Opinion
CN23-03101
12-16-2024
M. M., Petitioner/Wife, v. J. M., Respondent/Husband.
M ------ M----, Pro se Leslie Spoltore, attorney for Respondent
Date Submitted: October 7, 2024
M ------ M----, Pro se
Leslie Spoltore, attorney for Respondent
APPEAL FROM DENIAL OF MEDIA ACCESS DECISION
MICHAEL K. NEWELL, JUDGE
INTRODUCTION
This is the Court's decision on the appeal of K ----- G. H--- ("Mr. H---") of the trial judge's decision denying media access to court records, hearings, and transcripts in the above matter.
PROCEDURAL HISTORY
On July 3, 2024, K ----- G. H--- ("Mr. H---") requested access to divorce records, hearings, and transcripts. M ------ M---- ("Ms. M----") filed a partial objection to Mr. H---'s request on August 23, 2024. Ms. M---- objected to media access of any financial settlement or judgment by the court regarding distribution of assets, interim support, or final judgment. However, Ms. M----was in support of allowing Mr. H--- access to records relating to discovery, hearings, and proceedings. Leslie Spoltore, Esquire, attorney for J ------- M---- ("Mr. M----"), filed an objection to Mr. H---'s request on September 6, 2024. On September 27, 2024, Judge Ostroski issued an order denying Mr. H---'s request. Judge Ostroski reasoned that Mr. H---'s broad public interest allegations did not convince the Court that he had a direct or legitimate interest in the case, nor did it provide adequate reason to justify superseding the applicable statute, rules and policy. On October 7, 2024, Mr. H--- filed an appeal with the Chief Judge pursuant to the Family Court's Public Access Policy.
FACTUAL BACKGROUND
Mr. H--- is a reporter for the O -------- C---- and C --------- R -------- P ----- ("OCCRP"). Mr. H--- is investigating Mr. M----. Mr. H--- alleged that Mr. M---- is connected to an "international corruption" scandal with the ruling family of Iraqi Kurdistan, the B ------- . Mr. H--- further alleged that Mr. M---- was hired by the B ------- to hide money in the United States. Mr. H--- based these accusations on allegations made in a federal civil lawsuit and allegations made by Ms. M----. Mr. H--- argued that this alleged involvement justifies granting media access because it gives Mr. H--- a legitimate interest in the proceedings and makes the proceedings of public interest. Mr. H---requested that the Court on appeal reverse the decision denying his request.
The Family Court Public Access Policy applies to all requests to access court records. The purpose of the policy is to facilitate public access to Family Court records "consistent with any court order, decision, rule, or applicable state or federal law that requires that certain records are confidential and shall not be disclosed to the public." The policy provides that "[g]enerally, all case records and information are open to the public except as provided herein." The policy provides many exceptions to the general rule, including "records controlled by statute, common law, or court rule. . . unless disclosure is authorized by a Judge." The policy also establishes the procedure for requesting access. The request must be made to the custodian of the records and "all requests must include sufficient information to reasonably identify what is being sought and to allow the information to be accessed." If the request is denied, the custodian must inform the requestor of the denial and reasoning, including the specific statute, federal law, policy, or rule that is the basis of the denial. The policy allows the requestor to appeal the denial in writing to the Chief Judge.
STANDARD OF REVIEW
While this is the first appeal under the Public Access Policy of which this Chief Judge is aware, the Court will review the decision under an abuse of discretion standard because the trial judge has discretion in deciding whether to allow access to divorce proceedings. Thus, this Court will only disrupt the decision if it "exceeded the bounds of reason in light of the circumstances, or so ignored recognized rules of law or practice so as to produce injustice."
C. v. C., 320 A.2d 717, 727 (Del. 1974); see also 5 Am. Jur. 2d Appellate Review § 579.
McNair v. State, 990 A.2d 398, 401 (Del. 2010).
LEGAL STANDARD
In general, divorce proceedings are closed to the public by statute, but the trial judge has discretion to open the proceedings to individuals. While the Family Court Public Access Policy provides that "all case records and information are open to the public," the policy provides many exceptions, including records controlled by statute, common law, or court rule.
The Family Court of the State of Delaware Public Access Policy (May 8, 2009).
Family Court proceedings and records are controlled by statute and court rules. In general, most Family Court hearings and trials are conducted privately with only the parties and their attorneys present. The Court may "admit persons having a direct interest in the proceeding or whose presence otherwise accords with public interest." Family Court records are private and shall not be made available to anyone except "(1) the Court and its staff, or (2) the parties and their attorneys, or (3) other courts and public agencies, or (4) persons specifically approved by the Court because they have a legitimate interest in the public records." Furthermore, divorce records are expressly closed to the public. Pursuant to 13 Del. C. § 1516, all divorce proceedings "shall be private, but for reasons appearing sufficient to the Court any hearing or trial may be opened to any person who has a direct and legitimate interest in the particular case, or a legitimate educational or research interest in the work of the Court."
See Del. Fam. Ct. Civ. R. 42.2(a); Del. Fam. Ct. Civ. R. 90.1(c); see also the various statutes restricting access to proceedings: 13 Del. C. § 924 (adoptions); 13 Del. C. § 8-105 (paternity actions); 13 Del. C. § 1516 (divorce/alimony/property division); 13 Del. C. § 726 (custody/visitation); 13 Del. C. § 2406 (third party visitation); 13 Del. C. §§ 1107, 1112 (termination of parental rights); 13 Del. C. §§ 2355, 2327 (guardianship); 10 Del. C. § 1063 and 13 Del. C. § 2506 (DSCYF custody); 10 Del. C. § 1063 and Del. Fam. Ct. Civ. R. 303 (child support).
Del. Fam. Ct. Civ. R. 42.2(a).
Id.
Del. Fam. Ct. Civ. R. 90.1(c).
At common law "there is no absolute right of a member of the public to inspect judicial records." The common law rule, much like the rule reflected in the applicable statutes, requires that the person requesting access to records has a legitimate interest, motivated by a proper purpose. Judicial divorce records should not be "used to gratify private spite or promote public scandal."
Id. at 723.
Id.
Furthermore, the history and tradition of this state supports restricting public access to family law proceedings. The Delaware Supreme Court noted in 1974 that there was a trend in the past century in Delaware to "protect the privacy of individual litigants in certain sensitive areas of human relationships," such as divorce, termination of parental rights, adoption, and other matters in the Family Court. Restricting access to sensitive and highly personal matters supports individual privacy and public decency, which would be "frustrated if every court divorce file is completely open to public inspection."
Id. at 722-23.
The Family Court is not alone in its public access restrictions. For example, the Court of Chancery may restrict access to guardianship cases because of the sensitive nature of the proceedings. In In Matter of du Pont, the press was denied access to guardianship proceedings of Mr. du Pont, who, at the time, had a pending first-degree murder charge, which garnered a great deal of publicity. Mr. du Pont was determined to be criminally incompetent prior to the filing of the guardianship proceeding. The Court of Chancery denied media access to the file, which included medical and financial records but allowed media access to the transcript of a hearing regarding discovery after determining nothing confidential was revealed in the hearing.
See In Matter of du Pont, 1997 WL 383008 (Del. Ch. June 20, 1997).
Id.
Id.
Id.
DISCUSSION
Mr. H--- made three arguments on appeal. The Court will address them in turn.
(1) Mr. H--- has a legitimate interest in the proceedings and records that is in accordance with the public interest.
Mr. H--- argued that the underlying divorce case is about international corruption and criminality, which should override the confidential nature of the proceedings and records. He based his argument on the fact that Mr. M---- is a defendant in K -------- V ------ F--- v. K -------- R ------- G --------- and claims from Ms. M---- that Mr. M---- is a money launderer. Mr. H--- further alleged that a federal civil lawsuit claims Mr. M---- was hired by a family in Kurdistan to hide money in the United States. Mr. H--- contends that the Kurdistan case is "of great interest to [his organization]" and "arguably of greater import to U.S. taxpayers whose tax dollars flow to Kurdistan."
Mr. H--- has not established that he has a legitimate interest in the proceedings. Mr. H---'s interest in the divorce records stems from his investigation of the B ------ Family and Mr. M----'s alleged criminal activities. Mr. H--- has not established that the divorce records will aid his investigation of Mr. M---- or how the divorce is connected to Mr. M----'s alleged criminal activity. Mr. H--- attempted to connect the divorce to Mr. M----'s alleged work for the B ------ 's by referencing an email written by Ms. M----, which alleges that Mr. M---- is a money launderer and states "perhaps the firm needs . . . more insight on what's going on with my divorce, PNC, and the Kurds."
The Court does not find this loose connection to be persuasive, especially given the fact that the petition pending before the court is a Petition to Set-Aside Prenuptial Agreement. Certainly, Mr. H--- has no legitimate interest in the validity of the prenuptial agreement and did not allege that he does. If the prenuptial agreement is not valid and the case proceeds, it is likely that financial and personal details will be involved, and Mr. H--- has not established a legitimate interest that would compel the Court to open the proceedings. Furthermore, the Court is concerned that opening divorce proceedings based upon broad allegations would encourage and allow fishing expeditions into records that will inevitably contain highly personal and intimate details of the litigants and is exactly what the statute and prior caselaw sought to prevent. Without a more clear and direct interest in the case, the Court cannot find that the trial judge abused her discretion in denying Mr. H---'s request.
Additionally, Mr. H--- has not established that granting his petition for access to the proceedings and records is in the public interest. Mr. H--- contends that the Kurdistan case is of interest to American taxpayers. Even if the Court assumes this is true, it does not establish that the divorce case or pending motion is of public interest. As explained above, Mr. H--- has not shown that the two cases are connected. Furthermore, even if Mr. H--- drew a concrete connection between the two, the outcome would likely remain unchanged. Just as Mr. du Pont's pending murder charges did not justify media access to his guardianship case in In Matter of du Pont, Mr. M----'s alleged criminal activity does not justify media access to his divorce proceedings as public interest. Thus, the Court cannot find that the trial judge abused her discretion in this regard.
(2) Claims of privilege should not apply.
On appeal, Mr. H--- argued that "assertions of privilege, like attorney-client privilege. . . should not apply" because the alleged work Mr. M---- did for the B ------ 's was corporate work and not legal work. Mr. M---- is an attorney and his objection to Mr. H---'s request for media access indicated a fear that the records may contain the identities of his clients, which are protected by attorney-client privilege. Had the trial judge granted Mr. H---'s request, any claims of privilege would become relevant. However, the Court need not reach this issue because the trial judge's order denying access was not based on attorney-client privilege.
(3) The First Amendment of the United States Constitution gives the public a qualified right of access to judicial proceedings and records.
On appeal, Mr. H--- argued that the First Amendment "entrusts the public with a qualified right of access to judicial proceedings and records," citing to Press-Enterprise v. Superior Court, 478 U.S. 1 (1986). The Court notes that Mr. H--- did not present a First Amendment argument in his initial request and raised the argument for the first time on appeal. While Mr. H--- did not explicitly claim that the statute closing divorce proceedings was unconstitutional, the Court makes this inference based on his brief constitutional argument.
The Court notes that Press-Enterprise v. Superior Court concerned the qualified First Amendment right of access to criminal proceedings.
The Court begins with the well settled interpretive principle that enactments of the Delaware General Assembly are presumed to be constitutional. The Delaware Supreme Court has held that "[o]ne who seeks to invalidate a statute on constitutional grounds 'has the burden of rebutting this presumption of validity and constitutionality which accompanies every statute.'" This must be shown by clear and convincing evidence. The Delaware Supreme Court has stated that "'all reasonable doubts as to the validity of a law must be resolved in favor of the constitutionality of the legislation.'" Mr. H--- failed to develop his constitutional argument. Mr. H---'s First Amendment claim spanned only two sentences in his appeal. Thus, the Court cannot find that Mr. H--- has met this heavy burden. Furthermore, for the reasons set out below, the Court finds that 13 Del. C. § 1516 is not unconstitutional and Mr. H--- does not have a right to access divorce proceedings.
Albence v. Higgin, 295 A.3d 1065, 1088 (Del. 2022) (citing Hoover v. State, 958 A.2d 816, 821 (Del. 2008)).
295 A.3d at 1088 (citing McDade v. State, 693 A.2d 1062, 1065 (Del. 1997)).
295 A.3d at 1088-89 (citing Sierra v. Dep't Servs. for Children, Youth, & their Families, 238 A.3d 142, 156 (Del. 2020)).
295 A.3d at 1089 (quoting Hoover, 958 A.2d at 921).
As Mr. H--- pointed out, the United States Supreme Court has established that the First Amendment includes a right to access criminal trials. However, the Supreme Court has never extended this holding to civil trials. The United States Court of Appeals for the Third Circuit has held that "the First Amendment embraces a right of access to [civil] trials." The Third Circuit explained that the right is not absolute, but it must be given "the due process protection that other fundamental rights enjoy." However, the Third Circuit has recognized that the right does not attach to all proceedings and has established a two-prong, experience and logic test to determine whether the right attaches. The Third Circuit has never found that the right to attend civil proceedings attaches to divorce proceedings.
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984).
The experience prong, asks "whether the place and process have historically been open to the press"; and the logic prong, evaluates "whether public access plays a significant positive role in the functioning of the particular process in question." If both prongs are satisfied, the right attaches, giving rise to a strong presumption of access, which may be overcome by "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."25 North Jersey Media Group Inc. v. United States, 836 F.3d 421, 429 (3d Cir, 2016); In re Avandia Mktg., Sales Practices and Products Liab. Litig., 924 F.3d 662, 673 (3d Cir. 2019).
Thus, Mr. H--- does not have a First Amendment right to access divorce proceedings, and 13 Del. C. § 1516 does not affect a First Amendment right which would subject it to strict scrutiny.
CONCLUSION
For the aforementioned reasons the Court finds that the trial judge did not abuse her discretion in denying Mr. H---'s petition for access to records and Mr. H--- does not have a First Amendment right to access divorce proceedings. Therefore, the Court affirms the decision.
IT IS SO ORDERED.