Sometimes a bright light of reason just clicks on.
Thus enlightenment came to Reno Senior District Judge Noel Manoukian. "I believe that most of you will agree that we never stop learning," the judge wrote in a cover letter for a ruling in which he overturned his own order sealing a highly publicized and controversial wrongful death civil lawsuit. "This is the first First Amendment case I have had, at least in this context. It was very interesting reading, and I do hope that the enclosed Decision & Orders does justice to the RGJ's (Reno Gazette-Journal) briefs/points and authorities."
The wrongful death lawsuit was against Darren Mack, 43, the wealthy Reno pawnshop owner accused of stabbing his wife to death in June 2006 and then sniper shooting the judge who was handling his divorce case, leaving him seriously wounded. Mack has pleaded not guilty and not guilty by reason of insanity. His criminal trial is set to begin Oct. 1.
In his decision, Judge Manoukian aptly summarized some key precedents established by the U.S. Supreme Court as it articulated just why and how both civil and criminal court matters must be presumed to be open and the level of seriousness it takes to override that presumption.
Quoting heavily from a 1986 case out of California, the judge noted that the "'presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.' ... That Court announced to trial courts that any such overriding interest must 'be articulated along with findings specific enough that a reviewing court can determine whether that closure was properly entered.' "
Manoukian admitted he simply took it on his own initiative to seal the case, citing what might be described as altruistic, if misguided, motives to protect Mack's Fifth and Sixth Amendment rights in his upcoming criminal proceedings. He admitted that had he given the parties and the media an opportunity to state the case for openness, his order to seal might have been short-lived.
But for every bright light of reason that blinks on there is a dim bulb.
Take the bizarre ratiocination of state Mortgage Lending Commissioner Scott Bice and the supporting legal opinion from Deputy Attorney General Richard Dreitzer.
Review-Journal business reporter John G. Edwards, who has been covering the pervasive rot in the mortgage lending industry and the state's rather lax enforcement efforts, filed a public records request with the lending regulators seeking a broad spectrum of documents.
One request was for the "grades" the division gives the 28 private lenders doing business in the state. That might seem like a valuable piece of information for any consumer contemplating doing business with one of those lenders. Right?
Though the law regulating the division states all its documents are public with a few exceptions, Bice and the deputy AG twisted the definition of two of those exceptions into a loophole as big as a black hole.
Dreitzer cited portions of the law that allow exceptions for information that might have "an undesirable effect on the welfare of the public" or give "any mortgage broker a competitive advantage."
Yep, it certainly would be a competitive advantage if one lender could tell its customer the state has found its competition to be a bad risk.
Dreitzer wrote: "The public would be adversely affected by such a disclosure in that this material, whether positive or negative, might sway consumers toward or away from a particular entity."
Then he goes on to cite the "unfair competitive advantage" excuse.
The state sure would not want to confuse the people who fund its regulators by actually telling them what their evaluations found. You might not pour your hard-earned savings into a business that the state regulators determined is on shaky ground. And that just would not be fair to those poorly run or corrupt businesses, would it?
It looked like "let the buyer beware" was being replaced by "let the buyer be unaware."
But upon further review, a light flickered.
As reporter Edwards continued to make inquiries he found that Las Vegas Assemblyman Joe Hogan was appalled by the AG opinion and plans reintroduce a bill to specifically make the lending division grades public.
When Edwards asked the AG about that it suddenly dawned on them that Bice is leaving office on Tuesday. So now the office says the opinion will be reviewed with the new commissioner.
Let's hope they never stop learning.
Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be reached at 383-0261 or via e-mail at email@example.com.