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NASCAR's Brian France fights to keep case quiet

- kvalle@charlotteobserver.com; gwright@charlotteobserver.com
Friday, Nov. 13, 2009

NASCAR chairman Brian France is trying to keep his legal troubles secret – and Mecklenburg courts have so far granted him an extraordinary level of privacy.

France filed a civil complaint against his ex-wife. Lawyers persuaded Mecklenburg Judge Todd Owens to seal the court file from public inspection, an unusual move in a court system that typically allows widespread access to courtrooms and documents.

On Friday, France's attorneys petitioned a Mecklenburg judge to bar the public from the courtroom as arguments in the case unfold. It's unclear exactly what the dispute involves, but the matter is being heard in family court and apparently involves domestic issues.

France's attorneys argued Friday that a confidentiality agreement is at the heart of the case, and that it shouldn't be breached in open court hearings.

“Mr. France paid a fair amount of money to make sure that didn't happen,” attorney Kary Watson told District Court Judge Jena Culler. “Publicizing the information … would cause huge adverse effects for Mr. France.”

Culler had already considered a request to close the courtroom last month but ruled that the proceedings should remain open, despite the sealed documents.

“I did not think it was particularly good precedent to allow people to bargain for a closed courtroom,” she said Friday, explaining her initial decision.

But France's attorneys on Friday asked her to reconsider, noting the Charlotte Observer has shown interest in the case, which they feared would make it a “public spectacle.”

Culler delayed a decision Friday, saying she wants more time to think about it and to review arguments from both sides.

France, 47, took over the NASCAR chairman role from his father, Bill France Jr., in 2003. He is credited with creating the Chase for the Sprint Cup, a popular “playoff” system used to determine the champion of NASCAR's biggest series.

France's father and grandfather, Bill France Sr., were recently named to the first class of Charlotte's NASCAR Hall of Fame.

Brian France filed the complaint against Megan France last year, a few months after the couple divorced in Florida. They married in California in 2005.

A computer court code shows the case involves “specific performance,” in which one party seeks a court order to require the other to honor the terms of a contract. But no other details are available.

The entire file, including the original complaint and the order from Judge Owens keeping the documents secret, has been sealed. An unsigned document contains just one paragraph: “The documents contained herein are confidential and under seal, and this envelope is not to be opened except upon further order of the court.”

Owens, who lost his bid for re-election in 2008, would not talk about the case or why he sealed it. But he said a judge must find compelling reasons to seal files to overcome the public's qualified right of access to court records.

It's not unusual for judges to seal some documents, such as sensitive records involving mental health and financial holdings. But court experts say it's extremely rare that an entire file, including a judge's order sealing it, is kept from the public.

At Friday's hearing, Brian France's attorneys handed the judge an appeal to overturn her previous ruling that would open the hearing to the public.

One of his lawyers argued the case should proceed behind closed doors until the N.C. Court of Appeals decides whether the hearings should be open or closed. That way – if the appeals court agrees the case should be open – the press could obtain a transcript of any closed hearings that had taken place. But if the hearings are open and the appeals court agrees the case should have been closed, the information has already been made public and that “irreparable” damage would be done.

“They're here; they want to know what is going on,” Brian France's lawyer Kary Watson said, pointing to a reporter in the courtroom. “The big bad wolf is blowing at the door.”

But attorneys for Megan France argued the hearings should remain open.

“What I think they're trying to do is do something that is contrary to the law,” her attorney Russ Kornegay argued.

He said there's no evidence France would suffer irreparable damage if the hearings remain open, and that to proceed behind closed doors might create legal problems.

“You really already decided this issue,” Kornegay told the judge.

Both Frances and their attorneys either declined to comment or couldn't be reached after the hearing.

It could take up to a year for the appeals court to rule on whether the case hearings should be closed.

Judge Culler gave the litigants until 5 p.m. Tuesday to present additional research and arguments.

The judge said she realizes the importance to Brian France of keeping the proceedings closed.

But she added: “There is a public right that is also extremely important.”

Staff researcher Maria David contributed.