FALCONI VS. DIST. CT. (MINTER)

Key holdings

Practitioner summary

The court exercised its discretion to entertain an original writ petition under NRS 34.160 and NRS 34.170, citing Gardner v. Eighth Jud. Dist. Ct., 133 Nev. 730, 405 P.3d 651 (2017); Int'l Game Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193, 179 P.3d 556 (2008); In re William J. Raggio Fam. Tr., 136 Nev. 172, 460 P.3d 969 (2020); and Washoe Cnty. Hum. Servs. Agency v. Second Jud. Dist. Ct., 138 Nev., Adv. Op. 87, 521 P.3d 1199 (2022). The court relied on the first-impression nature of the constitutional question, judicial economy, the public-policy importance of press and public access, the capable-of-repetition-yet-evading-review exception to mootness, and the press's lack of an adequate remedy at law (citing SCR 243 and Stephens Media, LLC v. Eighth Jud. Dist. Ct., 125 Nev. 849, 221 P.3d 1240 (2009)). Falconi's request was treated as one for mandamus. The court canvassed the operative provisions. NRS 125.080(1) directs the court in any divorce action, "upon demand of either party," to make the trial private; subsection (2) excludes all persons except parties, counsel, witnesses, parents, and siblings; and subsection (3) requires a hearing on good cause to exclude any of the listed persons. EDCR 5.212 mirrors that structure but, because it sits within Part V of the EDCR (family division and guardianships), the court read it to extend NRS 125.080's closure mechanism beyond divorce to all family court proceedings. EDCR 5.207 deems any "complaint for custody or similar pleading addressing child custody or support between unmarried parties" as proceeding under NRS Chapter 126, and NRS 126.211 requires that hearings under Chapter 126 be closed and the records sealed (the constitutionality of NRS 126.211 was not before the court). On the constitutional analysis, the court extended the right-of-access reasoning of Stephens Media, 125 Nev. 849, 221 P.3d 1240, beyond criminal proceedings. Drawing on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), Press-Enter. Co. v. Superior Ct. (Press-Enter. I), 464 U.S. 501 (1984), Press-Enter. Co. v. Superior Ct. (Press-Enter. II), 478 U.S. 1 (1986), El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993), Courthouse News Servs. v. Planet (Planet III), 947 F.3d 581 (9th Cir. 2020), Courthouse News Servs. v. Brown, 908 F.3d 1063 (7th Cir. 2018), Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984), Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16 (2d Cir. 1984), and NBC Subsidiary (KNBC-TV), Inc. v. Superior Ct., 980 P.2d 337 (Cal. 1999), the court applied the "experience and logic" test. On experience, the court held that the relevant inquiry under El Vocero is the national tradition for the type of proceeding, not Nevada's particular practice. The court found that family law proceedings have historically been open across the United States, citing In re Burkle, 37 Cal. Rptr. 3d 805 (Ct. App. 2006); In re Rajea T., 165 N.Y.S.3d 647 (App. Div. 2022); N.J. Div. of Youth and Fam. Servs. v. J.B., 576 A.2d 261 (N.J. 1990); Copeland v. Copeland, 930 So. 2d 940 (La. 2006); and France v. France, 705 S.E.2d 399 (N.C. Ct. App. 2011). On logic, the court relied on Planet III, Westmoreland, and Del Papa v. Steffen, 112 Nev. 369, 915 P.2d 245 (1996), reasoning that openness enhances factfinding integrity, fosters public confidence, supports informed judicial elections, and assists the many pro se litigants in family court. Having found the presumption of access attached, the court applied the Press-Enter. II, 478 U.S. at 13-14, framework requiring a showing that (1) closure serves a compelling interest, (2) there is a substantial probability the interest will be harmed absent closure, and (3) no adequate alternatives exist. The court further invoked the Nevada articulation in Feazell v. State, 111 Nev. 1446, 906 P.2d 727 (1995), requiring an overriding interest likely to be prejudiced, narrow tailoring, consideration of alternatives, and findings adequate to support closure. NRS 125.080, EDCR 5.207, and EDCR 5.212 fail because they mandate closure (automatic in EDCR 5.207, on demand under NRS 125.080 and EDCR 5.212) without permitting any case-specific judicial weighing or findings, and so cannot be narrowly tailored. The court acknowledged that family court closures will often be warranted, but emphasized case-by-case judicial decision-making. It held NRS 125.080, EDCR 5.207, and EDCR 5.212 unconstitutional to the extent they permit closed family court proceedings without the exercise of judicial discretion, and directed issuance of a writ of mandamus instructing the district court to vacate its order denying media access. The court's footnote 2 limits the holding's reach: "family court proceedings" as used in the opinion does not include juvenile proceedings under NRS Title 5. The court also declined to reach Falconi's argument that SCR 3(5)(c) and SCR 230 preempt the local rules. The dissent (Stiglich, J., joined by Parraguirre, J., and Bell, J.) would have held that the majority improperly treated family law as a monolith and rendered an advisory opinion by invalidating NRS 125.080 (a divorce statute) in a child custody case. The dissent traced divorce jurisdiction to the English ecclesiastical courts, citing Worthington v. Dist. Ct. of Second Jud. Dist., 37 Nev. 212, 142 P. 230 (1914); Schwab v. Schwab, 54 A. 653 (Md. 1903); Morgan v. Foretich, 521 A.2d 248 (D.C. 1987); Scott v. Scott, [1913] AC 417 (HL); and Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 (1978), arguing those courts did not feature an open public character. It argued child custody traditionally proceeded in chancery courts under a parens patriae model less bound by formal procedure, citing De Manneville v. De Manneville, 32 Eng. Rep. 762 (1804); Finlay v. Finlay, 148 N.E. 624 (N.Y. 1925); In re Morgan, 21 S.W. 1122 (Mo. 1893); State ex rel. Herrick v. Richardson, 40 N.H. 272 (1860); Pearce v. Pearce, 33 So. 883 (Ala. 1903); Helton v. Crawley, 41 N.W.2d 60 (Iowa 1950); People ex rel. Brooks v. Brooks, 35 Barb. 85 (N.Y. Gen. Term. 1861); People ex rel. Keator v. Moss, 39 N.Y.S. 690 (App. Div. 1896); Cowles v. Cowles, 8 Ill. (3 Gilm.) 435 (1846); Dumain v. Gwynne, 92 Mass. (10 Allen) 270 (1865); and In re Bort, 25 Kan. 308 (1881). Citing In re Adoption of H.Y.T., 458 So. 2d 1127 (Fla. 1984); Nat. Parents of J.B. v. Fla. Dep't of Child. & Fam. Servs., 780 So. 2d 6 (Fla. 2001); Mayer v. State, 523 So. 2d 1171 (Fla. Dist. Ct. App. 1988); People v. Connor, 9 Cal. Rptr. 3d 521 (Ct. App. 2004); T.N.G. v. Superior Ct., 484 P.2d 981 (Cal. 1971); and San Bernardino Cnty. Dep't of Pub. Soc. Servs. v. Superior Ct., 283 Cal. Rptr. 332 (Ct. App. 1991), the dissent argued that absent a presumption of openness, NRS 125.080 should be reviewed for rational basis, which it would survive. The dissent expressed concern that the majority's reasoning would call into question NRS 127.140(1) (adoption confidentiality) and NRS 128.090(5) (closure for termination-of-parental-rights proceedings).

In plain language

The case grew out of a dispute over whether the press and the public may attend Nevada family court hearings. Alexander Falconi, who runs a press outlet called Our Nevada Judges, asked an Eighth Judicial District Court judge for permission to record a child custody hearing involving Troy Minter and Jennifer Easler. The mother did not object; the father did. On the same day Falconi filed his media request, the trial judge sealed the case and the next day denied media access, citing two recently amended local court rules (EDCR 5.207 and EDCR 5.212) and a Nevada statute (NRS 125.080). Together, those provisions automatically close child custody cases and require closure of family court proceedings whenever a party asks for it - without the judge weighing whether closure is actually justified. Falconi went straight to the Nevada Supreme Court, asking it to issue a writ of mandamus - a court order directing the lower court to do something the law requires - to vacate the closure. The Supreme Court agreed to hear the petition because the constitutionality of these closure rules was a question of first impression, because access-to-court issues come up often but tend to evade review (the closed hearing has usually already happened by the time anyone can challenge it), and because the press generally cannot bring a direct appeal. On the merits, the court held that the public has a constitutional right of access to court proceedings, including civil and family law proceedings, not just criminal trials. Borrowing from a long line of federal cases, the court applied an "experience and logic" test: it asked whether this kind of proceeding has historically been open, and whether openness plays a meaningful role in how the proceeding works. The court answered yes to both. Family law proceedings have, across the United States, traditionally been open, and openness helps assure fairness, lets the public evaluate elected judges, and gives self-represented family law litigants a chance to see how cases are handled. Once that presumption of openness applies, a court can close a hearing only if closure is essential to a compelling interest, narrowly tailored, and supported by specific findings, after the judge considers alternatives. The problem with NRS 125.080, EDCR 5.207, and EDCR 5.212, the court said, is that they bypass that judicial weighing entirely - they require closure either automatically (in custody cases) or on a party's mere request (in family court generally). Because closure happens without the judge ever exercising discretion or making findings, the closures cannot be "narrowly tailored." The court therefore held those provisions unconstitutional to the extent they require closed family court proceedings without the exercise of judicial discretion. The court emphasized that closure of family court proceedings will still be appropriate in many cases - it just must be decided case by case, with the judge identifying the compelling interest and considering less-restrictive alternatives. The court directed that a writ of mandamus issue ordering the district court to vacate its order denying Falconi media access in the underlying child custody case. Three justices dissented, arguing that the majority treated all family law proceedings as if they shared a single tradition; that divorce historically arose in closed ecclesiastical courts in England, not in open common-law courts; that child custody disputes were handled in chancery, where the court acted as parens patriae and was traditionally not bound by formal open-court procedure; and that the holding could call into question other Nevada statutes that close adoption and parental-rights termination proceedings.