Holland & Hart and ACLU of Nevada have partnered on an amicus brief to the Nevada Supreme Court in a case critical to protect Nevadans’ right of access to their courts.
Background
The Murdoch family is attempting to use their wealth and influence to game Nevada’s courts. During the course of their well-publicized dispute over the future of the family fortune, the Murdochs’ counsel actively lobbied the Nevada legislature to enact NRS 164.041 and NRS 669.256. Some read these new statutes to upend the long-established presumption that probate proceedings are public by allowing automatic sealing of trust-related documents and closed-door hearings. Now, neither media nor members of the public have any visibility into these proceedings.
Following the enactment of these statutes, the Murdochs trekked to Nevada to file their probate action, despite having no connection to the state. They prevailed upon the district court to seal the documents and conduct all hearings in secret. Not even the parties’ names are public.
Seven national news organizations—The New York Times, The Washington Post, The Associated Press, CNN, NPR, Reuters, and ABC—petitioned the Nevada Supreme Court to reject the blanket sealing order as unconstitutional.
ACLU of Nevada Ensures that the Nevada Supreme Court Hears Nevadans’ Voices
ACLU of Nevada, with pro bono legal assistance from Holland & Hart’s appellate team, filed an amicus brief supporting the news organizations’ petition to highlight the importance of Nevadans’ access to their courts, irrespective of the publicity surrounding any particular case. Over at least one party’s objection, the Supreme Court accepted ACLU of Nevada’s brief. Of all of the participants in these proceedings, ACLU of Nevada is the only one based in Nevada.
ACLU of Nevada Legal Director Christopher Peterson outlines why this case is concerning:
“Over the last two weeks, thousands of Nevadans voted in judicial elections across our state, and we can only be certain that we’ve picked the right candidates if we can watch what our judges are doing once they take the bench. The First Amendment guarantees that everyone has the right to see what is going on in our courtrooms, and to avoid violating the public’s rights, judges must be very careful and limited about what information is withheld from view. This rule applies the same to anyone who wants to use our court system—the rich and famous are not entitled to special treatment under the Constitution.”
ACLU of Nevada urges the Court to consider Nevada’s special history of judicial openness and transparency that underpins Nevadans’ trust in the judicial system. ACLU of Nevada spearheaded the most recent effort to confirm the constitutional basis for this transparency, culminating in the Nevada Supreme Court’s decision in Falconi v. Eighth Judicial Dist. Court. That case confirms that all civil proceedings are presumptively public; there is no subcategory that may automatically remain private. Instead, courts should engage in a case-by-case evaluation of privacy concerns using the balancing test that the U.S. Supreme Court established almost 35 years ago in Richmond Newspapers, Inc. v. Virginia.
ACLU of Nevada also bolsters the news organization’s petition by appealing to the constitutional separation of powers—the notion that one branch of government cannot impinge on the functions of another. As interpreted by the district court, the new statutes would violate the separation of powers by allowing the legislature to wrest from the judiciary control over the conduct of judicial proceedings, including the quintessentially judicial function of deciding whether, in a particular case, documents or hearings should be sealed.
Where Things Stand
Briefing by the parties is underway. Upon completion of the briefing, likely by mid-December, the Nevada Supreme Court will decide whether to hear oral argument on the petition.
To learn more about what’s at stake in this case and the state and national implications, Holland & Hart appellate partner Abe Smith is available for commentary. Please contact Debbie Campbell (720.272.8954) to arrange interviews.
