Jones v. Nev. Comm'n on Jud. Discipline

130 Nev., Advance Opinion II
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE HONORABLE STEVEN E. JONES, No. 61902
Petitioner,
vs.
NEVADA COMMISSION ON JUDICIAL
DISCIPLINE,
FILED
Respondent.
CH, F DEPUTY CLERK
Original petition for a writ of mandamus seeking relief in a
judicial discipline proceeding.
Petition denied.
Jimmerson Hansen, P.C., and James J. Jimmerson and James M.
Jimmerson, Las Vegas,
for Petitioner.
David F. Sarnowski, Executive Director, and Brian R. Hutchins, Acting
Executive Director, Nevada Commission on Judicial Discipline, Carson
City,
for Respondent.
BEFORE THE COURT EN BANC.
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OPINION
By the Court, CHERRY, J.: 1
Petitioner, the Honorable Steven E. Jones, is a Nevada family
court judge against whom respondent, the Nevada Commission on Judicial
Discipline, is currently conducting disciplinary proceedings. Judge Jones
filed this original petition for a writ of mandamus seeking to halt and
dismiss the disciplinary proceedings against him because, he asserts, the
Commission initiated the investigation based on a defective complaint,
assigned an unfair or biased investigator who investigated issues outside
of those indicated in the complaint, and is exercising its jurisdiction
outside of the permissible time limits. Ultimately, we deny writ relief
because most of these issues are not yet ripe for review. Nevertheless, in
this opinion, we clarify that the investigatory stage of judicial discipline
proceedings provides fewer due process protections than the adjudicatory
stage. We also take this opportunity to address the reasoning behind our
denial of Judge Jones' motion to seal these proceedings from public access.
FACTS
The Commission exercises original jurisdiction over the
discipline of judges, which includes censure, removal, and involuntary
retirement, among other forms of discipline provided for by statute. Nev.
Const. art. 6, § 21(1) and (5); NRS 1.440 (exclusive jurisdiction); see, e.g.,
'The disciplinary proceeding that is the subject of this writ
proceeding is separate and distinct from the proceeding that culminated in
the Commission's February 3, 2014, Findings of Fact, Conclusions of Law
and Imposition of Discipline, available at http://judicial.state.nv.us/
Jones%20-%20Findings%20Conclusions%20Imposition%201206-218.pdf.
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NRS 1.4677 (forms of discipline). Before 2010, NRS 1.4655(1) provided
that the Commission could investigate a judge's conduct after receiving a
written, sworn complaint or any other type of information that reasonably
indicated that a judge may have committed misconduct or may be
incapacitated. 2 2009 Nev. Stat., ch. 312, § 21, at 1339-40. If the complaint
contained allegations that, if proven, would warrant discipline, the
Commission would assign an investigator to inquire into the allegations'
merits. NRS 1.4663(1). When the investigation resulted in insufficient
"reason to proceed," the complaint would be dismissed. NRS 1.4667. If
the results showed sufficient reason to proceed, in that there existed a
likelihood that the evidence would clearly and convincingly establish
grounds for discipline, the Commission would require the judge to respond
to the complaint. NRS 1.4667; NRS 1.467. The Commission would then
reconsider the matter in light of the judge's response and either dismiss
the complaint or direct a prosecuting attorney to file a formal statement of
charges, in prelude to a formal, public hearing on the charges, NRS 1.467,
at which the Commission would ultimately determine whether and how to
impose discipline. NRS 1.4673.
In August 2006, after reviewing police investigative reports
and newspaper articles concerning Judge Jones' alleged involvement in
two particular incidents of domestic battery on June 20 and 22, 2006, and
a resulting temporary protective order (TPO) violation, the Commission,
2 The judicial discipline provisions were substantially revised in
2009; however, the basic procedure remains the same. See 2009 Nev.
Stat., ch. 312, §§ 1-36, at 1336-50; id. § 35, at 1350. As the complaint at
issue here was filed in 2006, this opinion refers to the provisions in effect
at that time, unless otherwise stated.
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through its executive director, issued a verified statement of complaint
against Judge Jones, alleging that he may have violated Canons 1, 2, and
4 of the Nevada Code of Judicial Conduct. See Procedural Rules of the
Nevada Commission on Judicial Discipline (PRJDC) 10(2). In addition to
the alleged domestic battery and TPO violation, the complaint detailed
possible instances of interference with the resulting police investigation,
misuse of court personnel to render personal services, and exploitation of
the judicial position through involvement in a private corporation. The
Commission assigned The Advantage Group to investigate the complaint.
Judge Jones was first alerted to the existence of an
investigation in November 2010, when he was interviewed by The
Advantage Group. He received a copy of the complaint in July 2012, along
with a notice of proposed charges. In a letter attached to the complaint,
the Commission explained that the complaint's main allegations had been
dropped due to lack of clear and convincing evidence. Nevertheless, the
Commission's letter continued, over the course of the investigation several
other concerns developed, to which the Commission believed a response
was warranted. In particular, the attached proposed charging document
alleged that Judge Jones had, continually since approximately 1996 or
1997, violated the Nevada Code of Judicial Conduct by persuading various
individuals to invest large sums of money in unsound financial schemes,
some involving undisclosed ex-felons. The proposed charging document
also alleged that Judge Jones had engaged in and encouraged court
employees to engage in other business dealings with convicted ex-felons,
asked his bailiff to personally loan an ex-felon money on multiple
occasions, and attempted to convince his bailiff that Judge Jones was
entitled to a portion of his bailiffs disability retirement payout. Further,
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the proposed charging document alleged that Judge Jones was involved in
an intimate relationship with an extern and later allowed her to appear in
his courtroom without disclosing their prior relationship or recusing
himself. Finally, the proposed charging document alleged that Judge
Jones misappropriated marijuana evidence from an ongoing case. Outside
of the first alleged unsound investment schemes, the asserted activities
took place between 2002 and 2008.
Judge Jones, asserting that the investigation upon which the
proposed charges are based resulted from a defective complaint, was
conducted by a biased party in an untimely manner, and included an
improper scope, now seeks this court's extraordinary intervention. The
Commission has filed an answer, arguing that the matter is not now ripe
for our consideration, and Judge Jones has filed a reply.
DISCUSSION
This court has original jurisdiction to grant extraordinary writ
relief, MountainView Hosp., Inc. v. Eighth Judicial Dist. Court, 128 Nev.
273 P.3d 861, 864 (2012); Nev. Const. art. 6, § 4, and "we are
empowered to provide extraordinary relief with regard to Commission
proceedings." Mosley v. Nev. Comm'n on Judicial Discipline, 117 Nev.
371, 377, 22 P.3d 655, 658 (2001). Whether to consider a petition for
extraordinary relief, however, is within our sole discretion. State ex rel.
Dep't of Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339
(1983).
Here, Judge Jones seeks a writ of mandamus directing the
Commission to take specific actions in accord with procedural aspects of
the judicial discipline statutes concerning investigations and, ultimately,
to dismiss the 2006 complaint filed against him. "A writ of mandamus is
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available to compel the performance of an act that the law requires as a
duty resulting from an office, trust, or station or to control an arbitrary or
capricious exercise of discretion." Int? Game Tech., Inc. v. Second Judicial
Din. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); see NRS 34.160.
Writ relief is generally available only where there is no "plain, speedy and
adequate remedy in the ordinary course of law." NRS 34.170; see
Halverson v. Sec'y of State, 124 Nev. 484, 487, 186 P.3d 893, 896 (2008).
To the extent that Judge Jones is seeking prehearing relief, no adequate
legal remedy exists, as an appeal is available only from an order of
censure, removal, retirement, or other discipline entered after the formal
hearing. NRAP 3D(c)(2); PRJDC 34(1). As the petitioner, however, it is
Judge Jones' burden to demonstrate that this court's extraordinary,
prehearing intervention is warranted. Pan v. Eighth Judicial Dist. Court,
120 Nev. 222, 228, 88 P.3d 840, 844 (2004). Judge Jones has not met that
burden here.
Merits of the writ petition
In challenging the Commission's actions, Judge Jones argues
that the Commission violated procedural statutes and rules during the
disciplinary investigation when it (1) proceeded with the investigation
despite a complaint built on hearsay and unreliable evidence, (2) assigned
a biased investigator and failed to restrict the investigator to charges
relating to the complaint, and (3) extended the investigation beyond the
time frames set forth in NRS 1.4655 and NRS 1.4681, Judge Jones asserts
that he has been prejudiced by the Commission's improper actions and
inactions because he now faces allegations different from those originally
presented in the 2006 complaint and he has lost virtually all opportunity
to mount a defense, especially in regard to the new allegations stemming
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from alleged conduct beginning many years ago. Judge Jones also claims
that the Commission arbitrarily and capriciously applied statutory and
rule-based procedural safeguards during the investigatory phase of the
judicial discipline proceeding and robbed him of his due process rights to
notice and an opportunity to be heard, thus impinging upon a protected
interest in his judicial office.
This court has recognized that "commissioned judges in this
state have a protected interest in their judicial offices under the
Fourteenth Amendment [of the United States Constitution]." Mosley v.
Nev. Comm'n on Judicial Discipline, 117 Nev. 371, 378, 22 P.3d 655, 659
(2001). The Fourteenth Amendment provides that no state shall "deprive
any person of life, liberty, or property, without due process of law." U.S.
Const. amend. XIV, § 1; see also Nev. Const. art. 1, § 8(5) ("No person shall
be deprived of life, liberty, or property, without due process of law.").
Thus, when a judicial office is at stake, due process mandates "a fair trial
before a fair tribunal," Ivey v. Eighth Judicial Dist. Court, 129 Nev. ,
, 299 P.3d 354, 357 (2013), requiring, at least, notice of the charges and
an opportunity to be heard. See Callie v. Bowling, 123 Nev. 181, 183, 160
P.3d 878, 879 (2007).
We have recognized in another context, however, that due
process rights generally are not implicated during purely investigatory
proceedings. Hernandez v. Bennett-Haron, 128 Nev. , 287 P.3d
305, 310-11 (2012) (citing Hannah v. Larche, 363 U.S. 420, 442 (1960)). In
Hernandez, highway patrol officers challenged the constitutionality of
county code provisions establishing coroner's inquests into officer-related
deaths, arguing in part that the provisions violated due process
guarantees. Id. at , 287 P.3d at 308. In determining whether due
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process guarantees were impacted, we considered the constitutional
interest at issue, the type of proceeding involved, and the proceeding's
potential impact on due process protections. Id. After analyzing several
United States Supreme Court cases on the subject, which culminated in
the conclusion that merely investigatory proceedings do not adjudicate
legal rights and thus do not implicate due process protections, id. at ,
287 P.3d at 313, we concluded that coroner's inquests were merely
investigatory and thus did not trigger due process rights. Id. at , 287
P.3d at 314.
The same result is warranted here. In Nevada, as elsewhere,
judicial discipline proceedings are divided into two distinct phases:
investigatory and adjudicatory. See NRS 1.4663 (governing investigations
of alleged misconduct to determine whether to issue a formal statement of
charges); NRS 1.4673 (governing hearings on formal statements of
charges, after which disciplinary actions may be imposed). See, e.g., In re
Flanagan, 690 A.2d 865, 871-72 (Conn. 1997); In re Henson, 913 So. 2d
579, 589 n.3 (Fla. 2005); In re Chrzanowski, 636 N.W.2d 758, 769 (Mich.
2001). During the investigatory proceedings, which are confidential, the
Commission reviews the complaint, appoints an investigator and considers
the investigator's report, and weighs the judge's response to any probable
cause determination; at each step, the Commission is required to
determine whether there exists sufficient cause to proceed to the next
stage or whether the complaint should be dismissed. Once a formal
statement of charges against the judge is filed, the adjudicatory
proceedings must be made open to the public, and the judge has every
opportunity afforded under the law to defend, including notice of the
charges and a formal hearing. NRS 1.4683(1); NRS 1.4687. It is during
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this phase that the judge's legal rights are adjudicated, not before.
Accordingly, due process rights will generally not attach before a formal
statement of charges is filed.
Other jurisdictions, distinguishing between the availability of
due process protections during an investigation and those that attach
when adjudication begins, have likewise determined that due process
protections do not attach until a judicial discipline proceeding has been
initiated. See In re Petition to Inspect Grand Jury Materials, 576 F. Supp.
1275, 1284 (S.D. Fla. 1983); Ryan v. Comm'n on Judicial Performance, 754
P.2d 724, 729 (Cal. 1988) (stating that while "a judge certainly has the
right to conduct a proper defense in disciplinary actions [,] . . . the right
attaches [only] once formal proceedings are instituted," not during the
preliminary investigation); Flanagan, 690 A.2d at 875 (citing other cases
holding the same). In rejecting the appellant's claimed due process right
to pre-probable-cause notice of the charges, the Connecticut Supreme
Court in In re Flanagan stated that "[a] judge is only entitled to
reasonable notice of the charges upon which he may be disciplined after
the review council has determined what those charges are." 690 A.2d at
875-76. 'Simply stated, a judge does not have the [constitutional] right to
defend against a proceeding that has not yet been brought." Id. at 875
(alteration in original) (quoting Ryan, 754 P.2d at 747).
We agree that due process rights generally do not attach
during the investigatory phase of judicial discipline proceedings, as this
will allow the investigation to proceed unimpeded until the Commission
has determined whether formal charges should be brought. Allowing for
unobstructed investigation furthers the Commission's goal of protecting
the integrity of the judiciary and safeguarding public confidence in the
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judicial branch but does not unduly burden the judge's right and ability to
defend. See NRS 1.462 (explaining that the purpose of judicial discipline
is "to preserve an independent and honorable judiciary"); Flanagan, 690
A.2d at 875 ("Two interests must be accommodated in judicial disciplinary
proceedings: (1) the review council must have broad authority to
investigate the conduct of our judges in order to maintain public
confidence in the judiciary; and (2) our judges must be afforded adequate
process before discipline is imposed to ensure that discipline is not
imposed on the basis of unfounded charges of misconduct."). Accordingly,
due process typically will not be implicated during the investigatory stage,
and Judge Jones' claimed procedural violations regarding the prehearing
complaint, investigation, and time limits must be viewed in this context.
As the California Supreme Court has recognized, absent due process
concerns, relief from any procedural violations occurring during the
investigatory stage may be obtained only by a showing of actual prejudice.
Ryan, 754 P.2d at 729.
The requisite showing of actual prejudice is not present in this
case. Both at the time the complaint was filed in 2006 and today, there is
no absolute prohibition against initiating an investigation based on
hearsay and inadmissible evidence included in the complaint. NRS
1.4655(1) (Commission can proceed on "ifinformation from any source and
in any format, from which the Commission may reasonably infer that the
justice or judge may have committed misconduct or be incapacitated"); see
Nev. Const. art. 6, § 21(9) (providing that "[a]ny matter relating to the
fitness of a justice or judge may be brought to the attention of the
Commission by any person or on the motion of the Commission"); NRS
1.4263 (as amended in 2009) (defining, currently, "complaint" as
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"information in any form and from any source that alleges or implies
judicial misconduct or incapacity"). The important consideration is
whether the alleged misconduct is capable of proof. NRS 1.4663(1)
(requiring that the "complaint contain[ allegations which, if true, would
establish grounds for discipline"); see NRS 1.4657 and NRS 1.4663 (as
amended in 2009) (both requiring the Commission to• determine that the
"complaint alleges objectively verifiable evidence from which a reasonable
inference could be drawn that a judge committed misconduct or is
incapacitated" before initiating an investigation). Further, although
Judge Jones may now face different allegations from those asserted in
2006, judges generally have no right to avoid charges based on new
evidence discovered during the course of a legitimate investigation.
Flanagan, 690 A.2d at 875-76 (explaining that there exists no right during
the investigatory stage to notice of the charges or to limit the investigation
and charges to only those set forth in the complaint). Judge Jones has not
asserted or shown that the additional proposed charges were unfounded or
rendered with improper motive, and there is no indication that the
allegations were stated in a manner insufficient to allow Judge Jones to
respond. Although Judge Jones argues that he is unable to defend against
the proposed charges because the evidence has become unavailable and for
other reasons, he has not so demonstrated with specific facts, and
regardless, those inherently factual issues are not properly before us in
the first instance. See generally Millspa ugh v. Millspaugh, 96 Nev. 446,
448-49, 611 P.2d 201, 202 (1980) (stating that knowledge of the running of
the statute of limitations is "a question of fact to be determined by the jury
or trial court after a full hearing where . . . the facts are susceptible to
opposing inferences" (internal quotation omitted)); Round Hill Gen.
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Improvement Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981)
(explaining that this court is ill-suited to resolve factual issues). Based on
Judge Jones' failure to demonstrate that writ relief is warranted, we
decline to address Judge Jones' procedural challenges to the Commission's
actions at this time. Essentially, this writ petition is premature. The
timing concerns and any other alleged prejudicial procedural violations
may be raised during any formal hearing on the charges and, if aggrieved
by the final decision, to this court on appeal.
Sealing of court records and documents
In arguing that this court's extraordinary intervention was
warranted at this stage in the proceedings, Judge Jones validly pointed
out that, to some extent, once formal charges are filed and the matter
made public, damage to his reputation cannot be undone. For this reason,
Judge Jones also moved to seal the court record in this case under Rule for
Sealing and Redacting Court Records (SRCR) 3. In so doing, he asserted
that the public's interest in open access to the courts should yield to the
compelling interests underpinning confidentiality before the Commission,
including but not limited to, meritless complaints, attracting and retaining
high-quality judicial personnel, preventing belligerent litigants from
harassing judges, and encouraging judges with valid complaints against
them to retire rather than risk a public hearing.
SRCR 3 provides procedures for sealing court records or
documents in civil cases. It states that when a motion is made to seal, the
information to be sealed remains confidential for a reasonable period until
the court determines whether appropriate grounds exist for sealing the
records. See SRCR 3. Courts may only seal their records or documents
when the sealing is "justified by identified compelling privacy or safety
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interests that outweigh the public interest in access to the court record."
SRCR 3(4). 3 This presumption favoring public access to judicial records
and documents is only overcome when the party requesting the sealing of
a record or document demonstrates that "the public right of access is
outweighed by a significant competing interest." Howard v. State, 128
Nev. „ 291 P.3d 137, 142 (2012) (discussing SRCR 3).
In an attempt to meet this burden, Judge Jones relied on the
catchall provision that justifies sealing or redaction when a party
identifies another "compelling circumstance." SRCR 3(4)(h). But we have
already concluded that the statute recognizing the state's interest in the
confidentiality of judicial disciplinary proceedings by or before the
Commission does not apply to proceedings before this court. 4 Matter of
Halverson, 123 Nev. 493, 507, 169 P.3d 1161, 1171 (2007) ("[ARJD 5,
requiring confidentiality until the filing of a formal statement of charges]
did not apply to proceedings in this court, particularly in light of NRS
1.090's mandate that, with only limited exceptions, all courts of justice be
3 Identified compelling interests include statutory authorization by
state or federal law; furthering a district court or justice court protective
order or order striking material from the record; protecting public health
and safety; protecting personal, medical, or tax information; protecting the
confidentiality of settlement agreements; and protecting intellectual
property or trade secrets. SRCR 3(4)(a)-(g).
4Administrative and Procedural Rule for the Nevada Commission on
Judicial Discipline (ARJD) 5 was repealed and superseded by NRS 1.4683.
We held in Halverson that the provisions of NRS 1.4683 are "nearly
identical" to the prior rules governing confidentiality of proceedings before
the Commission, and "Steffen remains the controlling authority with
respect to appeals from confidential Commission rulings." Halverson, 123
Nev. at 508, 169 P.3d at 1171.
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open to the public ...."); Attorney Gen. v. Steffen, 112 Nev. 369, 373-74,
915 P.2d 245, 248 (1996). Thus, "when a judge avails himself of the
traditionally public forum of this court and seeks to have all proceedings
against him by the Commission .. . dismissed," the "public policies to keep
government open and the public informed" prevail over "the state public
policy favoring confidentiality in initial judicial discipline proceedings."
Steffen, 112 Nev. at 373-74, 915 P.2d at 248. The public has a "right and
need. .. to know of such an extraordinary dispute in governmental
affairs." Id. at 374, 915 P.2d at 248. In addition, the threat of "secret
judicial proceedings" would undermine "public confidence in this court and
the judiciary," while "[o]penness promotes public understanding,
confidence, and acceptance of judicial processes and results." Id. at 374,
915 P.2d at 248-49. Accordingly, the motion to seal was denied, and the
proceedings before this court have been made publicly available.
CONCLUSION
As discussed above, at this investigatory stage in the judicial
discipline proceedings below, Judge Jones has not demonstrated actual
prejudice stemming from any procedural or substantive violations
sufficient to warrant writ relief at this time, although he may be able to
establish such harm in the future. Because of the premature nature of
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this writ petition, we conclude that our extraordinary intervention is not
warranted. After this case has developed factually, a future appeal from
any final order of discipline will allow for meaningful review. Accordingly,
we deny this petition for extraordinary writ relief.
Cherry
I I WM.Emer. E/MI
, CA. J.
Gibbons Pickering
J.
Hardesty Parraguirre:
(7)
L4& J. , J.
Douglas Saitta
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