"Nothing that lacks justice can be morally right."(1)
Nevada is privileged to have as the dean of its judiciary a man who has been a judge for close to forty years and an acting or senior justice of the Nevada Supreme Court for over thirty-three years. He is a man who is universally respected and admired in the legal and judicial community in this State. I received a letter from this highly regarded jurist at a time when I was trying to put an Article together for this law review. In his letter to me, my esteemed colleague reminded me of a supreme court case on which the two of us sat some three years ago. He told me of how "displeasing" to him this case remained and noted regretfully that an "injustice had been done." As I read the letter, I realized that the mentioned case presented the kind of injustice that would come within the ambit of Albany Law Review's call for papers on the "protection of individual rights by state high courts." I decided, then, to write about a breakdown in the judicial system and about how, in one tragic case, it did not live up to expectations in the "protection of individual rights." I write because I believe that an injustice has been done in the name of the Supreme Court of the State of Nevada, an injustice not only to the individual whose rights have been violated, but to the court itself.
This Article is divided into two parts. Part I, entitled "Justice Denied," is historical, relating how two justices who had been disqualified from a case were able, after the case in which they were disqualified had been decided, to "redecide" the case and thereby deprive the winning party of the benefits of his court victory.(2) Part II, entitled "The Story Behind the Story," delves into court records to provide some background material relating to the disqualified justices' intrusion into a case from which they had been previously disqualified.(3)
As one of the principal actors in this strange saga, I will use restraint in my narration, all of which is taken from official court records. I will not use the names of any of the actors. The dissenting justice and the two disqualified justices who redecided the case are referred to simply as the "Three." The litigant whose rights have been affected by the actions of the Three is a veteran trial judge, whom I will refer to as the "Trial Judge."
This is a tangled tale of two Nevada Supreme Courts. One supreme court decided the Trial Judge's case in his favor; the other supreme court redecided the case against him. I will refer to the duly-constituted supreme court that first decided the Trial Judge's case, in his favor, as the "Court of Five."(4) The Court of Five is a supreme court comprised of three supreme court justices and two replacement jurists (a senior justice and a district judge), who took the places of the two supreme court justices who disqualified themselves from sitting in the case. (One of the disqualified justices was a member of the Nevada Commission on Judicial Discipline, the respondent in the case.) To distinguish the main case later decided by the Court of Five from the second case decided by the disqualified justices, I will call the first case the "Primary Case" and will call the second case, decided by the Three, the "Secondary Case."
Before we move on, let us make sure that everyone understands exactly what occurred here:
The Primary Case. The constitutionally empaneled Nevada Supreme Court (the Court of Five) decided a case, by a 4-1 majority, in favor of the Trial Judge. The court issued writs of prohibition and mandamus in which it ruled: (1) The Judicial Discipline Commission proceeded against the Trial Judge in a manner that was in excess of its jurisdiction; (2) judges are entitled to confidentiality during judicial review of jurisdictional irregularities of the Commission; and (3) a special master was appointed to investigate numerous contempts of court and violations of the Trial Judge's due process rights.
The Secondary Case. After the Primary Case was decided and had become final, the Three issued a writ of prohibition against the Court of Five (except the dissenting justice, who, of course, was one of the Three), in which: (1) the Three redecided the confidentiality issue, holding that judges were not entitled to confidentiality during judicial review proceedings in which they challenge the Commission's jurisdiction; (2) the Three stopped the ongoing investigation into the Nevada Supreme Court and the Attorney General's office; and (3) the Three ordered the members of the supreme court panel, which decided the Primary Case, "to cease and desist from any further action" in the Primary Case, including the filing of any documents in that case.
There are two very interesting legal phenomena connected with the foregoing. One is that Nevada now has two contradictory rules on the question of whether a judge is entitled to confidentiality during interlocutory judicial review proceedings. The Primary Case holds that judges are entitled to confidentiality.(5) The Secondary case holds that they are not. The other interesting point is that, necessarily, the Primary Case is still pending. When the Three ordered the panel in the Primary Case to "cease and desist," it did not order the still-pending Primary Case dismissed. It is thus ever possible that the Primary Case will be exhumed, that the holdings in the Secondary Case will properly be declared void, and that the investigation into contempts and due process violations will resume. How this all came about makes a very interesting story, now to be told.
Starting at the Beginning
This all started when two of the Trial Judge's ten fellow judges took issue with the manner in which the Trial Judge was handling peremptory challenges. Other judges were handling these matters in the same way as the Trial Judge, but the disagreement between the Trial Judge and the two mentioned judges escalated to the point at which the two judges wrote letters of complaint to the Discipline Commission (Commission), making several complaints about the Trial Judge. When the Attorney General (who was then counsel to the Commission) got word of these complaints (and another similar complaint from the district attorney in the Trial Judge's district), she appointed a Special Deputy Attorney General (a former federal Task Force prosecutor) to institute a secret investigation into the Trial Judge's personal and professional life.(6) The Special Deputy commenced what he called a "fact-finding mission"; and at the end of a six-month investigation, the Deputy filed, as complainant, an unsworn complaint of judicial misconduct against the Trial Judge.
Upon receiving the defective complaint and being ordered to appear before the Judicial Discipline Commission, the Trial Judge, in accordance with Commission rules, applied to the supreme court for a writ, asking the court to review the Commission's activities, which he claimed were contrary to the Nevada Constitution, were in excess of the Commission's jurisdiction, and were in violation of the Commission's procedural rules. The court heard the Trial Judge's petition and decided in his favor, issuing two writs, a writ of prohibition and a writ of mandamus. No one questions the power of the court to hear and decide the first case, the case that I call the Primary Case.
The Dissenting and the Disqualified Justices Declare Rulings in the Primary Case To Be "Void"
In the Primary Case, after many procedural skirmishes...