Gray text and great stories

Some questioned whether newspaper readers would care about sealed cases in Las Vegas. They did — and so did the courts.

From the Spring 2007 issue of The News Media & The Law, page 11.

As I was reading the final proofs of the three broadsheet pages that constituted the first of a five-part series, someone asked me: Who is going to read that much gray text about sealed court cases?

To which I replied: The newspaper is the last mass medium. We provide the conduit to something for everyone — from war news to comics, from movie reviews to editorials, from sports to courts, from soup recipes to nut crop futures.

I once heard an editor argue that 97 percent of readers don’t follow jumps; therefore, newspapers should not jump stories.

By twisting his logic just a bit, it can be argued that 3 percent of readers are interested enough to follow a jump, but a different 3 percent each time. Over a week’s time, if you jump, as my paper does, an average of 15 stories a day from various covers, you’ve satisfied 315 percent of your readers with something. Right?

Perhaps not everyone would be interested in the topic of Las Vegas judges sealing civil court cases, but I wagered there would be untold thousands of judges, attorneys, bailiffs, court clerks, plaintiffs, defendants and those just generally suspicious of government officials who would read every single word of the series and then tell their friends and neighbors what an aggressive and hard-hitting newspaper the Las Vegas Review-Journal is.

Over five days and many column-inches of gray text, we told our readers about 115 court cases over seven years that had been sealed. There was no mention in the court database that the cases ever existed. Hearings were not posted. Outcomes were unknown. There was no way to find what judge sealed a case or why.

But through months of back-channel digging and interviews and demands for documents, Review-Journal special projects reporter Frank Geary pieced together some basic information about the sealed cases, discovering that many involved wealthy or influential businesses, politicians, as well as judges and lawyers who were suing or being sued.

District court judges argued they always had the power to seal cases and cited a state Supreme Court ruling from the early 1990s spelling out that the courts have an “inherent power” to seal cases despite a state statute to the contrary.

A decade later, a lawsuit involving a medical company — one formerly operated by the husband of the Supreme Court justice who wrote the dissent against that opinion — is sealed.

As were lawsuits involving the police department, the electric utility, numerous casinos and casino executives, the former lieutenant governor, the Catholic Church, a couple of television stations, a few strip joints and a porn star.

Despite my pessimistic estimate of the concern the general public might have about these stories, we were greeted with an outpouring of letters and calls expressing a need for reform and public scrutiny of the courts.

The state Legislature introduced a bill to limit the power of judges to seal court cases, and the chief justice has formed a blue-ribbon commission to “study procedures for preservation, public access and sealing of court records.”

The legislation as currently written would prohibit judges from sealing a court record unless a “preponderance of the evidence” shows releasing the information poses a danger to the public and no other method exists to assure public interests. It also requires a judge to hold a separate public hearing to weigh the merits of sealing records.

The chair of the blue-ribbon commission is a district court judge and former Review-Journal reporter. One panel member has represented the Review-Journal in several public records battles, including arguing in front the state Supreme Court. Other members will be selected from media and people involved in the courts. The high court’s liaison with the panel is a justice who once was the attorney for the Reno newspaper.

Additionally, the Review-Journal plans to file litigation in one or more of the sealed cases in an effort to establish legal precedent for public access.

Knowing the propensity of the courts and lawmakers to interpret the doctrine of separation of powers as total autonomy instead of checks and balances, our reporters may be looking forward to covering a constitutional donnybrook over whether court rules or state law will prevail.

I now suspect this civics lesson will be of interest to a large number of readers.

Thomas Mitchell is editor of the Las Vegas Review-Journal. He writes a weekly column on the role of newspapers, the need for public access to government records and meetings, and the importance of the First Amendment.