New challenge hits pro tempore judges

Another challenge has been filed against the use of pro tempore judges in Municipal and Justice courts -- individuals who have been appointed and given full authority of judges but have never been elected to the positions.

District Judge Kathy Hardcastle is scheduled Wednesday to hear arguments on the issue that could dramatically change the way the lower courts operate in Nevada. The final word on the issue, however, is expected to come from the Nevada Supreme Court.

Both the current case, filed by attorney Carmine Colucci, and the first case, filed by attorney Thomas Pitaro, involve challenges of search warrants signed by a pro tem judge rather than an elected judge.

In both cases the pro tem judge was attorney Torris Brand, who sits in Las Vegas Justice Court.

The challenges contend that the pro tems violate the Nevada Constitution's declaration that judges in Nevada shall be elected.

Pro tem judges are 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. In the system created by the Legislature, pro tems have become a mainstay of the Justice and Municipal courts in part because they are convenient and paid just a fraction of what elected judges make.

While they have the full authority of elected judges, there is no accountability to voters because they were never elected to the positions and can't be voted out.

In Colucci's case, the questionable search warrant led to evidence that resulted in the arrest of Brian Katcher on charges of trafficking in a controlled substance, conspiracy to possess stolen property, possession of stolen property and possession of a stolen vehicle.

Colucci noted that although the search warrant was signed by Brand, the time it was signed is not known. He said it will require an evidentiary hearing to determine if Brand was on the bench acting as a judge or signed at a time and place when he was not officially replacing a judge.

But the attorney added in his court motion to dismiss the charges that "no matter where or when the warrant was signed, it is hard to imagine that no properly elected and empowered judicial officer in the county could be found."

"Brand was not authorized to issue a search warrant for the search of Katcher's residence" at 3108 Sleepy Hollow Way, Colucci declared. "Therefore, any evidence derived from that search must be suppressed."

The search warrant sought methamphetamine and a toolbox taken from a stolen truck.

The convenience of pro tems is unquestioned because they can be called to replace an absent judge rather than having another elected judge handle two court calendars with the congestion that accompanies that.

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 and Colucci contend that the Municipal and Justice court pro tem systems not only violate the constitutional edict that judges be elected, but that 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.

That is the system in place in District Court, where the only ones eligible to be pro tems or senior judges are former judges who weren't rejected in an election.

While the high court's version 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.

Prosecutors in Katcher's case have until Tuesday to file their opposition to Colucci's motion to toss out the evidence gained through the search warrant and dismiss the case.

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