Goldman v. Nevada Com'n on Judicial Discipline, 18326

• Decision Date: 01 April 1992
• Docket Number: No. 18326,18326
• Citation: 830 P.2d 107,108 Nev. 251
• Parties: The Honorable Paul S. GOLDMAN, District Judge, Eighth Judicial District Court, In and For the County of Clark, State of Nevada, By and Through Julie Goldman-Wilson, As Personal Representative of the Estate of Paul S. Goldman, Appellant, v. The NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
• Court: Nevada Supreme Court

Page 107

830 P.2d 107

108 Nev. 251

The Honorable Paul S. GOLDMAN, District Judge, Eighth Judicial District Court, In and For the County of Clark State of Nevada, By and Through Julie Goldman-Wilson, As Personal Representative of the Estate of Paul S. Goldman, Appellant, v. The NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.

No. 18326.

Supreme Court of Nevada.

April 1, 1992.

Beckley, Singleton, DeLanoy, Jemison & List and J. Mitchell Cobeaga and Alan J. Lefebvre, Frank J. Cremen, Las Vegas, for appellant.

Eugene J. Wait, Jr. and Wayne A. Shaffer, Reno, for respondent.

OPINION

PER CURIAM:

Former District Judge Paul S. Goldman appeals from the final report, findings of fact, conclusions of law and judgment of the Nevada Commission on Judicial Discipline (the commission). Following formal proceedings, the commission found that appellant: (1) had voluntarily abandoned and relinquished his office; (2) had engaged in willful misconduct and habitual intemperance, unexcused by any claimed physical or mental disability; and (3) was not and had not been permanently disabled physically or mentally to perform the duties of his office in the sense contemplated by the Nevada Constitution and statutes. See Nev. Const. art. 6, § 21; NRS 3.092. Accordingly, the commission declared appellant's office vacant, ordered his removal from office, and rejected appellant's claim for an early, enhanced disability pension. Further, the commission directed that, at such time as appellant became eligible to receive retirement benefits, he would be entitled to only such standard, ordinary retirement benefits as he had earned during the course of his actual and active judicial service. For the reasons and with the modifications specified below, we affirm the commission's determinations.

I. PRELIMINARY COMMENTS

On September 14, 1991, after this appeal was submitted for decision, appellant died in a tragic traffic accident. The special prosecutor for the commission, attorney Eugene Wait, Jr., subsequently filed a formal suggestion of death on the record. Thereafter, on October 24, 1991, appellant's counsel moved this court to substitute Julie Goldman-Wilson, the special administratrix of appellant's estate, as appellant's personal representative on appeal. See NRAP 43(a) (where a party dies during pendency of an appeal, any party may suggest the death on the record and the personal representative of the deceased party may be substituted as a party).

Although the right of this court to proceed to determination of the appeal under these circumstances is not in question, see Walker v. Burkham, 68 Nev. 250, 252, 229 P.2d 158, 159 (1951), we have nevertheless carefully considered whether appellant's death has rendered the issues presented moot. For the reasons stated below, we have concluded that the issues of first impression revealed on this record "are of such importance to the citizens of this State that an appellate resolution is virtually compelled." See McKay v. Bergstedt, 106 Nev. 808, 811-12, 801 P.2d 617, 620 (1990).

First, in our view, the responsible administration of the judicial disability retirement system warrants definitive, final appellate review of the commission's determinations respecting appellant's claim for an early, enhanced disability pension. See, e.g., Judicial Inquiry and Review Bd. v. Snyder, 514 Pa. 142, 523 A.2d 294, 300 n. 2 (Nix, C.J., concurring), cert. denied, 484 U.S. 829, 108 S.Ct. 100, 98 L.Ed.2d 61 (1987). In addition, we perceive a need to clarify the circumstances under which the statutory authority relating to disability retirement conferred upon the governor is preempted by the commission's constitutional authority to resolve questions of judicial misconduct and disability.

A second and equally compelling concern is the lack of direct precedent addressing matters of judicial misconduct to which members of this state's judiciary may turn for guidance. See In re Weeks, 134 Ariz. 521, 523, 658 P.2d 174, 176 (1983) (court reached merits of judicial discipline matter where resolution of issues would provide future guidance to judiciary). Notably, Nevadans have historically manifested a pronounced sensitivity to potential abuses of judicial power. Scholars of this state's constitutional process have suggested, for example, that this sensitivity--originating from early public dissatisfaction and criticism of the Nevada Territorial bench--explains the presence of no less than four separate provisions in our constitution allowing for the removal of state justices and judges during their terms of office. ¹ Little or no instructive and guiding local precedent, however, defines or interprets the procedures and grounds upon which removal from judicial office is warranted under these provisions.

For these reasons, we have concluded that the responsible course is to proceed with a definitive and comprehensive resolution of the issues presented on this record. We emphasize, however, that our decision is premised not upon a desire to append an ignoble epitaph to a life and legal career that included many marks of excellence and distinction. ² Rather, we proceed upon the premise that our comprehensive and conclusive review of this appeal will establish needed precedent, enhancing the efficacy of Nevada's judicial disability retirement system, the competence of its judicial officers and public confidence in the commission to promote and maintain the integrity of the judiciary. See Snyder, 523 A.2d at 298-99 (judge's defeat in election during pendency of disciplinary matter before supreme court did not end court's responsibility to maintain integrity of judicial administration and to uphold public respect for the rule of law; court's jurisdiction over disciplinary matters is only at an end when it issues a final order). See also Matter of Yaccarino, 101 N.J. 342, 502 A.2d 3, 30-31 (1985) (predominant interest is preservation of public confidence in judiciary). In light of the above, we grant the motion to substitute Ms. Goldman-Wilson as appellant's personal representative.

II. PROCEEDINGS BEFORE THE COMMISSION

In early October 1986, a series of disturbing events focused widespread attention on appellant's courtroom. Specifically, during the week of October 8, 1986, appellant held three individuals in contempt of court and ordered them jailed. The individuals included an 87-year old woman who refused to testify against her son in a criminal matter; a courthouse maintenance supervisor who appellant determined was responsible for noisy repairs on the roof of appellant's courtroom; and a Las Vegas Police Commander who appellant unlawfully held in direct contempt of court under circumstances wherein appellant lacked both subject matter and personal jurisdiction to take such action. See Goldman v. Bryan, 106 Nev. 30, 787 P.2d 372 (1990); Cunningham v. District Court, 102 Nev. 551, 729 P.2d 1328 (1986).

Concerned that appellant's behavior might constitute an emergency requiring tentative administrative reapportionment of the public's judicial business, Supreme Court Justice Thomas L. Steffen travelled to Las Vegas on behalf of this court to inquire further into these preliminary indications of appellant's unusual judicial conduct. Subsequently, on October 16, 1986, appellant directed a letter to the chief justice of this court, requesting the court to relieve him temporarily of his responsibility to act on any matters pending before him. In view of appellant's apparent acknowledgement that he was at least temporarily unfit for judicial service, the full court entered an "Administrative Order" on October 19, 1986, temporarily reapportioning the public's judicial business in the interest of the efficient and effective administration of justice. See Goldman v. Bryan, 106 Nev. at 32-33, 787 P.2d at 374; Goldman v. Bryan, 104 Nev. 644, 647 n. 3, 764 P.2d 1296, 1297-98 (1988). The order temporarily precluded appellant from attempting to exercise judicial functions without the prior approval of the court and directed the Chief Judge of the Eighth Judicial District Court to reassign to other judges of that district any cases then assigned to appellant for trial or hearing "as [was] necessary to accommodate the interests of justice." ³ Id., 104 Nev. at 647 n. 3, 764 P.2d at 1297-98.

Thereafter, the Nevada Commission on Judicial Discipline commenced an investigation into appellant's fitness for office. Following an initial investigation, the special prosecutor filed with the commission an informal complaint against appellant setting forth numerous allegations of misconduct in office. The commission then scheduled and conducted a hearing to determine if probable cause existed to believe that appellant had engaged in willful misconduct or habitual intemperance. See Interim Rule 1.2. ⁴ Appellant attended the hearing with counsel.

The special prosecutor presented evidence in the form of documentary exhibits as well as the testimony of numerous witnesses. Although appellant's counsel cross-examined witnesses, the only evidence introduced on appellant's behalf was a letter that he had previously written to then Governor Richard Bryan. The letter notified the governor of appellant's intention to seek an early, enhanced disability pension and requested the governor to appoint three physicians to examine him in accordance with NRS 3.092(3) to determine if he was "permanently incapacitated for medical reasons to perform the duties" of his office. ⁵ The governor, however, subsequently declined to act in accordance with NRS 3.092(3) upon advice from the attorney general that proceedings were pending or impending against appellant before the commission. Appellant's unsuccessful attempt to compel the governor to act was the subject of this court's opinion in Goldman v. Bryan, 106 Nev. 30, 787 P.2d 372 (1990).

Following the hearing, the commission issued written findings, conclusions, and an order of formal complaint....