A case for open courts

"People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."

--Chief Justice Warren Burger

There is nothing in the annals of jurisprudence more reviled, more denigrated than the English Star Chamber, which met in utter secrecy, used torture to force confessions and handed down arbitrary sentences that included flogging and cutting off ears. It was abolished in 1641. Or so the history books attest.

One law dictionary defines the term's modern use as applying to "any judicial or quasi-judicial action, trial or hearing which so grossly violates standards of 'due process' that a party appearing in the proceedings (hearing or trial) is denied a fair hearing." It concludes by instructing: "See also: kangaroo court."

Yet, as the Review-Journal revealed in a series of articles in February, at least 115 civil lawsuits have been conducted by Clark County District Court judges in utter Star Chamber-like secrecy since 2000, and there may be more.

In response to this startling revelation, a bill was introduced at the Legislature to set up standards for why and how certain aspects of civil cases could be sealed from public view. But lawmakers dithered, whimpered and punted.

Meanwhile, back among the grown-ups, state Supreme Court Chief Justice Bill Maupin has created what he calls the Commission to Study Procedures for Preservation, Public Access and Sealing of Court Records. He named Justice Jim Hardesty, who formerly was the attorney for the Reno Gazette-Journal, to be the high court's liaison with the commission, and picked Washoe District Judge Brent Adams, who in the late 1960s was a Review-Journal reporter, to chair the panel.

The commission met for the first time this past week and set the stage for what promises to be a fruitful endeavor.

In fact, Judge Adams outlined the problem at hand rather succinctly: "Most of the treachery in the world occurred in the dark."

Justice Hardesty said he hoped the panel could conclude its work in 90 to 180 days at the most. He outlined several propositions and got a consensus on each from the panel members:

-- There should be no "super-sealing" of cases in Nevada. That practice removes all traces of a case from the public record.

-- The burden of proof for sealing of aspects of a court case rests with the person seeking the seal.

-- Before any part of a case is sealed there should a public hearing to determine whether there is a compelling state interest to do so.

During the hearing, commission member Don Campbell quoted from a Supreme Court ruling that set the standards for court openness in criminal matters. He suggested the words could apply to civil cases, too: "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. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

This sealing of court cases is not unique to Nevada.

The Seattle Times in a series of articles reported that King County judges had improperly sealed hundreds of court files, hiding potential dangers from unsafe medial devices, protecting unethical lawyers and negligent doctors and covering up misdeeds by public agencies.

Reacting to the reports, the Washington state courts have rewritten their rules to establish stricter procedures.

Two Miami Herald reporters (including one I worked with at the old Miami News) uncovered hundreds of hidden lawsuits in Broward County. These included divorce cases of judges and politicians.

In response, the Florida Supreme Court recently banned the practice and issued new rules.

The new Florida rules state that "the removal from public view of all information acknowledging the existence of a case is expressly not allowed," and spelled out requirements for hearings and public notice.

In three cases, newspapers shined the light of public scrutiny on injustices. Let's hope Nevada follows the examples of the Florida and Washington courts. At this point, it looks promising.

Secrecy is anathema to democracy. Period.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com.