Click image for enlargement. Illustration by David Stroud.

As if written with invisible ink, dozens of lawsuits filed in Southern Nevada courts virtually have disappeared after judges decided they should be hidden from the public.

Along with the dispute described in each lawsuit, also kept secret are the outcomes of each lawsuit, the name of the judge who sealed each case, whether the plaintiff or defendant had asked that the lawsuit be sealed, and any explanation by a judge for abandoning the fundamental principle that courts shall be open to the public.

In other states, such as Washington, Florida and California, judges are expected to give at least some explanation when sealing a lawsuit or portions of a case. But under the Nevada Supreme Court's highly controversial Whitehead Decision of 1995, Nevada judges now claim authority to try any civil case in complete secrecy, without explanation or notice to the public.

Since 2000, Clark County judges have sealed 115 cases. Though those are a small percentage of all cases filed, litigants involved tended to be wealthy and influential in business, politics or the courts.

Some of the sealed cases involved public agencies, including the Clark County School District, the Las Vegas Metropolitan Police Department and the Henderson Police Department.

Other sealed cases involved public utilities and services, such as Nevada Power and the Citizens Area Transit bus service, as well as institutions such as hospitals, banks, child care centers, private schools and churches.

Sealed lawsuits involved physicians and medical service providers, real estate developers, politicians, casinos and the executives who operate them, lawyers who have contributed to the judges' re-election campaigns, and judges or their relatives.

Kathy Hardcastle, chief judge for Clark County District Court, said the number of lawsuits sealed from January 2000 to September 2006 represent a fraction of 1 percent of the nearly 140,000 lawsuits filed during that time. While the Whitehead case may have confirmed judges' authority to seal cases, she said, they always have had it.

Elizabeth Gonzalez, presiding judge over the Clark County Civil Court, said lawsuits are sealed when they deal with a company's proprietary information or trade secrets, the medical condition of a minor or the victim of sexual assault, and when the plaintiff and defendant agree a case should be confidential.

It's best to seal only portions of a lawsuit that deal specifically with confidential data, but sealing an entire case is an option when confidential information is referenced throughout court records, Gonzalez said.

Hardcastle said, "We allow as much access as possible while protecting individual rights and protecting the interests of justice. Maybe we could relook at when a case is sealed and what information is sealed. I don't think anybody has ever asked us to look at it."

First Amendment experts, however, said it's wrong to seal any lawsuit, and the fact that lawsuits rarely are sealed is irrelevant.

"It's inexcusable that judges can sua sponte (of their own accord) shut down a case. That is not good government," said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press based in Arlington, Va., an organization that has successfully challenged courts' authority to seal civil cases in other states.

"If it happens once a year, I think it is significant," she said. "Secret courts are anathema to how this country is supposed to operate. ... If you don't want to handle it in public, don't sue somebody."

Floyd Abrams, chairman of the now-defunct New York State Commission on Public Access to Court Records, said that a lawsuit never should be completely sealed and that small portions of a case should be kept confidential only in "extremely rare circumstances."

"I think it is deeply disturbing from a constitutional perspective to prevent the public from having any idea that certain types of lawsuits have been filed," Abrams said. "The notion of keeping the public from knowing what's going on in its courtrooms, who is sued and what the basic claims are, seems to me to be unconstitutional."

LAWYERS, DOCTORS AND ... A PORN STAR

The list of litigants in sealed lawsuits filed in Clark County District Court reads like a Who's Who of Las Vegas.

Included are William McBeath, president and chief operating officer at The Mirage and chairman of the Metropolitan Police Committee on Fiscal Affairs; Stephen Cloobeck, developer of the Polo Towers on the Strip and a member of the standing committee of the Nevada Commission on Judicial Discipline; Feld Entertainment, the former production company for Siegfried & Roy; Lorraine Hunt, former lieutenant governor and Clark County commissioner; Jared Shafer, former Clark County public administrator; Venetian Casino Resort; Rio Properties; Hotel Ramada of Nevada, former owner of the Tropicana; KVVU Broadcasting, the Fox television affiliate in Las Vegas; the Spearmint Rhino strip club; the Roman Catholic Bishop of Las Vegas; and Beckley Singleton, a longtime Las Vegas law firm that at one time had U.S. Senate Majority Leader Harry Reid as a shareholder.

Sonya Hedden, spokeswoman for Nevada Power, said company officials refused to talk about three lawsuits sealed since 2000 involving the region's power company. Some matters are best kept confidential, in part to protect Nevada Power's customers, she said.

"It would be inappropriate to comment any further on these cases that have been sealed by the court," Hedden said.

Officials at the Clark County School District also declined to discuss two cases filed against the district since 2000, said district spokeswoman Pat Nelson.

The most recent case was filed against the district in August. Named as a co-defendant is former teacher Mark Horton, who is in prison after pleading guilty in August to charges of using minors in the production of pornography and other sex crimes involving children.

Several sealed cases involved civil actions filed by the state attorney general's office against Las Vegas businesses accused of wrongdoing, but Nicole Moon, spokeswoman for the attorney general's office, wouldn't elaborate on them.

"We can't talk about sealed cases because once a case is sealed it's like it never existed in the eyes of the court," Moon said.

A lawsuit brought against Boulder City medical malpractice attorney Hamilton Moore by a former client was sealed by a judge three weeks after it was filed in May 2003.

In November, more than three years after that particular case was sealed from the public, Moore voluntarily surrendered his law license after allegations surfaced that he had kept from clients $300,000 in settlements, according to the State Bar of Nevada. Had a judge not kept the earlier lawsuit against Moore hidden from the public, might subsequent clients have found out about the dispute and chosen a different lawyer as a result?

Two lawsuits filed in 2000 against the Summerlin Medical Center were sealed about the same time. Kept secret from the public were details of sexual assaults that occurred when a man now serving a life sentence attacked two elderly women in their hospital rooms.

In a case sealed in 2000 for unknown reasons, a judge ruled confidential a lawsuit filed by Racquel Darrian, a Las Vegas woman who starred in dozens of adult entertainment videos during the 1990s.

A lawsuit sealed by a judge in July 2004 kept hidden from the public allegations lodged against Gerald Koslow by a woman named Susan Pitts. The lawsuit was filed a month after Shuffle Master Inc. of Las Vegas, which makes card-shuffling equipment and other gambling products, announced that it had fired Koslow, its chief financial officer at the time, for failing to disclose an arrest on a renewal form with the Nevada Gaming Commission as required. Koslow had been arrested in April 2004 on a misdemeanor domestic disturbance charge.

A case sealed in 1998 was filed against failed casino developer Michael Mona by Burke & Associates, a Las Vegas-based builder. Before he declared bankruptcy, Mona developed the Sunrise Suites casino on Boulder Highway for $65 million, but he couldn't obtain regulatory approval because of Gaming Control Board concerns about his alleged associations with organized crime figures. The resort is now known as Arizona Charlie's Boulder.

A lawsuit filed in February 2004 by a woman named Angela Reyes against the Creative Beginnings child care facilities, which has several centers in the Las Vegas Valley, was sealed.

The case was filed five months before another lawsuit, that wasn't sealed, was brought against the child care chain, but there is nothing in court records that indicates the two cases are linked.

The unsealed lawsuit alleges that the child care center was at fault for hiring Kimya Winbush, a man sentenced in June 2004 to life in prison after he pleaded guilty to charges of sexual assault.

Winbush was accused of videotaping at least two boys from the child care center, ages 6 and 8, as they were subjected to graphic sex acts while visiting his home. Other children were photographed after Winbush forced them to expose their buttocks, according to prosecutors at the time.

"IF THE COURT SAYS SEAL A RECORD, WE SEAL IT"

Most lawsuits filed in Clark County over the past six years are open for the public to view. Entire case files, some several inches thick, are available to review at the courthouse, free of cost to the reviewer. A summary of each case is available to the public on the court's Internet Web site, and a per-page fee is charged for copies of case files.

However, when it comes to a case that a judge has completely sealed, there is absolutely no information available to the public or the media. An inquiry about a sealed case on the courthouse Web site is met with the response, "This case has been ordered Sealed!"

As a result, the Review-Journal in November requested from County Clerk Shirley Parraguirre all information available about sealed lawsuits under state laws that protect the public's access to government and court records.

After Parraguirre consulted with her lawyer, Assistant District Attorney Mike Foley, a computer programmer in Parraguirre's office identified 115 lawsuits that had been sealed by District Court judges from 2000 to September 2006. Parraguirre then released to the Review-Journal limited information about those lawsuits.

Included were the names of litigants in each case, the court-assigned number for each case and the dates when each lawsuit had been filed, sealed and closed.

Some cases, such as the one against the school district and the teacher accused of sex crimes, are pending before the court, but dates of upcoming hearings are sealed along with the case.

Using the information provided, interviews, past news articles and other research, the Review-Journal cobbled together some background information about the parties involved in some of the sealed lawsuits, and, in some cases, information about the disputes behind the lawsuits.

Parraguirre, who until this month was responsible for management of court documents, said she believes court records should be available to the public, especially in medical malpractice cases and lawsuits involving other trusted professionals.

However, she is forbidden from releasing information about a lawsuit if a judge has sealed it, she said.

"I can think of reasons why people would want to pull up a case on a doctor. I think they have a right to know. ... I have had attorneys call in upset because they tried to get into medical malpractice cases and they couldn't," Parraguirre said. "Civil cases are the discretion of the judge. ... I know of no specific statute that addresses them (civil cases). I go by the court, and if the court says seal a record, we seal it."

NOT A PRIORITY

The two judges, who oversee operation of the Clark County Civil Court, said that while the state Supreme Court has ruled judges may seal lawsuits without explanation, they more often seal selected documents than an entire case. When they do seal the whole case, they claimed, their reasons are sound.

"It is unusual that a case is sealed, but in some situations it is appropriate," Gonzalez said. "It's not just in Nevada. When you seal a case, you are protecting the people's (litigants) interests. And that is what judges do -- protect people's interests while seeing that justice is done."

Chief Judge Hardcastle said that it's best for judges to have unbridled discretion in sealing lawsuits. They shouldn't be hamstrung by a one-size-fits-all state law or set of rules that dictate how judges should handle sealing one, she said.

"This is something the judiciary has had discretion over for dozens of years and there are so many variables to look at," Hardcastle said. "You have so many types of civil cases, and so many things that come into play."

Hardcastle said she is not concerned that many of the litigants in sealed lawsuits are lawyers, judges, doctors, casino executives and other high-profile people.

Hardcastle suggested that the litigants in sealed cases could be targets of frivolous lawsuits aimed at embarrassing them or coercing them into offering a quick settlement. Or, they may simply have well-informed attorneys who know they can have clients' cases sealed, she said.

Sealing cases from the public can save taxpayers money if keeping a lawsuit confidential helps bring about a quick settlement in a case that, otherwise, could drag on for years and exhaust court time and resources that could be devoted to other matters, Hardcastle said.

For instance, a defendant may be more inclined to settle a case if the defendant knows that the case will be sealed and that he will be saved the embarrassment of the allegations being made public, Hardcastle said.

Also with an eye toward resolving cases quicker and with less expense, often the terms of an out-of-court settlement will be kept confidential, she said.

"There are any number of reasons to seal a case, and judges often leave it to the discretion of the parties. Most of the judges will seal it, but, as you can see, there are not a lot of cases that get sealed," Hardcastle said.

Hardcastle was surprised to find out from the Review-Journal that District Attorney David Roger's office had prohibited Parraguirre from releasing to the newspaper the names of the judge who sealed each case and the names of the attorneys in each sealed case.

Hardcastle said she also didn't realize that unresolved cases still pending before the court had been sealed, and that the times and dates of upcoming hearings in those cases also were kept from the public.

Hardcastle said Clark County judges may consider releasing more information to the public about sealed lawsuits. But there hasn't been any public outcry to release more information and it is not a high priority for judges who have crowded court calendars and who are scheduled this year to overhaul the court's computerized records system, she said.

"Eventually, we have to look at it," Hardcastle said. "We've got people who ask for documents out of sealed cases, so we have to have policies in place to make it available if appropriate. Right now, it doesn't appear to be a big problem because (sealing cases) is so rarely done."

SEALED CASES COST LIVES

In other parts of the country regulations and standards have been adopted to keep court records open to the public.

Without a U.S. Supreme Court ruling on the issue, the sealing of civil lawsuits is a problem that needs to be tackled state by state, said Dalglish, from the Reporters Committee for Freedom of the Press.

"The U.S. Supreme Court has never squarely addressed the issue of whether there is a First Amendment-based right of access to the records in civil court," Dalglish said. "However, we have had great success in most parts of the country in state and federal courts regarding the presumption that civil court records are open. ... When we have challenged this in other states, we have never lost."

After a series of Florida news stories were printed about sealed lawsuits and divorce cases, Judge Dale Ross, chief judge for Florida's 17th Judicial Court in Broward County, last summer enacted new rules judges must follow when sealing civil court records.

Previously, judges would seal lawsuits at the request of litigants without giving an explanation, and without first considering whether particular records in a case should be sealed rather than the entire lawsuit, he said.

"What had happened was that the judges often would not scrutinize the motions or orders (to seal a case) closely enough," Ross said. "We have taken the position now that we are going to be very restrictive on the sealing of cases."

Also, the courts and the county clerk in Broward County are making more information about sealed cases available to the public, Ross said. Unlike Nevada, no information at all was available about a sealed civil case before last year in Broward County. As a result, the public wouldn't have any knowledge that a sealed lawsuit ever existed because there would be no mention of it in court records.

Ross said that court records should be open to the public, but that judges must weigh the interests of the public against those of litigants.

For instance, he said, if keeping a lawsuit open unduly delays a settlement for a plaintiff paralyzed or near death, is the public interest served by keeping the case open and requiring the plaintiff to wait months or years for the case to be resolved?

"Positives usually flow from transparency, but transparency can be a problem also. Is the public interest more important than the interests of that individual? I don't know," Ross said. "It can work both ways, but, in general, the government should operate in the sunshine."

In response to a California Supreme Court ruling, the Judicial Council of California in 2001 adopted procedures for courts to follow in handling requests to seal court records.

The policies required all state courts to follow the same rules in sealing court records, in part because court policies had varied from court to court across the state, according to the Judicial Council.

The California Supreme Court ruling in a 1999 case, NBC Subsidiary (KNBC-TV) v. Superior Court, states that the right of access to court records applies to both criminal and civil courts, and provided guidance for judges in sealing court records, according to the Judicial Council.

The rules state, "Trial courts may not seal records unless the court expressly finds: there exists an overriding interest that overcomes the right of public access to the record; the overriding interest supports sealing the record; a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored; and no less restrictive means exist to achieve the overriding interest."

This past year in Seattle, after the Seattle Times published articles critical of judges sealing lawsuits, King County Superior Court judges have been more mindful of long-standing court rules about sealing lawsuits, said Paul Sherfey, chief administrator for King County Superior Court.

The newspaper found that at least 420 lawsuits had been sealed by King County judges from 1990 to 2006. However, in the nine months following March, the newspaper didn't find one case sealed in its entirety. Also, the number of confidential settlements reached in civil cases had decreased significantly, according to the newspaper.

One reason for the about-face was a refresher class court administrators arranged to remind judges of the rules, Sherfey said.

As a result, judges no longer seal lawsuits simply because litigants request they be sealed, and judges are more likely to seal particular records in a lawsuit rather than an entire case file, Sherfey said. Also, judges are required to fill out a form that explains their reasoning in sealing court records, and that explanation is available to the public, he said.

"I think our bench is very aware of that standard. It can't be because the parties requested it be sealed. It has to be information that could be harmful to someone. ... It can't be because somebody wants to avoid embarrassment," Sherfey said.

Gary Hengstler, director of the Donald W. Reynolds National Center for Courts and the Media at the National Judicial College in Reno, said Nevada's courts are more open than courts in other states.

Nevada judges are more likely to allow cameras in their courtrooms, to deny requests for gag orders and to make court records available to the public, he said.

"I am not saying there are not judges who seal upon request, but Nevada is more open than a lot of states," he said.

Hengstler, who teaches a class to judges about media and the courts, said judges around the country inappropriately seal cases simply because the litigants ask that the cases be sealed. The public has been hurt by judges sealing records when the cases involved a public safety threat, he said.

In Boston, for instance, lawsuits filed against the Catholic Archdiocese alleging sex abuse by priests were sealed. A judge in 2002 unsealed five lawsuits filed against the Boston Archdiocese between 1992 and 1996 after the Boston Globe newspaper filed a motion in court arguing that there was a "legitimate public interest" in the topic of sexual abuse by clergy, according to a Globe story written at the time.

According to the Globe, the unsealed lawsuits show how far the archdiocese went to keep confidential the allegations of sex abuse by priests. One judge, who in 1995 sealed one of the lawsuits, said in 2002 that she wouldn't have sealed the case if she had known that the problem was so widespread, according to the Globe.

Several lawsuits filed against the Firestone tire company alleging the company sold defective tires had been sealed until Houston television station KHOU-TV found out about the trend. The allegations of defective tires would have remained confidential but for that investigation, according to the national press organization, Investigative Reporters and Editors. Instead, the station's reporting led to the second-largest tire recall in United States history, congressional hearings and new federal regulations on tire safety.

"Had the documents not been sealed, we might have learned the scope of the problem earlier and lives could have been saved," Hengstler said of the Firestone lawsuits. "They shouldn't have been sealed because there was a threat to the public that could have been exposed."