The Nevada Commission on Judicial Discipline is investigating whether state Supreme Court candidate Jerry Tao improperly used partisan language in a campaign flyer and on his campaign website.
Complaints to the commission are not disclosed publicly unless action is taken, but Tao said he received a call this summer from an investigator who asked about the campaign materials, which included terms such as “left” and “liberal.”
Tao, who faces District Judge Elissa Cadish in the Nov. 6 election, called the ethics complaint “abusive and a waste of the commission’s time.”
“I am not talking about the party registration of any particular person,” Tao said this week. “That is not what the flyer says. I am talking about a philosophy, what I see in the court system as a whole.”
Judicial races in Nevada are nonpartisan.
“While judges and candidates may properly respond to questions regarding their party affiliation, it is impermissible in campaign materials for them to align themselves with a political party or to affiliate themselves with a political party,” according to the Nevada Code of Judicial Conduct.
Tao said he was given little information about the investigation, but the commission’s investigator specifically asked about his website, which references school choice, and the campaign flyer.
“I stand by the flyer, because I signed off on it and put my name behind it,” Tao said.
The flyer is written in the form of a letter and begins by stating that the U.S. Chamber of Commerce has ranked the Nevada judiciary “as one of the most liberal, anti-business courts in the nation.”
Tao said the investigator specifically mentioned a section of the flyer that reads:
“Is the Court going to drift even further to the left or can we change its direction? Do we want a Court that gets even more liberal or can we make it one that follows the Constitution and believes in individual liberty?”
A campaign manager for Cadish, David Thomas, said neither he nor Cadish filed the complaint.
However, Thomas said, “I think it’s not an appropriate letter. Judges and justices are supposed to run with no political bias at all. That tends to indicate he’s going to have a bias.”
Tao dropped his Democratic registration and registered as a nonpartisan before filing for Seat C on the Supreme Court.
Tao, who was appointed in 2014 to the Nevada Court of Appeals by Gov. Brian Sandoval, sat on the Clark County District Court bench from 2011 until he was appointed to the higher court.
Cadish, a Democrat, has served as a Clark County district judge since 2007.
Both Cadish and Tao have ties to former Sen. Harry Reid, D-Nev. Tao once worked as Reid’s speechwriter. In 2012, Cadish was proposed by Reid for a federal judgeship but was blocked by Sen. Dean Heller, R-Nev.
Tao said that after he was contacted by the discipline commission’s investigator, he asked two law professors to provide a legal analysis.
UCLA law professor Eugene Volokh and law professor Bradley Smith from Capital University in Ohio wrote a six-page letter to the commission in July in which they described the complaint against Tao as meritless.
“Such complaints are often intended precisely to chill constitutionally protected speech,” they wrote.
The U.S. Supreme Court has ruled that limits on judicial campaign speech violate the First Amendment, the professors argued.
“Once you decide that judges are going to run for office, judges have to be able to explain their general view of things,” Volokh later said in a phone interview with the Las Vegas Review-Journal. “It’s a necessary part of debate about judicial philosophy.”