Mosley v. Comm'n on Judicial Discipline

• Decision Date: 17 May 2001
• Docket Number: No. 36775.,36775.
• Citation: 22 P.3d 655,117 Nev. 371
• Parties: Donald M. MOSLEY, Petitioner, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
• Court: Nevada Supreme Court

22 P.3d 655

117 Nev. 371

Donald M. MOSLEY, Petitioner, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.

No. 36775.

Supreme Court of Nevada.

May 17, 2001.

Galatz Earl & Associates, Las Vegas, for Petitioner.

Sinai, Schroeder, Mooney, Boetsch, Bradley & Pace, Reno, for Respondent.

Gillock, Markley & Killebrew, Las Vegas, for Amicus Curiae District Judges Ritchie, Voy and Del Vecchio.

Wolfson & Glass, Las Vegas, for Amicus Curiae District Judges Porter, Douglas and Mahan.

Curran & Parry, Las Vegas, for Amicus Curiae District Judges Kathy Hardcastle and Huffaker.

Richard Segerblom, Las Vegas, for Amicus Curiae District Judges Denton and Cherry.

Mainor & Harris, Las Vegas, for Amicus Curiae District Judges Bonaventure and Mark Gibbons.

Before the Court En Banc.

OPINION

MAUPIN, C.J.

The Nevada Commission on Judicial Discipline ("the Commission") is charged by the Nevada Constitution to investigate, prosecute, and adjudicate allegations of judicial misconduct.¹ The petitioner in this matter, Donald M. Mosley ("Judge Mosley"), is a Nevada district court judge against whom the Commission is currently conducting disciplinary proceedings. Judge Mosley asks us to terminate these proceedings, claiming that the Commission has violated his state and federal due process rights, and that the Commission has violated certain provisions of the Nevada Constitution and the statutory construct enacted pursuant to the constitutional mandate.

FACTS

Michael Mosley was born on February 15, 1992, the son of Judge Mosley and Ms. Terry Figliuzzi.² Continuing disputes over Michael's custody have been protracted and particularly contentious. Following a trial, the district court terminated joint custody and awarded sole custody of Michael to Ms. Figliuzzi.³ On appeal, we reversed this judgment and remanded the matter.⁴ On remand, the district court reinstated joint custody. Based upon alleged interactions with witnesses in the custody proceedings, Judge Mosley stands accused of violating several canons of the Nevada Code of Judicial Conduct.

On April 24, 1999, the Las Vegas Review-Journal published an article alleging that Judge Mosley used his judicial office to secure testimony favorable to him in the custody dispute. Specifically, the article indicated that Judge Mosley agreed to show leniency in the sentencing of a defendant in a felony criminal proceeding in exchange for testimony that Ms. Figliuzzi was an unfit mother. The defendant and his spouse lived briefly with Ms. Figliuzzi and Michael.

The article came to the attention of Leonard Gang, the former executive director and general counsel of the Commission. Pursuant to his authority as executive director, Gang filed a statement of complaint with the Commission on April 26, 1999, requesting that the Commission investigate allegations of misconduct taken from the article.⁵ The Commission reviewed the complaint and authorized an investigation.⁶ On August 13, 1999, the Las Vegas Review-Journal published another article charging that Judge Mosley released a criminal defendant named Robert D'Amore on his own recognizance at the request of a long-time friend, Barbara Orcutt. Orcutt testified on Judge Mosley's behalf at one of the custody hearings.

Thereafter, on September 7, 1999, Gang submitted a second statement of complaint to the Commission. In addition to describing the facts alleged in the August 13, 1999, news article, Gang submitted, with this second complaint, copies of two letters written by Judge Mosley on his official stationery. The letters were directed to Michael's elementary school principals and requested that they prevent Ms. Figliuzzi from visiting Michael at his school.

Based upon preliminary evidence, the Commission found sufficient probable cause to authorize formal disciplinary hearings on both complaints. A finding of probable cause means the Commission has determined that there is a reasonable probability that evidence available for introduction at a formal hearing may clearly and convincingly establish grounds for disciplinary action.⁷ Following the probable cause determination, Gang secured the services of a special prosecutor, who filed a formal statement of charges pursuant to NRS 1.467(3)(a).⁸ The formal complaint essentially reiterates the allegations contained in the earlier statements of complaint.

Judge Mosley answered the charges and submitted a motion to dismiss for determination by the Commission. In this motion, Judge Mosley assigned constitutional and statutory error to the Commission's proceedings. The Commission considered this motion at a public hearing and denied it. Judge Mosley filed the instant petition with this court for extraordinary relief.

DISCUSSION

Standard of review

The parties do not contest this court's jurisdiction to afford interlocutory review. Although the current rules governing Commission procedure do not provide for review of interlocutory orders,⁹ we are empowered to provide extraordinary relief with regard to Commission proceedings.¹⁰

A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust or station,¹¹ or to control an arbitrary or capricious exercise of discretion.¹² The writ will not issue, however, if the petitioner has a plain, speedy and adequate remedy in the ordinary course of law.¹³ Further, a writ of mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered.¹⁴ In Smith v. District Court,¹⁵ this court explained that it will not exercise its discretion to consider a petition for a writ of mandamus challenging an order denying a motion to dismiss unless considerations of sound judicial economy and administration militate in favor of granting relief. In addition, this court may exercise its discretion to grant a petition challenging such an order when an important issue of law requires clarification.¹⁶

Judge Mosley requests that we direct the Commission to terminate the ongoing disciplinary proceedings against him. Because we conclude that two of his claims raise important constitutional issues, we consider them below. We decline to exercise our discretion with regard to the remaining contentions.

Combination of functions

The United States Supreme Court observed in In re Murchison¹⁷ that "a fair trial in a fair tribunal is a basic requirement of due process." An adjudicator's actual bias against a party is constitutionally unacceptable and, in some situations, an implied probability of bias constitutes a deprivation of due process.¹⁸ In this case, Judge Mosley contends that the Commission's investigative, prosecutorial, and adjudicative functions have combined to deprive him of his right to due process.

Under the Fourteenth Amendment of the Federal Constitution, no state shall "deprive any person of life, liberty, or property, without due process of law."¹⁹ As a predicate to determining whether a due process violation has occurred, we must first conclude that the contested state action impinges upon an interest in life, liberty, or property. Accordingly, we must first decide whether the interest at stake in this proceeding—namely, a commissioned judgeship—is constitutionally protected.

While this court has never expressly held that state district court judges have property or liberty interests in their positions, we have implied that such is the case.²⁰ The majority of courts that have addressed the question have concluded that judges do possess such interests, especially when, as here, they serve for designated terms and have a continued expectation of office.²¹ We approve of this authority and conclude that commissioned judges in this state have a protected interest in their judicial offices under the Fourteenth Amendment.

We now consider whether the Commission's procedures withstand constitutional scrutiny. Judge Mosley urges us to conclude that the Commission's combination of functions is implicitly prejudicial to judges brought within the disciplinary process, thereby violating important due process rights. He cites language from Whitehead III, in which this court observed that "the Judicial Discipline Commission is not just another administrative agency which can combine investigative, prosecutorial and judging functions. As this court held in Whitehead I, the Commission is a court of judicial performance, created by the Nevada Constitution as a part of the judicial branch of government."²²

We conclude that the language upon which Judge Mosley relies is not controlling. Whitehead III addressed the question of commingling functions in light of its determination that former NRS 1.450(2)²³ did not allow the Commission to employ the state attorney general as special counsel.²⁴ It reached this conclusion pursuant to the Nevada Constitution's express separation-of-powers doctrine²⁵ and disposed of the case on these grounds. The court did not address the question of whether any combination of functions inherently violated due process.

Further, as noted in the margin above, the legislature successfully obtained an amendment to the Nevada Constitution's provisions governing judicial discipline in this state. Among other provisions, the procedural framework established after the four Whitehead decisions were handed down expressly requires the Commission to "assign or appoint an investigator to conduct an investigation to determine whether the allegations [against a judge] have merit."²⁶ In addition, NRS 1.467(3)(a) provides that once the Commission makes the threshold probable cause determination, the Commission must then "[d]esignate a prosecuting attorney" to act in a formal disciplinary hearing. It seems clear then that the legislative intent manifested in the amendment process is that, although a "court of judicial performance," the Commission may exercise, to a degree, a combination of investigative, prosecutorial and...