Judges disagree on use of temps

Kim Smith

Monday, July 31, 2000 | 11:22 a.m.

Seven months after one Clark County district judge upheld the constitutionality of temporary judges, another one has ruled against their use, placing Justice Court officials in a quandary.

For years, Municipal Court judges and justices of the peace have used pro-tem (temporary) judges to fill in whenever they were on vacation, sick, attending seminars or otherwise taking time off.

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.

District Attorney Stewart Bell said the problem is that there is a conflict between the way state law reads and Nevada Supreme Court rules in terms of who can sit as a judge pro-tem.

Last week, Chief District Judge Lee 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.

Gates was asked to render his ruling by defense attorney Thomas Pitaro, who had wanted evidence seized as a result of a search warrant issued by a pro-tem thrown out of court.

Gates agreed with Pitaro about the pro-tem issue, but allowed the evidence to be admitted, saying the officers had no way of knowing the powers of the judge might come in to question and therefore they acted in good faith.

The Gates' ruling creates a dilemma for some judges because it appears to counter a similar case that was presented to District Judge Kathy Hardcastle in January. She found no problems with the pro-tem system.

North Las Vegas Township Justice of the Peace Stephen Dahl said he isn't going to change the way he does business because of the Gates' ruling, at least for now.

"I'm going to keep using them. Judge 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."

Because he is the only justice of the peace in North Las Vegas, Dahl said that without pro-tems he would be on the bench five days a week, 52 weeks a year.

Las Vegas Township Justice of the Peace Jennifer Togliatti, however, said she and her fellow judges are going to follow Gates' ruling, at least for a few days.

Togliatti said she and the other judges plan to meet with staff attorneys over the next few days to study both Hardcastle and Gates' rulings, the attorney general's ruling of 1995 and any other pertinent information.

The judges will then decide whose ruling to follow, Togliatti said. In the meantime, she and the other judges will be covering for each other, which will create some delays.

"If there are 125 cases in each courtroom, that means a judge will have to handle 250 cases a day," Togliatti said. "But since there are seven of us, if one is out, we can cover easily."

Dahl doesn't have that same luxury and so she can understand his stance, Togliatti said.

Las Vegas Justice Court Administrator Steve Morris said pro-tems save taxpayers tens of thousands of dollars a year.

While the Las Vegas township could have 11 justices of the peace, the seven the township have now have been able to handle the caseload with the occasional help of pro-tems, Morris said.

If the county wanted to, it could appoint other justices of the peace at an annual salary of $99,000 each, Dahl said. Judges pro-tem cost the county about $30,000 a year.

Morris said pro-tems make $21.63 an hour, half what justices of the peace earn.

Bell said the judges have several options. They could decide only to use those judges who fall under the Supreme Courts' rules; they could decide to appoint additional justices of the peace or they could decide to get the matter clarified by the Nevada Supreme Court and continue to use pro-tems.

"All of our justices of the peace want to do the right thing, and they don't want to see litigation being impeded by irregularities and technicalities," Bell said. "I'm guessing the judges will handle highly sensitive matters themselves."