Sunday, Dec. 19, 1999 | 10:06 a.m.
On any given day, the odds are good that the black-robed judge on the bench in the city Municipal Courts or Clark County Justice Court wasn't elected to that position.
Yet they can do anything the elected judges can do and that includes the ability to perform marriages.
These part-time -- pro-tempore or pro-tem -- judges were appointed by whatever governing body is in charge of the court to replace judges who are on vacation, sick, at training sessions or seminars or who are just taking an afternoon off.
They have the same authority as elected judges, but there is no accountability to voters. They can't be voted out of office because they were never elected.
Criminal defense attorney Thomas Pitaro calls them "shadow judges."
He is challenging their use and their entire existence based on the Nevada Constitution's declaration that judges in Nevada shall be elected.
If it is that simple, the pro-tems are out. But Pitaro candidly admits that the law is seldom that black and white and the politics, power and money that are part of this system add more shadows to the issue.
There is no argument from any quarter that they are not a great convenience for the courts, the judges and those who use the Justice and Municipal Courts -- the so-called "lower courts." Justice Courts handle traffic citations and misdemeanors, felony arraignments, preliminary hearings and small civil matters. Municipal Courts handle misdemeanors and traffic citations.
Under the existing system, pro-tems can put people in jail for months or set them free. They can dismiss traffic tickets and, if they are pro-tem justices of the peace, they can dismiss felony charges or order defendants held for District Court trials.
The courts credit the pro-tem system with saving taxpayers hundreds of thousands of dollars over what it would take to add additional -- elected -- judges. Pro-tems are paid just a fraction of what elected judges make.
The way pro-tems are paid varies based on how the courts are run, but it can run from $14 an hour to $175 for a full day. Full-time justices of the peace start at $90,000 a year, and a Municipal Court judge's beginning annual salary is $96,000.
Las Vegas Justice Court Administrator Steve Morris said the savings from using pro-tem judges in his court alone reach more than $150,000 a year.
Las Vegas Justice of the Peace Bill Jansen said that using pro-tems alleviates the inevitable courtroom congestion when a judge is absent, particularly when a judge calls in sick and there hasn't been an opportunity to postpone cases.
"Without pro-tems, another judge would be required to handle two calendars and the public might have to wait around for hours for their cases," he said.
Pro-tems have been around for years and have developed into something of a mainstay of the judicial system. But there are those in the system who say the easy availability of pro-tems gives judges too many opportunities to take time off.
Yet in court systems with only one judge -- like North Las Vegas Justice Court -- pro-tems are just about the only way to get any relief from the daily grind and certainly they are the cheapest way.
"As a practical matter, I would prefer that pro-tems sit rather than have courtrooms dark," District Attorney Stewart Bell said. "I think they have been doing a pretty good job."
But are they legal?
Judges and others in the legal community simply shrug when confronted with that question.
State law permits the system, but not all state laws withstand scrutiny when viewed under the legal microscope of a constitutional challenge.
Pitaro's challenge currently is working its way through the courts, although it likely will take a decision by the Nevada Supreme Court before the issue is put to rest. The first court argument on the issue is tentatively set for February.
"I don't think this is an easy constitutional question," Chris Bryant, a professor at UNLV's Boyd School of Law, said.
Pitaro is contending that the Municipal and Justice Court pro-tem systems not only violate the constitutional edict that judges be elected, but the law creating pro-tems also contradicts a Nevada Supreme Court rule limiting pro-tems to retired judges who left the bench in good standing.
In addition to the issues raised by Pitaro, Bryant said he sees a "due process" issue because defendants have a right to have search warrants decided by a "neutral and knowledgeable magistrate."
Temporary judges
While many other pro-tems used among the six lower courts are lawyers, the pro-tem law also permits nonlawyers to sit as temporary judges in lower courts across the state.
Bryant sees an argument in whether they are knowledgeable.
In District Court the only judges eligible to be pro-tems, or senior judges, are former judges who weren't rejected in an election.
While the high court's versions of pro-tems and senior judges are also appointed -- albeit by the Supreme Court -- they at least had successfully withstood the scrutiny of the electorate before retiring.
"The concept of unelected individuals appointed as judges in place of an elected judiciary is troubling in and of itself," Pitaro wrote in his court challenge. "In no other branch of government do we tolerate elected officials being replaced by unelected individuals."
He said it would be "absurd" to have a panel of appointed pro-tem county commissioners ready to take over and vote whenever an elected commissioner is out of town or has a conflict.
"This same absurdity has been the common practice in Justice Court for years.
"It is time to see if this practice can pass scrutiny," Pitaro wrote, then declaring rhetorically, "It cannot."
But he said he realizes the convenience and cost savings of the pro-tem system adds a political dimension to the case.
"This is a case where politics is going to be much more involved than the law," Pitaro predicted last week.
Deputy District Attorney Bill Berrett doesn't see the issue as quite so convoluted.
"Absent specific constitutional limitations to the contrary, the Legislature's power to enact laws is practically absolute," he stated in documents responding to Pitaro's court challenge.
"It is the clear constitutional mandate that the office of Justice of the Peace is established by the Legislature," Berrett wrote. "It is also clear that the Legislature has established the use of judges pro-tempore.
"The policy behind such a decision likely is to provide for judicial efficiency."
Berrett cited Article 6, Section 8 of the Nevada Constitution that provides, "The Legislature shall determine the number of justices of the peace to be elected in each city or township of the state and fix by law their qualifications."
He argued in court documents, "... obviously the ability to determine the judges' qualifications includes the privilege to provide for replacement judges pro-tempore."
But Pitaro countered that the key phrase in the cited section of the constitution is "to be elected."
Pitaro's challenge involves a search warrant signed by Pro-Tem Justice of the Peace Torris Brand on May 19. The search the following day of the home of Donathan Porter turned up evidence linking him to the robbery of four people a few days before in a Las Vegas apartment.
One victim had been stabbed in the stomach and all were forced to strip naked before they were tied up and had pillowcases placed over their heads.
Pitaro is hoping that a district judge will declare the search unlawful and the incriminating evidence inadmissible at a trial because the search warrant was not signed by an elected judge.
Since the issue was raised, the judges in Las Vegas Justice Court have instructed their pro-tems not to sign search warrants or perform marriages, according to Jansen.
Separation of powers
Beyond the search warrant issue, Pitaro argues that the creation of pro-tem judges violates the separation of powers doctrine of the state constitution that lets the Nevada Supreme Court govern the judiciary.
While the Supreme Court is the administrative head of the third branch of government and sets the rules for the judiciary's operation, it is the legislative branch -- the Legislature or the county commissions or city councils -- that decides how many judges there will be.
Pitaro noted that at least in the city of Las Vegas, there are legal irregularities in that process. He noted that state law dictates that the Las Vegas City Council appoint the pro-tems while city ordinance gives that authority to the mayor.
While the state pays for the Supreme Court justices and District Court judges, the local entities fund the Municipal and Justice courts.
Although governmental entities appoint the pro-tems to a list, the courts decide which pro-tems get called to take the bench.
Pro-tem judges were authorized in Municipal Courts in 1981. The Nevada Legislature approved them for Justice Courts in 1991.
Pitaro contends that is where the system took a legal wrong turn, because those laws are in conflict with the state constitution.
During the past two decades untold dozens of pro-tems have been used throughout the state. In rural courts where judges aren't required to be attorneys, the pro-tems literally can be anyone with a minimum of a GED or high school diploma, according to the law.
In courts that must have lawyers on the bench -- the larger courts in Clark and Washoe counties -- the ability to serve as a pro-tem is limited to those who don't practice in the courts where they act as judges.
Some of them, like Brand, are retired lawyers looking for a few extra bucks and a continued involvement in the arena that they called home during their legal careers.
In recent months Brand has been involved in several high-profile cases, including the February 1998 misdemeanor trial of Christian Walker, 21, on domestic battery charges involving his girlfriend, who was later found slain. Brand's conviction of Walker is expected to be a key piece of evidence at Walker's murder trial.
At a September 1998 preliminary hearing Brand ordered heavyweight boxer Michael Dokes to stand trial on felony charges alleging he beat his live-in girlfriend.
In August Brand arraigned a then-14-year-old boy on attempted murder charges in the shootings of two other teenagers. The boy, Tony Tejada, also was involved on the fringes of a shooting of two additional teenagers in a gang-related confrontation at Clark High School.
For some, being a pro-tem is a steppingstone, or at least a credential that can be touted in a run for an elected judgeship.
Las Vegas Municipal Judge Bert Brown was a pro-tem in Las Vegas Justice Court before seeking and winning election this summer.
"I wanted the experience and it let me conclude that I wanted to be a judge," Brown said.
Public service
Still, for others, such as Southwest Gas Corp. attorney Thomas Sheets and prominent defense attorney Steve Wolfson, it is a way to perform a little public service.
"After 20 years as a lawyer, it is time to diversify my activities and give back something to the community," said Wolfson, a Las Vegas Municipal Court pro-tem. "It's also a way to experience a judgeship so I can see if this is something I want to do in the future."
Sheets, whose work as a gas company lawyer never takes him into Las Vegas Justice Court, sits as a judge there a few hours a year presiding over the kinds of criminal cases he used to see in his earlier years as a prosecutor and then criminal defense attorney.
"I understand it's a privilege and a powerful one at that," said Sheets, a past president of the Clark County Bar Association. "I understand I'm not an elected judge and I take the responsibility seriously."
But there have been problems with pro-tems.
Several years ago pro-tem Las Vegas Municipal Judge Ted Marshall was removed from the part-time post after it was revealed he was dismissing his own tickets.
Brand's signing of the search warrant in Porter's case has resulted in the Las Vegas Justice Court instructing its pro-tems not to repeat the move.
A similar edict was handed down after it was learned that former Las Vegas Justice Court Administrator Russ Eaton -- who is not a lawyer -- was performing marriages in Laughlin where he had been sitting as a pro-tem.
Brown said an identical rule is in place at Las Vegas Municipal Court.
A problem in the pro-tem system surfaced last year when officials discovered that two pro-tems -- Laura Ungaro and Brian Morrison -- were sitting as judges even though their law licenses had been suspended for failing to meet requirements for annual legal education.
Between them they had presided over about 20,000 traffic, misdemeanor or small claims matters.
Municipal and Justice courts in Las Vegas and North Las Vegas Justice Court pulled them off their list of eligible pro-tems amid the scandal.
But North Las Vegas Municipal Court has been using Ungaro as a pro-tem on a regular basis -- the last time in late October.
In November formal charges against the pair were filed by the state Judicial Disciplinary Commission in Carson City because they had continued to act as judges despite being notified that their licenses were suspended.
While the commission cannot remove them from the bench because they are not elected judges, a conviction could result in a fine, a reprimand or in an order that they are forever ineligible to sit as a judge in Nevada.
Both Morrison and Ungaro ran and lost elections for District Court seats. Morrison also lost in a bid for a Justice Court judgeship.
If Pitaro's challenge is successful, it would take away their only other avenue of access to a black robe and gavel.
Success would change the way the lower courts operate and likely would mean an increase in the number of judges so that there are enough to cover when other judges are off the job.
Las Vegas Justice Court already is planning to add a judge in the November 2000 election to take the bench in January 2001. Bell said that if necessary, the Clark County Commission could fill the new position before then by appointment.
In some courts, judges could be added but visiting judges also could be used to fill in.
That was the case in past years in Las Vegas Justice Court and, to a lesser degree, continues today.
Moapa Justice of the Peace Marley Robinson routinely traveled to Las Vegas to replace vacationing JPs, as did Goodsprings Justice of the Peace Janet Smith before her retirement.
In Justice Court there also is the possibility that some retired JPs could serve as part-time judges. Former Justice of the Peace Roy Woofter already does that, and a couple of other ex-JPs could do the same.
But Brown said he knows of no former Municipal Court judges who would be eligible, since the only available former judges were defeated in their bids for re-election.
While the district attorney's office is fighting Pitaro's attempts to win dismissal of charges against Porter, Bell said the office can live with whatever decision is made in the case.
"If it ruled to be unconstitutional, it wouldn't affect us too much," Bell said.
Such may not be the case for the courts or the judges.
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