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Supreme Court refuses to keep Gallego divorce records sealed

Howard Fischer, Capitol Media Services//October 16, 2024//[read_meter]

U.S. Rep. Ruben Gallego, D-Ariz., and his ex-wife, Phoenix Mayor Kate Gallego, tour an affordable housing development in Phoenix along with their 6-year-old son, Michael Gallego, on March 19, 2023. The Gallegos are fighting to keep their divorce records sealed. (AP Photo/Jonathan J. Cooper, file)

Supreme Court refuses to keep Gallego divorce records sealed

Howard Fischer, Capitol Media Services//October 16, 2024//[read_meter]

Ruben and Kate Gallego can’t shield their divorce records from the public.

In a ruling late Wednesday, the Arizona Supreme Court rejected a bid by the couple to delay an order by Yavapai County Superior Court Judge John Napper to release most of what’s in the documents from the 2016 filing. Their attorneys wanted time to convince the justices that they should give them a chance to argue that Napper was wrong.

”The court concludes that the Gallegos have not established a strong likelihood of success on the merits,” wrote Justice Clint Bolick for the unanimous court. ”Nor have they established irreparable harm with any degree of specificity if the stay is not granted.”

And Bolick said the couple failed to provide evidence there are serious legal questions to be addressed – or that their hardships from having the information released is sufficiently greater than the argument by The Washington Free Beacon that withholding the information harms the public interest.

How quickly the documents could be made public is unclear. Napper had previously said he will order them released Friday.

Wednesday’s order comes despite arguments by attorney Daniel Arellano that they should err on keeping the documents secret, at least while they decide the merits of the case.

“Wrongly unsealing any portion of the underlying divorce record is irreparable and cannot later be cured if any decision was made in error,” the attorney wrote in the new pleadings.

“This court, or any court, cannot ‘unring’ the proverbial bell once previously sealed information is unsealed, ” Arellano told the justices. “Even if this court were to reverse the superior court’s decision, the Gallegos’ rights to keep parts of the record sealed or redacted would have been rendered moot without a stay.”

At the very least, what the couple wants is time to make their case that much of what is in the file should not be shared with the public.

“This court must issue a stay to allow the Gallegos an opportunity to seek review and for the court to consider the petition,” Arellano said. “Without a stay, the damage will be immense and irreparable.”

Attorneys for the Beacon, an online conservative website that often attacks Democrats, filed their own response late Wednesday. They told the justices that the Gallegos have not met the legal requirements to seek a delay in release of the filings in the divorce case.

And, if nothing else, the lawyers said that there is a harm in delay and the couple’s bid to send the case back to Napper.

“That process will mean the media and the electorate get nothing from these presumptively public records until after all votes are cast,” they said. “That harm to the media and voters is time-sensitive and irreparable, starting a week ago with the commencement of early voting, a problem that will deepen each day until Nov. 5.”

Ruben is on the ballot in his bid for Senate, and Kate wants another term as Phoenix mayor.

“The Free Beacon seeks the release of court documents that reflect the character and behavior of a public figure holding and running for federal office, and one official who currently holds executive authority over one of the nation’s largest cities,” the attorneys said in an earlier court filing.

All this stems from Ruben, already a member of Congress, filing for divorce in 2016 from Kate, who is mayor of Phoenix.

Ruben acknowledges that occurred while she was close to giving birth. He has never specifically addressed all the issues that led to the filing but has said in a memoir he was suffering from post-traumatic stress syndrome after returning from Iraq.

But while the couple lived in Maricopa County, the case was filed in Yavapai County. And they convinced the trial judge at the time – not Napper – to not only seal the filings but also keep the whole issue off the court docket.

The fact that there was a divorce became apparent years later when Ruben married Sydney Barron, who was working for the Democratic Senatorial Campaign Committee and now is employed by the National Association of Realtors.

It was only recently that the Beacon’s attorneys said the publication learned of those records and petitioned to have them unsealed.

Napper did agree to allow the couple to keep some items secret, including information about their son and some financial details. But everything else, he declared was subject to public access, even ruling that “the original order sealing the entire file was improper” under court rules.

Unhappy with the limited redactions Napper would allow, the couple sought relief from the state Court of Appeals. But the pair had no better luck there, with appellate Judge Brian Furuya, writing last week for the unanimous three-judge panel, that Napper did not abuse his discretion when he rejected certain redactions sought by the couple.

“To begin with, the state of Arizona presumes court records are available to the public,” Furuya wrote. “The burden is on a party opposing a motion to unseal to demonstrate why the records should not be unsealed.”

In this case, the appellate judge wrote, that meant the couple had to show “continuing or new overriding circumstances to prohibit access to court documents or any portions thereof.”

“They did not meet that burden,” Furuya wrote.

Arellano said this isn’t about shielding the official activities of either one from the public, saying these records are “entirely unconnected with their official duties.” And then there’s the son “who is not a public official and has strong privacy and safety interests in his own right.”

“Sensitive details about the Gallegos’ and their minor child’s life stand to be published if the Free Beacon succeeds,” Arellano said.

“Contrary to the Free Beacon’s assertions thus far, its interest, let alone any of constitutional magnitude, are not harmed by proceeding with caution and staying the superior court’s order while the litigation continues,” he said. “They remain free to criticize the Gallegos as much as they would like, and the Gallegos should not be denied a stay solely because the Free Beacon would prefer to publish the details of the records before the upcoming general election.”

Attorneys for the Beacon, in prior legal filings, have indicated it would be acceptable to keep some small portions of what is in the file secret. But they said what the Gallegos asked Napper to keep secret went too far.

“Without even yet having access to what was being redacted, The Free Beacon could see that the proposed redactions led to a docket that looked like a Central Intelligence Agency classified file, with pages and pages of black ink designed to make sure no one knew was going on,” they wrote.

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