Ballot question would clarify judges’ discipline

Wednesday, Oct. 28, 1998 | 11:51 a.m.

CARSON CITY -- The reputation of the Nevada Supreme Court took a beating in its handling of the high-profile disciplinary case of former District Judge Jerry Whitehead in the early 1990s.

As a result, voters are being asked this election to approve a constitutional amendment to remove the court's authority over the state Judicial Discipline Commission

Approval of the amendment, Question 2 on the ballot, would allow the commission to start its own investigation into the conduct of judges, without waiting for someone to file a complaint. The commission, instead of operating under regulations of the Supreme Court, would set its own rules for its hearings and investigations.

Assemblyman Bernie Anderson, D-Sparks, authored the proposed constitutional amendment after hearing concerns in 1995 from the late Guy Shipler, chairman of the discipline commission. "Guy felt they (the commission) were being overly controlled by the Supreme Court. And the court had not even adopted permanent rules at that time.

"The impetus came from the Whitehead case," Anderson says.

Complaints were filed with the commission against Whitehead of Reno, and a confidential investigation started. Whitehead asked the Supreme Court to intervene, claiming the commission violated procedural rules laid down by the court. A temporary order was issued by the court stopping the investigation while it looked at the case.

The decision not only divided the justices, but the case also escalated into a bitter battle between the discipline commission and a majority on the court panel. When the dust settled after one of the longest battles in court history, charges against Whitehead were dismissed by the court. "There was frustration on the part of some of the commissioners," recalls Anderson.

The proposed constitutional amendment was drafted and passed both the 1995 and 1997 Legislatures. There wasn't a dissenting vote in the last Legislature. Now the voters decide. It would switch from the Supreme Court to the Legislature the job of setting the standards for the investigation, the grounds for disciplinary action and when the cases become public.

Proponents of the ballot question say this would remove any hint of bias or control by the court.

During the interim, a set of ground rules, which are now in place, were drafted by legislators and then polished by the Supreme Court.

"I don't think passage of the amendment will have a dramatic effect on the way things are operating now," Anderson said. But it will give the Legislature a bigger voice in the way judges are disciplined, which is in line with many other states, he said.

The Supreme Court will still draft and approve the code of conduct judges must obey. And it will handle appeals from judges who are dissatisfied with any punishment imposed by the discipline commission.

Opponents of the change say the constitutional amendment will not give the discipline commission greater independence. It's merely switching the power over the commission from the Supreme Court to the Legislature. And there's a question whether the measure violates the constitutional separation-of- powers doctrine.

Those arguing against the amendment say the commission isn't controlled by the Supreme Court. They note the commission can be chaired only by a non-lawyer and that three of the seven members are laymen. Two are judges and two are lawyers.