A pay-to-play judicial system?

By Jon Ralston (contact)

Sunday, Oct. 19, 2008 | 2 a.m.

When Laura Fitzsimmons saw fellow attorney Kris Pickering jogging in her gated community some years ago, she acted swiftly. Fitzsimmons told the security guard Pickering was not a resident and should not be allowed in again. Pickering soon was running elsewhere.

That story, shared by someone with inside knowledge of the relationship, indicates the depth of the enmity between the two ultrasuccessful attorneys now enmeshed in a sensational story illuminating fault lines in the state’s legal community and harking back to a devastating 2006 Los Angeles Times indictment of legalized incest masquerading as justice in Nevada.

The allegation, broken by my KLAS colleague George Knapp last week, is that political consultant Gary Gray told Supreme Court contender Pickering that she could receive up to $200,000 in campaign contributions if she agreed to sign a document not to sit on longtime enemy Fitzsimmons’ cases if she became a justice. Pickering called the FBI, which then taped a subsequent conversation between Gray and Pickering. No charges have been filed.

But even if no crime has been committed — and lawyers disagree on whether one was — the notion that such a conversation took place will confirm the worst cynicism about how campaigns and the judiciary work in our little backwater in the desert. That L.A. Times series, headlined “A stacked judicial deck,” detailed how judges apparently were influenced by friendships and contributions — it was a manifesto for an appointive judicial selection process.

And now the Pickering-Gray-Fitzsimmons story has reinforced that perception while resurrecting painful memories of a 15-year-old incendiary struggle over a Washoe County judge named Jerry Whitehead and whether he should have been disciplined by the high court — a case that split the Supremes and caused permanent fissures in the bar. Fitzsimmons, who represented Whitehead, and Pickering were on opposite sides of that dramatic battle (Whitehead eventually stepped down) and the antipathy has existed ever since.

They are two sides of the same coin. Fitzsimmons, a Democrat, has made a fortune suing companies and governments; Pickering, a Republican, became rich by defending wealthy people and businesses.

On its face, the allegation seems both plausible and impossible.

It has happened before — Fitzsimmons had induced Justice Bob Rose, who was on the anti-Whitehead faction on the high court, to sign a promise-to-recuse letter. So isn’t it possible she sought the same document from Pickering?

Fitzsimmons has been one of the most active contributors to judicial races for much of this decade. Indeed, that $200,000 figure is about how much she and her husband, various corporate entities she controls and her friends bundled to Nancy Saitta, whom Fitzsimmons and others coaxed into a successful race against Justice Nancy Becker, who was seen as unfriendly.

Fitzsimmons and Gray are on friendly terms. So maybe at some gathering at Fitzsimmons’ house, she talked about how it was in her interest to make peace with Pickering — but as with Rose, she decided not to just accept a verbal agreement and wanted it in writing. So, perhaps, Gray took the proposal to Pickering and reminded her of what Fitzsimmons did with Saitta.

It’s the money part of this story that requires a suspension of disbelief. “Laura wouldn’t give 10 cents to Kris Pickering,” said one insider. That is, she despises Pickering enough to get her banned from the neighborhood, so she would never consider giving her money, no matter what Pickering agreed to.

For his part, Gray would have to be arrogantly reckless to tie the olive branch to campaign money. “In the most general sense, as a political consultant, I’m always bringing political information to my candidates and saying, ‘Here’s the situation, here’s the effect’ and I did in this case,” Gray told my executive producer, Dana Gentry, implying that at least some of the story is true. Fitzsimmons isn’t commenting.

No matter what Gray said — and perhaps the feds eventually will leak (hint, hint) the audiotape, this looks horrific. I am sure lawyers and Boyd Law School professors are blanching at the implications.

Conspiracy theories and ugly tactics are de rigueur for October in even-numbered years. But what makes this different is the unmasking (again) of a system in which lawyers spend lots of money trying to get a favorable majority on the high court, where justices can help determine where millions of dollars in settlements will go or how much money deep pockets will save. (I am told all the current justices have denied signing any recusal letters or even being solicited to do so.)

So once again, people will see evidence of a pay-to-play judicial system given national attention two years ago. You can almost hear the L.A. Times reporters making their reservations to return to McCarran.