EDITORIAL: Bill an attack on open courtrooms

Open courtrooms are essential to promoting public confidence in the judicial system, minimizing corruption and ensuring the equal application of the law. SB432 works in opposition to these vital concepts by giving judges vast new leeway to seal records and close hearings in “family law” proceedings under the guise of protecting privacy. It also endorses the unconstitutional practice of prior restraint.

That SB432 last week passed both the Assembly and the Senate without one dissenting voice is a stain on the Legislature.

The legislation arrives on the heels of a recent Nevada Supreme Court decision that affirmed the importance of open justice in Family Court by tossing out judicial guidelines issued in 2022 that closed child custody hearings and allowed judges to restrict courtroom access at the request of any of the litigants involved. The majority justices noted that “the public has a constitutional right to access court proceedings,” finding the “presumption of open proceedings is grounded in both history and logic.”

The ruling acknowledged that there may be instances in which privacy should prevail in Family Court. In such cases, however, the justices held that the court must conduct a hearing and meet certain standards before making a determination to close a courtroom. This is also the norm in most criminal and civil hearings, where those seeking secrecy bear the burden of proving their request advances some “compelling interest.”

The decision rankled many practitioners in Family Court, who were particularly upset with Alex Falconi, the proprietor of Our Nevada Judges, a website that follows Family Court proceedings, publishing videos and other information.

The response was SB432, which takes a sledgehammer to an open judiciary when it comes to family law. While acknowledging that Family Court “proceedings are presumptively open,” it then creates enough loopholes to that essential objective to render it virtually meaningless. For instance, included among the list of exceptions is a provision that allows judges to shut the doors if a litigant “may suffer harassment, indignity, undue embarrassment or any other physical or emotional harm.” Another says the public may be excluded if the “fundamental right of privacy of any person will be violated.” These are not narrowly tailored. They are subjective standards that could be abused to deny public access to a vast range of judicial activities.

In addition, the legislation specifically exempts a host of Family Court documents from the state open records law while threatening felony criminal penalties against those who post or display court information deemed “confidential.” This is a blatant effort to intimidate whistle-blowers and judicial watchdogs such as Mr. Falconi. It’s also a patently unconstitutional prior restraint.

The First Amendment and case law interpreting it,” noted the Nevada Open Government Coalition in a letter opposing the legislation, “make plain that, as written, SB432 is an unconstitutional law that violates the freedom of the press and the rights of the public to access their courts and to communicate about them.”

The irony is that nowhere is openness more important than in Family Court, where passions run high and losing litigants often feel mistreated and overlooked by the system. Further limits on public access will only stoke additional grievances about the integrity of the legal system.

It’s true that parts of SB432 were amended at the behest of open records advocates. And proponents of the legislation have legitimate grounds to argue that minor children caught up in Family Court sometimes deserve protections. But the overall product remains an assault on government accountability and transparency and will almost certainly be exploited to advance closed courtrooms and sealed records.

Gov. Joe Lombardo professes to be an advocate for open government. Here’s his chance to prove it by vetoing SB432.