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September 16, 2014

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How much privacy is due public figures in divorce?

Judge declares law sealing cases on request unconstitutional

In some states, when judges are asked to seal a divorce case involving a high-profile couple, they have a difficult time balancing the couple’s right to privacy over the public’s right to know about the case.

But in Nevada, judges have no tough calls to make.

State law forces judges here to seal a divorce case upon a simple request from either party. The public has absolutely no say in that decision.

That’s what happened March 5 in Las Vegas, when Steve Wynn filed to divorce his longtime wife, Elaine, in Nevada’s latest high-profile marital separation. Less than three hours after Wynn’s attorney, Jim Jimmerson, filed the divorce papers and sought to seal the case, Family Court Judge Kenneth Pollock granted the request.

To be fair, NRS 125.110 doesn’t keep the public entirely in the dark about divorce cases. Divorce complaints, pleadings and judicial orders are public, but exhibits with personal and financial information about the couple and all depositions and court proceedings are kept secret.

In Wynn’s case, Jimmerson asked for a formal sealing because Wynn was concerned, in part, about the negative effect on his business interests, including the publicly traded Wynn Resorts.

Reno judge overrides law

A Reno district judge this month, however, declared the state law that automatically seals divorce details unconstitutional because of the way it ties judges’ hands.

The ruling, which was put into a 13-page written order March 6, came in the messy divorce case of Gov. Jim Gibbons and first lady Dawn Gibbons. The governor sought to seal the case, but the first lady and her attorney, former Washoe County District Attorney Cal Dunlap, wanted it open.

District Judge Frances Doherty sided with the first lady:

“The court finds NRS 125:110 unduly restrictive in that it allows automatic sealing of a broad range of the court file, upon the unilateral request of one of the parties, without allowing for judicial discretion to determine whether there is a compelling basis to seal the specified court records in a narrowly tailored manner.”

Doherty went on to say the statute lacks a “logical basis” and the right to privacy must be balanced with the public’s right to access the courts.

The ruling, which has yet to take effect, has had no legal effect on other divorce cases in the state because the governor’s attorney, so far, has chosen not to appeal it to the Nevada Supreme Court for a final legal opinion.

California agrees with ruling

California’s Supreme Court, however, shares Doherty’s view.

A couple of years ago the Supreme Court stuck down a similar California law allowing for the automatic sealing of certain court papers in divorce cases.

Doherty’s opinion may not have caught the attention of Nevada’s high court yet, but it is providing fodder for Dunlap and others pushing to open up the divorce process.

“Presumably, an open court prevents powerful people and corrupt judges from doing things behind closed doors,” Dunlap said. “There’s a greater chance there will be integrity in the process.”

Veteran Las Vegas divorce lawyer Howard Ecker disagrees.

Ecker, who has had his share of prominent clients over the years in Las Vegas, believes divorce cases, especially those involving well known public figures, are better suited to be handled behind closed doors.

The Gibbons divorce, a three-ring circus by even the most conservative observations, is a classic example of why these cases need to be sealed, Ecker said.

“All the dirt that comes out just exacerbates and polarizes people,” he said. “The governor’s case just became ridiculously convoluted.”

The public may soon have a chance to see for itself whether that’s true.

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