Hiding the dirty laundry

From the Summer 2008 issue of The News Media & The Law, page 25.

First Amendment advocates are beginning to fight back against a recent trend of secrecy in high-profile divorces.

In fact, Barack Obama might have the push for divorce document disclosure to thank for paving the way to his presidential bid.

In 2004, Obama easily won the Illinois senate race against last-minute Republican candidate Alan Keyes. Keyes had replaced Jack Ryan, a formidable opponent to Obama until a newspaper lawsuit exposed a sex scandal hidden in Ryan’s sealed divorce papers. Ryan withdrew from the race after the records from his 1999 divorce revealed his wife, actress Jeri Ryan, told the judge he frequented adult clubs with whips and cages, and pressured her to perform sexual acts with him in public.

Ryan would later claim his divorce was originally sealed to protect his young son, and not his political candidacy.

Georgia House Speaker Glenn Richardson used the same argument this year, citing protection of his children and private financial information as grounds for sealing from the public his uncontested divorce records.

But the secrecy surrounding the high-profile case raised questions, since sealing divorce files isn’t common in Georgia, and Richardson had close ties with the judge who closed the records. Paulding County Superior Court Judge James Osborne is a former law partner of the speaker, and Osborne’s daughter is an attorney at Richardson’s law firm.

Divorce lawyers are closely watching the Richardson case, which may set a precedent for sealed divorces, particularly in high-profile cases. They expect to be inundated with requests for sealed divorces if the speaker is allowed to keep his files out of the public eye.

Gregg Herman, chair of the family law section of the American Bar Association, said it’s a fair assumption that the more people become aware that it is possible to seal divorce files, the more people are going to ask judges to do so.

“Even non-celebrity clients don’t want strangers, nosy people, going through their personal affairs,” Herman said. “Most people would prefer not to have their dirty linen aired.”

And the desire to keep divorce records private makes sense, Herman said, since the proceedings by nature involve family matters, perhaps paternity or child-custody, and sensitive financial information that could expose parties to identity theft.

But Herman said there are ways to seal such information without closing the records and proceedings entirely, since privacy concerns must be weighed against the historic tradition of public access to court proceedings and records.

“There is a significant difference between sealing a bank account number, which doesn’t serve a public purpose, and sealing an entire courtroom from the press,” Herman said.

“Absent extreme circumstances, we shouldn’t be sealing courtrooms.”

The right of access is crucial to making sure that both parties are treated fairly, First Amendment advocates say, especially in cases where one spouse holds most of the power. Public access to divorce proceedings can equalize the playing field in a family court system often ripe with gender bias, says Rachel Allen, spokeswoman for the California National Organization for Women and coauthor of its 2002 family court report.

The Richardson case, for example, raised eyebrows because of the speaker’s ties to the judge. Did Susan Richardson get equitable treatment from Judge Osborne, or was he partial to her husband, his former law partner? Outside observers don’t know because, for now, the case remains sealed.

Though the speaker’s divorce is now final, Osborne has recused himself from ruling on a motion challenging his decision to seal the divorce papers. Chief Judge Walter J. Matthews, of the Rome judicial circuit, will hear the motion to unseal the files brought in February by Georgia government ethics activist George Anderson.

“Surely, public officials are not entitled to special secrecy of their divorces simply because they are public officials,” Anderson’s attorney Gerry Weber wrote in the motion.

But Nevada Gov. Jim Gibbons might not agree. The first-term Republican won a court ruling in May to seal his divorce from Dawn Gibbons, and to shut the media out of the courtroom. Dawn Gibbons sought to keep the divorce public, arguing that she has a right to air the conduct of elected officials, and that the law Carson City District Judge Bill Maddox relied upon in sealing the divorce was unconstitutional.

A group of newspapers successfully challenged a similar California law in 2006 that required judges to honor litigants’ requests to seal divorce records. The California Supreme Court overturned the law on constitutional grounds. The Nevada governor and his wife have since agreed to put their divorce proceedings on holdand refrain from talking to the media while negotiations are underway. They do not plan to reconcile.

Not everybody in the divorcing elite is after secrecy. In June, supermodel Christie Brinkley won her fight to keep her divorce trial from architect Peter Cook open to the media, despite his protests that the lurid details of the proceedings might harm their two children. Cook, Brinkley’s fourth husband, allegedly had an affair with his 18-year-old assistant, then paid her a settlement to keep quiet about the relationship. Brinkley has also accused him of involvement with Internet pornography and swingers’ groups.

The judge agreed with Brinkley, whose divorce is set to be final Sept. 12. In a five-page decision, Suffolk County Judge Mark Cohen said open courtrooms, in divorce cases and in general, can facilitate societal education, and that Cook had not met the high burden of compelling reasons to close the courtroom. The couple reached a settlement deal eight days into the trial, but only after Cook testified about his $3,000-a-month online porn habit.

Herman points out that salacious details are usually kept under wraps, since the vast majority of divorce cases are resolved by settlement. And, even when a nasty divorce progresses to trial, it’s only the handful of “fault states” — like New York, where Brinkley’s proceedings took place — that allow scandalous accusations to play out in court.

Custody disputes, however, can be no-holds-barred when it comes to airing personal details about family relationships. Judges often have the discretion to close cases if the proceedings directly involve children.

“It is incredibly important to protect the children, even at the expense of public access,” Herman said. “This is a conflict the laws have been wrestling with for quite a while.”

But Allen says closing divorce proceedings can actually harm children, since it puts their mothers at a disadvantage. “Pushing proceedings further into the dark helps the system to stay sealed up, hiding the rampant corruption and injustices that women face,” Allen said.

With fathers’ groups pushing for no-fault divorce and mandated joint custody, Allen says fathers have the upper hand. While those groups might disagree, sealing divorces makes monitoring whether there’s a gender bias all the more difficult and hides what Allen calls the “failure of the courts to provide women with due process and to protect domestic violence victims and their children.”

Specifically, NOW’s family court report uncovered a prevalence of unethical tactics used to change custody and reduce child support. According to Allen, some court-appointed evaluators were making recommendations to the court for custody based on their relationships with certain attorneys, and the judges simply rubber-stamped the proposals. Spouses who turn to these unethical tactics can also request a closed divorce to hide financial information from their spouse, says Allen. That’s why divorces should be open, absent extreme, case-specific reasons: “Good government operates best with transparency and accountability to the people,” she said.

Herman agrees. “The American system of law has always been an open system, operating under the theory that if the press is allowed access and reports what happens accurately, it will make the system more honest, more credible, and more legitimate.”