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Judge declares law sealing cases on request unconstitutional
Friday, March 27, 2009 | 2 a.m.
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- Wynns’ breakup won’t break up company (3-18-2009)
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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"The governor's case just became ridiculously convoluted."
I would say the Governor is ridiculously convoluted.
Obama won his US senate seat by getting his lawyer friends to unseal his opponent's divorce case and all kinds of crap came out about him and his opponent's Number Nine Star Trek ex-wife.
The dude had to drop out the race.
Obama won his state senate seat by getting his lawyer friends to sue to get ALL his opponents kick off the primary ballot. He won his state senate primary with anybody running against him. Since it was a heavily democratic district he easy won in the general election.
Democrats will do anything to win at politics.
Republicans should watch and learn.
@jfnance32: Interesting argument. So you would say the voters are better served not knowing the details of a politician's divorce, and that candidates should be allowed on a ballot even though they were not legally qualified?
Did not say that.
Just saying that Democrats will do whatever to win.
Republicans should watch and learn.
"...the voters are better served not knowing the details of a politician's divorce ..... a difficult time balancing the couple's right to privacy over the public's right to know about the case."
On this point I'm in jfnance's corner.
The article shows a typical legal rock and hard place -- both the judge and the attorneys have legitimate points.
The root cause of this problem is decades if not centuries old -- the entire legal fiction of marriage licensing. When the state licenses such a fundamental right it corrupts everything, as we see here, and the parties' privacy is compromised by another legal fiction -- "the public's right to know about the case."
Maybe because the divorcing parties here are prominent, and in at least the one case rich, one of their smart lawyers can get the court to declare the licensing laws unconstitutional and end the charade for all.
The concern regarding application of justice/privacy is that a district court judge (Frances Doherty) is allowed to make a determination that NRS 125.110 is unconstitutional while erroneously declaring that NRS 125.110 'automatically' seals divorce details when written request from either party to seal is required by NRS 125.110.
Rendering such judgment to unseal details goes against written request which violates established law.
Whether the California's Supreme Court shares Doherty's view or not is not applicable to established Nevada law.
Harley -- time to go back to school.
"The province of the Court is solely to decide on the rights of individuals..." _Marbury v. Madison_, 1 Cranch 137. 170 (1803)
Marbury v Madison has no relevance to this case.
Harley -- Marbury is ALWAYS relevant. Especially when parties claim their right to have their privacy protected from the public.
Why you can't see that is a surprise, since you seem to know a bit about the law and the players.