O'BRIEN v. State Bar of Nevada , 114 Nev. 71 ( 1998 )

OPINION

By the Court, Shearing, L:

Petitioner John O’Brien petitions this court for a writ of mandamus or prohibition directing the Board of Governors of the State Bar of Nevada (“the Board”) to vacate the appointment of attorney Laura Wightman FitzSimmons to the Nevada Commission on Judicial Selection (“the Commission”), compelling State Bar President-Elect Robert Dickerson to disclose to the Board of Governors the basis of false information that he presented to the Board, and directing the Board to engage in a new selection process for the appointment of a member to the Commission.

Having considered the petition on file herein, together with the additional pleadings submitted by Mr. O’Brien, we conclude that our intervention is not warranted at this time. For the reasons herein expressed, we deny the petition. See NRAP 21(b) (this court, in its discretion, may summarily dismiss a petition for an extraordinary writ without ordering the respondent or the real party in interest to file an answer to the petition).

Initially, we note, as Mr. O’Brien concedes, that this petition does not seek relief within the traditional scope of a petition for a writ of mandamus or prohibition. Nevertheless, this court has “inherent supervisory authority over the State Bar of Nevada, and a strong interest in assuring that not only bar counsel, but all members of the State Bar of Nevada, and all its functionaries, perform their duties properly.” Waters v. Barr, 103 Nev. 694, 696, 747 P.2d 900, 901 (1987); see also SCR 76(1) (“The state bar is under the exclusive jurisdiction and control of the supreme court . . . .”). Thus, if this court were so inclined, it would have the power to fashion an appropriate remedy in this case. We are not presently concerned with whether this court has the power to intervene in matters relating to the state bar. Instead, we are only concerned with whether Mr. O’Brien has demonstrated that this court’s intervention is warranted. As previously stated, we conclude that he has not.

FACTS

On December 11, 1996, the Board met to consider the applicants for appointment to the Commission. Eleven Board members, a quorum, were present. See SCR 87(5) (a majority of the Board members constitutes a quorum for the transaction of any business). Two applicants, the incumbent, Ms. FitzSimmons, and Mr. O’Brien, were nominated for appointment. During the discussion, Mr. Dickerson stated to all present that someone had told him that Mr. O’Brien had a serious disciplinary complaint pending against him. Subsequently, Ms. FitzSimmons was reappointed to the Commission by a vote of six to five. Mr. Dickerson voted for Ms. FitzSimmons.

The accusation of Mr. Dickerson, that a serious ethical complaint was pending against Mr. O’Brien, could not have been further from the truth.¹ Mr. O’Brien has been an active member of the State Bar of Nevada since 1969; no disciplinary complaint has ever been filed against him. Indeed, Mr. O’Brien served for seven years as a member of the Board of Governors of the State Bar of Nevada, and for one year as president of the state bar. He has also served as a U.S. Magistrate and as a member of the Nevada Commission on Judicial Discipline. In short, Mr. O’Brien’s record as an attorney and public servant is beyond reproach.

Believing that the process by which he had been denied appointment to the Commission was unfair, Mr. O’Brien filed this writ petition. In direct response to the petition, the Board held a meeting on January 2, 1997. Thirteen of the Board’s fifteen members participated in that meeting, either directly or by telephone.² The first matter on the agenda for consideration by the Board was to “consider [a] motion to rescind [the] previous vote of the Board of Governors on December 11, 1996, in the appointment of a representative ... to the Commission on Judicial Selection.”

At the meeting, Mr. Dickerson informed the members at great length what he remembered of the earlier meeting. Other members of the Board and the state bar were also afforded an opportunity to express their views on what had happened, and whether the process by which Ms. FitzSimmons was reappointed as a member of the Commission was fair. Both Mr. O’Brien and Ms. FitzSimmons made statements to the Board members at this meeting. At the close of discussion, the Board voted on whether to reconsider its appointment of Ms. FitzSimmons to the Commission. The Board voted seven to six not to reconsider the appointment.

DISCUSSION

In his petition before this court, Mr. O’Brien raises one claim only: he asserts that the appointment of Ms. FitzSimmons to the Commission was accomplished by a fraud upon the Board. Mr. O’Brien does not suggest that Mr. Dickerson perpetrated a fraud. - Instead, he expressly argues that Mr. Dickerson was the target of a fraud that was perpetrated by “someone who was determined to see Ms. FitzSimmons appointed.” Based solely on this alleged fraud, Mr. O’Brien seeks the intervention of this court.

The Board was fully informed of the facts at its subsequent meeting, but nevertheless decided not to rescind the prior appointment.³ Mr. O’Brien has never asserted that he is entitled to be appointed by the Board; he seeks in this petition a writ compelling the Board to engage in a new selection process after having been properly informed of the facts.

On January 31, 1997, we entered an order recognizing that since the Board had already fully considered this matter after having been informed of the facts, it appeared that the petition was moot. Accordingly, we ordered Mr. O’Brien to show cause why this petition should not be dismissed. In response, Mr. O’Brien argues that his petition is not moot because the Board did not engage in a new selection process. Instead, it voted not to rescind its prior appointment of Ms. FitzSimmons. This is largely a semantic distinction. Although the Board did not conduct a new selection meeting, it was informed of the facts and qualifications of the only two nominated candidates. The Board voted not to rescind its prior action, knowing full well that this meant that its appointment of Ms. FitzSimmons would stand. Whether the Board’s decision was based on its perception that Ms. FitzSimmons was the person it desired to appoint or its view that the appointment process was not unfair, is irrelevant. The point is, the Board acted with full knowledge, and appointed a member to the Commission, as it had the authority to do. No right of Mr. O’Brien has been abridged by the Board’s action.

In his response to our order to show cause, Mr. O’Brien has raised two issues not previously raised. First, he argues that District Judge Steven E. Jones should not have participated in the voting because the Nevada Constitution does not envision that a district judge acting as a duly elected member of the Board of Governors of the State Bar might select a member of the Judicial Selection Commission. Mr. O’Brien suggests that there may be a conflict of interest if a judge participates in the selection of a member of the Commission “who could quite conceivably be later asked to pass on the merits of that very judge in Commission proceedings.”

It is conceivable that a situation could arise where the Commission would be required to pass on the merits of a sitting judge who is also a member of the Board — for example, if the Commission voted on whether to nominate that sitting judge/Board member for consideration to fill another judicial vacancy. See Nev. Const. art. 6, § 20. Although such a situation could present a potential conflict of interest on the part of a Commission member selected, no such situation is presented here. Further, the remote possibility of such a situation arising does not prevent a duly elected member of the Board, who is also a district judge, from participating in Board appointment decisions. Additionally, we note that such a potential conflict does not arise simply because of a Board member’s position as a sitting judge, but could occur with respect to any member of the Board seeking judicial appointment. In short, we do not believe that any member of the Board who might be considered at some point for a nomination to fill a judicial vacancy should be disqualified from participating in the selection of Commission members.⁴

Second, Mr. O’Brien argues that Mr. Dickerson should not have been allowed to participate in the vote on the issue of whether to rescind the Board’s appointment of Ms. FitzSimmons, and should not be allowed to vote in any new selection process that might be ordered by this court. Mr. O’Brien argues that Mr. Dickerson has demonstrated his bias against Mr. O’Brien by his conduct in attempting to minimize the impact of his comments and in refusing to disclose the source of his false information. Mr. O’Brien argues further that Mr. Dickerson has a conflict of interest.

The pleadings before this court do not demonstrate that Mr. O’Brien was not selected because of a conflict of interest or bias on Mr. Dickerson’s part. Further, although the.process thát led to the non-appointment of Mr. O’Brien to the Commission may not have been perfect, we are not convinced that it was so unfair as to warrant this court’s intervention into the affairs specifically entrusted by the Nevada Constitution to the Board of Governors of the State Bar. See Nev. Const. art. 6, § 20(3)(b) & (4)(b). Accordingly, we deny this petition.

Springer, C. J., concurs.

1 Mr. Dickerson does not concede that he accused Mr. O’Brien of having a serious disciplinary complaint pending against him. According to Mr. Dickerson, he stated as follows: “Interestingly, to show you how important this appointment apparently is to some people, I even had someone suggest that John O’Brien may be the subject of a pending or recently completed disciplinary case with the state bar. I personally do not believe it, and I am confident it is not true.” Other members of the Board apparently remember the comment differently. In any event, the exact statement is not germane to our decision. It is sufficient for purposes of this opinion that Mr. Dickerson made a comment that conveyed the message to the others present that a disciplinary complaint might have been pending against Mr. O’Brien.

2 A fourteenth member attended the meeting, but had to leave before a vote was taken. A fifteenth member also participated in the meeting, but abstained from voting.

3 The Board was not informed of who allegedly made the comment that inspired Mr. Dickerson’s unfortunate comment. Nevertheless, this fact is not particularly relevant. The issues before the Board were whether the comment had any basis in fact, and whether the comment influenced the vote against' Mr. O’Brien. Ms. FitzSimmons addressed the Board and stated “[i]f any one of you who voted for me were motivated to do so in any degree by the statement of Mr. Dickerson concerning Mr. O’Brien, please speak up now and say so.” The members of the Board were silent. Moreover, as noted above, the majority of the Board voted not to rescind Ms. FitzSimmons appointment. It can therefore be inferred that Mr. Dickerson’s comment did not affect the vote of those members of the Board who voted for Ms. FitzSimmons. Ms. FitzSimmons further told the Board that she was not in any way involved in any fraud as alleged by Mr. O’Brien, and a majority of the Board apparently found her statement credible.

4 The dissenting Justices have suggested that Judge Jones should not have participated in the Board’s vote because Ms. FitzSimmons made donations to Judge Jones’s election campaign, creating a conflict of interest for Judge Jones. Although this issue was raised before the Board, this issue was not raised in this court by Mr. O’Brien. We think it inappropriate to determine an issue that Mr. O’Brien has expressly elected not to raise before this court. Nevertheless, we are compelled to respond to the dissenting opinion. We have previously determined that an attorney’s prior participation in a justice’s campaign, through public endorsement and support of the justice or by serving as a campaign co-chairman in the justice’s election, does not require the justice’s recusal from a case in which that attorney is involved. See State, Dep’t of Transp. v. Barsy, 113 Nev. 709, 941 P.2d 969 (1997); Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003 (1989), cert. denied, 493 U.S. 958 (1989). It follows that an attorney’s prior support of a judge’s campaign through campaign donations does not preclude the judge from participating in a non-judicial decision regarding the attorney, such as the appointment of the attorney to a commission.

Further, under the Nevada Constitution, the Board of Governors of the State Bar of Nevada has implied discretion to determine whether a Board member should be disqualified from voting in the selection of a commission member. See Nev. Const. art. 6, § 20. In this case, the Board, apparently, in its discretion, permitted Judge Jones to vote.