Johanson v. Dist. Ct., No. 48028.

Docket NºNo. 48028.
Citation182 P.3d 94
Case DateMay 01, 2008
CourtSupreme Court of Nevada
182 P.3d 94
Jane Elizabeth JOHANSON, Petitioner,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF the STATE OF NEVADA, in and for the COUNTY OF CLARK, and the Honorable Nancy M. Saitta, District Judge, Respondents, and
Robert W. Lueck, Esq., Real Party in Interest.
No. 48028.
Supreme Court of Nevada.
May 1, 2008.

[182 P.3d 95]

Bruce I. Shapiro, Henderson, for Petitioner.

Law Offices of John G. Watkins and John G. Watkins, Las Vegas, for Real Party in Interest.

BEFORE THE COURT EN BANC.1

OPINION2

By the Court, DOUGLAS, J.:


This original petition for a writ of mandamus or prohibition challenges a district court order sealing the entire case file and the issuance of a gag order,3 sua sponte, restricting all parties and their attorneys from discussing the case with the public. In this petition, we consider whether the district court manifestly abused its discretion when it

182 P.3d 96

ordered the entire case file sealed, without making any findings under NRS 125.110, and prohibited all communication relating to the case, without providing notice or a meaningful opportunity to be heard.

We conclude that by failing to comply with NRS 125.110 when it sealed the entire case file, the district court manifestly abused its discretion. We also conclude that the district court manifestly abused its discretion when it, sua sponte, issued a gag order prohibiting all communication relating to the case, without providing reasonable notice that it was considering such a restrictive order. Gag orders may be issued only when: (1) the activity poses a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) no less restrictive means are available. Because here, these requirements were not met, and for the reasons stated below, we grant this petition for extraordinary writ relief.

FACTS AND PROCEDURAL HISTORY

Petitioner Jane Elizabeth Johanson and real party in interest Robert W. Lueck obtained a divorce in December 1999. Lueck, a district court judge at the time, was ordered to pay monthly child support as part of the divorce decree.

In November 2004, Lueck failed in his bid for reelection as district court judge; this prompted him to file a motion to reduce the child support payments. During an August 2005 hearing on Lueck's motion, the district court raised the issue of whether the proceedings should be sealed. Following the hearing, the district court entered an order reducing child support arrears to judgment and reducing the amount of future child support payments. The order failed, however, to mention anything about sealing the record.

Shortly after the order's entry, Lueck filed a motion to correct clerical errors. Specifically, Lueck argued that the order reducing child support arrears to judgment was inaccurate. During the hearing on his motion, Lueck stated that he was again running for a district court judgeship and he did not want the arrears order used against him during his campaign.

Following the hearing, the district court entered an order sealing the entire case file and sua sponte issued a gag order preventing all parties and attorneys from disclosing any documents or discussing any portion of the case.

Johanson now petitions this court for a writ of mandamus or prohibition directing the district court to vacate its order sealing the entire case file and its gag order or, in the alternative, to issue a writ directing the district court to amend its order by complying with the constitutional and statutory provisions governing records in a divorce proceeding.

DISCUSSION

Standards of writ relief

The decision to entertain a petition for a writ of mandamus lies within this court's discretion.4 A writ of mandamus is used to mandate the performance of a legally required act or to control an arbitrary or capricious exercise of discretion.5 A writ of prohibition is utilized to arrest district court proceedings when such proceedings exceed the district court's jurisdiction.6 We generally will exercise our discretion to entertain petitions for mandamus or prohibition only when no "plain, speedy and adequate remedy [exists] in the ordinary course of law."7 Although an appeal, even if not immediately available, often constitutes an adequate and speedy legal remedy,8 in this instance, an appeal would not be adequate or speedy.9

182 P.3d 97

As no adequate legal remedy is available and because the issues raised warrant our attention, we elect to exercise our discretion to entertain the merits of Johanson's writ petition. Our consideration of legal issues is de novo, even in the context of a petition for extraordinary relief.10

Sealing divorce papers in violation of NRS 125.110

Johanson contends that the district court's order, which seals the entire case file, fails to address the requirements of NRS 125.110. We agree.

NRS 125.110 provides that in any action for divorce, when the complaint is not answered by the defendant, the following pleadings and papers "shall" remain open for public inspection: summons, complaint, judgment, and the affidavit and order for publication of summons. In all other divorce cases, the pleadings, findings of the court, orders made on motion, and judgment "shall" remain open.11 All remaining papers must be sealed upon the written request of either party to the action.12

NRS 125.110 must be strictly construed,13 and "[w]hen a statute is clear on its face, we will not look beyond the statute's plain language."14 NRS 125.110 plainly states that certain documents in divorce proceedings "shall" remain open to the public. "`[S]hall' is mandatory and does not denote judicial discretion."15 Accordingly, we conclude that, under NRS 125.110, the district court has no discretion in divorce cases to seal pleadings,16 court findings, orders that resolve motions, or judgments.17

Because NRS 125.110(2) allows the court to seal only certain documents in a divorce proceeding, and only upon a party's written request, here, the court's order sealing the entire case file, including all orders, judgments and decrees, when no written request was made, was a manifest abuse of discretion.

Lueck contends, however, that the district court's inherent power to completely seal divorce cases extends beyond NRS 125.110.18 We are not persuaded by this argument. Even if the district court retains inherent

182 P.3d 98

authority to seal the record in divorce cases, here, Lueck has failed to demonstrate that the district court's order sealing the entire case file was a necessary exercise of that power to protect his or any other person's rights or to otherwise administer justice.19 Therefore, we need not further address this issue.

Accordingly, we conclude that the district court was obligated to leave the record in this matter unsealed.

Gag order

Johanson contends that the gag order issued by the district court is unconstitutionally vague and overbroad. Specifically, Johanson argues that the gag order violates free speech guarantees under the First Amendment to the United States Constitution and Article 1, Section 9 of the Nevada Constitution because the order's limits and requirements are unascertainable. We agree.

A gag order preventing participants from making extra-judicial statements about their own case amounts to a prior restraint on speech and undermines First Amendment rights.20 "Prior restraints are subject to strict scrutiny because of the peculiar dangers presented by such restraints."21 The United States Court of Appeals for the Ninth Circuit has held that a district court may enter a gag order only when: "(1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available."22 We adopt this standard.23

Serious and imminent threat

In Levine v. United States District Court for Central District of California,24 the Ninth Circuit reviewed a federal district court order preventing the parties, counsel, and their...

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16 practice notes
  • S.B. v. S.S., No. 39 WAP 2019
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 22, 2020
    ...attorneys from putting information about a custody case on any social media, website, or public medium).21 Id. at 346.22 124 Nev. 245, 182 P.3d 94 (2008).23 Id. at 96.24 Id. at 98.25 See id. at 99 (concluding that "[t]he limits of th[e] order are endless.").26 The constitutionalit......
  • Perricone v. Perricone, No. 17683.
    • United States
    • Supreme Court of Connecticut
    • June 23, 2009
    ...subject to sanction." A. Garfield, supra, 83 Cornell L.Rev. at 348. 16. See Johanson v. Eighth Judicial District, ___ Nev. ___, ___, 182 P.3d 94, 99-100 (2008) (trial court's sua sponte order preventing parties and attorneys in divorce action from disclosing any documents or discussing......
  • Moultrie v. State, No. 65390.
    • United States
    • Nevada Court of Appeals of Nevada
    • December 24, 2015
    ...is a synonym of ‘shall.’ " (internal citation and quotation omitted)); Johanson v. Eighth Judicial Dist. Court, 124 Nev. 245, 249–50, 182 P.3d 94, 97 (2008) (" ‘[S]hall’ is mandatory and does not denote judicial discretion." (alteration in original) (quoting Washoe Med. Ctr. ......
  • Shak v. Shak, SJC-12748
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 7, 2020
    ...Ill. App.3d 1072, 1077-1079, 138 Ill.Dec. 346, 547 N.E.2d 513 (1989) ; Johanson v. Eighth Judicial Dist. Court , 124 Nev. 245, 250-253, 182 P.3d 94 (2008) ; Matter of Adams v. Tersillo, 245 A.D.2d 446, 447, 666 N.Y.S.2d 203 (1997) ; Grigsby v. Coker, 904 S.W.2d 619, 621 (Tex....
  • Request a trial to view additional results
16 cases
  • S.B. v. S.S., No. 39 WAP 2019
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 22, 2020
    ...attorneys from putting information about a custody case on any social media, website, or public medium).21 Id. at 346.22 124 Nev. 245, 182 P.3d 94 (2008).23 Id. at 96.24 Id. at 98.25 See id. at 99 (concluding that "[t]he limits of th[e] order are endless.").26 The constitutionalit......
  • Perricone v. Perricone, No. 17683.
    • United States
    • Supreme Court of Connecticut
    • June 23, 2009
    ...subject to sanction." A. Garfield, supra, 83 Cornell L.Rev. at 348. 16. See Johanson v. Eighth Judicial District, ___ Nev. ___, ___, 182 P.3d 94, 99-100 (2008) (trial court's sua sponte order preventing parties and attorneys in divorce action from disclosing any documents or discussing......
  • Moultrie v. State, No. 65390.
    • United States
    • Nevada Court of Appeals of Nevada
    • December 24, 2015
    ...is a synonym of ‘shall.’ " (internal citation and quotation omitted)); Johanson v. Eighth Judicial Dist. Court, 124 Nev. 245, 249–50, 182 P.3d 94, 97 (2008) (" ‘[S]hall’ is mandatory and does not denote judicial discretion." (alteration in original) (quoting Washoe Med. Ctr. ......
  • Shak v. Shak, SJC-12748
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 7, 2020
    ...Ill. App.3d 1072, 1077-1079, 138 Ill.Dec. 346, 547 N.E.2d 513 (1989) ; Johanson v. Eighth Judicial Dist. Court , 124 Nev. 245, 250-253, 182 P.3d 94 (2008) ; Matter of Adams v. Tersillo, 245 A.D.2d 446, 447, 666 N.Y.S.2d 203 (1997) ; Grigsby v. Coker, 904 S.W.2d 619, 621 (Tex....
  • Request a trial to view additional results

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