The Volokh Conspiracy
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The Star Tribune has joined a legal effort to unseal the divorce records of U.S. Rep. Keith Ellison, the Democratic candidate for attorney general.
Ellison and his ex-wife, Kim Ellison [a member of the Minneapolis Board of Education], divorced in 2012. The related records have been sealed, so the public cannot access the information.
The Star Tribune's motion to intervene and unseal the records follows a similar action by Alpha News, a right-leaning online news and opinion site.
The efforts follow allegations by Ellison's ex-girlfriend, Karen Monahan, that Ellison domestically abused her in 2016. He has denied the allegation repeatedly, and Monahan has continued to press her case in frequent tweets about Keith Ellison….
The Star Tribune argued that, given the public interest around that situation and Kim Ellison's public support of her ex-husband, the divorce records are a matter of concern to voters. Divorce records are typically public, but judges will often agree to seal them if both parties to the case agree and no one else objects.
The Ellison campaign released a statement from Kim Ellison on behalf of both her and Keith Ellison. "Our divorce simply isn't the public's business, and therefore, when we separated, we jointly asked the court to seal the file. Now, one month before a closely contested election for Minnesota Attorney General, a conservative group wants to probe our divorce file in search of something to use against Keith in this race. I am disappointed that the Star Tribune would choose to file this motion."
Kim Ellison said her ex-husband "never abused me in any way before, during, or after our marriage." She said release of the file would exploit their privacy and the privacy of their children.
Carla Kjellberg will be filing a joint opposition on behalf of both Keith and Kim Ellison, according to a notice of the motion filed Monday. Kim Ellison is a member of the Minneapolis Board of Education.
As a general matter, divorce files, like almost all other court files, are matters of public record. While parts of them can often be sealed (or released only redacted form), any such sealing requires some special justification besides the spouses' general interest in privacy; moreover, the sealing is generally supposed to be no broader than necessary given that justification. Just as an example, here's a passage from a 1992 New Hampshire Supreme Court case also involving an attempt to unseal a political candidate's divorce file:
[T]he Douglases [the divorced couple] contend that the Keene Sentinel has no proper interest in viewing the divorce records, but instead, as an "opposition newspaper," is motivated solely by "malicious political intent." The motivations of the Keene Sentinel—or any member of the public—are irrelevant to the question of access. We cannot dictate what should and should not interest the public. Were the court to do so we would overstep our judicial authority by substituting our preferences for those of the individual. Accessibility of information assumes and encourages a community of people free to think as it chooses and act according to its collective will….
[T]he Douglases argue that their right to privacy with regard to family and marital matters outweighs the newspaper's right to access and that, therefore, none of their sealed documents should be opened to the public. We cannot accept such a blanket assertion of the privacy right.
Courts, as an integral part of the government of our State, are required by part I, article 8 of our constitution to be "open" and "accessible." They are public forums. A private citizen seeking a divorce in this State must unavoidably do so in a public forum, and consequently many private family and marital matters become public. "[P]arties seeking a dissolution of their marriage are not entitled to a private court proceeding just because they are required to utilize the judicial system." Under part I, article 8, the public has a right of access to court proceedings and to court records which cannot be "unreasonably restricted." We hold that under the constitutional and decisional law of this State, there is a presumption that court records are public and the burden of proof rests with the party seeking closure or nondisclosure of court records to demonstrate with specificity that there is some overriding consideration or special circumstance, that is, a sufficiently compelling interest, which outweighs the public's right of access to those records.
Finally, the Douglases contend that the Keene Sentinel's request to unseal the divorce records is untimely. Each New Hampshire case involving access, they point out, concerned a dispute over access to records during the pendency of a case, not thirteen or nine years after a final decision had been reached, as in the instant case. If the Keene Sentinel wished to obtain access to the divorce records, they argue, it should have made a request while the cases were still pending. We consider such a limitation as placing too great a burden on those seeking access to court records.
No one can accurately determine in advance when access to court records may be sought or for what purpose. To rule as the Douglases suggest would result in an unreasonable restriction and would undermine the efficacy of the guarantees under part I, article 8….
We now address whether or not the superior court erred in denying access to the sealed divorce records. There is no indication in the record before us that the trial court which issued the original orders to seal the records engaged in any balancing process to determine if the interests asserted by the Douglases in support of their request to seal were sufficiently compelling to outweigh the public's right of access. Apparently the records were simply sealed at the request of the parties. The petitioner certainly was not present to assert its claim of access at the time the records were sealed. Our reading of the court's order in this case indicates that it deferred to the original orders to seal and incorrectly placed the burden on the petitioner to show that it had a right of access to these records. Therefore, it appears that insufficient safeguards were used in the decision-making process to protect the guarantees of part I, articles 8 and 22 of the State Constitution.
The Douglases cannot prevail in their claim to keep the records sealed merely by asserting a general privacy interest. The petitioner's right of access to the sealed records must be weighed and balanced against privacy interests that are articulated with specificity.
In order for this exacting process to be accomplished, the trial judge must review each document to which access is sought and for which a specific right of privacy is claimed to determine if there is a sufficiently compelling reason that would justify preventing public access to that document, with the burden of proof resting on the party seeking nondisclosure. Before a document is ordered sealed, the trial judge must determine that no reasonable alternative to nondisclosure exists. In addition, the trial judge must use the least restrictive means available to accomplish the purposes sought to be achieved…..
The court [should] separately examine each document in question in camera (in chambers with only counsel for the parties and for the petitioner present) on the record. During the in camera hearing, it shall rest within the sound discretion of the trial judge, taking into consideration the particular circumstances of the case at hand, to determine whether and to what extent the content of any document is to be revealed to a petitioner. There will be instances where the claimed countervailing rights of a party (for example, constitutional rights of a defendant in a criminal case or statutory provisions granting or requiring confidentiality in certain cases) must not be rendered moot pending final resolution of the access issue. When appropriate, the document's subject matter, however, can be described in general terms such that persons objecting to closure can present an adequate argument to the court.
The Minnesota Constitution doesn't appear to have the same open courts language that the New Hampshire Constitution does; but the First Amendment right of access to court records, and the common-law right of access that courts generally recognize, have generally been understood as providing the same sort of protection that the decision above outlines.
For more on this issue, see this item in Slate (Brendan Koerner), written in 2004, when the divorce papers of U.S. Senate candidate Jack Ryan were unsealed, which led to his withdrawal from the race and the election of Barack Obama as junior senator from Illinois.
Thanks to reader Matthew Caplan for the pointer.