Las Vegas Sun

November 22, 2017

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Supreme Court OKs overhaul of judicial conduct code

New rules force judges to report misconduct if ‘likelihood’ of a violation

Beyond the Sun

CARSON CITY – The Nevada Supreme Court has approved a revised code of judicial conduct, providing the first major overhaul of instructions in 18 years on how judges should behave.

The regulations, which take effect Jan. 19, are the result of a study by a commission.

Judges will now have an obligation to report the misconduct of another judge or lawyer if he or she has information indicating a there is a “substantial likelihood” of a violation. The commission said the new rule “mandates that a judge take appropriate action when he or she believe that a judge or lawyer’s performance is impaired by drugs or alcohol or by a mental, emotional, or physical condition.”

The current rule requires a judge to report the misconduct only if he or she had knowledge of “known misconduct.”

There was disagreement between the court and its study commission on the issue of disqualification of a judge. The commission, headed by retired Chief Justice William Maupin, recommended the disqualification of a judge in the case if he or she received financial or electoral campaign support of $50,000 or more within six years from one of the parties or lawyers in the case.

The court did not adopt that recommendation.

In another area, the Supreme Court has ruled in the past that a judge has duty to stay on the case where there is a close call for disqualification.

The commission unanimously recommended that the Supreme Court scrap that “duty to sit” ruling.

Laura Fitzsimmons, a Las Vegas lawyer and member of the commission, said the court accepted all the recommendations except three. She said this “duty to sit” doctrine hurts the clients of an attorney who may have criticized a judge who doesn’t want to step aside in the case. Or it may hurt the clients if the attorney on the other side has been too close to the judge who won’t disqualify himself.

“Lawyers are afraid to criticize judges,” said Fitzsimmons, because “their clients are going to pay the price.” And judges have more power in this “duty to sit” system. She said the proposed new regulation would have eliminated the prior decisions of the Supreme Court.

Jeffrey Stempel, a Las Vegas commission member, says in close disqualification cases, the judge should bow out and that will enhance public confidence in the judiciary.

Stempel, a professor of law at the William S. Boyd School of Law at UNLV, said a judge stepping down in close disqualification cases ensures “that subtle, subconscious, or hard-to-prove bias, prejudice or partiality does not influence decision making.”

Nevada is only one of four states with this system of “duty to sit.”

The court’s new rule says judges should not disqualify themselves without a valid reason. And they should not step aside to avoid “difficult, controversial or unpopular parties or lawyers.”

The new code also does not require a judge to disqualify himself from a case if a judicial discipline complaint is filed against him involving the case. The judge should determine on a case-by-case basis whether he should excuse himself from sitting.

The court somewhat loosened the rule on judges making public statements. A judge may now respond directly or through a third party to allegations in the media or elsewhere concerning his or her conduct in a matter. But they are still restricted in making public statements that might affect the outcome of a pending case.

The rules are tightened banning judges from being a member in an organization that practices “invidious discrimination” involving such things as gender, ethnicity and sexual orientation. There has been a one-year grace period for the judge to leave the organization. But now the judge must resign from the group immediately.

The commission, in recommending adopting the new rule, said a judge has a right to belong to religious and military organization “regardless of the organizations’ possible invidious discrimination.”

The new rules say a judge or a judicial candidate may now attend political gatherings, or attend or purchase tickets for dinners or other events sponsored by a political organization or a candidate for public office. And the rules allow a candidate or judge to speak to a political organization.

And the rule “does not prohibit use of court facilities or resources for limited purposes such as filming campaign commercials, so long as the use does not interfere with the performance of judicial duties.”

The court revises the rule on prohibiting judges from abusing the office to advance his or her personal or economic interests. The commission said, “For example, it would be improper for a judge to allude to his or her judicial status to gain favorable treatment in encounters with traffic officials.

“Similarly, a judge must not use judicial letterhead to gain an advantage in conducting his or her personal business,” said the commission.

The court retained the rule that judges who are unopposed in election are prohibited from collecting campaign contributions.

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