Public access to courts ensures judicial accountability and fair proceedings. Both the federal and Nevada constitutions protect that access, establishing a presumption in favor of open proceedings under the First Amendment unless experience and logic dictate otherwise. Richmond Newspapers v. Virginia, 448 U.S. 555, 567-68.
Where he has no personal stake, Rupert Murdoch, the founder of Fox News, seems to recognize the benefit of open courts. Under Murdoch's vision of around-the-clock news coverage, almost no case can escape the public eye. Except, perhaps, Murdoch's own.
Murdoch has long held his massive estate and media empire in irrevocable trust for his four children, equally. In 2024, Murdoch sought to change the terms of that trust, handing control to his eldest son, alone. The probate proceedings that followed have sparked national interest. Small wonder: the outcome of the Murdoch family's dispute may change the future of American news. Murdoch's three younger children are considered more politically moderate than their brother or father. But if Murdoch has his way, the proceedings will be completely sealed in Nevada's Second Judicial District.
Background
Murdoch initiated probate proceedings in Nevada. But neither Murdoch, nor his estate, nor the companies it controls, have ties here. He selected Nevada as a forum to take advantage of NRS 164.041, which turns the Richmond Newspapers' presumption on its head, allowing probate filings under seal without court order. When news of Murdoch's sealed Nevada proceeding came to light, multiple national news companies filed a petition to open access, with support from the ACLU of Nevada as amicus. See Dkt. No. 84379 (Nev. September 19, 2024) (Doe I Trust).
The Supreme Court of Nevada recently heard argument. Petitioners focused on the district court's improper understanding of NRS 164.041, but some justices seemed primed to go further, questioning how a statute that reverses the constitutional presumption of openness could be constitutionally applied under any circumstances. Oral Argument ("OA") at 5:35, Doe I Trust (Nev. May 7, 2025).
The Court's decision is now pending.
Richmond Newspapers and Falconi
Since Richmond Newspapers in 1980, "both civil and criminal trials have been presumptively open[.]" Id. at 580, n. 17; Del Papa v. Steffen, 112 Nev. 369, 374, 915 P.2d 245, 249 (1996). In Falconi v. Eighth Judicial Dist. Court,the Supreme Court of Nevada clarified that family court proceedings are likewise presumptively open under Richmond Newspapers, striking down a Nevada statute similar to that at hand and related local rules, which allowed parties to close family court proceedings on request and without court order. 543 P.3d 92 (Nev. 2024).
Falconi Applies to Trust Cases
Murdoch insists that Richmond Newspapers and Falconi are inapplicable because probate is founded in equity, such that "experience and equity" counsel against the presumption here. But, as one justice noted at oral argument, the family law proceeding in Falconi was also historically equitable, and still presumptively open. OA at 23:45.
In response, Murdoch attempted a distinction, arguing that Falconi discussed family lawcases, not the sensitive questions of "legacy, death, [and] inheritance" at play here. Because of these concerns, Murdoch says, probate proceedings were historically conducted on a "secrecy-oriented" basis, favoring out-of-court proceedings that rendered public oversight a moot point. Opp. to Emergency Mot. 15. Several justices pushed back, though, suggesting that the proceedings at issue in this case, in fact, resembled ordinary legal proceedings in any civil case (taking of evidence, formal proceedings, witnesses examined and cross-examined in court), and exactly the sort for which public oversight is desirable. OA at 24:28.
Murdoch also argued, in his briefing and oral argument, that if Richmond Newspapers applied, his family's notoriety warranted sealing of proceedings in this case to protect a compelling public interest. OA at 19:00. But, as one justice explained, the Murdoch family's notoriety—and the wealth and power that undergirds it—means the public's interest is exactly to the contrary, favoring open proceedings. OA at 28:00.Secret proceedings determining the outcome of a vast political news empire would erode the public trust, disrespect American history, and permit the wealthiest among us to manipulate the justice system (and forum shop) to avoid public accountability.
If it is unclear what the Court will do, what it should do is crystalline. Well-established constitutional precedent demands that trust proceedings—even for the wealthy and powerful—be presumptively open to the public. If NRS 164.041 is to stand, it cannot be understood to allow for the presumptive closure of probate proceedings without court order.
Originally Published by Clark County Bar Association
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