Montgomery circuit court seals file in U.S. district judge's divorce proceedings

Amanda Simmons | Secret Courts | News | May 29, 2012

Three journalists requested access to the sealed file of an Alabama-based federal judge's divorce proceedings wrought with accusations of domestic violence, drug abuse and the judge's alleged affair with his court bailiff. The journalists and other legal watchers have expressed concern that the court quietly sealed the records without taking the standard procedural steps.

Citing security reasons, U.S. District Judge Mark Fuller of Montgomery, Ala., moved to seal the file of his divorce proceedings on April 20 despite his wife's objections. Without providing an explanation, a judge in the domestic relations division of Montgomery County Circuit Court granted the request on May 15.

"[O]n numerous occasions the Husband's life, safety and welfare has been threatened as a result of cases that have been assigned to him," Fuller's motion states, according to a copy posted on a website before the court sealed all the documents related to the case. "To not seal the record might very well expose the parties and their children to unnecessary danger."

Last week, Andrew Kreig, director of the Justice Integrity Project in Washington, D.C.; Bob Martin, editor and publisher of The Montgomery Independent and The Millbrook Independent in Alabama; and Roger Shuler, online content provider of the Alabama-based website Legal Schnauzer, submitted their request for public access.

Fuller’s wife, with whom he has two adult children and a teen, submitted an objection to her husband’s motion to seal their divorce file on April 25. She agreed to redact certain sensitive information but “strenuously object[ed] to sealing the entire file,” according to her response. Her initial complaint and request for admissions accuse Fuller of extramarital affairs, domestic violence and prescription drug abuse.

The U.S. Supreme Court has never decided whether the public has a First Amendment right of access to civil proceedings. But several federal appeals courts and state courts – including Alabama's – have held that civil cases are presumed to be open to the public, based on long-established common law and First Amendment interpretations.

The Alabama Supreme Court has held that trial judges, because of the personal nature of divorce proceedings, have discretion to close relevant proceedings and records to protect the rights of the parties, according to The Reporters Committee for Freedom of the Press' Open Courts Compendium outline for Alabama. Before they do so, however, they must balance the competing interests of the public and the parties, one of which is the parties' desire for secrecy, according to Scott Horton, an attorney and professor at Columbia Law School.

“It’s an obviously improper decision, particularly because Mrs. Fuller rejected to the sealing of the file. For the file to be sealed, over the objection of one party, is unusual,” said Horton, noting that the claims made by Fuller’s wife are at this point merely allegations. Horton has followed Fuller's career and written about the judge prior to the divorce in Harper's Magazine.

Shuler, a former journalist for The Birmingham News, said he and Kreig suspect Fuller's request and the court's move to seal the file were prompted by the recent media attention about the scandalous allegations in the divorce.

“The timing of it makes it seem like it was due to press coverage, and I don’t think that’s allowed through the law. That concerns me as a citizen and a journalist,” said Shuler.

Horton said he believes the public’s right to access the court’s civil records is paramount in this case, since Fuller, a federal judge who was nominated to his position by former President George W. Bush, is a public figure.

“It may be ‘sensitive’ information,” Horton said, addressing Fuller’s wife’s accusations and the judge’s motion to seal the proceedings based on security concerns. “But it’s that very information that the public has a right to know.”

Fuller’s attorney, John A. Henig, Jr., declined to comment for this article. His wife's attorney, Floyd Minor, could not be reached for comment.

Related Reporters Committee resources:

· Open Courts Compendium

· Alabama - Open Courts Compendium