In re Adams, BAP No. CC-96-1755-JMeMc

• Decision Date: 10 October 1997
• Docket Number: Bankruptcy No. LA 96-16875-LF.,BAP No. CC-96-1755-JMeMc
• Citation: 214 BR 212
• Parties: In re George ADAMS, Debtor. Adele T. JETER, Appellant, v. OFFICE OF THE UNITED STATES TRUSTEE, Appellee.
• Court: U.S. Bankruptcy Appellate Panel, Ninth Circuit

214 B.R. 212 (1997)

In re George ADAMS, Debtor Adele T. JETER, Appellant, v. OFFICE OF THE UNITED STATES TRUSTEE, Appellee.

BAP No. CC-96-1755-JMeMc, Bankruptcy No. LA 96-16875-LF.

United States Bankruptcy Appellate Panel of the Ninth Circuit.

Submitted Without Oral Argument March 19, 1997.

Decided October 10, 1997.

COPYRIGHT MATERIAL OMITTED

Adele Jeter, Carson, CA, in Pro per.

Joseph E. Caceras, Office of the United States Trustee, Los Angeles, CA, for U.S. Trustee.

Before: JONES, MEYERS and McKEAG,¹ Bankruptcy Judges.

OPINION

MEYERS, Bankruptcy Judge.

I

The main issue in this appeal is whether the requirement in Bankruptcy Code ("Code") Section 110(c), that a bankruptcy petition preparer place his or her social security number on bankruptcy documents, is unconstitutional.

We hold that it is not and AFFIRM the bankruptcy court.

II FACTS

Adele T. Jeter ("Jeter") prepared a Chapter 7 bankruptcy petition, schedules and related documents on behalf of George Adams ("Adams"), who filed for bankruptcy relief on March 5, 1996.

On June 18, 1996, the Office of the United States Trustee ("U.S.Trustee") brought a motion for fines against Jeter and/or disgorgement of her fees. The United States Trustee alleged that Jeter violated Code Section 110 because she: (1) did not sign the bankruptcy petition or any documents filed therewith; (2) failed to place her social security number on the petition or any related documents; and (3) did not file a declaration within 10 days of the filing disclosing the fee she received from the Debtor.

Jeter opposed the motion and the court heard the matter on July 10, 1996. At the conclusion of the hearing the court stated that it would fine Jeter in the amount of $500, but that the fine would be suspended if Jeter met and conferred with the U.S. Trustee within 30 days.

Jeter met and conferred with the U.S. Trustee on July 22, 1996. The court permanently suspended the fine against Jeter. Both the order imposing the fine and the order suspending the fine were entered on August 12, 1996. On August 7, 1996, Jeter filed a notice of appeal of the order imposing the fine.

III STANDARD OF REVIEW

The issues of standing and mootness are legal issues subject to de nova review. In re Spaulding Composites Co. Inc., 207 B.R. 899, 902 (9th Cir. BAP 1997). A challenge to the constitutionality of a statute also is reviewed de novo. In re Kurth Ranch, 986 F.2d 1308, 1310 (9th Cir., 1993), aff'd, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).

IV DISCUSSION

A. Whether We Have Jurisdiction

Jeter's notice of appeal, though filed five days before the order was entered, is timely. Under Fed.R.Bankr.P. 8002(a), a premature notice of appeal is treated as having been filed on the date the order was entered. In re Travers, 202 B.R. 624, 625 (9th Cir. BAP 1996).

Another consideration, in light of the court's order permanently suspending the $500 fine against Jeter, is whether this appeal presents a case or controversy under Article III of the Constitution. Specifically, we must determine whether the order suspending the fine abrogated Jeter's standing as an appellant or mooted her appeal. The principles of standing and mootness are interrelated. The personal stake required of the plaintiff at the commencement of litigation, under the doctrine of standing, must continue throughout its existence, under the mootness doctrine. Arizonans for Official English v. Arizona, ___ U.S. ___, ___, 117 S.Ct. 1055, 1069, 137 L.Ed.2d 170 (1997).

To establish jurisdiction, Jeter must demonstrate an actual or imminent invasion of a legally protected interest that is concrete and particularized. ___ U.S. at ___, 117 S.Ct. at 1067. "The requirement of concreteness, however, does not in and of itself require that the plaintiff be the subject of some administrative or judicial proceeding at the time of suit. The Supreme Court has often upheld the grant of injunctive relief against laws before prosecution." Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497, 500 (7th Cir. 1980). In Entertainment Concepts, an owner of an adult theater sought an injunction against the enforcement of two ordinances enacted by municipal officials. One ordinance required preapproval of businesses showing adult movies, while the other banned the exhibition of obscene motion pictures. The officials argued that the lack of any proceedings against the plaintiff at the time it filed suit rendered the case unripe for judicial review. The court disagreed. It held that the plaintiff could reasonably assert that it feared enforcement of the ordinances stemming from specific conduct on its part. The court determined that under those circumstances, the plaintiff need not expose itself to prosecution, risking closure of its theater, in order to challenge a statute which allegedly deterred its constitutional rights. Id.

Here, Jeter is in the business of preparing bankruptcy petitions. She alleges that Code Section 110 deters the exercise of her constitutional rights. It is reasonable to assume that should she prepare another bankruptcy petition in violation of Section 110(c), she might face prosecution. Whether an appeal should be heard depends on the fitness of the issues for judicial determination and the hardship to the parties from withholding a decision. In re Dominelli, 788 F.2d 584, 585 (9th Cir.1986). To withhold a ruling at this point would leave Jeter unanswered questions as to her duties as a petition preparer, and put her at tangible risk of future fines. The merits of this case have been briefed, argued and decided in the bankruptcy court and briefed for our review. Asking the parties to appeal this issue at some future date would needlessly make them repeat their efforts. Jeter has asserted an imminent invasion of a legally protected interest that is concrete and particularized. We have jurisdiction to determine at this time whether Code Section 110(c) unconstitutionally infringes upon Jeter's interest in concealing her social security number.

B. Whether We Should Reach the Constitutional Issues

Jeter contends that the requirement that she disclose her social security number violates her constitutional rights to privacy and equal protection. The United States Trustee counters that we should not reach this question. The fine against Jeter was based not only on her refusal to provide her social security number, but also on her failure to sign the bankruptcy petition or any related documents and her failure to timely file a declaration disclosing the compensation she received. The United States Trustee states that the fine may be upheld on one or both of these latter grounds, without discussing the constitutionality of requiring disclosure of social security numbers. "We avoid constitutional issues when resolution of such issues is not necessary for disposition of a case." In re Snyder, 472 U.S. 634, 642, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504 (1985).

But in this appeal we are not assessing the merits of the fine. Because Code Section 110(c) clearly directs bankruptcy petition preparers to reveal their social security numbers and because Jeter is in the business of preparing bankruptcy petitions, there is a real threat that she will be fined the next time she prepares a bankruptcy petition without disclosing her social security number. Jeter has asserted a threatened invasion of her alleged constitutional rights that is concrete and particularized. Not wanting to make Jeter face another fine before she can litigate this issue, we have let the appeal proceed — not on the basis of whether the fine is reasonable, but on the issue of whether we should declare Section 110(c) unconstitutional. To resolve this issue we obviously must consider the constitutional questions.

C. Whether the Statute Violates Jeter's Right to Privacy

First, Jeter asserts that her constitutional right to privacy is violated by the requirement that she disclose her social security number on the bankruptcy documents. This argument has been made in only two other cases and has been rejected in both. In re Rausch, 197 B.R. 109, 115 (Bankr.Nev.1996), aff'd, 213 B.R. 364 (D.Nev.1997) (hereinafter "Rausch II"); In re Turner, 193 B.R. 548, 553 (Bankr.N.D.Cal.1996).

The constitutional right of privacy includes the interest in avoiding disclosure of personal matters. Davis v. Bucher, 853 F.2d 718, 719 (9th Cir. 1988). "Though often noted, this interest has been infrequently examined; as a result its contours remain less than clear." Id. The Supreme Court appears "to be willing to limit governmental activity relating to the collection and distribution of data only when that activity impairs fundamental constitutional rights or constitutional restrictions on the criminal justice process." 3 Rotunda and Nowak, Treatise on Constitutional Law § 18.30, 380-81 (2d ed.1993). The Ninth Circuit Court of Appeals has held that the constitution protects only "select privacy interests." People of State of Cal. v. F.C.C., 75 F.3d 1350, 1361 (9th Cir. 1996). The court narrowly restricted the constitutional right to privacy, stating that it protects individuals against interferences with their most basic decisions about family and parenthood and against interferences with bodily integrity. Id.

In that case, the court held that the right to privacy does not prohibit exposure of unlisted telephone numbers through "Caller ID" service. It stated: "A phone number is not among the select privacy interests protected by a federal constitutional right to privacy." Id. In contrast, in Doe v. Attorney General of U.S., 941 F.2d 780, 796 (9th Cir. 1991), the court recognized that "information regarding an individual's HIV-status or AIDS diagnosis would fall within the ambit of the privacy protection afforded medical information."

We do not find a protected privacy interest in the case at hand. In analyzing the constitutional rights, we find a social security number more akin to...