Battle to Maintain Public and Press Access to Divorce Courts

By Susan E. Seager
[Fall 2005]

Each year, more than one million people file for divorce in the United States. In most states, divorce court proceedings and records have long been open to the public and press. This tradition of openness has allowed the public and press to scrutinize the shifting rights of men, women, and domestic partners over their financial assets and child custody and to ensure that the laws are being fairly applied. Nancy C. Cott’s recent book, Public Vows: A History of Marriage and the Nation (2000), conducted an exhaustive look at divorce court records, newspaper articles, and other materials to posit her theory that the government has used marriage laws to shape gender roles, reduce the government’s welfare costs, prevent interracial unions, and limit the influx of some immigrant groups. More recently, The New York Times Magazine published The Fathers’ Crusade by Susan Dominus, a May 8, 2005, article about the rise of the fathers’ custody rights movement, which contends that divorce courts are biased against fathers in child custody decisions. Neither of these publications would have been possible without public access to divorce court records and the ability of the divorcing parties to freely discuss their cases.

But in the bellwether state of California, the Legislature has hastily enacted a new statute mandating the sealing of financial documents filed in divorce court—California Family Code § 2024.6—that would reverse more than a century of openness.

The first test of the new statute

The Los Angeles Times, California Newspaper Publishers Association, and The Associated Press have launched a legal challenge to the new California secrecy statute in the divorce case of Burkle v. Burkle, involving Ronald W. Burkle, a Beverly Hills supermarket magnate who is one of the world’s richest men, reputedly the largest political donor to the Democratic Party, and a financial advisor to Michael Jackson.¹ The battle began just a few days before Christmas in 2004. That’s when Mr. Burkle filed two ex parte applications asking two Los Angeles County Superior Court judges and the California Court of Appeal to seal hundreds of pages of his divorce court records, even though the records had been available to the public as public court records for more than a year. Over the objections of the media organizations and Mrs. Burkle, the trial courts and Court of Appeal issued temporary blanket sealing orders. Demonstrating the danger of such statutes, the Court of Appeal placed the entire Burkle divorce appellate record under seal, sealing more than 12 volumes of previously public court records. Those records remain sealed today.

Mr. Burkle relied on Section 2024.6, which requires a court, upon request, to automatically seal a divorce court record – in its entirety – if the record contains even a mere footnote that mentions a party’s financial assets and the "location" of those assets. This new statute was signed into law as "urgency legislation" by Governor Arnold Schwarzenegger on June 7, 2004, ostensibly to protect divorcing couples from identity theft and kidnappings, although the legislation did not cite a single instance of identity theft or kidnapping that could be linked to public divorce court records. Perhaps not coincidentally, the statute contains the same legal arguments used by Mr. Burkle in his previous legal briefs in his divorce case, and was signed into law shortly after Mr. Burkle and his companies donated nearly $150,000 to the governor’s political committees and the state Democratic Party.

The three media organizations opposed Mr. Burkle’s sealing requests, contending that Section 2024.6 is unconstitutional because it requires courts to seal public court records without undertaking the line-by-line, document-by-document analysis required by the First Amendment. The United States Supreme Court has struck down similarly overbroad statutes as unconstitutional in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609-611 (1982), and other cases.

On Feb. 28, 2005, Los Angeles Superior Court Judge Roy L. Paul found that the statute is unconstitutional because it is "not narrowly tailored." Burkle v. Burkle, 2005 WL 497446 at *4-*5 ( Cal. Sup. Ct. Feb. 28, 2005). Judge Paul explained that the statute is "not unconstitutional merely because it deprives the court of discretion as to what should be sealed, but because as enacted it seals the entirety of a pleading if any of the specified materials are included in it." Id. As written, the statute requires a court to seal "a 100 page pleading filled with legal argument of genuine public interest...if a party’s home address appears even in a footnote," which invites "gamesmanship.” Id.

Mr. Burkle has asked the Court of Appeal to reverse Judge Paul’s order, arguing that the financial data provided in divorce court pleadings should be sealed to protect the litigant’s privacy, which Mr. Burkle asserts is a compelling interest. Mr. Burkle also contends that the statute can be interpreted to allow limited redactions of financial information, and does not require blanket sealing orders. However, Mr. Burkle could not point to any specific language in the statute that would allow a limited redaction.

The statute is inconsistent with the Supreme Court’s "experience and logic" test

In evaluating whether the First Amendment right of public access applies to particular court records or proceedings, the Court of Appeal will follow the United States Supreme Court’s two-part "experience and logic" test. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986) ("Press- Enterprise II"); Globe Newspaper, 457 U.S. at 9. First, the court must evaluate "whether the place and process have historically been open to the press and general public." Second, the court must determine "whether public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise II, 478 U.S. at 8; see also Globe Newspaper, 457 U.S. at 605-06. The media organizations assert that both prerequisites are easily satisfied here.

California’s divorce records traditionally have been open to the public

California’s courts have long recognized that divorce proceedings and records are presumptively open to the public and press. More than 100 years ago, the California Supreme Court vacated a contempt order against a reporter for reporting about closed divorce proceedings, declaring that "[i]n this country it is a first principle that the people have the right to know what is done in their courts." In re Shortridge, 99 Cal. 526, 530-31 (1893). The Court explained that "the greatest publicity to the acts of those holding positions of public trust, and the greatest freedom in the discussion of the proceedings of public tribunals that is consistent with truth and decency are regarded as essential to public trust." Id. at 530-31. California’s Courts of Appeal consistently have adhered to this mandate. See, e.g., Green v. Uccelli, 207 Cal. App. 3d 1112, 1120 (1989); In re Marriage of Lechowick, 65 Cal. App. 4th 1406, 1414 (1998). See also Estate of Hearst, 67 Cal. App. 3d 777, 783-84 (1977) (recognizing common law right of access to probate court records over objection of the prominent Hearst family, which asserted fears of terrorism, kidnapping, and other violence).

A hundred years after Shortridge the California Supreme Court affirmed this long tradition of access, holding that the public and press had a presumptive constitutional right of access to the palimony trial of celebrity Clint Eastwood, and that this right of access did not disappear merely because the proceedings involved wealthy, powerful public figures. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1187, 1208 & n.25; 1211 n.27, 1218-19 (1999). To the contrary, the public’s interest is arguably stronger to ensure that equal treatment is given in celebrity cases. The Court reiterated the important public policy reasons for mandating public access to all court proceedings. 20 Cal. 4th at 1208 n.25; 1210, 1211. Particularly instructive, however, the Court noted that an earlier decision by a California Court of Appeal had not gone far enough in recognizing the First Amendment right of public access to family court proceedings and records when it vacated a blanket order closing divorce court proceedings and sealing records. The Supreme Court noted that in In re Lechowick, 65 Cal. App. 4th 1406, the Court of Appeal had relied solely on Family Code § 214, which allows limited closure of portions of family law proceedings, but should have "take[n] into account rules of procedure and substance set out in...cases construing the First Amendment" right of access to judicial proceedings. NBC Subsidiary, 20 Cal. 4th at 1195 n.11.

The media organizations contend that these authorities demonstrate that civil proceedings and records dealing with personal business disputes—including divorce proceedings—are historically open in California, clearly satisfying the "experience" test of Press-Enterprise II and Globe Newspaper. Thus, the first prong of the United States Supreme Court’s two-pronged test under the First Amendment is satisfied.

Public access to divorce records provides vital information about an important part of our judicial system

The media organizations assert in Burkle that the second part of the Supreme Court test is satisfied because the right of access to divorce proceedings and records "plays a particularly significant role in the functioning of the judicial process and the government as a whole." Globe Newspaper, 457 U.S. at 606. Of course, the Supreme Court has made clear that compelling reasons exist for access to public records in general. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984) ("Press-Enterprise I").

No exception exists for the powerful or wealthy. In NBC Subsidiary, the California Supreme Court strongly rejected the trial court’s assertion that "there is nothing of concern to the public [in the Eastwood trial] ‘beyond the fact that two famous people are involved in a private dispute.’" 20 Cal. 4th at 1210. "We believe that the public has an interest, in all civil cases, in observing and assessing the performance of its judicial system, and that interest strongly supports a general right of access in ordinary civil cases." Id. The Court cited with approval language from Estate of Hearst, a probate case involving the assets of the wealthy Hearst publishing family, observing that "the public has a legitimate interest in access to...court documents...If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism." NBC Subsidiary, 20 Cal. 4th at 1211 n.28, quoting Estate of Hearst, 67 Cal. App. 3d at 777.

The media organizations contend that these principles apply equally to divorce proceedings and records, where the value of public oversight cannot be seriously disputed. Moreover, public and press access to divorce proceedings and records "permits the public to participate in and serve as a check upon the judicial process—an essential component in our structure of selfgovernment." Id. The need for public oversight is especially acute in the Burkle case, where one of the parties is politically and financially powerful, and has been accused by his wife of hiding financial assets and misrepresenting his marital status to avoid sharing tens of millions of dollars in community property.

Section 2024.6 is neither narrowly tailored nor justified by a compelling state interest

Once the First Amendment’s presumptive right of access is found to apply, a statute mandating closure or sealing can only survive constitutional challenge if it is both narrowly tailored and justified by a compelling state interest. In Globe Newspaper, the Supreme Court struck down as unconstitutional a Massachusetts statute that required trial courts to automatically exclude the public and press from any criminal trial during the testimony of underage sex crime victims, holding that the state could not justify the blanket sealing mandated. 457 U.S. at 608, 610.

The media organizations contend that the blanket sealing mandated by Section 2024.6 is similarly unconstitutional. Section 2024.6(a) provides that "[u]pon request by a party to a petition for dissolution of marriage, nullity of marriage, or legal separation, the court shall order a pleading that lists the parties’ financial assets and liabilities and provides the location or identifying information about those assets and liabilities sealed." The statute defines "pleading" very broadly: "a document that sets forth or declares the parties’ assets and liabilities, income and expenses, a marital settlement agreement that lists and identifies the parties’ assets and liabilities, or any document filed with the court incidental to the declaration or agreement that lists and identifies financial information." Id. § 2024(c). The party requesting sealing can do so with an ex parte application. Id. § 2024.6(a).

As with the Massachusetts statute, Section 2024.6 prohibits courts from engaging in a document-bydocument analysis to determine whether secrecy is necessary or whether limited redactions would adequately protect the state interests. Instead, merely upon the demand of one party, the statute mandates the wholesale sealing of records that otherwise would be open to public scrutiny.

Moreover, the state’s asserted interests are speculative and defy common sense. According to the legislative history of the statute cited by Mr. Burkle, the secrecy provision was rationalized by "concerns about identity theft, stalking, kidnapping of the divorcing couple’s children, theft of artworks and other property, and other finance-related crimes…" But like the Massachusetts statute, no empirical data was presented by the author of Section 2024.6 or anyone else in the Legislature to support these speculative claims of harm arising from public court documents. Instead, the bill’s author recited only anecdotal examples of "stolen identities" and of "undue media publicity about divorcing couples with substantial assets," without linking either to publicly-available divorce records. And the California Legislature did not address the fact that similar financial information is available in a wide variety of other court documents in ordinary civil litigation, nor did it consider using an alternative method to protect specific financial information, such as redacting bank account numbers and home addresses.

Based on these authorities and facts, the media organizations are asking the Court of Appeal to find that Section 2024.6 is not narrowly tailored and therefore unconstitutional. The matter is pending before the Court of Appeal, but the Burkle records remain sealed pending that Court’s resolution of this important issue.

NOTES

1 Davis Wright Tremaine attorneys Kelli Sager, Alonzo Wickers and Susan Seager represent the media organizations in this case.

About the author:

Susan E. Seager is an associate in DWT's Los Angeles office. A former journalist, she provides media clients with pre-publication advice and litigates a variety of media issues, including claims for defamation, privacy, and right of publicity, copyright and trademark, and access to court and government records. Susan can be reached at (213) 633-6864 or SusanSeager@dwt.com.

This First Amendment Law Letter is a publication of the law firm of Davis Wright Tremaine LLP and is prepared by its Communications, Media and Information Technologies Department, Kelli L. Sager and Daniel M. Waggoner, co- chairs, Rochelle Wilcox, editor and Steve Chung, associate editor.

Our purpose in publishing this law letter is to inform our clients and friends of recent First Amendment and communications law developments. It is not intended, nor should it be used, as a substitute for specific legal advice since legal counsel may be given only in response to inquiries regarding particular factual situations.

Copyright © 2005, Davis Wright Tremaine LLP

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