Whitehead v. Nevada Com'n on Judicial Discipline, 24598

Citation878 P.2d 913,110 Nev. 874
Decision Date26 July 1994
Docket NumberNo. 24598,24598
PartiesIn 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.
CourtSupreme Court of Nevada

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

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

OPINION

ADDELIAR D. GUY, District Judge.

On May 20, 1994, the court heard oral argument on a number of motions filed by both parties. Today, we address Petitioner Whitehead's "motion to preclude further illegal involvement in [this] case by attorney general and associates in order to promote the administration of justice and guarantee due process of law in this and related proceedings" and Petitioner Whitehead's "motion for order to show cause, an investigation, and a protective order," and "motion for appointment of a master to conduct factual investigation."

We are compelled to conclude that Petitioner's motions are meritorious. We accordingly order that Attorney General Frankie Sue Del Papa, Assistant Attorney General Brooke Nielsen and Special Deputy Attorney General Donald J. Campbell be removed as counsel for the Nevada Commission on Judicial Discipline ("Commission") in these writ proceedings and in all disciplinary proceedings now pending against Petitioner Whitehead before the Commission. 1 For reasons hereinafter specified, the Office of the Attorney General is precluded from acting as legal advisor or prosecutor in the present matter or in any matter relating to the constitutional duties of the Commission to hear and decide judicial discipline complaints.

In granting Petitioner Whitehead's motion for the appointment of a master to conduct a factual investigation, we grant the motion in part by adjudicating the clear need for the appointment of a special master, but we defer our decision as to the scope of the investigation and the identity of the investigator for resolution in the near future. 2

REMOVAL OF THE ATTORNEY GENERAL, THE

ASSISTANT ATTORNEY GENERAL AND SPECIAL DEPUTY

ATTORNEY GENERAL CAMPBELL AS COUNSEL FOR

THE COMMISSION

Petitioner Whitehead urges three grounds for requiring the Attorney General's removal as legal counsel and prosecutor for the Commission. The first ground is that the Attorney General, as an elected, Constitutional officer of the Executive Department of Nevada's government, is not permitted by the separation of powers clause of our State Constitution to represent the Commission in the

exercise of its disciplinary functions or to exercise powers relating to judicial discipline proceedings that are constitutionally vested in the Discipline Commission. The second ground is that, generally, and under the specific facts of this case, the Attorney General has a number of disqualifying conflicts in representing the Commission. These conflicts include the conflicts relating to giving the Attorney General access to confidential documents and proceedings of the Commission, the conflict arising out of the fact that the Attorney General is official counsel for the judges and justices of the state, and, most importantly, the conflict arising out of the Attorney General's acting as legal advisor to the Commission (which is Petitioner Whitehead's judge and jury) and at the same time prosecuting Whitehead before the tribunal to which the Attorney General has been giving legal advice and counsel. Of equal concern and importance is the problem and potential problem of the Attorney General, and district attorneys over whom the Attorney General has the power of supervision, 3 prosecuting criminal and civil cases before judges who are under investigation and prosecution by the Attorney General in Commission proceedings, and the potential for holding such judges actual or imagined "hostages" without any awareness by opposing counsel. As to the third ground which Petitioner Whitehead asserts for seeking the removal of the Attorney General as the Commission's lawyer and prosecutor, we conclude that the Attorney General must be removed as counsel and prosecutor for the Commission in this case. Our conclusion is based on the stated constitutional grounds and on the mentioned conflict of interest created by the Attorney General's office, particularly, the Attorney General's acting as both legal advisor to the Commission and as the prosecutor who has been [110 Nev. 879] prosecuting Petitioner Whitehead before the Commission. It is unnecessary to reach the claim relating to the Attorney General's misconduct in arriving at our decision on this motion.

First Ground: Constitutional Disqualification 4

Article 3, section 1 of the Nevada Constitution provides as follows:

The powers of the Government of the State of Nevada shall be divided into three separate departments,--the Legislative,--the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases herein expressly directed or permitted.

This court has consistently affirmed that "[t]he division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people." Galloway v. Truesdell, 83 Nev. 13, 18, 422 P.2d 237, 241 (1967). This principle is also of Federal Constitutional dimension and has occupied a position of unquestioned importance since the early days of the Republic. As James Madison noted in The Federalist No. 47, " '[w]ere the power of judging joined ... to the executive power, the judge might behave with all the violence of the oppressor' " (quoting Montesquieu). Merging the adjudicative power of the Commission with the executive power, as evidenced Article 6 (the Judicial Article), section 21 of the Nevada Constitution creates the Commission on Judicial Discipline. The Commission is a part of the judicial branch of government, vested with the constitutional power to "censure, retire or remove" a judge or justice, subject to such rules as this court might promulgate, and subject to appellate review by this court. Nev. Const. art. 6, § 21(1). The Attorney General, on the other hand, is "a constitutional officer in the executive branch of government" whose various duties are established by the legislature. See Ryan v. District Court, 88 Nev. 638, 642, 503 P.2d 842, 844 (1972); see generally Nev. Const. art. 5 § 19. In matters of judicial discipline, it is the Commission, not the Attorney General, which the constitution vests with the power and duty to deal with all matters relating to erring judges who are charged with violating the Code of Judicial Conduct. The Commission is constitutionally empowered to "designatefor each hearing an attorney or attorneys at law to act as counsel to conduct the proceeding," (id. at art. 6, § 21(9)(a)). Nowhere in the constitution is the Commission required or empowered to employ the Attorney General, a member of a separate and co-equal branch of government, to act as its counsel. 5 It is not constitutionally permissible for the Attorney General to investigate or prosecute a judge or justice on behalf of the Commission. The Attorney General may not represent the Commission in judicial discipline matters, nor may the Attorney General "prosecute" a judge or justice before the Commission, because "one department cannot exercise the power of the other two" without violating article 3, section 1 of the Nevada Constitution. Galloway, 83 Nev. at 19, 422 P.2d at 242. 6

in the case before us raises this very specter.

Although the Commission disputes that the Attorney General's office engaged in exercising any Commission functions, the record clearly reflects that Special Deputy Attorney General Don Campbell engaged in a very extensive investigation of the allegations against Petitioner on behalf of the Commission. Mr. Campbell's affidavit also indicates that he was involved in carrying out the Commission function of screening complaints and that in doing so made the determination that many of the incidents alleged in one of the complaints against Petitioner did not warrant further action by the Commission. Whether Special Deputy Attorney General Campbell was acting for the Commission in making these Commission decisions or was merely advising the Commission to take these actions, the executive branch, through the Attorney General's office, has been actively engaged in the judicial discipline process--a process that can be carried out properly and constitutionally only by the Commission on Judicial Discipline itself. Nev. Const. art. 6, § 21(7).

The State of Minnesota has recognized that it is not proper for the Attorney General to act as the Attorney General has acted in this case. See Rules of Board on Judicial Standards, Minn. Rules of Court, Rule 1(d)(10) at 693 (West Supp.1994) (Authorizing the Executive Secretary of the Board on Judicial Standards to "[e]mploy, with the approval of the board, special counsel, private investigators, or other experts as necessary to investigate and process matters before the board or the Supreme Court. The use of the attorney general's staff for this purpose shall not be allowed.") (Emphasis added.) The source of and basis for the Minnesota rule is the ABA's Standards Relating to Judicial Discipline and Disability Retirement. See Judicial Conduct Organizations Governing Provisions (Kathleen Sampson, ed., 1984). Standard 2.8 states that the use of members of "the attorney general's staff" to perform commission functions "is not recommended.... Their use may also interfere with the independence of the judiciary." Id. at 15; see infra note 5 (emphasis added).

We are, of course, well aware of NRS 1.450(2) which commands the...

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