Judge says openness ‘difficult to deal with’

Those who seek to evade and mislead rarely go straight to the point. At times they can take on the appearance of escaped convicts, holding their noses as they busily drag the stinking corpses of all kinds of dead fauna across their back trails in hopes of diverting the hounds they know to be in hot pursuit.

Clark County District Court Chief Judge Kathy Hardcastle sometimes resembled one of those busy escapees Wednesday, lacking little but the striped suit as she dragged one reeking red herring after another in front of the Senate Judiciary Committee in Carson City. She concocted every far-fetched scenario she could think of to derail Assembly Bill 519, a perfectly modest piece of legislation that would require judges to hold a public hearing and — hold onto your seats, now — state an actual reason for sealing a court case or records from public scrutiny.

Why, if this bill passes, Judge Hardcastle blubbered, photos of disfigured patients in medical liability cases could show up on the Internet! Criminals could identify undercover police officers from surveillance videotapes, passing around their photos! Someone could file false accusations against a teacher and — the brave judge on her white charger having been barred from hushing the whole thing up on a whim — those allegations could haunt that loyal child care worker for the rest of her life!

Um … what?

In one recent liability case here, photos of a disfigured patient were sealed, all right — but to protect the defendant doctors, not the plaintiffs, who wanted the public to see what had been done.

Meantime, judges have little power to stop anyone from circulating vicious rumors, against teachers or anyone else. Judges can and should throw out cases that have no merit, of course, long before they create any record that could be sealed. But more to the point, if a teacher is falsely accused, his or her best hope for exoneration lies in an open court process — the main damage to their reputation is generally done at the time a lawsuit is filed.

Judge Hardcastle asserts this bill would prevent judges from sealing any case or portion of a case. But that’s just plain wrong.

AB519 was prompted by a series of February Review-Journal articles that found 115 civil cases have been sealed by Clark County judges since 2000 — many for inadequate reasons or for no discernible reason whatsoever, some “sealed” so thoroughly that the public had no way to know the cases had even existed.

The proposed legislation merely requires judges to hold a public hearing to determine whether a preponderance of evidence indicates some public harm might be done by leaving court records open (the proper default setting), and to state that reason if and when they proceed to seal the entire case or any part thereof.

Judges could certainly continue to seal gruesome photos, embarrassing medical records — every red herring Judge Hardcastle managed to dredge up.

If there are reasons for sealing court records, “Let’s hear why and move on from there,” concurred Barry Smith, executive director of the Nevada Press Association.

In contrast, Judge Hardcastle mewed, “Why are we inviting strangers into the litigation? … Courts are the place for people to bring their private disputes to obtain an orderly resolution. Citizens should not be required to give up all their rights to privacy.”

No one is saying irrelevant facts should be exposed just to embarrass litigants or defendants. Other than that, though, it’s hard to imagine how Judge Hardcastle could be more wrong.

Parties with differences are free to hire private arbitrators, or to keep their concerns private by seeking guidance from their doctors or their pastors.

The default setting in the government courts is and should be just the opposite. The courts are funded by the public to do justice in public. The public — having delegated to these judges literally the power of life and death — has a right to watch and make sure justice is done, and to vote out any judge who fails to meet their standards of equity and propriety.

Once all her false trails are eliminated, Judge Hardcastle’s real objection is that she would find the levels of openness and accountability required by AB519 — which passed the Assembly on a vote of 39-2, by the way — inconvenient.

“It would be difficult to deal with,” she finally said.

Too bad.