The Whitehead affair, beginning with the Nevada Supreme Court's secret intervention in the Nevada Judicial Discipline Commission's attempts to investigate ethics complaints against a politically connected judge, sparked bitter commentary such as this example by the Review-Journal's editorial cartoonist, Jim Day. Justice Thomas Steffen authored the 1995 Whitehead decision, which Nevada judges now claim is a precedent affirming their authority to seal civil cases at will. Justice Charles Springer allied himself with Steffen. Both retired from the court rather than face re-election in the aftermath. Jerry Whitehead Judge asked Supreme Court to intervene in investigation of his conduct Thomas Steffen Supreme Court justice wrote majority opinion in Whitehead case

The power now claimed by Nevada judges to try civil cases and keep the result in complete secrecy, without public explanation, is a legacy of Whitehead v. Judicial Discipline Commission, one of the most controversial decisions made by the Nevada Supreme Court.

In criminal and family court cases, Nevada statutes outline circumstances and procedures under which cases may be sealed, but state lawmakers never have enacted equivalent legislation for civil cases. The 1995 Whitehead decision, say the judges, confirmed their inherent authority to seal civil cases as they see fit.

"When they say 'inherent power,' that means there is nothing in the (state) Constitution that gives them that power, and there is nothing in statute that gives them that power," said Assistant District Attorney Mike Foley. In that decision, said Foley, the Supreme Court majority ruled, "We have the implied power or inherent power to deal with our own records."

The case began in 1993 when Jerry Whitehead, then a judge in the Washoe County District Court, asked the Supreme Court to intervene in a Nevada Judicial Discipline Commission investigation of Whitehead's conduct.

Whitehead's lawyers characterized the suit as an attempt to force the commission to obey its own rules and argued he shouldn't be required to waive the confidentiality of investigations to achieve that. The Supreme Court therefore sealed the case and issued a gag order prohibiting all participants from talking about it. But others with knowledge of the charges against Whitehead saw the case as an effort to protect a well-connected judge from accountability.

After the Review-Journal learned of the secret case and began writing about it, the Supreme Court lifted the seal and gag order and dealt with the case publicly, eventually halting the investigation entirely.

Although the smell of cover-up was what stirred such controversy, secrecy was treated as a side issue in the court's rulings.

In the majority opinion, Justice Thomas Steffen wrote that the Nevada public records statute (NRS 239.010) does not apply to any public record the Supreme Court chooses to seal. "Even if we were to agree with the dubious proposition that NRS 239.010 applies to the judicial branch of government, the reference to 'public books and public records' simply has no application to records which have been lawfully declared not to be public by this court. This court's lawful exercise of jurisdiction conferred and mandated by the Nevada Constitution cannot be superseded by a conflicting statute."

Later in the same opinion, he cited a New York case, also stemming from a judicial discipline matter. "The Court of Appeals in Nicholson expressly recognized, as have we, the inherent power of the courts to seal their own records in appropriate cases. The instant case is such a case."

On the next page he added, "Closure of court proceedings or records may be necessary to comply with established public policy in the constitution, statutes, rules, or case law; to protect a compelling governmental interest; to obtain evidence to properly determine legal issues; or to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right."

Even though it was the Whitehead ruling that articulated it, Nevada judges always have had the authority to seal both cases and records, agreed Kathy Hardcastle, chief judge of Clark County District Court; Elizabeth Gonzalez, the civil division chief; and Foley.

Court records in Clark County courts are public records -- until a judge rules that they should be sealed from the public, Foley said. Violating the judge's order could lead to a contempt of court charge or a fine, he said.

"If there is a court order saying it's sealed, it could be a public record, but nobody can give it out," Foley said.

A Review-Journal inquiry shows at least 115 civil cases have been completely sealed in Clark County District Courts since 2000, and attorneys say anecdotally the practice of sealing is becoming more common. "My experience has been that more documents associated with civil litigation are being declared confidential, and therefore sealed and being kept from public view and the record, than has been the case in the past," said veteran attorney Steve Morris.

But the trend may not be present in Northern Nevada. Brent Adams, whose 17 years on the Washoe District Court make him the most senior jurist there, said, "I've never heard of a civil case being completely sealed here. In fact, sealing it so that all you have left is the title of the case, I have never before heard of that being done anywhere."

Familiar with the Whitehead case because he happened to be one of the complaining witnesses who touched off the investigation, Adams expressed surprise that the resulting decision is being cited as permission to seal entire case files. There are numerous reasons a judge might authorize or require a particular document to be filed under seal, and civil settlements often are declared confidential if both parties agree, he said.

"But I am not familiar with any authority that would permit the entire pleadings and the record to be sealed in a civil case," he added.

Justice Miriam Shearing wrote a dissenting opinion in the Whitehead case, saying that court proceedings and records of hearings are like other government meetings and documents and that they should be open to the public.

"I strongly question the authority of this court to conduct secret proceedings in which the legal issues in the action and the very existence of the action are hidden from the public," she wrote.

Her minority opinion states that the court majority interprets the New York decision incorrectly and that public confidence in the courts is eroded when hearings are closed and court records are sealed from public scrutiny.

She also points out that court proceedings and records have been open for centuries, dating as far back as the Statute of Marlborough of 1267, which lays out the principles of English Common Law. She states that the constitutions of colonial Pennsylvania provided "all courts should be open."

Shearing cites a 1992 7th U.S. Circuit Court ruling, known as The Matter of Krynicki, in which the court questions whether the cases before the court at that time are more deserving of secrecy than other cases that were made public, such as the case involving the Pentagon Papers, in which it was argued that national security was at risk.

The Supreme Court majority and Shearing also disagreed on whether Nevada laws that require that government meetings and records be open to the public apply to state judges as they do to local and state elected officials.

State law declares, "The sitting of every court of justice shall be public except as otherwise provided by law."

And NRS 239.010, the public records statute, says "All public books and public records of a governmental entity, the contents of which are not otherwise declared by law to be confidential, must be open at all times during office hours to inspection by any person."

Article 6 of the Nevada Constitution states, "The supreme court shall make appropriate rules for: (a) the confidentiality of all proceedings before the (judicial discipline) commission, except a decision to censure, retire or remove a justice or judge."

The majority erred in interpreting that as authority to keep other proceedings and records confidential, Shearing said. And she further observed that state law "specifies that this court, as well as the district and justice courts, are courts of record. Given the language of the statutes, I have difficulty seeing how the records in any of these courts are not considered 'public records.'"

Although Steffen and his closest ally on the court, Justice Charles Springer, got their way and ended the investigation of Whitehead, their victory proved hollow.

Southern Nevada attorneys, in the 1996 Judicial Evaluation Poll conducted by the Review-Journal, gave Steffen and Springer some of the lowest scores recorded since the biennial poll started in 1992. Neither ran for re-election.

The Whitehead affair precipitated a federal investigation, and Whitehead resigned in January 1996, agreeing never to hold judicial office again in return for a guarantee he would not be prosecuted for any offense "of which the government has notice at the time of the execution of this agreement." What charges might have been contemplated were not revealed.

And the Nevada Legislature gave the historically underfunded Judicial Discipline Commission a large budget increase. The commission emerged from the controversy more effective than ever before.