Use of pro-tem judges resumes

Kim Smith

Wednesday, Aug. 2, 2000 | 10:14 a.m.

Las Vegas township justices of the peace have resumed using temporary judges after researching the practice.

Last week, Judge Jennifer Togliatti and her fellow justices of the peace placed a moratorium on the use of pro-tem judges when District Judge Lee Gates ruled that they were unconstitutional.

Defense attorney Thomas Pitaro had asked Gates to throw out evidence in one of his cases, arguing there is a conflict between state law and the Nevada Supreme Court as to who can sit in for justices of the peace when they are on vacation, ill or taking a day off.

The judge who signed the search warrant in the Pitaro case was a pro-tem.

The pro-tems, who are appointed by the courts, have the same authority as elected judges, but those who don't like the system complain that because they are not elected they cannot be held accountable by voters.

Justice courts handle traffic citations, misdemeanors, initial appearances, felony preliminary hearings and some civil matters. Municipal courts handle misdemeanors and traffic citations.

Gates ruled that under the Separation of Powers doctrine, the Supreme Court takes precedence and therefore, those who sit as pro-tems must be current or retired elected judges in good standing.

Togliatti and her fellow judges decided to stop using the fill-in judges last week until they researched the issue.

Togliatti said they discovered that the state law concerning pro-tems was passed in 1991 at the request of the Supreme Court. As a result, a pro-tem helped fill in for a vacationing judge Tuesday.

According to the legislative record, state senators initially expressed doubts about the bill because of the accountability issue, but passed it with the understanding that pro-tems would not sit on the bench for considerable lengths of time.

"We think the legislative history clarifies the issue," Togliatti said. "This was done with the authority of the Supreme Court and it exists at the behest of the Supreme Court."

Although many members of the Supreme Court are different now, Togliatti said "there is no reason to presume they would feel differently" than the former members.

Pitaro said he will continue to fight against the pro-tem system.

"The judges can do whatever they want to do, but they do it at their own peril," Pitaro said. "My motions are going to be filed again and again and again until the Supreme Court decides the issue."

There are plenty of people who are qualified to sit on the bench under the Supreme Court rules, Pitaro said. The justices of the peace just want to use the other people for expediency.

Pitaro said that it's expedient for police to shoot suspects instead of going to trial, too, but that doesn't make it right.

"If the judges don't want the Supreme Court rule followed then they can say that and they can ask the Supreme Court to change their rules," Pitaro said.

North Las Vegas Township Justice of the Peace Stephen Dahl said last week he wasn't going to change the way he does business.

"I'm going to keep using them. (District) Judge (Kathy) Hardcastle ruled a few months ago that they are fine and there's an attorney general's opinion that says that they're fine," Dahl said. "Judge Gates is a chief judge for administrative matters, not for legal matters, so his decision carries no more weight than Judge Hardcastle's."