Some members of the Nevada judiciary fear the regulators charged with keeping them in line are riding roughshod, and they’re asking the Nevada Legislature to take action.
The Nevada Judicial Discipline Commission (JDC) possesses extraordinary powers, with exclusive jurisdiction to censure, fine, remove or otherwise impose discipline on more than 600 judges, according to its website.
As the Current reported last week, Las Vegas Justice of the Peace Melanie Tobiasson is challenging an effort by the Commission to compel her to answer questions about allegations against her, before the Commission has filed formal charges. Her attorney, William Terry, has filed motions with the Nevada Supreme Court, asking that it require the JDC to comply with the rules of civil procedure.
“To suggest that a judge is in violation of ethics rules for reporting criminal activity to the police is beyond belief and calls into question the true motivation behind this investigation and complaint,” Tobiasson said in a statement to the Current. “The financial and emotional costs of being forced to answer questions absent formal charges are enormous.”
Assembly Bill 20, submitted by the Nevada Supreme Court and sponsored by Assembly Judiciary Committee, would instill the due process Tobiasson seeks in the judicial discipline investigatory process by giving judges the option to refuse to answer questions before charges are formally filed.
The JDC declined to respond to questions for this story.
“The Nevada Judges of Limited Jurisdiction (NJLJ) as a whole is concerned about the issues surrounding the JDC and is involved in sponsoring the bill,” says Las Vegas Justice of the Peace Ann Zimmerman, who serves on the board of the NJLJ, an association of municipal judges and justices of the peace.
Current law affords judges due process, but only in the adjudicatory phase of the complaint procedure.
“Even though constitutional due process protections generally do not apply during the investigatory stage of the Commission’s proceedings, the Legislature may provide additional procedural protections by statute,” the bill draft says, citing case law.
The bill would require that the Nevada Rules of Civil Procedure apply to all stages of the Commission’s proceedings, including the investigatory stage, and that any rules adopted by the JDC provide due process to a judge.
The current standard of proof during the investigatory phase is “a reasonable probability that the evidence available for introduction at a formal hearing could clearly and convincingly establish grounds for disciplinary action against a judge”
The bill’s text says it would “clarify that the standard of proof during the investigatory stage of the Commission’s proceedings is whether there is a reasonable probability, supported by clear and convincing evidence, to establish grounds for disciplinary action against a judge.”
The measure was submitted to the Legislative Counsel Bureau on November 7, before the Judicial Discipline Commission’s current action against Tobiasson became public via the Current’s reporting.
“The bill would be on point to every case before the JDC,” says Zimmerman. “The Bill Draft Request did precede Judge Tobiasson’s case and is not specifically related in any way because it relates to every case.”
Zimmerman says dissatisfaction with the JDC among judges has long simmered.
“However, in the past couple of years, judges have been talking to each other and sharing their experiences with the JDC,” she says.
Zimmerman’s experience includes having formal charges against her dismissed in 2016 by the Commission.
Although the Commission claims on its website that in accordance with its rules “ALL DOCUMENTS ARE POSTED ON THE COMMISSION WEBSITE,” that’s not the case for charges that are dismissed.
“My complaint was there for all the world to see but once it was dismissed, it disappeared like it never happened,” Zimmerman complained earlier this year in an email to the staff and Executive Director.
“The JDC chooses what documents to post on their website,” Zimmerman told the Current. “The public has been unable to see what is going on with the JDC.”
The JDC has the power not only to file complaints on its own, but also as a proxy for a complainant who fears embarrassment or retaliation.
“There could be limited circumstances where this may be appropriate if the allegation was of a highly personal nature,” says Zimmerman. “However, one can certainly imagine many scenarios where a complainant would like to complain anonymously and hide behind the cloak of ’embarrassment’ when it is completely unnecessary or possibly politically motivated. This obviously sets a dangerous precedent. Regardless, the judge should know the identity of the complainant.”
“Additionally, the JDC operates without any oversight. The Supreme Court approves their budget and that is it,” says Zimmerman.
For Fiscal Year 2018, the Legislature allocated $906,100 to the JDC budget.
The JDC imposed discipline against judges in 62 cases since 1995, ranging from censures and requirements to attend classes to removal from office.
The commission’s 2018 annual report cites 242 reports filed during the year. 40 percent of the complaints were filed against judges on criminal cases. Twenty-nine percent involved family law judges and 21 percent involved civil matters. Ten percent of the complaints filed were against judges in other areas of the law.
Litigants comprised the majority of complainants with 129 complaints. Inmates filed 75 complaints. Citizens filed 21. The Commission filed 8. Attorneys filed five complaints and law enforcement filed one.
The Commission disposed of 257 cases in 2018.
224 were dismissed after initial review. Three were dismissed following an investigation. 19 cases were dismissed with a confidential cautionary letter. 11 cases resulted in Formal State of Charges.
Three judges were fined. Five were required to take part in judicial education. Four received a public reprimand. Three received a public censure. Two were suspended without pay. One was required to submit a written apology to the aggrieved party, and another was required to undergo a psychiatric evaluation.
The JDC, in some cases, acts as complainant, investigator, judge and jury. Nothing in AB 20 would change that.
“This certainly appears to be a conflict of interest,” Zimmerman said, when asked about the structure of the Commission, which has authority to establish its own procedures.