The Nevada Supreme Court already has overruled the key decision on which Clark County District Courts rely to seal civil cases from public scrutiny, said two veteran lawyers who were close to the original case. However, a Clark County deputy district attorney says the language they chose to make that ruling leaves courts with authority to seal cases in the government's interest.

After the Review-Journal recently published a series of articles showing Clark County District Court judges have sealed at least 115 cases from 2000 to late 2006, readers in the legal community contacted the newspaper and called attention to a 1996 decision, Del Papa v. Steffen, which partially overturned the earlier decision in Whitehead v. Judicial Discipline Commission, and remains the court's last word on secret court cases.

In Del Papa v. Steffen, the court observed, "NRS 1.090 provides: 'The sitting of every court of justice shall be public except as otherwise provided by law.' The State Constitution ... (provides) no authority for confidential proceedings before the Supreme Court itself, and the Whitehead panel erred in concluding it had such authority."

At the time of the Del Papa v. Steffen decision, the victorious Del Papa said, "What this decision means is there cannot be secret court proceedings. It is a tremendous victory for the state of Nevada."

Last week, even the chief counsel who opposed Del Papa's side in Del Papa v. Steffen agreed that the decision overturned the portion of the Whitehead decision that others believe permits judges to seal civil cases. Chuck Gardner said, "It reaffirms that except as otherwise provided by law, every court in Nevada is open to the public."

The original Whitehead case involved the Supreme Court's 1993 intervention in a Nevada Judicial Discipline Commission attempt to investigate conduct by Jerry Carr Whitehead, then a judge in Washoe County District Court.

The Nevada Constitution provides for confidentiality in JDC investigations, and the Supreme Court initially decided that confidentiality should extend to its own deliberations regarding the JDC investigation. After the Review-Journal began reporting details of the sealed case, however, the Supreme Court removed the seal and tried the case publicly.

The Whitehead panel, consisting of three justices and two substitutes for recused justices, issued four decisions, on various aspects, in 1994 and 1995. Among other findings, the Whitehead panel's majority asserted that the Supreme Court was constitutionally exempt from Nevada's public records law, and that in any case, the law didn't apply to anything the court had declared not a public record.

"This court's lawful exercise of jurisdiction conferred and mandated by the Nevada Constitution cannot be superseded by a conflicting statute," wrote Justice Thomas Steffen.

Del Papa v. Steffen arose after two justices, Steffen and Charles Springer, hired an investigator at their own expense and gave him unprecedented powers to investigate leaks to the media about Whitehead v. Judicial Discipline Commission while the case was still sealed, as well as other matters of interest to Steffen and Springer.

Frankie Sue Del Papa, then attorney general of Nevada, petitioned the court for a writ of prohibition ending the investigation.

A three-justice majority of the five-member court concluded that "the orders of the Whitehead panel mandating confidentiality in the Whitehead proceedings before this court were invalid and therefore unenforceable," and accordingly granted the writ of prohibition.

Springer and Steffen petitioned the U.S. Supreme Court to overturn the latter ruling; but the U.S. court refused to take the case, leaving Del Papa v. Steffen as the Nevada Supreme Court's final decision on the secrecy issue.

Deputy District Attorney Mike Foley said that in Del Papa v. Steffen, the justices in an April 1996 order criticized the Whitehead panel for sealing the case from public view, saying that particular judicial discipline case didn't rise to the threshold required to blanket a case in secrecy.

While the justices repeatedly articulated in the April 1996 order that case records should be open to the public, Foley said, "They left a crack in that April order that if there is a compelling state interest that overrides public access and freedom of the press, then they can have secret proceedings."

He said that permission is acknowledged by the decision's use of the following language from a 1982 federal case, Globe Newspaper Co. v. Superior Court: "A state may deny this right of public access only if it shows that the denial is necessitated by a compelling government interest, and is narrowly tailored to serve that interest."

Gardner doesn't think the Whitehead case would apply to sealing District Court civil cases, even if part of it hadn't been overturned.

"To read it to suggest that any court, for any reason, can seal any case, just makes no sense," Gardner said. "In Whitehead, the court was saying there was a constitutional provision regarding the confidentiality of judicial discipline proceedings, and that it trumps the state statute saying court must be open. And that's all you can read into the Whitehead decision."

If any case actually relevant to the issue reaches the Nevada Supreme Court, said Gardner, "In this political climate, in this state, I don't think you will see the Nevada Supreme Court look kindly upon trial courts sealing cases for no good reason.

"If you are going to allow any kind of sealing, there should at least be an order that is open to the public, that without revealing the confidential matter, at least tells the public the lawful authority and purpose behind the confidentiality."

Las Vegas lawyer Alan LeFebvre also is familiar with the Whitehead and Del Papa cases, because he was a member of the Judicial Discipline Commission that Whitehead sued. LeFebvre minced no words in saying the four-part Whitehead decision is an inappropriate basis for sealing a civil case.

"Using the 'Whitehead quartette' as authority for any legitimate legal proposition is akin to using Judas as a character witness!" said LeFebvre.

LeFebvre also pointed out that filing a case under seal from the first day, as was done in some of the cases noted in the Review-Journal series, would appear to violate one of the District Court's own rules.

Rule 2.06 of the Eighth Judicial District Rules says: "A complaint or other initial pleading must first be filed with the clerk and assigned to a department before application is made to the judge for the entry of an order therein."

LeFebvre said, "That rule would be a logistical bar to a seal job, which is what I would call it, unless the lawyer setting up the job is prepared to engage in prohibited ex parte communications" with a judge.

He added, "The genesis of most local rules is to address mischief which has occurred regularly enough that people want to prohibit it. I don't recall this rule being around in the 1970s, so this was probably instituted for some purpose -- for instance, preventing judge shopping for a jurist who might do something for the lawyer, such as a seal job."

Then-Justice Miriam Shearing was part of the Whitehead panel, but disagreed with the majority on many issues. Her dissenting opinion in the Whitehead case said court proceedings and records of hearings are like other government meetings and documents and 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.

She pointed 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 principles of English Common Law.

Review-Journal special projects reporter Frank Geary contributed to this story.