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Sunday, December 12, 1999
Copyright © Las Vegas Review-Journal
Trends evident in removal of judges
Litigants are more likely to use peremptory challenges against a handful of jurists who rated poorly in a survey.
By Peter O'Connell
Review-Journal
Statistics that District Court judges have sought to keep secret reveal at least three trends in the use of peremptory challenges:
First, some judges are far more likely than their colleagues to be the target of such a challenge, which permits litigants to pay $200 to disqualify a judge at the start of a civil or Family Court case without providing a reason.
Second, a majority of the judges with a high number of peremptory challenges received low marks in the most recent comprehensive survey of local attorneys.
Third, peremptory challenges are rare. They were employed in just about 2 percent of the local civil filings this year.
Because a case is randomly reassigned to another judge once a challenge is filed, attorneys have an incentive not to use this tool frivolously.
"You might get a judge you don't like any more, or even less than the first one," Nevada Supreme Court Chief Justice Bob Rose said.
Local judges gave the issue new prominence at an October meeting in which they voted overwhelmingly to instruct Clark County Clerk Shirley Parraguirre not to keep the statistics.
At the time, judges said only mischief could come from judges knowing the particulars of peremptory challenges filed against them. Observers noted the statistics also can prove troublesome for an elected judiciary.
The Review-Journal used documents on file with the Nevada Supreme Court in Carson City to tally the number of challenges issued against each judge between Jan. 1 and Nov. 19.
Among the findings:
¥ District Judges Gerald Hardcastle and Stephen Huffaker account for 42 percent of all challenges filed in Clark County.
¥ Five judges -- Hardcastle, Huffaker, Gary Redmon, Dianne Steel and Lee Gates -- account for 65 percent of the local challenges.
Hardcastle, who serves in the Family Court division and was first elected in 1992, led the way with 164 challenges.
An untold number of these can be attributed to Equal Rights for Fathers, an advocacy group that assists men involved in family cases.
Executive Director Ernest del Casal said the organization challenges Hardcastle every time one of its cases is assigned to his courtroom. Del Casal estimated this occurs at least once a week.
Del Casal said the group disqualifies Hardcastle for two reasons: One, he is impatient and even rude with litigants who can't afford an attorney. Two, the judge generally opposes joint custody, which Equal Rights for Fathers supports.
Few would disagree Hardcastle is a no-nonsense judge. When a couple recently proved unable to divide their Beanie Baby collection, the judge placed the dolls on the courtroom floor and had the couple alternate picking their favorites until the job was done.
"A lot of attorneys and litigants are afraid of him," said attorney Bruce Shapiro, who has worked exclusively in family law for 10 years.
But the traits that inspire this fear are the same ones that make Hardcastle a quality judge, Shapiro said. He said Hardcastle requires litigants to seek solutions and does not tolerate the gamesmanship so common in the emotionally charged world of family law.
"He tells it like it is, and a lot of people don't like that," Shapiro said. "He is probably the most effective judge down there because of that."
Hardcastle registered some low marks in the 1998 Judicial Performance Evaluation, which surveyed 436 local attorneys in a joint effort between the Clark County Bar Association and the Review-Journal.
Among those who practice before him, 40 percent said his courtesy was less than adequate.
Also, 25 percent rated him less than adequate in fairly weighing all evidence and arguments before making a decision.
But asked whether the judge should be retained on the bench, 77 percent of the attorneys said "yes." That was the third-highest score among the eight district judges assigned to Family Court.
Hardcastle said the peremptory challenge statistics are impossible to interpret because people are not required to give a reason when they bump a judge from their cases.
"There are thousands of reasons why people file these things," he said.
Hardcastle said he makes no apologies for his courtroom demeanor.
"I don't feel that I'm rude. It is a matter of not tolerating nonsense, and I'm known for that," he said. "I tend to think what we do here is pretty important. Things ought to get done. Problems ought to get solved."
Huffaker, who hears civil cases and has been a district judge since 1980, ranked second in peremptory challenges with 111.
During the 1998 judicial performance survey, 51 percent of the attorneys said "no" when asked if Huffaker should be retained on the bench. No other judge in the civil or criminal divisions failed to muster a majority in favor of retention.
One local legal veteran characterized Huffaker's courtroom demeanor as a vestige of a bygone era in which district judges thought being gruff was the way to gain respect.
"He's a very bright guy, but he is very difficult for a lot of people to get along with," the attorney said.
Another attorney said Huffaker, who declined an interview request, may be resented for demanding that lawyers meet certain minimum standards of professionalism.
"I've heard him excoriate attorneys, rightfully, for bending the rules," said this attorney, whose view of Huffaker has improved with time.
But this respect would not keep the attorney from filing a peremptory challenge against Huffaker, who is a member of the Church of Jesus Christ of Latter-day Saints, in an important case in which he was opposed by a Mormon attorney or litigant.
"It is a common perception that if you have an LDS lawyer or party on the other side, you better be careful in that department," the lawyer said.
In the 1998 judicial performance survey, attorneys were asked if the conduct of each individual judge was free of bias on the basis of religion.
In Huffaker's case, 42 percent judged his performance in this area to be less than adequate. No other civil or criminal judge topped 12 percent.
Few of the attorneys who mentioned Huffaker's reputation for religious bias could provide concrete examples. But most said they would consider it a valid basis for a peremptory challenge.
Others said Huffaker's rulings make the $200 challenge fee a bargain.
In the judicial evaluation survey, 43 percent of the attorneys replied "less than adequate" when asked if Huffaker properly applies the law. Only Fran Fine, who later was removed from office, fared worse among the 24 district judges.
"(Huffaker) is a person who tends not to follow the law," one attorney said in a recent interview.
Compared with their opinions of Hardcastle and Huffaker, attorneys were far less consistent in their comments on Redmon, Steel and Gates.
Redmon, who was third with 55 peremptory challenges and who failed to return a phone message, drew criticism on a number of fronts. However, each attorney seemed to have a separate gripe about his performance as a judge.
Redmon, who now hears civil cases, served in Family Court at the time of the 1998 judicial evaluation survey. Just 63 percent of the attorneys recommended he be retained on the bench, the second-worst rating among the eight Family Court judges.
Most attorneys contacted for this article were at least mildly surprised Steel had so many challenges. Her total of 49 placed her fourth among local judges.
Several attorneys said the numbers could reflect a growing reputation for having a pro-male bias. Steel said she was not aware of the perception and found it without basis.
"When you come in my courtroom, I immediately look at both parties even, dead even," she said.
Steel said some attorneys may be misinterpreting her position on joint custody, in which a child alternates living with each parent.
Steel said joint custody is her preferred solution when she is faced with two quality parents eager to remain intimately involved in the raising of their child. Litigants who are aware of this philosophy may choose to pay the $200 and get another judge, she said.
Attorneys who responded to the judicial survey gave Steel high marks for courtesy and work ethic, and 75 percent of the lawyers recommended she be retained on the bench.
Her lowest marks were for properly applying the law, an area in which 24 percent of the attorneys found her less than adequate.
Gates, who received 45 peremptory challenges, is assigned a reduced caseload because of the administrative duties he performs as chief judge.
In the judicial survey, 57 percent of attorneys said he should be retained on the bench. Only Huffaker had a lower rating among civil and criminal judges.
Local judges cautioned against placing too much stock in peremptory challenge statistics. Even District Judge Robert Lueck, who used the statistics to good effect in his successful race against Fine, said they are "just part of the whole puzzle."
Rose, chief justice of the Nevada Supreme Court, echoed local judges, saying the statistics are inherently ambiguous because attorneys do not provide a reason for disqualifying a judge.
"The fact that someone has a lot of peremptories may be an indication that someone has a problem. But it may be a perceived problem rather than a real problem," Rose said.
Challenging the judges
The following District Court judges were the subject of the most peremptory challenges this year, through Nov. 19:
Gerald
Hardcastle
164
Stephen
Huffaker
111
Gary
Redmon
55
Dianne
Steel
49
Lee
Gates
45
Challenge system adopted in 1979
Review-Journal
Before 1979, litigants who wanted their cases reassigned were generally out of luck unless they could prove a clear conflict, such as a prior business relationship between the judge and the opposing party.
Despite this high hurdle, motions to disqualify judges became increasingly common. So the Nevada Supreme Court in 1979 adopted the peremptory challenge system.
This permits a party to disqualify a judge at the start of a civil or family case without providing a reason. The case then is randomly reassigned to another judge, and the other party can file a challenge and have the case randomly reassigned one last time.
Each peremptory challenge costs $200, with the money paying work-related travel and expenses of district judges and other members of the state judiciary.
In practice, challenges are rare. Clark County attorneys used this tool in about 2 percent of the civil cases in District Court filed this year.
Nevada Supreme Court Chief Justice Bob Rose said the system appears to be working as planned. "I don't think it is abused at all," Rose said.
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Printable version of this story
Gerald Hardcastle, 164 challenges
Stephen Huffaker, 111 challenges
Gary Redman, 55 challenges
Lee Gates, 45 challenges
Diane Steel, 49 challenges
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