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THE LOCK ON THE BEDROOM DOOR: MEDIA ACCESS TO HEARINGS AND RECORDS IN DIVORCE CASES
1995 National Legal Research Group, Inc.

I. INTRODUCTION

No type of action in the history of law has intruded more on the privacy of the parties than the modern divorce case. The court's financial orders will establish the future economic security of both the parties and their children, and an unfair order can destroy a party's overall financial condition. To minimize this substantial risk of harm, "divorce cases by their nature require a searching and sometimes even intrusive scope of discovery" on financial questions. B. Turner, Equitable Distribution of Property 4.03 (2d ed. 1994). Moreover, while marital fault is less relevant today than it was a generation ago, many states still view fault as relevant, and divorce cases therefore delve in some detail into the parties' past conduct. This examination is particularly searching where the custody of children is at issue; indeed, the record in most custody cases gives minor personality quirks the appearance of major psychological problems. These broad rules of discovery are designed to reveal the skeletons which lurk in every party's closet in order to make the final divorce decree as equitable as possible.

The broad scope of discovery is not a problem as long as the discovered information is used only in the divorce case. Because this information is often sensitive, however, substantial harm can result to the parties' reputations and even to their livelihoods if the information becomes public. In response to this need, many states have held either by statute or by case law that the court may close the hearing and seal the record in a divorce case. See, e.g., Va. Code Ann. 20-124 (1990); Fla. R. Civ. P. 1.611(a).

Sealing the record, however, poses its own set of problems. There is a strong tradition in the United States that government should be conducted as openly as possible. In the judicial arena, this tradition translates into a general rule that the public should have access to court records. This tradition is particularly important with regard to the media, which has an ethical duty and a constitutionally protected right to inform the people about the actions of the government. This right applies to divorce cases with no less force than other areas, as public scrutiny can help to prevent divorce judges from abusing the substantial powers they exercise. In addition, when a divorce case involves a public figure, information disclosed in the case can be essential to informed public judgment on matters of legitimate governmental interest.

This article will explore the tensions between a divorce litigant's right of privacy and the public's right of open access to court proceedings. Traditionally, divorce law has struck a balance between these rights which leans heavily toward preserving privacy. In recent years, however, the Supreme Court has moved strongly toward a policy of open access to all court records. This recent trend imposes substantial obstacles on a party who seeks to keep his or her divorce records confidential. In light of these obstacles, this article will recommend significant changes in the statutory law involving sealed divorce records.

II. THE TRADITIONAL POSITION: ACCESS TO DIVORCE RECORDS UNDER THE COMMON LAW

The common law has traditionally granted the public a presumptive right of access to court records. See, e.g., Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 368 S.E.2d 253, 256 (1988) ("a rebuttable presumption of public access applies in civil proceedings to judicial records"). This right is only presumptive, however, and it can be denied whenever the court in its discretion determines that disclosure is not appropriate. This discretion has generally been exercised in a divorce case whenever requested by either party. As a result, the common law rule is that divorce records can be sealed upon the request of either party. Once the record is sealed, the public in general and the media in particular have no right of access to any portion of the divorce file.

For example, in Ex parte Balogun, 516 So. 2d 606 (Ala. 1987), a newspaper sought access to the file in a divorce case. Applying the traditional rule, the court held:

Id. at 610-11. This holding did not mean that the media could never obtain access to divorce records, but it did mean that the media had to show strong reasons in support of public access. "[B]ecause this is a divorce proceeding and the press's access to the records of a divorce proceeding is generally not permitted, the respondents have an especially difficult burden." Id. at 611. On the facts, the newspaper could not show any "direct, substantial and legally protectable" interest in the divorce proceeding, id., and the court therefore refused to allow the newspaper access to the court record.

Another case along the same lines is C. v. C., 320 A.2d 717 (Del. 1974). That case also arose when a newspaper requested access to a divorce file, and the trial court held that it had no power to deny access. On appeal, the Delaware Supreme Court noted the strong historical tradition of privacy in divorce cases and that the newspaper could obtain access only "if they can demonstrate a legitimate interest therein for some useful purpose." Id. at 727. The burden of proving that interest was on the newspaper. The case was remanded for further application of this standard to the facts.

The general common law rule disfavoring open access to divorce records was even recognized in dicta by the Supreme Court. In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), the court held:

Id. at 598 (quoting In re Caswell, 18 R.I. 835, 29 A. 259, 259 (1893)).

III. THE RECENT TREND: ACCESS TO DIVORCE RECORDS UNDER THE FIRST AMENDMENT

Supreme Court Cases


The common law position on access to court records has come under increasing attack over the past 15 years. The core of the attack has come in a line of Supreme Court cases involving media access to court records. These cases have held that in addition to having a common law right of access to court records, the media also has a right to access arising under the first amendment. This right of access is much broader than the common law right, and it overrules any contrary provisions which may be contained in state law.

The leading case finding a first amendment right of access to court records is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). In that case, a Virginia statute provided that in a criminal case "`[t]he court may, in its discretion, exclude from the trial any persons whose presence would impair the conduct of a fair trial[.]'" Id. at 560 n.2 (quoting Va. Code Ann. 19.2-266 (Supp. 1980)). Acting under the authority of this statute, a Virginia trial judge granted a criminal defendant's motion to exclude the public from a criminal trial. A local newspaper appealed, and the Virginia Supreme Court denied review.

On further appeal, however, the Supreme Court reversed. Reviewing the history of criminal trials in England and the United States, the Court's plurality opinion found a long tradition of public access. Turning to the first amendment, the plurality continued:

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980). "Absent an overriding interest articulated in findings," the plurality concluded, "the trial of a criminal case must be open to the public." Id. at 581. Since the order under appeal did not articulate such an interest, the plurality held that the order violated the first amendment.

Of those justices not joining the plurality opinion, all but one were at least as supportive of the first amendment right of access as the plurality. Indeed, two justices even went so far as to hold the Virginia statute unconstitutionally overbroad on its face. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 584 (1980) (Brennan, J., concurring). The plurality, by contrast, merely held that the statute had been applied in an overbroad manner.

The next Supreme Court case to consider the issue was Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Globeinvolved a Massachusetts statute which absolutely required the judge to exclude the public when a minor child victim testified in a sex-offense case. The Massachusetts courts upheld the statute, but the Supreme Court reversed. Summarizing and reaffirming its holding in Richmond Newspapers, the Court stated the test as follows:

Id. at 606-07. Thus, the party seeking to restrict access must not only show a compelling state interest, but must also show that no other means short of restricting access would serve the compelling interest.

On the facts, Massachusetts argued that there was a compelling state interest: protecting the interests of the minor child victim. The court agreed that this interest was compelling, but nevertheless held:

Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 (1982). Thus, while closing the hearing might be justifiable in some cases, the statute overstated its case by requiring closure in all cases. Because the statute was not narrowly tailored to protect only any compelling state interests which might exist, the Court held that the statute was unconstitutional.

A final relevant Supreme Court case is Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). In Press Enterprise, a California court excluded the media from the jury selection process in a criminal prosecution for rape of a teenage girl. Explaining its decision, the Court relied in part upon the privacy rights of potential jurors to keep sensitive information out of public view. The Supreme Court agreed that "[t]he jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters[.]" Id. at 511. Nevertheless, the Court again found that closure was unconstitutional:

Id. Thus, the fundamental flaw in the order of closure was again that it closed all of the proceedings when the privacy interest involved covered only a portion of the testimony. See also El Vocero de Puerto Rico v. Puerto Rico, 113 S. Ct. 2004 (1993) (similar Puerto Rico statute not justified by Puerto Rico's traditional concern for the honor and reputation of its citizens). The Court closed its opinion by suggesting a method for correcting the problem:

Press Enterprise Co. v. Superior Court, supra, 464 U.S. at 512.

Nondomestic Civil Cases

All of the Supreme Court cases to date which rely upon the first amendment right of access are criminal cases. In the first of these cases, however, the Court stated in a footnote:

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980). While this statement is not controlling, it is certainly a strong suggestion that the first amendment right of access cannot be limited to criminal proceedings. Civil proceedings have traditionally been as open as criminal proceedings, and it would be difficult to argue that the public's interest in civil proceedings is necessarily any smaller. For instance, the public's interest in obtaining access to the sealed record in a product liability case involving a popular and fast-selling automobile would be many times greater than its interest in a criminal case for petty larceny. Since the first amendment right of access clearly applies to the latter case, it would seem difficult to exclude it as a matter of law from the former case. Moreover, even if the public interest in civil cases is on the whole less important than the public interest in criminal cases, this is still not true in every instance. The above example is but one instance of a civil case in which the public's interest is strong and vital. In the criminal cases to date, the Supreme Court has strongly disapproved of restrictions on access which are broader than their supporting basis. Thus, while the first amendment right to access may have somewhat different contours in a civil case than in a criminal case, it is unlikely that the Supreme Court would flatly hold that the right to access applies only in criminal cases.

Relying on reasoning similar to that set forth above, the lower federal court cases have held uniformly that the first amendment right to access applies in civil cases. See Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1069 (3d Cir. 1984) ("this public right of access to civil trials . . . is inherent in the nature of our democratic form of government"); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988). The state cases uniformly reach the same result. See State v. Cottman Transportation Systems, Inc., 75 Md. App. 647, 542 A.2d 859 (1988); State Division of Youth & Family Services v. J.B., 120 N.J. 112, 576 A.2d 261 (1990); Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 368 S.E.2d 253 (1988). See generally Annotation, Exclusion of the Media from Civil Trials, 79 A.L.R.3d 401 (1977).

Domestic Cases

A number of recent decisions expressly apply the first amendment right of access to divorce cases. The results reached in these cases raise serious questions about the traditional rules regarding sealed divorce files.

In In re Keene Sentinel, 136 N.H. 121, 612 A.2d 911 (1992), a newspaper sought access to the sealed record of a divorce case involving a candidate for Congress. The trial court denied access, and the newspaper appealed to the New Hampshire Supreme Court. That court began with the general rule that for reasons of both public policy and constitutional law, court records should be generally open. It then rejected in sequence each argument offered by the candidate as to why the record should remain sealed. First, the court expressly refused to distinguish for right-to-access purposes between criminal and civil cases. "The Douglases offer no reason why such a distinction should make a difference in our conclusion, and we can discern none." 612 A.2d at 915. Second, the court refused to limit access because the petitioner was allegedly an "opposition newspaper . . . motivated solely by `malicious political intent.'" Id. The motivations of the petitioner, the court held, were irrelevant to the right of access.

Third, and most significantly, the court rejected the Douglases' contention that their right to privacy automatically outweighed the first amendment right to access:

In re Keene Sentinel, 136 N.H. 121, 612 A.2d 911, 915-16 (1992). While the court rejected the right of privacy as a blanket assertion, it did not hold that privacy rights would never be relevant. Instead, the court held, the balancing of privacy rights and constitutional concerns must be done on a case-by-case basis:

612 A.2d at 916. Thus, the right to privacy could prevail with regard to particular documents, but only after individualized review by the trial judge of the specific document at issue, and only if there is no way short of nondisclosure of protecting the privacy interest. The trial court's order refusing to open the record was reversed, and the case was remanded for application of this test to the facts.

In Providence Journal v. Clerk of Family Court, 643 A.2d 210 (R.I. 1994), a newspaper likewise petitioned for release of sealed divorce records. This time the trial judge granted the request, and the husband and wife appealed to the Rhode Island Supreme Court. The court held:

Id. at 211. The trial court's order allowing the newspaper access to the sealed file was, therefore, affirmed.

The state of Florida law on access to divorce records is unclear. In Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988), a newspaper sought access to sealed portions of a divorce file dealing with the husband's physical condition. Relying on prior case law from Florida's intermediate appellate court, the husband argued that in a divorce case his privacy rights were superior to the newspaper's right of access. The trial judge rejected this reasoning, and the Florida Supreme Court affirmed:

Id. at 119. On the facts, the court held that the presumption of openness had not been rebutted with respect to the medical information at issue:

Id.

Barron established as broad a right of access as any other court decision nationwide. A later decision by the Florida Court of Appeal, however, reverses much of the practical effect of the Barron decision. In Peyton v. Browning, 541 So. 2d 1341 (Fla. Dist. Ct. App. 1989), two of the husband's creditors sought access to financial information in a sealed divorce file. The trial court denied access, relying on Fla. R. Civ. P. 1.611(a), which provides that financial information in a divorce case may be sealed. In affirming the decision below, the Florida Court of Appeal distinguished Barron as follows:

541 So. 2d at 1343-44.

The Peyton court made three fundamental mistakes of law in construing Barron. First, it failed entirely to draw any distinction between the common law right of access and the first amendment right of access. As noted above, the common law right is subject to exceptions by statute and rule, but the first amendment right cannot be so limited. Barron relied substantially on constitutional concerns, yet those concerns are nowhere mentioned in the Peyton decision. Second, apart from constitutional concerns, the Barron court stated in the broadest possible language that "[t]he parties seeking a dissolution of their marriage are not entitled to a private court hearing just because they are required to utilize the judicial system." Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 119 (Fla. 1988). To state that this holding does not apply because the closure order in Barron was not based on Rule 1.611(a) is to accuse the Florida Supreme Court of blindly ignoring its own rules. Finally, even if Rule 1.611(a) is controlling, that Rule states only that the financial information can be sealed, and states nothing about the conditions under which access can be granted thereafter.

It could be argued in defense of the Peyton opinion that the plaintiffs there were creditors of the husband rather than representatives of the media, and thus the case is materially different from Barron. This point makes good sense, and it is perhaps the best explanation for why the Florida Supreme Court refused to review Peyton. Browning v. Peyton, 548 So. 2d 662 (Fla. 1989). In reaching its holding, however, the Peyton court did not expressly rely upon the status of the plaintiff. The language of the case, therefore, on its face applies to the media as well as to private persons. It is respectfully suggested that if a future decision applies Peyton to a media plaintiff, that decision will stand in violation of past holdings of the United States and Florida Supreme Courts.

There is no reported decision which expressly holds that the first amendment right of access does not apply in divorce cases. The court came close to this holding, however, in Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374, allocatur denied, 515 Pa. 581, 527 A.2d 542 (1986). In Katz, the trial court held that the first amendment right of access absolutely required that all divorce hearings be open. The appellate court assumed without deciding that the first amendment right of access did apply, and then quite properly reversed the decision below. The first amendment right of access must be balanced against other legitimate concerns, the court held, including most notably the litigants' right of privacy. So far, the court's holding was on solid ground. But the court then reached beyond the facts of the case to make the following extended comments:

514 A.2d at 1379. The court also did not see any policy reason to permit public access to the financial portions of a divorce action:

Id. These passages, while admittedly dicta, display a view of the right to privacy which is materially different from that of the United States Supreme Court. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), the Court held that even the privacy rights of a minor child rape victim are not sufficient to defeat the first amendment right to access unless the victim can show that access will cause clear, immediate, and unavoidable harm. Whether the public has a good reason for requiring access is not the point; the public's interest in the rape trial in Globe Newspaper, for instance, was not materially greater than the public interest in divorce proceedings. Even where the public interest is mere curiosity, the public's right to access is still quite strong:

State ex rel. Gore Newspaper Co. v. Tyson, 313 So. 2d 777, 786 (Fla. Dist. Ct. App. 1975) (emphasis by the court). Finally, even if the reasons for public access do matter, the discussion below points out several strong reasons for access which did not occur to the Katz court. Based upon the reported decisions to date, it is unlikely that the Supreme Court would agree with the above portions of the Katz opinion.

Decisions applying the first amendment right of access to divorce cases have generally required some showing of good cause before the record can be sealed. Three reported cases emphasize that the showing must be objective and not subjective. In State ex rel. Gore Newspaper Co. v. Tyson, 313 So. 2d 777 (Fla. Dist. Ct. App. 1975), the court ordered that the press be excluded from the divorce trial of comedian Jackie Gleason. The order was based upon the fact that the parties had requested it and not upon any showing that harm would result if the trial were public. On appeal, the Florida Court of Appeal reversed:

Id. at 783 (emphasis by the court). Thus, the record can be sealed in a divorce case only where the party seeking closure proves that some objective harm will result if the proceeding remains open. Tyson was overruled in English v. McCrary, 348 So. 2d 293 (Fla. 1976), but the case was revived when its holding was expressly approved by the Florida Supreme Court in Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 118 (Fla. 1988).

The same point was made in Merrick v. Merrick, 154 Misc. 2d 559, 585 N.Y.S.2d 989 (Sup. Ct. 1992), aff'd on other grounds, 190 A.D.2d 516, 593 N.Y.S.2d 192 (1993). In that case, the wife of Broadway producer David Merrick sought to exclude the press from their divorce trial. The sole basis for the request was an allegation "upon information and belief" that media coverage was causing emotional distress for the wife and the parties' children. "Given the policy in favor of public access to the court," the judge stated, "the defendant's emotional response to media coverage of this action cannot alone form the basis for closure of the courtroom." 585 N.Y.S.2d at 991. The court therefore refused to exclude the media from the proceedings.

Finally, in Koons v. Koons, 21 Fam. L. Rep. (BNA) 1071 (N.Y. Sup. Ct. 1994), a New York trial court refused to seal the record in the divorce of American artist Jeffrey Koons from Italian pornography star and politician Ilona "La Cicciolina" Staller. To seal the record, the court held, there must be a finding that sealing is required by the public interest and not by the mere private interest of the parties. On the facts, the court found that no sufficient public interest was created by the husband's bare assertion that media coverage would have a negative effect on the couples' young child.

IV. ANALYSIS AND RECOMMENDATIONS

A. The first amendment right of access applies in divorce cases.


The United States Supreme Court has clearly held that the media enjoys a first amendment right of access to criminal trials which is much broader than any common law right. The court has suggested that there is no reason why that right should not also apply to civil cases, and every lower court to consider the question has agreed with the Court's suggestion. This consensus of authority includes every domestic case in which the first amendment right of access has been expressly raised. See Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988); In re Keene Sentinel, 136 N.H. 121, 612 A.2d 911 (1992); Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374, allocatur denied, 515 Pa. 581, 527 A.2d 542 (1986); Providence Journal v. Clerk of Family Court, 643 A.2d 210 (R.I. 1994).

There are substantial weaknesses in any argument that the first amendment right of access does not apply to divorce cases. The Supreme Court has noted that there is a strong public tradition of access to civil trials generally. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n. 17 (1980). This tradition admittedly may apply with less force to divorce cases, but the Supreme Court has in the past looked only to the general tradition of openness and not to specific limitations. For instance, in holding that the first amendment right of access applies in jury selection proceedings, the Court did not rely heavily on whether the tradition of open criminal trials encompassed jury selection. Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1984).

Moreover, the tradition of privacy in divorce cases is based upon the privacy rights of the parties, rights which the Supreme Court has refused to find absolutely controlling. The privacy rights involved in a divorce case are surely no more compelling than the privacy rights of the minor victim in a rape case, yet the Supreme Court struck down a statute which unconditionally denied the media access in such a case. Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). The absolute denial of access required by the statute in Globe Newspaper Co. is similar to the traditional rule that the privacy interests of the parties are absolutely paramount in divorce cases.

In addition, perhaps the single most consistent trend in all of the Supreme Court cases is strong disapproval of a blanket rule that privacy interests supersede first amendment concerns. Instead, the trial court must "determine on a case-by-base basis whether closure is necessary to protect the welfare" of the person whose privacy rights are involved. Globe Newspaper Co. v. Superior Court, 457 U.S. at 596, 609 (1982). Holding that the first amendment right of access does not apply to divorce cases would be tantamount to holding that the privacy rights of the parties always supersede the access rights of the media. Such a holding would fly in the face of every Supreme Court right-of-access decision since 1980.

Finally, one can question the blanket assumption made in some divorce cases that public policy requires extensive privacy in divorce actions. E.g., Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374, allocatur denied, 515 Pa. 581, 527 A.2d 542 (1986). The authority of the judiciary in domestic relations actions is one of the broadest powers given to courts in any area of law. In few other areas is the court given unbounded discretion to transfer ownership of any or all property from one person to another for reasons of pure equity. In addition, a divorce court is empowered to impose substantial and even crippling financial obligations upon persons whose only crime was to enter into a failed marriage, and the court can even deny a party the right to custody of his or her own children, a right which many parents find much more valuable than money. To invoke most of these powers, the judge need state no specific reason other than his own discretionary view of what is equitable.

This is not to say, of course, that these powers are excessive. Indeed, they are generally required by the nature of the divorce process. But the very broadness of a divorce judge's powers creates a serious potential for abuse. For instance, the inconsistent and generally low level of child support orders in this country became a national scandal which eventually led to the enactment of mandatory presumptive guidelines. Many factors led to this problem, but present among them was the tradition of secrecy in divorce cases. If a larger portion of the divorce process took place in the public view, part of that problem might have been averted. Broad judicial powers inherently create a substantial danger of abuse, and the best remedy for that abuse is broad public access.

In addition, greater exposure to the operations of divorce courts might also increase public awareness of the fairness of most divorce proceedings, and thus improve compliance with support orders. Without public exposure, parties in divorce cases may develop a belief that the system strives to reduce wives and mothers to poverty or to milk money out of husbands and fathers. These assumptions are of course entirely incorrect, and greater exposure to actual divorce records would arguably help the public understand this fact. The strongest antidote for the low public image of judges and lawyers is a broader public understanding of the situation in which these high-profile professionals operate.

Justice Oliver Wendell Holmes concisely summarized both of these points over a century ago:

Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). Thus, Justice Holmes believed that public access made the judicial system function better, even where the public had no direct concern with the controversy between the parties. This belief can be contrasted with Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374, allocatur denied, 515 Pa. 581, 527 A.2d 542 (1986), where the court stated that the public's lack of direct concern required privacy, regardless of the public benefits of open access. The Katz court's failure to include these benefits in its analysis was a major error, as the broad power of divorce judges makes Justice Holmes's "sense of public responsibility" even more important than in other types of actions. The Supreme Court has agreed with this point in cases where the privacy interest was at least as strong as the privacy interest in divorce cases. E.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).

In sum, there is a respectable argument that the tradition of extreme privacy in divorce cases inflicts substantial harm upon legitimate public interests. This argument is not a reason to reject all notions of privacy, but it certainly indicates that claims of privacy should not be routinely and automatically granted.

B. Statutes which give the trial judge unlimited discretion to seal divorce files are at least unwise, and they may well be unconstitutional.

As noted above, most statutes dealing with sealed divorce files give the trial judge unlimited discretion to seal a divorce file whenever he or she deems appropriate. In practice, these statutes are generally applied to permit the record to be sealed upon the request of either party. In re Keene Sentinel, 136 N.H. 121, 612 A.2d 911, 916 (1992) (noting that record had been sealed on this basis at parties' divorce hearing). In light of the first amendment right of access, these statutes are subject to serious question.

To begin with, the manner in which these statutes are commonly applied is plainly unconstitutional. If the record can be sealed upon the request of either party, and the media can therefore be denied access, the law is essentially holding that where privacy rights are invoked, those rights always supersede rights under the first amendment. As noted above, this erroneous and overbroad holding has persistently been stricken down by the Supreme Court. As a matter of constitutional law, it is plainly wrong to seal a divorce record merely because one party has so requested.

Even if the statutes are construed in light of what they actually provide rather than how they are commonly applied, there are still grave constitutional questions. By committing the sealing of a divorce file to the trial judge's discretion, the statutes suggest that the judge can seal the record whenever he or she deems such action appropriate. In its reported decisions, however, the Supreme Court has stated a very specific test for sealing court records against media access, and that test is anything but discretionary. The present statutes, therefore, encourage the trial judge to apply a standard which is different from the standard required by the Constitution. At the very least, therefore, these statutes are unwisely drafted.

Whether the present statutes are unconstitutional on their face is a harder question. The statutes encourage the trial judge to apply a looser standard than the Supreme Court has required, but nothing in the statutes prevents the trial judge from applying the correct standard. On the other hand, at least some Supreme Court justices have been willing to strike down statutes which permit highly excessive sealing of court records, even where such excessive sealing is not mandatory. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 584 (1980) (Brennan, J., concurring) (statute which merely permitted closed trial at the discretion of the trial judge was unconstitutional on its face). This point has never been expressly accepted or rejected in a majority opinion, so it is not possible to conclude that overbroad sealing statutes are definitely unconstitutional, but the constitutionality of such statutes is certainly open to substantial question.

C. The first amendment right of access is not absolute, and under a properly drafted statute it is proper to seal the record in at least some divorce cases.

The present range of statutes on sealing divorce records suffers from serious constitutional problems. This fact does not mean, however, that divorce records can never be sealed. On the contrary, the Supreme Court has expressly held in a variety of contexts that the first amendment right of access must be balanced against other concerns, including most notably the privacy rights of the parties.

This balancing must be done on a case-by-case basis, however, and the standard must be consistent with the one applied by the Supreme Court. The Supreme Court case most analogous to the divorce setting is Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), which involved the sealing of the minor victim's testimony in a criminal rape case. The Court in that case applied the following standard:

Id. at 606-07. Since "it must be shown" that these requirements are met, id., the burden of proof is plainly on the party who seeks to seal the record. Thus, where neither party seeks to have the record sealed, sealing of the record is error as a matter of law. Accord In re Keene Sentinel, 136 N.H. 121, 612 A.2d 911, 916 (1992) (trial court "incorrectly placed the burden on the petitioner to show that it had a right of access to these records").

On its face, the Globe Newspaper Co. test states essentially three distinct requirements. First, the court must find on the specific facts involved that the privacy right amounts to a compelling governmental interest. The Globe Newspaper Co. court held that the welfare of a minor child constitutes such an interest, but that holding might well not apply across the board to the parties in all divorce cases. Also, there may be situations in which other considerations might limit the nature of a privacy interest which is ordinarily compelling. For instance, sensitive personal information should probably be entitled to greater protection where the parties are private citizens than where one of them is a candidate for public office. Cf. In re Keene Sentinel, 136 N.H. 121, 612 A.2d 911 (1992).

Second, the court must find, again on the specific facts involved, that failure to seal the record would materially injure the compelling governmental interest. Accord In re Keene Sentinel, 136 N.H. 121, 612 A.2d 911, 916 (1992) ("[t]he petitioner's right of access to the sealed records must be weighed and balanced against privacy interests that are articulated with specificity"). Where disclosure of the record would not result in substantial injury to protected privacy interests, this requirement would not be met. In particular, where the material in the record is not objectively sensitive and the desire for privacy is purely personal, the record should not be sealed. The law speaks in terms of a compelling objective governmental interest, and not a compelling subjective personal interest. See Merrick v. Merrick, 154 Misc. 2d 559, 585 N.Y.S.2d 989 (Sup. Ct. 1992), aff'd on other grounds, 190 A.D.2d 516, 593 N.Y.S.2d 192 (1993); State ex rel. Gore Newspaper Co. v. Tyson, 313 So. 2d 777 (Fla. Dist. Ct. App. 1975). In addition, where the sensitive portions of the record are already available to the public by other means, any harm caused by disclosure would seem to be already inflicted. Thus, sealing the divorce record would not prevent the information from becoming public.

Finally, and most significantly, the court must find that no measure short of sealing the record will prevent the harm identified in the second step. This is the point upon which many parties who seek to restrict access have stumbled. For instance, in Globe Newspaper Co., the Court had no trouble with the proposition that the welfare of a minor child is a compelling governmental interest, and it assumed that at least some types of disclosure would harm that interest. Nevertheless, the Court held that mandatory sealing of the entire record was excessive. Likewise, in Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), the Court held that a potential juror's acknowledged right to privacy did not justify the complete sealing of all jury selection proceedings.

In the divorce context, this last step requires the court to consider alternatives to the complete sealing of the record. Accord In re Keene Sentinel, 136 N.H. 121, 612 A.2d 911, 916 (1992) ("[b]efore a document is ordered sealed, the trial judge must determine that no reasonable alternative to nondisclosure exists"). For instance, it is unlikely that an entire divorce record would be sensitive, and in many cases no one would be harmed if the vast majority of the record were disclosed. The court should therefore seal only those limited portions of the record which pose a substantial threat to protected privacy interests. Accord 612 A.2d at 917 ("the court should consider if redaction of [sensitive parts of the record] is the appropriate least restrictive means" of protecting privacy interests).

A properly drafted sealing statute might read as follows:

V. CONCLUSION

The present practice in divorce cases is to seal the record at the request of either party. This practice is plainly inconsistent with the relevant Supreme Court case law, which requires a specific showing that sealing the record is the only way to prevent substantial harm to a compelling governmental interest.

The deficiency of the present practice has substantial consequences for the entire legal community. From the viewpoint of the practicing bar, the traditional sealing practice provides no guarantee that the record might not be unsealed upon a properly argued request by representatives of the media. This fact should be disclosed to clients with unusually sensitive cases, and the record should be constructed with the question of public access in mind.

From the viewpoint of the judiciary, the Constitution clearly requires that a strict standard be applied to motions to seal court records. Judges who fail to apply the standard suggested above, or at least to explain why they believe such a standard should not apply, face a very real risk of reversal if the order in question is appealed.

Finally, from the viewpoint of the legislature, the present sealing statutes at least oversimplify the sealing process, and there is some authority suggesting that they are unconstitutional on their face. The latter possibility is particularly troubling, for a court striking down the statute might find no supporting basis for sealing any court record, even though some divorce cases undoubtedly contain some material which ought not to be disclosed. To ensure continued protection for the privacy rights of the parties to divorce cases, statutes dealing with the sealing of divorce records should be redrafted along the lines suggested above.

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