Divorce files for Baker, Maggio under tight seal

CONWAY -- Judges sealed almost all records of divorce proceedings involving two elected officials in Faulkner County to the point that not even a case number appears in court files open to the public -- a practice that attorneys described as rare.

Divorce records for Circuit Judge Michael Maggio and his now-former wife, Emily, were sealed in 2009 by Maggio's colleague Rhonda Wood, then a circuit judge and now an appeals court judge.

Divorce documents for former state Sen. Gilbert Baker and his wife, Susan, were sealed in 2012 by Circuit Judge Charles "Ed" Clawson. The Bakers were separated for a time, but they remained married, and Clawson dismissed the divorce petition.

The men are at the center of an ongoing FBI investigation into contributions to Maggio's former Arkansas Court of Appeals campaign through political action committees.

Michael Flannery, a distinguished professor of law at the University of Arkansas at Little Rock's William H. Bowen School of Law, said, "I have not experienced in my 25 years of divorce practice [a case in which] an entire record of a divorce [was] sealed."

Longtime divorce lawyer Barry Coplin of Little Rock said he, too, had never heard of a divorce case being sealed to that extent.

"Everybody ought to get the same treatment, regardless of their status in life," Coplin said.

Except for one other case, involving one of Clawson's sons, the Arkansas Democrat-Gazette could not confirm another divorce where the entire record was sealed in Arkansas in recent years.

Asked about the frequency of such cases, Arkansas Supreme Court spokesman Stephanie Harris replied, "I can't even acknowledge that sealed cases exist, which makes it difficult to respond."

The Democrat-Gazette gathered information about the sealed cases from multiple legal sources who have knowledge of the proceedings and the Faulkner County court system. The newspaper also checked into some other high-profile divorces, but found the cases of other judges and public officials to be open.

There is no indication that the Faulkner County cases involved illegal actions. Rather, the transcript of an open-court hearing in the Baker case reflects that his divorce petition resulted largely from his wife's opposition to his dining at restaurants that serve alcohol -- a position at odds with Baker's public battles to keep alcohol out of Conway restaurants in past years.

When asked why he sealed the case, Clawson addressed the couple's property settlement, but not the other documents.

"The [Bakers'] property settlement was sealed because the parties requested that it be sealed," the judge wrote in an email. "Requests to seal are done on an individual basis, but they are never done by the court on its own motion."

The transcript, unlike the case's other documents, was never sealed, and it does reflect the case number. But to obtain it, the requesting party must first know that it exists -- as the case does not show up on court records available to the public -- and then must pay for the court reporter to transcribe it and make copies.

It's more common but still unusual, attorneys said, for judges to seal property agreements. But the public could still peruse court records and find that spouses were involved in a divorce case and see the original petition, they said.

"There's a difference between sealing the whole file and just not filing the decree and property settlement," Coplin said. Even then, "it's applied only to privileged people," he said.

A national divorce-law expert said that while laws vary from state to state, there's "absolutely not" a good reason to seal an entire record rather than just portions of a case.

In Westport, Conn., attorney Arnold H. Rutkin, co-author of a three-volume set of books on family law and a former editor-in-chief of the American Bar Association's Family Advocate magazine, said: "There's no way a single judge should do it [seal a divorce case] on his own."

Flannery said it's the "burden of the parties to demonstrate ... good cause ... to either seal the record in its entirety or portions of it. Certainly, it's more common to seal certain aspects of it than the entire record."

Often, the reason "is to protect the identity of children ... if there are child-abuse allegations or sexual-abuse allegations," Flannery added. "If there is domestic violence involved in the divorce or if there are business interests at stake in the divorce ... the court might seal the records. But any type of sealing would be limited in scope to what would need to be kept private, and it might be limited in duration as well.

"The bottom line is that it's entirely left to the court's discretion whether to seal any part of the record. [Judges] normally won't seal the record just because there's information that would be embarrassing," he said.

Conway Mayor Tab Townsell said he asked his lawyer about the possibility of sealing his November 2013 divorce from Donna Townsell but was told that "it wasn't a possibility."

Townsell said he and his former wife would have "loved to have had" their case sealed but said his attorney told him, "That's just not the normal way of doing business."

The same North Little Rock law firm that represented Gilbert Baker -- Hilburn, Calhoon, Harper, Pruniski & Calhoun Ltd. -- also represented Townsell in his divorce petition, filed in December 2012.

The firm's lead attorney, Sam Hilburn, was involved in both cases. Hilburn did not return repeated phone and email messages seeking comment on the Baker divorce sealing or the Townsell matter.

The newspaper could not confirm whether the firm, which includes family law among its areas of practice listed on its website, also represented Maggio in his divorce.

Lauren Hamilton, a lawyer with that firm, represents Maggio in the FBI investigation of campaign contributions he received from several political action committees heavily financed by nursing-home owner Michael Morton of Fort Smith. Baker also is a target in that investigation.

Because of contentious online comments -- including some about a sealed adoption, women and divorce -- Maggio has been suspended until his term expires at year's end and barred from serving as a judge in Arkansas again.

Neither Maggio nor his ex-wife, who have five children, responded to repeated requests for comment. Nor did the Bakers.

Earlier this year, Maggio married his girlfriend, now Dawn Rivers Maggio.

Most recently, another 20th Judicial Circuit judge, H.G. Foster, sealed the divorce proceedings of Conway Deputy City Attorney Chuck Clawson and Helen Clawson. The younger Clawson is unopposed in his bid to take office in January as city attorney.

Foster, who has known the elder Clawson since childhood, confirmed that he recused from the case after sealing it. Retired Circuit Judge Ellen Brantley of Pulaski County presided over the case after it was transferred.

Little Rock attorney Marcia Barnes, who represented Helen Clawson, said she filed the sealing motion.

"I thought it was a case that was appropriate to be sealed because of issues and things that were going to be coming up," Barnes said. "The parties on the other side agreed to seal it."

Barnes said, however, that she wasn't sure why the divorce decree was sealed.

"That's something we're going to get straightened out," she said.

Chuck Clawson returned a phone message but did not want to comment.

The transcript from the Baker divorce hearing reflects that on June 4, 2012, Baker and Don Thomas, his friend and political ally, testified in support of the then-state senator's divorce petition. According to the transcript of the hearing, the petition alleged "indignities" that caused Baker's condition in life to become "intolerable" -- a common claim in divorce petitions.

During the questioning of Thomas, Hilburn paused to tell Judge Clawson: "Your Honor, it's not totally uncontested. We got to have some corroboration here, okay?"

The transcript does not say if Susan Baker was present and does not reflect any attorney's appearance or comment on her behalf.

Thomas, who had an office near Baker's Conway office, testified that he had walked in on arguments between the Bakers, who have eight children.

According to the transcript, Hilburn asked: "And have you ever seen her or heard of her expressing disfavor of the fact that he may -- in his role as a senator he would be in establishments that served alcohol?"

"Correct," Thomas replied.

"And was this a persistent argument?"

"Yes," Thomas said.

Asked what "indignities" he had faced, Baker testified, "Grown apart over the last couple of years relating to personal and professional directions in life; some related to how we spend our time, some related to where we go to eat or not related to alcohol restaurants, and things like that, time away pursuing -- travel schedules, things like that."

Hilburn later asked, "And also as being entertained by people and entertaining people in your role as a senator involved some alcohol, did that cause problems?"

"Yes, sir," Baker said.

Judge Maggio heard the Townsells' case. In contrast to the Maggio and Baker documents, all parts of the Townsell divorce are open for the public to peruse, including the custody, and monetary or property agreements.

Treating all cases alike in this regard "would be fair," Townsell said.

In a text message, Foster said he sealed the Clawson files "at the parties' request and under the law, as I understand it, where minor children are involved, there are many bases for closing a hearing, or sealing a file."

Wood, who will become an Arkansas Supreme Court justice in January, declined to comment on the Maggio case.

One source who did not want to be identified said she believed the Maggio divorce was originally scheduled to be before Circuit Judge David Clark but was transferred to Wood's court.

A second source said that was exactly what happened. That source said he did not know why the case was moved but said transfers can be for various reasons. Other sources had earlier said it was also their understanding that Wood presided over the case.

In Connecticut, Rutkin said, judges used to close courtrooms "to hear certain kinds of testimony" in such cases. "We could get confidentiality orders with regard to deposition testimony" or other important testimony, he said. "And certainly we could get [some records in] divorces sealed."

"Some years ago," Rutkin recalled, he represented a well-known writer whom he declined to identify and who became "one of many who got caught up" in a newspaper lawsuit that successfully contended divorce records should not be sealed under Connecticut's sunshine law and without due process.

"So now, it's very difficult" to seal a divorce case in Connecticut, he said.

Now, he said, "you have to apply to the court for the sealing or even unsealing. The court then sets up a procedure [in which] you have to give the court at least two weeks [and] the public two weeks' notice so that anyone who wants to object can and then you have to explain why you want the sealing."

The news media are notified, he said, and sealing "rarely happens -- not even rarely, very rarely," Rutkin said.

Even in Arkansas, sealing only parts of divorce records does not happen often, stressed Coplin, who has practiced law since 1976.

"What sometimes you see happen is that for one reason or another, a property settlement agreement ... will be sealed. ... I've never seen a whole divorce record" sealed, Coplin added.

"There is a general presumption that your court records are open to the public," Flannery said. Without a final order open to the public, he noted, a person cannot even know "that the parties are divorced or that a marriage has been annulled."

A Section on 09/11/2014