Howard v. State

291 P.3d 137, 128 Nev. 736, 128 Nev. Adv. Rep. 67, 2012 Nev. LEXIS 121, 2012 WL 6712085
CourtNevada Supreme Court
DecidedDecember 27, 2012
DocketNo. 57469
StatusPublished
Cited by8 cases

This text of 291 P.3d 137 (Howard v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. State, 291 P.3d 137, 128 Nev. 736, 128 Nev. Adv. Rep. 67, 2012 Nev. LEXIS 121, 2012 WL 6712085 (Neb. 2012).

Opinion

OPINION

By the Court,

Hardesty, J.:

Several pending motions in this case provide us with the opportunity to address the procedures and requirements for sealing documents and records in criminal cases pending in this court. We hold that documents filed in this court are presumptively open to the public unless we exercise our inherent authority and grant a motion to file specific documents under seal based on a showing that such action is required by law or an identified significant competing interest. Thus, a party who seeks to have documents or records filed with this court under seal must file a motion that identifies the information that the party seeks to have sealed, sets forth the reasons that such action is necessary, and specifies the duration of the sealing order.

In this instance, we conclude that the documents that appellant’s counsel sought to have sealed do not meet the requirements for sealing for two reasons. First, the manner in which appellant attempted to seal the documents initially was improper. Second, the information he sought to protect from public disclosure is not of the character appropriate for sealing. We therefore grant the [739]*739State’s motion for reconsideration and deny appellant’s competing motions.

PROCEDURAL HISTORY

Appellant Samuel Howard was convicted of two counts of robbery with the use of a deadly weapon and first-degree murder with the use of a deadly weapon and sentenced to death based on the robbery of a Sears department store security officer and the robbery and murder of a doctor in separate incidents in Las Vegas in March 1980. This appeal involves the denial of his fourth post-conviction petition for a writ of habeas corpus challenging his conviction and sentence.

Counsel for Howard filed an ex parte motion to substitute counsel.1 The motion included a cover sheet indicating that it was filed under seal. Although counsel did not file a separate motion requesting leave to file the motion under seal, the substitution motion was nevertheless filed under seal. The State opposed the substitution motion and moved to unseal it. Howard responded by filing a motion to seal the State’s opposition. A justice of this court denied the State’s motion to unseal the substitution motion and granted Howard’s motion to seal the opposition. See NRAP 27(c)(1) (providing that single justice may act alone on any motion). Subsequently, the State filed a motion for reconsideration of that order.2 See id. (“The court may review the action of a single justice.”). Howard then filed a motion to seal the reconsideration motion and any pleadings related to the substitution of counsel, which the State opposed. Later, Howard filed a motion to strike the motion for reconsideration and to direct the State’s conduct respecting the various pleadings filed regarding the substitution motion. The State opposed that motion, and Howard filed a reply. For the reasons explained below, we conclude that reconsideration of the prior order denying the State’s motion to unseal the substitution motion and granting Howard’s motion to seal the opposition to the substitution motion is warranted.

DISCUSSION

Based on an “unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of [740]*740a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (commenting on historical openness of trials in England and America). Openness and transparency are the cornerstones of an effective, functioning judicial system. Id. at 569, 571-72 (observing that historical English jurists recognized importance of open trials to thwart “perjury, the misconduct of participants, and decisions based on secret bias or partiality” and that “[t]o work effectively, it is important that society’s criminal process ‘satisfy the appearance of justice’” (quoting Offutt v. United States, 348 U.S. 11, 14 (1954))). Safeguarding those cornerstones requires public access not only to judicial proceedings but also to an equally important aspect of the judicial process—judicial records and documents. See Roman Cath. Diocese of Lexington v. Noble, 92 S.W.3d 724, 732 (Ky. 2002) (observing that access to judicial records and documents “cast[ ] the disinfectant of sunshine brightly on the courts, and thereby acts as a check on arbitrary judicial behavior and diminishes the possibilities for injustice, incompetence, perjury, and fraud”); see also Com. v. Upshur, 924 A.2d 642, 647-48 (Pa. 2007) (“any item that is filed with the court as part of the permanent record of a case and relied on in the course of judicial decision-making will be a public judicial record or document”). For that reason, longstanding English and American tradition recognizes public access to judicial records and documents, Erica A. Kaston, Note, The Expanding Right of Access: Does It Extend to Search Warrant Affidavits?, 58 Fordham L. Rev. 655, 661 (1990).

Although public access is favored, it is not unfettered. A court’s authority to limit or preclude public access to judicial records and documents stems from three sources: constitutional law, statutory law, and common law. See Com. v. Silva, 864 N.E.2d 1, 5 (Mass. 2007) (observing that Massachusetts right of public access to judicial documents is governed by overlapping constitutional, statutory, and common-law rules); Nowack v. Fuller, 219 N.W. 749, 750 (Mich. 1928) (stating that in the absence of statutory grant of inspection of access to public documents and records, court looks to common-law principles); In re Caswell, 29 A. 259 (R.I. 1893) (applying common law because no statute existed relating to access to public records). Because no constitutional or statutory provision expressly speaks to public access to judicial records and documents in criminal proceedings in this court, we must consider the common law applicable to Nevada in resolving the issue before us.

As with other federal and state jurisdictions in the United States, Nevada follows the common law of England, barring any conflict with federal and state constitutional or statutory law. See NRS 1.030; see also Hogan v. State, 84 Nev. 372, 373, 441 P.2d 620, [741]*741621 (1968) (“The term common law, has reference not only to the ancient unwritten law of England, but also to that body of law created and preserved by the decisions of courts as distinguished from that created by the enactment of statutes by legislatures.”) The common law, as assimilated into American law, is comprised of English decisions, early writers on common law, and commentaries enunciating the common law as far as they are applicable to American conditions and usages. See Bloom v. Illinois, 391 U.S. 194

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Cite This Page — Counsel Stack

Bluebook (online)
291 P.3d 137, 128 Nev. 736, 128 Nev. Adv. Rep. 67, 2012 Nev. LEXIS 121, 2012 WL 6712085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-state-nev-2012.