial system, and I doubt it is under serious consideration.

However the more fundamental point is that it will most likely take changes in statutes from the legislature before litigants' privacy is better protected. Until then courts would be exacerbating the existing casual invasion of privacy visited on citizens by the government if the courts made pleadings electronically available.

Great job on the Bar's website! I had not looked at it in a long time, as I suppose quite a few other lawyers have not, because frankly, it used to be of very marginal utility. I always wondered why the Bar's own website did not contain a directory of Washington lawyers or links to free web resources for legal research. Now it contains that and lots more. Now it's worth a bookmark. Lawyers who have not visited it in a while should definitely check it out.

Editor's Note: The WSBA website can be found at http://www.wsba.org.

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