Whitehead v. Nevada Com'n on Judicial Discipline

Decision Date05 July 1996
Docket NumberNo. 24598,24598
Citation920 P.2d 491
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.
CourtNevada Supreme Court

Leonard I. Gang, Carson City, for Respondent.

Peter Alpert, Las Vegas; Gerald Stern, New York City, for Amicus Curiae Association of Disciplinary Counsel.

Leo Puccinelli, Elko, for Amicus Curiae Ad Hoc Committee for the Preservation of an Independent Judiciary.

Geoffrey Giles, Reno, for Amicus Curiae American Judicature Society.




1. Statement of the Case. The subject matter of this opinion is the continued effort by two justices of the supreme court, Justices Young and Rose, who are disqualified to act in this case, to thwart the judgments of this court by clearly improper and unlawful means. The "court" in this case, a duly empaneled court made up of three supreme court justices and two jurists designated to take the place of the disqualified justices, Young and Rose, has entered lawful and unimpeachable judgments which relate (a) to preservation of Judge Whitehead's due process rights and (b) to the duty of the court not to condone violations of its orders and other contempts of court.

This opinion is occasioned by a second unlawful attempt by the disqualified justices, Young and Rose, to reenter this case and to issue bogus, collateral "orders" that purport to contradict or overrule the judgments of the supreme court entered in this case. Once before, the disqualified justices attempted to intrude themselves into this case and to overrule the court's judgments by signing an ex parte "administrative order," purporting to overrule the judgments of the

court. The court declared this "administrative order" to be void (111 Nev. 1459, 908 P.2d 219). Now, they try again to interfere--this time by an ex parte "writ of prohibition" issued by the disqualified justices without notice to the parties in this case. Justices Young and Rose have now issued an order declaring that certain of the court's judgments in this case are "invalid and unenforceable" and that the duly-empaneled members of the court must "cease and desist from any further action." As with the void "administrative order," it is now necessary for the court to declare void this latest intrusion into the case by disqualified justices. This is the purpose of this opinion

2. The Rule of Necessity. Although the latest attempt by Justices Young and Rose to reenter this case is void on its face, the court considers it necessary and prudent to make formal declaration of this circumstance, as it did with respect to the ex parte "administrative order."

NRS 2.140 provides that "[t]hree justices shall constitute a quorum for the transaction of business." Justices Young and Rose have rendered it impossible for the court to have a quorum of three in this case by frustrating the constitutional process for replacing retiring or incapacitated justices.

There are two vacancies on the court in this case. District Judge Guy has retired. Senior Justice Zenoff declines to serve on the panel and has asked to be replaced. The chief justice, in accordance with long-established practice, has requested the governor to appoint replacements for the two absent justices, but the governor refuses to commission the requested replacements (Judge John P. Davis and Senior Judge Joseph O. McDaniel, who have agreed to sit on this panel). The governor bases his refusal to perform his constitutional duty to fill vacancies on this court on a rule recently adopted by Justices Young and Rose and the dissenting justice. The new rule prohibits the chief justice from filling vacancies absent the concurrence of a "majority of the elected justices." The present status of this case is that under the rule as written, it is impossible for the vacancies on the court in this case to be filled. The only two "elected justices" who seek the replacement of absent justices in this case are Chief Justice Steffen and Justice Springer. Not only do the remaining three "elected" justices refuse to request the governor to make the replacements, the two disqualified justices (Young and Rose) are not competent to participate in the replacement process. 1 Two vacancies remain indefinitely unfilled, and the court is therefore unable to function as a court in the manner contemplated by the laws of this state. The resulting impasse has, as fully supported by authorities cited in this opinion, rendered it necessary for two justices, Justices Steffen and Springer, to issue this opinion so that the void writ of prohibition 2 now on file will not stand as the apparent law of this state.

3. Present Status of Case. This is the sixth formal opinion issued in this case. Past rulings of the court that are of most significance to the present opinion are:

a) A judge accused of judicial misconduct is entitled, under the Nevada Constitution and rules of the Discipline Commission (ARJD), to confidentiality at all times prior to a finding of probable cause. This includes proceedings for judicial review provided for by ARJD, Rule 40(7).

b) The disciplinary prosecution of Judge Whitehead was conducted in violation of Judge Whitehead's due process rights and in violation of the Nevada Constitution and Commission rules. The court did not order the Discipline Commission to stop proceedings against Judge Whitehead but, rather, to proceed against him only in accordance with the Constitution and Commission rules.

c) There were serious, repetitive contempts of the supreme court--some in the form of violations of court orders relating to Judge Whitehead's procedural rights and right to confidentiality, some in the form of direct refusals to obey the orders of the supreme court and some in the form of false defamatory public statements made against the court. The court decided that it was bound to hold those responsible for these contempts accountable for their actions. The court ruled that it was necessary to appoint a special master to uncover facts relating to repeated contempts of court and to make recommendations to the court relative to the contemptuous conduct. The court appointed a special master for this purpose.

4. Conclusion. The void, ex parte orders of Justices Young and Rose (both the "administrative" order and the prohibition order) purport to overrule vital judgments of this court. The disqualified justices have not challenged the court's judgments holding that Judge Whitehead's due process rights have been violated and that the Commission must proceed against Judge Whitehead in a proper manner. The disqualified justices have, however, "ruled" that this court's official, published judgments relating to a judge's right to confidentiality are "void." The disqualified justices have now re-issued orders purporting to thwart the court's investigation into the contempts of court.

Whether Judge Whitehead has been denied due process, whether judges are entitled to confidentiality until there has been a finding of probable cause and whether serious contempts of this court should be followed up or ignored are, of course, issues which have already been decided by this court and are the law of the case. Such are not, obviously, matters which are subject to interference by the disqualified justices, Young and Rose. The issue presented is whether Justices Young and Rose, who were disqualified from acting in this case, have the power, directly or indirectly, to overrule the judgments of the court in this case. They do not have such power; accordingly, all actions of Justices Young and Rose that affect in any way the judgments of the court in this case are declared to be void, and specifically, the opinion and writ issued under Case No. 27847 are declared void and of no legal force or effect.


This supplemental opinion, born of necessity, and entirely unique in nature, is reluctantly issued in an effort to preserve the rule of law and respect for law in the State of Nevada. The necessity for this two-justice supplemental opinion cannot be understood or respected without a full disclosure of the circumstances underlying its issuance.

The panel of this court that has had, and continues to have, lawful jurisdiction over Case No. 24598 (the Whitehead case) was, and is, in every respect the Supreme Court of the State of Nevada insofar as that case is concerned. The Whitehead court presently consists of a majority (three) of the elected members of the Nevada Supreme Court, Chief Justice Steffen, Justice Springer and Justice Shearing. Senior Justice Zenoff was appointed to sit on the Whitehead case in the place of then-Chief Justice Rose by Justice Steffen pursuant to Art. 6, § 19 of the Nevada Constitution, and Supreme Court Rule 10. The other member of the Whitehead court during most of its tortured history and until ill health and retirement from judicial office forced his resignation from the court, was District Court Judge Addeliar Guy, who was appointed by the governor as requested by then-Chief Justice Rose pursuant to Art. 6, § 4 of the Nevada Constitution.

After Justices Shearing, Rose and Young issued an administrative order rescinding the appointment of a special master by the Whitehead court, and thereafter sought, by administrative order, to terminate the Whitehead panel, the Whitehead court was forced

to issue its opinion in Whitehead v. Commission on Judicial Discipline, 111 Nev. 1459, 908 P.2d 219 (1995) (Whitehead V,) declaring the administrative order and intended termination of the Whitehead panel illegal and void. Whitehead V fully explains the actions of the three justices which forced the issuance of the latter opinion

On December 20, 1995, Chief Justice Steffen submitted a letter to...

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