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2490 Calvin R. X.Dunlap, Esq. Nevada State Bar #2111 Monique Laxalt, Esq. Nevada State Bar # 1969 P.O. Box 3689, Reno, Nevada 89505 537 Ralston St., Reno,Nevada 89503 775 323-7790 Attorneys for Defendants

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR WASHOE COUNTY

JAMES ARTHUR GIBBONS, SR., Plaintiff,

MOTION FOR COURT DETERMINATION THAT THE ORDER SEALING THE FILE IN THIS MATTER AND CLOSING THE HEARINGS IS VOID AND THAT, AS APPLIED TO THE PLAINTIFF, THE GOVERNOR OF THE STATE OF NEVADA, A PUBLIC OFFICIAL, NRS 125.110 AND NRS125.080 ARE FACIALLY UNCONSTITUTIONAL

vs. THERESA DAWN SNELLING GIBBONS, JOHN DOES I THROUGH XX, to include Doe Individuals, corporations, limited liability companies, partnerships, trusts, limited partnerships and such other individuals or entities as may exist or be formed.

Defendants. ______________________________________/

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COMES NOW, Defendant Dawn GIBBONS, by and through her undersigned

attorneys, and Moves this Honorable Court for a determination and an Order finding and

declaring:

1) That the Order sealing this Court file and closing the hearings relating to

this matter, entered by the Honorable William Maddox in and for the County

of Carson City, is void and in violation of the Constitutional Rights of the

Defendant. 2) That NRS 125.110 and NRS 125.080, respectively, violate

every person’s Constitutional rights and Dawn Gibbons’ Constitutional

Rights, in this case, under the First, and Fourteenth Amendments of the

United States Constitution, and are in violation of the Constitution of the State

of Nevada, particularly when applied to the Public’s right to access to the

affairs of top State Officials, more particularly, the Governor of the State of

Nevada.

3) That those Statutes, relied upon by the Court, in granting Plaintiff’s

request to seal the Court files and to close the hearings are void and are

facially, in direct violation of the Constitutions of the United States and of the

State of Nevada.

POINTS AND AUTHORITIES

I

STATEMENT OF UNDISPUTED FACTS

At all relevant times, Defendant has been a resident of Washoe County, Nevada.

Defendant’s husband, James Arthur Gibbons Jr., (hereinafter sometimes referred to as

“Plaintiff”) also, is, by his own admission, a resident of Washoe County. He has filed for a

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divorce alleging that the parties are “incompatible.” Defendant has requested a Bill of

Particulars and a More Definite Statement relating to the grounds for divorce.

II

FACTS NOT ADMITTED BY PLAINTIFF

After more than twenty years of marriage, the Plaintiff has deserted, abandoned, and

has shunned his wife without justification for that behavior.

Truth, despite his disingenuous, shallow, and transparent protestations that his

relationship with another man’s wife is a mere friendship, his infatuation and involvement

with the other woman is the real, concealed and undisclosed reason for his voluntary

departure from the marriage and from the Mansion where he occasionally resided.

By his urgent, perhaps desperate Motion to seal the Court file and to prevent his

constituency, the Public, from learning the under oath truth, in the Court proceedings, he has

resorted to Statutes that, although well intentioned, are defective and were never intended to

protect the privacy of Public Officials, the persons whose privacy is completely or nearly

completely surrendered by seeking the spotlight that comes with public service that in turn

gives the Public the right to know all about their officials. Unfortunately, for the Plaintiff,

and for the public, those statutes were not crafted so as to pass Constitutional muster

Worse, his castaway wife, by the actions of the Plaintiff, was not even given an

opportunity to be heard, on the secrecy issue, while his handlers, spinmeisters and staff

wittingly, or unwittingly, as his tools, mislead the Public in vain attempts to preserve the

marginal favorable Public Opinion regarding him that might still exist. This all has been at

the expense of his wife’s good name and reputation.

III

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THE PRIMARY ISSUE IN THIS CASE

The question to be answered by this Court, at this time, is whether or not the holder

of the highest office in the State of Nevada, Governor, may make false and misleading

statements to the Public he serves, regarding his activities, regarding his use of public

property and resources and regarding his marital life and divorce action and then avoid

exposure of those falsehoods by use of or misuse of NRS 125.110 and NRS 125.080, to

conceal his deceit, which statutes, particularly when applied to him, absent a showing of

very good and compelling cause are “ facially Unconstitutional. “ (Emphasis Supplied)

As argued below, and as the Courts have repeatedly held, absent a showing of very

good and compelling cause, “the business of the Courts”, particularly as it relates to the

conduct of and litigation of Public Officials “is the property of the Public” . Any

unreasonable and arbitrary closing of the Courts or their files, particularly without a hearing

and findings of good cause, is per se Unconstitutional. The referenced statutes are both

patently “unreasonable” and require no “showing” or determination by the court that there is

any need to disregard the requirements of the respective Constitutions. (Emphasis Supplied)

IV

MRS. GIBBONS’ INTEREST AND THE PUBLIC’S INTEREST IN HAVING THIS MATTER

OPEN TO THE PUBLIC AND THE PRESS

Mrs. Gibbons has been repeatedly assailed by planted innuendo, untruths and half-

truths about her and her decades long marriage, while the Plaintiff, the source of the damage

to her reputation cowers behind a veil of secrecy and manufactures issues attempting to

embarrass her into submission with contrived issues such as the occupancy of the Mansion.

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(Occupation of the Mansion, like occupation of any residence shared by any couple is not a

matter of ownership or other entitlement, such as when a couple rents a home, but is a matter

to be decided by the Family Court on the usual basis, such as maintenance of the status quo

and such as the safety needs of and security of the occupants and other factors.)

Plaintiff has, by his filed claim that he and his wife are “incompatible” in marriage,

by other acts, statements, and innuendos, suggested that the marriage has failed due to some

fault on her part and/or due to her unwillingness to work on the marriage and to save the

marriage. That claim and all suggestions of that nature , are false and misleading and put her,

in a false and bad light. Without open proceedings and an open file and, without the truth

being told, publicly, her reputation is irreparably sullied and harmed.

Aside from his incivility, and aside from his Oath of Office to protect and defend the

laws of and Constitutions of the United States and of this great State, the Plaintiff has used

Unconstitutional Statutes to mislead the very Public that he serves.

It is so well accepted, and so well known that Judicial Notice can easily be taken of

the fact that Mr. Gibbons’ wife has been his greatest asset. She has worked relentlessly and

tirelessly to advance his career, and had stood by his side, at the most critical time in his

quest to be elected Governor.

For just one example, even when , after consuming copious amounts of alcohol, and

under the cover of darkness, in a garage in Las Vegas, the Plaintiff was accused of assaulting

a young woman, bearing a striking resemblance, to the “other woman” referenced, below,

that woman, too, like his wife now, was trashed and the Public was, again, misled. But, she

never had the opportunity of having a Public hearing with attendant cross-examination of

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this man so the truth would be told. This event was of universal interest to the media and

was widely covered by the press.

Further, there has been very widespread coverage of this matter in the press. See for

example the attached Elko newspaper editorial. Also, the Court can take judicial notice of

the fact that the Plaintiff publicly admitted to making a false statement on the affidavit/

application for renewal of his concealed weapons permit and related documents. That

statement was hastily made and was a false explanation of what had happened, designed to

defuse an imminent exposure of his having made one or more false statements on his

application. The reason for the Public’s interest in these and other matters is that the public

expects integrity in government and in their elected officials. As demonstrated below, the

Public’s right to know is Constitutionally protected in order to preserve our democracy and

our way of life. This Public interest is heightened when the subject of interest is one of the

most if not the most scandal ridden Governor in the history of this State. And, he has only

held the office for a year and a half. Mrs. Gibbons is entitled to her day in Court, in an open

court, not in a secret proceeding, but a public one that will provide her with a forum in which

to be publicly exonerated, and in which she can fix blame where it belongs, on the shoulders

of the woman who the has, for years, stalked the man who could give her the public persona

and prestige, that, apparently, she craves, and, for which she is willing to, concurrently,

abandon her husband. And, he who has succumbed to the seduction of those wiles, should

not be allowed to fix the blame, for the failure of the marriage, on anyone else but on the

marital intruder and on himself. Even the Plaintiff acknowledges his long-term involvement

with her, but claims she is just a friend. Yet, oddly, despite having vowed to not comment on

the details of the breakup of the marriage, he specially breaks his vow of silence to defend

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her and his many many types of and instances of involvement with her.(See his denial in

response to the Elko Newspaper article about him both of which are attached. He doth

protest too much that which if not true needs no rebuttal.

After all, it is only a coincidence that she moved out of her marital home too and is

seeking a divorce at the same time he is, too. Note that he doesn’t mention that fact or deny

it in his rebuttal. Right! Friends always empathize with friends by mirroring their friends’

divorce behavior. Note, also, that he hypocritically feigns reverence for the First

Amendment while denying the public an opportunity to hear the truth when he is examined

under oath and is confronted with the evidence.

Mrs. Gibbons, the person who has sacrificed the most and who has given her all to

this man, should not be dismissed as if she were equally to blame, when under the

circumstances it can be demonstrated on the record and to the public that she is blameless

and that lust is the real villain here. To deprive her of the opportunity to set the record

straight and to debunk the whispers and the propaganda, would be a grave injustice to not

only her, but to the remaining trusting and believing public, if any, who expect integrity and

truth from their elected officials.

In short, by not stepping up and by not candidly admitting his fawning involvement

with his frequent bar, lunch, dinner, and even grocery store companion, he has brought the

spotlight down upon himself and upon the reason for the divorce. Indeed, he has, through

his counsel, impliedly if not directly, threatened retribution against Mrs. Gibbons’ counsel

should the truth of his extracurricular activities become an issue in this case. Counsel simply

will not be cowed by such cowardly threats and has communicated that fact to the Plaintiff

and to all who have urged that this matter be quietly and secretly settled at the expense of the

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rights of Mrs. Gibbons. Aside from the blame, for the failure of this marriage, the character

of and credibility of those who serve is at issue, and bears upon whether or not adequate

attention is being paid to the many pressing public issues of our time, in the State and in this

Nation.

Consistent with a pattern of concealment and misdirection, after phony and

misleading statements about his marriage and the cause of its failure were made to the Public

by his handlers and spokespersons, a Complaint for divorce was filed by the Plaintiff at 4:30

p.m. on Friday, May 2, 2008, in Carson City County. The filing was obviously timed to

minimize the media exposure and Public Notice that the Plaintiff, Governor of Nevada, was

the moving party seeking to divorce his wife of more than 20 years.

Next, Plaintiff, by means of a disingenuous claimed urgency obtained an ex parte

Order to seal the file and proceedings, and has thereby sought to conceal the real reason for

filing this action from the Public, his constituency.

Plaintiff alleged facts in his Complaint clearly establishing Venue in Washoe County,

but, notwithstanding those allegations, engaged in “forum shopping” by improperly and

erroneously filing the case in the First Judicial District Court causing the Defendant to

unnecessarily incur legal fees and additional unnecessary costs to remove the matter to

the proper Venue, Washoe County.

After Defendant, incurred the unnecessary costs and timely filed her Demand and

Motion to Change Venue, respectively, Plaintiff’s counsel, on behalf of the Plaintiff,

consented to the transfer of the case to Washoe County, the proper venue for this matter.

Although Counsel is not privy to the reasons why Plaintiff filed the matter in the First

Judicial District, while he was pleading facts clearly placing Venue in the Second Judicial

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District, it should be noted that by filing in Carson City County, he had a 50/50 chance of

drawing a Judge whom he had recently appointed. This would have required that Defendant

waste her only peremptory challenge of a judge if the appointee did not disqualify himself.

On May 5, 2008, Plaintiff’s ex parte Motion to seal the file and for closed Court

hearings was granted, before the Defendant was even properly served with the papers,

thereby depriving his wife of any opportuinity to be heard or to challenge these patently

defective Statutes that were exploited by the Plaintiff to avoid public scrutiny of his actions

and character.

V

THE PUBLIC’S PROPERTY RIGHT TO AN OPEN JUDICIAL SYSTEM IS DEEPLY ROOTED IN OUR HISTORY

The Supreme Court in Richmond Newspapers, Inc. v. Commonwealth of Virginia,

448 U.S. 555 (1980), held, in no uncertain terms, that the right to a public trial in

noncriminal proceedings is equal to that in criminal proceedings discussed our rich

history of open access to the court and its proceedings. (Emphasis Supplied)

“In guaranteeing freedoms such as those of speech and press, the First Amendment

can be read as protecting the right of everyone to attend trials so as to give meaning to those

explicit guarantees; the First Amendment right to receive information and ideas means, in the

context of trials, that the guarantees of speech and press, standing alone, prohibit the

government from summarily closing courtroom doors which had long been open to the

public at the time the First Amendment was adopted.” Richmond at 556. (Emphasis

Supplied)

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“[T]he First Amendment—of itself and as applied to the States through the

Fourteenth Amendment—secures the public a right of access to trial proceedings, and that,

without agreement of the trial judge and the parties, both of them, cannot constitutionally

close a trial to the public. Historically and functionally, open trials have been closely

associated with the development of the fundamental procedure of trial by jury, and trial

access assumes structural importance in this Nation’s government of laws by assuring the

public that procedural rights are respected and that justice is afforded equally, by serving

as an effective restraint on possible abuse of judicial power, and by aiding the accuracy

of the trial factfinding process . . . the First and Fourteenth Amendments clearly give

the press and the public a right of access to trials, civil as well as criminal.” Richmond

at 557 (Emphasis added).

The United States Supreme Court spoke of the historical basis for open trials, thusly.

“[O]ne of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . . . appears to have been the rule in England from time immemorial . . . That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner.” Richmond at 566-567. (Emphasis Supplied)

“Both Hale in the 17th century and Blackstone in the 18th century saw the importance

of openness to the proper functioning of a trial; it gave assurance that the proceedings

were conducted fairly to all concerned, and it discouraged perjury, the misconduct of

participants, and decisions based on secret bias or partiality. . . Free access to the

courts is universally granted.” Richmond at 569-570. (Emphasis Supplied)

“The Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded

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as an important aspect of the process itself; the conduct of trials ‘before as many of the people as chuse to attend’ was regarded as one of ‘the inestimable advantages of a free English constitution of government’.” Richmond at 575.

The United States Supreme Court upheld the right to a public trial, and it stated

unequivocally that there was no right to a private trial. (Emphasis Supplied) (See more

discussion below)

VI

THE APPLICABLE STATUTES THAT ARE FACIALLY UNCONSTITUTIONAL NRS 125.080 provides that Trial of a divorce action may be

private as follows” “[I]n any action for divorce the court shall, upon demand of either

party, direct that the trial and issue or issues of fact joined therein be private,

and upon such direction all persons shall be excluded from the court or

chambers wherein the action is tried, except the officers of the court, the

parties, and their witnesses and counsel

NRS 125.110 similarly provides that all but certain records in the Court file

shall be sealed upon application of one of the parties.

But, as demonstrated below, NRS 125.110 and NRS 125.080 are in direct violation of

all established Constitutional Law. The principles and rules discussed below apply all the

more to the sealing of the file.

For the following reasons, particularly when applied to Public Officials, such

as this Plaintiff, the Governor of the State of Nevada, these Statutes are clearly violative of

the United States Constitution and of the Constitution of the State of Nevada.

VII

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THE REQUIREMENT THAT COURT HEARINGS, CRIMINAL AND CIVIL BE OPEN TO THE PUBLIC ABSENT EXTRAORDINARY

CIRCUMSTANCES OR NEED

Although case law, as well as the Sixth Amendment of the United States

Constitution, usually speaks to the requirement of public hearing for criminal proceedings,

even against the defendant’s or victim’s request for privacy, these cases are routinely applied

to civil litigation. The Fourteenth Amendment of the United States Constitution provides, in

part, “nor shall any State deprive any person of life, liberty, or property without due process

of law; nor deny to any person within its jurisdiction the equal protection of the laws”

(emphasis added).

In a multitude of press cases, the United States Supreme Court has held that

“Freedom of discussion should be given the widest range compatible with the essential

requirements of the fair and orderly administration of justice.” Craig v. Henry, 331 U.S.

367, 373 (1947). In Craig, the Court further stated that

“[A] trial is a public event. What transpires in the Courtroom is public property.” Craig at 374. (Emphasis Supplied)

Of course, there is no greater public property right in Court proceedings or need for

public scrutiny of Judicial proceedings than when the Plaintiff holds one of the highest

Offices in a State; in this case, Governor of the State of Nevada, and then seeks to bar the

press and the public from the contents of the Court file and from the Court Proceedings, over

the objection of the other party, particularly without a right to be heard on the matter.

The “public property” ownership of this Judicial proceeding is particularly important

and inviolate when the politically weaker person, the Defendant, the First Lady of the State,

is subjected to false, misleading, defamatory rumor mongering, spin doctored press releases,

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and retaliatory acts designed to humiliate her and intimidate her, the victim in this matter,

from seeking and obtaining that which she is entitled to, under the laws of the State of

Nevada and in this divorce action.

Aside from the interests of the individual litigants, the very integrity of the

legal system is dependent upon the public’s right to view and monitor its Courts in order to

assure that Justice is done. The Court in Craig continued on to discuss the effect of criticism

of the judges, and emphatically stated that: discussion of judicial conduct “is appropriate,

if not necessary.” Craig at 377.

When it was suggested that private litigation was somehow distinguishable from

other litigation, the United States Supreme Court said,

“The thought apparently is that the range of permissible comment is greater where the pending case generates a public concern. The nature of the case may, of course, be relevant in determining whether the clear and present danger test is satisfied. But the rule in the Bridges and Pennekamp cases is fashioned to serve the needs of all litigation, not merely select types of pending cases.” Craig at 378. (Emphasis Supplied)

In Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596

(1982), while speaking mainly to criminal trials, the bases for the United States Supreme

Court’s decision apply equally to noncriminal proceedings. The United States Supreme

Court stated that the First Amendment is “broad enough to encompass those rights that,

while not unambiguously enumerated in the very terms of the Amendment, are, nonetheless,

necessary to the enjoyment of other First Amendment rights.” Globe at 604.

The Fourteenth Amendment speaks of deprivation of life, liberty and property with

equal force.

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Globe discusses two features of the criminal justice system, both of which are

applicable to noncriminal proceedings as well. First, the tradition of open hearings, and this

“tradition of accessibility implies the favorable judgment of experience”. Globe at 605.

Second, “the right of access to . . . trials plays a particularly significant role in the

functioning of the judicial process and the government as a whole. “

Public scrutiny of a . . . trial enhances the quality and safeguards the integrity of the fact finding process, with the benefits to both the defendant and to society as a whole. Moreover, public access to the . . . trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. And in the broadest terms, public access to . . . trials permits the public to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.” Globe at 606. (Emphasis Supplied)

In Press-Enterprise Company v. Superior Court of California, Riverside County, 464

U.S. 501 (1984), the United States Supreme Court went into great detail about the history of

open trials. Their recitation of the history included noncriminal proceedings, and the United

States Supreme Court stated that the

“value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the . . . trial and the appearance of fairness so essential to public confidence in the system . . . Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.” Press-Enterprises at 508-509 (emphasis added).

“The presumption of openness may be overcome only by an overriding interest

based on findings that closure is essential to preserve higher values and is narrowly

tailored to serve that interest. The interest is to be articulated along with findings specific

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enough that a reviewing court can determine whether the closure order was properly

entered.” Press-Enterprises at 510. (Emphasis Supplied)

One need only look at what has taken place in the present case to have a clear

understanding of the danger of covert actions such as those here. Plaintiff has not been

required to demonstrate any right to or need for secrecy. (And even if there was such a

requirement, no Constitutionally adequate need could be demonstrated.) (Emphasis

Supplied)

Indeed, the Defendant not only had no right or opportunity to be heard on issues such

as those raised herein, but, indeed, had not even yet been served when this ex parte motion,

with the secrecy being imposed on an expedited basis. Apparently, according to the

Governor, even these important Constitutional issues take a backseat to his need to conceal

his case and conduct from the Public, some of whom once rested their trust in him.

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th

1178 [86 Cal. Rptr. 2d 778, 980 P.2d 337] (NBC Subsidiary), the California Supreme Court

held that "in general, the First Amendment provides a right of access to ordinary civil trials

and proceedings, [and] that constitutional standards governing closure of trial

proceedings apply in the civil setting ... ." ( Id. at p. 1212.) (Emphasis Supplied)

After an extensive examination of federal and state precedents, the court concluded:

"it is clear today that substantive courtroom proceedings in ordinary civil cases are 'presumptively open' ... ." ( Id. at p. 1217.)

The court held that the statute under review Code of Civil Procedure section 124

governing public court sittings--

"must be interpreted to preclude closure of proceedings that satisfy the ... historical tradition/utility considerations" applied by the United

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States Supreme Court in Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596 [73 L. Ed. 2d 248, 102 S. Ct. 2613] (Globe). ( NBC Subsidiary, supra, 20 Cal.4th at p. 1217.)

The presumption of openness, or preclusion of closure, in ordinary civil cases

applies unless the trial court

(1) provides notice of a contemplated closure, and

(2) holds a hearing and expressly finds that:

(i) there exists an overriding interest supporting closure and/or sealing;

(ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing;

(iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and

(iv) there is no less restrictive means of achieving the overriding interest." ( NBC Subsidiary, supra, 20 Cal.4th at pp. 1217-1218, fns. omitted.) (Emphasis Supplied)

When a high public official is involved, then the public interest is at its strongest and

there must be a balancing of the Public’s right to know with the rights of each party to

privacy in order to pass Constitutional muster. Generally, mandatory sealing and closure

language in an applicable statute immediately sounds the alarm that warns of Constitutional

infirmity.

These principles of the Public’s right to know are not unique. In other fields of law,

in order to protect the Public’s right to know, special rules apply when “Public Officials” or

“Public Figures” are involved. Such is the case in the law of defamation relating to a public

official or public figure. To wit, otherwise defamatory statements or publications, usually

actionable are not actionable, when they involve and are directed at Public Officials and

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Public Figures, unless actual malice can be demonstrated. Again, Historically, the Courts err

on the side of protecting the Public’s right to know even when the statements or publications

are determined to false. VIII

A SIMILAR AND CONSTITUTIONALLY DEFECTIVE DIVORCE STATUTE WAS DETERMINED TO BE UNCONSTITUTIONAL

IN OUR SISTER STATE, CALIFORNIA, BECAUSE IT TOO DID NOT, ON ITS FACE, MEET CONSTITUTIONAL REQUIREMENTS AND STANDARDS

In a California Divorce case, In re the Marriage of JANET E. and RONALD W.

BURKLE. JANET E. BURKLE, Respondent, v. RONALD W. BURKLE, Appellant; LOS

ANGELES TIMES COMMUNICATIONS LLC et al.,. 135 Cal. App. 4th 1045; 37 Cal. Rptr.

3d 805; 2006 Cal. App. LEXIS 51; 34 (January 20, 2006) The Los Angeles Times and The

Associated Press filed a request to intervene for the purpose of opposing Mr. Burkle's ex

parte application, to seal records and proceedings arguing that the press and the public have

a presumptive right of access to records and proceedings in divorce cases, and that California

Family Code section 2024.6 is unconstitutional because it requires trial courts to seal divorce

court records without providing for the document-by-document analysis and the threshold

inquiries required by the First Amendment.

California Family Code section 2024.6 required a court, upon the request of a party

to a divorce proceeding, to seal any pleading that lists and provides the location or

identifying information about the financial assets and liabilities of the parties. (The

mandatory language giving the ex parte right to seal to one party is similar to the mandatory

language of the Nevada Statutes allowing ex parte sealing and Court closure.) (Emphasis

Supplied)

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The Court concluded that section 2024.6 was unconstitutional on its face. The

Court stated that the First Amendment provides a right of access to court records in divorce

proceedings. While the privacy interests protected by section 2024.6 may override the First

Amendment right of access, in an appropriate case, the Court held that the statute is not

narrowly tailored to serve overriding privacy interests. Because less restrictive means exist to

achieve the statutory objective, section 2024.6, according to the Court, operated as an undue

burden on the First Amendment right of public access to court records.

Balancing "a traditional access to court files in dissolution proceedings and the right

to privacy," the trial court ruled that section 2024.6 violated the First Amendment:

"The court finds that while there is a compelling state interest underpinning Family Code § 2024.6, it is not narrowly tailored to effectuate that interest and unduly burdens the competing Constitutional right of public access to civil court proceedings and records. (Emphasis Supplied)

The court concluded that the statute is overbroad because it mandates sealing entire

pleadings to protect a limited class of specified material. The court also observed that the

defect is readily curable by the Legislature. Here, the entire file with little left public is

subject to sealing without any determination of need and without any examination of the

interests that allegedly compete with the First Amendment Rights being abridged.

The trial court explained it had no difficulty finding that a compelling governmental

interest underpinned section 2024.6, as the right of privacy is guaranteed by the California

Constitution. However, it observed there was no compelling interest in streamlining the

process of sealing confidential information "to the point that the court is totally

divested of discretion in all instances." (Emphasis Supplied)

IX

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BROAD AND UNRESTRICTED MANDATORY SEALING LANGUAGE IS PER SE UNCONSTITUTIONAL AND ABSENT A PROPER SHOWING

CANNOT, BY IMPLICATION, BE SAVED FROM BEING DECLARED VOID

Responding to Mr. Burkle's argument that discretion should be implied, consistent

with the rule that doubts should be resolved in favor of constitutionality, the court observed

that "there is not even a glimmer" that the Legislature intended court discretion. (In

this case, likewise, Judge Maddox stated that he had no discretion but to seal and bar

access to the proceeding because of the “shall” language in the Statutes)1 It further

stated, "Protection of the competing right of public access requires some discretion on a

case-by-case basis before entire pleadings are sealed on behalf of some small portion within

them." (Emphasis Supplied)

The court continued:

"The statute is not unconstitutional merely because it deprives the court of discretion as to what should be sealed, but because as enacted it seals the entirety of a pleading if any of the specified materials are included in it. Thus, a 100 page pleading filled with legal argument of genuine public interest must be sealed if a party's home address appears even in a footnote. Absent judicial scrutiny prior to such sealing, § 2024.6 could indeed become an instrument of gamesmanship. The statute cannot be deemed 'narrowly tailored' because it necessarily will seal material in which there is no overriding right to privacy." (Emphasis Supplied)

1 See the affidavit of Counsel attached hereto setting forth the Judge’s statements

during a phone conference with both Counsel discussing the ex parte sealing without notice and an opportunity to be heard.

The Court thus illustrated the absurdity of such Statutes and the unnecessary and

arbitrary sealing and closing of access to matters of public interest and of legitimate public

concern. The broad brush sealing authorized in the applicable Nevada Statutes is even

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more blatantly Unconstitutional in light of the fact that, unlike the California Statue, there

is not even a particular privacy interest such as confidential financial information

identified in either Statute.

The United States Supreme Court in Globe Newspaper Co. v. Superior Court (1982)

457 U.S. 596 [73 L. Ed. 2d 248, 102 S. Ct. 2613] (Globe). ( NBC Subsidiary, supra, 20

Cal.4th at p. 1217.) Stated that the presumption of openness, or preclusion of closure, in

ordinary civil cases applies unless the trial court

(1) provides notice of a contemplated closure,2 and

(2) holds a hearing3 and expressly finds that:

"(i) there exists an overriding interest supporting closure and/or sealing;4 (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing;5

2 There is no provision for and no notice was or is given by the terms of the Nevada

Statues.

3 There is not provision for and no hearing is given or allowed under the terms of the Nevada Statute.

4 Thee is no basis for any overriding interest, much less any interest at all that is articulated in the Statutes.

5 Absent any of the foregoing, there can be no such determination of prejudice or

21

(iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest;6 and

not

6 Tailoring? The baggy tent is virtually all inclusive without regard to what is concealed, and no examination of the bona fides of the concealment.

22

(iv) there is no less restrictive means of achieving the overriding interest."7 (Emphasis Supplied)

X

DIVORCE PROCEEDINGS ENJOY NO SPECIAL STATUS AND ANY SEALING OR ACCESS BARRING STATUTES MUST COMPLY

WITH THE SAME RULES AND PRINCIPLES APPLICABLE TO ALL CRIMINAL AND CIVIL PROCEEDINGS.

The Court, in the California case, concluded as follows: “We conclude the

presumption of openness applies, and section 2024.6 is unconstitutional.”

“Specifically, we conclude that: --In general, the same First Amendment right of access applicable in ordinary civil cases applies in divorce proceedings. --No meaningful distinction may be drawn between the right of access to courtroom proceedings and the right of access to court records that are the foundation of and form the adjudicatory basis for those proceedings. Consequently, court records in divorce cases, as in other civil cases, are presumptively open.” (Emphasis Supplied)

The Court stated that, --When a statute mandates sealing presumptively open court

records in divorce cases, as section 2024.6 does, the state's justification for the mandatory sealing rule must be scrutinized to determine whether the statute conforms to the requirements enunciated in NBC Subsidiary. That is, a mandatory sealing rule is permissible only if : 1) an overriding interest supports the sealing rule;

2) a substantial probability of prejudice to that interest exists absent the sealing;

7 These Statutes could not be more restrictive.

3) the sealing required by the statute is narrowly tailored to serve the overriding interest; and

4) no less restrictive means is available to achieve the overriding interest. (NBC Subsidiary,supra, 20 Cal.4th at pp. 1217-1218.) (Emphasis Supplied)

23

The Nevada Statutes are facially Unconstitutional unless they can be interpreted to

allow the above referenced scrutiny and findings.

In coming to the conclusion that the same First Amendment Right of access

applicable in “ordinary civil cases” applies in divorce proceedings, the California Court

observed that the Supreme Court ended in NBC Subsidiary, with the now settled principle

that substantive courtroom proceedings in ordinary civil cases are presumptively open. The

California court stated that it reached that conclusion after exhaustively analyzing federal

and state precedents on the First Amendment right of access.

The Court said, as NBC Subsidiary instructs, the First Amendment generally

precludes the closure of proceedings that satisfy the high court's "historical tradition/utility

considerations ... ." (NBC Subsidiary, supra, 20 Cal.4th at p. 1217.) These considerations,

first identified in Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 [65 L. Ed. 2d

973, 100 S. Ct. 2814] (Richmond Newspapers), were confirmed in Globe, supra, 457 U.S.

596. Globe, which established the First Amendment right of access to criminal trials,

considering that (1) the criminal trial historically was open to the press and the general

public, a "uniform rule of openness" (the historical tradition), and (2) the institutional value

of the open criminal trial was "recognized in both logic and experience" (the utility

consideration). (Globe, supra, at pp. 605-606.)

After analyzing the reasoning in Globe and subsequent high court cases, the

California Court observed that: "[T]he high court has not accepted review of any of the

numerous lower court cases that have found a general First Amendment right of access

to civil proceedings, and we have not found a single lower court case holding that

24

generally there is no First Amendment right of access to civil proceedings.” The Court

said that “Under these circumstances, we believe there is no reason to doubt that, in general,

the First Amendment right of access applies to civil proceedings as well as to criminal

proceedings." ( NBC Subsidiary, supra, 20 Cal.4th at p. 1209.) The court stated its belief that

"the public has an interest, in all civil cases, in observing and assessing the performance of

its public judicial system, and that interest strongly supports a general right of access in

ordinary civil cases." ( NBC Subsidiary, supra, 20 Cal.4th at p. 1210.) (Emphasis Supplied)

In short, the court concluded that civil proceedings, like criminal proceedings,

satisfied the high court's two considerations: historical tradition and the utility or institutional

value of open trials. "[T]he dicta in the high court criminal cases, and the clear holdings of

numerous civil progeny of those cases, convincingly conclude that the utilitarian values

supporting public criminal trials and proceedings apply with at least equal force in the

25

context of ordinary civil trials and proceedings." (NBC Subsidiary, supra, at p. 1211, fn.

omitted.) 8

8 The Supreme Court observed that public scrutiny of criminal trials safeguarded

the integrity of the factfinding process; fostered an appearance of fairness, heightening respect for the judicial process; and permitted the public to participate in and serve as a check on the judicial process, an essential component of the structure of self-government. ( Globe, supra, 457 U.S. at p. 606.)

The Supreme Court expressly rejected the contention that First Amendment access rights should be limited to those civil trials or proceedings that directly involve the public or are deemed newsworthy to a significant portion of the public. ( NBC Subsidiary, supra, 20 Cal.4th at p. 1210.)

See, e.g., Richmond Newspapers, supra, 448 U.S. at page 580, footnote 17 ["[w]hether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open"].

The Court stated that the question for this court is whether divorce

proceedings are sufficiently different from "ordinary civil trials and proceedings" to

justify a different conclusion on the right of access. “We do not think so”.

26

“To be sure, the Supreme Court in NBC Subsidiary stated that its opinion addressed the right of access to "ordinary civil proceedings in general, and not any right of access to particular proceedings governed by specific statutes." (NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn. 30.) As to those proceedings, footnote 30 referred to differing opinions from other courts in cases involving parental termination proceedings and juvenile proceedings, and listed the Family Code, as well as the Code of Civil Procedure and the Welfare and Institutions Code, as providing for the closure of certain civil proceedings. (NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn. 30.) While Mr. Burkle relies on footnote 30 to conclude that NBC Subsidiary requirements do not apply to divorce proceedings, we do not agree. The Supreme Court's care in confining its decision to the case at hand, and its mention of the Family Code among statutes that provide for closure of certain proceedings, does not portend or imply that divorce proceedings are not among the ordinary civil proceedings that are presumptively open. The court simply did not address that question.”

A Court in New Jersey held that the First Amendment right of access applies to parental

termination proceedings and that per se rules of closure were inappropriate (Div. of

Youth & Fam. Serv. v. J.B. (1990) 120 N.J. 112 [576 A.2d 261]), and a California case

declining to recognize such a right in juvenile dependency proceedings, absent

compulsion by the high court. ( San Bernardino County Dept. of Public Social Services v.

Superior Court (1991) 232 Cal. App. 3d 188 [283 Cal. Rptr. 332].) (Emphasis Supplied)

The Court opined that to determine whether divorce proceedings are presumptively open,

we follow the principles enunciated by the Supreme Court in NBC Subsidiary: proceedings that

satisfy the high court's "historical tradition/utility considerations" are presumptively open. ( NBC

Subsidiary, supra, 20 Cal.4th at p. 1217.)

It said:

We therefore assess those two considerations. First, as NBC Subsidiary directs, we look to historical tradition, and find nothing

to suggest that, in general, civil trials in divorce cases have not historically been open to the public just as any other civil trial. To be sure, section 214 of the Family Code provides an exception to the general statutory rule that the sittings

27

of every court are to be public. (Code of Civ. Proc., § 124.) Section 214 authorizes the court, "when it considers it necessary in the interests of justice and the persons involved, [to] direct the trial of any issue of fact joined in a proceeding under this code to be private ... ." Section 214, however, is obviously the exception, not the general rule, in divorce cases. We do not doubt that divorce cases in particular and family law in general may produce a greater abundance of situations in which it is appropriate, "in the interests of justice and the persons involved," to try a particular fact issue privately. The existence of an expressly limited exception to a general rule, however, does not obviate the general rule. The Court went on to state: “We are not aware of, and Mr. Burkle does not offer, any cases or commentary supporting the notion that divorce proceedings have ever been generally excepted from California's historical tradition of presumptively open civil proceedings.” Indeed, the Court observed that the context of court records, which were addressed. California courts have made the point virtually unassailable:

"[N]o California case holds or even hints that the principles articulated in these cases [the generally open nature of court files] vary when family law litigation is involved. ... In general, court files in family law cases should be treated no differently than the court files in any other cases for purposes of considering the appropriateness of granting a motion to seal any of those files." (In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1413-1414 [77 Cal. Rptr. 2d 395], fn. omitted (Lechowick).) (Emphasis Supplied)

In accordance with Globe and NBC Subsidiary, the Court looked to the utility

considerations--"the institutional value of the open ... trial" (Globe, supra, 457 U.S. at p. 606)--

enunciated in those cases. NBC Subsidiary concluded that "the utilitarian values supporting

public criminal trials and proceedings apply with at least equal force in the context of ordinary

civil trials and proceedings." (NBC Subsidiary, supra, at p. 1211, fn. omitted.) NBC Subsidiary

mentioned a Court of Appeal decision "not[ing] the utility of open access in civil cases," and

referred to probate and juvenile court cases. (Id. at p. 1211, fn. 28; see Brian W. v. Superior

Court (1978) 20 Cal.3d 618, 625, 622-623 [143 Cal. Rptr. 717, 574 P.2d 788] [upholding

juvenile court's discretion to permit press attendance at a fitness hearing and observing that the

high court has "repeatedly recognized the salutary function served by the press in encouraging

the fairness of trials and subjecting the administration of justice to the beneficial effects of

28

public scrutiny"; also describing a commission report concerning the benefit of " 'greater

participation by the press' " in juvenile court proceedings]; Estate of Hearst (1977) 67 Cal. App.

3d 777, 784 [136 Cal. Rptr. 821] [probate case stating that "[i]f public court business is

conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency,

prejudice, and favoritism"; "Anglo-American jurisprudence a favors a policy of maximum

public access to proceedings and records of judicial tribunals"].) As the Supreme Court further

observed: "[Public access plays an important and specific structural role in the conduct of [civil

trials]. Public access to civil proceedings serves to (i) demonstrate that justice is meted out

fairly, thereby promoting public confidence in such governmental proceedings; (ii) provide a

means by which citizens scrutinize and check the use and possible abuse of judicial power; and

(iii) enhance the truthfinding function of the proceeding." (NBC Subsidiary, supra, 20 Cal.4th at

p. 1219.) Long before NBC Subsidiary, the high court observed that "in some civil cases the

public interest in access, and the salutary effect of publicity, may be as strong as, or stronger

than, in most criminal cases." (Gannett Co. v. DePasquale (1979) 443 U.S. 368, 386-387, fn. 15

[61 L. Ed. 2d 608, 99 S. Ct. 2898].) We are unable to discern, from policy and precedent, any

principled basis for concluding that the same utilitarian values that apply "with at least equal

force" in criminal and civil trials (NBC Subsidiary, supra, 20 Cal.4th at p. 1211) somehow lose

their potency in the context of divorce proceedings.

Mr. Burkle insisted divorce cases are not ordinary civil proceedings. Consequently, the

presumption of openness does not apply and NBC Subsidiary's four-part test should not be used.

The Court said that his argument missed the mark for two reasons. First, it ignored entirely the

analysis mandated by Globe and NBC Subsidiary for determining whether court proceedings are

presumptively open: whether they "satisfy the high court's historical tradition/utility

29

considerations" just discussed. (NBC Subsidiary, supra, 20 Cal.4th at p. 1217.) Second, the

contention that family law proceedings have their own rules and may be considered sui generis

is correct, but irrelevant. The same may be said of criminal proceedings and probate

proceedings, which are nonetheless presumptively open. ( Globe, supra, 457 U.S. 596; see

Estate of Hearst, supra, 67 Cal. App. 3d at p. 784 ["[a]bsent strong countervailing reasons, the

public has a legitimate interest and right of general access to court records, one of special

importance when probate involves a large estate with on-going long-term trusts which reputedly

administer and control a major publishing empire"].)

The Court noted: First, Mr. Burkle argues that "financial privacy" is "an 'inalienable right'

now enshrined in the California Constitution" and was not at issue in NBC Subsidiary. 18

Moreover, when the California Constitution was amended in 2004 to expressly provide for the

broad construction of statutes furthering the people's right of access to information concerning

the conduct of the people's business, the amendment specifically provided that it did not modify

the constitutional right of privacy or affect the construction of any statute protecting the right to

privacy. 19 From this, Mr. Burkle deduces the NBC Subsidiary test should not be used to

evaluate the constitutionality of section 2024.6. We do not agree. [**818] No authority

supports the notion that the constitutional right of privacy is to be treated differently from any

other potentially overriding interest for purposes of First Amendment analysis. NBC Subsidiary

did not involve the right to privacy, but it implicated the right to a fair and impartial jury in civil

proceedings. Other "overriding interests" analyzed by the courts have been premised upon rights

of constitutional dimension. ( Globe, supra, 457 U.S. 596 [protection of minor victims of sex

crimes from further trauma and embarrassment]; Press-Enterprise Co. v. Superior Court of Cal.

(1984) 464 U.S. 501, 512 [78 L. Ed. 2d 629, 104 S. Ct. 819] (Press-Enterprise I) [privacy

30

interests of a prospective juror during individual voir dire]; Press-Enterprise Co. v. Superior

Court (1986) 478 U.S.1 [92 L. Ed. 2d 1, 106 S. Ct. 2735] [criminal defendant's right to fair and

impartial trial].) We scarcely need note that state constitutional privacy rights do not

automatically "trump" the First Amendment right of access under the United States Constitution.

Neither constitutional right is absolute. In short, [*1060] Mr. Burkle's suggestion that the

California Constitution tells us "how those interests [privacy and First Amendment access] must

be weighed" is without merit.

CONCLUSION

The history of the United States democracy requires openness in the

conduct of governmental functions. To that end, the United States Constitution

and the case law thereunder, have made it extremely clear that judicial

proceedings must be public, except in the most extreme circumstances. It also

makes clear that statutes providing for the mandatory closing of judicial

proceedings, without notice, a hearing and findings, cannot withstand

constitutional scrutiny and are void. In the event of discretionary closure, the

record must include sufficient justification for the closure so that such closure is

subject to review.

Neither NRS 125.080 nor NRS 125.110, as written, provide any

discretionary authority for determining the propriety of closing the proceedings.

It is more accurately classified as mandatory closure, a direct violation of the

United States Constitution. Further, no factual or legal authority exists for

31

closing any of these hearings and, in fact, none has been offered by Plaintiff or

demanded by the court.

This case is the poster child of why trials must be public. Under NRS

125.080, Petitioner has no voice to object to this covert judicial action, nor can

she make public the conduct of elected officials. See

See, also, SUSANNE H. STERN, PLAINTIFF-RESPONDENT, v. MILTON H. STERN, 66 N.J. 340, 331 A.2d 257; 1975 in which the Court dealt with secrecy regarding public officials.

Respectfully submitted, this 28th day of May, 2008.

___________________________ Dunlap and Laxalt

32

AFFIRMATION

The undersigned does hereby affirm that the foregoing

document does not contain the social security number of any

persons.

Respectfully submitted this _____day of

May, 2008.

____________________________

Calvin R. X. Dunlap, Esq. Attorney for Defendants

CERTIFICATE OF MAILING

Pursuant to NRCP 5 (b), I certify that I am

and employee of the Law Office of Calvin R.X. Dunlap and that on

this date I deposited in the U.S. Postal Service and sent via

facsimile a true and correct copy of the foregoing addressed to:

Gary R. Silverman, Esq.

33

Silverman. Decaria & Kattleman Chtd. 290 S. Arlington Ave Reno, Nevada 89501

___________________________________________

Employee of the Law Office of Calvin R.X. Dunlap