Committee says court records should be open

A committee studying access to court records essentially agreed Monday that judges shouldn't arbitrarily order court documents sealed.

Senior Judge Noel Manoukian did so recently in the civil wrongful death case against Darren Mack even though he had no request from either side to do so, a decision which has since been challenged by newspaper lawyers.

Mack also faces criminal murder charges in connection with his estranged wife Charla's death.

"I've got some reservations about the court initiating the sealing on its own," said Supreme Court Justice Jim Hardesty during a meeting of the commission charged with creating rules for access and sealing of court records.

The commission was organized to create rules governing the process of sealing court documents, which is now handled differently in every county and done pretty much at the discretion of the trial judge.

He and other members of the commission, which includes other judges as well as trial lawyers and Assemblyman Bernie Anderson, D-Sparks, agreed the presumption must be that court documents are open to public inspection. And they agreed that no case should be what was termed "super-sealed." That action, which has happened several times in Clark County, seals everything about the case including the names of the parties, the docket recording actions in the case and all records involved. It also normally includes a gag order preventing anyone including the lawyers from talking about the case.

"The evil we're seeking to prevent is keeping information in the public interest from the public," said Douglas District Judge Dave Gamble.

But members stumbled as they considered whether there should be hearings on every motion to seal records. Clark County Chief Judge Kathy Hardcastle said that would result in hundreds of hearings. She was joined by lawyers on the panel who argued there could be several hearings on sealing records in a single case.

And Hardcastle argued judges need discretion to seal certain things, such as personal information about individuals not actually involved in a case, without a hearing.

In the end, they reached basic agreement on allowing judges to decide whether a document should be sealed, but requiring them to make findings and issue an order explaining their decision.

"And one of the pleadings that can't be sealed is the order sealing," Hardesty said.

"Instead of prior noticed hearings, any order sealing must contain findings and must be posted. And there is a mechanism where anyone can seek to unseal it."

"I think that's probably the only way it'll work," said Barry Smith, representing the Nevada Press Association on the panel.

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.