Whitehead v. Comm'n on Jud. Discipline

908 P.2d 219 (1995)

In 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.

No. 24598.

Supreme Court of Nevada.

December 15, 1995

Ohlson & Springgate, Reno; Hamilton & Lynch, Reno; Gentile and Porter, Las Vegas; Laura Wightman FitzSimmons, Las Vegas, for Petitioner.

Leonard I. Gang, Carson City, for Respondent.

Peter Alpert, Las Vegas; Gerald Stern, New York, New York, 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.

OPINION

PER CURIAM:

The following opinion and judgment of the court constitutes an unprecedented but necessary response to a certain document filed by the dissenting justice and two disqualified justices in one of the court's administrative files on September 15, 1995. The document in question purports to be an "order" declaring actions of this court to be "void," and otherwise overruling substantive rulings of the constitutionally-empaneled court sitting in this case. Because two of the justices who signed the mentioned order were disqualified to act in this case, because notice and due process were denied to both parties to this action, the Judicial Discipline Commission and Judge Whitehead, and because the mentioned justices are in a position of conflict of interest, the "order" appearing in the form of the mentioned administrative document must be declared null and of no force or effect.

On September 15, 1995, the dissenting justice, JUSTICE SHEARING, and the disqualified justices, JUSTICES YOUNG and ROSE, signed and filed an "administrative" document that bears the title, "Order Granting Petition and Vacating Order Appointing Special Master[1]." The referenced document purports, unlawfully, to nullify and set aside a previous judgment of this court granting a motion filed by petitioner Whitehead. This court ruled in July, 1994, as follows:

A special master shall hereafter be appointed by the court and shall be specially empowered by further and specific order of this court to conduct such investigations as shall be necessary to determine the sources of the unlawful breaches of confidentiality that have occurred in these proceedings and the extent to which they may have impacted Petitioner's due process rights.

*220 The September 15, 1995 document purports to overrule the decision above-quoted, and, additionally, purports to "declare[] void the `Order Appointing Special Master' entered in Docket No. 24598" (the above-captioned matter). Neither counsel for the Commission nor Judge Whitehead was given any notice or the due process right to be heard prior to the signing and administrative filing of the mentioned "order" which purports to countervene the "law of the case" in this matter and to declare vital aspects of the decisions of the Whitehead court to be void. In addition to the other infirmities inherent in the September 15 document, the signing justices are in a position of conflict of interest, which prevents them from acting to stop the investigation in progress at the time the September 15 document was filed. (See Master's Report attached and made a part hereof.)

In addition to filing the subject September 15 document, the two disqualified justices (JUSTICES YOUNG and ROSE) have recently announced their intention to go beyond merely declaring the appointment of the special master void in this case. JUSTICES YOUNG, ROSE and SHEARING have recently announced their intention to sign, on December 15, 1995, another similar administrative "order," at another "administrative conference," in which the three justices propose to declare "that the authority and existence of the Whitehead panel be terminated formally to end the existence of a legal body whose time has come and gone."

In sum, then, the dissenting justice, JUSTICE SHEARING, and the two justices who were heretofore disqualified from sitting in this case, JUSTICES YOUNG and ROSE, have, without any authority for doing so, signed an "administrative" order that pretends to reverse and invalidate significant rulings of the Whitehead court. The same three justices have recently announced their intention to sign another similar "administrative order" which would purport to disband and terminate "the authority and existence" of the court as constituted in this case. The only basis presented by JUSTICES YOUNG, ROSE and SHEARING for their attempts to reverse the judgment of the court is their unsupported (and unsupportable) statement that this court's orders relative to the appointment of a master were in some unstated way, "done without legal authority." The stated reason for trying to dissolve this panel of the court is that the existence of the panel should be terminated because its "time has come and gone."

There is no need to cite legal authority for the proposition that disqualified justices are not empowered to alter the formal adjudications made by the court in this case. It would be idle for anyone to argue that disqualified justices have the legal power or authority to countermand a duly-entered judgment of this court under the guise of some supposed right inherent in their being elected members of the court. It is equally obvious that if the "order" of September 15, 1995, signed by JUSTICES YOUNG, SHEARING and ROSE had any conceivable legal effect (as it clearly does not), such an order would be clearly violative of the parties' due process rights to notice and the opportunity to be heard. Seeing no need for further discussion of this matter, the court enters the following judgment:

1. The order signed by JUSTICES YOUNG, SHEARING and ROSE, filed on September 15, 1995, which declares certain judgments and orders of this court to be "void," is hereby adjudged to be a nullity and of no legal force or effect.

2. Any attempts by the dissenting JUSTICE SHEARING or by the disqualified JUSTICES YOUNG and ROSE, by way of "administrative conference" or otherwise, to "terminate" the existence of the Whitehead court, as constitutionally empaneled in this case under Article 6, Section 4 of the Nevada Constitution, are clearly beyond the authority of the mentioned justices, individually or as a group of three, and such attempts must be and will be ignored by the court as it is presently legally and constitutionally empaneled.

3. The order of September 1, 1995, appointing Herbert Ahlswede as special master, remains in full force and effect as it was at the time of its filing.

STEFFEN, C.J., SPRINGER, J., and

*221 ZENOFF, Sr. J.,[2] concur.

SPRINGER, J., concurring:

I concur in the judgment of the court and point out that there are clearly a number of irrefutable legal reasons why two disqualified justices cannot be allowed to intervene in a case through the guise of an "administrative conference" and start cancelling out the decisions made in a case and controversy in which they were disqualified to sit. I will supply these legal reasons later, but at the outset I want to stress only the common sense aspects of this case, for I am confident that any reader of this opinion, lawyer or layperson, will understand, before I write another word, that a case duly decided by this court cannot properly be reversed or set aside by any combination of dissenting and disqualified justices who claim jurisdiction simply by changing their roles from judicial to administrative.

By way of simple illustration, consider a hypothetical case decided by a district judge who later discovers that his predecessor, who was expressly disqualified in the same case, had signed and filed in that case an "administrative order" declaring the judgment entered by the duly-appointed successor judge to be "void." It seems odd to contemplate any judge engaging in such untoward conduct, but the fact of the matter is that we are now faced with similar conduct being engaged in by three members of this court.

I think of a number of supreme court cases that have been decided by a panel of five jurists in which two of the panel members are district judges who have been constitutionally designated to "sit in the place" of disqualified justices. If these three justices were now permitted to set aside the judgments of this court merely by signing an in-chambers, "administrative" order, dissenters in any case could simply join with the disqualified justices in an "administrative conference" and overrule any case and controversy that was not to their liking. Thus, if the actions taken by the three justices in this matter are allowed to stand, any future decision of the court in which jurists were substituted for disqualified supreme court justices is in jeopardy. Such an action would disregard stare decisis and predictability in the law, and any case or controversy decided by a duly-constituted panel of this court would be subject to an overruling by a majority of three assembled in an "administrative conference" set at their pleasure. The rule of law would thus, in such cases, be supplanted by the preferences of disqualified jurists who, in the exercise of raw power could overrule decided cases at will.

In the above example of a district judge discovering that a previously-disqualified judge had filed an order superseding the lawful judgment of the court and declaring the court's judgment "void," there would at least be a remedy the supreme court would, posthaste, cancel out such an attempt by a disqualified judge to reverse a legal decision of the court. There is, unfortunately, no one to appeal to when justices of the supreme court act in this way.

There is, of course, absolutely no legal basis for the action taken by JUSTICES YOUNG, ROSE and SHEARING. In addition to the invalidity of the subject order based on the disqualifications of JUSTICES YOUNG and ROSE to sit in the Whitehead case, as noted previously, the "order" has denied notice and the opportunity to be heard to Petitioner Whitehead and the Commission. The fugitive "order" is also in violation of established court rules. Finally, and very importantly, at least one of the three justices is the subject of the Special Master's inquiry.

At this juncture, I think it is important for the reader to understand more fully the actions of this court which the three justices seek to declare "void." It should first be said that the decision of the Whitehead court that JUSTICES YOUNG, ROSE and SHEARING have attempted to declare "void" is the court's duly-entered order of February, 1995, which granted Judge Whitehead's motion to appoint a master. The motion was vigorously opposed and was the subject of oral argument to the court. The issue decided by the *222 Whitehead court was whether inquiry should be made into the breaches of confidentiality that had been occurring in the Whitehead case. The issue was so serious that even the Nevada District Judges Association wrote an unsolicited letter to then CHIEF JUSTICE ROSE urging that he take measures to "investigate the source of these [confidentiality] violations of state law and to take whatever steps are necessary to put a stop to the practice."

Article 6, section 21(5), of the Nevada Constitution provides: "The supreme court shall make appropriate rules for: (a) The confidentiality of all proceedings before the commission, except a decision to censure, retire or remove a justice or judge." Following the stated constitutional mandate, this court adopted rules relating to confidentiality, which provide in ARJD 6 that any "person who breaches the confidentiality of judicial discipline proceedings is subject to being found guilty of contempt of the supreme court." Each member of this court has sworn an oath to "support, protect and defend the Constitution of the State of Nevada."

The Commission on Judicial Discipline commenced its activities in 1977. Approximately two years after it came into existence, the Commission began the practice of releasing confidential information relating to judges in a manner that was violative of the Constitution and Commission rules of procedure. These unlawful practices were discontinued in the 1980s but resumed in the 1990s, accompanied by another unlawful practice, that of making secret agreements with judges and imposing secret punishments that were in violation of the constitutional provision quoted above.

I do not understand why the Commission has persisted in violating the Constitution by permitting confidential material to be released to favored press sources and by imposing secret punishments upon judges. Judges who have been the victims of these practices suggest that those responsible for these unlawful actions believed that they were enhancing their own power by currying favor with certain influential media sources and by holding over the heads of judges the threat of public disgrace if judges resisted too strongly the will of the Commission.

Before Judge Whitehead filed his challenge to illicit Commission practices, the members of this court were already aware of a number of constitutional violations being engaged in by the Commission. In one case, during confidential proceedings relating to a rural judge, the judge became the object of press accounts which alluded to supposed secret sources within the Commission itself. These planted news stories falsely attributed unfounded charges of sexual harassment and other sexual misconduct to a judge. Other comparable misuses of the system had been called to our attention by outraged judges; and, as a result of these revelations, some members of the supreme court became very much concerned about what the Commission was doing.

The constitutional violations that emerged in the Whitehead case (putting confidential Commission files into the hands of a friendly "investigative reporter") were merely the culmination of similar events in the past and inarguably the most brazen and destructive instances in the chain of constitutional violations. The Commission is the legally-designated custodian of these records, and escape of these records was becoming more the rule rather than the exception. It also became apparent that certain reporters, particularly certain members of the Capitol press corps, were more favored than others and that there was, perhaps, an organized scheme to avert constitutional confidentiality provisions entirely.

Judge Whitehead moved this court to appoint a master to investigate violations of his right to confidentiality and other claimed constitutional violations. Records in the Whitehead case revealed not only that confidential information was being unlawfully planted with favored media outlets, it also disclosed Commission practices in which judges were coerced into making secret "agreements" with the Commission that resulted in the imposition of punishments that were never made known to the public. Notable among these secret punishments was the practice of putting judges on "probation" to the attorney general's office, a practice which *223 resulted in judges having to make rulings in cases where their "probation officer" from the attorney general's office was appearing before them as counsel.

The manner in which the Discipline Commission has been conducting its business presents a very serious threat to the independence of the Nevada judicial system; and it is primarily this concern that prompted this court to institute an inquiry into the practices described above. Contrary to the position taken by certain elements of the media that have been closely involved with the mentioned practices, the purpose of this court's appointing a master is neither to investigate the press nor to exact "vengeance" against anyone for embarrassing the court or its members. I cannot fault responsible members of the press for faithfully and accurately printing contraband material that was delivered to it by persons who were willing to violate the Constitution and laws of this state.

It was the concern of a majority of the Whitehead panel (as it should be for all members of this court) that the mentioned unlawful practices appeared to be carried out in such a way as to degrade the courts, the judges and the Commission itself, and that judges at all levels of our court system were being denied due process of law. Moreover, the public was being denied the open processes of judicial discipline proceedings that the Commission's own rules expressly required.

Returning now to the issue at hand, and although it is certain that under no conditions could the three justices have assumed lawful jurisdiction to overrule any aspect of the Whitehead decisions, very little argument is required to show that the Judicial Discipline Commission and Judge Whitehead had to have received notice and the opportunity to be heard before the substantial rights of the parties could be altered.

I would not venture to say whether the Discipline Commission would now be in favor of a continued investigation of the violations of law that took place in the Whitehead proceedings; but certainly the Commission should have been given notice and an opportunity to be heard before any action was taken by this court or by any individual justices.

The motion by Judge Whitehead to appoint a special master was granted by four of the five members of the Whitehead court. The judgment has long since been final and is not subject to challenge. The idea that Judge Whitehead could be lawfully deprived of his rights through some kind of ersatz, "administrative" machination, involving two disqualified justices and a dissenting justice, is at total odds with any known conception of jurisdiction, fairness and due process.

There is a third reason, aside from the disqualification of JUSTICES YOUNG and ROSE and the due process considerations discussed above, why the three justices should not be allowed to thwart the investigation commenced by Special Master Herbert Ahlswede. The reason is that evidence gathered in the Master's preliminary investigation by the Special Master (before JUSTICES YOUNG, ROSE and SHEARING stopped him) points reliably to the possibility that at least one of the justices who signed the order may be involved in the breaches of confidentiality which are the subject matter of the investigation. In other words, it appears as though some of the justices may possibly be trying to put a stop to an investigation in which they themselves might be the targets.[1]

Although JUSTICES YOUNG, ROSE and SHEARING have signed an order purporting to put a stop to Mr. Ahlswede's investigational activities, Mr. Ahlswede did have time, before the justices were able to thwart the investigation, to gather some vital documentary evidence and take some witness statements. From the information provided by Mr. Ahlswede to the Chief Justice, it can now be said with confidence that the investigation was clearly on its way to the discovery of information that would be of exceptional interest to the judiciary and to the public. It is now established beyond question that the Special Master's *224 investigation was anything but an unfounded "witch hunt," as it has been described by JUSTICES YOUNG and ROSE. Among other significant discoveries by the Special Master, the identity of some of the persons responsible for the breaches of confidentiality have been discovered, and there is every promise of discovering all of the persons who engaged in what appears from presently available data to have been a deliberate conspiracy by a number of persons to violate the constitution and laws of this state.

Because the Special Master's investigation is not complete and could be impeded by a premature release of the identity of any of the persons being investigated by the Special Master, I say no more about the investigation at this juncture. Suffice it to say for present purposes that two of the three justices who signed the September 1 order were themselves the subject of the investigation that these justices have ordered to be stopped. Even if these justices had had the authority to intervene in this case and the power to countermand the orders and decisions of this court, it would be a clear conflict of interest for them to order the cover-up and stoppage of an inquiry which tragically appears to involve one or more of the justices themselves.[2]

In conclusion, then, because: (1) JUSTICES YOUNG, ROSE and SHEARING have no jurisdiction to set aside the rulings of this case; (2) JUSTICES YOUNG and ROSE are disqualified to act in any way that relates to this case; (3) the "order" declaring decisions of the Whitehead court in this matter void constitutes a clear denial of due process to the parties to this litigation; and (4) actual conflicts of interest prevent JUSTICES YOUNG, ROSE and SHEARING from acting in any way that would thwart the Special Master's investigation, I concur in the judgment of the court.

ORDER GRANTING PETITION AND VACATING ORDER APPOINTING SPECIAL MASTER

On September 7, 1995, the undersigned petitioned the elected justices of this court to review actions taken by a panel constituted to hear and decide the matter of Whitehead v. Nevada Commission on Judicial Discipline, Docket No. 24598. Our petition was prompted by the panel's issuance of an order, signed by only two of the elected justices of this court, appointing a special master/prosecutor, and directing the expenditure of public funds to facilitate the special master/prosecutor's activities. This order was entered by a majority of the panel constituted to hear and decide only the Whitehead matter. Because the order exceeds the panel's jurisdiction to decide the case before it and purports to authorize the expenditure of public funds, we are compelled to act in our administrative capacity to protect this court's resources and to govern the programs pursued by the court.

The administration of this court and the utilization of court resources must be authorized by at least three of the five elected Supreme Court Justices, i.e., a majority of this court. SCR 7(1); SCR 7(4). Any administrative action is null and void if a majority of the court disagrees with it. SCR 7(8). The Whitehead court issued its final decision in this matter on September 9, 1994. See Whitehead v. Comm'n on Jud. Discipline, 111 Nev. 70, 893 P.2d 866 n. 1 (Adv. Opn. 11, February 24, 1995). The "Order Appointing Special Master," was entered one year after entry of judgment in that matter "in the hope that effective measures *225 will eventuate that will help to avoid future unwarranted degradation and erosion of the independence of the court and of the judicial system as a whole." (Emphasis in the original.) The undersigned, a majority of the duly elected Supreme Court Justices, determine that the appointment of a special master/prosecutor and concomitant expenditure of funds serves no legitimate purpose and amounts to a gross waste of this court's limited resources. We therefore declare void the "Order Appointing Special Master" entered in Docket No. 24598, and hereby prohibit the payment of any cost or expenditure associated with the appointment of said special master/prosecutor.

It is so ORDERED.

MASTER'S INTERIM REPORT

Pursuant to an order entered by the above-entitled court September 1, 1995, appointing Herbert F. Ahlswede Special Master of the Whitehead court, and requiring him from time-to-time to file interim reports with the Whitehead panel concerning his investigation, the following report is hereby submitted:

1. My investigation discloses what appears to have been an intentional and knowing disclosure of confidential matters relating to the Whitehead matter before the Judicial Discipline Commission.

2. My investigation to date reveals that this disclosure may involve members of a law firm, at least two members of the supreme court and the attorney general's office. My investigation, to date, does not point to the involvement of any members of the Discipline Commission, but I do not foreclose the possibility of this being the case should my investigation be permitted to continue.

3. The evidence gathered to date discloses a flurry of communication among those aforementioned persons and those involved in the confidential breach at and around the time of the first "leak," October 10, 1993, when "unnamed sources" were reported to have revealed the confidential files relating to Judge Whitehead to an investigative reporter for a Las Vegas newspaper. The evidence, in the form of communications by FAX and telephone and telephone messages, reveals that possibly at least one member of the supreme court, presently unidentified members of the attorney general's office who were FAXing Whitehead materials to the law firm, members of the law firm, an investigative reporter for the Las Vegas newspaper, a reporter for a Reno newspaper, and an attorney who was representing the Discipline Commission, were involved in a conspiracy to unlawfully leak confidential information concerning the Whitehead investigation by the Discipline Commission.

4. My investigation discloses that evidence of the aforementioned communications, i.e. the telephone FAX records and telephone messages, were ordered destroyed at a time when it appeared that these records might be discoverable in any subsequent investigation into the source of the leaks. Notwithstanding the destruction order, those documents have been obtained. They appear related to the leak of confidential information.

5. I have also been made aware of a letter from a former member of the Attorney General's office indicating that the Attorney General told an assemblage of her deputies (including the author of the mentioned letter, in her Las Vegas Office, that "[Senior Justice] ZENOFF'S appointment [to the Whitehead panel] proved that `the fix was in.'" I can think of no more serious charge than that of a "fixed" court. Certainly, if the statement was made by the Attorney General, and it had any substance, she had the absolute duty to prosecute any so-called "fixed" members of the supreme court. The making of such a statement by the Attorney General and her reasons for making such a statement should be fully explored.

Please keep in mind that this is only an interim report and not a final one. My investigation had just begun when JUSTICES YOUNG, ROSE and SHEARING ordered it terminated, before any conclusionary or final report could be submitted.

Because my investigation is not complete and because I still harbor some hope that I might be allowed to continue in the search for truth, I offer to the court the present, necessarily incomplete report, which has not *226 included the names of those persons who may be involved.

My investigation cannot be considered any where near complete until I complete my intended work, which includes at minimum, the following:

1. Taking the deposition of certain clerical personnel and lawyers of the law firm involved. 2. Ascertaining who was faxing papers from the attorney general's office to the offices of the law firm involved. 3. Taking the deposition of all supreme court justices and some district court judges. 4. Examination of various involved law firm's records, including, at minimum, inspection of the computers used in the writing of documents and memoranda relating to the Whitehead case. 5. Examination of Supreme Court telephone and fax records. 6. A potential request for a federal inquiry into the influence that certain members of the law firm claim to have over a high federal prosecutorial official and of a mentioned FBI agent.

At the time that JUSTICES YOUNG, ROSE and SHEARING signed the order purporting to terminate my authority, my next intended order of business was to interview all five of the supreme court justices. It was a matter of shock and outrage to me when I found that two of the justices who had signed the order were disqualified to act in the matter in which I had been employed.

Recently, the same three justices (two of whom have been legally disqualified to act in any manner in the Whitehead case) have announced their intention to sign another three-justice order which would terminate entirely ongoing proceedings in a pending case. I realize that the three justices believe that the "time has come and gone" for the existence of the legally constituted panel in the Whitehead case. Nevertheless, it is beyond my understanding how this case can be extinguished by a stroke of the pen, particularly when it is the pen of jurists who are legally disqualified to act in this case.

I dread to think of the precedent that this action takes, for I assume, in the future, any time that three elected justices deem the manner in which a panel handling a case is unsatisfactory to them, they will try again to wipe it out of existence.

Respectfully submitted, /s/ Herbert F. Ahlswede Special Master NOTES

[1] A copy of the subject order is attached to this opinion.

[2] The Honorable Thomas L. Steffen, Chief Justice, who was then Vice-Chief Justice, assigned the Honorable David Zenoff, Senior Justice, to sit in the place of the Honorable Robert E. ROSE, Justice, who was then Chief Justice. Nev. Const. art. 6, § 19; SCR 10.

[1] It is noteworthy that in her dissent in this case, JUSTICE SHEARING wrote that "there is evidence that some of the [unlawful] disclosures may have come ... from the court itself." (Emphasis furnished.)

[2] It should be noted that as independent grounds (in addition to the jurisdictional, disqualification, due process and conflict of interest reasons) for setting aside the subject order of September 15, 1995, JUSTICE ROSE (who was chief justice during the pendency of the Whitehead case) and JUSTICE YOUNG (who was and is Vice Chief Justice during the pendency of the Whitehead case) are precluded from taking any action that relates to the Whitehead matter by SCR 7(5) which provides: "In the event the Chief Justice or the Vice Chief Justice is either disqualified or wishes to recuse himself in regard to the decision of any litigated matter, he is also precluded from undertaking any administrative action with regard thereto." (Emphasis added.)

Further, NRS 2.140 provides that the transaction of judicial business of the supreme court requires "the concurrence of three justices who heard the argument." JUSTICES YOUNG and ROSE, disqualified from the Whitehead case, obviously are not justices "who heard the argument" in the Whitehead matter; therefore they are barred by NRS 2.140 from transacting any business relating to that case.