Studying the State of the Las Vegas Judiciary: An Illustration of the Problems that Arise When Judges Are Elected, Not Appointed

By CARL TOBIAS

Tuesday, Jun. 27, 2006

Few questions have vexed state court delivery of justice as much as the issue of elected judges. Unlike federal judges who are appointed, and enjoy life tenure, state judges typically are elected, and serve for set terms. This contrast has informed the perennial debate over whether an elective system, which champions argue emphasizes electoral accountability, or an appointive regime, which proponents say emphasizes merit, is superior. A related debate asks, if elected judges are preferable, how to remedy or ameliorate the difficulties posed by campaign donations - which may come from local law firms and attorneys who could appear before the judge.

Such debates always end inconclusively. This phenomenon led the ABA to appoint the Commission on the Twenty-First Century Judiciary, which evaluated the process of electing judges and made suggestions for improvement in 2004.

The problems with elected judges were recently illustrated in a three-part series which the Los Angeles Times published.

Corruption, or Its Appearance, In Las Vegas

The reporters painted a troubling portrait of some state court judges and certain attorneys who practice in Las Vegas, Nevada. The writers reported in consummate detail, based substantially on court documents, a complex web of what is, or appears to be, inappropriate conduct.

The three articles recount numerous examples of attorneys sponsoring fundraisers for, or giving contributions to, judges who later ruled in the lawyers' favor in specific cases. Of course, the judges might have ruled in the lawyers' favors on the merits anyway - but the numerous matches of contributions with favorable outcomes suggest that coincidence is not the only explanation.

Nevada law permits judges to accept campaign donations from attorneys and allows lawyers to make those contributions. But it does not, of course, condone lawyers' making donations for the purpose of influencing judicial decisions or judges allowing themselves to be thus influenced.

Indeed, to the contrary, the canons of judicial ethics require that judges recuse themselves from hearing cases in which their impartiality might reasonably be questioned and that they disclose information to lawyers and parties that the lawyers and parties would reasonably consider relevant in determining whether to seek the judges' disqualification. The fact of contributing or sponsoring a fundraiser should prompt recusal - or, at the very minimum, disclosure.

Even if the favorable rulings are merely coincidental, that may be impossible to prove - and thus, the damage may have been done anyway. The appearance of impropriety can be nearly as damaging as the reality of misbehavior in the critical area of judges' and lawyers' conduct. This is true because even the appearance of improper behavior can undermine public trust in the institution of the judiciary.

It's Time For Investigations By an Independent Commission

To maintain public trust, the Nevada Supreme Court, which oversees the state judiciary, should promptly appoint an expert, impartial and independent commission that will thoroughly investigate the circumstances described in the recent Los Angeles Times articles.

The membership of the commission should include judges, attorneys and laypeople who enjoy sterling reputations for fairness and integrity. Most members should be Nevada residents, but the appointment of some highly competent non-residents might infuse a welcome measure of impartiality and independence.

The commission should promptly and comprehensively investigate the matters described in the three newspaper articles. If the commission finds improper behavior or even its appearance, the commission should formulate structural and case-specific suggestions for remedying, or at least ameliorating, the behavior found.

Corrective Measures Include Contribution Limits and Appointments In Lieu of Elections

The federal and state judicial systems afford a plethora of effective solutions, and the recent ABA report and recommendations for reforming state judicial elections should be a valuable resource.

Illustrations of possible corrective measures abound. For example, federal and state judges must recuse themselves in cases where they have a conflict of interest, real or apparent. Some states correspondingly require that judges reveal any conflicts of interest, including contributions from lawyers or parties. Nevada, as noted above, has these requirements but may want to revise the strictures to make them clearer and more emphatic.

Other jurisdictions limit the amount that attorneys and litigants may contribute to the election of judicial candidates. More dramatic reform would be change in the way that judges are selected, for example, from election to appointment, a method which numerous states employ. Nevada should consider both of these possibilities as well.

In sum, the Nevada Supreme Court should expeditiously appoint an excellent commission that promptly and fully investigates the newspaper allegations and proposes solutions to any problems found. These actions would help maintain public trust in the Nevada state judiciary and could provide a model for others states in which similar allegations are raised.

Even if the investigation reveals that no abuse has occurred, that finding would have the beneficial effect of clearing the air. Maintaining public trust is essential to public respect for the judiciary and to a vibrant democracy in states that elect judges.


Carl Tobias, the Williams Professor at the University of Richmond School of Law, served as a consultant to the ABA Commission on the Twenty-First Century Judiciary. These views are his own.

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