Panel examines judicial conduct

Requiring judges to disqualify themselves from cases involving campaign contributors could foster the perception of an even-handed judiciary, a UNLV law professor said Friday.

Professor Jeff Stempel was part of a panel that discussed "Responses to Judicial Corruption: The Press, Prosecution, Professional Responsibility, Political Controls" during a luncheon hosted by the newly active Las Vegas Lawyers Chapter of The Federalist Society, a group of conservatives and libertarians.

Stempel, who teaches professional responsibility and other subjects at UNLV's Boyd Law School, said the "duty-to-sit doctrine" encourages Nevada judges to hear cases unless a compelling reason exists for disqualification.

"The duty to sit, in my view, is a dinosaur," the law professor said.

He said the doctrine is embodied in the Nevada Code of Judicial Conduct, the American Bar Association's Model Code of Judicial Conduct and case law.

According to Nevada's code, "A judge shall hear and decide matters assigned to the judge except those in which disqualification is required."

"Thus," the Nevada Supreme Court wrote in a recent opinion, "a judge has a general duty to sit, unless a judicial canon, statute, or rule requires the judge's disqualification."

According to the Nevada Code of Judicial Conduct, "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."

The Nevada Standing Committee on Judicial Ethics and Election Practices specifically stated in a 2002 opinion that "a judge is not necessarily required to recuse himself or herself from hearing matters involving an attorney who has supported the judge's election campaign."

Stempel, who favors a system of appointed judges, said judges should be required to recuse themselves from any case where a reasonable doubt exists about their impartiality, including cases in which a lawyer or party has contributed to the judge's campaign.

Friday's discussion was organized in response to a series of articles that appeared last year in the Los Angeles Times. The series, called "Juice vs. Justice," raised questions about the ethics of Las Vegas judges and has led to calls for change in Nevada's judicial system.

William Rempel, who co-wrote the series, sat on the panel with Stempel and University of San Diego law professor Saikrishna Prakash. Prakash co-wrote an article called "How to Remove a Federal Judge," which appeared last year in the Yale Law Journal.

Rempel said the idea for the Times' investigation came in 2001. He said he and colleague Michael Goodman spent a total of about two years in Las Vegas working on the project, which cost the newspaper around $250,000.

"The expense of doing this project would break most smaller papers," Rempel said.

The writer said he found that Las Vegas is more concerned about protecting the perception of fairness in the gaming world than protecting the perception of fairness in its judicial system.

Moderator Tuan Samahon, a law professor at UNLV, said the Times' series highlighted problems that arise in a system where judges are elected, but it also looked at the conduct of a federal judge who has a lifetime appointment, suggesting the problems could remain even if the state does away with its system of electing judges.

Senate Majority Leader Bill Raggio, R-Reno, has proposed a change to the Nevada Constitution that would end the state's system of competitive elections for district judges and Supreme Court justices. Instead, under Raggio's proposal, judges and justices would be appointed, and voters would decide whether they should be retained.

Senate Joint Resolution 2, which has passed the Senate, would have to be approved by the Legislature twice, this session and in 2009, before voters could weigh in on the issue in the 2010 general election.

"The community demands a responsible and fair judiciary, whether it's an elected one or an appointed one," Rempel said.

Prakash outlined three ways of dealing with federal judges who have engaged in misconduct: impeachment, prosecution and use of the so-called "good-behavior clause" of the U.S. Constitution. All of them pose difficulties, the law professor said.

According to the Constitution, federal judges "shall hold their offices during good behavior."

"Most people assume that the only way to remove a federal judge is via impeachment," Prakash said.

Although the Constitution allows the removal of judges who behave badly, he said, no federal statute has been enacted to establish a process for doing so.

In Nevada, the Legislature, the Judicial Discipline Commission and voters all have the power to remove the state's judges from office.