Whitehead v. Nevada Com'n On Judicial Discipline

• Decision Date: 18 February 1994
• Docket Number: No. 24598,24598
• Parties: In re Petition for a Writ of Prohibition or in the Alternative for a Writ of Mandamus. The Honorable Jerry Carr WHITEHEAD, Petitioner, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
• Court: Nevada Supreme Court

Page 230

906 P.2d 230

110 Nev. 128

In re Petition for a Writ of Prohibition or in the Alternative for a Writ of Mandamus The Honorable Jerry Carr WHITEHEAD, Petitioner, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.

No. 24598.

Supreme Court of Nevada.

Feb. 18, 1994.

Ohlson & Springgate, Hamilton & Lynch, Reno, Gentile, Porter & Kelesis, Laura Wightman FitzSimmons, Las Vegas, for petitioner.

Frankie Sue Del Papa, Atty. Gen., Brooke Nielsen, Deputy Atty. Gen., Carson City; Donald J. Campbell, Las Vegas, for respondent.

OPINION

ZENOFF, Senior Justice. ^*

Statement of the Case

This opinion is written to explain certain actions this court has already taken in these proceedings, which commenced when a District Court judge on July 22, 1993, filed an original petition for a writ of mandamus, or alternatively for prohibition, directed to the Nevada Commission on Judicial Discipline. Our constitutional authority to entertain writs of the kind requested is set forth in article 6 of the Nevada Constitution (the title of which reflects that its purpose is to establish a "Judicial Department") as follows:

The supreme court shall have appellate jurisdiction in all civil cases arising in district courts, and also on questions of law alone in all criminal cases in which the offense charged is within the original jurisdiction of the district courts. The court shall also have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus and also all writs necessary or proper to the complete exercise of its appellate jurisdiction ....

Nev. Const., art. 6 § 4 (emphasis added). ¹

The Discipline Commission was created in 1976 by an amendment to the mentioned "Judicial Department" article of our constitution that inserts into article 6 a new section 21, which not only creates the Commission but also grants this court certain powers over it. In very broad terms, section 21(1) recognizes that the Supreme Court, theretofore also created by the "Judicial Department" article, is to have appellate jurisdiction over the Commission, as it does over Nevada's District Courts:

1. A justice of the supreme court or a district judge may, in addition to the provision of article 7 for impeachment, be censured, retired or removed by the commission on judicial discipline. A justice or judge may appeal from the action of the commission to the supreme court, which may reverse such action or take any alternative action provided in this section.

(Emphasis added.) ² Section 21(5) of article 6, in addition, vests the Supreme Court with power to promulgate rules for the governance of the Commission, as it does for the District Courts:

5. The supreme court shall make appropriate rules for:

(a) The confidentiality of all proceedings before the commission, except a decision to censure, retire or remove a justice or judge.

(b) The grounds of censure.

(c) The conduct of investigations and hearings.

(Emphasis added.)

The premise underlying the petition for relief herein is that by multiple violations of the provisions of the new set of rules that this court promulgated in 1988, pursuant to the above-quoted constitutional mandate, the Commission and attorneys acting in its name have exceeded the lawful scope of the Commission's jurisdiction as established by the rules in ways that justify our intervention by way of a writ.

When the petition for writ was initially presented last July to the Vice-Chief Justice in chambers, the Vice-Chief Justice temporarily stayed proceedings before the Commission, in order to allow the full court to consider whether violations of the applicable rules had been stated so as to justify our exercise of jurisdiction as requested, and ordered that proceedings before this court be kept confidential, in order to maintain the confidentiality of proceedings before the Commission as mandated by our constitution.

Later, in various orders, other members of this court approved these actions by the Vice-Chief Justice, and ultimately joined with him in ordering a private, "in camera," inspection of the Commission's records so that the court might evaluate whether these records provide support for petitioner's contentions that excesses of the Commission's jurisdiction have occurred which are of a nature as to justify our intervention by way of extraordinary writs. ³

Orders of this kind directing litigants to deliver materials of possible evidentiary significance to a reviewing court for private or "in camera" inspection, as a prudential first step in deciding whether to allow opposing litigants access to any part of such materials, are widely employed in judicial practice. See, e.g., Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798 P.2d 144 (1990) (in camera inspection of police reports proper before release to media); Hickey v. District Court, 105 Nev. 729, 782 P.2d 1336 (1989) (in camera inspection of juvenile records proper to determine whether they were relevant to litigation); Nicklo v. Peter Pan Playskool, 97 Nev. 73, 624 P.2d 22 (1981) (trial court should have inspected child custody investigator's report in camera to determine its relevance to the trial). ⁴

Nevada Attorney General Frankie Sue Del Papa, nevertheless, joined by a so-called special prosecutor (whom she has employed with public funds that she obtained from Nevada's State Board of Examiners by acknowledging that she faced a conflict of interest herein), ⁵ advised the Commission to refuse compliance with our orders. Essentially, it is the premise of Attorney General Del Papa, her chief deputy and her special prosecutor ⁶ that, regardless of any excesses of authority they may have committed or what they may have advised to be done in the Commission's name, this court will remain powerless until such time as their allegedly improper activities some day culminate in a "final" Commission order that censures, removes or retires Judge Whitehead.

By a letter dated October 14, 1993, delivered to the court the following day by Attorney General Del Papa's deputy, this court was told:

After careful and thoughtful consideration of the Court's many orders including its confidential "order" of October 4, 1993, the Nevada Commission on Judicial Discipline has unanimously reached the following difficult, but constitutionally demanded, decision.

This Court's "order" of October 4, 1993, calls for the production of material which is statutorily and constitutionally privileged. To comply with this secret "order" would require the Commission to not only waive those privileges, but to betray its constitutional duty to safeguard the collective rights of Nevada's citizens to fair and impartial justice. The Commission cannot in law, nor in good conscience, abandon its constitutional post in the face of an assault by a series of secret, illegal and void "orders." To acquiesce in this most recent attempt to emasculate and usurp the separate constitutional powers of the Commission would violate the oath which each of the undersigned has sworn to fulfill. ⁷

From the quoted letter and from other documents submitted to this court, it appears that the Attorney General and associates have been inaccurately advising the Commission's members that, as a separate entity in the structure of Nevada government, the Commission was created as totally independent from any control by anyone in the three established branches of government: executive, legislative and judicial. Hence (according to the stated view of the Attorney General and associates), no action of the Commission, however wrongful or prejudicial, is subject to any control or review whatever, unless and until a "final" order is entered censuring or removing or retiring an aggrieved judge. If such a "final" order is ultimately entered, the Attorney General and associates evidently concede, the aggrieved judge may then appeal to this court to seek correction of harm wrongfully occasioned. Absent such a "final" order, however, as the argument of the Attorney General and associates proceeds, neither this court nor anyone else in Nevada's government has authority to prevent unwarranted intrusions into Nevada's judicial machinery or to forestall impositions on its judges perpetrated by attorneys ostensibly serving the Commission's interests as prosecutors.

In summary, then, it appears that the Attorney General and associates have led the members of the Commission to believe: (1) that this court's orders herein, including our aforementioned orders for "in camera" inspection of documents, were void because they were "secret" and because they constituted unwarranted intrusions into the Commission's "constitutional duty"; and (2) that because the orders were void, they should be disobeyed. We have concluded that, out of respect for the Commission and the importance of the purposes for which it was created, such ideas must be explicitly examined and laid to rest as groundwork for proceeding to an orderly disposition of this case.

We therefore intend to explain in this opinion, the bases for this court's authority to direct the Commission to submit certain records to us for our private, "in camera" inspection, as we did in a confidential order filed in these proceedings on October 4, 1993, which we later confirmed in another confidential order on October 7, 1993.

As a preface to this explication, however, we should note that even if this court's orders to permit our "in camera" inspection of documents were indeed "void," as the Attorney General and associates evidently have led the Commission to believe, the Attorney General's advising the Commissioners simply to defy those orders would, nonetheless, have been questionable advice. From the filed briefs herein it appears that the Attorney General and associates may be insufficiently acquainted with the legal precedents relating to the "jurisdiction to determine jurisdiction" doctrine. This doctrine relates to the long-recognized authority of ...