Free Speech

Minnesota Star Tribune Seeking to Unseal Rep. Keith Ellison's Divorce Records

A conservative publication had already filed such a motion; Ellison is the candidate for Minnesota Attorney General, and Deputy Chair of the Democratic National Committee.

|The Volokh Conspiracy |

From a Star-Tribune article today (by Jessie Van Berkel):

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.

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  1. “Our divorce simply isn’t the public’s business, and therefore, when we separated, we jointly asked the court to seal the file.

    Jack Ryan (The Senate Candidate, not the Tom Clancy Character) could not be reached for comment.

  2. As long as you can’t get a divorce without going to court, I don’t see how this can possibly be the right answer. The state is forcing these parties to come to court, and as an extra cherry on top is publishing all their private information in the newspaper. Welcome to 21st century America!

    1. Nobody forced them to get married in the first place. And nobody forced them to disclose anything particularly personal in the divorce, provided that it wasn’t contested. If the state has any interest in who may obtain the benefits of a legal marriage, and just what benefits and burdens accompany such a legally sanctioned relationship, then its harc to argue that the state has no interest in the termination of a marriage.

      1. The state absolutely has an interest in the termination of a marriage. But so does the married couple. Arguably they’d have a constitutional right to get divorced if divorce was not allowed by the law. And so the state may impose burdens on couples’ ability to get a divorce, but only those that are rationally tailored towards some compelling state interest. And I don’t see how requiring couples to air their dirty laundry as a price for getting a divorce serves any state interest at all.

  3. Unsealing divorce records.

    Where have I heard that before?

  4. Oh, come on. He’s a Democrat, so he couldn’t have possibly have had any sexual misadventures, just like JFK or Bill Clinton. Pure as the driven snow.

    1. And yet it’s mainly conservatives and republicans who have issues with sex. Go figure.

      1. You don’t even recognize that as partisan idiocy, do you?

        1. DJ,
          Are you talking about the idiocy of Jerry B’s comment? Or of Regexp’s?

      2. “And yet it’s mainly conservatives and republicans who have issues with sex.”

        Al Franken, Eliot Spitzer, Bill Clinton, Anthony Weiner, Eric Schneiderman could not be reached for comment.

        Neither could Weinstein, Charlie Rose, Matt Lauer.

        1. Yeah, it’s a problem on both sides. Only one of them bothers to clean up their mess though.

          1. “Only one of them bothers to clean up their mess though.”

            That is why Bil Clinton was removed from office.

            Both parties cut lose liabilities but try to hold on to those who they find useful.

            Al Franken, for instance, was forced out because there was a Dem governor to appoint his replacement. Even now, there is much wailing about the raw deal he got.

            1. ‘They are the same so long as you explain away the Dem exceptions and/or reach back to the 1990s!’

      3. Maybe back in the 70’s. Today, it’s the progressive side that wants to restore Victorian era sex codes.

        1. Seems legit. Lots of ankle-based slut shaming.

      4. “And yet it’s mainly conservatives and republicans who have issues with sex. Go figure.”

        No, it isn’t. Rape, perversion, misogyny, etc. are largely the province of progressive democrats.

        1. Rape, perversion, misogyny, etc. are largely the province of progressive democrats.[citation needed]

  5. I hear the mainstream media won’t tell the truth about Democrats. Looks like the Minnesota Star Tribune must not be part of the mainstream media.

  6. I’m mixed on this. On the one hand I don’t see why the records should be public in principle. On the other hand the records have been forced open before, and under the rule of law I expect equal treatment. So consistency in all is what I desire.

    Different Note, can the Conspiracy put together a pronunciation guide for the legal terms which come up? “in camera” is the latest one for those of us not versed in either Latin or Legalese. I’m not even sure how to pronounce it correctly.

    1. It’s pronounced just like saying you’re putting film in the camera. 🙂 Or at least it is where I practice!

  7. Normally I am not a fan of unsealing divorce records – they contain a lot of personal and financial information that should remain private.

    There are far worse things in Ellison history that are far more disqualifying than his divorce issues

    1) domestic abuse
    2) nation of islam support & membership
    3) support for cop killers, etc

    The star tribune has been giving him a big pass the last 10 or so years.

    Looks like they will continue to ignore the more important disqualifying issues and are only going for the divorce records since some else did and likely only to say nothing significant was found –

    Media being deceptive by omission.

    1. Hah. So in this case you believe the woman automatically? Not even asking for an investigation?

      2) nation of islam support & membership
      3) support for cop killers, etc

      Ah. So World Net Daily and Gateway Pundit level sourcing. Good luck with that.

  8. “Kim Ellison said her ex-husband “never abused me in any way before, during, or after our marriage.”

    Perhaps, but did she say something different for tactical reasons in the divorce?

    And what about abusing the kids?

    Or doing other bad things?

  9. If we lived in a world in which we could never unseal politicians divorce records, Barack Hussein Obama would never have become President.

  10. Strange, I can’t seem to find the post where Prof. Volokh discussed Donald Trump’s sealed divorce records. Can anyone share that link?

    1. I hadn’t even realized that he had sealed divorce records. Now that you mention it, I see that back in September 2016 there was an attempt to get the records (which as I understand it were only parts of the divorce file) unsealed, which seems to have fizzled, though I’m not sure why.

      I follow sealing cases much more closely now than I did back then; I’ve gotten much more interested in sealed court records since late 2017, see my “Super double-secret takedown injunction” post, and I’ve filed about half a dozen unsealing cases myself since then.

    2. Why would anyone need to indeal his divorce records? Both of his divorces played out in the tabloids. There were even SNL sketches. Nice try though.

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