                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                              In re the Matter of:

                   KIMBERLY LEWIS, Petitioner/Appellee,

                                        v.

          WILLIAM ANDREW REHKOW, Respondent/Appellant.

                           No. 1 CA-CV 19-0075 FC
                                FILED 2-27-2020


           Appeal from the Superior Court in Maricopa County
                          No. FC2002-004726
              The Honorable Ronee Korbin Steiner, Judge

             JURISDICTION ACCEPTED; RELIEF DENIED


                                   COUNSEL

Kimberly Lewis, Phoenix
Petitioner/Appellee

William Andrew Rehkow, Las Vegas, Nevada
Respondent/Appellant
                            LEWIS v. REHKOW
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. joined. Judge Diane M. Johnsen specially
concurred.


J O N E S, Judge:

¶1           William Rehkow (Father) appeals the family court’s order
sealing the entire family court case file in this dissolution and post-
dissolution matter. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Father and Kimberly Lewis (Mother) were married in 2001
and divorced in October 2003.1 For the past fifteen-plus years, Father and
Mother have engaged in continuous contentious litigation concerning
custody of their child (Child). See, e.g., Lewis v. Rehkow (Rehkow I), 1 CA-CV
05-0042 (consolidated cases) (Ariz. App. July 6, 2006) (mem. decision); Lewis
v. Rehkow (Rehkow II), 1 CA-CV 08-0401, 2009 WL 387751, at *1, ¶ 2 (Ariz.
App. Feb. 12, 2009) (mem. decision).

¶3             This appeal concerns the circumstances surrounding the
sealing of the case file, which we addressed, in part, in Rehkow II. As related
therein, beginning in November 2005:

       Mother filed a Motion to Seal Court Records alleging that
       Father’s pleadings negatively impacted her dance studio and
       that Father inappropriately attached personal documents to
       his pleadings concerning Mother and [Child]. On January 31,
       2006, the family court granted Mother’s Motion to Seal
       Records and directed the clerk of the court to seal the file and
       ordered that all future documents to not be opened without
       further order of the court [(the January 2006 Order)].

Rehkow II, 2009 WL 387751, at *1, ¶ 2. In the January 2006 Order:


1       We view the facts in the light most favorable to sustaining the family
court’s orders. Lehn v. Al-Thanayyan, 246 Ariz. 277, 283, ¶ 14 (App. 2019)
(citing Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007)).


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                            Decision of the Court

       The court stated that it “[found] that the nature and content
       of the pleadings being presented to the [c]ourt [wer]e
       inflammatory to the extent that unless sealed there is a risk
       presented eventually to the parties’ minor child. The risk is
       emotional in nature and the child’s ultimate awareness of the
       contents of the [c]ourt file could certainly be detrimental to
       her relationship with one or both of her parents and her best
       interest.”

Id. at ¶ 2 n.1. Father did not appeal the January 2006 Order, but “continued
to file multiple petitions, motions, and requests concerning [Child]’s
custody arrangements.” Id. at ¶ 3.

¶4            In November 2006, Mother filed a petition for injunction
against Father for harassment. Id. The family court found multiple
instances of harassment and granted the injunction (the December 2006
Order). Id. In pertinent part, the court ordered that:

       Neither party shall disseminate or discuss personally or in
       any written form including e-mails any of the matters
       presented to the [c]ourt by way of testimony, exhibit,
       pleading or otherwise with any third parties including media
       of any kind or clients or co-workers of either party. The
       [c]ourt determines that such commentary on this case
       represents an indirect attempt to intimidate or harass.

See id. Father, again, did not appeal. Id.

¶5          Father’s behavior continued, and, in February 2007, Mother
moved for sanctions against him after discovering a website containing
“inflammatory” information about the case that Mother believed Father
was providing to the website creator. As this Court explained:

       The website was created by a private investigator, Glen Scotti,
       at the direction of Father and discussed details about Mother,
       Mother’s family, and [Child]. Additionally, the website
       contained a full discussion of Mother and Father’s custody
       dispute, including, but not limited to, a discussion of the
       pleadings filed and the family court’s hearing that occurred
       after the court ordered the court record sealed.

Id. at ¶ 4 n.4. After an evidentiary hearing, the family court found Father
in violation of the December 2006 Order, noting “Father’s actions in
disseminating information so that it could be placed on a website in full


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                             Decision of the Court

view of the general public not only represented harassment of Mother but
was an act not in the best interest of the parties’ [C]hild.” See id. at ¶ 4. The
court held Father in contempt and imposed sanctions. Id.

¶6             Notwithstanding the January 2006 Order sealing the case file,
the family court temporarily unsealed the case file at various points during
litigation to allow the parties and other participants access to, for example,
transcripts and copies of specific judgments to be recorded. After each
instance, in nearly the same language, the court ordered the case file to be
“re-sealed and remain sealed for all purposes, subject to further order of
th[e] [c]ourt.”

¶7            Moreover, upon Father’s motion in early 2007, the family
court granted him access to the sealed case file “through the Maricopa
County Clerk’s Office for the purpose of copying any documents” so that
he could pursue a pending appeal in this Court and complaints Father
reportedly filed with the Commission on Judicial Conduct and the State Bar
of Arizona. In granting Father access to the case file, the court reiterated
that Father could not disseminate documents to any other individuals or
entities. Father’s counsel “in other proceedings” was also permitted to
access the case file. The court further granted the State Bar of Arizona
access to three specific documents in the case file to be used “solely in
furtherance of its investigation” into Father’s complaint regarding Mother’s
counsel and ordered that the documents were not to be disseminated
further.

¶8            In March 2010, the family court modified the January 2006
Order to allow the case file to be viewed by the parties, counsel, and certain
other individuals involved in two civil actions brought by Father and Scotti
against City of Phoenix employees (the City). Although, upon request, the
court granted the City permission to make copies of certain documents
within the case file, it denied a similar request by Father after noting that
Father “already has access to the [case] file,” but, for “legitimate reasons,” had
been previously barred from making copies or disseminating records.
Nevertheless, the court, in the fall of 2012, granted Father, among others,
permission to use certain documents from the case file in a separate civil
case.

¶9           In January 2016, Father moved to unseal the case file. After
ordering Child’s best-interests attorney to provide a list of items to remain
“sealed or marked confidential,” the family court ordered the case file
unsealed “from January 1, 2015 forward only.” The court specified “[t]he




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                            Decision of the Court

remainder of the file prior to January 1, 2015 [would] remain sealed until
further [o]rder of the [c]ourt.”

¶10           On November 8, 2018, Mother moved to reseal the case file,
citing the best interests and safety of Child and Mother.2 Mother advised
Scotti’s website had been updated as recently as three days earlier, and
Child’s name had been re-published. Mother alleged the sole purpose of
the website was to “harass, embarrass and financially hurt” Child and
Mother, reiterating that Child now danced and taught at Mother’s studio.

¶11            Father responded and objected to Mother’s motion to reseal
the case file. The family court granted the motion over Father’s objection,
finding, in its December 2018 Order:

       [Father]’s response further supports why this case should be
       sealed from the public, with [Father] including significant
       information absolutely unnecessary to the response. The
       [c]ourt finds that the privacy interests of the [C]hild outweigh
       the public interest in disclosure. The [c]ourt further finds that
       there is no less restrictive means to achieve this overriding
       interest.

The December 2018 Order required “all future documents in this cause, not
to be opened or disseminated without further order of the court.”

¶12          Rehkow timely appeals, and asserts we have jurisdiction over
his appeal pursuant to Arizona Revised Statutes (A.R.S.) § 12-2101(A)(2)
and (5).3 The basis for our jurisdiction is not disputed, but nor is it clear.
See McCarthy v. McCarthy, 247 Ariz. 414, 415, ¶ 4 (App. 2019) (explaining an
appellate court has an independent duty to examine its jurisdiction to
consider matters on appeal) (citing Camasura v. Camasura, 238 Ariz. 179, 181,
¶ 5 (App. 2015)). Nonetheless, given the nature of this dispute and the
competing interests at stake, we choose to treat Father’s appeal as a petition


2      Mother also requested the family court to order Father and Scotti to
remove the Child’s name, Mother’s name, and the name of Mother’s
business, as well as “anything to do with the family case past or present”
from the website. The court denied this request, stating it had “no authority
to direct a person, not a party to this action, to modify his website.” Neither
party appeals that determination.

3      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


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                            LEWIS v. REHKOW
                            Decision of the Court

for special action and accept jurisdiction. See Danielson v. Evans, 201 Ariz.
401, 411, ¶ 35 (App. 2001) (citing Lloyd v. State Farm Mut. Auto. Ins., 189 Ariz.
369, 375 (App. 1996), and A.R.S. § 12-120.21(A)(4)).

                                DISCUSSION

¶13           We review a family court’s decision to seal records for an
abuse of discretion. See In re Marriage of Flynn, 27 Ariz. App. 653, 655 (1976)
(citing Hackin v. First Nat’l Bank of Ariz., 5 Ariz. App. 379, 385 (1967)). “We
will accept the court’s findings of fact unless they are clearly erroneous, but
[] draw our own legal conclusions from facts found or implied in the
judgment.” Nash v. Nash, 232 Ariz. 473, 476, ¶ 5 (App. 2013) (citing McNutt
v. McNutt, 203 Ariz. 28, 30, ¶ 6 (App. 2002)).

¶14           Court records in the State of Arizona are presumed open to
members of the public for inspection or copying. Ariz. R. Sup. Ct. 123(c)(1).
“However, in view of the possible countervailing interests of
confidentiality, privacy or the bests interests of the state[,] public access to
some court records may be restricted or expanded in accordance with
[Arizona Rule 123 of the Supreme Court], or other provisions of law.” Id.

¶15             Pursuant to Arizona Rule of Family Law Procedure (ARFLP)
17(a), “[a]ny person may request that the court seal . . . [a family] court
record . . . by filing a written motion, or the court may on its own motion
seal a . . . court record.” Thereafter, “[t]he court may order the court files
and records, or any part thereof, to be sealed[,] . . . provided the court enters
written findings of fact and conclusions that the specific sealing . . . is
justified.” ARFLP 17(c). Specifically, the court must find:

       (1) there exists an overriding interest that overcomes the right
           of public access to the record;

       (2) the overriding interest supports sealing . . . the record;

       (3) a substantial probability exists that the overriding interest
           will be prejudiced if the record is not sealed . . . ;

       (4) the proposed sealing . . . is narrowly tailored; and

       (5) no less restrictive means exist to achieve the overriding
           interest.

Id.; see also ARFLP 13(e)(2) (“[T]he court may find that the confidentiality or
privacy interests of the parties, their minor children, or another person



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                            LEWIS v. REHKOW
                            Decision of the Court

outweigh the public interest in disclosure [of court records].”). “After
making that finding, the court may order that any record of a family court
matter be closed or deemed confidential or may otherwise limit access to
those records.” ARFLP 13(e)(2); see also Nash, 232 Ariz. at 483, ¶ 40.

¶16            Father relies upon several decisions of the U.S. Court of
Appeals for the Ninth Circuit that indicate a party seeking to seal court
records in a civil case bears the burden of overcoming a strong presumption
of public access. The Ninth Circuit recognizes, however, that “[t]he
common law right of access [] is not absolute and can be overridden given
sufficiently compelling reasons for doing so.” Foltz v. State Farm Mut. Auto
Ins., 331 F.3d 1122, 1135 (9th Cir. 2003) (citing San Jose Mercury News, Inc. v.
U.S. Dist. Court — N. Dist. (San Jose), 187 F.3d 1096, 1102 (9th Cir. 1999)).
These principles are adequately encompassed within ARFLP 17(c)’s
requirement that the court find an overriding interest and no less restrictive
means before sealing a family court record.

¶17           Here, the family court sealed the case file, including future
filings, and prohibited the parties from disseminating case file materials
without prior authorization. Although Father argues the family court did
not provide “any reasons” for doing so, and contends the record is devoid
of any compelling reasons or facts that would support the court’s order, we
find otherwise.

¶18            In its order, the family court specifically found Child’s
privacy interests outweigh the public’s interest in disclosure. The court
implicitly concluded a substantial probability that Child’s privacy interests
will be prejudiced if the record was not sealed given that Father had
included “significant information absolutely unnecessary [in his] response
[to Mother’s November 2018 motion to seal].” These findings are consistent
with Father’s lengthy history of filing inflammatory pleadings containing
sensitive personal information, and support the court’s finding that “no less
restrictive means” were available to prevent dissemination of such
material. Indeed, the record reflects the court temporarily allowed Father
to access documents in the case file dated after January 1, 2015. Rather than
use this opportunity to prove he could be responsible with the sensitive
information contained therein, Father continued to use the information to
harass Child and Mother. The court’s findings satisfy ARFLP 17 and are
supported by the record. Accordingly, Father fails to establish any abuse
of discretion.




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                           LEWIS v. REHKOW
                           Decision of the Court

                              CONCLUSION

¶19           We accept special action jurisdiction and deny relief.

J O H N S E N, Judge, specially concurring:

¶20            I concur with the court’s decision. I write only to express my
concern about an order, such as that at issue here, which bars a party to a
litigation from viewing and making copies of documents filed in his or her
own case. As interpreted by the parties here, the order at issue prohibits
the Clerk of the Superior Court from allowing either party to see or copy
anything in the case file, notwithstanding that the records in that file all
presumptively were filed and served by one or the other of the parties (or
are rulings by the court based on the parties’ filings). Although Father does
not raise the issue on appeal, I know of no authority allowing a court in a
case such as this to enter an order shielding an entire court file from the
view of the parties. The family court has the power to seal a record from
public view only when, inter alia, “there exists an overriding interest that
overcomes the right of public access to the record.” ARFLP 17(c)(1).
Further, upon entry of an order under the rule, “[a]ccess by the public to
sealed records will be allowed only after entry of a court order in
accordance with this rule.” Id. 17(d). Here, Mother argues Father has
engaged in a longstanding practice of sharing the contents of court filings
with a friend who posted them to the internet. But the family court has
remedied that issue by specifically ordering Father not to disseminate any
information in the court file to any third party. Accordingly, to the extent
the order at issue here additionally prevents the parties from seeing or
copying documents in the file in their case, it is neither “narrowly tailored”
nor the least restrictive means to “achieve the overriding interest” on which
the order is based. Id. 17(c)(4)-(5).




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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