Del Papa v. Steffen

• Decision Date: 25 April 1996
• Docket Number: No. 27847,27847
• Citation: 915 P.2d 245,112 Nev. 369
• Parties: , 24 Media L. Rep. 1879 Nevada Attorney General, Frankie Sue DEL PAPA, Petitioner, v. The Honorable Thomas L. STEFFEN, Chief Justice of the Nevada Supreme Court, The Honorable Charles E. Springer, Justice of the Nevada Supreme Court, The Honorable David Zenoff, Senior Justice of the Nevada Supreme Court, in their official capacities and Herbert J. Ahlswede, in his official capacity as Special Investigator, Respondents.
• Court: Nevada Supreme Court

Page 245

915 P.2d 245

112 Nev. 369, 24 Media L. Rep. 1879

Nevada Attorney General, Frankie Sue DEL PAPA, Petitioner, v. The Honorable Thomas L. STEFFEN, Chief Justice of the Nevada

Supreme Court, The Honorable Charles E. Springer, Justice of

the Nevada Supreme Court, The Honorable David Zenoff, Senior

Justice of the Nevada Supreme Court, in their official

capacities and Herbert J. Ahlswede, in his official capacity

as Special Investigator, Respondents.

No. 27847.

Supreme Court of Nevada.

April 25, 1996.

Frankie Sue Del Papa, Attorney General, Carson City, for Petitioner.

Chuck R. Gardner, Las Vegas, for Respondents.

OPINION

PER CURIAM:

Respondent Justices have appointed a "Special Master" to investigate alleged leaks of information to the press in violation of two early orders by a panel of this court directing

that the proceedings before this court in Case No. 24598, "the Whitehead case," be kept confidential. We conclude that these orders mandating confidentiality were invalid and that Respondent Justices lack constitutional or legislative authority to appoint a special master to investigate the leaks of information to the media and the reason for this court's lost prestige. Accordingly, we grant Petitioner's petition for a writ of prohibition.

FACTS

This petition for an extraordinary writ emanates from that portion of the Whitehead case in which Respondent Justices appointed a special master to investigate the sources of information leaks to the press in violation of the Whitehead panel's orders of confidentiality entered July 22 and 30, 1993. On September 1, 1995, Respondent Justices filed an order appointing Respondent Herbert F. Ahlswede to investigate and expose the sources of the press leaks and to inquire into the loss of public confidence, trust, and respect for the Supreme Court and the judicial system. Jerry Carr Whitehead v. Nevada Commission on Judicial Discipline, Docket No. 24598 (Order Appointing Special Master at 4, September 1, 1995). On September 15, 1995, this court entered an order which voided the order appointing the special master and prohibited payment of any costs or related expenditures; this court's order concluded that the Whitehead panel exceeded its jurisdiction by appointing the special master and that the expenditure of funds in relation to the investigation was a waste of court resources. Petition for an Order Rescinding Appointment of Special Master Entered September 1, 1995, and Voiding Associated Expenses, A DKT No. 221 (Order Granting Petition and Vacating Order Appointing Special Master at 1-2, September 15, 1995). On December 15, 1995, the Whitehead panel entered an opinion declaring that the order filed by this court on September 15, 1995 was a nullity and of no legal force or effect. Whitehead v. Comm'n on Jud. Discipline, 111 Nev. 1459, 1461, 908 P.2d 219, 220 (1995).

Petitioner argues that the September 15, 1995 order entered by this court is competing with the December 15, 1995 opinion entered by the Whitehead panel, thus creating a constitutional crisis which the Petitioner has been drawn into by virtue of her office. Petitioner seeks a writ of prohibition declaring that this court mandate that Respondent Justices cease all action in Case No. 24598, the Whitehead case, in particular all action in furtherance of the unlawful investigation conducted by Special Master Ahlswede.

We find it unnecessary to ask for a response or further authority from Respondents in regard to this petition because we are well aware of their position on the relevant issues as stated in their opinions in the Whitehead case and in the administrative petitions concerning that case.

DISCUSSION

The propriety of issuing a writ of prohibition or in the alternative a writ of mandamus in this action.

A writ of prohibition will issue where a tribunal has acted without or in excess of the jurisdiction of such tribunal. NRS 34.320; Goicoechea v. District Court, 96 Nev. 287, 289-90, 607 P.2d 1140, 1141 (1980). The purpose of a writ of prohibition is to restrain "courts from acting without authority of law in cases where wrong, damage and injustice are likely to follow from such action." Olsen Family Trust v. District Court, 110 Nev. 548, 552, 874 P.2d 778, 781 (1994). Furthermore, a writ of prohibition will only issue when no plain, speedy, and adequate remedy exists at law. Id.

We conclude that a petition for an extraordinary writ is proper in this case and that this court should entertain the petition. It appears that Respondent Justices, by entering the confidentiality orders and by authorizing the special master to investigate the sources of breaches of those confidentiality orders, have acted in excess of their jurisdiction. Additionally, because this matter involves members of the highest court in this state, the writ is the only avenue of relief for Petitioner, and no other plain, speedy or adequate remedy exists at law. Finally, the ongoing investigation poses a threat to certain fundamental constitutional rights and guarantees, including freedom of speech, due process, and separation of the branches of government, and therefore a recognized injury may result in the absence of a writ.

The confidential orders were entered without jurisdiction to do so.

Respondent Justices appointed a special master to investigate alleged leaks of information to the press in violation of two early orders by the Whitehead panel directing that the proceedings before this court in the Whitehead case be kept confidential. We conclude that these orders were invalid because Respondent Justices acted in excess of their jurisdiction when entering them.

Respondent Justices have invoked the Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline (ARJD) as authority for the confidentiality orders. ARJD 5(1) provides: "All proceedings must be confidential until there has been a determination of probable cause and a filing of formal statement of charges." ARJD 5(2) provides that confidentiality "encompasses all proceedings of the commission and all information and materials, written, recorded or oral, received or developed by the commission in the course of its work and relating to alleged misconduct or disability of a judge." The Whitehead panel concluded that these rules also extended to judicial proceedings before this court after Judge Whitehead petitioned for extraordinary relief. The panel erred.

The scope of the ARJD is restricted to "the confidentiality of all proceedings before the Nevada commission on judicial discipline as imposed by § 21(5)(a) of article 6 of the constitution of Nevada, ... and the conduct of investigations and hearings by the commission, as imposed by § 21(5)(c) of article 6 of the constitution of Nevada." ARJD 1 (emphases added). This restricted scope is required by the Nevada Constitution, which provides that this court shall make appropriate rules for "[t]he confidentiality of all proceedings before the commission, except a decision to censure, retire or remove a justice or judge." Nev. Const. art. 6, § 21(5)(a) (emphasis added). Overlooking the limiting language in this constitutional provision, Respondent Justices decided that the state public policy favoring confidentiality in initial judicial discipline proceedings is so strong that it prevails over any countervailing public policies to keep government open and the public informed, even when a judge avails himself of the traditionally public forum of this court and seeks to have all proceedings against him by the Commission on Judicial Discipline dismissed. This view disregards not only the right and need of the public to know of such an extraordinary dispute in governmental affairs but also the threat that secret judicial proceedings pose to public confidence in this court and the judiciary.

NRS 1.090 provides: "The sitting of every court of justice shall be public except as otherwise provided by law." The State Constitution and the ARJD provide no authority for confidential proceedings before the supreme court itself, and the Whitehead panel erred in concluding that it had such authority.

Furthermore, the confidentiality orders implicate First Amendment concerns. The First Amendment prohibits Congress from making any law "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I. The Fourteenth Amendment makes this prohibition applicable to state actions as well. U.S. Const. amend. XIV, § 1. The First Amendment guarantees public access to places traditionally open to the public, such as criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577, 580, 100 S.Ct. 2814, 2827, 2829, 65 L.Ed.2d 973 (1980). In Richmond, the Supreme Court noted that though the right to attend civil trials was not at issue before it, "historically both civil and criminal trials have been presumptively open." Id. at 580 n. 17, 100 S.Ct. at 2829 n. 17. A state may deny this right of public access only if it shows that "the denial is necessitated by a compelling government interest, and is narrowly tailored to serve that interest." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982).

The Whitehead case did not involve a trial; nevertheless, at Judge Whitehead's behest, it became a judicial proceeding which implicated matters of great public concern. A major purpose of the First Amendment is to protect the free discussion of governmental affairs. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1 (1978). "The operations of the courts and the judicial conduct of judges are matters of utmost public concern." Id. at 839, 98 S.Ct. at 1541. Furthermore, open court proceedings assure that proceedings are conducted fairly and discourage perjury, misconduct by participants, and biased...