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Feb. 11, 2007
Copyright © Las Vegas Review-Journal


EDITORIAL: Secret justice

Public confidence in our political institutions depends in large part on the transparency of their operations. A government that conducts its business behind closed doors -- shielded from the scrutiny of its citizens -- is fast sliding toward tyranny.

This is especially true of our court system. A robust democratic republic requires an accountable and open judiciary. Freedom and individual liberty are too often the first casualties of "justice" dispensed in a Star Chamber.

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That's why it should concern all Nevadans that local judges are sealing more and more court records -- particularly in the arena of civil law. In a five-day series that begins today, Review-Journal reporters document this dangerous and disturbing trend.

"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," write Frank Geary and A.D. Hopkins in today's In Depth section.

Many state legal observers point to a controversial 1995 decision by the Nevada Supreme Court as the impetus behind the increasing secrecy. In a judicial discipline case involving Washoe District Judge Jerry Whitehead, the state high court held public records statutes do not apply to the judiciary -- that the courts, in effect, can seal anything they want.

While that conclusion brought the ire of at least one dissenting justice -- and led to an eventual upheaval on the court -- the ruling still stands today and appears to have emboldened local judges and attorneys who would prefer to do business in the dark.

Nor is this unfortunate course confined to Nevada. Consumer activists for years have complained about product liability lawsuits being settled in secret, with judges sealing the record under the guise of protecting trade secrets and the public none the wiser about a potential danger.

"Judges often grant protection even if the trade secrets in question show how the product does not work, not how it does," wrote law school professor Richard Zitrin in a Los Angeles Times commentary last week. "Neither lawyers nor judges should ever be party to such agreements. It is simply unacceptable as a matter of public policy to permit secret deals that conceal evidence of dangers to the public."

In addition to that practice, though, some local judges appear to have sealed or closed cases simply as a matter of convenience or to suppress embarrassing facts about one prominent litigant or another. That, too, is simply unacceptable as a matter of public policy and reflects a serious abuse of discretion and lack of judgment.

"Everything secret degenerates, even the administration of justice," wrote Lord Acton, a 19th century historian. "Nothing is safe that does not show how it can bear discussion and publicity."

With rare exceptions, judicial proceedings must be conducted in public. It's past time for those Nevada judges who think otherwise to change their ways -- or be held accountable.


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