Raising Cane
By Rob Perez
Review of secret divorces
falls to judge who had oneHawaii Chief Justice Ronald Moon was divorced more than 20 years ago in Honolulu, but his case is so secret that you won't find any evidence of it in the state court system he oversees.
Moon is among a relatively small but exclusive group of mostly wealthy or high-profile residents who have benefited from a controversial Hawaii State Judiciary policy that removes sealed divorce cases completely from the public record, as if they never existed.
The policy, little known until it was exposed in a Raising Cane column last week and currently under review by Moon's Judiciary, has been widely criticized for being too secretive and for fostering the perception that the state's rich and powerful have access to a separate system of justice.
[ CORRECTION ]
Thursday, September 5, 2002
When published on Sept. 1, this column erroneously stated that Hawaii Chief Justice Ronald Moon's 1979 divorce was sealed to the public. It also erroneously stated that public records in Hawaii could not be accessed showing that Moon was divorced in a Hawaii court. The column was wrong on both counts, leading to the erroneous conclusion that Moon benefitted from a Judiciary policy that removes sealed divorce cases from the public record.A full telling of how the errors happened will be detailed Sept. 8 in a "Raising Cane" column.
The vast majority of Hawaii's divorce cases are open to the public.
Not so with Moon's.
He was divorced in October 1979, but you would never know that from checking the Judiciary's public database system. It contains no reference whatsoever to his case.
There's no filing date, no indication that a divorce was granted, nothing.
The purging of the public record seems to have been so thorough that Moon's divorce decree is missing -- without a recorded explanation -- from a 1981 Land Court petition at the Bureau of Conveyances.
Land Court is an arm of the Judiciary that is supposed to keep meticulous records of official documents related to property titles registered with that court.
Officials were baffled about the missing decree because the title-amendment petition filed by Moon, then a prominent Honolulu attorney, stated the decree was attached. A certificate for his second marriage was attached, just like the petition stated. If a document was removed because it was part of a sealed case, that should have been noted on the petition, officials said.
Because of the purging, anyone wanting to verify through public documents whether the leader of the state's judicial system was divorced in a Hawaii court would have to rely on records outside Hawaii -- in this case, the original copy of Moon's second marriage certificate that is filed in Carson City, Nev.
What does that say about the Judiciary's fondness for secrecy?
When Moon remarried in 1980 in Carson City, the marriage certificate stated that he was divorced in Honolulu the previous year. The certificate filed here with the Bureau of Conveyances doesn't include the divorce reference because the document is a souvenir copy, which has less information, according to the Carson City clerk's office.
Moon's 23-year-old divorce is newsworthy because the Judiciary is reviewing its administrative policy governing public access to electronic and paper records for all types of cases, not just divorces. The chief justice makes final decisions on whether to change such administrative rules. In this case, he intends to solicit comments from the other justices, judges, court staff, lawyers, media and the public before making a decision.
If Moon decides to abolish the purge-the-public-record policy for sealed divorces, that will mean he would have benefited from a practice no longer accessible to others, even if the sealing of such cases rarely is approved by the court.
If he doesn't abolish the policy, the Judiciary would be open to continued criticism for allowing the court to go to such extreme lengths to keep sealed divorces completely out of the public record.
Worse, the court orders stating the reasons specific cases have been sealed are themselves secret, leaving no clue as to why judges see fit to set aside the court's standard presumption of openness.
"That's beyond terrible," said Honolulu attorney Evan Shirley, who has written about Hawaii's judicial ethics. "You're having secret cases based on secret court orders."
Moon is the only member of the Supreme Court with a sealed divorce. Asked why his case was sealed, Marsha Kitagawa, a Judiciary spokeswoman, responded in a written statement:
"Chief Justice Moon was divorced over 20 years ago and does not recall that his divorce case was ever sealed; thus, he cannot explain why it was sealed."
Kitagawa also noted that both attorneys who represented him in the case have since died.
The Star-Bulletin later asked Moon for a copy of the court order sealing his case. Kitagawa, however, said the chief justice didn't have a copy among his personal records.
"As we have told you, he was quite surprised to learn that his file had in fact been sealed and therefore cannot tell you why or at whose behest his case was sealed," Kitagawa wrote in a second response.
Moon's former wife, Dorothy Collins Campbell, said from her mainland home that she didn't seek to have the case sealed and didn't know why it was. Campbell declined further comment.
In many jurisdictions on the mainland, judges -- if they seal divorce cases at all -- will keep confidential only that portion that contains sensitive information. But the rest of the case, including such basic information as the filing date and whether a divorce was granted, routinely remains part of the public record.
Besides Hawaii, only a few states, including California and New Jersey, resort to completely removing sealed divorces from the public record.
Asked the rationale for the Judiciary's current policy, Kitagawa wrote:
"The rationale is simple. If the case is confidential or sealed, all information is confidential, including the case number and name. Case numbers and names are telling; the fact that the case number is listed confirms the case exists. This verification that a confidential case has been filed or exists may violate the intent of the statute or court order."
Why the court goes to such an extreme with juvenile cases and others deemed confidential by statute is obvious. Why it does with sealed divorces -- not deemed confidential by law -- is mystifying.
Because Moon has personally benefited from the policy, the newspaper asked whether he intended to recuse himself from deciding this issue.
He does not.
"If the chief justice considers a policy pertaining to public access to court records, or if the Supreme Court considers rules concerning sealing of court records, the fact that the chief justice's divorce was sealed many years ago provides no legal or ethical basis for disqualification," Kitagawa said.
Judicial ethics experts contacted by the Star-Bulletin tend to agree with Moon's position.
Only if the question arises about making a policy change retroactive -- meaning it could affect Moon's 23-year-old case -- would the issue of recusal be pertinent because of a possible conflict of interest, the experts said.
"If that becomes an issue, he might easily be considered to be in conflict," said Cruz Reynoso, a former associate justice of the California Supreme Court and now a law professor at the University of California, Davis.
The purging of public records can have ramifications beyond just the legal arena.
The sealing of Moon's divorce case, for instance, meant that state senators, when they unanimously confirmed him as an associate justice in 1990, were not privy to information in the sealed file.
That would be a concern only if the information was pertinent to Moon's qualifications to sit on the high court, legal experts said. Moon became chief justice in 1993.
The Judiciary's fondness for secrecy is reflected not only in its handling of divorce cases.
Under rules issued by Hawaii's high court, the state has one of the more secretive systems in the country for investigating lawyers accused of unethical conduct.
The board of the Office of Disciplinary Counsel, the arm of the Supreme Court that handles the investigations, last week approved a recommendation to the justices to revise the system.
But the ODC recommendation is -- surprise -- a secret. The board would not disclose what it is proposing.
Such a tendency toward keeping the public in the dark disturbs advocates of open government.
Because the judicial branch is the only one of the three in state government that doesn't have elected leaders, public confidence in the legal system is critical. For the system to work well, the public must believe the court's orders and policies are fair and free of political interference.
But excessive secrecy in such matters as lawyer discipline and sealed divorces tends to undermine that confidence, critics say.
As Moon and his colleagues debate whether to change these policies, they would be wise to keep in mind the public's right to know and how more openness, not less, will engender greater trust in the judicial system.
As attorney Shirley stated:
"Justice is better served by sunshine rather than darkness."
Let the sunshine in, Mr. Chief Justice.
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.
