The Conflict Over Public vs. Private in Family Matters
Ten days ago, seven people gathered in a Las Vegas law office to take the deposition of a child custody litigant in preparation for a hearing. During that otherwise nondescript proceeding one of the lawyers shot and killed his former daughter in law as well as her husband. He then turned the gun on himself, ending his own life. This has produced one of the most controversial custody proceedings the country has ever seen as the father of the children has the presumptive right to custody of two pre-school children. The problem with that is the murderer was the grandfather of the children. He was representing his son. The person being deposed that day was his wife.
Suffice to say, the media wants to observe the custody proceedings from inside the courtroom. And therein lies a vital legal issue, long controverted, without definitive result.
In June 2022 Clark County Nevada issued a local rule of court declaring that all custody court matters were to be closed from public access and that other family court matters as well upon request of a litigant. This was not a matter of judicial discretion but an absolute rule.
In August of that year a media outlet filed for access to a custody proceeding. One parent consented while the other did not. Under the new rule, the matter and the record were closed. The appellant filed a mandamus proceeding to have the new rule reviewed as a violation of the fundamental premise that courts be open. The case attracted and the court accepted a variety of amicus briefs including the state bar association, the ACLU and the American Academy of Matrimonial Lawyers.
In 1980 the U.S. Supreme Court ruled that criminal proceedings must be open to public scrutiny and that civil proceedings were presumptively open. Richmond Newspapers v. Virginia 448 U.S. 555, 580 n 17. Courthouse News Services, Inc. v. Planet 947 F3d 581, 590 (9th Cir. 2020); Publicker Industries v. Cohen, 733 A.2d 1059, 1068 (3d Cir. 1984)
Nevada took that lead and ruled in February – that all Nevada proceedings were presumptively open as a matter of the 1st Amendment protection of the right to petition the government for redress of grievances. The Court added that it saw no basis to distinguish family court matters from other civil proceedings. The Court cites language from the Second Circuit holding that “public access to civil trials enhances the quality and safeguards the integrity of the fact-finding process, fosters an appearance of fairness, and heightens respect for the judicial process- an essential component in our structure for self-government.” The Court added that this transparency is all the more important in systems where judges are elected by the public.
To overcome this presumption, the Nevada Court finds that the party seeking confidentiality must show:
- A compelling need for the proceedings to be shielded from the public.
- Absent a compelling need to shield, there must be risk of harm.
- There is no lesser alternative.
The Court acknowledges the legitimacy of requests to keep family matterss private. But the presumption needs to be one of open proceedings.
The ruling was 4-3 with the dissent noting that the ruling on divorce was beyond scope of the appeal as this was a custody case. Citing a 1911 British case, Scott v. Scott, the dissent quotes from the case noting that in the 19th century while divorce was a creature of the House of Lords, the proceedings themselves were conducted via deposition which took place outside the public view. Scott & Anor v Scott | [1913] AC 417 | United Kingdom House of Lords | Judgment | Law | CaseMine In a lengthy footnote, the dissent parses the majority’s conclusion and citations related to divorce being open to public scrutiny. Curiously footnote 9 comes back with a pretty mixed bag of conclusions which reflect little to no consistency between the states and a common acceptance that juvenile proceedings and adoptions can be shielded from the public.
This is certainly a curious thing. So, we looked a bit deeper for a Pennsylvania perspective. The matter of historic precedent for privacy can be best illustrated by the front two pages of the New York Daily Herald for December 5, 1848. It contains a complete rendition of both the pleadings and exhibits from the divorce proceedings brought by Philadelphian Pierce Butler against his internationally famous wife, British actress Fanny Kemble. The case has a custody aspect as well since Kemble sought to be re-united with her teenage daughters who were then the “property” of their father. The Butler divorce was reported on throughout the world.
Perhaps the world’s most famous custody case took place with 100 journalists watching in 1934 when Gertrude Whitney spent five weeks in a Manhattan courtroom securing custody of Gloria Vanderbilt. The judge did close the courtroom when the testimony involved adult women kissing each other in ways more serious than a peck on the cheek. Otherwise, it was open season.
Then there is 23 Pa.C.S. 3322, passed in 1980 and unamended since that date. It allows the court, upon application, to conduct a divorce trial by jury so long as such a trial can be had without offending “public morals.”
Pennsylvania had its own round of this controversy in 1983 when the owner of the Philadelphia 76ers basketball team was sued for divorce by his wife. In Katz v, Katz, 356 Pa. Super. 561 the Superior Court held that while the public has a right to know that its courts are effectively administering justice “no legitimate purpose can be served by broadcasting intimate details of a soured marital relationship.” The trial court in Katz held that it was bound to proceed in public by the Court of Appeals decision in Publicker Industries v. Cohen, 753 F.2d 1059 (3rd Cir. 1984). The Superior Court held that was a misapplication of Publicker and remanded the matter for a better record. Then the case went away.
What makes the Nevada case noteworthy on this side of the continent is that Pennsylvania has recently enacted Kayden’s Law, a statute intended to try to protect people, children in particular, from domestic violence. We will write about Kayden’s Law in the next few days. But suffice to say that we have a Janus like approach to privacy. We want our lives to be private including our family law litigation. That’s fine until people die from domestic violence where transparency would have revealed what was going on. As we write this Philadelphia is again reliving the death of Ellen Greenberg, a 27 year old women who died in 2011 from what the coroner said were 27 self inflicted stab wounds. The news on April 16, 2024 is that after stabbing herself this way, her body may have been moved. That does suggest suicide was not the cause of death.
Until the 20th century, privacy was pretty much an unfathomable concept. If you had money you had servants who liked to watch. If you had no money you lived in a household that included a large number of family members and/or boarders who helped make ends meet.
We also live in an age when an open trial and open records including access to court filings create enormous opportunities from mere snooping to identity theft. Those concerns are not easily discounted. But then we have people dying inside their own homes for which there seems to be no plausible explanation. When public records are kept under seal, the public is deprived of access to information that may help investigators or prosecutors to close an investigative loop before people are injured or killed. Meanwhile, if your 11 year old dials 9-1-1 to profess that you are “mean” chances are you would prefer to avoid your friends and family knowing about the police visit and the resulting incident report.
Death by relative or significant other is a growing trend in America. It shows no sign of abating. We don’t know who killed Ellen Greenberg although not many people can stab themselves 20 times and then travel elsewhere to die. We do know who killed Margaret and Paul Murdaugh. We know who killed Gabby Petito. We know who killed Anne Marie Fahey. Many of these perpetrators were under the radar but we can’t be certain of that in a world where Protection from Abuse proceedings are often not on the public docket and family proceedings are often “private.”
The Las Vegas tragedy is here: . We should add that the murderer in this case had no history of violence that has been reported. In point of fact, he was a lawyer. But lawyers are not immune from violence as we learned locally in 2000 when Mark Biddle shot and killed his former spouse Melinda Clothier Biddle in what was once their marital home in Haverford.
The lesson here is that even people we perceive as “nice” and “respectable” often have little ability to control themselves when their family matters are in controversy. Some have histories of aberrant behaviors that are shielded from public scrutiny because we like to think these matters need to remain private. The history of keeping this litigation private is relatively recent. Privacy has its merits, but it comes with risk to personal security when we can’t have access to people’s records of bad behavior.
