Nevada Needs Strict Judicial Canons, Increased Judicial Evaluations, Not Judicial Appointment By The Governor

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Earlier this week, I pointed you to the Advisory Opinion provided by the Nevada Commission on Judicial Discipline ("NCJD") in 2002, wherein they recommend that attorney and litigant contributions to a judges' election campaign do not warrant recusal, unless there is an "extraordinary contribution" or "substantial involvement". The way this Opinion is interpreted by the Judiciary, it basically means that a party/attorney must give $10,000 (the legal limit) or work for the campaign in some substantial capacity for a judge to be required to recuse themselves from a case that involved contributors. However, the whole point of helping a judge get elected to the bench is generally for a contributor's self-benefit. So, what attorney/party would contribute $10,000 thereby ensuring that they would not be able to appear before the judge? So far, I can't find anyone. (A campaign contribution report will be coming in a few weeks.)

For now, though, my point is made. If a challenge is made to a judges' impartiality due to campaign contributions, in the Eighth Judicial District Court of Nevada, the Judge will generally deny recusal. Why? If the judge were to recuse, they would only be ensuring that they will not get any more money from that contributor. The incentive to continue contributions by remaining on a case is too great; that is the conflict.

Attorney or Party Challenges For Bias:

If a party or attorney appeals to the Chief Judge regarding the recusal, having researched several of these opinions, the response will generally be based upon Nevada Revised Statutes ("NRS") 1.230 and Nevada Code of Judicial Conduct ("NCJC") 3. In cases where the conflict is alleged to be a contribution by the party or the attorney, the Court usually refers to the NCJC Advisory Opinion JE02-001. If the opposing candidate alleges a conflict, as a party or attorney now in front of their opponent, the Court usually refers to the NCJC Advisory Opinion JE06-005. Each Opinion cites In re Petition to Recall Dunleavy, 104 Nev. 784, 788 (1988), as the precedent, wherein the Nevada Supreme Court states that a "judge has as great an obligation not to disqualify himself, where there is no occassion to do so...". Interestingly enough, the part of the Opinion that everyone seems to be glossing over, says that the judge should not recuse himself "in the absence of some statute, rule of court, ethical standard, or other compelling reason to the contrary." Id. (Emphasis added). In our opinion, campaign contributions and opponents in elections should be per se a "compelling reason".

In Dunleavy, it is alleged that a sizeable contribution to the campaign of Justice Young by the opposing attorney, coupled with the Justice's administrative order which was the object of the action, creates, at very least, the appearance of impartiality. Dunleavy claims that, "Justice Young was repaying a political debt, rather than sitting as an impartial jurist ruling on the basis of law." Id. at 789. The Supreme Court disagreed.

The emphasized use of this case in Nevada is generally wrongly applied by the Chief Justices. In Denleavy, the Court reasons, on pg. 790 citing U.S. Supreme Court Opinions, that the source of the bias must come from another source, other than the case itself. In Dunleavy, the Court even wrongfully emphasized this point. The fact that the political contribution was made is the source of the bias, not the repayment of the political debt through the biased administrative order. Thus, when courts dismiss these claims for bias or implied bias because the source of the bias is alleged to have only developed in the action itself, the courts ignore the actual source: the contribution, the support or the election campaign itself. The is an underlying "common sense" psychological bias that Nevada completely writes off.

Utilizing the same basis, NCJC Advisory Opinion JE06-005 states that a judge is not disqualified from presiding in a case where their opponent in the upcoming election is representing one of the parties. It would guess that, if polled, nearly 100% of the litigants would want to know that their attorney is fighting the judge for their job. The same number would likely call that "biased" and want the judge off the case. This Advisory Opinion, again, uses the reasoning of Dunleavy which holds that "allegations of bias based upon a judge's associations with counsel for a litigant pose a particularly onerous potential for impeding the dispensation of justice", because judges and attorneys have to work together all the time. There is a certain truth to this reasoning. However, it should not result in a judge refusing to recuse when an actual or implied bias exists.

The U.S. Supreme Court is more correct in its analysis in CAPERTON ET AL. v. A. T. MASSEY COAL CO., INC., ET AL. (June 8, 2009) when it recently opined that there are 2 standard for recusal:

1. "when a judge has 'a direct, personal, substantial, pecuniary interest' in a case", Tumey v. Ohio, 273 U. S. 510, 523; or

2. "where 'the probability of actual bias onthe part of the judge or decisionmaker is too high to be constitutionally tolerable'" Withrow v. Larkin, 421 U. S. 35, 47.

In this case, the party contributed merely $1,000 to the judges campaign, the statutory limit. However, the party also contributed and raised several million dollars for a non-profit organization, "And For The Sake Of The Kids ", that supported the judge and opposed his challenger.

The Court, in this Opinion, recognizes that even though a campaign contribution is ". . .not a bribe or criminal influence, [the Judge] would nevertheless feel a debt of gratitude to [the contributor] for his extraordinary efforts to get [the Judge] elected." Id.

The U.S. Supreme Court's analysis of "Election Bias":

"To bring coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings. There are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work. If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case." Id. The problem is that no judge would ever recuse if their neutrality were undermined by some other influences, unless it was so patent and obvious. Why? This would display weakness and an inability to seperate themselves from judging other. The reality is that they are being influenced, internally or externally.

"The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscorethe need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief." Id. The Court recognizes its inability to REALLY address "implied bias" even though it is an actual deterent to justice. This enforcement is left to the states to address when their judges have impliedly forsaken justice.

"In defining these standards the Court has asked whether, 'under a realistic appraisal of psychological tendencies and human weakness,' the interest 'poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.'" Withrow, 421 U. S., at 47. This is the counsel given to the states to consider in assessing "implied bias." The Court cautions that human weakness and psychological tendencies dictate that not even judges would be able to control themselves when faces with potential bias, so certain things must be forbidden. The states do a varying degree of assessment and impose different standards in their judicial cannons.

For example, the ABA Model Code’s test for appearance of impropriety is "whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired" Canon 2A. However, the Nevada's standard is much more broad as the NCJD states that "A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities." (Emphasis added).

"Whether [the party’s] campaign contributions were a necessary and sufficient cause of [the Judge's] victory is not the proper inquiry. Much like determining whether a judge is actually biased, proving what ultimately drives the electorate to choose a particular candidate is a difficult endeavor, not likely to lend itself to a certain conclusion. This is particularly true where, as here, there is no procedure for judicial factfinding and the sole trier of fact is the one accused of bias. Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances 'would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.'" Tumey, supra, at
532. (Emphasis added).

"Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order." Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (KENNEDY, J., concurring) (Emphasis added).

It is for this reason that States may choose to "adopt recusal standards more rigorous than due process requires." Id., at 794; see also Bracy v. Gramley, 520 U. S. 899, 904 (1997). Unfortunately, Nevada has not done so. Instead of trying to deny the electorate the opportunity to choose their judges, the NCJD should impose strict cannons that address potential impropriety related to elections.

Conclusion (Judicial Screening, Judicial Evaluations & Elections):

The result should not be judicial appointment, it should be strict recusal standards by the NCJD. It would have a better effect. The goal is to stop fund raising from equaling justice. So, let's make justice truly neutral from fundraising. The blanket political checks from attorneys and high volume litigants would cease. Judges would be forced to be elected on their qualifications and actions. The NCJD could even recommend 3 candidates for the voters to elect, if quality is a concern. The logic is consistent with judicial appointment. Even the Governor is given the list of 3 candidates by the screening panel & he is supposedly "informed". The voters are not given any reliable information (other than media coverage) but are mocked when they "don't get it right." Most importantly, the NCJD should conduct judicial evaluations on all judges in the State of Nevada.

The screening of judges should expand and the evaluation of judges should expand. In the end, though, the voters should decide.
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