Effort to Oust Justice Rocks Nevada High Court : Legal system: Three colleagues say leader no longer is mentally fit to serve. He denies the charges and refuses to retire.

With traditional courtroom civility, five black-robed justices convened last week to hear the usual array of cases before the Nevada Supreme Court. At the end of the day, the court waited politely while Chief Justice John C. Mowbray--who at 73 is nearly blind from glaucoma--walked slowly from the courtroom.

Despite the public courtesy toward Mowbray, the chief justice is at the center of a deep and bitter dispute on the court that has resulted in rare public revelations of fierce judicial infighting and has saddened and perplexed Nevada’s legal community.

In what one court member called a “palace revolt,” three justices have acted to sharply limit Mowbray’s authority and bluntly urge him to retire. They charge that he has abused his powers and is no longer mentally fit to serve on the high court.

Mowbray has been unable or unwilling to provide “meaningful” legal analysis of court cases, the three critics said in a stinging internal court memorandum, and has relied on court clerks and even outside attorneys to prepare his opinions.

Mowbray, a high court justice for 25 years, has heatedly denied the allegations and vowed to seek reelection next fall to another six-year term. He readily admits that he must rely on his staff to read for him but steadfastly maintains that he is fit for office, and Nevada’s disabled community has rallied to his side.

“They ought to be ashamed of themselves,” Mowbray said of the three justices in an interview last week. “If they were real men, they would be.”

Thus far, Nevada legal authorities are staying out of the dispute, but they fear damage to the court’s reputation and the judicial system. V. Robert Payant, dean of the National Judicial College in Reno, calls the court fight “unfortunate,” adding: “I hope for the sake of the image of the justices that their personal conflicts could be kept in-house.” But the conflict has become visible to the public eye.

Privately, some knowledgeable court observers say Mowbray should step down.

“He’s become very erratic, he rambles a lot and is a prima donna,” said an experienced Reno lawyer who knows the justices personally and requested anonymity. “He can no longer discharge his duties capably.”

With another view, Mowbray’s physician and advocates for the disabled have said there is no evidence that the chief justice’s failing eyesight has impaired his mental or decision-making abilities.

“There’s just no explanation for the position of the three justices, from my viewpoint,” said Mervin Flander, a blind onetime prosecutor who serves as chief of the state Bureau of Services for the Blind. “I’ve followed his work on the bench for many years, and haven’t seen any lessening in his capacity.”

Similarly, Dr. Richard A. Lewis of Sacramento, Mowbray’s eye physician, wrote a letter saying that despite the jurist’s two-year bout with glaucoma, he had still done a “remarkable job” with the aid of reading assistants in maintaining his judicial responsibilities.

For their part, the three Supreme Court justices urging Mowbray to step down say emphatically that their effort has nothing to do with his failing sight, but rather centers on his performance as a judge.

“We’d be despicable human beings if our concern were his blindness--this has nothing to do with that,” Justice Thomas L. Steffen said last week. “We’re a very busy court and we need every mind here functioning analytically. We need to pull together if we’re going to be able to create a quality judicial product.”

By all accounts, the battle within the court has little to do with judicial ideology--such as a philosophical split between liberals and conservatives. Rather, Mowbray’s critics say the issue is declining abilities--and Mowbray himself says he is the victim of judicial politics.

Under the Nevada system, Supreme Court justices run for office much like candidates for governor or senator, facing any challengers directly at the polls rather than merely seeking retention, as in California. The post of chief justice is rotated every two years.

Mowbray--a graduate of Notre Dame Law School, an army major during World War II, a Nevada judge since 1949 and reelected to the high court in 1986 with the most votes in state history--became chief justice last year.

Long-simmering tensions within the court boiled over in public last fall. Mowbray issued a news release proposing a new court rule requiring the justices to report decisions within 90 days after argument (a rule similar to one now employed by the California Supreme Court).

Under the rule, names of justices who failed to prepare opinions by the deadline would be made public. While the court “does a wonderful job in keeping its work current, the leisurely practices of the past must cease,” Mowbray said in the release.

A few days later, the sharply worded internal memorandum assailing Mowbray was circulated at the court. It was signed by Justices Rose E. Rose, a former lieutenant governor; Charles E. Springer, onetime state attorney general, and Steffen, a former director of the Nevada Trial Lawyers Assn.

With “consummate hypocrisy,” the confidential memo said, Mowbray had wrongly implied that the court--”laughably excluding himself”--had approached its cases on a leisurely basis.

The memo accused Mowbray of vulgarly abusing and intimidating staff members, relying almost exclusively on clerks and others outside the court to prepare his opinions and misusing court offices to further his reelection bid.

The chief justice, the document said, “should unselfishly realize that it is long past time when he should retire from the court.” The memo concluded by asking for a conference with Mowbray to discuss the matter as soon as possible.

Although intended to remain confidential, the memo found its way into the Nevada Appeal, a newspaper in Carson City, the state capital. All members of the court denied leaking the document.

Last month, the three justices critical of Mowbray escalated the dispute by signing a detailed, six-page court order sharply limiting the administrative powers of the chief justice. They also created a post of vice chief justice to take over when the chief is “mentally, emotionally or physically disabled.”

A fifth court member, Justice C. Clifton Young, a former congressman whom Mowbray calls his one friend on the court, issued a detailed dissent to the order. In mid-November, Young recalled, he had left the state to hunt duck and pheasant and returned a week later to find the judicial landscape in disarray.

“A palace revolt of sorts was in progress; judicial repose had all but vanished,” Young wrote, adding, “Clearly, the potential for mischief under (the order) is enormous.”

In response, early this month the three Mowbray critics on the court came back with a 16-page document defending their position that the chief justice could not function as a “positive, productive, contributing member of this court for an additional six years.”

The unseemly public squabble has brought widespread dismay in Nevada legal circles, including the justices and their staff members. “This is a tragedy for the court,” one longtime court aide said.

Legal experts are especially concerned that the feud has erupted into public view only months before a fall election when voters will be asked to approve the creation of a state appeals court that would greatly ease the burdens of the high court. Nevada’s five justices currently churn out more than 1,000 cases annually--one of the highest caseloads in the nation.

But for now, the dispute over Mowbray is focusing on the fall election, where the embattled chief justice, along with Justice Springer, will be on the ballot.

Mowbray said he is the target of a plot to drive him off the court, perhaps in part because of a controversial opinion limiting the long-standing power of Nevada employers to fire workers at will. He cites reports that powerful casino owners are ready to support a Las Vegas judge said to be considering a run against Mowbray.

The judge, Clark County District Judge J. Charles Thompson, issued a decision last fall upholding employers’ broad power to fire. But the Supreme Court, with Mowbray joining the majority in a 3-2 vote, overturned Thompson’s ruling.

Justice Steffen firmly denies that the court ruling plays any role in the effort by the three justices to persuade Mowbray to retire.

“That’s totally, unqualifiedly false and just a political ploy,” Steffen said. “What’s happening here has nothing to do with that case.”

Mowbray says he is willing to let the voters decide whom to believe.

“I accept everything in the spirit of destiny,” he said. “I’m going to leave it in the hands of the people. . . . But I don’t like to give in. I’m not going to roll over and play dead for these people.”