NESTER VS. DIST. CT. (GAMBLE)

Statutes cited

Key holdings

Practitioner summary

Standard of review. Mandamus is available to compel performance of a legally required act or to control an arbitrary or capricious exercise of discretion. IGT v. Second Jud. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); NRS 34.160. The writ will issue only where there is no plain, speedy, and adequate remedy at law. Washoe Med. Ctr. v. Second Jud. Dist. Ct., 122 Nev. 1298, 1301, 148 P.3d 790, 792 (2006); NRS 34.170. A manifest abuse of discretion is a "clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule." Cote v. Eighth Jud. Dist. Ct., 134 Nev. 247, 249, 416 P.3d 228, 232 (2018) (quoting State v. Eighth Jud. Dist. Ct. (Armstrong), 127 Nev. 927, 932, 267 P.3d 777, 780 (2011)). Justiciability. The Court entertained the petition because (1) Nester lacked an adequate post-judgment remedy — a later appeal could not cure harm to the children from an improperly open evidentiary hearing — and (2) the scope of public access to family law proceedings is a substantial issue of public policy and statewide importance. See Washoe Cnty. Hum. Servs. Agency v. Second Jud. Dist. Ct., 138 Nev., Adv. Op. 87, 521 P.3d 1199, 1203 (2022); Falconi, 140 Nev., Adv. Op. 8, 543 P.3d at 95. Doctrinal framework. In Falconi, the Court held NRS 125.080, EDCR 5.207, and EDCR 5.212 unconstitutional to the extent they mandated closure on party request and precluded judicial discretion, because the public has a First Amendment-anchored presumptive right of access to family law proceedings. Falconi, 543 P.3d at 99-100. Falconi did not, however, eliminate the district court's inherent authority to close proceedings; it adopted the Press-Enterprise v. Superior Court, 478 U.S. 1 (1986), test. To overcome the presumption of access, the moving party must show: "(1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest could be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest." Falconi, 543 P.3d at 99. Compelling interest authority. The Court canvassed authority recognizing that protecting minors from undue embarrassment, psychological harm, or physical harm can constitute a compelling interest, citing Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 607-08 (1982); In re The Spokesman-Review, 569 F. Supp. 2d 1095, 1101, 1103 (D. Idaho 2008); Allied Daily Newspapers of Washington v. Eikenberry, 848 P.2d 1258, 1261 (Wash. 1993); and Matter of Hughes County Action No. JUV 90-3, 452 N.W.2d 128, 133 (S.D. 1990). Although those cases involved minor sex-crime victims, the Court observed they "demonstrate that there can be a compelling interest in ultimately protecting children's mental health in particular cases, regardless of the source of the mental health concerns." Alternatives to closure. Courts must sua sponte consider alternatives even when not offered by the parties. United States v. Allen, 34 F.4th 789, 797 (9th Cir. 2022) (quoting Presley v. Georgia, 558 U.S. 209, 214 (2010)); see also Waller v. Georgia, 467 U.S. 39, 48-49 (1984) (suggesting in camera proceedings or partial closures). Alternatives must be "practical and feasible." See In re M.B., 819 A.2d 59, 65-66 (Pa. Super. Ct. 2003). Inherent authority. The Court reaffirmed that, per Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18 (1980), a court possesses inherent authority to "impose reasonable limitations on access to a trial" when required for the fair administration of justice. Falconi did not divest district courts of that inherent authority; it constrained the exercise of that authority by demanding the constitutional test be applied. Application. The district court committed a manifest abuse of discretion by (1) reading Falconi to deprive it of any discretion to close family law hearings, (2) concluding that no statute or rule provided a basis for closure, and (3) failing to weigh any of the three Falconi factors. The Court further rejected the district court's categorical reasoning that the prevalence of mental-health issues in custody cases makes closure impractical, noting that Falconi requires case-by-case analysis and that the prevalence of such considerations could equally militate in favor of closure in appropriate cases. The Court also disapproved a footnote in the district court's order suggesting that "appellate decisions routinely place a child's best interest secondary to other interests," characterizing the remark as "incorrect" and "inappropriate." Disposition and remand. The Court did not decide whether Nester articulated sufficient overriding interests; that determination remains with the district court. The writ directs the district court to vacate its order denying the motion to close and to reconsider the motion under the Falconi test. Alternate request not reached. Nester's alternate request that the Court at minimum order exclusion of cameras and recording devices was not reached because (1) it could be mooted by closure on remand and (2) Nester did not present cogent argument under SCR 230(2). See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006).

In plain language

This case arises from a divorce and child custody dispute between Leanne Nester and Cody Gamble. After their 2022 divorce, Gamble asked the family court to change the custody arrangement for their two minor children. While that request was pending, a press organization called Our Nevada Judges, Inc., asked the court for permission to bring cameras into the courtroom. The judge said yes. Nester then asked the judge to reconsider that decision and to close the hearing to the public altogether. She said she wanted to protect sensitive information about her children, including their medical records, Child Protective Services records, and a custody evaluation. The district judge denied her request. The judge read a recent Nevada Supreme Court decision, Falconi, as taking away his power to close family law hearings, and he reasoned that since mental health issues come up in nearly every custody case, it would be impractical to limit media access on that basis. Nester then asked the Nevada Supreme Court for a writ of mandamus, which is an order from a higher court telling a lower court to do something the law requires. The Supreme Court agreed to hear the petition because she had no other adequate remedy (waiting to appeal a final custody ruling could not undo any harm to the children if the hearing were wrongly opened) and because the issue affects courts statewide. The Supreme Court held that the district judge misread Falconi. Falconi did not strip family court judges of the power to close hearings. Instead, Falconi struck down rules that automatically closed family law cases without any judicial weighing, and it confirmed that the public has a presumptive right to attend court proceedings, including family law matters. But Falconi also recognized that this presumption can be overcome in particular cases. To close a hearing, a judge must apply a three-part test: (1) closure serves a compelling interest; (2) there is a substantial probability that the interest would be harmed without closure; and (3) no alternative short of closure would adequately protect that interest. The Supreme Court noted that protecting children from psychological or physical harm or undue embarrassment can, in some cases, qualify as a compelling interest. It also pointed out that judges should consider alternatives short of full closure, such as closing only the parts of a hearing that would expose sensitive information, or holding portions in camera (in the judge's chambers, away from the public). Because the district court did not apply the Falconi test at all and instead concluded it had no discretion to close the hearing, the Supreme Court held that the lower court abused its discretion. The Court ordered the district court to vacate its order and reconsider Nester's motion using the Falconi framework. The Supreme Court did not decide whether Nester's reasons are actually strong enough to justify closure; that decision is for the district court to make on remand.