ACLU sues over gag rules governing judge complaints

Jace Radke

Friday, Nov. 22, 2002 | 9:35 a.m.

The American Civil Liberties Union of Nevada has filed a federal lawsuit against the Nevada Commission on Judicial Discipline alleging that state laws used by the commission to keep complaints against judges secret trample First Amendment rights.

The suit argues that state laws that require complaints against judges be kept confidential should be invalidated. According to the laws, if someone filing a complaint commented on it or even acknowledged that the complaint had been filed they could face a contempt charge, ACLU attorney Allen Lichtenstein said.

"Complaints about government officials, especially elected government officials, are at the core of our First Amendment values," Lichtenstein said after filing the complaint in U.S. District Court Thursday. "This is a direct censorship of the public's right to complain and hear the complaints of others."

David Sarnowski, general counsel for the commission, said that keeping the complaints confidential protects judges from unfounded, scandalous allegations.

"The statutes say that you can talk about the underlying facts of a complaint," Sarnowski said. "You can say that a judge had a gross conflict of interest and should be taken off a case. You just can't say that you filed a complaint and therefore the judge should be taken off the case."

Also named as plaintiffs in the suit are Gary Peck, executive director of the ACLU of Nevada, and Terry Mosley, who earlier this year filed a complaint with the commission against her former boyfriend, District Judge Donald Mosley.

Peck's issue stems from allegations made by Moapa Valley Justice of the Peace Lanny Waite criticizing the ACLU's actions and motives concerning a February 2001 coroner's inquest into the death of French national Philipe Le Menn in the Clark County Detention Center. The ACLU said Waite's comments gave a perception of unfairness, but the ACLU didn't file a complaint against Waite because it would have meant its officials couldn't comment on the incident, Peck said.

Terry Mosley, who was Terry Figliuzzi until 1995 when she changed her name to Mosley, received a letter from the commission on March 12, after filing a complaint against Mosley, who had recently won a prolonged custody battle over the former couple's child.

The letter stated that Terry Mosley must keep the complaint confidential, even though it also states that the commission would not pursue her claim.

In March the commission, which has the power to remove judges from the bench, did fine Mosley $5,000 and gave him an official censure over ethical violations in part arising from the custody dispute.

"The act of filing this lawsuit could be considered against the law, because by doing so she (Terry Mosley) is admitting to having filed a complaint," Lichtenstein said. "The gag order runs in perpetuity, unless the commission sends it on to a district attorney and the district attorney files charges."

Sarnowski argues that the complaints are kept confidential because of the possibility that litigants unhappy with a judge's decision may be able to use the fact that complaints have been filed as leverage to challenge judges.

Peck, however, said that his example with Waite, shows that the laws extend past litigants.

"We were simply witnesses to Judge Waite's behavior, which brought into question his ability to be impartial," Peck said.

The commission hears complaints and deliberates in closed sessions, and is not subject to the Nevada open meeting law, Sarnowski said.