A. Commission Established
Established by the Nevada Constitution, Article 6, Section 21. Provides the process commonly used to investigate and discipline all levels of the judiciary in Nevada, for violations of the Revised Nevada Code of Judicial Conduct. Article 7 of the Constitution still provides for impeachment by the legislature. NRS 1.425-1.4695 supplements the constitutional provisions. Commission Procedural Rules supplement the constitutional and statutory provisions. ALL AFOREMENTIONED DOCUMENTS ARE POSTED ON THE COMMISSION WEBSITE. The Commission also decides whether a judge is incapacitated.
B. Membership
- Three lay members are appointed by the Governor. No more than two can be of the same political party and they must reside in different counties. Alternates are appointed pursuant to the inherent power of the appointing authority pursuant to Nevada Supreme Court case law. The Chair and Vice-Chair are selected from the three primary appointees by vote of the entire Commission.
- Two district judge members are appointed by the Nevada Supreme Court. District judge alternates are appointed to serve in case of disqualification and limited jurisdiction judges are appointed as alternates to serve during public proceedings against judges from that level of the judiciary, pursuant to statutory mandate. No judge may sit in a case involving a judge from his or her court.
- Two lawyer members are appointed by the State Bar of Nevada. Standing alterrnates are appointed to serve in case of disqualification.
C. Process
Complaints are filed with the Clerk of the Commission. The Executive Director can file complaints as well. The Executive Director reviews all complaints and the Commission meets quarterly (approximately) to decide whether to investigate the complaints, or any portion of a particular complaint ("limited investigation"). The Commission directs the Executive Director to perform an investigation. The Executive Director contracts with a private investigative agency (Spencer Investigations, LLC) to perform investigative functions. The Commission decides whether to dismiss or to go forward with either private or public proceedings, based on reports generated during the investigation.
If a public proceeding is contemplated, the Commission first must decide "if there is a reasonable probability the evidence available for introduction at a formal hearing could clearly and convincingly establish grounds for disciplinary action against the justice or judge named in the complaint." If a public proceeding ensues, the Executive Director contracts with private counsel to serve as "Special Counsel" (also referred to as "Special Prosecutor"). The Special Counsel independently reviews the evidence and files a Statement of Formal Charges. The judge, with or without counsel, files an answer and a public hearing, similar to a trial, ensues. The burden of proof is on the Special Counsel to show by clear and convincing evidence that a violation of the Code of Judicial Conduct occurred.
Other possible dispositions include summary dismissal without investigation, dismissal after full or limited investigation, and/or issuance of letter of caution (characterized as a "non-disciplinary event").
D. Possible Sanctions
The main function of the Commission is to protect the public, not to discipline judges. Nevertheless, the range of punishments include, but are not limited to: permanent removal from office, bar to holding judicial office (used for judges who have left the bench before a case against them is adjudicated), suspension with/without pay, completion of a probationary period pursuant to conditions deemed appropriate by the Commission, pursuit of a remedial course of action, fines, additional education and training at the judge’s expense, public censure, public or private reprimand, requirement to undergo monitoring by the Commission and mentoring by an appropriate individual. Judges can be required to issue public and private apologies to effected individuals. Judges can be required to undergo physical and/or psychiatric evaluation and testing.
E. Appellate review
Only a judge, not a complainant, can appeal from the Commission’s decision. Appeal is taken directly to the Nevada Supreme Court ("NSC"). The NSC defers to the Commission’s findings of fact and it determines if the record supports the findings. The NSC conducts a de novo review of legal issues, including appropriateness of the punishment. The NSC can lessen the punishment or increase it. The court has adopted the "objective reasonable person standard" to evaluate whether conduct violates the Code of Judicial Conduct. The Commission applies the same standard.