Howard v. State

Decision Date27 December 2012
Docket NumberNo. 57469.,57469.
Citation291 P.3d 137,128 Nev. Adv. Op. 67
PartiesSamuel HOWARD, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

OPINION TEXT STARTS HERE

Rene Vallardes, Federal Public Defender, and Megan Hoffman and Lori C. Teicher, Assistant Federal Public Defenders, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Jonathan E. VanBoskerck, Chief Deputy District Attorney, Clark County, for Respondent.

BEFORE SAITTA, PICKERING and HARDESTY, JJ.

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 State'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. SeeNRAP 27(c)(1) (providing that single justice may act alone on any motion). Subsequently, the State filed a motion for reconsideration of that order.2See 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 a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573, 100 S.Ct. 2814, 65 L.Ed.2d 973 (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, 100 S.Ct. 2814 (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, 75 S.Ct. 11, 99 L.Ed. 11 (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 “east[ ] 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, 592 Pa. 273, 924 A.2d 642, 647–48 (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, long-standing 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, 448 Mass. 701, 864 N.E.2d 1, 5 (2007) (observing that Massachusetts right of public access to judicial documents is governed by overlapping constitutional, statutory, and common-law rules); Nowack v. Fuller, 243 Mich. 200, 219 N.W. 749, 750 (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, 18 R.I. 835, 29 A. 259 (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. SeeNRS 1.030; see also Hogan v. State, 84 Nev. 372, 373, 441 P.2d 620, 621 (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, 198 n. 2, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) (accepting Blackstone's Commentaries as the most satisfactory exposition of common law); Wheaton v. Peters, 33 U.S. 591, 658–59, 8 Pet. 591, 8 L.Ed. 1055 (1834) (observing that when our ancestors migrated to the United States, they brought with them, to a limited extent, the English common law as part of their heritage; “No one will contend, that the common law, as it existed in England, has ever been in force in all its provisions, in any state in this Union. It was adopted, so far only as its principles were suited to the condition of the colonies.”); Dougan v. State, 322 Ark. 384, 912 S.W.2d 400, 403 (1995)(“In ascertaining the common law, we look not only at our cases, but to early English cases, early writers on the common law, and cases from other states.”). American jurisprudence originates from English common law. Richmond, 448 U.S. at 565–73, 100 S.Ct. 2814;U.S. v. Gotti, 322 F.Supp.2d 230, 239 (E.D.N.Y.2004); Kaston, supra, at 661. However, American common law is not without distinction from its English roots. See Reno S. Works v. Stevenson, 20 Nev. 269, 276, 21 P. 317, 319 (1889) (concluding that the “intention of the legislature was to adopt only so much of [the common law of England] as was applicable to our condition”).

With respect to the common-law right to inspect and copy public records, American courts offered a broader interpretation of that right. Contrary to English practice, American courts “generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Nowack, 219 N.W. at 750–51;see also Anne–Therese Bechamps, Note, Sealed Out–of–Court Settlements: When Does the Public Have a Right to Know?, 66 Notre Dame L. Rev. 117, 120–21 (1990) (noting that [u]nder the English system all persons enjoy the common-law right of access, but only those with a proprietary or evidentiary interest in the documents can enforce the right if access is wrongfully denied”; American common law does not impose such a restriction). Nevertheless, English and American common law enjoy commonality in the long-standing recognition of the public's right to inspect and copy public records, including judicial records and documents. Nixon, 435 U.S. at 597, 98 S.Ct. 1306 (“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.”); ...

To continue reading

Request your trial
7 cases
  • News+media Capital Grp. LLC v. Las Vegas Sun, Inc.
    • United States
    • Supreme Court of Nevada
    • September 16, 2021
    ...Sun, Inc., Docket No. 80511 (Order, June 18, 2020). We do not now have occasion to revisit that order. But see Howard v. State, 128 Nev. 736, 740, 291 P.3d 137, 139-40 (2012) (noting that documents "filed with the court as part of the permanent record of a case and relied on in the course o......
  • Jones v. Nev. Comm'n On Judicial Discipline
    • United States
    • Supreme Court of Nevada
    • February 27, 2014
    ...or document demonstrates that “the public right of access is outweighed by a significant competing interest.” Howard v. State, 128 Nev. ––––, ––––, 291 P.3d 137, 142 (2012) (discussing SRCR 3). In an attempt to meet this burden, Judge Jones relied on the catchall provision that justifies se......
  • News+Media Capital Grp. v. Las Vegas Sun, Inc.
    • United States
    • Supreme Court of Nevada
    • September 16, 2021
    ...Docket No. 80511 (Order, June 18, 2020). We do not now have occasion to revisit that order. But see Howard v. State, 128 Nev. 736, 740, 291 P.3d 137, 139-40 (2012) (noting that documents "filed with the court as part of the permanent record of a case and relied on in the course of judicial ......
  • Beazer Homes Holding Corp. v. Eighth Judicial Dist. Court of State
    • United States
    • Supreme Court of Nevada
    • December 27, 2012
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT