Raising Cane
By Rob Perez
Isle divorces can be kept
hush hush — for a priceA year ago the wife of University of Hawaii football coach June Jones filed a lawsuit seeking a legal separation from her husband and custody of their children.
A few years before that, Al and April Masini, the wealthy high-society couple of Hawaii's television industry, went to court to get a divorce.
More than a decade before that, the wife of prominent Honolulu attorney David Schutter filed a lawsuit seeking to end their marriage.
Besides the celebrity factor, all three cases have something in common.
They have since been sealed by the court.
That means not only are they confidential but that all public evidence of their existence has basically been wiped out.
Check the court's public-records computer and online system and you get zilch.
You can't find out when the cases were filed.
You can't find out what happened to them.
You can't even get a file number or names of the parties involved, the most basic information in a court document.
It's as if the cases never existed, with the court removing all identifying markers from the public-access system.
Just trying to find out whether a divorce was granted -- usually routine public information -- requires submitting a special request to the judge in these super-secret cases.
The request, of course, can be denied.
Yet the records in Hawaii's other divorce cases, thousands of them typically involving the state's less prominent and less wealthy, are open for the world to see, warts and all.
Experts here and on the mainland called the court's leave-no-trace-behind policy astonishing, though at least a few other states, including California, engage in the practice.
"It sounds unbelievable," University of Hawaii law professor Randy Roth said. "I think it's a terrible idea."
Despite the fact that the practice is seldom used in Hawaii, it benefits mostly the wealthy, who often don't want others to know the extent of their riches or don't want business competitors to learn trade secrets or other sensitive information.
"A lot of these people have big money and don't want people to know how big it is," said Brad Coates, senior partner for Coates & Frey, Hawaii's largest family law firm.
For simple divorces, lawyers may charge only a few hundred dollars to file a motion requesting super-secret status, but the cost typically rises with the complexity of the case.
The folks who aren't wealthy often lack or are reluctant to spend the money to seek confidentiality or care little about such secrecy.
"Not everybody has the horsepower to file these motions," Coates said.
As a result, such practices tend to underscore the common perception that the rich and powerful have a separate system of justice, one that most people don't have equal access to.
"That's a legitimate concern," said Tom Stirling, who has practiced family law for more than 30 years in Hawaii.
There are also concerns that court rules may be more loosely applied if a case is sealed or that a judge may demonstrate favoritism toward one party. After all, no one from the outside can monitor what goes on under seal, although any decision of the judge can be reviewed later on appeal if abuse is suspected.
Houston attorney J. Lindsey Short, president of the American Academy of Matrimonial Lawyers, said in his 35 years of practicing family law, he's never heard of a sealed divorce case being completely stricken from the public record.
"That's very wrong," Short said. "I can't imagine that practice becoming a trend in any way, shape or form anywhere in this country."
Donald Schiller, former chairman of the American Bar Association's family law section and head of the nation's largest matrimonial law firm, Chicago-based Schiller DuCanto and Fleck, said there are legitimate reasons for sealing cases, particularly with increasing concerns today about personal safety, identity theft and the like.
Divorce records typically contain Social Security numbers, home addresses, bank account data and other sensitive information that, in the wrong hands, can be used to cause harm.
But Schiller, like other experts, said there are ways to safeguard sensitive information without completely shutting out the public. "To just take the case out of the system seems to go beyond appropriate protections," he said.
Marsha Kitagawa, a Hawaii State Judiciary spokeswoman, said divorce cases here are rarely sealed. Only four of 5,647 filed statewide in the 12-month period through June were sealed.
Kitagawa said the Judiciary strives to achieve an equitable balance between providing public access to records and safeguarding citizens' privacy and safety.
"Generally court records, including divorces, are presumed to be open to the public," she said in a written statement. "However, neither Hawaii state statutes nor our constitution guarantee open access to all court records."
Case numbers and parties' names in all sealed files and cases that are confidential by law, such as adoptions, are not available on the Judiciary's public-access database system, Kitagawa said. "This is a long-standing practice based on a decision to 'err on the side of caution' in dealing with the advent of instant and widespread electronic access to court records," she wrote.
Judges have substantial discretion in deciding whether to seal a case. They could seal all of it, part of it or nothing at all. At the hearings to debate such matters, though, no one typically is there to argue the public's right to know.
Unlike the practice in many other states, divorce proceedings here, even for cases that aren't sealed, are closed to the public, personnel tell people at the Honolulu Family Court, where hearings are held. The court administration, however, told the Star-Bulletin that proceedings aren't closed to the public but noted that the courtrooms are small.
In the Jones, Masini and Schutter cases, the Star-Bulletin couldn't determine the reasons those files were sealed because, like everything else in them, the judges' orders were not part of the public record.
Jones, the lawyer for Diane K. Jones and a representative for Schutter did not respond to requests for comment, and Al Masini could not be reached.
April Masini said she didn't know the reasons cited for sealing her case. While noting her marriage to Al Masini ended amicably, she said, "Our divorce and its terms had nothing whatsoever to do with anyone else and is absolutely no one else's business."
Given the wide discretion Family Court judges have, some cases have been sealed primarily because a spouse was a high-profile member of the community, several lawyers said.
But Kitagawa disputed that notion. "Judicial determinations on whether an individual's safety and right to privacy outweighs the public's right to know are made on a case-by-case basis based upon the arguments and evidence presented by the parties and not upon the parties' income or celebrity," she said.
Almost all the Hawaii divorce attorneys contacted for this column said they were unaware of the court's purge-the-public-record policy until questioned by the Star-Bulletin. Some said they couldn't think of any legitimate reason to justify the policy.
P. Gregory Frey, chairman of the Hawaii State Bar Association's family law section, said he plans to look into how the practice came about and whether it can be changed.
Kitagawa said the Judiciary currently is working on a proposed policy governing public access to paper and electronic records. The public will be invited to comment once the draft policy is developed, she said.
In this regard, though, the Judiciary's charge already should be clear. It should rescind any policy that completely removes divorce cases from the public record. At the least, the public should have access to basic information, just like they do in most states.
And to address safety and identity-theft concerns, sensitive data should be sealed automatically in all divorce cases. It shouldn't matter whether one is rich or poor to benefit from such basic protections.
Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at: rperez@starbulletin.com.
