High court won't block release of Senate candidate Ruben Gallego's divorce records

PHOENIX — U.S. Rep. Ruben Gallego and Phoenix Mayor Kate Gallego can no longer keep their 2016 divorce records secret, the Arizona Supreme Court ruled late Wednesday.

The court rejected the former couple’s bid to delay an order by Yavapai County Superior Court Judge John Napper to release most of the documents. Their attorneys wanted time to convince the justices 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 high court. “Nor have they established irreparable harm with any degree of specificity if the stay is not granted.’’

Bolick said the two have failed to provide evidence there are serious legal questions to be addressed, or that their hardships from having the information released would be sufficiently greater than the argument by the Washington Free Beacon that withholding the information harms the public interest. The online publication sued for release of the records.

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

Ruben Gallego is the Democratic candidate for U.S. Senate against Republican Kari Lake in the Nov. 5 election and Kate Gallego is seeking another term as mayor. Early voting started last week.

Attorneys for the formerly married couple filed paperwork Tuesday asking the Arizona Supreme Court to intervene. They asked for an immediate order delaying release until they could argue why they say much of the divorce file should be shielded from public view.

“Wrongly unsealing any portion of the underlying divorce record is irreparable and cannot later be cured if any decision was made in error,’’ their attorney Daniel Arellano wrote in the new pleadings on behalf of the two elected Democrats.

“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.’’

“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, a conservative website that often attacks Democrats, filed their response late Wednesday. The publication contended that the Gallegos did not meet the legal requirements to block release of the divorce file.

Of a potential delay, they wrote, “That process will mean the media and the electorate get nothing from these presumptively public records until after all votes are cast. 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.”

Prior court rulings

Ruben Gallego, then already a member of Congress, filed for divorce in 2016 from Kate.

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

Even though the Gallegos lived in Maricopa County, the divorce case was filed in Yavapai County. They convinced the trial judge at the time — not Napper — to not only seal the filings but also to keep the whole issue off the court docket.

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The fact that there was a divorce became apparent years later when Ruben Gallego married Sydney Barron.

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 former couple to keep some items secret, including information about their son and some financial details. But everything else should be subject to public access, he said, ruling that “the original order sealing the entire file was improper’’ under court rules.

Unhappy with the limited redactions Napper would allow, the Gallegos sought relief from the state Court of Appeals. But appellate Judge Brian Furuya, writing last week for the unanimous three-judge panel, said Napper did not abuse his discretion when he rejected certain redactions they sought.

“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 two 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.

“Privacy and safety”

Arellano told justices this week that there were “serious questions’’ to be answered about what a judge must find before unsealing a filing.

“The Gallegos have stridently maintained that their overriding interest in privacy and safety does not disappear simply because of their jobs as elected officials,’’ Arellano wrote. He said the two presented “entirely unrebutted ... evidence showing ongoing threats to elected officials and their minor child.’’

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.’’ The son “is not a public official and has strong privacy and safety interests in his own right,” he noted.

“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, indicated it would be acceptable to keep some small portions of 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.