Saturday, June 17, 2006 | 7:41 a.m.
Imagine a series of car wrecks involving the same drivers again and again, but police refuse to investigate whether the drivers are at fault. Instead, police call for better roads.
Now imagine a state - let's say Nevada - where judges take campaign money from lawyers with cases pending before them and routinely fail to disclose conflicts of interest, but the state's legal community refuses to question the judges. Instead, authorities call for a different system of selecting judges.
That's the strange response in Las Vegas to a lengthy series in the Los Angeles Times last week detailing questionable conduct by a Las Vegas federal judge and a number of Nevada judges over the past two decades.
The three-part series, the result of several years of work by two reporters, highlighted nine Las Vegas judges, many of whom routinely accepted campaign donations from attorneys with cases pending before them and rarely disclosed their conflicts of interest.
Despite what some legal ethics scholars describe as blatant conflicts of interest and misconduct warranting the judges' removal, much of Nevada's legal community responded to the stories this week with nonchalance.
District Attorney David Roger said he could not comment because he only skimmed the series and had not fully read it. "I'm kind of busy these days," he said.
Nevada's top lawyer, Attorney General George Chanos, said his office does not plan to investigate the allegations. Instead, Chanos defended the judges and raised questions about the attorneys who complained that their clients did not get a fair shake.
"I don't believe that justice in Las Vegas is any more impaired than justice in Los Angeles," he said.
Metro Police Deputy Chief Mike McClary, who led the investigation of Clark County Recorder Fran Deane, said that he was "appalled" by the Times series. When a reporter took him seriously, he said, "I'm being facetious. I'm sorry, I shouldn't joke like that."
He went on: "Separating actual misconduct from accusations of misconduct is sometimes challenging. Mere appearance doesn't constitute a violation of the law. Ultimately it will be the sheriff who decides if there's anything there."
Sheriff Bill Young was out of town and did not return phone calls from the Sun.
The body charged with investigating judicial misconduct in Nevada would not say whether it will look into any of the judges named in the series. In fact, even if it did discipline one of them, the Nevada Commission on Judicial Discipline would not have to disclose its actions, said David F. Sarnowski, the commission's general counsel and executive director.
"It would be inappropriate to say whether we were doing something," Sarnowski said.
Outside the state, the findings of the Times report and this week's responses from Nevada officials drew strong criticism.
"The conflicts in many of the cases were blatant," said Michael I. Krauss, a law professor with an expertise in legal ethics at George Mason Law School in Virginia. "If the L.A. Times articles are accurate, these individual judges should be disciplined. In most states, the discipline would be removal from office."
But Nevada isn't most states.
Sharon Dolovich, a UCLA law and legal ethics professor, said: "People in Nevada need to be troubled by when their district attorney and attorney general's offices aren't willing to investigate when one of the most respected papers in the country raises serious suspicions about corruption in their judicial system."
The Times series revealed in detail the myriad conflicts of interest that many judges routinely fail to disclose.
The newspaper reported that when former District Judge Gene Porter last ran for re-election, Las Vegas lawyers sponsored a fundraiser in Big Bear, Calif., where they passed around a crystal punch bowl and collected $30,000.
Four days later, Porter ruled on a case involving one of the sponsors of the fundraiser, whose firm and its consultants contributed $13,500. Porter refused to withdraw or delay the case, the Times said.
The Times also reported that in 1990, Porter borrowed $15,000 from an attorney and ruled in at least six cases involving the attorney's law firm, never revealing that he owed the attorney money.
In 2002 District Judge Nancy Saitta received $500 or more from 55 lawyers from law firms with cases pending before her, the paper said.
District Judge Nancy Loehrer, the Times reported, donated $3,300 of her campaign contributions to other candidates, including those running for attorney general and district attorney, although judges are prohibited from publicly endorsing another candidate.
District Judge Donald Mosley gave $10,000 in unspent campaign funds to his girlfriend - he said it was a loan; she said it was a gift - so she could buy her parents Christmas gifts and show them a good time, the series said.
Other state judges scrutinized in the story include former District Judge Jeffrey Sobel and senior Judges Joseph Pavlikowski, James Brennan and Stephen Huffaker.
The Times dedicated an entire story in the series to James Mahan, a Las Vegas-based U.S. District Court judge and former state District Court judge.
Mahan installed his two-time campaign treasurer George Swarts or Swarts' son at up to $250 an hour to be a special master or receiver in 13 cases before him as a state and federal judge, never disclosing the relationship in court records, the Times reported.
Mahan also approved an attorney for Swarts in many of those cases - Frank Ellis, Mahan's former law partner with whom the judge still owned property and still had a profit-sharing agreement. Overall, Mahan ordered plaintiffs and defendants to pay his two friends more than $700,000, the Times reported.
Asked this week about possible action against Mahan, federal court officials said any complaints against U.S. District Court judges are confidential, unless the 9th U.S. Circuit Court of Appeals Judicial Council formally disciplines a judge.
U.S. and Nevada judicial canons state that judges should withdraw from cases in which their impartiality might reasonably be questioned.
Nevada canons say: "A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification."
Despite the sharply critical series, most Nevada officials are approaching the topic like hikers in an avalanche zone.
"I don't know the specifics or details," said Senate Majority Leader Bill Raggio, R-Reno, reciting the common response of Nevada officials when asked about the specific allegations in the Times series.
Officials and attorneys, however, are more willing than ever to call for broad changes to the system - a way to acknowledge the problem without having to name names in a cozy legal community.
"I think that there is a growing concern on the part of the public with regard to money and politics in general, on the national level and the local level," Chanos said. "From the Abramoff scandal and Tom DeLay to former Clark County Commissioners Dario Herrera and Mary Kincaid-Chauncey, you've got a multitude of scandals that all involve money and politics. I think anything we can do to limit the influence of money and politics is a good thing."
Raggio said he plans to introduce an overhaul of the way judges are selected in Nevada during the next legislative session.
Those who expressed support this week for such an initiative included Chanos; Gov. Kenny Guinn; Assembly Majority Leader Barbara Buckley, D-Las Vegas; and Vince Consul, president of the Nevada Bar Association.
"It is ridiculous for a judge to have to go around with hat in hand," Raggio said of the current system in which state judges run in a nonpartisan election every six years. "They can only go as a practical matter to attorneys and potential litigants."
He plans to propose a reform similar to the Missouri Plan, under which judges would be appointed by a committee and then run unopposed in a retention election in following years.
"It's not the perfect system," Raggio conceded. But it would, he added, reduce the reliance of judges on campaign money.
Despite the broad support for such an initiative, debate on particulars is likely to be less cohesive.
Chanos, for example, supports moving toward an appointed system, but has concerns about who would be appointed to any commission that would select judges. The commission, he said, should be broad-based with multiple representatives from the Nevada Supreme Court, the State Bar and the public.
Consul is pushing the "Nevada Plan," under which appointed judges, after serving two years, would have to win one nonpartisan election for a six-year term. After that, judges would run uncontested in a retention election every six years.
Raggio said that proposal is more watered down than the Missouri Plan and might not do enough to remove the link between judges and campaign money. But such a compromise might be necessary because voters and legislators have rejected moves toward appointment in the past.
Attempts to change the way Nevada picks its judges - from elective to purely appointive - failed in 1972 and 1988. Other proposals never made it out of the Legislature.
A new system would require a change in the Nevada Constitution. If a proposal made it through the Legislature, voters would have to approve it in two successive elections to make it law.
"If that is the only choice, I would support it," Raggio said of Consul's plan.
The state's Commission on Judicial Discipline - the body charged with investigating judicial misconduct - is also facing scrutiny.
Roger and Chanos said the commission would be the appropriate body to investigate any of the accusations leveled in the Times series.
"These allegations, if true, should have been submitted by the aggrieved parties to the Commission on Judicial Discipline and State Bar of Nevada," Chanos said. "If those entities receive and adjudicate those claims and determine wrongdoing has in fact occurred, then it may be appropriate at that time for our office to further consider the matter."
But the commission's secretive nature makes it nearly impossible to know what - if anything - it might be investigating.
When Nevada residents are charged with a crime or have lawsuits filed against them, the records are made public with few exceptions, even if the case is eventually dismissed.
But for judges suspected of misconduct in Nevada, a different standard is applied. In those cases, publicity is the rare exception rather than the norm.
According to Sarnowski, even if commissioners find wrongdoing, they do not have to disclose their findings or sanctions against judges. Only when misconduct rises to a "serious" level are the proceedings made public, he said. The definition of "serious" is left to the commission's discretion.
The commission has not responded to a request the Sun made this week to provide information about the number of complaints the panel receives each year and the number resulting in discipline.
The secrecy of Nevada's judicial oversight system does nothing to dismiss charges that misconduct allegations are routinely overlooked.
"The fact that (allegations in the Times series) didn't come to light for so long reveals that we have a real lack of accountability and transparency," UCLA's Dolovich said.
Still, Roger insists it is the commission's job to look into the allegations detailed in the Times.
"We don't have the resources to conduct massive investigations," Roger said. "I'm going to leave that to the judicial ethics commission to answer."
The commission has far fewer resources - only two staff members. It is charged with investigating judicial misconduct in a state court system comprising 21 state judges, 17 senior judges and a multitude of municipal judges, justices of the peace, hearing masters and magistrates who hear thousands of cases a year.
"Maybe the staffing composition should be examined," Buckley said. "Maybe they don't have enough staff. Complaints seem to languish. Maybe they don't have enough tools."
The commission's composition is another issue. It consists of two judges and two attorneys, a potential problem amid allegations that judges and attorneys are too cozy. The other three commissioners are laypeople appointed by the governor.
The commission is not motivated to go after politically powerful judges, according to Robert Langford, a Las Vegas lawyer for 16 years who currently is representing former Henderson Pro Tempore Judge Peter LaPorta before the commission on charges that he improperly took money from a client and failed to pay more than $8,000 in parking tickets.
"That is one of my complaints about the commission," Langford said. "They go after politically weak judges. When there are bigoted and corrupt judges, they don't go after them because they are politically strong."
Also, lawyers are reluctant to bring complaints against judges they inevitably will face again. Even if a complaint is not made public, judges always are informed of who filed it.
"There is really no incentive for a lawyer to bring sanctions against a judge," Dolovich said. "That's not going to help a lawyer with his client. There is no incentive on the part of anybody to bring this information to light."
Confidentiality is an important element of the complaint procedure against federal judges. Complaints in Nevada are reviewed by 9th Circuit Chief Judge Mary Schroeder and ultimately decided by a judicial council composed of five Circuit Court and five District Court judges. Complaints are not made public unless discipline is ordered.
Of the attorneys in the Times series who were on the losing side of cases in which a potential conflict of interest existed, none of those reached by the Sun said he planned to file a complaint, although not all of them ruled it out. Some also said they felt Mahan was fair.
Those who can file a complaint in federal or state court are not limited to parties involved in the case. Anyone can file.
As those inside and outside Nevada's legal system come to terms with the issues raised in the series, more is at stake than the future of a few judges, said law professor Krauss.
"What this is going to do is add a very firm factual basis to the belief that already exists that the rule of law is not protected in Nevada," he said. "If heads roll, then this will be a way to begin a new page in Nevada history."
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