Metropolitan News-Enterprise


Monday, August 2, 2010


Page 1


Court: Family Law Sealing Orders Not Unalterable


By a MetNews Staff Writer


The Fourth District Court of Appeal on Friday rejected an argument that sealing orders issued by a family law court are binding and unalterable by a successor trial judge.

Div. Three rejected a challenge to the revision of a sealing order in marital dissolution proceedings between Broadcom Corporation co-founder and former CEO Henry Nicholas and his wife, holding that such orders are subject to continuing review and modification by a trial judge who sits in the same proceeding.

Writing that sealing orders “turn on particular circumstances, which may change or evolve over time,” Justice Richard M. Aronson said that “[e]recting a jurisdictional barrier would effectively prevent the court from exercising custody and control over its own files.” He rebuffed Nicholas’ efforts “to transform one of the initial trial judge’s prior sealing orders into a juridical black hole from which no light can ever escape.”

Nicholas became involved in a contested marital dissolution proceeding with his spouse Stacey Nicholas, with whom he has three minor children, in 2002. He was indicted for illegal stock-option backdating and federal narcotics violations in 2008, but the backdating charges were later dropped due to prosecutorial misconduct.

Citing what he described as “intense media scrutiny and interest,” Nicholas sought a sealing order in 2003 protecting “confidential information” regarding his family’s private life, which Orange Superior Court Judge Nancy Pollard granted.

The case was later assigned to Judge Salvador Sarmiento, who determined that the family’s prominence in the Orange County community made filings in the case newsworthy, and issued a series of orders effectively shielding the entire court file from public view. Sarmiento did so despite a request to intervene by the Los Angeles Times, which claimed there was no justification for the blanket restrictions.

Responsibility for the case files was eventually assigned to Judge James L. Waltz, who—troubled by the fact that virtually the entire court file was “off-limits” to the public, notwithstanding California’s long-standing tradition of open civil proceedings, even in family law cases—unsealed some documents. Waltz directed that all future filings were presumptively open for public inspection unless the filing party complied with rules 2.550 and 2.551 of the California Rules of Court for filing such documents under seal.

Nicholas appealed, seeking to make one of Sarmiento’s sealing orders permanent and unalterable. Pointing out that no one appealed from the order, Nicholas argued that it was frozen in time, leaving Waltz without jurisdiction to modify it.

Aronson, however, said that “Nicholas’s jurisdictional box runs afoul of constitutional principles, California Supreme Court decisions, and judicial rules concerning the sealing and unsealing of court records.”

The justice opined that Nicholas’ argument “would eliminate the court’s express authority to unseal records.” He also said the contention that Waltz was powerless to modify sealing orders issued by his predecessor in the same proceeding “ignores an (albeit lamentable) ‘culture of rotation’ in urban family law departments…, as well as the express authority of successor judges to control their own case files and to alter or amend orders issued by their predecessors in the same case.”

Justices William F. Rylaarsdam and Eileen C. Moore joined Aronson in his opinion.

The case is In re Marriage of Nicholas, 10 S.O.S. 4403.


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