Ruling on Impeached Judge Stirs Outrage in Nevada

It was a gathering of old friends--a time for extolling the accomplishments of one of their number and remembering his generosity, his professionalism and the tough battles he has been forced to wage.

“(He) is, in this community and in my mind and in the minds of all the attorneys I know, what practicing law is all about,” said Edward R.J. Kane, a former top prosecutor, in a typical encomium. “He is what a lot of us aspired to be and still aspire to be.”

But the convivial get-together was not a testimonial dinner, despite its trappings. It was a hearing before the Nevada Supreme Court on whether to disbar impeached U.S. District Judge Harry E. Claiborne, the first federal jurist convicted of a felony while on the bench. And Claiborne was the object of unstinted praise.

The court listened to testimony from 11 Claiborne admirers, including such prominent Nevadans as Clark County Counsel William P. Curran, president of the State Bar, and Hank Greenspun, publisher of the Las Vegas Sun.

No Disbarment Witnesses

Chief Justice E.M. (Al) Gunderson also called a witness of his own--an accountant and lawyer who said Claiborne should never have been prosecuted by the federal government. No witnesses appeared to argue for Claiborne’s disbarment.

The next day, the justices ruled 4 to 0 that Claiborne, who served 17 months in prison and a halfway house for tax evasion, should be allowed to resume his legal practice in Nevada courts.

That hearing, and the court’s unprecedented 163-page justification of its ruling, which was issued six months later, have unleashed a storm in Nevada, leaving the state’s legal community bitterly divided along geographical lines and prompting charges that the justices, and especially Gunderson, showed “old-boy network” favoritism by disregarding their own disciplinary rules.

On Friday, the controversy is likely to be reignited when U.S. District Judge Robert C. Broomfield of Phoenix holds a hearing here to determine if Claiborne should continue to be banned from practicing in federal court.

Federal Court Rules

Under federal rules, Claiborne, now 71, was automatically suspended after his October, 1984, conviction and must ask to be reinstated.

Passions are running so high that the Bar’s 15-member board has split almost evenly on what position to take before Broomfield, who was selected for the disbarment proceeding by the U.S. 9th Circuit Court of Appeals. Most of the outrage is coming from the northern part of the state.

“This has been an extreme embarrassment for the Nevada Bar,” said Kent R. Robison, a Reno lawyer and member of the Bar’s board of governors. “It has severely damaged our image nationwide.”

Claiborne’s defenders tend to be from Las Vegas, where he was a preeminent criminal lawyer for more than three decades before being appointed to the federal bench by President Jimmy Carter in 1978.

Convinced that Claiborne is a victim of overzealous federal prosecutors and guilty of nothing more than “negligent inattention to his tax obligations,” as the Nevada high court put it, these supporters believe that further punishment would be excessive.

‘Disciplined Enough’

“In my opinion, he was disciplined enough,” said Richard A. Wright, a Las Vegas attorney who is providing free office space to Claiborne. “. . . I don’t think it demeans the Bar association to have him continuing in his chosen occupation. That’s all the man knows how to do.”

In many ways, longtime residents observe, it is a classic Nevada conflict, pitting the older, more conservative Reno community against its flashy rival in the south, the large northern “silk-stocking” law firms against the leading Las Vegas defense attorneys and their coterie of judges, casino owners and businessmen.

At the nexus of that alleged old-boy network is Greenspun, whose newspaper has relentlessly crusaded for Claiborne. Another prominent member is Benny Binion, the 83-year-old patriarch of the influential family that owns the Horseshoe Club.

Earlier this year, in the one high-profile case he has handled since his release from custody, Claiborne successfully defended a security guard for Binion’s club who was acquitted in Clark County District Court of kidnaping, beating and robbing two gamblers.

2,930 Nevada Lawyers

Only a state of Nevada’s size, with a mere 2,930 lawyers (in contrast to California’s 94,705), could spawn a disbarment battle like Claiborne’s. The judicial system is so tiny that just one appellate court serves the state. Every criminal case, for example, is automatically reviewed by the five-member Supreme Court.

“Everybody on that (State Bar) board knows everybody on that court on a first-name basis,” Robison said. “That’s how small it is.”

So interconnected is the legal community that the only Bar board member from northern Nevada to side with Claiborne--John C. Lambrose of Carson City--is married to Gunderson’s lawyer. Curran, the Bar president who testified at the Claiborne disbarment hearing, was once Gunderson’s law clerk.

For Claiborne, who declined to be interviewed, the stakes in Friday’s proceeding in federal court are high, as they would be for any criminal lawyer in Nevada, where the glamorous, lucrative cases wind up in federal court.

If he gets his federal license back, he could get more work from the Binions. Since October, the Horseshoe Club has been under investigation by a federal grand jury, which is reportedly looking into allegations of violence against customers, drug trafficking and money laundering.

Plea to Federal Judge

Officially, the Bar has urged Broomfield to “take into consideration the time Mr. Claiborne has been suspended from practice” in federal court before deciding whether to discipline him.

But seven dissident board members recently filed a separate request with Broomfield, citing the Supreme Court’s “procedural aberrations” and declaring that “the image of the federal court system may only be properly protected, we believe, by the continued suspension or disbarment of Mr. Claiborne.”

Much of the animosity raised by the Claiborne case has focused on Chief Justice Gunderson, who raised eyebrows from the outset by failing to disqualify himself from considering the state court disbarment motion because of his longtime friendship with Claiborne.

A volunteer in Claiborne’s unsuccessful 1964 U.S. Senate campaign, Gunderson was an alibi defense witness at Claiborne’s first trial. (That trial ended in a hung jury. The government successfully prosecuted the judge a second time for failing to report $106,000 in income on his 1979 and 1980 tax returns.)

Ties to Judge

The 58-year-old chief justice also has been accused of boosting his friend’s position in private conversations with Bar governors. Critics say Gunderson failed to alert the Bar counsel that he could call witnesses at the Claiborne hearing.

Gunderson refused to be interviewed. But in written responses to questions submitted by The Times, he denied that he had done anything improper, or that Claiborne had been singled out for special treatment.

Asserting that “the same kind of accusations are quite routinely leveled at appellate courts by disgruntled persons,” Gunderson wrote,”Personally, I feel good about the quality of our opinion, and about what I consider the fortitude of our court in issuing it.”

In a surprise move, the chief justice announced last March that he will not seek reelection in November to a fourth term but instead plans to teach law at Southwestern University in Los Angeles.

Career Change

Gunderson, a member of the Supreme Court for nearly 18 years, says his career change was not related to the brouhaha over Claiborne.

The current flap began in May, 1986, when Claiborne entered an Alabama prison.

Michael E. Barr, then-counsel for the State Bar, filed a motion with the Nevada Supreme Court to suspend Claiborne’s license to practice law--an automatic procedure in Nevada when a lawyer commits a “serious crime”--and to have his case referred to a disciplinary review board made up of 18 lawyers and three non-lawyers.

Under Supreme Court rules, the review board is supposed to hold a hearing and make disciplinary recommendations to the court.

But in what opponents saw as a curious twist of logic, the court said the Bar had no jurisdiction over Claiborne because he was still a member of the judiciary. Refusing to resign from the bench even after he went to prison, Claiborne forced the U.S. Senate to hold its first impeachment trial in 50 years, leading to his ouster on a 90-10 vote.

Authorization Questioned

The case was never referred to the disciplinary board. The court accused attorney Barr of filing his suspension motion without obtaining proper authorization from Bar governors. Minutes from a May 14, 1986, board meeting, however, show that Barr, after seeking guidance on how to handle Claiborne, “was advised to proceed as with any other case. . . .”

Barr, in an interview, said his relations with the Supreme Court soured from then on, contributing to his decision to resign as Bar counsel and join the U.S. attorney’s office. To his disappointment, leaders of the lawyers’ group failed to back him up.

“When I filed a motion to suspend Claiborne, it was the exact opposite of what the old-boys system wanted,” said Barr. “What they wanted was the same kind of endorsement of Claiborne that the court ultimately gave him.”

To Gunderson’s critics, the “old-boy” system was most conspicuous at last November’s hearing, when the Claiborne side presented “a carefully selected group to sing praises for Mr. Claiborne,” as Bar Vice President Julien (Jay) Sourwine of Reno described them in a statement filed in federal court. “They just made prepared speeches. . . .”

Judge Calls Own Witness

Calling his own witness to the stand, Gunderson said: “I would like to have someone speak to us as an individual that I’ve known for many years and we practiced law together and so from time to time we have dinner together. . . .”

“Judge Claiborne . . . paid a lot of taxes,” lawyer-accountant R. Paul Sorenson testified. “The tax deficiency in ’79 is paltry compared to what he paid. The 1980 one was insignificant (and) . . . should not have been the basis of any prosecution.”

Just why the Bar called no witnesses to argue for disbarment is a matter of dispute. John E. Howe, Michael Barr’s replacement as counsel, said the court never notified him that he could put on witnesses. Gunderson, however, said Howe voluntarily refrained from putting on a case.

Fear of retaliation, some lawyers say, explains why the Bar reacted so timidly when it met with resistance from the court. Now that the dissenters have gone public, they are clearly worried about how their criticism will affect their pending cases before the high court.

“They can hurt you if they want to,” said William A. Maddox, U.S. attorney for Nevada, one of the court’s most outspoken detractors.

U.S. Officials Assailed

For nearly a decade now, Claiborne, who once described the Justice Department’s Organized Crime Strike Force as “a bunch of crooks,” has contended that federal authorities, and particularly Joseph Yablonsky, the former head of the FBI’s Las Vegas office, wanted to drive him off the bench.

In its opinion on disbarment, issued May 18, the Nevada Supreme Court painstakingly reviewed the Claiborne investigation, quoting extensively from Claiborne supporters such as U.S. Sen. Orrin Hatch (R-Utah), and stating that “an appearance and atmosphere of procedural impropriety has plagued the case from its inception.”

The court concluded that while Claiborne’s “negligent and careless” behavior in underreporting his taxes merited discipline, disbarring him would result in “extreme and disproportionately severe” hardship. Gunderson did not sign the majority opinion but wrote a concurring opinion warmly endorsing it.

(Justice John Mowbray disqualified himself at Claiborne’s request.)

Describing the majority opinion as a “masterpiece,” Claiborne’s attorney, David Goldwater, said the court “agonized to get to this result.”

Sourwine, by contrast, noted in his statement that the court “unhesitatingly accepts as true that which is favorable to Mr. Claiborne and rejects as untrue that which is not.”

For U.S. Attorney Maddox and other critics, it is not a desire for retribution that has so divided his state but rather the court’s abuse of power. “I don’t know that anyone is asking for any more blood from Harry Claiborne,” Maddox said.

As Goldwater sees it, however, Claiborne’s opponents should cast aside their “tremendous egos” for a moment and show some understanding.

“You’ve got to have some compassion in this life or else you’re made of wood,” Claiborne’s lawyer said. “He’s over 71 years old. How much time has he got? Why not let him live out his life with dignity?”