by T. Matthew Phillips, Esq.
California State Bar No. 165833
U.S. Supreme Court Bar No. 317048
Phillips vs. Henderson
On Mar. 27, 2024, T. Matthew Phillips filed a Sec. 1983 lawsuit against Judge Bill Henderson, Dept. R, and Clark County, alleging civil rights violations, [Phillips vs. Henderson, (2:24-cv-00594-DJA)]. Phillips’ lawsuit seeks injunctive relief.
Unconstitutional Policy
The lawsuit exposes an unconstitutional Eighth District policy — i.e., where fundamental rights are at stake, judges too often skip-over basic due process requirements — to wit, “notice” and “opportunity to be heard,” [XIV Amendment].
Issue Presented
When news reporters submit proposed media requests — must the court give the parties “notice” and “opportunity to be heard” — before the judge signs the proposed media order? (Yes, of course!)
Governing Law
When news reporters submit media requests, due process requires the parties be given “notice” and “opportunity to be heard” — before the judge signs the proposed media order.
14th Amdt – Liberty Clause
The 14th Amendment Liberty Clause guarantees the individual’s right to “life, liberty, and property.” And, this guarantee of “liberty” includes the right to privacy and the right to a fair trial, [see XIV Amendment].
14th Amdt – Due Process Clause
No court may consider a proposed order affecting one’s “life, liberty, and property” — including privacy and a fair trial — without first providing the individual with due process of law, [see XIV Amendment].
In a Nutshell
“Due process of law” means that, where fundamental rights are at stake, courts must provide the individual with *NOTICE* and *OPPORTUNITY to be HEARD* — before the judge considers any order that materially affects the individual’s fundamental rights, including their right to privacy and a fair trial, [see XIV Amendment].
Statement of Facts
On Mar. 9, 2024, a news reporter submitted a media request into Phillips’ family case — but Phillips was totally unaware of its existence because Dept. R failed to discharge their constitutional duty to notify the parties.
“Shall Be Notified”
In addition to federal “notice” requirements at the 14th Amendment, the state also requires the parties “shall be notified … of any such request by a news reporter,” [see SCR 230.1; (bold italics added)].
State and Federal Violations
Dept. R violates federal law, i.e., the 14th Amendment — for failure to give the parties “notice” and “opportunity to be heard” concerning a proposed order that materially affects the parties’ fundamental rights. In addition, Dept. R also violates state law, i.e., SCR 230.1 — for failure to notify the parties that a news reporter had submitted a media request in the first place, (“shall be notified“).
Particularized Findings
State law also creates a particularity requirement. When news reporters request media access, “[a] judge shall make particularized findings on the record,” [see SCR 230.2]. However, in the signed media order, (Mar. 13, 2024), Henderson made “check-the-box” findings — which do not qualify as “particularized” under SCR 230.2.
Check-the-Box Findings
On Mar. 13, 2024, Henderson signed a “fill-in-the-blanks” media order — prepared by a non-lawyer. This dubious document comes with “pre-fab” language that prompts judges to make findings — by checking a box; but again, Phillips argues that “check-the-box” findings are not sufficiently “particularized” for purposes of SCR 230.2.
Unauthorized Practice of Law (‘UPL’)
Phillips contends that the news reporter engages in the unauthorized practice of law — by preparing and submitting a proposed order — on behalf of another entity — a media corporation. (Sidebar: family court is stressful enough already — without the added headache of meddlesome, third-party interlopers secretly submitting documents to your judge — documents that affect your life!)
The Challenged Order
Below is the challenged media request and order (which, curiously, identifies only one party). The form was executed on two dates — Mar. 9, 2024, (news reporter signature), and Mar. 13, 2024, (judicial signature). The reader will note, the Register of Actions duly records the events of Mar. 13, 2024; however, the Register of Actions is SILENT on Mar. 9, 2024 — the day on which the surreptitious news reporter secretly submitted his “off-the-record” proposed order to Dept. R.
Negligently Drafted Media Order
Objectively speaking, the media form is defective per se — because it has no blank space for judges to add remarks. As the reader can plainly see, (supra), Henderson was forced to superimpose his remarks on top of the underlying order, (which makes for a confusing record on appeal).
Errors ‘n Omissions
To make matters worse, the media order contains more defects — it omits four of the “six factors” enumerated at SCR 230.2(a)–(f). For reasons unknown, the sleight-of-hand news reporter created a proposed order — with only two of the required “six factors.” (For goodness’ sake!–why not cut ‘n paste ALL six factors?!)
Recipe for Disaster
With only two of the “six factors” in the media request form, it’s a recipe for disaster. Why?–because it’s reasonably foreseeable that some judges will view the media form in a semi-colorable light and mistakenly conclude it’s legit. These judges will rely exclusively on the contents of the media form — never venturing beyond its four corners, and thus, never considering the other four factors at subsections (b), (c), (e) & (f) of SCR 230.2.
The Media Form Omits ‘Privacy’
In ruling on the media request in Phillips’ case, Henderson never considered the parties’ right to privacy, a blatant civil rights violation — although, arguably, this judicial faux pas, in some respects, may be attributable to the errant news reporter — who created a facially defective media form that omits the term privacy.
The Right of Privacy
Sure, the hapless news reporter may be a proximate cause of Henderson not having considered the parties’ privacy; however, Henderson, remains duty-bound to follow the Constitution, as well as black-letter law, which provides that, upon receipt of media requests, “the judge shall consider” the parties’ “right of privacy,” [see SCR 230.2, at sub. (b)].
Safety and Well-Being
State law also requires that “the judge shall consider … the safety and well-being of any party,” [see SCR 230.2, at sub. (c)]. But that didn’t happen in Phillips’ case. As the reader may guess, the media form omits the “safety” factor.
Star-Chamber Proceedings
The current Eighth District policy — of allowing news reporters to submit proposed orders — in total secrecy — and allowing judges to adjudicate proposed media orders — in total secrecy — with no “notice” to the parties — nor “opportunity to be heard” — is constitutionally intolerable.
The Very Word Secrecy
“The very word secrecy is repugnant in a free and open society; and, we are, as a people, inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings,” [Pres. John F. Kennedy, address to the American Newspaper Publishers Association, (Apr. 27, 1961)].
~~ TMP.
Apr. 8, 2024
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