Burkle v. Burkle

• Decision Date: 20 January 2006
• Docket Number: No. B181878.,B181878.
• Citation: 135 Cal.App.4th 1045,37 Cal.Rptr.3d 805
• Court: California Court of Appeals Court of Appeals
• Parties: Janet E. BURKLE, Plaintiff and Respondent, v. Ronald W. BURKLE, Defendant and Appellant.

37 Cal.Rptr.3d 805

135 Cal.App.4th 1045

Janet E. BURKLE, Plaintiff and Respondent, v. Ronald W. BURKLE, Defendant and Appellant.

No. B181878.

Court of Appeal, Second District, Division 8.

January 20, 2006.

As Modified February 1, 2006.

Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, Patricia L. Glaser and Nabil L. Abu-Assal, Los Angeles; Wasser, Cooperman & Carter, Dennis M. Wasser and Bruce E. Cooperman, Los Angeles; De Goff and Sherman and Richard Sherman, for Defendant and Appellant.

Philip Kaufler, Hugh John Gibson, Beverly Hills, and Hillel Chodos, for Plaintiff and Respondent.

Karlene W. Goller, Los Angeles; Davis Wright Tremaine, Kelli L. Sager, Alonzo Wickers IV and Susan E. Seager, Los Angeles, for Intervenor Press Organizations Los Angeles Times Communications LLC, The Associated Press and California Newspaper Publishers Association.

BOLAND, J.

SUMMARY

Family Code section 2024.6¹ requires a court, upon the request of a party to a divorce proceeding, to seal any pleading that lists and provides the location or identifying information about the financial assets and liabilities of the parties. We conclude that section 2024.6 is unconstitutional on its face. 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.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2003, Janet E. Burkle filed a petition to dissolve her marriage to Ronald W. Burkle. Several months later, Mr. Burkle moved to seal or redact certain pleadings. The parties' son and his parents were considered persons of "high public interest." On April 13, 2004, the trial court ordered the redaction of various documents in order to protect the son from possible harm. The court's order redacted certain financial information "based solely upon the potential impact that financial information may have on [the son's] safety." The redacted financial information consisted of residence addresses, and names and account numbers for bank and brokerage accounts. The court, however, refused to redact account balance information. It also refused Mr. Burkle's request to seal the parties' post-marital agreement in its entirety, allowing redaction only of addresses, residences and bank and brokerage account information within the post-marital agreement.

Less than two months later, the Legislature passed AB 782, adding section 2024.6 to the Family Code as urgency legislation. The governor signed the legislation and section 2024.6 became effective June 7, 2004. Subsection (a) of section 2024.6 provides:

"Upon request by a party to a petition for dissolution of marriage, nullity of marriage, or legal separation, the court shall order a pleading that lists the parties' financial assets and liabilities and provides the location or identifying information about those assets and liabilities sealed. The request may be made by ex parte application. Nothing sealed pursuant to this section may be unsealed except upon petition to the court and good cause shown."

Section 2024.6 defines "pleading" as

"a document that sets forth or declares the parties' assets and liabilities, income and expenses, a marital settlement agreement that lists and identifies the parties' assets and liabilities, or any document filed with the court incidental to the declaration or agreement that lists and identifies financial information." (§ 2024.6, subd. (c).)²

Six months after the enactment of section 2024.6, on December 21, 2004, Mr. Burkle brought an ex parte application to seal 28 pleadings under the authority of the section.³ The documents to be sealed included such pleadings as Ms. Burkle's income and expense declaration, notices of lis pendens, motions to which the parties' post-marital agreement was an exhibit, pleadings that contained street addresses of real property, a motion for summary adjudication, discovery motions, and so on.

The Los Angeles Times and The Associated Press (collectively, the press) filed a request to intervene for the purpose of opposing Mr. Burkle's ex parte application, arguing that the press and the public have a presumptive right of access to records and proceedings in divorce cases, and that section 2024.6 is unconstitutional because it requires trial courts to seal divorce court records without providing for the document-by-document analysis and the threshold inquiries required by the First Amendment.⁴ The trial court ordered the 28 documents filed under seal conditionally, subject to further hearing, and granted the press's request to intervene.

In his opposition, Mr. Burkle argued that section 2024.6 was presumptively constitutional, and the press had failed to (1) balance Mr. Burkle's right of privacy against the press's right of access, and (2) prove "that the statute does not serve a compelling purpose or that it is not narrowly tailored to achieve its purpose." In response, the press argued that section 2024.6 is unconstitutional because it reverses the First Amendment presumption that court records are open to the public, by requiring a trial court to seal records without evaluating whether the sealing is necessary to protect a compelling interest. The press also argued that Mr. Burkle bore the burden of demonstrating that section 2024.6 furthers a compelling governmental interest and is narrowly tailored to serve that interest, and that he failed to do so. Moreover, the press argued, even if a compelling interest existed in financial privacy, section 2024.6 is not narrowly tailored to protect that interest "because it requires the wholesale sealing of entire divorce pleadings and files." Ms. Burkle advanced similar arguments.⁵

Balancing "a traditional access to court files in dissolution proceedings and the right to privacy," the trial court ruled that section 2024.6 violated the First Amendment:

"The court finds that while there is a compelling state interest underpinning Family Code § 2024.6, it is not narrowly tailored to effectuate that interest and unduly burdens the competing Constitutional right of public access to civil court proceedings and records. The court concludes the statute is overbroad because it mandates sealing entire pleadings to protect a limited class of specified material. The court also observes that the defect is readily curable by the Legislature."

The trial court explained it had no difficulty finding that a compelling governmental interest underpinned section 2024.6, as the right of privacy is guaranteed by the California Constitution. However, it observed there was no compelling interest in streamlining the process of sealing confidential information "to the point that the court is totally divested of discretion in all instances." Responding to Mr. Burkle's argument that discretion should be implied, consistent with the rule that doubts should be resolved in favor of constitutionality, the court observed that "there is not even a glimmer" that the Legislature intended court discretion. It further stated, "Protection of the competing right of public access requires some discretion on a case-by-case basis before entire pleadings are sealed on behalf of some small portion within them." The court continued:

"The statute is not unconstitutional merely because it deprives the court of discretion as to what should be sealed, but because as enacted it seals the entirety of a pleading if any of the specified materials are included in it. Thus, a 100 page pleading filled with legal argument of genuine public interest must be sealed if a party's home address appears even in a footnote. Absent judicial scrutiny prior to such sealing, § 2024.6 could indeed become an instrument of gamesmanship. The statute cannot be deemed `narrowly tailored' because it necessarily will seal material in which there is no overriding right to privacy."

The trial court thereupon vacated its provisional sealing order, but ordered the pleadings to remain sealed for 60 days to permit Mr. Burkle to seek appellate review. This appeal followed.⁶

DISCUSSION

A. Introduction.

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337 (NBC Subsidiary) the California Supreme Court held that "in general, the First Amendment provides a right of access to ordinary civil trials and proceedings, [and] that constitutional standards governing closure of trial proceedings apply in the civil setting...." (Id. at p. 1212, 86 Cal.Rptr.2d 778, 980 P.2d 337.) After an extensive examination of federal and state precedents, the court concluded "it is clear today that substantive courtroom proceedings in ordinary civil cases are `presumptively open'...." (Id. at p. 1217, 86 Cal.Rptr.2d 778, 980 P.2d 337.) The court held that the statute under review — Code of Civil Procedure section 124 governing public court sittings — "must be interpreted to preclude closure of proceedings that satisfy the ... historical tradition/utility considerations" applied by the United States Supreme Court in Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (Globe). (NBC Subsidiary, supra, 20 Cal.4th at p. 1217, 86 Cal.Rptr.2d 778, 980 P.2d 337.) The presumption of openness, or preclusion of closure, in ordinary civil cases applies unless the trial court (1) provides notice of a contemplated closure, and (2) holds a hearing and expressly finds that:

"(i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is...