Jones v. Nev. Comm'n On Judicial Discipline

318 P.3d 1078

130 Nev. Adv. Op. 11

The Honorable Steven E. JONES, Petitioner,

v.NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.

No. 61902.

Supreme Court of Nevada.

Feb. 27, 2014.

Jimmerson Hansen, P.C, and James J. Jimmerson and James M. Jimmerson, Las Vegas, for Petitioner.

David F. Sarnowski, Executive Director, and Brian R. Hutching, Acting Executive Director, Nevada Commission on Judicial Discipline, Carson City, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, CHERRY, J.: ¹

Petitioner, the Honorable Steven E. Jones, is a Nevada family court judge against whom respondent, the Nevada Commission on Judicial Discipline, is currently conducting disciplinary proceedings. Judge Jones filed this original petition for a writ of mandamus seeking to halt and dismiss the disciplinary proceedings against him because, he asserts, the Commission initiated the investigation based on a defective complaint, assigned an unfair or biased investigator who investigated issues outside of those indicated in the complaint, and is exercising its jurisdiction outside of the permissible time limits. Ultimately, we deny writ relief because most of these issues are not yet ripe for review. Nevertheless, in this opinion, we clarify that the investigatory stage of judicial discipline proceedings provides fewer due process protections than the adjudicatory stage. We also take this opportunity to address the reasoning behind our denial of Judge Jones' motion to seal these proceedings from public access.

FACTS

The Commission exercises original jurisdiction over the discipline of judges, which includes censure, removal, and involuntary retirement, among other forms of discipline provided for by statute. Nev. Const. art. 6, § 21(1) and (5); NRS 1.440 (exclusive jurisdiction); see, e.g.,NRS 1.4677 (forms of discipline). Before 2010, NRS 1.4655(1) provided that the Commission could investigate a judge's conduct after receiving a written, sworn complaint or any other type of information that reasonably indicated that a judge may have committed misconduct or may be incapacitated.² 2009 Nev. Stat., ch. 312, § 21, at 1339–40. If the complaint contained allegations that, if proven, would warrant discipline, the Commission would assign an investigator to inquire into the allegations' merits. NRS 1.4663(1). When the investigation resulted in insufficient “reason to proceed,” the complaint would be dismissed. NRS 1.4667. If the results showed sufficient reason to proceed, in that there existed a likelihood that the evidence would clearly and convincingly establish grounds for discipline, the Commission would require the judge to respond to the complaint. NRS 1.4667; NRS 1.467. The Commission would then reconsider the matter in light of the judge's response and either dismiss the complaint or direct a prosecuting attorney to file a formal statement of charges, in prelude to a formal, public hearing on the charges, NRS 1.467, at which the Commission would ultimately determine whether and how to impose discipline. NRS 1.4673.

In August 2006, after reviewing police investigative reports and newspaper articles concerning Judge Jones' alleged involvement in two particular incidents of domestic battery on June 20 and 22, 2006, and a resulting temporary protective order (TPO) violation, the Commission, through its executive director, issued a verified statement of complaint against Judge Jones, alleging that he may have violated Canons 1,2, and 4 of the Nevada Code of Judicial Conduct. See Procedural Rules of the Nevada Commission on Judicial Discipline (PRJDC) 10(2). In addition to the alleged domestic battery and TPO violation, the complaint detailed possible instances of interference with the resulting police investigation, misuse of court personnel to render personal services, and exploitation of the judicial position through involvement in a private corporation. The Commission assigned The Advantage Group to investigate the complaint.

Judge Jones was first alerted to the existence of an investigation in November 2010, when he was interviewed by The Advantage Group. He received a copy of the complaint in July 2012, along with a notice of proposed charges. In a letter attached to the complaint, the Commission explained that the complaint's main allegations had been dropped due to lack of clear and convincing evidence. Nevertheless, the Commission's letter continued, over the course of the investigation several other concerns developed, to which the Commission believed a response was warranted. In particular, the attached proposed charging document alleged that Judge Jones had, continually since approximately 1996 or 1997, violated the Nevada Code of Judicial Conduct by persuading various individuals to invest large sums of money in unsound financial schemes, some involving undisclosed ex-felons. The proposed charging document also alleged that Judge Jones had engaged in and encouraged court employees to engage in other business dealings with convicted ex-felons, asked his bailiff to personally loan an ex-felon money on multiple occasions, and attempted to convince his bailiff that Judge Jones was entitled to a portion of his bailiff's disability retirement payout. Further, the proposed charging document alleged that Judge Jones was involved in an intimate relationship with an extern and later allowed her to appear in his courtroom without disclosing their prior relationship or recusing himself. Finally, the proposed charging document alleged that Judge Jones misappropriated marijuana evidence from an ongoing case. Outside of the first alleged unsound investment schemes, the asserted activities took place between 2002 and 2008.

Judge Jones, asserting that the investigation upon which the proposed charges are based resulted from a defective complaint, was conducted by a biased party in an untimely manner, and included an improper scope, now seeks this court's extraordinary intervention. The Commission has filed an answer, arguing that the matter is not now ripe for our consideration, and Judge Jones has filed a reply.

DISCUSSION

This court has original jurisdiction to grant extraordinary writ relief, MountainView Hosp., Inc. v. Eighth Judicial Dist. Court, 128 Nev. ––––, ––––, 273 P.3d 861, 864 (2012); Nev. Const. art. 6, § 4, and “we are empowered to provide extraordinary relief with regard to Commission proceedings.” Mosley v. Nev. Comm'n on Judicial Discipline, 117 Nev. 371, 377, 22 P.3d 655, 658 (2001). Whether to consider a petition for extraordinary relief, however, is within our sole discretion. State ex rel. Dep't of Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983).

Here, Judge Jones seeks a writ of mandamus directing the Commission to take specific actions in accord with procedural aspects of the judicial discipline statutes concerning investigations and, ultimately, to dismiss the 2006 complaint filed against him. “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 or to control an arbitrary or capricious exercise of discretion.” Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); seeNRS 34.160. Writ relief is generally available only where there is no “plain, speedy and adequate remedy in the ordinary course of law.” NRS 34.170; see Halverson v. Sec'y of State, 124 Nev. 484, 487, 186 P.3d 893, 896 (2008). To the extent that Judge Jones is seeking prehearing relief, no adequate legal remedy exists, as an appeal is available only from an order of censure, removal, retirement, or other discipline entered after the formal hearing. NRAP 3D(c)(2); PRJDC 34(1). As the petitioner, however, it is Judge Jones' burden to demonstrate that this court's extraordinary, prehearing intervention is warranted. Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). Judge Jones has not met that burden here.

Merits of the writ petition

In challenging the Commission's actions, Judge Jones argues that the Commission violated procedural statutes and rules during the disciplinary investigation when it (1) proceeded with the investigation despite a complaint built on hearsay and unreliable evidence, (2) assigned a biased investigator and failed to restrict the investigator to charges relating to the complaint, and (3) extended the investigation beyond the time frames set forth in NRS 1.4655 and NRS 1.4681. Judge Jones asserts that he has been prejudiced by the Commission's improper actions and inactions because he now faces allegations different from those originally presented in the 2006 complaint and he has lost virtually all opportunity to mount a defense, especially in regard to the new allegations stemming from alleged conduct beginning many years ago. Judge Jones also claims that the Commission arbitrarily and capriciously applied statutory and rule-based procedural safeguards during the investigatory phase of the judicial discipline proceeding and robbed him of his due process rights to notice and an opportunity to be heard, thus impinging upon a protected interest in his judicial office.

This court has recognized that “commissioned judges in this state have a protected interest in their judicial offices under the Fourteenth Amendment [of the United States Constitution].” Mosley v. Nev. Comm'n on Judicial Discipline, 117 Nev. 371, 378, 22 P.3d 655, 659 (2001). The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1; see alsoNev. Const. art. 1, § 8(5) (“No person shall be deprived of life, liberty, or property, without due process of law.”). Thus, when a judicial office is at stake, due process mandates “a fair trial before a fair tribunal,” Ivey v. Eighth Judicial Dist. Court, 129 Nev. ––––, ––––, 299 P.3d 354, 357 (2013), requiring, at least,...