EDITORIAL: Bill an affront to open government

Transparency and accountability are fuels that sustain a healthy democratic republic. Open government represents a vital check on malfeasance, misconduct and corruption while promoting liberty and empowering citizen oversight of those entrusted with conducting the public’s business.

This is particularly true when it concerns the judicial branch of government. The courts are vested with vast powers to adjudicate the fate of criminal defendants and to mediate civil disputes. Life, limb and property are often literally at stake. Judicial proceedings conducted behind closed doors threaten public trust in the legal system and invite tyranny by undermining efforts to check potential abuses.

It is against this backdrop that Nevada lawmakers will soon debate Senate Bill 432, introduced last month by the Senate Judiciary Committee, chaired by Melanie Scheible, a Las Vegas Democrat. The primary focus of the legislation runs counter to every tenet of good government by making it easier to close Family Court hearings and limiting access to records.

SB432 has its origins in a recent Nevada Supreme Court decision, Falconi v. Eighth Judicial District, that tossed out arbitrarily imposed judicial guidelines issued in 2022 that closed child custody hearings and allowed Family Court judges to restrict access to other proceedings at the request of any of the involved parties. The state high court wisely held that the rules went too far because “the public has a constitutional right of access to court proceedings” and the “presumption of open proceedings is grounded in both history and logic.”

The ruling, it must be said, didn’t preclude a judge from considering a request for privacy. It demanded only that the court conduct a hearing and meet certain legal standards before making the determination to close a courtroom, just as would be required in other criminal and civil cases. The decision acknowledged that open hearings should be the norm, not the exception. As such, those asking for secrecy bear the burden of convincing a judge that a “compelling interest” trumps the public’s right to access court proceedings.

SB432 is an end-run around this sensible decision. While it repeals portions of existing law that don’t comply with the Falconi ruling, it also bestows upon Family Court judges the power to close hearings at their “discretion.” In addition, the legislation makes it potentially more difficult for members of the public to access records and documents in Family Court cases while making it a felony to “willfully and intentionally” post or display “in any public manner certain personal identifying information of another person without the consent of the person.”

The latter is a gross affront to the First Amendment and an unconstitutional endorsement of prior restraint.

The sad irony about this misguided effort to promote Star Chamber justice is that transparency is especially crucial in Family Court, which deals with contentious issues such as divorce, child custody, spousal support, community property division, adoption and abuse and neglect. Emotions often rule the day, and losing litigants commonly feel abused by the outcome. Making it more difficult for watchdogs or taxpayers to evaluate the performance of elected judges and to determine whether the system operates efficiently and fairly will only add to complaints about bias, weaken public confidence in the court and undermine justice for the vulnerable.

Occasional efforts to shield children involved in court matters may be appropriate. But the default setting for hearings and records in any judicial proceeding in a free nation must be openness rather than secrecy. Senate Bill 432 is an affront to government transparency and accountability. It deserves an unceremonious run through the shredder.