A legal note from Marshal Willick about the statutory, case law, and court rule history involving closed hearings and sealed files, what happened to change them and why, and what is needed going forward.
There is a huge amount of misinformation about these topics floating around, deliberately by zealots with agendas, and mistakenly by altogether too many lawyers and judges, leading to misinformed policy-makers. An objective reminder of the history will, hopefully, provide better guidance and policy.
In the 2021 Nevada Legislature, Sen. Ohrenschall introduced SB 334, which was based on a proposal by the Nevada Chapter of the American Academy of Matrimonial Lawyers to update and clarify the closed hearing and sealed cases rules. It never made it to the floor for a hearing, but it should, in the next Legislature, and it should be passed summarily. Here’s why.
I. THE AAML PROPOSED STATUTORY UPDATES
The American Academy of Matrimonial Lawyers is a national organization of the most qualified and experienced family law attorneys. The Mission Statement of the Academy is to preserve the best interests of the Family and of Society, improve the practice, elevate the standards, and advance the cause of Matrimonial Law. In Nevada, a lawyer has to already be a Certified Specialist just to apply to the Academy and take its qualification test.
The provisions discussed below were discussed and debated at length by the Nevada AAML Chapter. Both were approved by the Chapter as good improvements in Nevada family law. They were run past legal aid, and the self-help centers, neither of which voiced any objections.
II. SEALED FILES IN FAMILY LAW
The “sealed files rule,” NRS 125.110, has been on the books for nearly 100 years. It was enacted in 1931, and was updated only once, in 1963, non-substantively to eliminate an irrelevant reference to “jury verdicts.”
The statute provides that certain pleadings and orders in divorce cases remain open to public inspection, but that all other papers can be sealed as a matter of right upon request of either party. Specifically, The Complaint, Summons, Judgment, and any orders for publication of notice are open – all else is sealed, upon request, as a matter of right.
100 years ago, the Legislature did not consider the possibility that unmarried people would be in family court, and the terminology of the statute was written before there was such a thing as a video record, and is therefore a bit antiquated.
The Nevada Supreme Court discussed the statute in Johanson v. Eighth Judicial Dist. Court of Nev., 124 Nev. 245, 182 P.3d 94 (2008); without much discussion, the Court found that a district court order sealing an entire file, including the documents required by the statute to remain open for inspection, was a manifest abuse of discretion, and reversed.
In footnote 18, the Court discussed one party’s defense of the sealing order, noting that prior decisions had provided “inherent authority” to go beyond the statute: See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99 (1978) (noting that “[e]very court has supervisory power over its own records and files,” and the decision to allow access to court records is best left to the sound discretion of the trial court); Whitney v. Whitney, 330 P.2d 947, 951 (Cal. Ct. App. 1958) (providing that alimony proceeding can be closed for the welfare of a child); State v. Grimes, 29 Nev. 50, 81, 84 P. 1061, 1071 (1906) (stating that there are stronger reasons to deny public access to judicial records concerning private matters when public access “could only serve to satiate a thirst for scandal”); Katz v. Katz, 514 A.2d 1374, 1379 (Pa. Super. Ct. 1986) (recognizing that “no legitimate purpose can be served by broadcasting the intimate details of a soured marital relationship,” however, good cause must be shown before a proceeding can be closed).
The Court found that the statute “must be strictly construed,” and its precise terms enforced.
The public policy rationale for the statute’s existence mirrors the concerns in footnote 18; there is an essential difference between criminal proceedings, or even general civil proceedings, on the one hand, and family court suits, on the other.
In criminal matters, it is good policy for the public to be able to keep an eye on whether the State is abusing its power to prosecute an individual. A person found guilty of a crime has little legitimate right or expectation of privacy as to the conduct leading to the conviction, and the law already sets up a balance between public record, so people can be on notice of a criminal record, and the ability of a person to eventually seal and even expunge such a record.
In general tort or contract disputes, the general public has an interest in the actions of companies and entities whose actions may well affect the welfare of lots of people beyond the named parties.
In family court, however, purely personal and quite private and intimate disputes are resolved in that forum only because the Legislature has dictated that it is the only place where such claims may be heard. No other person has a legitimate interest in mom’s affair, whether dad has a drinking problem, or if junior has health, psychological, or other difficulties, or in the custody schedule for that child. As the California Supreme Court said in Wilson v. Cable News, 444 P.3d 706 (Cal. 2019), there just is no legitimate public interest in a “garden-variety dispute” – like a couple’s divorce – because “Absent unusual circumstances, a garden-variety dispute concerning a nonpublic figure will implicate no public issue.”
The AAML proposed bill updates the language of the sealing statute to reflect the modern, electronic records that exist, and expands the protections of the statute from just divorces to all family court cases, so that all parties and children in all such cases, whether labeled divorce, custody, adoption, guardianship, separate maintenance, domestic partnership, cohabitation, or otherwise are treated the same and the people in those cases are provided identical protection.
Responding to modern problems, the bill provides a mechanism to redact or seal parts of a record if Social Security numbers or other personal identifying information that other statutes say should not be disclosed is put into the public record, to protect against identify theft and similar abuses. And it provides a mechanism for unsealing a case in case something was sealed improperly for any reason.
The same documents that were previously kept public are still kept public by the proposed amendments – it simply treats married and unmarried people equally in terms of their rights to privacy, and updates the terminology to reflect modern technology. There simply is no legitimate reason to oppose updating this statute.
III. CLOSED HEARINGS IN FAMILY LAW
NRS 125.080 has been on the books since 1865. The statute permits closed hearings in divorce trials; it was written in an era when unmarried people generally did not have custody cases and some children were still considered “illegitimate,” so it only applied to “divorce” cases as originally written.
Starting in the 1980s, local rules for the Eighth Judicial District Court (Clark County) were passed and approved by the Nevada Supreme Court governing procedure in “all domestic relations matters commenced under the provisions of Title 11 of NRS” except paternity and reciprocal support cases (which had their own specialized rules) – in other words, in essentially all family court cases.
Beginning in the early 1990s, the Clark County judges began allowing suits for custody without first requiring a formal paternity action, in recognition of the fact that about half of custody cases are between people who are not married to each other but have no dispute as to paternity of the child at issue. There is no specific statutory foundation for such actions, but they have been filed and resolved as “custody cases” for over 30 years.
By 1995, the Clark County local rules included EDCR 5.02, stating that all family court hearings would be “private” upon the request of either party, but allowing the court to override such a request for an expert witness. This was always interpreted to mean the hearings would be closed.
NRS 125.080 was last updated in 2007; the amendment expanded the list of persons who could presumptively remain in a closed hearing beyond court personnel, the parties, their counsel, and witnesses, to also include parents, guardians, and siblings of parties. The statute states that it applies to “the trial and issue or issues of fact joined therein.”
The Clark County local court rules were in place for over 20 years. The provision was accidentally deleted from those rules in 2016, when the rule revision committee of that time concluded that the local rule was “redundant” of NRS 125.080, since “obviously” any procedure regulating trials also applied to hearings leading up to a trial, and what applied to divorce cases applied in all family law cases.
However, not every judge in Clark County agreed – some took the rule deletion to be a “change in policy” and stopped closing hearings except in trials of divorce cases, looking strictly at the language of NRS 125.080.
The next rule revision committee noted the problem and attempted to restore the prior rule as it had been in place since 1995, but when Phase One of the rule revisions went to the Supreme Court for approval in 2019, that Court altered the language to insert the words “pursuant to NRS 125.080” in the title of the rule (then EDCR 5.210), and changed the reference from “all actions filed under Title 11” to “in an action for divorce” in the rule text, although the restored rule still referred to “hearings or trial.”
The net effect of those changes was to expand closed hearings from trials to include pre-trial hearings, but to treat people in divorce cases differently from those in custody or other case types, at least in some departments, which would allow closed hearings in divorce cases, but not in paternity, custody, or other case types.
The Phase Two revisions to the local rules concluded in 2021 attempted to restore the reach of the 1995 rule, to ensure equal protection of people whether they are married or not. Treating similarly-situated people equally was given a high priority in consideration of every rule in the 2019-2021 revisions. At this writing, the rule set is pending delivery to the Nevada Supreme Court for public hearing and approval.
IV. THE INTERNET AGE AND THE IMPACT ON CHILDREN
Ever since the Nevada Legislature authorized the creation of family courts, a public policy objective has been to shield minor children from the adverse effects of divorce and custody litigation. For many years, the Clark County local rules have tried to serve that objective.
Current EDCR 5.301 prohibits lawyers and litigants from discussing family court issues, proceedings, pleadings, or papers with any minor child; or allowing any child to review such materials; or “leaving such materials in a place where it is likely or foreseeable that any minor child will access those materials”; or knowingly permitting any other person to do any of the things prohibited by the rule.
In practice, the rule has not prevented unscrupulous lawyers and litigants from posting case materials, hearing videos, and other family court records on the internet, or providing them to others to post. Obviously, doing so leaves such records “in a place where it is likely or foreseeable that any minor child will access those materials.”
The potential, and actual, harm to children, who at least see their parent’s private and most embarrassing topics plastered on the internet, and often their own personal, private, and confidential information (schedules, grades, medical, psychological, and other information) shown to the world, is hard to overstate. This is especially so because, once posted, it is hard to ever actually purge such information from the internet. Several judges, in several cases, have made detailed findings of the psychological, emotional, and other harm suffered by children – and their parents – from such postings.
In an attempt to address the problem, the closed hearing rule, now at EDCR 5.210, was amended in 2019 to incorporate the Johanson footnote authorities recited above, stating that the court retains supervisory power over its own records, explicitly including electronic and video records, and that all such records in any sealed case or from a closed hearing are confidential, not open to public inspection, and may not be disseminated to any third party beyond the parties, their counsel, counsel’s staffs, and any experts involved.
Parties and their agents are specifically prohibited from distributing, copying, or facilitating the distribution or copying of any such records without court permission. The rule gives specific direction that “any person or entity that distributes or copies the record of a private hearing shall cease doing so and remove it from public access upon being put on notice that it is the record of a private hearing.” It will be up to the courts to enforce this rule by proper contempt sanctions.
There are those who claim that court rules “cannot affect” non-parties to cases, but that claim is nonsense. Beyond the closed hearing and sealed file rules, for well over a century, wage assignment orders, subpoenas, and many other court processes have bound non-parties to act or cease acting in compliance with court orders and rules. Courts should be at least as vigilant in protecting the privacy of parties and their children.
V. “TRANSPARENCY” AND INVASION OF PRIVACY
Some superficial commentators have expressed the opinion that everyone has some never-defined “right” to know about anything said or done in a courtroom because the public funds the courts. The opinion is absurd on its face, of course – location in a courtroom does not make private matters in a divorce case matters of “public interest” any more than it does conversations in private cars driving down public highways.
There are multiple categories of people and information in a “public courtroom.” While there is a public good in evaluating the manner in which a judge performs judicial duties, and probably some right to know if court personnel are actually doing their jobs, there is no legitimate interest in whether the court bailiff is behind on his child support payments or the Judicial Executive Assistant has been a victim of domestic violence. Likewise, the personal and private details of the lives of non-public-figure parties is simply not the business of anyone except the parties to the case.
The distinction between the operation of the court as an institution, and the private information of the people who are required to resolve their disputes in that location is critical, and glossing it over is sophistry – no one has a “right” to know the personal and financial information of a litigant, or what that litigant discusses with counsel, as statutory and common law privileges have established for well over a century.
Family law cases are filled with information that is indisputably private – tax return information, health information, private employment information, children’s schedules and special needs, etc. People do not surrender for open public consumption their personal information and what goes on in the privacy of their homes just because they divorce any more than they do because their blood draws are processed in a government laboratory or their doctor works out of a Medicaid or Veteran’s Administration office.
“The public” has no more right to the private lives of the parties, paralegals, clerks, and lawyers who have to be present in a courtroom than they do to the personal information of a welder doing maintenance on a public bridge, or the piano tuner in a public auditorium; the courtroom is simply where those people have required appointments, or where they happen to be working.
For a century, the statutes and court rules have attempted to balance the “transparency” of public review of judicial officers doing their duties and protection of the privacy of the litigants; that is why pleadings, judgments, findings, and conclusions are open to public inspection, but motions, hearing records (including video records), financial affidavits, and allegations are sealed upon request. That well-established balance is a good one.
V. THE AAML STATUTORY REVISIONS SHOULD BE ENACTED
Presuming that the Supreme Court approves the Phase two rules as written, all parties and their children in all case types will have the same right to close hearings and trials, and to seal files, regardless of marital status. But those rules will only apply to Clark County.
The AAML proposal to update both statutory sealed case and closed hearing statutes should be enacted by the Nevada Legislature so that all people throughout Nevada have the same right to protect their and their children’s privacy that litigants in Clark County have.
Unfortunately, in the 2021 Legislature, since the proposed statute would “just” improve the law and protect the populace, instead of benefitting anyone in particular, it had no paid lobbying and failed to gain a hearing.
For the next legislative session, the Family Law Section of the Nevada Bar, and the Nevada District Judges Association, and every other organization actually interested in the good of the general public, should formally endorse the legislative updating of NRS 125.080 and NRS 125.110, for the benefit of the Bench, Bar, and general public.
As a matter of public policy, family court litigants and their children deserve the privacy intended by the Nevada Legislature in enacting the protections of closed hearings (90 years ago) and sealed files (150 years ago). The terminology of those provisions should be updated with terms appropriate for the information technology undreamed of when the provisions were enacted. Equal protection of those laws should be provided to all persons – and their children – regardless of their marital status.
First, the local rules of Clark County should be restored to provide the protections given to parties and their children in 1995. In the next legislature, those protections should be extended to all families in Nevada by way of enactment of the AAML statutory updates.
VII. QUOTES OF THE ISSUE
“Be not curious to know the affairs of others, neither approach those that speak in private.”
– #81 of George Washington’s 110 Rules of Civility.
“Once you’ve lost your privacy, you realize you’ve lost an extremely valuable thing.”
– Billy Graham
“Historically, privacy was almost implicit, because it was hard to find and gather information. But in the digital world, whether it’s digital cameras or satellites or just what you click on, we need to have more explicit rules – not just for governments but for private companies.”
– Bill Gates
“Saying that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about freedom of speech because you have nothing to say.”
– Jean-Michel Jarre