The attorney for the state commission that disciplines judges defended its practices, then acquiesced, before some seemingly skeptical Nevada Supreme Court justices Tuesday.
At issue is whether judges should be compelled to answer written questions under oath during the investigative stage of complaints brought by the Nevada Judicial Disciplinary Commission.
Las Vegas Justice of the Peace Melanie Tobiasson is challenging the commission’s effort to obtain written answers from her under oath before the commission has filed a formal statement of charges. The matter stems from Tobiasson’s comments regarding her efforts to protect her daughter from an alleged prostitution ring.
“I did an interview with the investigator. The investigator determined there was no wrongdoing and yet they are insisting on going forward, asking many of the same questions I already answered,” Tobiasson previously said in a message to the Current. “The process is flawed, unfair and unconstitutional and I am merely asserting my rights as a human being and citizen.”
“It would seem the Commission is trying to give an opportunity to respond before formal charges and narrow the issues,” observed Justice Lydia Stiglich. “Are we hung up on the form of that inquiry?”
“I say this with great respect to the Commission. When you get this type of letter, they’ve made the determination. The writing is on the wall that they are going to proceed,” said attorney William Terry, representing Tobiasson. “They put the caveat language in there. ‘We have not made a determination yet.’ The reality of life is that when you get those letters you are going to end up with a formal statement of charges.”
“They likewise state in their brief they’ve been doing this for a number of years and perhaps they have, but that doesn’t mean it’s right,” Terry told the Supreme Court.
Justice Kris Pickering asked Terry: “Your specific objection is requiring that those answers be given under oath is not authorized by either statute or procedural rule and crosses the line between investigative and adjudicative and amounts to a due process violation?“
“You’ve hit the issue right on the head,” responded Terry.
“There is only one question before this court and this is whether the commission can ask written questions during an investigation. This is the only question,” said Paul Deyhle, general counsel and executive director of the commission.
“Under oath,” observed Justice Pickering.
“Yes, under oath,” Deyle admitted.
“What’s the source of your authority to require that during the investigation?” Pickering inquired.
“We rely on code 1.2 which requires integrity in the process, which promotes honesty,” Deyhle answered, citing additional judicial canons.
But some justices noted the rules cited by Deyhle include no requirement that judges respond under oath during the investigatory phase of complaint.
“If the judge was not cooperating, doesn’t that provide an independent basis for the Commission to pursue filing formal charges as opposed to the consequences that would befall the judge if they decline to answer questions?” Justice James Hardesty asked Deyhle, who agreed failure to cooperate could be an independent violation.
“Why are you putting the judge in the position still in the investigative stage of compelling an answer in advance of formal charges? That’s the piece of this that’s worrisome to me,” Justice Pickering asked Deyhle.
“There are many situations when the commission receives answers from judges and cases are dismissed,” Deyle said. “Even though they’ve voted there’s clear and convincing evidence, they want to hear from the judge.”
“You’re saying you want to do this for the judge but there’s a big hammer over the judge which is if the judge doesn’t respond they’re going to get additional charges for not cooperating in the investigation, even though its progressed to hovering on the brink of formal charges,” Pickering said. “It’s the final Hail Mary for the judge. If the judge declines it, they are in worse shape than they were before.”
“If the judge responds to the complaint but does not want to answer the questions, the commission would have no choice but to go to formal charges,” Deyhle said.
Deyhle admitted the commission has not always required judges to respond to inquiries under oath. He declined to identify the uncooperative judge whose actions prompted the change in policy.
“The commission had to reach out three times and it took six months,” he said. “We decided to do it under oath.”
“What’s of concern in this writ is the requirement of responding to those questions under oath when the code doesn’t seem to say that,” said Hardesty. “Furthermore, if you don’t answer, you’ve defaulted. It seems odd there’d be a default before there’s a formal statement of charges filed.”
“These questions do not need to be under oath,” Deyhle conceded.
Terry noted that Judge Tobiasson answered questions from the commission’s investigator “in a hopeful anticipation this matter would be closed.”
The Court did not rule from the bench.
Assembly Bill 20 before the Nevada Legislature seeks to change the way the Commission proceeds in investigations and afford additional due process to judges.