Las Vegas Sun

October 22, 2017

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Judicial conduct panel in hot spot

The courtroom incident so affected Clark County Public Defender Phil Kohn that he downloaded a video of the episode and has kept it on his computer desktop.

During an August 2004 hearing in Las Vegas, Hearing Master Sylvia Beller told a 16-year-old defendant to remove a "G-Unit" shirt because she thought it may have been gang-related. She then ordered the bailiff to remove the teen's belt even after he protested that his pants would fall down.

Within weeks, Kohn dashed off a complaint to the Nevada Commission on Judicial Discipline, the panel charged with investigating allegations of judicial misconduct and disciplining judges.

Last month, almost two years later, the commission publicly reprimanded Beller. But it also concluded that because the chief Family Court judge had suspended Beller for four weeks without pay and ordered her to take 20 hours of ethics training, a verbal slap was all that was needed from the commission.

Kohn disagrees: "They need to take a very harsh view of judges who humiliate litigants, especially minors."

His frustrations echo others in Nevada's legal community who complain that the commission does its work too slowly and too secretively.

A recent Los Angeles Times series about conflicts of interest involving some Las Vegas judges put a spotlight on the commission and how it operates, one of the seven current commissioners said.

"All of us are feeling the heat, trust me," says Karl Armstrong, a commissioner since 2001 and a Las Vegas attorney.

He says the perception among some - one he strongly disagrees with - is that the commission is "slow and cumbersome, and doesn't do anything."

Several cases before the commission have fueled that perception.

In addition to the complaint against Beller, they include the matter of Peter LaPorta, a former part-time Municipal Court judge in Henderson. The commission found in July 2004 that LaPorta, as a private attorney, took money from a client without doing any work, and that he had accrued more than $8,000 in unpaid parking tickets dating from the late 1990s.

The commission barred him from ever serving as a judge again, and fined him $11,000. It agreed, however, to allow him to perform community service in lieu of the fine. LaPorta did not complete the community service by the commission-ordered deadline, and reportedly has failed to show up at six commission hearings. Yet another hearing for him has been scheduled for Aug. 22.

Another case involves the complaint against Elko County District Judge Michael Memeo, accused in early 2004 of sexually harassing a court employee. He allegedly simulated drawing circles around the female employee's breasts, about one inch away from them. That conduct, according to the commission, "would convey to an objectively reasonable observer an unwanted sexual overtone or suggestion." A hearing for Memeo is scheduled for September.

The commission has the power to remove, suspend or censure judges. The last removal came in 1998, when it removed Las Vegas-based Family Court Judge Frances Fine for holding meetings on a case without lawyers from either side being present, and for changing the parental rights of a mother without notice or a hearing, among other transgressions.

The commission since 1998 has removed two judges on an interim basis: LaPorta and Washoe County Justice of the Peace Philip Thomas, said David Sarnowski, the commission's general counsel and executive director. The commission also barred those two judges and two others - former Clark County District Judge Jeffrey Sobel and Washoe County Justice of the Peace Paul Freitag - from ever again being appointed or elected a judge.

The commission found that Sobel had discussed campaign contributions during a conference on a case pending before him, telling one attorney in vulgar language that he was at a disadvantage because he hadn't contributed while the others had. In Freitag's case, the commission concluded that at the time he retired, he had left undecided at least 12 criminal and criminal-related cases, 36 small claims and other civil matters.

The commission can also fine judges, make them issue an apology, seek medical or psychological care, or agree to never again run for judicial office. Even when it dismisses a case, the commission can issue nondisciplinary letters cautioning judges about certain behaviors.

During the 2006 fiscal year, which ended June 30, the commission received 164 complaints of alleged judicial misconduct. That number has steadily risen from 2000, when 124 complaints were filed.

The commission dismissed 131 complaints in fiscal 2006, which includes administrative dismissals for complaints against courtroom staffers or others over which the commission has no jurisdiction.

In that same period, 27 cases were dismissed after investigation and 57, some from previous years, were pending. Seven cases merited formal, or public, hearings, and 11 cases ended with "informal resolutions," which include private reprimands to judges and letters of caution.

Critics charge that too often the commission's work and actions are in secret. The cases are never made public by the commission, in fact, unless it charges the judge.

It is unclear, for example, whether the commission is investigating any judges named in the Times series. Sarnowski said he could not comment on possible probes of any judges.

The American Civil Liberties Union soon will refile a suit in U.S. District Court to try to open up the process.

"It's particularly dangerous that we have a system in Nevada that elects judges, but that doesn't allow citizens to know about the complaints made against them," said Gary Peck, executive director of the American Civil Liberties Union of Nevada.

Sarnowski said the Legislature had made the decision to keep most cases secret. Most states, he said, follow a similar procedure.

The other main criticism - that cases take too long to move through the system, a concern of both complainants and judges - also may soon be addressed.

In 2005, the Nevada Judges Association sought to have investigations into complaints about judges limited to six months. Although the measure died in the Nevada Senate, association officials have said that it is likely to resurface in Carson City next year. Peck said the ACLU will again lobby on the bill's behalf.

The commission also will consider soon whether it should limit the amount of time a complainant has to file allegations against a judge.

"There has to be a balance between giving the claims of the complainant fair review, and keeping the due process rights of the judge," Armstrong said. "We take what we do seriously, but it's hard sometimes. We all want the best system possible, with the best judges."

Some who deal with the commission regularly say they are generally pleased with how it works.

Reno attorney Scott Freeman has represented three judges who have been investigated, including two whose cases have been made public - Churchill County Justice of the Peace Daniel Ward and Thomas.

In February Ward was publicly censured, suspended for 30 days without pay and required to attend six hours of ethics classes. Among other things, he had failed to disqualify himself from presiding over a criminal case in which his son's girlfriend was a defendant, and he had fixed two traffic tickets.

In October 2004 the commission publicly censured Thomas and permanently barred him from seeking or holding any judgeship in Nevada. Thomas had multiple convictions for driving under the influence in Nevada and California.

Freeman's one complaint is that while the commission pays for its investigators and special prosecutor, the judges must pay for their own attorneys. Otherwise, he said, the system functions well.

"The honest truth is I thought it worked," Freeman said. "I've never felt good-ol'-boy'd once, and my personality is such that I'd be the first one to stand up if I felt I'd been taken advantage of."

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