No First Amendment Problem with Temporarily Sealing Divorce Complaints Until Proof of Service Is Filed

From Bristow v. Forlini, decided yesterday by Judge Mark Goldsmith (E.D. Mich.):

Mich. Comp. L. § 552.6a provides [in relevant part]:

… Beginning October 1, 2022, a complaint for divorce filed with the court shall not be made available to the public until the proof of service has been filed with the court….

According to the response filed by the State, the statute is intended to provide victims of domestic violence and abuse a temporary period to find "safe harbor" after filing for divorce. Notably, the statute permits defendants and their attorneys of record to obtain a copy of the complaint before the filing of a proof of service.

As a result of this law, Bristow asserts that he can no longer obtain newly filed divorce complaints from the State's Sixteenth Judicial Circuit Court for Macomb County unless proof of service has been filed with the Macomb County Clerk or he has entered his appearance as a party's attorney of record. Bristow maintains that the statute inhibits his practice because it prevents him from expeditiously answering divorce complaints on behalf of his clients. Bristow identifies at least two occasions where he was unable to obtain a complaint filed with the Macomb County Clerk in a pending divorce case.

Bristow challenged the law as violating the First Amendment right of access to court records; the court concluded that he had standing to do so, but concluded that he was unlikely to succeed on the merits:

To determine whether the First Amendment guarantees a qualified right of access to a particular category of court records, courts apply the "experience and logic" test. In applying the "experience and logic" test, courts assess (i) whether the category of documents at issue has "historically been open to the press and the general public" and (ii) whether public access to those records "plays a significant positive role in the functioning of the particular process in question." A qualified right of access attaches where both prongs are met. "Under a qualified right, sealing is appropriate if it is 'essential to preserve higher values' and is 'narrowly tailored' to serve such ends." …

Bristow asserts that the "experience and logic" test is satisfied because "[f]iled divorce complaints in the State historically have been accessible to the general public as a matter of routine prior to October 1, 2022," when the statute went into effect. The State does not disagree.

Although as a general matter divorce complaints may have been accessible to the public prior to Mich. Comp. L. § 552.6a's enactment, a wider historical perspective demonstrates that divorce proceedings have traditionally been shielded in some measure from public view. Defendants refer to cases evidencing historical restrictions on access to divorce proceedings to protect the privacy of the parties involved. See Nixon v. Warner Communications, Inc. (1978) ("[T]he common-law right [to inspect and copy judicial records] has bowed before the power of a court to insure that its records are not 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a divorce case.'") (quoting In re Caswell (R.I. 1893) (holding that a court clerk was not required to furnish a copy of a divorce case to a journalist)); Katz v. Katz (Pa. Super. Ct. 1986) (holding that "divorce hearings are the type of proceedings which courts may close to protect the rights of the parties"). These authorities demonstrate the historical acceptance of restrictions on access to divorce complaints to protect significant interests, such as the privacy of the individuals involved….

The State asserts that "[b]ased on the established case law, public access in divorce cases does not play a significant role in the functioning of the family court." The Court agrees that public access to a copy of a divorce complaint provides little benefit to the proper administration of divorce proceedings.

As an initial matter, the public has little to glean from a divorce complaint itself. Michigan's no-fault divorce regime, by definition, identifies no wrongdoing by the individuals involved. Nor does a divorce complaint reveal information about the functioning of courts or government agencies or the alleged violations of private or public rights. Rather, divorce complaints merely mark the initiation of a legal process between private individuals. Further, because Michigan law permits the unsealing of a divorce complaint after service on the defendant, the public is able to access the complaint during the pendency of the proceedings, and therefore, retains the ability to monitor the proceedings for fairness. See Detroit Free Press ("[P]ublic access acts as a check … by assuring us that proceedings are conducted fairly and properly.").

Importantly, any possible benefit the public might receive were it allowed access to a divorce complaint during the short time between its filing and service on the defendant is heavily outweighed by the benefit of protecting divorce plaintiffs from the threat of further abuse. As the State points out, sealing a divorce complaint between the time of its filing and service provides plaintiffs time to find safety while they are subject to a heightened risk of abuse. The statute thus plays a positive role in the functioning of the divorce proceeding by protecting those who choose to utilize it.

Bristow fails to identify how public access to divorce complaints before they are served plays a significantly positive role in such proceedings. Instead, Bristow largely frames his argument in terms of how the restriction impacts him or his clients. Specifically, Bristow asserts that he is unable to obtain copies of divorce complaints from the Macomb County Clerk's office unless he has entered his appearance on behalf of a client. However, as Bristow acknowledges, he can still obtain a copy of the complaint by filing his appearance in the case. And his clients can do the same by visiting the clerk's office in person. On balance, Bristow's interests, while impacted, are not substantially impeded.

Furthermore, those interests have little, if any, to do with the concern of the "logic" prong, i.e., the impact of a restriction to public access on the functioning of a government process….

The cases upon which Bristow relies do not counsel otherwise. In Shaefer and Planet III, news service organizations sought access to all newly filed nonconfidential civil complaints that they deemed newsworthy. In granting access to the complaints, both courts emphasized the beneficial impact of the public's ability to understand the facts of a civil case so that it could monitor and serve as a check on the proceedings.

By contrast, here, under Michigan's no-fault divorce regime, divorce complaints do not contain detailed factual allegations about the subject matter of the complaint. Coupled with the intensely private nature of the proceedings, such a complaint does not provide the public with the sort of "crucial" information for which access is an important check on the proceedings.

The Court concludes that Mich. Comp. L. § 552.6a(1)'s temporary restriction on the public's access to divorce complaints is both (i) supported by historical example and (ii) plays a significant positive role in the functioning of the divorce process because of the protection it provides to divorce plaintiffs at risk of abuse. Accordingly, the Court concludes that Bristow is unlikely to succeed in his contention that there is a First Amendment qualified right of access to divorce complaints before the filing of a proof of service….

Even assuming that Bristow could establish that a qualified First Amendment right attaches under the "experience and logic" test, the Court finds it likely that Mich. Comp. L. § 552.6a(1) is constitutionally appropriate because it is narrowly tailored to "preserve the higher value[ ]" of protecting divorce plaintiffs from the heightened risk of violence or abuse…. The State cites several tragic incidents of domestic violence highlighting the danger posed to victims of abuse shortly after leaving their abusers. In addition to these individual tragedies, the State points to studies finding that the most dangerous time period for domestic violence victims is shortly after they file for divorce….

Bristow further maintains that the statute is overbroad because it does not provide for a case-by-case determination of whether the complaint should be made nonpublic. But a holding that the State must compel abused plaintiffs seeking to end their marriages to publicly accuse their abusive spouses of misconduct might well tragically ignite an already flammable domestic relationship. Such a requirement would likely deter plaintiffs from making such accusations out of fear of retribution from the defendant. Put simply, the case-by-case approach suggested by Bristow is no answer for the type of harm that the State intends to prevent.

Bristow points to In re Marriage of Burkle, in which a California court rejected an argument that "the same utilitarian values" that support the presumptive openness of criminal and civil trials "somehow lose their potency in the context of divorce proceedings." In re Marriage of Burkle (Cal. Ct. App. 2006) (punctuation modified).

Burkle is very different from the instant case. The statute at issue in that case broadly permitted the sealing of any divorce pleading listing the parties' financial assets and did not permit the unsealing of such records absent good cause. Unlike the restriction in Burkle, Mich. Comp. L. § 552.6a(1) only temporarily renders divorce complaints non-public until they are served on the defendant. Moreover, while the statute in Burkle applied to any divorce pleading that divulged the parties' financial assets, Mich. Comp. L. § 552.6a(1) narrowly applies only to divorce complaints; it does not mandate sealing any other filing in the divorce proceeding.

The Court agrees with the State that Mich. Comp. L. § 552.6a(1) is narrowly tailored to preserve the higher value of protecting divorce plaintiffs subject to domestic violence or abuse. As the State points out, the statute applies only to divorce complaints. Under the statute, both defendants and their attorneys of record may obtain a copy of the complaint before the filing of a proof of service. Moreover, the restriction on the public applies only until the proof of service is filed. Mich. Comp. L. § 552.6a(1). Thus, the statute does not prejudice defendants or their attorneys in divorce proceedings. At bottom, the statute applies narrowly to allow divorce plaintiffs a temporary period of time to make arrangements to protect themselves from potential abuse….

Congratulations to Frank Krycia, who represents defendant Anthony Forlini (the Macomb County Clerk), and Toni L. Harris, Charles A. Cavanagh & Kathleen A. Halloran, who represent the Michigan Attorney General.