Judicial Discipline Commission not getting the job done

When I first started my law practice in the 1990s, I’d often spot older individuals sitting in the back of courtrooms – unaffiliated with any of the proceedings of the day – but nonetheless present from the moment the judge took the bench until the end of the court calendar.  I came to learn these folks weren’t part of any organized group but simply shared, in their retirement, an utter enjoyment for observing proceedings. Maybe they thought of it as a free, immersive 3-D Matlock experience or a TV show called Murder, She Easily Proved In Front of An All-White Jury With A Biased Judge.  

Sometimes, these court watchers (or “bench birds” as one called his kind) became friends with each other. I’d see them convening after court at a nearby cafe to share stories of offbeat cases, trial drama or judicial antics. Sometimes I’d find myself chatting up one on a courtroom break. It was often a treat learning about their rich histories (including former cops and lawyers). But for a young lawyer, it was their informed view of the judges based on hundreds of hours of steady observation that was invaluable. Having precious little experience at the time, a thoughtful insight about a judge’s mood of the day, or trend on an issue with specific examples, was a cache of useful knowledge unavailable in any law book.

I miss the court watchers. As Court TV and other “reality” programs became prevalent, their motivation to schlep downtown to see the same thing at the courthouses probably dropped. And, well, as time did what time does, they probably dropped, too, not to be replaced in the age of social media and even live-twittering of hearings. But what if “court watching” wasn’t just an antiquated hobby, but a vibrant part of a joint legal and journalist tradition? What if we thoughtfully kept our eyes on every courtroom (and judge) to not only understand the process but be alerted when injustices were occurring?

My thoughts turn this way as I sporadically peek into the remarkably ridiculous, possible never-ending tribunal recently paraded in the public eye about the off-bench, perhaps salty but not particularly salacious conduct of two female judges. I emphasize the gender of these judges because (as others have pointed out), the whole thing reeks of an attempted, sexist smackdown of jurists with the audacity to not adhere to some sort of old, male standard of “conduct becoming a judge.”  

Likely to go nowhere near the possible goal of sanction or even removing these judges from the bench (as the first after-hearing announcement affirms with the only finding of a “continuing investigation”), this proceeding has had the unintended consequence of shining light anew on the long-criticized, limited effectiveness of the Nevada Commission on Judicial Discipline.  Indeed, because of this over-the-top inquiry into (no joking) why the word “shit” was on a sweater under her robe, if the judges cussed in the hallway and if they preferred some clerks working for them over others – some in legal quarters are calling for the disbandment of this group of appointed overseers to a fair and just legal system.

Despite the folly of the current proceedings, that would be short-sighted.

Now more than ever, upon the upcoming election involving well over 50 judicial races in Clark County, many for open positions, there needs to be a strong discipline commission (and more likely staff who do the screenings of complaints) because the voters are invariably going to seat individuals who are likely to not be good at their jobs. And while that may sound harsh, the point is that non-partisan, judicial races are typically the lowest-information campaigns in town and with judicial canons prohibiting candidates from expressing their position on a large range of matters it too often comes down to a pleasant face on a poster over a keen mind. 

A Judicial Discipline Commission that keeps an eye on every courtroom, or at least takes serious, reliable accounts of mistreatment of litigants, racial biases, conflicts of interest, fundamental violations of due process and patterns of unrepentant errors of legal judgment – well, it should have a mechanism to swiftly and materially sanction, suspend and even remove judges to a much greater degree. As is, they only seem to pick cases (and rarely at that) where the judges are either so damaged or already toasted that redemption is lost — or concerning spectacle shenanigans like the current justice of the peace with a funky sweater. As is, the Nevada Commission on Judicial Discipline seems fuller of itself than actual impacts on a challenged and ever-growing system of civil, criminal, juvenile and family law courts. Sadly, it also lacks the self-awareness of where it’s gone wrong and perhaps suffers from an institutional bias against doing anything too radical, at least when it comes to the actual systemic faults of Nevada’s frequently wonky crapshoot that we call justice. A new start with a fresh panel following even more transparent rules and guidelines, as well as more effective consequences (or corrective measures) for bad judges, is critically needed.  

A quick overview of this entity is instructive as to why it’s so vital and how it has too frequently (but not always) failed the community.

Aping their website, “the Commission was created by a Constitutional amendment on November 2, 1976, to investigate allegations of Judicial misconduct in office, violations of the Revised Nevada Code of Judicial Conduct, or disability of judges. The Commission is composed of seven members: two judges appointed by the Nevada Supreme Court, two attorneys appointed by the Board of Governors of the State Bar of Nevada; and three lay persons appointed by the Governor of the State of Nevada. Its staff consists of a full-time General Counsel/Executive Director, Associate General Counsel and three Management Analysts.” The current composition of the regular Board (six men, one woman) is found here – though there are no links to the qualifications or reasons why the members (especially the lay representatives from the public) were appointed but their day jobs are listed. For instance, the Chair, Gary Vause, is the owner of Lit’l Scholar Child Care Pre-Schools and Kindergartens, where presumably wearing a sweater that said “shit” on it could be a 15-minutes-in-the-corner time-out level offense.

Essentially, the Commission has a set of forms that allow a signed complaint to be levied against a judge. And while seemingly designed to mostly cater to litigants in a case who have a specific concern about a specific judge, there is an allowance for any person to lodge a complaint so long as they affix their signature to the form. As such, no anonymous complaints are considered even if the conduct is egregious or otherwise provable. 

This lack of anonymity is obviously a cause for some concern since good or bad, judges have a degree of power and in the legal community. There is an inherent fear of reprisal. As such, there are likely a number of legitimate complaints that never get submitted. It’s unclear whether the commission takes special notice of things like Nevada Supreme Court opinions that call out judicial errors, or news (or even social media?) revelations, but Nevada law seems to suggest that only a formal complaint begins the process.

There is no true limitation on the content of the complaint so long as it touches upon one of the very broad “canons” of judicial conduct which cover everything from impartiality and bias to competence and decorum in the courtroom with litigants, attorneys, jurors and staff as well as no-nos during campaigns and limitations of extra-judicial activities. The canons also contain a very expansive “propriety” phrase (currently being tested in the pending proceeding with the two justices of the peace) which states in full: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.” There’s also a requirement that if one judge learns of another judge violating any of the rules, they are required (lest they be breaking the rules) to rat out their colleague.

All in all, there are dozens and dozens of specific and ethereal rules that judges must abide lest they (theoretically) face the scrutiny of the commission.

Once filed, a complaint then goes into a mystery hopper to determine if further action is warranted and that’s one of the biggest criticisms of the process.  Understandably, and by design, judges would want unwarranted complaints to remain confidential – and the named whistle-blower may also want to stay out of the public eye until there’s actual findings.  On the other hand, the law allows a judge against whom the complaint is filed, or the person who filed the complaint to disclose the existence or substance of the complaint. Still, the thresholds for determinations to move forward are somewhat (and problematically) too discretionary.

Typically, a complaint will be filed and acknowledgement of receipt will happen fairly quickly.  The entire process to decide what (if anything) will happen next is required to take no longer than 18 months. Most are dismissed.

And while it’s a little difficult to track the actual dismissal rate since annual fiscal year reporting encompasses complaints received and dispositions that might have come from other years, it’s not hard to see the trend. Between 2016 and 2018, there were about 550 complaints submitted to the Nevada Commission on Judicial Discipline. During that same time frame (and without exact tracking to the complaints), only 23 cases proceeded to the formal charge phase and even fewer made it to a sanction of any sort. We can look at public reprimands, however, and see that during that same period 3-year period of 2016-2018, 20 different judges received some manner of reprimand or discipline (mostly fines or the requirement to take classes).

But when a potentially righteous complaint is filed (and dismissed) the reasons given to the complainant are often ambiguous. For example, one common complaint is that the judge is not competent and does not follow the law. (Canon 2). And while there is an allowance that judges can make good-faith errors of fact or law, what if a judge does it over and over, even after being admonished by the Nevada Supreme Court – or when the Nevada Supreme Court does it despite being admonished by the Ninth Circuit Court of Appeals or the United States Supreme Court? Commonly, the commission cites its own procedural rules and Nevada law, to avoid ruling on matters of repeated conduct, instead telling the complainant (if a litigant) to basically appeal any wrong decision they think the judge is making. Indeed, it looks like the only time a judge gets any serious scrutiny from the Judicial Discipline Commission for more systemic failures (like competence) is when other judges get involved.

Otherwise, when a judge clearly (and on the record) goes off the rails in a single case, like abusing contempt power (which happens a lot) or punishing a juvenile and threatening her lawyer for invoking a Constitutional right or engages in some weird campaign nonsense – it does seem the commission (slowly) but surely does something to bring attention to the matter. But if a litigant or member of the public points out a pattern of conduct of a judge in many cases leading to unfair dispositions, violations of basic rights, and general incompetence to continue to be a judge – they basically say “we can’t help ya.” (Still not sure where wearing a “shit” sweater falls on this spectrum or why there was a two-day hearing where this came up.)

Which brings me back to the bench birds: everyday citizens who sat in the courtrooms and got maybe the best sense of was happening without fear of reporting — or reprisal over a cup of coffee across the street from the courthouse. Our justice system is reliant on campaigns over real criteria to put judges in place. Our judicial watchdog (the Nevada Commission on Judicial Discipline) is generally inadequate, ineffective or at least inconsistent in acting in ways that help the public by ensuring that the system is working. Truly bad actors can too easily avoid legitimate correction or removal; the dial that needs to turn for judicial reforms to benefit the public seemingly stuck. 

Perhaps we should incentivize retired folks to come back to court, set them up with a Twitter account (oh my) and encourage them to go at it. Or maybe we do a little more to keep eyes in courtrooms all the time, not just snapshots of sensational matters, for it is in the mundane (over time) where the real strengths or weaknesses of judges are revealed. It could be just as simple as pouring over appellate court decisions and make judges answer whenever they give wrong instructions, or abuse their discretion, or commit any other host of errors which transcend mere “good faith” mistakes. We need the best and the brightest judges with proper dispositions and the self-awareness to seek improvement. To ensure that, we need a strong, but fair system in place for issues big and small. More than 500 complaints with only around 5 per cent moving forward does not suggest that is happening. The “shit show” — as some people are now calling the commission after this most recent proceeding – is not getting the job done.

Dayvid Figler is a criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.