Metropolitan News-Enterprise


Monday, January 23, 2006


Page 1


Law Sealing Information in Divorce Cases Held Unconstitutional


By KENNETH OFGANG, Staff Writer/Appellate Courts


A two-year-old state law that requires financial information in divorce files be sealed if either party requests it violates the First Amendment on its face, the Court of Appeal for this district ruled Friday.

Div. Eight, in an opinion by Justice Paul Boland, affirmed Los Angeles Superior Court Judge Roy Paul’s ruling that the public has the right to know how much money is at stake in the divorce of reputed billionaire Ron Burkle and his wife, Janet Burkle.

“We conclude that [Family Code] section 2024.6 is unconstitutional on its face,” Boland wrote. “The First Amendment provides a right of access to court records in divorce proceedings.  While the privacy interests protected by section 2024.6 may override the First Amendment right of access in an appropriate case, the statute is not narrowly tailored to serve overriding privacy interests.  Because less restrictive means exist to achieve the statutory objective, section 2024.6 operates as an undue burden on the First Amendment right of public access to court records.”

Urgency Measure

The legislation passed unanimously as an urgency measure and was signed into law by Gov. Arnold Schwarzenegger in June 2004, less than two months after the judge largely denied a sealing motion by Ron Burkle. The judge held that while certain information, such as residence addresses and the names of banks and brokers doing business with the Burkles, as well as account numbers, should be redacted to protect the safety of the parties’ minor child, other information—including account balances—should remain public. 

Ron Burkle has lavished contributions on political figures in both parties, including Schwarzenegger, but has denied having been behind the passage of the bill. Hillel Chodos, who represents Janet Burkle, told a reporter he suspected Ron Burkle might be involved in the legislation’s passage, but had no proof.

After the bill passed, Ron Burkle sought to seal 28 documents, including his wife’s income and expense declaration and the parties’ marital settlement agreement. Janet Burkle opposed the motion, as did the Los Angeles Times and The Associated Press.

After sealing the documents temporarily, Paul held a hearing and ruled that the statute was overbroad. While he acknowledged Burkle’s right to privacy, he said that by imposing no requirement on the litigant to show a need to seal a particular document, and depriving the court of all discretion in the matter, the statute went too far.

Paul noted that the Legislature could easily correct the defect by passing a more limited statute.

The judge, however, ordered that the documents remain sealed pending appeal.

Boland, writing for the Court of Appeal, said the trial judge was correct.

High Court Precedent

The justice cited NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, which established that there is a preference for openness of civil court proceedings and files, and that the burden is on the party seeking to close a courtroom or seal a file to show an overriding reason for doing so.

That presumption applies to divorces as well as other civil cases, the justice said. “We are not aware of, and Mr. Burkle does not offer, any cases or commentary supporting the notion that divorce proceedings have ever been generally excepted from California’s historical tradition of presumptively open civil proceedings,” Boland wrote, citing a number of California cases, including In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, in which the First District Court of Appeal overturned an order sealing the divorce file of a Mendocino Superior Court judge.

The justice also rejected Burkle’s claim that the past cases are distinguishable because they involve rights of financial privacy, saying such rights are treated no differently than other privacy interests that must be balanced against public rights. 

The case is Burkle v. Burkle, 06 S.O.S.  231


Copyright 2006, Metropolitan News Company