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Steps Taken to Rein In Nev. Judges
The chief justice of the Nevada Supreme Court says three steps will be taken to heighten scrutiny and supervision of the state's judges, who have become the target of a reform effort amid allegations of impropriety and cronyism in the courtroom and on the campaign trail.
The changes were announced in a four-page statement written to the Los Angeles Times by Chief Justice Robert E. Rose, Nevada's former lieutenant governor and an important figure in the state's political landscape.
The changes come in the wake of a Times investigation raising questions about the state's judiciary. The investigation determined, among other things, that Nevada judges have awarded millions of dollars in judgments in recent years without disclosing that the money was awarded to friends, business partners and former clients — even to people to whom the judges personally owed money.
Nevada's judiciary, often criticized as a relic of the state's maverick past, was already the subject of a broader, two-pronged reform effort designed to separate judges from campaign contributors and reduce the frequency of costly elections that judges now face.
That campaign is in its infancy and is by no means guaranteed to win approval from judicial leaders, the Legislature and voters. Rose's statement outlined three additional steps toward reform that will be set in motion immediately.
First, the Supreme Court will implement a formal process to evaluate the performance of the state's senior judges — on-call jurists who are paid by the hour. They have typically retired from state-judge duties and are farmed out across the state to assist with a growing workload in the court system.
While many of those judges had long and distinguished careers before their retirement, they are seen as vulnerable to allegations of impropriety because they are not accountable to voters and serve at the pleasure of the Supreme Court — often for life or until they decide to retire altogether.
The Times investigation found that one senior judge ruled repeatedly in favor of a casino corporation in which he held more than 10,000 shares, and that another had presided over at least 16 cases involving participants in his real estate deals.
Rose said that Nevada would benefit from a "more comprehensive and uniform procedure to evaluate the performance of our senior judges."
Starting in November, evaluation forms will be sent to lawyers and parties in cases that are heard by senior judges, jurors in those cases and the district courts that request the services of senior judges.
Second, Rose said, senior judges will also be subjected in some cases to peremptory challenge — the right of a party in a court case to seek a judge's removal if there are concerns about a conflict of interest or the judge's impartiality. Under the current court structure, senior judges are immune from such challenges, unlike regular judges.
In the past, Rose said, senior judges have not been exposed to challenges because they are often pressed into service at the last moment; they are often called to preside over a case when another judge is sick or otherwise absent.
However, Rose said, "We acknowledge that some assignments of senior judges do not fall into the emergency category and we believe some accommodations can be made."
Peremptory challenges will be allowed when a senior judge is appointed more than 14 days prior to a scheduled court date, Rose said.
Third, Rose said, the Supreme Court will issue a communiqué to all of the state's District Court judges reminding them of their ethical obligation to disclose potential conflicts of interest.
The Times investigation detailed a host of instances in which judges presided over cases in which their impartiality could have been called into question.
"Detailed facts were not provided to support many of the accusations," Rose wrote. "But, suffice it to say, there were instances where the disclosure of an interest or facts that may bear upon the case should have been made by the judge."
According to federal and state judicial canons, judges should withdraw from cases when their impartiality might reasonably be questioned. But the state does not require judges to disclose when their campaign contributors appear before them. Court observers say some judges have been reticent in volunteering information that might call their impartiality into question.
Rose said he will remind judges that they should "err on the side of disclosure."
"We believe that judges often equate a disqualifying interest with an interest they are required to disclose," Rose wrote. "Such is not the case. A judge must disqualify himself or herself from any case where his or her impartiality might reasonably be questioned."
Rose sent his statement to The Times on Monday night. He did not return phone calls today seeking comment.
The Supreme Court appears to have sidestepped a thornier issue in the state's clubby judiciary: determining whether to take action against three senior judges whose conduct was called into question by The Times investigation. The Supreme Court asked those judges to respond to the articles because the court appointed those judges.
Senior Judge Stephen L. Huffaker, The Times investigation revealed, ruled in favor of a casino corporation in which he held 12,000 shares and presided over another case involving a casino corporation whose foundation gave his son a partial scholarship to Yale University. Those actions, Rose wrote, occurred before he became a senior judge, ending the Supreme Court's involvement.
In another case, The Times investigation revealed that Judge James A. Brennan had resigned as a state judge — prior to his selection as a senior judge by the Supreme Court — to avoid being charged by a federal grand jury with blackmail.
"With the limited information before us," Rose wrote, "we could not find that any unethical or clearly improper conduct occurred."
The third senior judge, Joseph S. Pavlikowski, officiated at the wedding of Frank "Lefty" Rosenthal in 1969 when Rosenthal was known as a frontman for the Chicago mob. Pavlikowski then accepted a discounted wedding reception for his daughter at a casino where Rosenthal was a top executive. The judge later ruled in favor of Rosenthal in three cases.
Pavlikowski has recently resigned his judgeship, Rose wrote, "apparently to pursue other career endeavors." Therefore, Rose wrote, "It is unnecessary to review the allegations against him."
The three judges have not returned phone calls seeking comment.
Rose noted that while the Supreme Court appoints senior judges and can withdraw their commission, the court's jurisdiction over the judges is limited. The responsibility of investigating complaints made by the public against senior judges falls in most cases to the state's Commission on Judicial Discipline.
The commission's general counsel and executive director, David F. Sarnowski, said today that he is prohibited from disclosing whether any complaints have been lodged against the judges. The commission has not publicly announced that it has taken any action against the judges.
Washoe County District Judge Brent Adams, a leading proponent of judicial reform in Nevada, said in an interview today that the steps Rose is taking are "wise." "I think it can help," he said.
But he questioned whether they would be sufficient to restore the public's trust in the integrity of its court system.
The senior judge system, he contended, has grown unwieldy, particularly after the Legislature increased its funding dramatically in 2005 after lobbying from the Supreme Court. It was once rare for senior judges to step in, but now senior judges routinely spend lengthy stints on the bench. "Are they used so often because they are needed?" Adams said. "Or are they used because the money is there to pay them?"
Adams commended Rose for issuing a reminder that judges are obligated to reveal conflicts of interest. But he noted that it was the Supreme Court that determined that Nevada judges are not required to disclose when a party in a case or an attorney has contributed to their election campaign. He said the Supreme Court could have a more lasting impact on the judiciary by revisiting that "terrible decision."
"It's encouraging to be reminded that we can always behave above the minimum standard," he said. "But it would be marvelous if the Nevada Supreme Court, for once, would raise the standard."