The following is a list of court-related problems for which Veterans in Politics International seeks legislative reforms:
- Overuse and Abuse of Closed Courtroom Proceedings
Court proceedings, both civil and criminal, are supposed to be open to the public as a matter of First Amendment constitutional right. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). This right applies to “related proceedings and records” and protects the public against the government’s arbitrary interference with access to important information. N.Y. Civil Liberties Union, 684 F.3d 286, 298 (2d Cir. 2012).
In the family law case of Del Papa v. Steffen, 915 P.2d 245, 248 (1996), the Nevada Supreme Court held that courts are presumptively open to the public and “a state may deny this right of public access only if it shows that the denial is necessitated by a compelling government interest, and is narrowly tailored to serve that interest.” (Emphasis added; see also, Civil Rights for Seniors, Non-profit Corp. v. Admin. Office of the Courts, 313 P.3d 216, 129 Nev.Adv.Op. 80 (Nev. 2013) (the public has a First Amendment right of access in criminal and civil judicial proceedings). This indeed is the law nationwide. NRS 1.090 also recognizes this important public policy and provides that “the sitting of every court of justice shall be public except as otherwise provided by law.”
Eighth Judicial District Court Rule 5.02 was repealed as of 1/27/2017, but it had provided for many years that family court cases could be “closed” to members of the public simply upon the request of one of the parties. No good cause or any other factors had to be shown or justified. While this rule was rightfully repealed, there are still other rules in family court that continue to provide for closed hearings in violation of constitutional rights.
NRS 432B.430(c) requires that hearings be closed in all child “abuse and neglect” cases in which the court has to decide if there is enough evidence to remove a child from his/her home. The only way for the hearing to remain open to the public is if the judge affirmatively finds that keeping the proceedings open is in “the best interest of the child.”
First, this blanket across-the-board requirement to close such hearings, without a case by case analysis showing a compelling state interest in that particular case and a finding of the least intrusive method of closing such hearing, is unconstitutional in that it violates the public’s and media’s First Amendment rights. While one may think of a child’s removal from the home as a sensitive issue, we believe this is the very reason it should be open to the public – so as to minimize the risk of abuse in the proceedings. There are indeed many criminal cases that are particularly sensitive (for example, sex abuse, murder, grave bodily harm), yet we view those as a society as especially warranting open review by the public. While hearings can certainly be closed on a case by case basis, in each such case a compelling state interest must be shown on the record and the restrictions must be narrowly tailored to meet that compelling state interest with the least intrusion on constitutional First Amendment rights.
Second, the statute’s requirement that the hearing only be open if it can be shown to be in the best interests of the child is nonsensical. What aspects of an open hearing would be in the best interest of a child – this is a measure that is impossible or so unrelated that it cannot reasonably be met.
Likewise, NRS 432B.430(1)(a), which deals with proceedings in which the permanent placement of the child is at issue, including parental rights termination, are presumed to be open “unless the judge or master, upon his or her own motion or upon the motion of another person, determines that all or part of the proceeding must be closed to the general public because such closure is in the best interest of the child…”
Again, “best interest of the child” is not the constitutional standard. The constitutional test is whether the state can show a compelling state interest, on a case by case basis, of the need to close the hearing, and to what extent the hearing needs to be closed – typically, only a portion of the hearing if any should be closed. The findings of such compelling state interest must be specifically argued and found to be compelling in the order closing the hearing. This is particularly true where the termination of parental rights is at stake. The public should have full transparency on such a vital issue or it easily becomes subject to abuse by judges who claim to be exercising their judicial “discretion.”
The provision of closing courtrooms without documented findings of a compelling state interest not only undermines public confidence in the judiciary, but it also leads to abuses. Veterans In Politics has been repeatedly kicked out of courtrooms when trying to monitor proceedings, yet were the only ones kicked out under the pretext that the hearing was “closed,” even though other members of the public, lawyers, parties and witnesses on other cases were allowed to remain in the courtroom.
These statutes should be rewritten to reflect the proper constitutional standards to close a courtroom proceeding – specifically, findings on the record establishing a compelling state interest in closing part of the proceedings, and the drafting of orders closing proceedings to be narrowly tailored to protect only those compelling interests.
- Oversealing Court Documents
Like the right to publicly open courtrooms, the right of public access to judicial documents is firmly rooted in our nation’s history. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). As stated in United States v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994): “It would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door?” A presumption of public access is necessary for judicial documents because the monitoring of the judicial function is not possible without access to documents that are used in the performance of a judge’s functions. Standard Inv. Chartered, Inc. v. FINRA, 347 F. App’x 615, 616 (2d Cir. 2009). The presumption of access is based on the need for courts to have a measure of accountability and for the public to have confidence in the administration of justice. United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). Therefore, motions to seal documents must be “carefully and skeptically review[ed]…to insure that there really is an extraordinary circumstance or compelling need” to seal the document from public inspection. Video Software Dealers Ass’n v. Orion Pictures, 21 F3d 24, 27 (2d Cir. 1994).
In Kennedy v. R.M.L.V., LLC (D. Nev., 2014), the federal District Court in Nevada held that:
If documents are filed in conjunction with a dispositive pleading, a party seeking to seal them must satisfy the strict “compelling reasons” standard. Pintos v. Pac. Creditors Ass’n, 565 F.3d 1106, 1115 (9th Cir. 2009). Under the compelling reasons standard, “a party must overcome a strong presumption in favor of access by showing articulable facts that a compelling reason exists” to seal a pleading. Golden Boy Promotions, Inc. v. Top Rank, Inc., 2011 WL 686362, *1 (D. Nev. 2011). Compelling reasons include trade secrets or information that could be used for “scandalous or libelous purposes.” Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). It is not enough to justify sealing that disclosure “may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006).
The Nevada Supreme Court has likewise recognized that the public has a constitutional First Amendment right to access court documents and proceedings, absent a finding by the court that there is a compelling state interest in keeping a particular document or hearing private, and moreover, the portion kept private must be the minimum necessary to protect the compelling interest. See family law case, Del Papa v. Steffen, 915 P.2d 245, 248 (1996), (“a state may deny this right of public access only if it shows that the denial is necessitated by a compelling government interest, and is narrowly tailored to serve that interest.”)
Notwithstanding all of this case law authority, cases in family court are getting sealed without specific findings on the record showing a compelling state interest, and sometimes, without any express written order at all.
Further, when a case is sealed in family court, the family law clerks are removing the entire case from public access. The case completely “disappears” from public online records searches and even from the court’s attorney online records searches. It is as if the case does not exist. This is a violation of NRS 125.110(1) which requires that certain documents and information, such as the case name, number, summons, court orders, etc. remain accessible to the public even when cases are sealed. The Nevada Supreme Court has been very clear on this point, stating that it is a manifest abuse of discretion of the court to seal entire cases. See, Johanson v. District Court, 182 P.3d 94 (2009). Yet, this continues to happen, particularly in family court.
We request that a BDR be prepared to expressly outlaw the wholesale sealing of cases without specific findings of a compelling interest for the particular documents being sealed, a justification of the portions sealed, and ensuring that portions of the record, specifically, those set forth in NRS 125.110(1) continue to be publicly available and the case visible to those searching for it. We also request that the public and media have an immediate cause of action for the unsealing of the case or documents with the burden being put on those seeking to seal the documents to show the compelling state interest in denying the public their constitutional rights to have access to the filed documents. The burden should not be on the public to justify why they need the documents.
- Jury Trials for Termination of Parental Rights and Relocation of Children
Article I, Section 3 of the Nevada Constitution states that the “[T]he right of trial by Jury shall be secured to all and remain inviolate forever, but a Jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law…” The Constitution guarantees the right, and leaes it up to the Legislature to provide the means and ways by which the right is to be enforced. Obanion v. Simpson, 44 Nev. 188, 191 P. 1083, 1920 Nev. LEXIS 24 (1920). The right to a jury trial even extends to Nevada justice courts where small amount of money are involved (Aftercare of Clark County v. Justice Court, 120 Nev. 1, 82 P.3d 931 (2004)), though the right does not extend to small claims courts due to the need to provide for a speedy cost-effective resolution to cases..
Nevada’s family courts are part of the District Court. Yet, family court has no provision for jury trials and the courtrooms do not even have a jury box. No jury waivers are requested of, or made by, the litigants. This is the case notwithstanding the fact that crucial issues such as the termination of parental rights, relocation of a child away from one of the parents, and division of community property and other key decisions are routinely made, cutting to the very core of a person’s fundamental rights to raise a child and to enjoy his/her property.
The NRS needs to make clear that litigants in family court have a right to a jury trial to be exercised in the same manner as in other district courts.
- Judge Meetings Should Be Subject To Open Meeting Laws or At Least Open to the Public
NRS 241.010 sets forth the legislative intent of Nevada’s Open Meeting Laws: “In enacting this chapter, the Legislature finds and declares that all public bodies exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”
State and local judges are elected officials. Yet they routinely hold private meetings. These meetings should be subject to Open Meeting Laws (“OML”) or at a minimum be open to the public even if they do not have to comply with all OML requirements. VIPI recently asked to sit in on a family court judicial meeting and was turned away at the door. We also asked to at least get a copy of the agenda for the meeting, and were again advised by the court officials, including counsel, that we could not have a copy of the agenda. When we asked to be put on the agenda for the next judicial meeting in order to express our concerns about numerous abuses, we were advised that we would not be put on the agenda. There is no question that our courts need to be as transparent as possible. Secret meetings, where secret agenda items are discussed, no agenda is available to the public, and no minutes are available to the public do nothing to foster the public’s confidence in our court system, and serves as fertile ground for corruption, particularly in a court system that is already fraught with impropriety.
- Transparency Needed in Disciplinary Proceedings and With Disciplinary Complaints:
Presently, when someone files a complaint with the state bar or with the judicial disciplinary commission the complainants simply get a letter stating whether the commission is proceeding with an investigation or not. If there is no investigation, the commission does not give the complainant any reasons for its decision or a copy of the judges/lawyer’s response to their complaint. This can give the complainant the impression that the commission simply didn’t want to act for whatever nefarious reason. If there is a reason for not proceeding with an investigation, the complainant should be made aware of the reason.
Further, even when the commission or Bar proceed with an investigation and actually file a complaint against the judge or lawyer, there is no copy of that complaint made available to the public, and with regard to lawyers, the State Bar’s website does not even show that any charges are pending or any proceedings or complaints have been filed against the attorney. The website instead continues to show that the attorney is “in good standing.” This is even the case after Bar finds the attorney guilty of malfeasance, and even if the lawyer has agreed to be suspended. The attorney’s status is only changed once the Supreme Court has signed an order agreeing to the punishment of the attorney, which could be months later. In the meantime, potential clients are unaware that there are any issues. Yet, the job of the Bar, and the Judicial Disciplinary Commission, is to protect the public – not to protect the lawyer or the judge. The public should be made aware if there is a proceeding pending, should have access to the pleadings and records, and should frankly even be entitled to sit in on hearings upon request. There is no reason for our disciplinary bodies to operate in the shadows, when their very existence is to protect the public. At a minimum, operating in secrecy diminishes public confidence in these public bodies, particularly since they are being called upon to rectify wrongdoing.
- Judge’s Campaign Financing
We have seen for years that judges running for re-election are soliciting campaign funds and the throwing of fundraisers from lawyers and/or parties who have open cases before them. This is not in keeping with a judge’s requirement to avoid the “appearance of impropriety.” The fact that a judge may disclose the campaign contribution on a government filed Contribution and Expense Report months later of is no import to avoiding the appearance of impropriety. By comparison, California requires the recusal of judges who accept more than $1,500 from any party or lawyer at any time during the prior 6 year period. In Nevada, judges are making calls to litigants’ counsels and asking for and accepting up to $10,000 for their campaigns while their case is pending. We have also spoken to numerous lawyers who have felt pressured to contribute to the judge when he/she calls for money, or feel compelled not to contribute to a different candidate they would otherwise support, because they have an open case before the judge asking for funds and are afraid of retaliation. This practice of taking money when there are open cases, which is not even engaged in by our politicians in Nevada, is fertile ground for corruption and results in a loss of trust in our judicial system – a system that is supposed to serve as the very safeguard against corruption of our democracy.
We ask that the Legislature form a committee to study the issue of best practices for campaign financing of judges and examine how this is handled in other states and make recommendations for changes in the law regarding this issue.
VETERANS IN POLITICS INTERNATIONAL, INC.