Should someone in a divorce case be able keep certain personal records secret? That's what a California billionaire has been trying to do in his highly contentious divorce case. While the case itself has played out in open court, Ron Burkle has been trying to prevent public scrutiny of his private financial records.
In an effort to do that, he has twice tried to invoke a certain state law - and has been twice rebuffed by appeals courts which have said the law is unconstitutional. But Burkle might just get another bite at the apple. During this year's legislative session, a powerful lawmaker has been trying to restore the teeth in the law that were removed by the appellate courts.
The lawmaker, Sen. Kevin Murray, D-Culver City, has introduced a new bill that would restore those parts of the law that the courts struck down. He says that his effort is to protect personal privacy. I can agree with him to a certain extent - but I can't agree with the politics of his effort.
I generally agree that the public should not have access to private financial information. Yes, court cases are and should be open proceedings. Does that mean, however, that all the evidence evaluated by the court - even the jury in certain cases - should be viewed by people who are only spectators to the case? I don't think it should always be so, especially when we are dealing with complex financial data that can be exploited by these third parties. At the very least, identity theives could have a field day with such data. So, yes, some information should be subject to seal.
But here's the thing: Burkle, a supermarket magnate, is a big contributor to Democrats and Republican Gov. Arnold Schwarzenegger. He is also - and not by coincidence, I think - one of Murray's constituents. Murray's bill is clearly an effort to protect not only a constituent - but also one of his party's contributors. This, to my thinking, is politics at its worst.
The law is not only crude politics, it tends to subvert the sanctity of both the legislative and judicial process. For one thing, it opens the Legislature to charges that it is an instituion literally up for sale; that anyone with enough money can buy legislation for his own personal benefit. It also raises the appearance that there is an effort by Burkle to interfere in the outcome of his own judicial proceeding. Mind you, there is no direct evidence of such a thing in this case - but I have noticed when something is possible, it usually becomes reality under new circumstances.
Last November, I told the New Jersey Law Journal (membership required) that the public's right to know in certain court proceedings should be limited to facts of public interest, and not include any personal finances or personal matters. I said then - and I still agree - that the First Amendment does not allow the public to know the balance on someone's MasterCard.
Instead of a law requiring that judges seal financial information, why not introduce a bill that would grant judges the ability to do so at their own discretion, based on a showing by the parties? I have found that while many courts don't like to seal information in a case, they will find a way to do so if it will protect confidential information.
Of course, in certain cases, news organizations may challenge a judge's ruling to seal certain documents, but I wonder if an appellate court will second-guess an initial trier of fact on this kind of issue.
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