Metropolitan News-Enterprise


Thursday, May 18, 2006


Page 1


Ruling on Sealing of Divorce Records Left Standing by S.C.


By KENNETH OFGANG, Staff Writer/Appellate Courts


The state Supreme Court yesterday declined to review a Court of Appeal ruling striking down a two-year-old state law that requires financial information in divorce files be sealed if either party requests it.

The justices, at their weekly conference in San Francisco, unanimously denied review in Marriage of Burkle, S141394.

Div. Eight of this district’s Court of Appeal ruled Jan. 20 that Family Code Sec. 2024.6 violates the First Amendment on its face.

In an opinion by Justice Paul Boland, that court 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. Janet Burkle, the Los Angeles Times, The Associated Press, and the California Newspaper Publishers Association urged the high court to let the Court of Appeal decision stand.

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 Paul 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.

Statute Ruled Overbroad

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.

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.”

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.

Legislation that would replace the provisions struck down by the court has been shelved, at least temporarily, in the Assembly.

SB 1015 by Sen. Kevin Murray, D-Los Angeles, would require that financial information in divorce cases be “redacted” at the request of either party, subject to the power of the court to make the information public for good cause. The bill, which dealt with an unrelated subject when it passed the Senate last year, was amended in the Assembly and easily cleared two Assembly committees but was placed on the Assembly inactive file last week by the floor manager, Assemblyman Bill Emmerson, R-Rancho Cucamonga.

A spokesperson for Emmerson said the action was taken at Murray’s request. Phone calls to Murray’s office were not returned. 

In other conference action, the court agreed to decide whether statutory time limits in which to petition to extend the state hospital commitment of a mentally disordered offender are mandatory or merely directory. The Sixth District ruled Feb. 8 in People v. Allen, H027835, that the limits are mandatory in the absence of a waiver, so that a petition filed after time had run had to be dismissed.

The justices also agreed to decide whether a bail forfeiture order that was made in the absence of a court reporter, but recorded in the trial court minutes, complied with the statutory requirement that such orders be made in “open court.” The First District’s Div. Two ruled Jan. 19 in People v. Allegheny Casualty Company, A107069, that the requirement was not complied with and reversed.


Copyright 2006, Metropolitan News Company