Wednesday, August 31, 2016

Creeping divorce case secrecy: Is it any way to run a public court?

Posted By on Wed, Aug 31, 2016 at 12:52 PM

JUDGE CHIP WELCH: Divorce case in his court sealed. It raises again question about selective sealing of divorce cases.
  • JUDGE CHIP WELCH: Divorce case in his court sealed. It raises again question about selective sealing of divorce cases.
The Arkansas Court of Appeals issued opinions today and in one case affirmed Pulaski Circuit Judge Chip Welch's decision to modify a custody arrangement in a divorce case.

In checking the decisions, as I routinely do, I noticed this case was sealed, with none of the appellate filings available for public view. The Court of Appeals did release its opinion in the case, Robin Emis v. Keith Emis, though it's not accessible on the Pulaski clerk's website. (It turned up this afternoon.) Keith Emis, who prevailed, happens to be a well-connected Republican political consultant.

The case was sealed at the circuit court level. The result: There is no trace this divorce case was filed in the lower court nor is there a document in the public record on how the lower court decided the case.

It is well-established that Arkansas law favors open court. There's a reason: accountability. Judges are public employees. How they do their jobs is important, including whether they do them impartially. This becomes hard to evaluate with no record to judge. It is also well-established that, by joint agreement, parties in divorce cases may have closed hearings (as opposed to closed records). There are matters, including concerning children and competitive commercial interests, where the protection of privacy can be argued.

But no record that a divorce suit, however pro forma, exists? No record of a decree, which is the public proof of an enforceable order? I don't believe the law contemplates that and the rising practice of sealing divorce cases simply because that's a party's preference needs a hard look. If the divorce of Keith Emis should be an official secret, why should any divorce case be spread on the public record? Why should the decision of any judge in a domestic matter be open to public scrutiny? You'd find few divorce litigants who wouldn't check the "secret" box if given the option.

I had thought this courtesy protection for favored parties was mostly a practice in Faulkner Circuit Court. Now-Associate Supreme Court Justice Karen Baker extended that favor of wiping the record of millionaire Charles Morgan's divorce case when she was a chancery judge.  Now-Associate Supreme Court Justice Rhonda Wood provided a similar favor to her pal, defrocked Judge Mike Maggio, when he went through a divorce. Reporting by Debra Hale-Shelton at the Democrat-Gazette indicated a case filed by former Republican Sen. Gilbert Baker (Maggio's money man) got the similar special treatment in a domestic case. I've heard since that the practice is widespread in Faulkner County. Good luck to the poor soul who runs a name through the Faulkner clerk's office just to be sure his-or-her intended bride/groom is really divorced. There are no records to be found in the sealed cases.

I'd bet this case is not singular outside Faulkner County. Judge Welch, of course, says he cannot comment on the case at issue. 

I like Chip Welch and I'm sure, having some insight to his politics, that partisan politics played no role. But secrecy for some and not for all is not justice. Secrecy for all is not accountability.

The Arkansas Supreme Court once wrote: "The right of access belongs to the public, not just the parties to a lawsuit."  That was before Karen Baker and Rhonda Wood joined the Supreme Court. So who knows what might happen if the irregular practice of domestic case secrecy ever reaches the Supreme Court. But it should.

UPDATE: Add my wife, Ellen Brantley, to the list of bad guys in this tale. She's a retired judge, but she informs me that she sat in on at least one hearing signed an agreed order during Judge Welch's absence in the Emis case and that agreement included protection of some additional testimony in the case. That seems — though no formal record exists and she says she has no recollection of ordering it— to have prompted sealing of the entire case. She said — if you wish to believe her — that it has always been her practice not to seal entire cases, only to seal those matters and hearings as provided in law. I asked Judge Welch that the case be unsealed.

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