Matter of Halverson

• Decision Date: 01 November 2007
• Docket Number: No. 49876.,49876.
• Parties: In the Matter of the Honorable Elizabeth HALVERSON, District Judge, County of Clark, State of Nevada.
• Court: Nevada Supreme Court

169 P.3d 1161

In the Matter of the Honorable Elizabeth HALVERSON, District Judge, County of Clark, State of Nevada.

No. 49876.

Supreme Court of Nevada.

November 1, 2007.

Arrascada & Arrascada, Ltd., and John L. Arrascada, Reno; Gentile DePalma, Ltd., and Dominic P. Gentile and William H. Gamage, Las Vegas, for Judge Elizabeth Halverson.

Dorothy Nash Holmes, Carson City; David F. Sarnowski, Executive Director, Carson City, for Nevada Commission on Judicial Discipline.

BEFORE THE COURT EN BANC.¹

OPINION

By the Court, MAUPIN, C.J.:

INTRODUCTION

This appeal raises several issues of first impression concerning a rarely used but formidable power available to the Nevada Commission on Judicial Discipline: its constitutional and statutory authority to temporarily suspend a judge, before conducting a formal hearing with accompanying due process protections, when the Commission determines that the judge poses a "substantial threat of serious harm to the public or to the administration of justice."²

In considering this appeal, we resolve several novel issues concerning the procedures to be used and the standards to be applied when the Commission undertakes to exercise this authority, as well as the fundamental issue of whether to uphold the Commission's decision.

SUMMARY OF DECISION

Under the Nevada Constitution, the Commission has discretion to impose an interim suspension; accordingly, we review the Commission's decision for an abuse of that discretion. Purely legal issues, however, are reviewed de novo. With respect to whether a judge's conduct justifies an interim suspension in order to protect the public or the administration of justice, the misconduct upon which the suspension is based must pose a current threat of harm. In determining whether a current threat exists, the Commission should consider the totality of the circumstances, based on the information available to it. This consideration may include a wide array of past misconduct. Past misconduct not demonstrating a current threat of harm does not, however, form an appropriate basis for an interim suspension.

Additionally, the Commission is authorized to impose an interim suspension during any stage of its proceedings, both before and after issuance of a formal statement of charges. Thus, the Commission's temporary suspension of Judge Halverson before formal proceedings were commenced was permissible. Further, the statutory standard applicable to this matter, permitting a temporary suspension when a judge poses a "substantial threat of serious harm to the public or to the administration of justice," is neither vague nor ambiguous.

As the Commission's procedures thus far have accorded Judge Halverson due process, we reject her challenges to the suspension on this basis. We caution the Commission, however, that it must remain mindful of the time that passes after a temporary suspension is imposed and before a full hearing on formal proceedings takes place, for procedural safeguards that are adequate in light of the provisional nature of a temporary suspension will not suffice when that suspension takes on the attributes of more permanent discipline.

In the instant case, the record demonstrates that the Commission did not abuse its discretion in determining that the totality of the circumstances justified the interim suspension of Judge Halverson on the four grounds identified by the Commission: (1) inability to adequately conduct criminal trials; (2) abusive behavior toward court personnel, including sexual harassment and creating a hostile work environment; (3) falling asleep on the bench; and (4) failure to cooperate with colleagues and court administration. We therefore affirm the Commission's suspension order.

FACTS

Newly elected Judge Elizabeth Halverson took the bench in Department 23 of the Eighth Judicial District Court, Clark County, in January 2007. Upon receiving documentation approximately four months later describing concerns with Judge Halverson's judicial performance and treatment of staff, Commission General Counsel David Sarnowski prepared an informal written complaint, which was filed with the Commission on April 25, 2007.³ The Commission subsequently met by telephone and decided to commence an investigation. Additionally, based upon the information received, the Commission concluded that Judge Halverson posed a substantial threat of serious harm to the public and to the administration of justice and that an interim suspension was therefore warranted. The Commission filed its initial written suspension order on May 10, 2007, identifying six bases for its decision. In proceeding this way, the Commission failed to give Judge Halverson seven days' notice of the suspension, as required by Commission on Judicial Discipline Rule 9(2).

Upon receiving the suspension order, Judge Halverson requested a hearing. The Commission granted the request and stayed the suspension order pending the hearing.⁴ The matter thus remained confidential at that time under NRS 1.4683, which requires that all Commission proceedings remain confidential until the Commission makes a probable cause determination and a formal statement of charges is filed. In anticipation of the hearing, the Commission appointed a special prosecutor.

The Commission issued several witness subpoenas at the request of the special prosecutor and offered to issue subpoenas for Judge Halverson as well. Judge Halverson then requested that a number of subpoenas duces tecum issue to certain district court judges, several Clark County employees, and a number of district court staff members; these subpoenas requested production of all documentation on personnel grievances filed against all Nevada judges since January 1, 2004. The appointed hearing chair, Sixth Judicial District Court Judge Richard Wagner, directed, without explanation, that Judge Halverson's requested subpoenas not issue.⁵ He later explained that the requests were overbroad, unduly burdensome, and requested information that was irrelevant to the proceedings. Judge Wagner also noted that the requests included information and documents concerning other employees, which would be confidential.

At the hearing, the Commission indicated that the special prosecutor bore the burden of demonstrating by a preponderance of the evidence that an interim suspension was warranted, based on the totality of the circumstances, and that Judge Halverson bore no burden. It then allocated three and a half hours to the special prosecutor and two and a half hours to Judge Halverson to present their respective cases. The court reporter monitored the time each side expended on witness examination, objections, and arguments on objections. At the end of the hearing, the special prosecutor had expended a few minutes more than Judge Halverson, but not the full extra hour allotted to the prosecutor. Accordingly, the parties took approximately the same amount of time in presenting their respective cases.

Following the hearing, the Commission deliberated and then announced its findings. Of the six grounds identified in its original suspension order, the Commission held that four had been proved by a preponderance of the evidence: (1) "Judge Halverson is without sufficient legal abilities to conduct trials in criminal cases"; (2) "Judge Halverson has failed to perform the duties of judicial office impartially and diligently in that there is substantial evidence that she has not treated staff and litigants with patience, dignity or courtesy," and "she has treated staff to [sic] a hostile work environment and sexual harassment to the extent that there is a serious threat to the administration of justice"; (3) "Judge Halverson has failed to diligently perform her duties by falling asleep at least on one occasion and possibly more while on the bench during a jury trial"; and (4) "Judge Halverson [has] failed to diligently carry out the duties of her office [by] failing to cooperate with other judges and court administrators." The Commission then determined that Judge Halverson posed a substantial threat of serious harm to the public and to the administration of justice and accordingly imposed an interim suspension. The evidence relating to each of the four stated bases for the suspension is described below.

Ability to conduct criminal trials

A Clark County Deputy District Attorney testified about a criminal child molestation case that she had prosecuted before Judge Halverson. Specifically, the deputy district attorney described her discovery, after watching a videotape shown by Judge Halverson, that Judge Halverson had dined and conversed with the jury over the course of its two-day deliberation, outside the presence of either attorney in the case. The tape confirmed that, after reading a standard admonishment that the jury should not discuss the matter until the case was formally submitted, Judge Halverson asked the jurors if they had any questions. She then answered several questions about criminal procedure, evidence in the case, and the reliability of a child witness (the victim in the case), as well as other topics. The deputy district attorney asserted before the Commission that, due to Judge Halverson's ex parte jury contact, the defense moved for a mistrial, which was denied. The record indicates that the jury subsequently could not reach verdicts on thirteen of the twenty-three counts tried in the case, and rendered verdicts of acquittal on the remaining ten counts.

Judge Stewart Bell, Presiding Criminal Judge in Clark County, also testified regarding Judge Halverson's ability to conduct criminal trials. Judge Bell's testimony revealed that he had cautioned Judge Halverson concerning ex parte jury communications before she engaged in such communications with the jury from the child molestation case. In particular, after presiding over an earlier case, Judge Halverson sought Judge Bell's opinion concerning her interaction with the jury,...