In the dock: public v. private: Burkle seeks seal on divorce papers based on security.

Privacy protections and public access are on a collision course in the current court battle over whether the financial documents in billionaire Ron Burkle's divorce case should remain open.

Lawyers for media organizations are objecting to a new state statute that went into effect last summer because they say it oversteps previous protections. The law allows either spouse in a divorce to seal documents outlining assets and liabilities, something Burkle's attorneys have repeatedly attempted to do. Attorneys representing his wife, Janet Burkle, argue that the law is unconstitutional.

Susan Seager, an attorney representing the Los Angeles Times and the Associated Press, joined by attorneys for the California Newspaper Publishers Association, are asking a judiciary panel in 2nd Appellate District to declare the statute unconstitutional. For now, Los Angeles Superior Court Judge Roy Paul temporarily sealed the Burkle documents until he determined the applicability of the new law. The next hearing on the matter is scheduled for Feb. 18.

"Newspaper publishers have had a longstanding position that the courts ought to be open and public, like a city council meeting or state legislature," said Tom Newton, general counsel of the CNPA. "What the statute did was allow one party in a divorce proceeding to seal potentially the entire record associated with the proceeding. And it took away the judge's discretion to say the public interest on this issue demands the file stay open and public."

In an e-mail to the Business Journal, Ron Burkle said: "In a divorce, people's entire lives are cut open and exposed. I don't believe that a reporter's curiosity outweights an individual's right to privacy and the right to protect oneself from identity theft."

Identity theft is among the reasons cited by defense lawyers no affiliated with the case in their arguments on the merits of the statue.

Makes sealing easier

Mitchell Langberg, a defamation lawyer at Stroock & Stroock & Lavan LLP who represents celebrities, noted that divorce cases often involve more detailed financial information, such as bank account numbers, than ordinary civil lawsuits.

Having a statute available that automatically seals financial information in divorces makes it easier for judges who would often seal them anyway, he said.

"Most would consider someone's personal financial information worthy of sealing, but you would have to go through a process of making a motion to the court and, depending on whether the court agreed with you, you might get a sealing order," he said.

Media lawyers are relying on a 1999 decision involving a contractual dispute between Clint Eastwood and ex-girlfriend Sondra Locke. In that case, the California Supreme Court clarified that personal disputes in court should remain public and precipitated stricter rules for obtaining sealing orders in such disputes, including divorces.

Locke claimed that Eastwood deceived her when he promised her a financial share of movies, including the 1992 film, "Unforgiven." In a published opinion, the California Supreme Court ruled that the proceedings and records should be open unless they meet specific circumstances that are considered more important than the public's right to know.

"That case was special to us because for the first time it asked the question of whether or not there was a public constitutional right to access to civil proceedings," Newton said.

After the ruling, the Judicial Council set up court rules that outline a test for sealing certain documents in civil lawsuits. According to those rules, a court may order a record sealed only if it involves an "overriding interest that overcomes the right of public access to the record."

In their brief, media lawyers argue that the Burkle case has not met that test and that the state's new statute violates its requirement of the test altogether.

"This law is pretty much unlike any other," said Peter Scheer, executive director of the California First Amendment Coalition. "You don't have to say anything to the judge except, 'I want it sealed.'"

Divorces routinely public

In their brief to the appellate court, the media lawyers argue that the statute unfairly seals records in a divorce without the independent analysis of a judge and regardless of whether the other spouse or the media objects. California courts historically have ruled that divorces are public under the law, the brief says.

"Marital dissolution proceedings often involve some of the state's most pressing criminal, social, and economic issues, including the division of community property, financial child support, parental fitness, and child custody disputes," the brief says.

A divorce that involves public figures such as Ron Burkle has even less reason to be sealed from the public, the brief says, because, in many cases the information to be sealed already has been published.

The law on which Ron Burkle's attorneys rely was passed by the Legislature in May and signed by Gov. Arnold Schwarzenegger under an emergency clause that put it into effect immediately.

Its sponsor, Assemblywoman Christine Kehoe, said at the time that the statute was needed partly to prevent "undue media publicity about divorcing couples with substantial assets."

In their brief, media lawyers cite several famous California cases, including the 1977 probate case of William Randolph Hearst, in which the press challenged an order to seal all the files. Family members had succeeded in getting the case sealed because their lives were threatened, particularly after the kidnapping of Patricia Hearst.

A California appellate court sided with the media in stating, "If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice and favoritism."

Sorrell Trope, a partner at Trope & Trope, said the statute would make it more difficult for his non-celebrity clients to obtain information about their spouse's previous divorces, which is a common request in ensuring they get a fair deal.

"For the majority of people, there's nothing exotic in their financial circumstances that somebody should have the court file sealed," he said. "This is a radical change in the law, in terms of doing that, because it takes it out of the discretion of the court and virtually says if either party wants it sealed, it gets done."