Judge appeals removal from custody case

Sandy Thompson

Monday, July 9, 2001 | 11:04 a.m.

Family Court Judge Robert Lueck is appealing a decision by the chief District Court judge to remove him from a controversial child-custody case.

In an appeal to the Nevada Supreme Court, Lueck contends that Chief Judge Mark Gibbons "acted in excess of his jurisdiction and/or without legal authority" in removing him as the judge in the Michael and Lina Elbrader case.

The Elbrader case recently gained media attention because of Lina's contention that Lueck took away primary custody of her twin 6-year-old sons because of her excessive church attendance. Lueck awarded Michael Elbrader primary custody, despite previous sexual misconduct charges.

Gibbons pulled Lueck off the case after Lina Elbrader's attorney, Bruce Shapiro, alleged Lueck had "ex-parte communications" with a psychologist in the case. Shapiro also said the judge should have recused himself because Shapiro represented Lueck's ex-wife in their divorce.

In his appeal, Lueck said he did not engage in ex-parte communications and that Shapiro entered the case late in the proceedings for the sole purpose of getting Lueck off the case. That amounts to "judge shopping," Lueck contends.

An associate of Shapiro had represented Lina Elbrader for part of the case, but Shapiro said he became involved after Lueck "did something improper."

A judge "is not obligated to recuse from a case in midstream merely because an attorney on (his) conflicts list elects to appear in the case," Lueck said in the court papers.

Lueck also contends that Shapiro and Lina Elbrader went to the media with false and negative publicity aimed at getting him removed from the case. Lueck said a Las Vegas Review-Journal story on May 28 falsely accused him of committing violations of the canons of judicial conduct.

Court sources say that because judges are precluded from publicly commenting on a case, Lueck has no other recourse to defend himself against accusations of improper judicial conduct and bias.

He believes it's even more critical to fight the decision, the sources say, since former Family Court Judge Fran Fine, whom Lueck defeated in the 1998 election, had been removed from office because of allegations of ex-parte communication.

Shapiro said he had not yet received a copy of Lueck's appeal. "It (the appeal) would be an unusual step," he said today.

Lueck was randomly assigned the Elbrader case in October 2000. The biggest issue was the custody of the two boys. Initially, temporary physical custody was awarded to the father. Because of allegations of misconduct raised by both parents, Lueck ordered an evaluation by a psychologist, Dr. Elizabeth Ritchett.

In December 2000 the court became aware that Michael Elbrader had been arrested and prosecuted in Colorado on sex-related charges several years ago. Primary custody was then awarded to Lina; Michael had no visitation rights.

In March Ritchitt submitted her report, which was not flattering to either parent. According to court papers, Michael had been acquitted of the Colorado charges. Although the report referred to other questionable behavior, Michael was not considered a danger to his children.

The report noted Lina's excessive church involvement and the failure to properly and regularly get the children to school on time. It's estimated that the twins, who were in kindergarten, missed 20 days of school and were in danger of not being promoted to first grade.

Because of his concern about their education, Lueck gave primary custody back to Michael Elbrader.

Lueck's ruling included Ritchitt's evaluation, which was quoted in the newspaper article. Concerned that a confidential report was leaked to the media, Ritchitt wrote Lueck to tell him that she had been asked about it. Lueck replied, in writing, that he had attached the report to his decision "so that there was substantiation for this difficult decision."

That constituted ex-parte communication, according to Shapiro.

After the negative publicity and concern about sensitive family matters being publicly discussed, Lueck ordered a gag order in the case.

Shapiro filed allegations of misconduct against Lueck with Gibbons, asking him to assign the Elbrader case to another judge. Although he did not rule that Lueck acted improperly, Gibbons took the judge off the case "to avoid any potential appearance of impropriety."

In his Supreme Court appeal, Lueck said the attorney, not the judge, should be taken off the case.