Judicial immunity appeal to be heard

Thursday, Nov. 17, 2005 | 6:51 a.m.

Should District Judge Donald Mosley be held liable for sentencing a woman twice for the same crime, or was he acting within his powers at the time and immune to such action?

The 9th U.S. Circuit Court of Appeals will hear arguments Friday in hopes of answering these questions in the case of Jeanette Faye Sadoski.

Sadoski says Mosley violated her civil rights by toughening her sentence and exposing her to double jeopardy.

The suit calls for Mosley, who has served on the bench for more than 23 years, to review all of his criminal cases to determine whether he illegally resentenced any defendants. It also asks that he be prohibited from resentencing defendants without an order from a federal judge.

Sadoski's attorney, Clark Garen, said Mosley illegally changed Sadoski's sentence for theft from a misdemeanor to a felony after another charge came to light and that the judge should be held civilly accountable.

Senior Deputy Attorney General Thom Gover, however, contends Mosley was simply exercising his judicial discretion at a time when no laws or guidance from the Nevada Supreme Court prevented him from doing so.

Nevada law specifically allows a judge to reduce sentences but does not address lengthening them.

Gover, who is representing Mosley in the case, said the key question for the 9th Circuit is whether Mosley acted "outside his jurisdictional ballpark."

In 2000 Sadoski entered a guilty plea to a $6,000 theft from a Las Vegas store where she worked, Garen said. Sadoski, however, failed to appear for her sentencing date and a bench warrant was issued for her arrest. During that time, she was arrested on a drug trafficking charge.

Mosley gave Sadoski a suspended sentence of one year and placed her on probation for the gross misdemeanor theft charge. At the time, he was not aware of Sadoski's new drug charges.

When Mosley found out about the drug charge, he resentenced her to 32 months in prison, with parole possible after 12 months. In July 2002, Sadoski was paroled on the drug charge but remained under house arrest on the theft charge.

The Nevada Supreme Court reversed the resentencing in June 2004, and in July Mosley reinstated the original sentence, allowing Sadoski to be released from house arrest.

Sadoski later filed a federal lawsuit against Mosley, which U.S. District Judge Robert Jones dismissed, setting up the appeal before the 9th U.S. Circuit Court of Appeals.

The motions to dismiss successfully argued that Mosley is entitled to judicial immunity from the suit, and that anyone following his orders also has immunity.

Other defendants in the suit, which was filed in October, include former District Attorney Stewart Bell, District Attorney David Roger and state Corrections Department Director Jackie Crawford.

Garen says the case is a "classic example of old school double jeopardy except for the fact that someone wasn't tried again, but sentenced again.

"There is no one that has come into court defending what Mosley did, but only that he shouldn't be held personally liable," Garen said.

Gover defended Mosley's actions, saying it was not until 10 months after Mosley resentenced Sadoski that the Nevada Supreme Court ruled such resentencings were illegal.

"This case isn't about whether or not Judge Mosley was right as the law stands today, but about whether he was acting within his judicial jurisdiction at the time of the decision," Gover said.

The senior deputy attorney general said Jones, in dismissing the case, already determined that "assuming everything in Clark Garen's 206-page claim is true, there is still no way Sadoski is entitled to any relief."

Without the "absolute immunity" judges are granted under federal law, "the criminal justice system would crumble and we would be left with judges afraid to interpret the law and issue rulings," Gover said.

Garen, however, believes Mosley's actions were not only illegal in regard to Sadoski, but that the judge could have illegally sentenced as many as 200 others during his tenure on the bench.

"If the three-judge panel is reactive to my argument, this case could potentially bankrupt the state of Nevada because it could affect those other cases," he said.

The 9th Circuit judges scheduled to hear 20 minutes of argument and rule on the case are Pamela Ann Rymer, Ronald M. Gould and John T. Noonan Jr.

Matt Pordum can be reached at 474-7406 or at pordum@lasvegassun.com.