Observer asks court to unseal France records

Wednesday, Nov. 18, 2009

The Charlotte Observer on Tuesday asked that the secret court records in the case of NASCAR Chairman Brian France and his ex-wife wife, Megan, be unsealed.

The newspaper also has asked that court hearings in the case be kept open to the public.

All the records in the case, including the initial complaint, have been sealed by order of then-Mecklenburg District Judge Todd Owens. Even the judge's order keeping the documents secret is under seal. The broad sealings provide an unusual level of secrecy beyond what is typically provided.

The case apparently involves domestic issues and a contract dispute.

Brian France's lawyers have asked Mecklenburg District Judge Jena Culler to close the courtroom to the public as the case proceeds.

Culler had already considered a request to close the courtroom last month, but ruled that the proceedings should remain open. But Brian France's attorneys asked her to reconsider, noting the Observer has shown interest in the case, which they feared would make it a "public spectacle."

In a motion filed Tuesday, attorneys for the Observer, and its news partner WCNC-TV, argued that the public has a constitutional right of access to the judicial proceedings and to the records.

The N.C. Constitution provides that "all courts shall be open," and the N.C. Supreme Court has recognized the public's presumptive right of access to court records, the newspaper's motion says.

"France - the CEO and Chairman of NASCAR since 2003 and a well-known national public figure - apparently contends the judicial process should be closed and made confidential, despite having chosen this public forum in which to litigate his disputes," the Observer motion says.

Brian France, 47, took over the NASCAR chairman's role from his father, Bill France Jr., in 2003. His 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 in family court against his ex-wife last year, a few months after the couple divorced in Florida. The case, according to a court computer code, involves what's called "specific performance," where one litigant seeks a court order to require the other to honor the terms of a contract.

During a hearing last week, Brian France's lawyers argued that a confidentiality agreement is at the heart of the case between their client and his ex-wife 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 the judge.

"Publicizing the information ... would cause huge adverse effects for Mr. France."

The Observer's lawyers, Ray Owens and Chris Lam, challenged Brian France's reasoning for sealing the documents and closing the courtroom.

"While private parties may contract with each other for confidentiality...," the newspaper's lawyers argued, "that bargained for private right falls well short of the threshold to overcome the public's constitutional right of access.

"Our courts are the final venues where a civilized society must litigate and remedy on a daily basis the most difficult and often personal issues. Few litigants desire the necessary airing of the personal and often sensitive details of their legal dispute."

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