In Re PETITION FOR A WRIT OF PROHIBITION or in the Alternative for a WRIT OF MANDAMUS. THE HONORABLE JERRY CARR WHITEHEAD, Petitioner, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent
Whitehead v. Commission on Judicial Discipline
Springer, J., and Zenoff, Sr. J., concur.
In Re PETITION FOR A WRIT OF PROHIBITION or in the Alternative for a WRIT OF MANDAMUS. THE HONORABLE JERRY CARR WHITEHEAD, Petitioner, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
In Re PETITION FOR A WRIT OF PROHIBITION or in the Alternative for a WRIT OF MANDAMUS. THE HONORABLE JERRY CARR WHITEHEAD, Petitioner, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
No. 24598
February 24, 1995
893 P.2d 866
Ohlson & Springgate, Reno; Hamilton & Lynch, Reno; Gentile and Porter, Las Vegas; Laura Wightman FitzSimmons, Las Vegas, for Petitioner.
Leonard I. Gang, Carson City, for Respondent.
Peter Alpert, Las Vegas; Gerald Stern, New York, for Amicus Curiae Association of Disciplinary Counsel.
Leo Puccinelli, Elko, for Amicus Curiae Ad Hoc Committee for the Preservation of an Independent Judiciary.
Geoffrey Giles, Reno, for Amicus Curiae American Judicature Society.
We are pleased to note that since the filing of this court’s Order Granting Petition of September 9, 1994, the Nevada Commission on Judicial Discipline has employed counsel, Leonard I. Gang, Esq., as permanent counsel to the Commission. We again express our hope that the Legislature will continue to provide the Commission with sufficient funding to fully execute its constitutional responsibilities. Although for convenience we have listed Mr. Gang as present counsel for the Commission in this opinion, we wish to make it clear that he has not appeared as counsel of record for the Commission at any time during these proceedings.
The Honorable Thomas L. Steffen, then Vice-Chief Justice, assigned The Honorable David Zenoff, Senior Justice, to sit in the place of The Honorable Robert E. Rose, Chief Justice. Nev. Const., art. 6, § 19; SCR 10.
The Governor appointed The Honorable Addeliar D. Guy, Judge of the Eighth Judicial District Court, to sit in place of The Honorable Cliff Young, Justice, who recused himself. Nev. Const., art. 6, § 4.
OPINION
By the Court,
Steffen, C. J.:
This original petition for a writ of mandamus or prohibition challenges proceedings pending before the Nevada Commission on Judicial Discipline (Commission) on allegations of judicial misconduct against Petitioner, Washoe County District Judge Jerry Carr Whitehead. The petition alleges that the Commission has exceeded its jurisdiction and has failed to conduct its proceedings in accordance with article 6, § 21 of the Nevada Constitution and the Administrative and Procedural Rules of the Nevada Commission on Judicial Discipline, Supreme Court Rules, Part VII (ARJD). For the reasons which follow, we reaffirm our Order of September 9, 1994, where we granted the petition, in part, and directed the clerk of this court to issue a writ (1) prohibiting the Commission from proceeding in excess of its jurisdiction, and (2) mandating that the Commission proceed in this and all other disciplinary matters in a uniform manner in accordance with the views expressed therein. The final writ issued by our Order, although reaffirmed by this opinion, is also clarified or modified in this formal opinion construing the applicable provisions of the Nevada Constitution and the ARJD.
We now issue this opinion reaffirming the granting of the writ and stating our reasons for so doing in order that the Commission will have guidance with respect to the requirements of the ARJD, as the Commission requested of this court, and to set forth in considerable detail the bases for our rulings.
TABLE OF CONTENTS
PAGE
SYLLABUS BY THE COURT.82
PREFACE.98
PART I: CONFIDENTIALITY.100
PART II: THE REAL ISSUES.123
A. THE ISSUES RAISED IN THE PETITION .123
B. UNLAWFUL DISCLOSURES AND EXPANSION OF MATTERS AT ISSUE . 124
C. FURTHER ESCALATING EVENTS AND ACCUSATIONS.125
D. THE "WAR" IN NEVADA AND THE CRISIS IN PUBLIC CONFIDENCE.127
E. THE THREAT TO A FAIR, IMPARTIAL, AND INDEPENDENT JUDICIARY.129
F. UNIFORM PROCEDURES .130
PART III: THE COMMISSION'S AD HOC APPROACH.131
A. OBJECTIONS OF COUNSEL.131
B. JUDGE D.133
C. JUDGE STRINGFIELD.139
D. CONCLUSION.140
PART IV: JURISDICTION AND PROCEDURE . 145
A. THE "COMPLAINT SEEKING DETERMINATION OF PROBABLE CAUSE.".147
1. THE CAMPBELL COMPLAINT IS NOT MADE UNDER OATH, AS REQUIRED BY ARJD 12(1).149
2. THE CAMPBELL COMPLAINT IS NOT AUTHORIZED BY ARJD 12(2) . . 150
3. THE COMMISSION RULES DO NOT PERMIT THE COMMISSION,
PAGE
THROUGH COUNSEL, TO INITIATE PROCEEDINGS BY FILING ITS OWN INITIATING COMPLAINT.151
4.THE COMMISSION MAY NOT PROCEED TO A PROBABLE CAUSE HEARING ON THE BASIS OF THE CAMPBELL INVESTIGATION AND COMPLAINT BECAUSE CAMPBELL WAS CONSTITUTIONALLY DISQUALIFIED FROM ACTING.157
5. THE NATURE OF THE UNDERLYING ALLEGATIONS OF MISCONDUCT .157
6. CONCLUSION.163
B. REMAINING PROCEDURAL CONCERNS . . 163
1. THE PROPER SCOPE OF A PRELIMINARY INVESTIGATION PRIOR TO A PROBABLE CAUSE HEARING . 164
2. THE RESPONDENT JUDGE'S RIGHT TO INSPECTION UNDER ARJD 14(5) . . 168
3. THE SCOPE OF THE COMMISSION'S INQUIRY AT A PROBABLE CAUSE HEARING.170
4.WHETHER PETITIONER COULD RECEIVE DUE PROCESS IN ANY FUTURE PROCEEDING, IN LIGHT OF THE BREACHES OF CONFIDENTIALITY .170
PART V: PETITIONER'S MOTION TO DISQUALIFY THE MEMBERS OF THE COMMISSION .173
A. THE HONORABLE NANCY BECKER . 173
B. CHAIRMAN GUY SHIPLER.174
C. THE REMAINING COMMISSION MEMBERS .175
PAGE
PART VI: ADDENDUM RE DISSENTING VIEWS . . 175
A. ALLEGED DISTORTIONS OF THE RECORD.176
B. CRITICISM OF MEDIA.179
C. JUSTICE SHEARING'S ANALYSIS OF COMMISSION'S JURISDICTION OVER SUBSTANTIVE CHARGES.183
D. JUSTICE SHEARING'S INTERPRETATION OF THE ARJD.186
E. JUDGE GUY'S CONCURRING AND DISSENTING ADDENDUM.188
PART VII: CONCLUSION.190
SYLLABUS BY THE COURT
PREFACE
1. The court has been inundated in this proceeding with thousands of pages of papers and points and authorities and has entertained what is perhaps the longest oral argument in Nevada Supreme Court history. Additionally, the court has concluded that writ relief is absolutely mandated. Therefore, further oral argument and briefing is not warranted, and Petitioner's motion for a further briefing schedule is denied.
2. Delay in resolution of the petition has been occasioned by: (1) the Commission's initial refusal to comply with an order of this court directing the production of documents for this court's in camera review; (2) the Commission's procedurally improper and substantively deficient petition for rehearing of this court's opinion in Whitehead v. Comm'n on Judicial Discipline, 110 Nev. 128, 869 P.2d 795 (1994) (Whitehead I); and (3) various challenges brought against members of the court.
3. In finally resolving the question that these proceedings were initially undertaken to address, i.e., whether the Commission has exceeded its defined jurisdiction, it is first necessary to address certain of our dissenting colleague's assertions respecting this court's initial orders of confidentiality, and to clarify the real issues and true facts and circumstances underlying this court's consideration and resolution of the petition.
PART I: CONFIDENTIALITY
1. Contrary to the position now advanced by Justice Shearing, this court's initial orders of confidentiality did not violate the Nevada Constitution or the United States Constitution.
2. In response to a formal request for confidentiality stated in Judge Whitehead's initial petition, this court entered an order on July 22, 1993, directing the proceedings in this court to remain confidential. On July 30, 1993, then Chief Justice Rose, Justice Springer and Justice Steffen entered a second order specifically reaffirming the prior ruling that Petitioner was entitled to confidentiality. On November 3, 1993, Chief Justice Rose, Justice Steffen, Justice Springer and Justice Shearing all signed an order concluding that Petitioner could elect to waive his right to confidentiality. The four above-named justices observed in part that the issue regarding Petitioner's request to waive confidentiality was before the court "due in part to serious breaches of confidentiality by 'unnamed sources' in apparent violation of both the Nevada Constitution and the rules of this court." (Emphasis added.) Further, this order observed that Petitioner "has borne the brunt of the press accounts of the proceedings against him . . . Petitioner subsequently waived his right to confidentiality, and the proceedings before this court thereafter became public.
3. The Board of Governors of the State Bar of Nevada recognized in a public statement respecting this question: "[ARJD] 40(7) allows a judge accused of misconduct to challenge the jurisdiction of the Commission. Judge Whitehead has filed a petition challenging the jurisdiction of the Commission. Until there has been a determination that probable cause exists, proceedings alleging misconduct are to be conducted confidentially."
4. Confidentiality of Commission proceedings is given first priority under the Nevada Constitution which provides: "[t]he supreme court shall make appropriate rules for: (a) the confidentiality of all proceedings before the commission, except a decision to censure, retire or remove a justice or judge." Nev. Const, art. 6, § 21(5). Arguably straining to permit openness prior to a decision to censure, retire or remove, this court adopted ARJD 16, which provides that Commission proceedings become public following a scheduled hearing, a finding of probable cause by the Commission, and the filing of a formal statement of charges.
5. The Nevada Constitution provides that each matter against a judge will result in either a dismissal or a hearing. Rule 16 assures that whenever the Commission finds at a probable cause hearing that there is reasonable probability that clear and convincing evidence can be presented supporting the charges of judicial misconduct, the public will be made aware of the full extent of the charges through the public filing of a formal statement of charges.
6. Many state judicial disciplinary systems have more restrictive confidentiality provisions and do not permit public awareness of proceedings until a much later time.
7. A challenge to the Commission's jurisdiction filed in this court prior to a Commission finding of probable cause merely shifts the Commission proceedings, temporarily, from the Commission to this court. The policy reasons underlying the constitutional provision for confidentiality of Commission proceedings are as compelling and applicable in pre-probable cause challenges to Commission jurisdiction filed in this court. This court attempted to assure that future Commission proceedings in this matter would retain the confidential integrity required by the Nevada Constitution until such time as a probable cause determination might be reached.
8. Our dissenting colleague's reasoning, were it to prevail, would leave any respondent judge faced with jurisdictional excesses by the Commission in the predicament of having to choose between: (1) forfeiting his or her constitutional right to confidentiality and being publicly tarnished by the proceedings in our court; or (2) simply acquiescing to whatever sanctions or procedures the Commission might impose irrespective of jurisdictional excesses.
9. The dissent erroneously argues that rules adopted by this court governing confidentiality of Commission proceedings do not supersede NRS 239.010. NRS 239.010 relates to "[a]ll public books and public records of a public agency . . . ." Even if we were to agree with the dubious proposition that NRS 239.010 applies to the judicial branch of government, the reference to "public books and public records" simply has no application to records which have been lawfully declared not to be public by this court. This court's lawful exercise of jurisdiction conferred and mandated by the Nevada Constitution cannot be superseded by a conflicting statute. Any rule adopted by this court under constitutional mandate must, as a matter of law and the hierarchy of law, prevail over any conflicting statutory provision. See, e.g., State v. Connery, 99 Nev. 342, 661 P.2d 1298 (1983) (where rule of procedure is promulgated in conflict with a statute, the rule supersedes the statute and controls); see also Nevada Code of Judicial Conduct, Section entitled: "Application of the Code of Judicial Conduct," Subsection F, Commentary.
10. The dissenting justice erroneously asserts that "[cjourts have consistently held that the filing of a writ petition operates as an automatic waiver of confidentiality." This assertion is inaccurate, misleading, and without support in any of the three cases cited in the dissent as supporting authority.
11. In Nicholson v. State Com'n on Judicial Conduct, 409 N.E.2d 818 (N.Y. 1980), the only state appellate high court decision directly on point, the New York Court of Appeals ruled that "a blanket rule requiring the sealing of all court records involving proceedings by the commission is unjustified in the absence of legislative mandate." In comparing Nicholson to the instant case, the following points become clear: (1) the grant of confidentiality in judicial discipline proceedings in Nevada stems from the state constitution rather than legislative enactment at issue in Nicholson; (2) the Nevada Constitution directs this court, rather than the Legislature, to adopt rules governing the Commission, including provisions for the confidentiality of all proceedings except the decision to discipline; (3) this court has not adopted a blanket rule making all discipline matters challenged in our court confidential; only jurisdictional challenges filed before a finding of probable cause would be confidential; (4) the Commission and the dissenting justice have even challenged the right of this court to preserve confidentiality through in camera review, a position contrary to that taken by the New York Court of Appeals; and (5) the Court of Appeals acknowledged that the state legislature, which was given authority by the New York Constitution to adopt commission rules, could lawfully enact legislation that would make court proceedings connected to disciplinary proceedings confidential; by a parity of reasoning, this court, given a similar grant by the Nevada Constitution, could lawfully impose confidentiality on pre-probable cause writ proceedings filed in this court challenging the jurisdiction of the Commission. Finally, the Court of Appeals in Nicholson expressly recognized, as have we, the inherent power of the courts to seal their own records in appropriate cases. The instant case is such a case.
12. Confidential proceedings in this court challenging Commission jurisdiction prior to a Commission finding of probable cause do not violate the Federal Constitution. The State of Nevada has a compelling interest, enthroned in its constitution, to assure the confidentiality of judicial discipline proceedings until there has been a decision to discipline — interpreted by this court to allow openness upon a finding of probable cause and the public filing of a formal statement of charges. See First Amendment Coal. v. Judicial Inquiry & Review, 784 F.2d 467 (3d Cir. 1986) (Pennsylvania has a substantial interest in preserving limited confidentiality); People ex rel. Ill. Jud. Inquiry Bd. v. Hartel, 380 N.E.2d 801 (Ill. 1978) (state constitutional requirement that judicial discipline proceedings be kept confidential must be implemented except as overriding federal due process requirements compel court to do otherwise), cert. denied, 440 U.S. 915 (1979); Kamasinski v. Judicial Review Council, 797 F.Supp. 1083 (D. Conn. 1992) (state's interest in prohibiting disclosure prior to determination of probable cause is sufficiently compelling to survive the strictest First Amendment scrutiny); see also Kamasinski v. Judicial Review Council, 843 F.Supp. 811 (D. Conn.), aff'd, F.3d., 1994 WL 723988 (2d Cir. (Conn.) 1994).
13. Closure of court proceedings or records may be necessary to comply with established public policy in the constitution, statutes, rules, or case law; to protect a compelling governmental interest; to obtain evidence to properly determine legal issues; or to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed. See Barron v. Florida Freedom Newspapers, 531 So.2d 113 (Fla. 1988).
14. Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), and Matter of Krynicki, 983 F.2d 74 (7th Cir. 1992), cert. denied, . U.S., 114 S. Ct. 1068 (1994), do not support the dissenting justice's conclusion that this court's order of confidentiality was unconstitutional. Neither case suggests that it is unconstitutional to provide for confidential state supreme court proceedings involving a pre-probable cause challenge to a judicial discipline commission's exercise of jurisdiction.
15. Regrettably, we can neither agree with nor understand the dissenting justice's opinion that this court has "more important things to do" than attempt to either prevent or greatly minimize the prospects for reoccurrences of the extremely deleterious influences that have oppressed these proceedings. It is anomalous to stress the importance of the Commission's being able to protect the public from conduct that would bring discredit to the judiciary, and then ignore misconduct that has unquestionably inflicted greater damage on the judiciary than perhaps all previous acts of individual misconduct combined. It is tragic, indeed, when forces are able to orchestrate, with apparent impunity, an unwarranted attack on the one branch of government that must maintain a justified public confidence in its ability to fairly and impartially dispense justice.
PART II: THE "REAL" ISSUES
A. THE ISSUES RAISED IN THE PETITION
1. Contrary to assertions of former Commission counsel, whether Judge Whitehead committed judicial misconduct is not now and never was an issue in this original writ proceeding. Such factual determinations are clearly the province of the Commission in the first instance.
2. The petition initially presented this court with relatively non-complex procedural and jurisdictional contentions of arguable merit, including: (1) whether the Commission was exceeding its defined jurisdiction in proceeding to a probable cause hearing on a collection of twelve charges alleged in a complaint drafted by Special Deputy Attorney General Campbell; and (2) whether the Commission was proceeding against Petitioner in a discriminatory manner that neither complied with the governing provisions of the Nevada Constitution and the ARJD, nor conformed to the procedures applied to other judges involved in disciplinary proceedings before the Commission. These matters are no longer the only matters at issue and the proceedings have been unnecessarily prolonged and expanded by a costly, deleterious, orchestration of issues surrounded by invective.
B. UNLAWFUL DISCLOSURES AND EXPANSION OF MATTERS AT ISSUE
1. This court initially attempted to provide Petitioner and the Commission with a confidential forum in which issues presented could be quickly resolved in accordance with confidentiality provisions of Nevada Constitution, article 6, § 21(5)(a) and ARJD 5-8.
2. It is difficult for this court to perceive why the restraints that are placed on grand jury proceedings are acknowledged and respected, yet similar provisions for confidentiality prior to a finding of probable cause in the state constitution and rules applicable to Commission proceedings were not accorded the same treatment here. The confidential proceedings before both the Commission and this court were unethically disclosed to the Las Vegas Review-Journal by anonymous sources in blatant disregard of provisions of Nevada law requiring confidentiality and this court's orders specifically directing the maintenance of confidentiality.
C. FURTHER ESCALATING EVENTS AND ACCUSATIONS
1. Almost simultaneously with the initial public disclosures, the Commission reacted radically and defiantly to this court's order directing production of documents for this court's in camera review, adamantly refused to comply with the court's order, and accused this court of having entered a "series of secret, illegal and void 'orders,'" and of attempting "to emasculate and usurp the separate constitutional powers of the Commission."
2. A disinformation campaign ensued and focused attacks on this court, as well as Petitioner. Unquestionably, Petitioner has borne the brunt of the unfair and irresponsible publicity.
3. Of utmost concern to this court is that unprecedented, inaccurate, and misleading attacks based largely on unethical disclosures to the media from secret sources have irresponsibly inflicted inestimable damage to public confidence in the judiciary of this state. Contemplative and informed persons will understand need for this court to respond to pernicious, undermining attacks on the Nevada judiciary.
D. THE "WAR" IN NEVADA AND THE CRISIS IN PUBLIC CONFIDENCE
1. Although this case has come to symbolize a crisis in public confidence in the judiciary of this state, the reality is that the factual and procedural history of the proceedings in this court are not what they have been made to appear. The crisis, although portrayed to the public as real, has little or no basis in fact or law and was manufactured, provoked and fostered by media accounts and premature, precipitous public comments, many of which were solicited from outside legal ethicists who have exported views into Nevada that are based upon ex parte contacts and incomplete and inaccurate facts conveyed by unethical disclosures from anonymous sources.
2. Petitioner sought and obtained permission from this court to respond publicly when it became apparent that any pretense toward continued confidentiality would only further erode and damage his reputation and any prospects for a fair and impartial resolution of the allegations against him.
3. The court's allegiance to the rule of law and obligations under the Code of Judicial Conduct will not permit misguided attacks on the independence and integrity of this court and this state's judiciary to go unopposed.
4. It is the duty of the courts to review and decide controversial matters impartially, with as much dispatch and regard for principles of law and fundamental justice as can be expected of any human institution. Judges must ordinarily endeavor to accept with equanimity the inevitable criticisms and often personal, public attacks that are part and parcel of the judicial office. See Nevada Code of Judicial Conduct, Canon 3B ("A judge shall not be swayed by partisan interests, public clamor or fear of criticism").
5. The Code of Judicial Conduct also enjoins judges to uphold the law, to promote improvements in the judicial system, to protect and foster respect and public confidence in the judiciary and to "uphold the integrity and independence of the judiciary." See Nevada Code of Judicial Conduct, Canon 1; see also Nevada Code of Judicial Conduct, Canon 2A ("A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"). The integrity and independence of the judiciary are "indispensable to justice in our society." Id.
6. The court would indeed be derelict if it did not at least attempt to disabuse this state's citizens of the orchestrated perception that this court was according favored treatment to Petitioner at the expense of an effective and vital judicial discipline system. Because this court as a general rule may speak as an institution only through its opinions, it has utilized the only available forum to accomplish that task.
E. THE THREAT TO A FAIR, IMPARTIAL, AND INDEPENDENT JUDICIARY
1. Amicus American Judicature Society accurately observes that this petition presents the court with a "classic conflict" between "a free and independent judiciary," and the "right and duty of the State through its disciplinary system to sanction judges who engage in improper conduct prohibited by applicable codes." This court realizes, however, that the Society and other interested members of the public and the bar are not fully aware of all the facts and circumstances demonstrating that, contrary to the intent of the ARJD, the Commission has been employing an ad hoc approach to judicial discipline so untethered to the provisions of the Nevada Constitution and the ARJD as to pose a very real and substantial threat to the right of our citizens to a fair, impartial, free, and independent judiciary.
2. A definitive interpretation of the procedural provisions governing the Commission is essential to the proper resolution of this proceeding and to the continuation of an effective judicial disciplinary process in this state. This was the primary reason for the court's intervention in the first place. However, in view of the court's obligations under the Code of Judicial Conduct to promote and protect public confidence in the judiciary, this court is also compelled to address issues and problems that have stemmed from concerted, purposeful efforts to erode public respect for the court and these proceedings.
F. UNIFORM PROCEDURES
1. At the time this petition was filed, this court had been apprised that in proceedings involving another district judge (Judge D), the Commission had not only functioned without regard to its rules or the Nevada Constitution, but that the apparently unlawful procedures that the Commission applied in Judge D's case were remarkably dissimilar from the allegedly unlawful procedures which were subject of the instant petition. The court's initial decision to intervene and stay the Commission proceedings against Petitioner was motivated in major part by the realization that the Commission is proceeding against accused judges on an ad hoc basis with little or no regard for adherence to the governing provisions of the Nevada Constitution or the rules adopted by this court for Commission proceedings.
PART III: THE COMMISSION'S AD HOC APPROACH
A. OBJECTIONS OF COUNSEL
1. The Commission should not now be heard to complain of this court's consideration of evidence establishing that the Commission has been proceeding against accused judges without regard to Commission procedures and on an individual, ad hoc basis, where the Commission itself formally focused this court's attention on procedures applied to Judge D and on whether the Commission has been proceeding against all judges in a uniform manner.
2. The record in an original proceeding includes the record that is created in this court. Although this court does not ordinar ily act as a fact-finding tribunal, see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981), and review, consider, or rule upon admissibility of evidence in the first instance, "[t]he procedure in original cases is flexible." See Robert L. Stern, Appellate Practice in the United States 10 (2d Ed. 1989).
3.Where, as here, the relief sought in this court can only be obtained in the context of an original proceeding, this court may consistently with its prior precedents consider important matters of relevant evidence when that evidence is supported by sufficient indicia of authenticity and reliability, and when its consideration "may possibly make clearer than might otherwise appear, the factual and legal situations involved, to the end that correct determinations may be accomplished." See Bowler v. Vannoy, 67 Nev. 80, 87, 215 P.2d 248, 252 (1950).
B. JUDGE D
1. Facts regarding proceedings involving Judge D were included and discussed in a memorandum prepared by Justice Steffen well prior to the time the instant petition was filed and before any member of this court, other than Justice Young, who sat on the Commission, had any knowledge of the investigation and proceedings against Judge Whitehead.
2. Although the Commission now contends that it would have a devastating, chilling effect on the work of the Commission if Petitioner Whitehead obtained the names and statements of the witnesses against him, the exact opposite occurred with respect to Judge D who received all such names and statements. The investigation against Petitioner was occurring during the same time period as the investigation and proceedings against Judge D.
3. It is apparent that one set of rules applied to Judge D, and a different set of rules applied to Petitioner Whitehead. Although the Commission did not believe that divulging the names and statements of adverse witnesses to Judge D would cripple and chill the Commission's capacity to fulfill its constitutional duties, in stark contrast to the contemporaneous proceedings against Judge D, the Commission now insists that it would be crippled and rendered ineffective if Petitioner Whitehead were to receive the names and statements of the adverse witnesses to enable him to prepare for a probable cause hearing.
4. It is patently clear that former Commission counsel have deliberately misrepresented to this court, to certain cooperating legal ethicists and, consequently, to the media, that keeping the identity and statements of witnesses confidential from accused judges "has been [a] continually" applied Commission practice.
5. In the case of Judge D, the Commission or its former counsel (the Attorney General) obviously and properly concluded that Judge D was actually entitled, pursuant to ARJD 14(5), to the names and statements of the witnesses against him. With respect to Petitioner Whitehead, however, the Commission has taken the diametrically opposite position that "[disclosure of the Commission's papers will bring about the very harm the Constitution and Commission rules were intended to prevent, i. e., a chilling effect on the free flow of information that the Commission must have in order to receive information from citizens without fear of reprisal."
6. The complaining judge in Judge D's case also expressed grave concern over retaliation by Judge D against all the witnesses now known to Judge D because the Commission cancelled the probable cause hearing and entered into a confidential plea bargain with Judge D. The Commission and the Attorney General evinced no concern regarding an impediment to the free flow of information and the prospect of reprisal or retaliation in the case of Judge D, but grave concern about such issues in Petitioner's case.
7. The Commission was highly deferential to the cost involved in holding a probable cause hearing in the case of Judge D but has expressed a willingness to break the bank in its investigation and pursuit of Petitioner. It should be apparent why this court is so concerned about the possibility of selective prosecution or discrimination when the Commission is in a position to bestow favors upon certain judges and inflict what may appear to be inordinate punishment and abuse upon others through the simple expedients of secrecy and disregard of its own rules.
8. Through the simple expedient of methodological change, the Commission provided Judge D with the names and statements of all witnesses against him, while contemporaneously building a stone wall before Petitioner Whitehead under the heading of confidential work product. The Commission then represented to this court that the investigative methods of the Commission concerning Petitioner have been consistent with its other investigations. This type of disparate treatment cannot be tolerated under any system claiming deference to concerns of due process and impartiality.
C. JUDGE STRINGFIELD
1. Judge Stringfield did not receive the benefit of either a dismissal or a probable cause hearing. See Nev. Const, art. 6, § 21(7) ("The commission shall, after preliminary investigation, dismiss the matter or order a hearing to be held before it"). Instead, as described in Whitehead II, 110 Nev. 380, 873 P.2d 946 (1994), Judge Stringfield was subjected to the will of the Commission administered in secret and without reference to its own rules.
D. CONCLUSION
1. Although the court is reluctant to discuss details in this opinion, further examples could be cited which provide strong support for concluding that the Commission has extensively engaged in proceedings that violate its own rules through ad hoc, case-by-case decision-making.
2. It was never the purpose or intent of this court to in any way diminish the ability of the Commission to function effectively. It has, however, become clear to this court that the Commission has been functioning with little regard for its own rules, thus creating a strong potential for unfair, disparate, and even political resolutions of discipline matters coming before it.
3. The framers of article 6, § 21 of the Nevada Constitution determined, and the legislature and the people agreed, that complaints coming to the Commission must, after preliminary investigation, either be dismissed or the Commission must schedule a hearing.
4. In proposing adoption of the current ARJD, the Study Committee stated that the new rules were "designed to foreclose the Commission from secret, inquisitorial processes which result in ad hoc decisions neither related to nor tethered by principle."
5. The Study Committee also uncovered past Commission abuses under the old Revised Interim Rules wherein "[pjlanned selective leaks resulted in giving inaccurate and unreliable information to the public, which incited public furor and unjustifiably damaged the reputation of a judicial officer who was never even charged."
6. The Study Committee found that the old Revised Interim Rules were "vague, lack[ed] checks and balances, [and] incorporate[d] no adequate sanctions to deter misconduct by individual commission members."
7. The proceedings against Judge Goldman were conducted under the old Revised Interim Rules. In acknowledging that it has been conducting proceedings against Judge Whitehead in the same manner that previous proceedings were conducted against Judge Goldman, the Commission has apparently acknowledged that it has been conducting its proceedings against Judge Whitehead in accordance with rules that are no longer in effect, and under which past abuses occurred, rather than in accordance with the current rules which were specifically designed by the Study Committee to correct past abusive practices and provide procedures that are "accusatory rather than inquisitorial, open rather than closed, and accompanied by due process formalities . . . rather than loose, unstructured and informal." Whitehead I, 110 Nev. at 145-47 n.15, 869 P.2d at 806 (quoting Report of Study Committee, ADKT 38 at 8).
8. This court may not justify an ad hoc approach to judicial discipline no matter how well-intentioned and benevolent the Commission's actions may be. A constitutional body having the power of life or death over a judge's future may not be allowed to disengage itself from its own rules and the Nevada Constitution. Neither the Commission nor this court is free to disregard what is mandated by the constitution and the Commission's rules.
9. In marked contrast to the instant proceedings, each of the above examples of the Commission's disciplinary activities regarding other judges is characterized by Commission secrecy, thus making it impossible for the public or this court or any other group to know whether the discipline was warranted, whether it was too harsh, too lenient or whether the Commission even had jurisdiction to entertain it.
10. ARJD 31 cannot be read to authorize the imposition of secret discipline, as occurred in the proceedings involving Judge D and Judge Stringfield. An order of censure, removal or retirement, even if consented to by the respondent judge, must be preceded by a finding of probable cause and the filing of a formal, public statement of charges. See ARJD 15; 16. Thereafter, the Commission may enter a Rule 31 public order of censure, removal or retirement and file a copy of the order with the clerk of this court.
11. In all cases where probable cause to proceed to a formal hearing is found, a public, formal statement of charges must be filed, and a public order of discipline must be imposed where the Commission ultimately concludes that discipline is warranted. Thus, under the ARJD, the public is to be properly apprised of the Commission's actions, and the Commission will be held accountable to the public for its actions.
12. Petitioner has been treated in a manner altogether different from the manner in which other judges have been treated by the Commission in the past. It is essential that this court take measures to prevent future such occurrences and to assure that Petitioner not be left as an incidental casualty of a failure to proceed in a uniform manner in accord with the assurances of due process provided by the ARJD.
PART IV: JURISDICTION AND PROCEDURE
A. THE "COMPLAINT SEEKING DETERMINATION OF PROBABLE CAUSE"
1. The Commission lacks jurisdiction to proceed to a probable cause hearing on the "Complaint Seeking Determination of Probable Cause" (the Campbell Complaint) because it is not made under oath, as required by ARJD 12(1). See State v. Judicial Standards Commission, 643 P.2d 210 (Mont. 1982). The Campbell Complaint does not conform to the clear intent of ARJD 12(1) to require charges "to be reduced in writing and attested to by an identified complainant."
2. The Campbell Complaint is not authorized by ARJD 12(2). In order for the Commission to authorize its executive officer to sign and swear to a complaint under ARJD 12(2), some actual complainant must come forward, and after demonstrating exceptional circumstances, request the anonymity available under the rule. Before granting such a request, the Commission must have "substantial reason to believe" that the filing of a complaint in the actual complainant's own name, would cause the complainant "in likelihood [to] suffer untoward risk of embarrassment, harassment, or other detrimental consequences." In the present case there is not even colorable compliance with the rule, nor can it be pretended that the executive officer signed the complaint to protect Judge Breen or former District Attorney Holmes, for they have been most prominent and vocal in publicizing their assertions about Judge Whitehead.
3. The Commission rules do not permit the Commission, through counsel, to initiate proceedings by filing its own initiating complaint. Under Nevada's accusatory system, the Commission cannot initiate probable cause proceedings on allegations that have not been brought before it in a sworn written complaint by an identified complainant. There is nothing in the ARJD that authorizes a Commission prosecutor rather than a sworn complainant to initiate proceedings against a judge. Proceedings must be initiated under ARJD 12 by a sworn complaint signed by a true, identified complainant and not by a prosecutor employed by the Commission.
4. A valid complaint may contain reliable hearsay information and need not be based on personal knowledge. See, e.g., McKenney v. Commission on Judicial Conduct, 388 N.E.2d 666 (Mass. 1979) (state law requirement that complaint be signed under pains and penalties of perjury does not require that signer must have personal knowledge; lack of first hand knowledge could, of course, have bearing on whether complaint is worthy of investigation). Reality dictates that flexibility be allowed in accepting hearsay aspects to a complaint, especially if the complaint appears reliable in other respects.
5. If a sworn complaint is made up entirely of charges based on rumor and belief, and no corroborating evidence is discovered in a preliminary investigation, the Commission should rule, under ARID 14(1), that "there is [no] merit to the charges." The mere inclusion of hearsay information in a proper, sworn complaint will not, of course, have any effect on the validity of the complaint if there is otherwise "sufficient cause to proceed."
6. The Commission must be prohibited from proceeding to a probable cause hearing based on Special Deputy Attorney General Campbell's investigation and complaint because he was constitutionally disqualified from acting in this proceeding, either as prosecutor or surrogate complainant.
7. The court makes no judgment whether Petitioner's alleged choreography respecting a change of venue in the Kinnamon trial either occurred or constitutes judicial misconduct. Nor does the court infer any opinion respecting the allegations in the Breen complaint that Petitioner "manipulated and persuaded" Valley Bank into firing a law firm that filed a peremptory challenge, hiring another firm, and withdrawing the challenge. It is for the Commission to determine in the first instance whether sufficient cause in fact and law warrants further consideration of any of the allegations in the sworn complaints. With respect to all other charges in the sworn complaints relating to the manner in which Petitioner handled peremptory challenges, this court observes that the administrative nature of the proceedings and the favorable construction to which accused judges are entitled by virtue of ARID 11(3) should be kept in mind if the Commission is called upon to judge the merits of any complaint relating to the administration of former SCR 48.1.
8. A writ of prohibition must issue prohibiting the Commission from proceeding in any manner based on the Campbell Complaint.
B. REMAINING PROCEDURAL CONCERNS
1. The Commission is authorized under the Nevada Constitution and the ARJD to conduct a preliminary investigation. The preliminary investigation should be no more than what may be necessary to determine whether the specific charges of the sworn complaint have sufficient merit to warrant a probable cause hearing on those charges. The length and breadth of a preliminary investigation should be confined to the narrowest possible activity necessary to satisfy the Commission that there is or is not merit to the specific charges contained in the sworn complaint.
2. We now clarify our order of September 9, 1994, to exclude true attorney work product as material discoverable by a respondent judge. The reference in ARJD 14(5) to "all records of the commission" means exactly that, i.e., "all records of the commission." Similarly, the terminology: "fully advised" as used in ARJD 14(5), means "fully advised." Nonetheless, true attorney work product is not subject to what otherwise appears to be the all-inclusive scope of Rule 14(5). Thus, ARJD 14(5) does not permit discovery of the attorney-investigator's or special prosecutor's work product insofar as it relates to the attorney's mental impressions, conclusions, or legal theories or strategies.
3. The work product privilege, however, may not be asserted as a basis for refiising to disclose the identity and statements or the substance of the statements of witnesses, which must be made available to the respondent judge to enable the judge to prepare for a probable cause hearing irrespective of whether signed statements from such witnesses have been secured.
4. Our ruling is also consistent with ARJD 21 which applies after a finding of probable cause. Rule 21 specifies precisely what must be disclosed to a respondent judge, but is silent as to work product. Therefore, we conclude, Rule 21 also excludes work product in the sense described above.
5. If the Commission should proceed to a probable cause hearing on the basis of the allegations relating to SCR 48.1 contained in the sworn complaints from Judge Breen, and the change of venue matter contained in former District Attorney Holmes' complaint, the Commission may not entertain such proceedings before first providing Judge Whitehead with all documents and materials of any kind, including those developed or produced by Campbell, that the Commission would use or intend to use in any probable cause hearing, with the exception of such matters that may be protected under the heading of work product as defined above.
6. Reason dictates that ARJD 15 be construed to permit the Commission to consider, in addition to the respondent judge's evidence and the sworn complaint, whatever other relevant, properly admissible evidence the Commission may have secured or received regarding the specific charges of the sworn complaint, including both documents and the testimony of witnesses.
7. This court firmly rejects any claims that breaches of confidentiality by members of the Commission would not implicate due process concerns. If further proceedings are resumed against Petitioner Whitehead based on the sworn complaints, we will rely on the Petitioner's right to challenge Commission members pursuant to ARJD 6 and 7 to at least initially determine whether each challenged member of the Commission may participate in the proceedings. To allow the present members of the Commission to sit without reasonable assurances of impartiality would impinge on Judge Whitehead's right to have a fair tribunal and a tribunal free from the appearance of bias.
PART V: PETITIONER'S MOTION TO DISQUALIFY THE MEMBERS OF THE COMMISSION
1. It is impermissible, under Nev. Const, art. 6, § 21(4), and as a matter of law for Judge Becker to sit as an alternate member of the Commission in any proceedings in which Judge Loehrer is also participating. Judge Becker is not to be faulted for accepting the assignment made by this court.
2. With regard to the other members of the Commission, too many questions of fact remain unanswered which are best left to the Commission to address, at least in the first instance, should the Commission elect now to proceed against Petitioner. As previously indicated, Petitioner would also be afforded the opportunity to challenge members of the Commission under ARJD 6 and 7.
PART VI: ADDENDUM RE DISSENTING VIEWS
1. Part I of this Opinion addresses in detail Justice Shearing's erroneous assertions regarding the constitutionality of this court's initial orders directing these proceedings to remain strictly confidential. This addendum rebuts other untenable positions taken in Justice Shearing's dissenting addendum and addresses an inaccuracy stated in the separate concurring and dissenting addendum filed by Judge Guy.
PART VII: CONCLUSION
1. Because the Campbell Complaint is procedurally insufficient and clearly invalid under the ARJD, the Commission lacks jurisdiction to proceed to a probable cause hearing against Petitioner based upon that complaint. This court therefore grants Judge Whitehead's petition for a writ of prohibition with respect to the Campbell Complaint.
2. This court also grants Judge Whitehead's petition for a writ of mandamus commanding the Commission in any of its future proceedings against any and all respondent judges, including Judge Whitehead, to proceed in an even-handed and uniform manner consistent with the state constitution and the ARJD as interpreted in this opinion.
3. If judicial discipline proceedings are pursued against Judge Whitehead with respect to the claims asserted in the Breen or Holmes complaints, the Commission is directed to provide Petitioner with all materials generated by Campbell's investigation including, but not limited to, all materials provided to this court for its in camera inspection, which are not strictly attorney work product as defined in this opinion, and which the Commission would use, refer to, or rely upon in any probable cause hearing. The materials supplied to this court for its in camera inspection are, by order of the court, to be returned to the Commission.
4. This court expressly retains jurisdiction to carry forward and implement all determinations and rulings it has made in the course of these proceedings or will make in the future.
PREFACE
On May 20, 1994, this court conducted in this original proceeding what is perhaps the longest oral argument in Nevada Supreme Court history. Since the filing of this petition, the court has virtually been inundated with thousands of pages of pleadings, motions, points and authorities, and other papers and documents submitted by the parties and amici curiae. Moreover, this court has concluded that writ relief is absolutely mandated by the facts and the law applicable to these proceedings. Accordingly, we have concluded that further oral argument and briefing is not warranted.
This petition was filed in this court in July 1993, over one year ago. The Commission's subsequent refusal to comply with this court's order of October 4, 1993, directing the Commission to produce documents for this court's in camera review, delayed the progress of this case for over six months. See Whitehead v. Comm'n on Judicial Discipline, 110 Nev. 128, 869 P.2d 795 (1994) (Whitehead I). This court did not actually receive the documents for this court's in camera review until March 18, 1994.
The proceedings were further delayed by the Commission's procedurally improper and substantively deficient Petition for Rehearing of the court's opinion in Whitehead I. In that opinion, we rejected the Commission's contention that it is a public body answerable to no other authority except by appeal to this court from such final, dispositive order as the Commission may ultimately render, if it ever sees fit to do so. In Whitehead v. Comm'n on Judicial Discipline, 110 Nev. 380, 873 P.2d 946 (1994) (Whitehead II), this court exhaustively reviewed the contentions asserted in the Commission's Petition for Rehearing, and reaffirmed the decision reached in Whitehead I. This court further explained that the Commission's Petition for Rehearing contained misleading and inaccurate characterizations of the Commission's prior arguments and the actions of this court.
Further delay was occasioned by various challenges filed against each permanent member of this court (with the exception of Justice Young who voluntarily recused himself without challenge). The Commission, for example, submitted challenges respecting three members of the instant tribunal. After these challenges were rejected by this court, the Commission submitted a procedurally improper motion for reconsideration. As a result, the issues respecting how this court was to be reconstituted were not finally resolved until February 18, 1994. While these matters remained unresolved, this court could of course take no substantive action in the premises. Nevertheless, despite a swelling deluge of motions by both parties, the complications stemming from distorted media reporting, and despite the ever-increasing case load taxing the resources of this court, we have continued to move as patiently and expeditiously as possible toward a final resolution of these drastically transmuted proceedings.
On July 26, 1994, we issued a third opinion in this matter which, among other things, resolved Petitioner's motion seeking removal of counsel for the Commission. See Whitehead v. Nev. Comm'n on Jud. Discipline, 110 Nev. 874, 878 P.2d 913 (1994) (Whitehead III). This court held that Attorney General Del Papa and counsel associated with her in these proceedings are disqualified from representing the Commission in proceedings against the various judicial officers of this state, including Judge Whitehead. In the present decision (Whitehead IV), we now finally reach the questions that these proceedings were originally undertaken to address, namely, whether in entertaining the charges against Judge Whitehead and in following the procedures employed in this matter, the Commission has acted without or in excess of its defined jurisdiction. In finally resolving this question, however, we have concluded that it has also become necessary first to address certain of our dissenting colleague's assertions respecting this court's initial orders of confidentiality, and to clarify for the benefit of the public and the bar the real issues and the true facts and circumstances underlying this court's consideration and resolution of the matter before us.
PART I: CONFIDENTIALITY
In her dissenting addendum to our September 1994 order, Justice Shearing changed her previous position and erroneously concluded that "[i]n attempting to keep the proceedings in this case confidential, this court entered an unconstitutional order." We have elected to respond to this point at length because, despite the fact that five of the six judges (Rose, Steffen, Springer, Zenoff, and Guy) who have sat, or continue to sit on this matter have reached a contrary conclusion, Justice Shearing's about-face on the issue of confidentiality may tend to lend some unwarranted credibility to her current position. More over, the point is of substantial significance and the precedent established in this case will hopefully serve to minimize future occurrences of the type of strident, acrimonious and accusatory filings and media comments that have permeated, distorted, complicated, transmuted and perverted the instant proceeding.
The distillate of the dissenting justice's position is that the Nevada Constitution provides for the confidentiality of the proceedings before the Commission, but not before this court. She thus concludes that our initial orders staying the Commission's proceedings and entertaining Petitioner Whitehead's pre-probable cause challenge to the jurisdiction of the Commission's proceedings against him in a confidential setting were not constitutional under either our state or federal constitutions. With all due respect, she is wrong.
Turning first to the Nevada Constitution, we note that confidentiality of judicial discipline proceedings is given first priority under the mandate that "[t]he supreme court shall make appropriate rules for: (a) [t]he confidentiality of all proceedings before the commission, except a decision to censure, retire or remove a justice or judge." Nev. Const, art. 6, § 21(5)(a). This court, arguably straining to reach a basis for openness in judicial discipline proceedings prior to the time of a decision to censure, retire or remove a judicial officer, determined that such proceedings would be made public upon a finding of probable cause by the Commission after a scheduled hearing. See ARJD 16. In adopt ing Rule 16, we assured that every time the Commission determined that there was probable cause to believe that clear and convincing evidence could supply an evidentiary basis for imposing discipline, the public would be made aware of the full extent of the charges against a respondent judge.
Rule 16 thus effectively accelerated the point when there would be public awareness of disciplinary proceedings. This court also recognized, however, that there could be times when the Commission might either refuse to accept jurisdiction of a complaint where jurisdiction existed, or accept jurisdiction where it did not exist. Moreover, we recognized that there could be instances when the Commission, like district courts or courts of limited jurisdiction, will exceed its jurisdictional prerogatives in the processing of complaints against judges. The latter contingency could occur to the unauthorized benefit of either the judge or the prosecuting officer. In contemplation of the foregoing possibilities, this court adopted Rule 40(7). The latter rule provides for review of interlocutory orders of the Commission in this court where either a prosecuting officer or a respondent judge concludes that the Commission is acting without or in excess of its jurisdiction.
Obviously, any writ proceeding in this court pursuant to Rule 40(7) which is filed after a finding of probable cause would not be confidential. However, a jurisdictional challenge filed in this court prior to a finding of probable cause would, as here, merely shift the proceedings, temporarily, from the Commission to this court. From the inception of the Commission's assumption of jurisdiction in the Whitehead matter down to the present, the matter has and continues to be under the disciplinary umbrella and official consideration of the Commission. In ordering confidentiality in these writ proceedings, this court did nothing more than assure that future proceedings before the Commission would retain the confidential integrity required by the Nevada Constitution until such time as a probable cause determination may be reached. The policy reasons underlying the constitutional provision for confidentiality were as compelling and applicable in the pre-probable cause challenge in this court as they were before the Commission. A contrary conclusion would allow the Commission to proceed without or in excess of its jurisdiction against a judicial officer knowing that any challenge to its authority would cost the respondent judge the constitutional grant of confidentiality that the judge would otherwise have. In short, our dissenting colleague's reasoning, were it to prevail, would leave any respondent judge faced with jurisdictional excesses by the Commission, in the predicament of having to forfeit his or her constitutional right to confidentiality and be publicly tarnished by the proceedings in our court, or simply accept whatever sanctions or procedures the Commission might impose irrespective of jurisdictional excesses.
Moreover, imposing such a cost on the respondent judge would continue to invite the ongoing ad hoc and secret imposition of discipline that has heretofore characterized virtually every administration of discipline by the Commission since the adoption in 1988 of the current Commission rules until the filing of Judge Whitehead's petition. With only one exception, the Commission has functioned under cover of darkness during the period between the April 1988 effective date of the current Commission rules and the July 1993 filing of the instant petition. We again emphasize that the Nevada Constitution, article 6, § 21(7) provides that after a preliminary investigation of a complaint against a judge, the Commission shall either "dismiss the matter or order a hearing to be held before it." In support of the constitutional mandate of dismissal or hearing, this court adopted a Commission rule which, in the absence of dismissal, required the Commission to "make a finding whether or not probable cause exists." ARJD 15. Thus, if the Commission determines that either a basis for a finding of probable cause does not exist, or finds after a probable cause hearing, that there is a lack of probable cause to proceed, the Commission must dismiss the complaint, and the confidentiality of the proceedings and the reputation of the judge are thereby preserved.
On the other hand, under ARJD 16, every time the Commission finds probable cause at the required, reported hearing, a formal statement of charges must be prepared and filed as a public document. Thus, the Nevada Constitution provides that each complaint against a judge will result in either a dismissal or a hearing, and Rule 16 provides that every time there is a finding of probable cause, the public is entitled to know.
This court continues to adhere to the principle that confidentiality is mandated by the Nevada Constitution in any pre-probable cause challenge to the Commission's jurisdiction filed in our court. It is sheer folly to conclude, as the dissenting justice does, that even where the Commission functions without jurisdiction, the respondent judge may only seek relief in this court by forfeiting his or her constitutional guarantee of confidentiality. Ironically, the dissenting justice concludes that our order of confidentiality was unconstitutional and void for lack of jurisdic tion, but seems to believe that the Commission can function without jurisdiction and be challenged only after the Commission has fully performed its invalid work, irrespective of the cost to the abused judicial officer. We fail to perceive any basis for such reasoning in logic or law. - -
Oddly, the dissenting justice also recognizes Nevada's' right to include a constitutional provision guaranteeing confidentiality of discipline proceedings before the Commission, but then concludes that even while a respondent judge enjoys such a privilege under the constitution, if he or she dares to challenge the Commission's jurisdiction in the only tribunal initially available, there is, ipso facto, no longer a compelling interest in maintaining confidentiality. We will proceed to demonstrate that the dissenting justice is simply wrong.
We first note that the dissenting justice, without any authority whatsoever, and with no prospect for finding any, states that any rule adopted by this court pursuant to constitutional mandate governing the Commission proceedings regarding confidentiality, "certainly may not be considered as legal authority for making Nevada Supreme Court records or proceedings secret in the face of contrary statutory authority. This court rule does not supersede NRS 239.010." The latter statute, quoted by the dissenting justice, relates to "[a]ll public books and public records of a public agency . . . ." Even if we were to agree that the judicial branch of government is included within the statutory definition of "public agency," the reference to "public books and public records" simply has no application to records which this court has lawfully declared not to be public. Moreover, the dissenting justice espouses a novel and unique jurisprudence in concluding that the exercise of jurisdiction by this court both conferred and mandated by the Nevada Constitution, is somehow superseded by a conflicting statute. The dissenting justice could just as rationally conclude that a statute purporting to divest the Commission of its rightful constitutional jurisdiction would prevail over the Commission's grant of authority by the constitution. Any rule adopted by this court under constitutional mandate must, as a matter of law and the hierarchy of law, prevail over any conflicting statutory provision. See, e.g., State v. Connery, 99 Nev. 342, 661 P.2d 1298 (1983) (where rule of procedure is promulgated in conflict with a statute, the rule supersedes the statute and controls); see also Nevada Code of Judicial Conduct, Section entitled: "Application of the Code of Judicial Conduct," Subsection F, Commentary.
Justice Shearing quotes at length from State Ex Rel. Bilder v. Township of Delavan, 334 N.W.2d 252 (Wis. 1983) as if the case had relevance to the matter at hand. It does not other than to show that the courts have the inherent power to close judicial filings when compelling circumstances warrant. The dissenting justice misses the mark in stressing the result in Bilder as somehow detracting from the propriety of this court's ruling in the instant case. Bilder, who was a police chief, sought to maintain confidentiality while challenging the disciplinary procedures being followed by the town board. Of significance to the instant proceeding is the statement in Bilder that:
Bilder had the obligation, as the party seeking to close court records, to demonstrate that the administration of justice requires denying public access to court records and to state with specificity the reasons for closure .
We conclude that Bilder has not shown that... the circuit court should have exercised its inherent power to close the court file.
Id. at 262-63 (emphasis supplied). See also State v. O'Neill, 78 N.W.2d 921 (Wis. 1956) (recognizes, with numerous citations from other jurisdictions, inherent power of courts to limit requirement for public trials where the administration of justice requires it). There is no reason to doubt the propriety of the ruling in Bilder; there was simply no public policy or other compelling reason to close the court files. The instant proceeding is very much to the contrary. Nevada has a strong public policy favoring confidentiality in judicial discipline proceedings until there is credible evidence of wrongdoing against a judicial officer. Indeed, as noted above, the constitutional mandate to this court is to adopt rules for the Commission that would assure "[t]he confidentiality of all proceedings before the commission, except a decision to censure, retire or remove a justice or judge." Nev. Const, art. 6, § 21(5)(a) (emphasis added). In the Whitehead proceeding there never has been a decision to impose discipline because there has yet to be a finding of probable cause.
Justice Shearing fails to discern the reasons underlying Nevada's strong public policy concerning the confidentiality of judicial discipline proceedings. Harvard Professor Laurence Tribe, a noted scholar in constitutional law, describes confidentiality in judicial discipline proceedings as "protection vitally needed to encourage collegiality, candor, and courage — both political and intellectual — protection needed not for the benefit of judges but for the benefit of society as a whole." Laurence H. Tribe, Trying California's Judges on Television: Open Government or Judicial Intimidation, 65 A.B.A.J. 1175, 1179 (1979). The "protection" referred to by Tribe and guaranteed by the Nevada Constitution is not in any sense unique to Nevada. As this court noted in Whitehead II, "twenty-eight states plus the District of Columbia evidently have a more stringent confidentiality requirement than is presently required in Nevada under ARJD 5 . . . [and] ten jurisdictions 'permit public disclosure only where a supreme court orders a sanction."' Whitehead II, 110 Nev. at 145-47 n.15, 873 P.2d at 959 (citing Shaman, Lubet and Alfini, Judicial Conduct and Ethics, § 13.15 at 417 (1990)).
We briefly addressed Nevada's public policy concerning confidentiality in judicial discipline proceedings in Whitehead III, where we said:
The argument of some is, of course, that judges are no different from any other public official and that if any allegations of misconduct are made by anyone, such charges should immediately be open to the public. The counterargument (and the one adopted by the framers of the Nevada Constitution) is that the judiciary depends to a large degree for its effectiveness on the trust and confidence that the people place in that institution's ability to render, day-today, fair and impartial decisions. By its very nature, the judiciary deals with disputes that often leave litigants or counsel with negative or agitated feelings. As a result, many complaints may be generated and sent to the Commission about judges that are entirely without merit. If all of these unfounded complaints were available to the public and the media, without any inquiry into their substance, public esteem for the judiciary as a whole would suffer, thus making it more difficult for the one branch of government that should be a safe haven for the impartial and fair resolution of disputes, to inspire public confidence in the integrity of judicial proceedings.
Whitehead III, 110 Nev. at 888-89, 878 P.2d at 922.
There are, of course, numerous other reasons supporting Nevada's constitutional policy of providing guarantees of confidentiality prior to a decision by the Commission to impose discipline. Unless the Nevada judiciary is ultimately to be staffed only by those who are independently wealthy, most lawyers who sever ties to private practice or other sources of financial security would think twice about aspiring to an elected judiciary where, even after election, future opponents could cite to groundless Commission complaints as a basis for denying an incumbent reelection. See, e.g., Doe v. State Com'n on Judicial Conduct, 520 N.Y.S.2d 513, 515 (N.Y. Sup. Ct. 1987) (although court concluded that judge's request to seal court record was unwarranted under the facts of the particular case, court acknowledged that it had the power to seal its own records in an appropriate case, and that it was not "unmindful of a possible scenario whereby the Respondent Commission becomes a vehicle for a disgruntled judicial candidate or his supporters to embarrass or inconvenience his successful opponent out of revenge or pettiness"). Thus, a negative campaign challenge could be mounted on inferences drawn solely from frivolous complaints to the Commission. Moreover, in the never, never land espoused by the dissenting justice, if the Commission, functioning without or in excess of its jurisdiction, proceeded against a judge who would be helpless to challenge the Commission's pre-probable cause actions except on pain of public notoriety, there would be an additional chilling effect on potential candidates for judicial office. It must be remembered that, unlike the other two branches of government, the judiciary is generally foreclosed the luxury of compromising claims of contending parties in order to achieve alleviation of the feelings of both. More often than not, the judicial process demands absolute fidelity to the law despite resultant agitated or angered feelings on the part of the losing party. Public confidence in the fairness, impartiality, and independence of the judiciary is essential to the purposes for which the third branch of government was created. See Kamasinski v. Judicial Review Council, 797 F.Supp. 1083 (D. Conn. 1992).
We ask the reader to keep in mind that we are not speaking hypothetically! As indicated above, with one exception, in every act of discipline imposed by the Commission under the current Commission rules and prior to the instant proceeding, the Commission has acted without jurisdiction in the punishment it has administered. See, e.g., the partial list of instances of misconduct identified in Justice Springer's concurring opinion. Nevada's judiciary will surely languish in a quagmire of disrespect and suspicion if the constitutional guarantee of confidentiality may be suspended by merely challenging the Commission's jurisdiction prior to a finding of probable cause. Indeed, if a jurisdictional challenge to the operations of the Commission had been filed much earlier, perhaps a far more realistic and even-handed disciplinary system would have processed the list of matters set forth in the Springer concurrence, thus providing a basis for greater public respect for both the Commission and the judiciary. However, if judges "bargained" under the belief that a judicial challenge to the Commission's authority would result in demeaning public notoriety, there is little reason to wonder why the challenge was so long in coming.
To our knowledge, there is only one reported appellate court decision that is substantially on point with the instant case. We use the term "substantially" advisedly since the spring from which the right of confidentiality flowed was a state statute rather than the state constitution. In the case of Nicholson v. State Com'n on Judicial Conduct, 422 N.Y.S.2d 701 (N.Y. App. Div. 1979), the Supreme Court, Appellate Division, unanimously concluded (there was one partial dissent to a different part of the ruling among the five judges hearing the appeal) that:
Clearly, where the Commission's investigation is still in a preformal complaint stage, the confidentiality mandate of the statute warrants sealing of the record. The assertion that a Judge who challenges the Commission forfeits his or her statutory right to confidentiality is totally without merit and would frustrate the clear legislative intent to maintain confidentiality in the initial stages of the inquiry. In effect, such assertion, if adopted, would create an intolerable and unreasonable choice between passive submission to possibly improper proceedings and irreparable damage to reputation. Indeed, Section 45 of the Judiciary Law makes it abundantly clear that in the initial stages of the investigative process set in motion by the filing of a complaint, it is only at the behest of the Judge who is the subject of the complaint that public disclosure may be made.
Further, the statute explicitly provides for public disclosure at a specific point in the process, to wit, after a hearing pursuant to service of a formal written complaint results in a written determination by the Commission that a Judge be admonished, censured, removed or retired and such written determination has been transferred to the Chief Judge of the Court of Appeals and a copy thereof served on the Judge involved. . It ill behooves the Commission to seek to subvert the confidentiality aspect of the statutory mandate by averring a violation on Special Term's part of policy governing public access to the courts, while at the same time utilizing the same statutory requirement of confidentiality to justify refusal to disclose material in its possession. The rationale underlying the propriety of the in camera consideration of the Commission's motion to compel further testimony applies with equal force herein. Both obtain force from the same statutory mandate.
Id. at 706.
The supreme court decision in Nicholson, quoted above, was disapproved by the Court of Appeals of New York in a 4-3 decision. In Nicholson v. State Com'n on Judicial Conduct, 409 N.E.2d 818 (N.Y. 1980) the majority wrote:
The Appellate Division ruled that the scheme of confidentiality for commission proceedings required sealing of the court records. We disagree in this respect. True, the Legislature established strict rules of confidentiality to prevent premature disclosure. But the scheme applies only to matters before the commission and nothing in the statute can be read as applying to matters brought before the court.
The public policy of this State is to insure awareness of judicial proceedings . While in an appropriate case a court may draw on its power to seal its own records . a blanket rule requiring the sealing of all court records involving proceedings by the commission is unjustified in the absence of legislative mandate. The Appellate Division erroneously substituted its judgment for that of the Legislature in perceiving the need for sealing. Its rule is no less than the judicial creation of a category of court proceedings that is to be shielded from public scrutiny. Public access to court records need not and should not signal access to the commission's internal proceedings. Indeed, such precautions as in camera hearings, utilized in this case, preserve confidentiality. If the Legislature deems it necessary to extend the proscription against disclosure to judicial proceedings connected with those of the commission, it may do so. . . . However, a rule requiring such extraordinary relief should not come from this court.
Id. at 825-26 (emphasis added; citations omitted). Judge Fuchs-berg, dissenting in part, stated that "fairness again, it seems to me, requires that since 'appearances' more often are the product of the publicity rather than that of the underlying conduct, a Judge should not have to pay the price of privacy for the privilege of pursuing her rights." Id. at 827. Finally, Judge Meyer, with whom Judge Gabrielli concurred, declared in dissent:
I disagree with respect to the sealing of court records and would affirm without modification. The court has inherent power to seal its own records and since refusing to do so unfairly disadvantages a Judge under investigation who wishes to challenge the commission's authority, by requiring him to forfeit his right to confidentiality if he does so, I would hold as did the Appellate Division that the record should be sealed pending completion of the investigation.
Id.
Eight of twelve judges who considered the Nicholson case concluded that a judge against whom a complaint was filed was entitled to the same right of confidentiality afforded the judge before the discipline commission while challenging the authority of the commission in court. At the very least, this must surely indicate that the issue is one upon which reasonable minds could differ. Nevertheless, we are unwilling to conclude that the Court of Appeals of New York would have decided the issue of confidentiality in the instant Whitehead case differently than five of the six Nevada judges who have considered it. First, the grant of confidentiality in Nicholson stemmed from a legislative enactment rather than the Constitution of the State of New York. Second, the New York Constitution directed that the legislature rather than the court of appeals adopt rules for the judicial discipline commission. Third, unlike the instant case, the court of appeals declared that the supreme court, appellate division, created a blanket rule that required the sealing of all court records "involving proceedings by the commission." Fourth, the court of appeals sanctioned the use of other methods by the courts in preserving confidentiality. Fifth, the court of appeals recognized that the state legislature, in whom the constitution had placed the right to adopt commission rules, could lawfully adopt a rule that would make judicial proceedings related to commission proceedings confidential.
Taking the aforestated points seriatim, we note that: (1) the grant of confidentiality in judicial discipline proceedings in Nevada stems from the state constitution rather than legislative enactment; (2) the Nevada Constitution directs that this court, rather than the Legislature, shall adopt the rules governing the Commission, including provisions for the confidentiality of all proceedings with the exception of the decision to discipline; (3) this court has not adopted a blanket rule making all discipline matters challenged in our court confidential; only jurisdictional challenges filed before a finding of probable cause would be confidential; (4) the Commission and the dissenting justice have even challenged the right of this court to preserve confidentiality through in camera review, a position contrary to that taken by the court of appeals; and (5) the court of appeals acknowledged that the state legislature, which was given authority by the New York Constitution to adopt commission rules, could lawfully enact legislation that would make court proceedings connected to disciplinary proceedings confidential; by a parity of reasoning, this court, given a similar grant by the Nevada Constitution, could lawfully impose confidentiality on pre-probable cause writ proceedings filed in this court challenging the jurisdiction of the Commission. Finally, the court of appeals in Nicholson expressly recognized, as have we, the inherent power of the courts to seal their own records in appropriate cases. The instant case is such a case.
Despite the fact that the Nicholson cases are the only appellate decisions extant previously dealing with the right of a judge to confidentially petition a court for writ relief on grounds of a judicial discipline commission acting in excess of its authority, the dissenting justice makes the amazingly erroneous statement that "[cjourts have consistently held that the filing of a writ petition operates as an automatic waiver of confidentiality." She then cites three totally inapposite cases in support of the proposition she espouses. Her first citation is from the dissent in Roberts v. Com'n on Judicial Performance, 661 P.2d 1064 (Cal. 1983). Aside from the fact that a dissenting opinion does not create law or precedent, Justice Mosk's dissent in Roberts hardly supports the proposition of law Justice Shearing would have her readers believe. In complaining of what Justice Mosk considered an unconstitutional release of information by the discipline commission, he said (in the only statement relating to Justice Shearing's assertion):
It might be argued that even if the commission met its responsibility of confidentiality, the recommendation for discipline would become known when it was filed with this court. That is not necessarily so. The material filed with the court does not identify the judge involved; in this instance the case was entitled "Inquiry Concerning a Judge No. 49." Only when the judge files a petition for writ of review, seeking a hearing in open court, does his identity become general knowledge. Thus, going public remains the choice of the judge, not of the commission.
Id. at 1072 (emphasis added). In Roberts, the respondent judge did not file an original writ proceeding challenging the jurisdiction of the commission. Rather, on a writ of review issued by the California Supreme Court, the court considered Judge Robert's petition challenging a recommendation of public censure by the commission on grounds of insufficiency of the evidence and conduct undeserving of discipline. Parenthetically, it may be enlightening to compare the misconduct involved in Roberts (which resulted in a public censure approved by the California Supreme Court) with the allegations of misconduct in the instant case. In any event, there is no mention of any waiver of confidentiality — automatic or otherwise — that results from a challenge to a commission's jurisdiction at a time when the law requires the proceedings to be confidential. Instead, Justice Mosk observes that it is only when a judge seeks a writ of review, seeking a hearing in open court, that his identity becomes general knowledge. Here, we do not have a writ of review issued by this court pursuant to a petition for an open court hearing to contest sufficiency of the evidence and the propriety of recommended discipline. Justice Mosk's dissent is of no support to the dissenting justice's erroneous proposition in the instant proceeding. Moreover, it should be noted that Justice Mosk indicated that it is only when the respondent judge requests a writ of review, seeking a hearing in open court, that the identity of the judge is revealed. Otherwise, the judge's identity remains confidential within the California Supreme Court until such time as the court may determine whether to impose discipline, a system foreign to that in Nevada.
Next, Justice Shearing cites McKenney v. Commission on Judicial Conduct, 388 N.E.2d 666, 674 (Mass. 1979) as supporting authority. It is not. The respondent judge in McKenney filed a complaint in the Supreme Judicial Court, Suffolk County, seeking a determination that the complaint filed against him was not in conformity with the applicable statute; the judge also sought an order dismissing the complaint. In relevant part, the court in McKenney asked the commission to advise it of the future disposition of the matter and then stated that "[t]his request will not violate the confidentiality of the commission's proceedings because the judge has made the matter public by his commencement of this action." Id. (emphasis added). There is no mention of any waiver (intentional relinquishment of a known right) or that the judge insisted in an interlocutory writ petition to have his cause determined under a right of confidentiality granted by the state constitution or other law. Indeed, the court simply stated that the judge made the matter public by commencing his action. Again, there is no mention of the word "automatic" as represented by the dissenting justice.
The third and final case cited by the dissenting justice in support of her unwarranted premise is Matter of Owen, 413 N.Y.S.2d 815 (Ct. on the Judiciary 1978). In the first place, this case was decided by the court on the judiciary. It has no prece-dential value when considered in light of Nicholson, a Court of Appeals of New York case decided in 1980. Second, the court on the judiciary in Owen merely noted that "[respondent waived confidentiality in the course of joining, as a petitioner, in an Article 78 Proceeding relating to the charges herein (Matter of Polansky, et al. v. New York State Commission on Judicial Conduct, [Sup.Ct.Albany Co., 1977])." Id. at 818 (emphasis supplied). Again, this case does not support the general proposition the dissenting justice asserts. Judge Owen did not file a petition on his own behalf requesting, in part, that his name be kept confidential. Indeed, he sought dismissal of discipline proceedings on the basis of "alleged prejudicial publicity emanating from the office of the State Commission on Judicial Conduct." Id. Thus, Owen sought relief because the proceedings against him had already been made public (seeking confidentiality was of little moment) and, his right to confidentiality in the court on the judiciary was waived by reason of his joinder in a petition filed by another. The case is inapposite, and at no point does the court on the judiciary suggest that "the filing of a writ petition operates as an automatic waiver of confidentiality." The position asserted as a proposition of law by the dissenting justice is inaccurate, misleading, and without support in any of the three cases she has cited.
The dissenting justice also contends that this court's orders of confidentiality were in violation of the United States Constitution. Again she is wrong. The United States Supreme Court has clearly stated that it was never intended that individual privileges guaranteed by the Federal Constitution be diminished by making their assertion costly. See Griffin v. California, 380 U.S. 609, 614 (1965). Justice Shearing would nevertheless have the right of confidentiality guaranteed to respondent judges by the Nevada Constitution eliminated if they dare to temporarily shift the proceedings from the Commission's turf to challenge the Commission's jurisdiction in this court. The issue, therefore, is whether maintaining the confidentiality of pre-probable cause proceedings during the jurisdictional review in this court violates the Federal Constitution. We again conclude that it does not.
We find it instructive to quote at some length from the case of First Amendment Coal. v. Judicial Inquiry & Review, 784 F.2d 467 (3rd Cir. 1986):
The issue before us is not whether the First Amendment prohibits the state from barring public observation of judicial disciplinary proceedings at all stages. Pennsylvania has provided for disclosure but has limited it to the situation in which discipline has been recommended and the record has been filed with the court. Consequently, we assume, but do not decide, that there is a constitutional right of access to disciplinary proceedings at some stage.
Although we assume a right of access, it does not attach at the same time it might in certain other contexts and at the point the Coalition urges on us here. By analogy to the cases establishing a First Amendment right of access to criminal trials . . . and this court's decision to extend the rationale to civil trials . . . the Coalition maintains that where a constitutional right of access is found to exist, a "presumption of openness" is created. This presumption, the Coalition contends, places the burden on the state to justify restrictions on access by showing a "compelling governmental interest [which the restriction] is narrowly tailored to serve."
All rights of access are not co-extensive, however, and some may be granted at different stages than others. In assuming a right of access, we need not postulate a span as extensive as that in civil and criminal trials as such, but rather may be guided by the unique history and function of the Judicial Review Board.
But the cases defining a right of access to trials are, at best, of limited usefulness in the context of the fundamentally different procedures of judicial disciplinary boards. These administrative proceedings, unlike conventional criminal and civil trials, do not have a long history of openness. Recognizing this fact, the Coalition points to time honored judicial removal in open impeachment hearings.
Had the state constitutional convention acted to replace traditional impeachment with a substitute vehicle like the Judicial Inquiry and Review Board, a closer question of public access to the successor proceedings would be presented. But it is clear that the Board's functions are intended to supplement rather than replace the historical methods of judicial discipline: impeachment and removal for conviction of a crime. . It was largely the recognition that these traditional methods are cumbersome and ineffective, partly because of their openness, that spurred the constitutional convention to conceive the new judicial disciplinary procedure.
Against this background, the "presumption of openness" gleaned from the history of criminal trials . . . lacks force. Rather, in judicial disciplinary proceedings, what tradition there is favors public access only at a later stage in the process. A temporally based right is no stranger to the law. For example, tradition supports the secrecy of the grand jury, the entity in the criminal justice system to which the Board is most akin. Similarly, sidebar conferences between lawyers and judges at trial are contemporaneously confidential although they may later appear as part of the transcript.
[T]he state has demonstrated a substantial interest in preserving limited confidentiality. That interest rests not only on the reputation of the judiciary as an institution and judges who have been accused but not proved culpable, but also on the need for flexibility so that the Board may efficiently accomplish its purpose.
Nor is it a valid objection to say that the confidentiality provision gives more favored treatment to judges than other governmental officials. The reality is that only judges are subjected to such disciplinary procedures; rather than being favored they have been singled out for more rigid oversight than their counterparts in the legislative and executive branches.
Id. at 472-73, 476-77 (citations omitted).
As observed by the court in First Amendment Coal, with respect to the State of Pennsylvania, the State of Nevada has a compelling interest, enthroned in its constitution, to assure the confidentiality of judicial discipline proceedings until there has been a decision to discipline — interpreted by this court to allow openness upon a finding of probable cause and the public filing of a formal statement of charges. See, e.g., Kamasinski v. Judicial Review Council, 797 F.Supp. 1083 (D. Conn. 1992) (state's interest in prohibiting disclosure prior to determination of probable cause is sufficiently compelling to survive the strictest First Amendment scrutiny); see also Kamasinski v. Judicial Review Council, 843 F.Supp. 811 (D. Conn.), aff'd, F.3d., 1994 WL 723988 (2d Cir. (Conn.) 1994). Until that time, the public policy of this state, as revealed in its constitution, is to maintain the confidentiality of judicial disciplinary proceedings. Moreover, the Third Circuit Court of Appeals has also noted that "we are not presented with the fiat of a single official acting in a discretionary fashion, but with a constitutional provision enacted by a state in conformity with Article IV, § 4 of the federal constitution guaranteeing each state a republican form of government." First Amendment Coal., 784 F.2d at 475.
We do not perceive a basis in the United States Constitution for requiring this court to undermine the constitutional mandate and public policy of this State to assure that pre-probable cause judicial disciplinary proceedings remain confidential during an interlude in the proceedings while a respondent judge challenges the jurisdiction of the Commission in this court. See, e.g., People ex rel. Ill. Jud. Inquiry Bd. v. Hartel, 380 N.E.2d 801 (Ill. 1978) (state constitutional requirement that judicial discipline proceedings be kept confidential must be implemented except as overriding federal due process requirements compel court to do otherwise), cert. denied, 440 U.S. 915 (1979).
The United States Supreme Court, in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), acknowledged that substantial uniformity in state plans for judicial disciplinary systems suggests four advantages to confidentiality in judicial disciplinary proceedings: (1) it encourages the filing of complaints; (2) it protects judges from injury that could result from publishing unwarranted and unexamined complaints; (3) it maintains confidence in the judiciary as an institution of government by avoiding premature publication of groundless complaints of judicial misconduct; and (4) it facilitates the performance of judicial discipline commissions in various practical aspects. Id. at 835-36.
Obviously, if a pre-probable cause jurisdictional challenge by a respondent judge in this court caused the privilege of confidentiality bestowed by the constitution to evaporate, the significant advantages listed as items (2), (3), and to a lesser extent, (4), would disappear.
Moreover, the Landmark Court in no sense suggested that maintaining the confidentiality of judicial disciplinary proceedings was unconstitutional. Landmark simply held that the First Amendment prevented the State of Virginia from imposing criminal sanctions on third persons, including the media, who are strangers to a discipline proceeding, for divulging or publishing truthful information concerning the confidential proceeding. The High Court noted, with no indications of disapproval, that a number of states punish a breach of the confidentiality requirement by commission members or staff as contempt. The ARJD has a similar provision. See ARJD 6.
The Landmark Court assumed the validity of confidentiality provisions in the Virginia judicial disciplinary procedures, but held that they could not affect the right of a newspaper to publish confidential information it had received from a source independent of commission participants. The Court did, however, note that much of the risk of injury to a respondent judge, the judicial system, and the operation of a discipline commission "can be eliminated through careful internal procedures to protect the confidentiality of Commission proceedings." Landmark, 435 U.S. at 845.
We are in complete agreement with the ruling in Landmark. We also agree that except in unique and compelling situations, court proceedings, including proceedings before this court, should be open to public scrutiny. The instant case was, however, such a unique and compelling proceeding. There is no suggestion in this proceeding that Nevada's constitutional requirement of confidentiality in proceedings before the Commission violates any federal constitutional standard. In our view, there is also no reasonable basis for concluding that a confidential challenge to the Commission's jurisdiction in this court during the period when confidentiality before the Commission still applies, would violate any federal constitutional principle. The public policy concerns mandating confidentiality before the Commission would be just as compelling in any such pre-probable cause jurisdictional contest in this court. Moreover, the breaches of confidentiality of the proceedings in this court have been no less destructive or violative of Nevada's constitutional concerns than they would have been before the Commission.
The dissenting justice's reliance on Matter of Krynicki, 983 F.2d 74 (7th Cir. 1992), cert. denied, U.S., 114 S. Ct. 1068 (1994), does not support her conclusion that this court's order of confidentiality was unconstitutional. Although the declarations in Krynicki regarding presumptions of openness are in accordance with our own views on the subject, they do not provide support for this court's undermining the public policy set by the people in the constitution of this state. We also note that Judge Easterbrook, the author of Krynicki observed:
Requests to seal the briefs reach me a few times every year in my capacity as motions judge. I always deny these motions, informing the parties that they must file public briefs but may add sealed supplements if necessary to discuss in detail materials that they are legally required to keep confidential. Other judges of this court follow the same practice, and I am aware of only one recent case in which briefs were withheld from the public. A Sealed Case, 890 F.2d 15 (7th Cir. 1989). That appeal involved a collateral dispute rather than the substance of the case, and we published the opinion to facilitate public scrutiny of our processes.
Id. at 75.
First, the Krynicki case involved two appeals where the parties wanted the briefs sealed. The instant proceeding is of an interlocutory nature that did not involve appellate briefs. Second, the petition filed by Petitioner Whitehead was an original writ proceeding challenging an interlocutory order of the Commission pursuant to ARJD 40(7). The gravamen of the challenge is that the Commission was proceeding against the respondent judge in excess of its jurisdiction. In short, the challenge involved "a collateral dispute rather than the substance of the case," i. e., rather than the merits of the complaints against the Petitioner or whether his alleged actions were deserving of discipline. Finally, if the processes of this court had been respected, a published decision would have resulted keeping the name of the petitioning judge confidential while giving the Commission necessary direction with respect to its rules, and the propriety of the course the Commission was following. Thus, in the end, the public would have been able to scrutinize this court's position on the issues brought before us by Petitioner.
The point we desire to emphasize is that this court would never condone any attempt to cover up judicial corruption or impropriety whether attempted by this court or any other court or, for that matter, the Commission which, under its modus operandi after the effective date of the current Commission rules and the instant proceeding, has placed itself in a unique position to grant covert favor or disfavor to judicial officers without public accountability or disclosure. It is certainly not our intention to provide the Commission with a means of assuring public notoriety against a judge through the simple expedient of exercising jurisdiction where jurisdiction is not present, thus forcing the judge to seek relief in this court at the cost of unwarranted public obloquy resulting from the forfeiture of his or her entitlement to confidentiality during the jurisdictional challenge.
We have also found apropos to the subject discussion the case of Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988). In acknowledging the well-established and strong presumption of openness for all court proceedings, including appellate review, the Barron court stated that the following factors had to be weighed in determining whether a closure of civil proceedings was proper:
[C]losure of court proceedings or records should occur only when necessary (a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.
Id. at 118.
First, we note the obvious and equally well-established principle implicitly acknowledged in Barron that courts do have the inherent power to close their proceedings and records when justified by the circumstances. Second, of the six factors itemized in Barron, arguably items (a), (c), (d) and (f) would, in each instance, justify the confidentiality orders in the instant case. It is clear, however, that the strong public policy set forth in Nevada's Constitution (item (a) in the Barron factors) fully supports this court's decision to entertain Petitioner's writ petition under order of confidentiality. In short, it would have been unthinkable for this court, having provided for confidentiality in the ARID as required by the Nevada Constitution, and also having adopted a rule allowing a respondent judge to challenge the jurisdictional validity of interlocutory Commission orders, to advise the judge that his or her jurisdictional challenge caused the forfeiture of confidentiality vouchsafed by the Nevada Constitution.
Perhaps the most alarming aspect of the dissenting justice's dissent is her willingness to accept the validity of her lone dissent on this subject as a basis for virtually promoting disobedience to the lawful orders of this court. Indeed, she totally fails to realize that even if her erroneous view on the constitutional validity of this court's orders were correct, until such orders are modified, they are to be obeyed. See Matter of Krynicki, 983 F.2d 74, 78 (7th Cir. 1992) ("The confidentiality order is effective until modified; the collateral bar doctrine requires litigants to obey invalid orders while they are outstanding") (citing Pasadena Bd. of Educ. v. Spangler, 427 U.S. 424, 439-40 (1976)). And, in deference to her own opinion in dissent, she concludes that "[w]e all have more important things to do" than to investigate the source of the violation of our orders of confidentiality. Moreover, using an intuition we have cause not to share, she opines that any such investigation would be futile.
Sadly, the dissenting justice does not seem to comprehend or appreciate the extent of the damage inflicted upon the judicial branch of government as a result of the unlawful, unethical violations of this court's orders of confidentiality. Public confidence in the integrity of the judiciary is essential to the effective dispensation of justice by the third branch of government. Although we heartily agree that instances of demonstrated judicial corruption, misbehavior or unethical conduct should be made known to the public, at no time in the instant case has there been a proper basis for concluding that such misconduct exists. It most certainly has never been the jurisdictional prerogative of this court to determine whether, or to what extent, Petitioner Whitehead has been guilty of misconduct, or to place any form of label on the charges asserted against him both within the proce dures of the Commission and the news media. Indeed, we strongly disapprove of the dissenting justice's inappropriate characterization of the allegations against him as "serious judicial misconduct." The jurisdiction for determining whether, in the first instance, there has in fact been misconduct of the nature alleged, and, in the second instance, the "seriousness" of that conduct rests exclusively with the Commission. Moreover, one must question the bona fides of our colleague's characterization of Petitioner Whitehead's alleged conduct when compared with the gravity of the misconduct appearing in each of the examples elucidated in Justice Springer's concurring opinion.
In any event, we are unable to view as anything other than most serious, the following injuries resulting from the unlawful, unethical violations of this court's lawful orders of confidentiality: (1) irreparable loss of public confidence in the integrity of this court and certain of its justices; (2) irreparable loss of confidence in the judiciary as a whole; (3) an arguably irreparable damage to Petitioner Whitehead and his entitlement to fundamental due process; (4) an enormous diversion of the scarce resources of this court; (5) a divisive and deleterious division of sentiment within the bench and bar based primarily on distortions of fact and editorial innuendo published by certain irresponsible media sources; (6) a significant waste of the public fisc necessitated by a purposely orchestrated, artificial attack on the propriety of what commenced as a simple writ proceeding; and (7) the capacity of this court to ameliorate the public animus artificially created by the confluence of the unlawful violations of this court's orders and certain cooperating media collaborators who now desire to use their power and influence to minify and excuse the above damage and prevent this court from performing its duty to see that the prospects for a reoccurrence are minimized. The afore-described list is by no means exhaustive. An expanded list could rightfully include the real threat to the independence of the judiciary of this state, a possibly tragic insult and intrusion on the form of respected federalism that should prevail in this nation, and a highly adverse impact on the quality and enjoyment of many lives.
Regrettably, we can neither agree with nor understand the dissenting justice's opinion that this court has "more important things to do" than attempt to either prevent or greatly minimize the prospects for reoccurrences of the extremely deleterious influences that have oppressed these proceedings. It is anomalous indeed to stress the importance of the Commission's being able to protect the public from conduct that would bring discredit to the judiciary, and then ignore misconduct that has unquestionably inflicted greater damage on the judiciary than perhaps all previous acts of individual misconduct combined.
We also need to stress, since we can speak only through our opinions, that the concerns expressed above are not about an unrighteous desire to promote judicial power. This court does not control the police power or the public treasury. Judicial power depends upon public confidence in the fair, sensitive, and meticulously honest use of that power. It is tragic, indeed, when forces are able to orchestrate, with apparent impunity, an unwarranted attack on the one branch of government that must maintain a justified public confidence in its ability to fairly and impartially dispense justice.
PART II: THE REAL ISSUES
A. THE ISSUES RAISED IN THE PETITION
Throughout these proceedings, former Commission counsel, on behalf of the Commission, have asserted that the "real issue" in this case is "whether the conduct of Judge Jerry Carr Whitehead violated the Code of Judicial Conduct." According to former Commission counsel, "every action" taken by Petitioner and his counsel has been designed "to deflect this Court's and the public's attention from the real issue — whether Petitioner has violated the Code of Judicial Conduct." Quite to the contrary, whether Judge Whitehead committed judicial misconduct is not now and never has been the issue in this original writ proceeding. Moreover, this court has never suggested that it would decide as a factual matter in this proceeding whether Judge Whitehead is guilty of misconduct, nor do we attempt to reach or resolve that question in this opinion. Such factual determinations are clearly the province of the Commission in the first instance.
Unfortunately, the Commission has refused to recognize that when the instant petition was first filed in this court on July 22, 1993, it presented this court with relatively noncomplex procedural and jurisdictional contentions of arguable merit. These issues primarily involved: (1) whether the Commission was acting without or in excess of its defined jurisdiction in proceeding to a probable cause hearing on a collection of twelve charges alleged in a complaint drafted by Special Deputy Attorney General Campbell; and (2) whether the Commission was proceeding against Judge Whitehead in a discriminatory manner that neither complied with the governing provisions of the Nevada Constitution and the ARJD, nor conformed to the procedures applied to other judges involved in disciplinary proceedings before the Commission. Distressingly, however, these matters are no longer the only matters at issue. As the circumstances discussed below demonstrate, this proceeding has been unnecessarily prolonged and expanded from what otherwise would have been a simple, relatively uncomplicated proceeding, into a costly, deleterious, orchestration of issues surrounded by invective.
B. UNLAWFUL DISCLOSURES AND EXPANSION OF MATTERS AT ISSUE
Upon receipt and review of the instant petition, this court attempted to provide Petitioner and the Commission with a confidential forum in which the issues presented in the petition could be quickly resolved in accordance with the confidentiality provisions of the Nevada Constitution, article 6, § 21(5)(a) and ARJD 5-8. This decision was motivated not only by a desire to accord Petitioner his lawful entitlement to a fair and effective remedy in the event that his contentions proved to have actual merit, but also by a desire to provide constructive guidance to the Commission respecting the meaning of its rules and the conduct of its proceedings.
In the course of these proceedings, the confidential proceedings involving Petitioner both before the Commission and this court were unethically disclosed to the Las Vegas Review-Journal by anonymous sources. The source or sources of the disclosures not only blatantly disregarded the provisions of Nevada law requiring confidentiality, but also disregarded this court's orders specifically directing the maintenance of confidentiality. It is difficult for this court to perceive why the restraints that are placed on grand jury proceedings are acknowledged and respected, yet similar provisions for confidentiality prior to a finding of probable cause in the state constitution and rules applicable to Commission proceedings were not accorded the same treatment here. In any event, since then, the actions of this court have been continuously and inaccurately maligned by seemingly obsessed media outlets and others in an unrelenting public onslaught of Active accusations and speculation impugning the integrity of Petitioner and this court.
More specifically, in October 1993, a newspaper which enjoys the largest circulation in this state reported that it had learned from anonymous sources that this court had "secretly halted" the Commission proceedings against Petitioner. Public concern over "secret" court proceedings was further fueled when the Chief Judge of the Second Judicial District Court, who had also submitted to the Commission allegations of misconduct against Petitioner, apparently opined erroneously that there is no legal authority for filing a case in secret in the Nevada Supreme Court. Shortly thereafter, in an editorial, the same newspaper referenced above characterized this court's proceedings as "wrong, despicable, reprehensible and utterly obscene," and as "judicial terrorism and chicanery."
C. FURTHER ESCALATING EVENTS AND ACCUSATIONS
Almost simultaneously with the initial public disclosures, all seven members of the Commission reacted radically and defiantly to this court's order directing production of documents for this court's in camera review. In a letter addressed to the members of this court, the Commission adamantly refused to comply with the court's order. The Commission accused this court of having entered a "series of secret, illegal and void 'orders,'" and of attempting "to emasculate and usurp the separate constitutional powers of the Commission."
In November 1993, it was reported that the then President-elect of the State Bar of Nevada had commented that this court's actions were "outrageous," and had left the Discipline Commission "bound, gagged and constitutionally raped." Almost daily, the disinformation campaign continued unrestrained and reached a crescendo of sorts when, in December 1993, and January 1994, two malevolent editorial cartoons were published by this same newspaper — one depicting the Nevada Supreme Court as a psychopathic assassin of judicial ethics, and the other depicting the "Nevada Legal Community" as being held helplessly bound and gagged in the Nevada Supreme Court while thugs dressed in judicial attire executed a "mob hit" on "justice."
The attacks have not only been focused on this court. For having the audacity to file a petition in this court, alleging that for the second time in recent years he has been subjected to the Commission's blatant violation of his rights under the ARJD and the Nevada Constitution, Petitioner has been publicly and relentlessly vilified in the media and accused by the Attorney General — this state's highest law enforcement official acting in the capacity of Commission counsel — of proffering an "endless series of false and baseless arguments" in a "ceaseless effort to obscure the real issue and to deflect any scrutiny of his conduct." Petitioner was also publicly accused by the Attorney General of having made "gross misrepresentations of fact," of "smearing others in order to try desperately to save himself," and of going "around and above the law." See Whitehead III, 110 Nev. at 906-07 n.9, 878 P.2d at 933-34 (1994) (Springer, J. concurring). In papers more recently filed in this court, Petitioner's arguments have been further characterized by former Commission counsel as "utterly bizarre and irrational." These papers even go so far as to assert that Petitioner's counsel apparently "feel secure in the belief that this Court has granted them a special dispensation to make any allegation they like, no matter how reckless or defamatory."
We acknowledge that the rhetoric on all sides in this proceed ing has often approached or exceeded the bounds of professionalism and propriety. It is also true that the Attorney General's actions in this matter have not escaped condemnation by this court, as well as the media. Unquestionably, however, Petitioner has borne the brunt of the unfair and irresponsible publicity. More importantly, it is of the utmost concern to this court that unprecedented, inaccurate, and misleading attacks based largely on unethical disclosures to the media from secret sources have irresponsibly inflicted inestimable damage to public confidence in the judiciary of this state. We suggest that contemplative and informed persons will understand the need for this court to respond to such pernicious, undermining attacks on the Nevada judiciary.
D. THE "WAR" IN NEVADA AND THE CRISIS IN PUBLIC CONFIDENCE
Fortunately, more responsible statements have been issued on behalf of the Board of Governors of the State Bar of Nevada and Officers of the Nevada District Judges Association. These entities have nonetheless recognized that this case has come to symbolize a crisis in public confidence in the judiciary of this state. Although we agree with this assessment, the reality is that the factual and procedural history of the proceedings in this court are not what they have been made to appear, and the crisis, although portrayed to the public as real, has little or no basis in fact or law. Rather, the crisis was manufactured, provoked and fostered by media accounts and premature, precipitous public comments. Many of these comments were solicited from outside legal ethi-cists who have exported views into Nevada that are based upon ex parte contacts and incomplete and inaccurate facts conveyed by unethical disclosures from anonymous sources.
In early November 1993, it became apparent to Petitioner that in the face of this media onslaught any pretense toward continued confidentiality would only further erode and damage his reputation and any prospects for a fair and impartial resolution of the allegations against him. Consequently, Petitioner sought and obtained permission from this court to respond publicly. Thereafter, it became equally apparent that former Commission counsel considered themselves engaged on the Commission's behalf in "a war" to be fought and tried not only in a judicial forum, but also in the media. The public controversy thus intensified. It continues unabated.
Under these circumstances, we have concluded that allegiance to the rule of law and our obligations under the Code of Judicial Conduct will not allow us to permit the misguided attacks on the independence and integrity of this court and this state's judiciary to go unopposed. In our prior three opinions in this matter, we have therefore attempted to correct many of the mischaracteriza-tions that have been conveyed to the public. We are not unaware of those who disapprove of the blunt candor of these previous opinions. Undoubtedly, there are also those who, notwithstanding the "war" described by the Attorney General, would prefer that we simply accept without comment the inaccurate invective directed at this court.
We also realize that no matter how heated, distracting, or unnerving the public debate becomes, it is the duty of the courts to review and decide controversial matters impartially, with as much dispatch and regard for principles of law and fundamental justice as can be expected from any human institution. In what is at best an imperfect judicial system, we fully ascribe to the principle that judges must ordinarily endeavor to accept with equanimity the inevitable criticisms and often personal, public attacks that are part and parcel of the profession to which we are committed. See Nevada Code of Judicial Conduct Canon 3B ("A judge shall not be swayed by partisan interests, public clamor or fear of criticism").
At the same time, however, we are enjoined by the Code of our profession to uphold the law, to promote improvements in the judicial system, to protect and foster respect and public confidence in the judiciary and to "uphold the integrity and independence of the judiciary." See Nevada Code of Judicial Conduct Canon 1; see also Nevada Code of Judicial Conduct Canon 2A ("A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"). As Canon 1 of the Code provides, the integrity and independence of the judiciary are "indispensable to justice in our society."
During this proceeding, perhaps more so than in any other in Nevada judicial history, the attention of this court, the public, and the bar has been focused on these fundamental precepts of judicial conduct. In many respects, and although it was not initially so, this proceeding and the issues we are now compelled to address implicate these fundamental concerns. We have therefore concluded that we would indeed be derelict if we did not at least attempt to disabuse this state's citizens of the orchestrated perception that this court was according favored treatment to Petitioner at the expense of an effective and vital judicial discipline system. Because this court as a general rule may address pending controversies only through its opinions, we have utilized the only available forum to accomplish that task.
E. THE THREAT TO A FAIR, IMPARTIAL, AND INDEPENDENT JUDICIARY
Additionally, the Commission, through its former counsel, has proclaimed that what is really at issue in this proceeding is nothing less than the People's right to "a fair and impartial judiciary." See, e.g., Commission's Supplemental Memorandum, filed March 17, 1994. We qualify this statement only by adding that it is also about the People's right to a free and independent judiciary. As the amicus brief recently submitted by the American Judicature Society accurately observes, this petition presents this court with a "classic conflict" between "a free and independent judiciary," and the "right and duty of the State through its disciplinary system to sanction judges who engage in improper conduct prohibited by applicable codes." Although we basically agree with the Society's characterization, we realize that the Society and other interested members of the public and the bar are not fully aware of all the facts and circumstances surrounding this case that demonstrate that, contrary to the intent of the ARJD, the Commission has been employing an ad hoc approach to judicial discipline so untethered to the provisions of the Nevada Constitution and the ARJD as to pose a very real and substantial threat to the right of our citizens to a fair, impartial, free, and independent judiciary.
The American Judicature Society also urges this court "to set out the broad ground rules governing the disciplinary process, much as it did in its February 18 opinion." Again, we agree that this court's definitive interpretation of the procedural provisions governing the Commission is essential to the proper resolution of this proceeding and to the continuation of an effective judicial disciplinary process in this state. This was a primary reason for this court's intervention in the first place. Moreover, in light of all that has occurred, and in view of our obligations under the Code of Judicial Conduct to promote and protect public confidence in the judiciary, we are also compelled to address many of the issues and problems that have stemmed from concerted and purposeful efforts to erode public respect for the court and these proceedings.
F. UNIFORM PROCEDURES
As we previously noted in Whitehead II, the Attorney General, on behalf of the Commission, has further asserted that "[w]hat is at issue is whether there is one set of rules for some people and another set of rules for others." Id. at 421, 873 P.2d at 972. In part because of facts and circumstances that became known to the members of this court prior to the filing of the instant petition, involving separate Commission proceedings against another judge previously identified in Whitehead II as "Judge D," the Attorney General unknowingly, but accurately, described what has indeed been one of the foremost concerns of this court since the moment the instant petition was first filed. 110 Nev. at 418, 873 P.2d at 970.
At the time Petitioner filed the instant petition alleging that the Commission was exceeding its jurisdiction and was not complying with the Nevada Constitution and the ARJD, this court had already been apprised, by a well-respected district judge that in the proceedings involving "Judge D," the Commission had functioned without regard to the Commission rules or the Nevada Constitution. It further appeared to at least certain members of this court, and now a majority of this panel, that the Commission proceedings against Judge D were not only conducted without regard to the ARJD, but that the apparently unlawful procedures applied by the Commission in Judge D's case were remarkably dissimilar from the allegedly unlawful procedures which were the subject of the instant petition. Thus, although the Attorney General's pronouncement quoted above was obviously a missive aimed at the proceedings in this court, our initial decision to intervene and stay the Commission proceedings against Petitioner was motivated in major part by the realization that the Commission was proceeding against accused judges on an ad hoc basis with little or no regard for adherence to the governing provisions of the Nevada Constitution or the rules adopted by this court for Commission proceedings. Unfortunately, this proceeding soon escalated into the "war" described by Del Papa because those— including the Attorney General and certain of her staff — who were aware that the Commission was functioning on an ad hoc basis, were unwilling to admit that fact forthrightly and to assist this court in resolving the problem in a responsible and professional manner. It is therefore necessary for us to explain in some detail the irrefutable evidence demonstrating that the Commission has applied "different rules depending on who you [the respondent judge] are."
PART III: THE COMMISSION'S AD HOC APPROACH
A. OBJECTIONS OF COUNSEL
Before discussing the evidence establishing that the Commission has been proceeding against accused judges without regard to the provisions governing Commission procedures and on an individual, ad hoc basis, we first address certain objections tendered by former Commission counsel, Special Deputy Attorney General Donald Campbell. At the oral argument conducted on May 20, 1994, Campbell objected to this court's consideration of this evidence on the ground that it was not evidence of record. We reject Campbell's objections.
First, the Commission itself formally focused this court's attention on the procedures applied to Judge D and on the issue of whether the Commission has been proceeding against all judges in a uniform manner. See Commission's Motion for Reconsideration of Confidential Order, filed October 12, 1993, at 3. Specifically, this motion, which was signed by Campbell and other former Commission counsel, represented that the Attorney General had "in other cases, at the request of the Commission, investigated judicial discipline complaints," and that "[t]his procedure [used in Judge Whitehead's case] has been routinely followed by the Commission in many cases, including the public censure of [Judge D], with the approval of all members of the Commission, including Supreme Court Justice Cliff Young." Id. (Original emphasis). Thus, the Commission itself tendered the issue of whether the Commission was applying the same procedures in Petitioner's case, as had been applied by the Commission in other cases including Judge D's case. Under these circumstances, the Commission should not now be heard to complain of this court's consideration of evidence clearly refuting the Commission's claims of uniform, consistent application of its procedures.
Second, in this proceeding, Petitioner has invoked this court's original jurisdiction. Thus, the record in this case includes the record that is created in this court. Although it is true that this court does not ordinarily act as a fact-finding tribunal, see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981), and review, consider, or rule upon admissibility of evidence in the first instance, "[t]he procedure in original cases is flexible." See Robert L. Stern, Appellate Practice in the United States 10 (2d ed. 1989). We are of the view that especially where, as here, the relief sought in this court can only be obtained in the context of an original Supreme Court proceeding, this court may consistently with its prior precedents consider important matters of relevant evidence when that evidence is supported by sufficient indicia of authenticity and reliability, and when its consideration "may possibly make clearer than might otherwise appear, the factual and legal situations involved, to the end that correct determinations may be accomplished." See Bowler v. Vannoy, 67 Nev. 80, 87, 215 P.2d 248, 252 (1950) (discussing this court's consideration of evidence in original mandamus proceeding).
B. JUDGE D
In Whitehead II, we referred briefly to the Commission's disciplinary methodology concerning Judge D. In this opinion we will dwell at length on that methodology to illustrate the stark contrast between the procedures followed by the Commission with respect to Judge D and Judge Whitehead. We will also demonstrate by references to documents in this court exactly why this court has been seriously concerned at the lack of consistency and adherence to rules by the Commission.
The true name of Judge D and the complaining judge — the judge who brought the initial Commission complaint against Judge D — will remain anonymous in this opinion because the Commission never returned a finding of probable cause, and no formal statement of charges against Judge D was ever filed with the Commission. See ARJD 16 (confidentiality ceases only after a finding of probable cause and the filing of a formal statement of charges); see also ARJD 5(1). The matter should have remained confidential until there had been a finding of probable cause and the filing of a formal statement of charges as a public document. We nevertheless realize that interested parties may ascertain the name of the respondent judge from press releases issued by the Commission.
The procedural facts discussed herein regarding the Commission proceedings involving Judge D were first revealed to the members of this court in a letter addressed to the members of this court from the well-regarded district judge who filed the initial complaint concerning Judge D's conduct with the Commission. Later, in a court conference held on July 8, 1993, where the complaining judge's letter to the justices was discussed, this court's representative on the Commission elaborated on the complaining judge's description of the procedures that the Commission had applied in Judge D's case. These facts were later memorialized and discussed in a lengthy memorandum prepared by Justice Steffen and circulated to all justices of this court. The memorandum was dated and circulated on July 23, 1993, one day after Justice Steffen first entered the stay order in the instant proceeding. As members of this court's staff will attest, the memorandum was prepared by Justice Steffen well prior to the time the instant petition was filed and before any member of this court, other than Justice Young, who sits on the Commission, had any knowledge of the investigation and proceedings against Judge Whitehead.
Two major points must be emphasized with respect to the contrasting procedures applied by the Commission in the matters involving Judge D and Judge Whitehead. First, after receiving a sworn complaint against Judge D, the Attorney General investigated the matter and obtained numerous (reportedly approximately thirty to forty) written, signed statements from percipient witnesses against Judge D. Thereafter, a probable cause hearing was scheduled and Judge D was provided copies of the complaint and all of the statements of the complaining witnesses, thus providing Judge D the identity and statements of all of the potential witnesses against him to enable him to prepare for the probable cause hearing. Although the complaining judge understood that Judge D was entitled to receive the names and statements of the witnesses against him in order to prepare for the probable cause hearing, see ARJD 14(5), the Commission can-celled that hearing and entered into a plea bargain with Judge D, a procedure that the complaining judge recognized as a deviation from Commission rules.
In clear contrast, the Commission has maintained on numerous occasions that Judge Whitehead is not entitled to information concerning the identity of witnesses against him, and the contents of their statements. The Commission contends that such disclosure: (1) would have a chilling effect on potential witnesses who cooperate in a Commission investigation; and (2) would have an adverse impact on the ability of the Commission to function effectively and in accordance with its constitutional responsibilities. The following statements illustrate these oft-repeated themes stated by the Commission and former Commission counsel as to why it must deny to Petitioner Whitehead the names of witnesses who would testify against him:
1. "The [Commission's] letter of October 14, 1993, was prompted by the Commission's concern for maintaining the confidences of cooperating witnesses, a confidentiality which had been guaranteed on behalf of the Commission by its special counsel, and was further prompted by the Commission's concern for maintaining the integrity of the judicial discipline process."
2. "The Commission's desire to protect the confidentiality of privileged material, the confidences of witnesses, and the integrity of its discipline proceedings, formed the bases for filing the Commission's Motion for Reconsideration and issuing the Commission's letter of October 14, 1993."
3. "The confidentiality promised to the witnesses interviewed in this matter is of critical importance in the opinion of the Commission members and counsel. The Commission's inability to ensure that the confidences of witnesses are preserved will severely jeopardize the Commission's ability to function effectively. Such impairment of the Commission's function will have a real and appreciable impact upon the fundamental right of Nevada's citizens, guaranteed under the V. S. Constitution, to a fair and impartial judiciary. "
4. "The initial confidentiality of judicial discipline proceedings, which is provided for in the Nevada Constitution and the ARJD, exists with equal force for the benefit of witnesses and complainants."
See Commission's Petition for Rehearing or in the Alternative Motion for Amendment of Opinion (received by the court on March 8, 1994; emphasis added).
The following representations were also made by former Commission counsel:
1. "It is further suggested that the in camera inspection [of Commission materials relating to Petitioner Whitehead] will violate federally protected civil rights, including privacy and liberty interests of individual witnesses."
2. "An important purpose for the protection afforded the Commission's papers is to encourage filing complaints and to avoid intimidation of witnesses."
3. "Confidentiality encourages the filing of complaints and the willing participation of citizens and witnesses by providing protection against possible retaliation or recrimination."
4. "This rule of confidentiality has been continually applied to prohibit the judge who is the subject of the investigation from obtaining this information, for to rule otherwise would impair the Commission's ability to conduct an investigation upon receipt of complaints."
5. "Disclosure of the Commission's papers will bring about the very harm the Constitution and Commission rules were intended to prevent, i.e., a chilling effect on the free flow of information that the Commission must have in order to receive information from citizens without fear of reprisal."
See Motion For Reconsideration Of Confidential Order, filed with this court on October 12, 1993 (emphasis added).
Thus, although the Commission contends that it would have a devastating, chilling effect on the work of the Commission if Judge Whitehead obtained the names and statements of the witnesses against him, the exact opposite occurred with respect to Judge D who received all such names and statements. Moreover, the investigation against Petitioner was occurring during the same time period as the investigation and proceedings against Judge D. It is therefore apparent that one set of rules applied to Judge D, and a different set of rules applied to Petitioner Whitehead. Obviously, the Commission did not believe that divulging the names and statements of adverse witnesses to Judge D would cripple and chill the Commission's capacity to fulfill its constitutional duties. However, as noted above, and in stark contrast to the contemporaneous proceedings against Judge D, the Commission now insists that it would be crippled and rendered ineffective if Petitioner Whitehead were to receive the names and statements of the adverse witnesses to enable him to prepare for a probable cause hearing. Moreover, it is patently clear, as noted previously, that former Commission counsel have deliberately misrepresented to this court, to certain cooperating legal ethicists and, consequently, to the media, that keeping the identity and statements of witnesses confidential from accused judges "has been [a] continually" applied Commission practice.
The second major difference between the proceedings against Judge Whitehead and Judge D is that the Commission or its former counsel (the Attorney General) obviously concluded that Judge D was actually entitled, pursuant to ARJD 14(5), to the names and statements of the witnesses against him. With respect to Petitioner Whitehead, however, the Commission has taken the diametrically opposite position that "[disclosure of the Commission's papers will bring about the very harm the Constitution and Commission rules were intended to prevent, i. e., a chilling effect on the free flow of information that the Commission must have in order to receive information from citizens without fear of reprisal." The complaining judge in Judge D's case also expressed grave concern over retaliation by Judge D against all the witnesses now known to Judge D because the Commission cancelled the probable cause hearing and entered into a confidential plea bargain with Judge D. The Commission and the Attorney General evinced no concern regarding an impediment to the free flow of information and the prospect of reprisal or retaliation in the case of Judge D, but grave concern about such issues in Petitioner's case. Why?
Another interesting difference between the attitudes of the Commission and the Attorney General concerning Judge D and Petitioner is that the Commission was highly deferential to the cost involved in holding a probable cause hearing in the case of Judge D but has expressed a willingness to break the bank in its investigation and pursuit of Petitioner. The explanation concerning the former as opposed to the latter does not wash, and will undoubtedly warrant additional investigation in order to reach the truth of the matter. It should be apparent, however, why this court is so concerned about the possibility of selective prosecution or discrimination when the Commission is in a position to bestow favors upon certain judges and inflict what may appear to be inordinate punishment and abuse upon others through the simple expedients of secrecy and disregard of its own rules.
We are also gravely concerned about the contemporaneous investigative procedures utilized in Judge D's case as opposed to those employed in Judge Whitehead's case. Witnesses interviewed by a member of the Attorney General's staff with respect to Judge D gave written, signed statements which were made available to Judge D in order to enable him to prepare for a probable cause hearing in accordance with ARJD 14(5). Special Deputy Attorney General Campbell, on the other hand, interviewed witnesses and simply memorialized their statements without having the witnesses either write out the statements or sign them. Thus, through the simple expedient of methodological change, the Commission provided Judge D with the names and statements of all witnesses against him, while contemporaneously building a stone wall before Petitioner Whitehead under the heading of "confidential work product." The Commission then represented to this court that the investigative methods of the Commission concerning Petitioner have been consistent with its other investigations. This type of disparate treatment cannot be tolerated under any system claiming deference to concerns of due process and impartiality.
C. JUDGE STRINGFIELD
Judge Stringfield is mentioned by his true name only because he expressly permitted the use of his name and example in providing his affidavit to Petitioner's counsel. See Whitehead II, 110 Nev. at 416, 873 P.2d at 968. Unfortunately, Judge Stringfield also bore the brunt of the Commission's functioning in disregard of its own rules. It is clear from the Commission's own pro forma instruction sheet, provided by the Commission to the complaining judge in Judge D's case, that the Commission realizes that "[ajfter the preliminary investigation, the Commission
must either dismiss the matter or order a hearing." (Emphasis added.) The genesis of this requirement is the Nevada Constitution. See Nev. Const, art. 6, § 21(7) ("The commission shall, after preliminary investigation, dismiss the matter or order a hearing to be held before it"). Simply stated, Judge Stringfield did not receive the benefit of either a dismissal or a probable cause hearing. Instead, as described in some detail in Whitehead II, Judge Stringfield was subjected to the wisdom of the Commission administered in secret and without reference to its own rules.
D. CONCLUSION
Other complaints against judges filed with the Commission have also been resolved by the Commission in an informal, ad hoc manner, with accused judges issuing public apologies, simply acknowledging misconduct occurred, or agreeing to some sort of probation supervised by the Attorney General. For example, in the February 1994 edition of the Commission's recently created Newsletter disseminated statewide to all Nevada judges, the Commission has indicated, inter alia, that one matter was "closed" after a judge acknowledged the improper use of judicial stationery, and that one complaint was "[pjending successful completion of stipulated probationary period." Although there are other examples, we are reluctant to discuss their details in this opinion. Suffice it to say that further examples could be cited which provide strong support for concluding that the Commission has extensively engaged in proceedings that violate its own rules through ad hoc, case-by-case decision-making.
Indeed, the proceedings involving Judge D and Judge Stringfield, though necessarily discussed, are explored reluctantly in this opinion. We are constrained to do so, however, in order to demonstrate that, from the outset of these proceedings, this court has had serious concerns over the manner in which the Commission has been functioning. Although we had initially hoped to resolve these concerns by simply interpreting the Com mission's rules without undue embarrassment to the volunteer citizens who sit on the Commission, as discussed above, subsequent events and accusations regarding the motivations of this court have foreclosed that course. Moreover, we have referenced the events and procedures involving Judge D to demonstrate that it was never the purpose or intent of this court to in any way diminish the ability of the Commission to function effectively. It has, however, become clear to this court that the Commission has been functioning with little regard for its own rules, thus creating a strong potential for unfair, disparate, and even political resolutions of discipline matters coming before it. It is also painfully clear to this court with respect to the instant proceeding, that certain undisclosed parties have started a fire where none existed, and have taken special pains to fan the flames.
The framers of article 6, § 21 of the Nevada Constitution determined, and the Legislature and the people agreed, that complaints coming to the Commission must, after preliminary investigation, either be dismissed or the Commission must schedule a hearing. As we previously noted in Whitehead I, 110 Nev. at 145-47 n.15, 869 P.2d at 806-07, in submitting the draft rules which were the precursors of the ARJD now in effect, the Study Committee appointed by this court to evaluate Commission procedures stated, among other things:
To this end [providing due process and prompt open disposition of legitimate charges], they [the proposed new rules] are designed to foreclose the Commission from secret, inquisitorial processes which result in ad hoc decisions neither related to nor tethered by principle.
We also noted that the Study Committee had uncovered past Commission abuses under the old Revised Interim Rules wherein "[p]lanned selective leaks resulted in giving inaccurate and unreliable information to the public, which incited public furor and unjustifiably damaged the reputation of a judicial officer who was never even charged." Id.
The Commission has consistently maintained that it has been conducting its proceedings against Judge Whitehead in the same manner that previous proceedings were conducted against Judge Goldman. See, e.g., Whitehead I, 110 Nev. at 147-48, 869 P.2d at 807. Although this court found no evidence of abusive Commission practices in the Commission proceedings involving Judge Goldman, see, e.g., Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 830 P.2d 107 (1992), we again emphasize that the proceedings against Judge Goldman were conducted under the old Revised Interim Rules.
The Study Committee found that the old Revised Interim Rules were "vague, lackfed] checks and balances, [and] incorporate[d] no adequate sanctions to deter misconduct by individual commission members." The Study Committee further identified a number of abusive practices by the Commission operating under the old Revised Interim Rules. Nevertheless, the Commission has apparently acknowledged that it has been conducting its proceedings against Judge Whitehead in accordance with rules that are no longer in effect, and under which past abuses occurred, rather than in accordance with the current rules which were specifically designed by the Study Committee to correct past abusive practices and provide procedures that are "accusatory rather than inquisitorial, open rather than closed, and accompanied by due process formalities . . . rather than loose, unstructured and informal." Whitehead I, 110 Nev. at 145-47 n.15, 869 P.2d at 806 (quoting Report of Study Committee, ADKT 38 at 8). [Headnote 11]
Needless to say, this court may not justify an ad hoc approach to judicial discipline no matter how well-intentioned and benevolent the Commission's actions may be. A constitutional body having the power of life or death over a judge's future may not be allowed to disengage itself from its own rules and the Nevada Constitution. There are judges and attorneys on the Commission who must know that if they desire additional options or powers beyond those accorded the Commission under law, they must resort to lawful processes of amendment rather than an abandonment or disregard of existing law.
The noted French philosopher, Voltaire, stated: "That sovereign is a tyrant who knows no law but his own caprice." Even good people with substantial power over the lives of others may become instruments of tyranny by functioning according to caprice rather than law. In marked contrast to the instant proceedings, each of the above examples of the Commission's disciplinary activities regarding other judges is characterized by Commission secrecy, thus making it impossible for the public or this court or any other group to know whether the discipline was warranted, whether it was too harsh, too lenient or whether the Commission even had jurisdiction to entertain it.
Neither the Commission nor this court is free to disregard what is mandated by the constitution and the Commission's rules. In none of the above examples, however, did the Commission either simply dismiss the complaint or schedule and hold a probable cause hearing. As a result, the Commission placed certain judges on probation to the Attorney General, required mediation or special reporting and monitoring, required public apologies or simple acknowledgements of guilt without any deference to the mandates of the constitution and its own rules. In no instance was there a finding of probable cause and a subsequent public filing as mandated by the Commission's rules. Thus, in each case with the exception of Petitioner Whitehead, full public disclosure never occurred because no hearings were held to determine the issue of probable cause.
In this opinion it is also necessary to dispense with the argument that under ARJD 31, the Commission may impose secret discipline, as occurred in the proceedings involving Judge D and Judge Stringfield, by the simple expedient of confronting a judge and giving him or her the option of consenting to a negotiated or unilaterally imposed form of discipline, thereby avoiding the prospect of a probable cause determination with its resultant notoriety as required by the public filing of a formal statement of charges. ARJD 31 provides:
Upon written consent of the respondent, the commission may order the respondent's censure, removal or retirement at any stage of the proceedings and this order takes effect immediately. A certified copy of the order must be filed with the clerk of the supreme court and a copy of the order must be served on the respondent.
It is important to note that ARJD 31 is contained in Section V of the ARJD, the section entitled: "PROCEDURE AFTER FINDING OF PROBABLE CAUSE." ARJD 31 was never intended to be an escape hatch through which the discipline system could be manipulated to favor or disfavor respondent judges based upon any number of considerations that could impact the ultimate vehicle selected by the Commission to either provide or avoid public knowledge of the full extent of the Rule 11 charges against a respondent judge. Nor was it intended as a means of intimidating judges to accept a form of discipline where the Commission may realize that Rule 11 violations could never be proved in a probable cause hearing. Simply stated, under the existing rules, Rule 31, appearing in Section V (PROCEDURE AFTER FINDING OF PROBABLE CAUSE), cannot be read to authorize the imposition of secret discipline because an order of censure, removal or retirement, even if consented to by the respondent judge, must be preceded by a finding of probable cause and the filing of a formal, public statement of charges. See ARJD 15; 16. Thereafter, the Commission may enter a Rule 31 public order of censure, removal or retirement and file a certified copy of the order with the clerk of this court as required by the rule. The rules contemplate that, in all cases where probable cause to proceed to a formal hearing is found, a public, formal statement of charges will be filed, and a public order of discipline will be imposed where the Commission ultimately concludes that discipline is warranted. Thus, under the ARJD, the public will be properly apprised of the Commission's decisions, and the Commission will be held accountable to the public for its actions.
In contrast to the secrecy accorded to past Commission proceedings, in Petitioner's case, his alleged misconduct has been trumpeted from the mountain tops by the media, fed by unethical, anonymous allies. The Commission, specifically charged as guardians of confidentiality until a finding of probable cause, has actually opposed efforts by Petitioner to discover and hold accountable the source of the unlawful disclosures. The Commission's incredible opposition to discovery of the leaks has been facilitated and encouraged by former Commission counsel.
At least in spirit, the Commission and former Commission counsel have contumaciously displayed either an indifference or, more aptly, a hostility to this court's three-judge order of July 30, 1993, which ordered, in part, that "[t]he Commission and all persons purporting to act pursuant to its authority shall maintain strict confidentiality concerning the proceedings below, and shall maintain the confidentiality of this proceeding before this court."
By virtue of the disparities, attitudes and actions discussed above, we conclude that Petitioner has been treated in a manner altogether different from the manner in which other judges have been treated by the Commission in the past. It is essential that this court take measures to prevent future such occurrences and to assure that Petitioner not be left as an incidental casualty of a failure to proceed in a uniform manner in accord with the assurances of due process provided by the ARJD. In the discussion which follows, we set forth the reasons that this court has also concluded that the Commission has not proceeded against Judge Whitehead in a manner consistent with the meaning and intent of specific provisions of the Nevada Constitution and the ARJD governing the Commission's jurisdiction and procedures.
PART IV: JURISDICTION AND PROCEDURE
We now turn to the question that these proceedings were originally undertaken to address, namely, whether in entertaining the charges against Judge Whitehead and in following the procedures employed in this matter, the Commission has exceeded its defined jurisdiction. We conclude that the Commission has exceeded its jurisdiction and has failed to proceed in accordance with the meaning and intent of the applicable provisions of the Nevada Constitution and the ARJD.
In Whitehead I, this court held that questions concerning Commission jurisdiction (as with similar issues relating to Nevada's district courts and other governmental entities) are subject to this court's review through the traditional procedures for interlocutory writs. Specifically, this court stated:
We regard the Commission as being a constitutionally established "court of judicial performance and qualifications," whose functions, as defined in the "Judicial Department" article of Nevada's Constitution, are essentially of the same fact-finding and law-applying nature that the state Constitution assigns to the District Courts of this State. The Commission's constitutionally-assigned functions do not include defining what constitutes ethical-wrongdoing any more than the District Courts may make authoritative pronouncements as to what conduct constitutes crimes or civil torts. Like the District Courts, the Commission is not free to define its own procedures; however, it certainly would receive an attentive hearing if it ever requested this court to amend some rule we have promulgated, as the District Courts occasionally do. Absent such an amendment, the Commission is obligated to accept and apply both the substantive rules of conduct and the rules of procedure as they are stated by this court, however much Commission members or a prosecutor presenting evidence to them might disagree with the rules in any given case. This is not to say, of course, that the Commission is subservient to this court, any more than are the District Courts; rather, we are saying that the Commission must faithfully perform its constitutionally-assigned functions in the judicial disciplinary process. When it appears that the Commission is being caused to stray outside its jurisdiction, as defined in the substantive or procedural rules we have adopted pursuant to constitutional mandate, the Commission members are no less subject to having their actions subjected to interlocutory judicial review than are judges of the District Courts.
110 Nev. at 160 n.24, 869 P.2d at 815.
The basis for our conclusion that the Commission is proceeding in excess of its lawful jurisdiction is readily seen by reference to the ARJD. Again, we emphasize that this court adopted these rules in 1988 in an effort to correct serious problems which had manifested themselves throughout the history of the Commission, by providing more specific safeguards for due process and greater assurances of professional responsibility on the part of the Commission members and attorneys serving as prosecutors. In direct response to various disturbing occurrences, the ARJD were formulated to address "unwholesome, un-American" practices that an extensive study persuaded us could no longer be tolerated. Id. at 145-47 n.15, 869 P.2d at 806-07.
The Study Committee that recommended adoption of the present ARJD was very much concerned that, prior to the enact ment of the new rules, the Commission appeared to have been "proceeding on the assumption that they were possessed of unbridled discretion to formulate and act upon their own notions of appropriate judicial conduct without reference to established norms." As discussed above in Part II, in the present case we see a resurgence of this kind of thinking and observe in the Commission's judicial discipline proceedings the kinds of activities that the new rules were intended to obviate. It is the current ARJD, adopted to correct the improper proceedings by the Commission in the past, to which we must refer in resolving the jurisdictional issues raised by Judge Whitehead's petition.
In contrast to judicial discipline systems in some jurisdictions, the system that has been established in Nevada under the current ARJD is accusatory rather than inquisitional. The Study Committee stated in its initial report to this court:
Proceedings [under the proposed new rules] would be: accusatory rather than inquisitional, open rather than closed, and accompanied by due process formalities (e.g. specific accusations, right to challenge biased Commission members) rather than loose, unstructured and informal. [ADKT 38] at 8.
Initial complaints, in writing and under oath, must state specifically the nature of the offense (e.g., violation of a section of the Code of Judicial Conduct) and the specific acts which constitute the offense. Id. at 10.
Potential injustice is foreclosed [in the new rules] by clearly defining the basis of the complaint and by requiring the charges to be reduced in writing and attested to by an identified complainant. Id. at 11.
See Whitehead I, 110 Nev. at 145-47 n. 15, 869 P.2d at 806-07 (quoting Study Committee Report submitted in ADKT 38). With these fundamental principles in mind, we proceed with an analysis of the specific procedures followed by the Commission in the proceedings involving Judge Whitehead.
A. THE "COMPLAINT SEEKING DETERMINATION OF PROBABLE CAUSE"
Petitioner Whitehead contends that the Commission lacks jurisdiction to proceed to a probable cause hearing on the basis of a complaint or charging document styled: "Complaint Seeking Determination of Probable Cause" (the Campbell Complaint), drafted by Special Deputy Attorney General Campbell and filed with the Commission on June 30, 1993. We agree.
The Campbell Complaint is invalid due to violations of the ARJD which are manifest on the face of the document. The Commission chairman has averred, in an affidavit dated August 10, 1993, that the Campbell Complaint is presently the "charging document, the evidentiary sufficiency of which must be established by special counsel at the probable cause hearing." Because the Commission's decision to proceed to a probable cause hearing is entirely based upon this complaint and no other, the invalidity of the Campbell Complaint is sufficient in itself to justify the issuance of a writ prohibiting the Commission from proceeding to a probable cause hearing on the basis of the Campbell Complaint. The Commission, of course, has no jurisdiction to proceed on the basis of an invalid complaint.
The Campbell Complaint must be rejected for four reasons: First, Campbell did not sign the complaint under oath as required by ARJD 12(1). Second, ARJD 12(2) does not authorize the filing of the Campbell Complaint. Third, no provision in the ARJD authorizes the Commission to utilize appointed counsel to initiate discipline proceedings by the filing of an initiating complaint or charging document. Fourth, because the Nevada Constitution and inherent conflicts of interest preclude the Attorney General from serving as counsel to the Commission, Special Deputy Attorney General Campbell's investigation and initiating complaint are not constitutionally authorized; and therefore, the Commission is barred from proceeding to a probable cause hearing on the basis of Special Deputy Attorney General Campbell's unconstitutional activities. Finally, we merely note that it is strongly arguable that the Commission was not constitutionally constituted at the time it voted to ratify and act upon the Campbell Complaint, another factor militating against its validity.
1. THE CAMPBELL COMPLAINT IS NOT MADE UNDER OATH, AS REQUIRED BY ARJD 12(1)
ARJD 12, entitled "Initiation of procedure," provides in subsection 1:
Except as provided in subsection 2, initial complaints of judicial misconduct must be made upon oath in writing and may be made by the person complaining. Such a complaint must contain facts which, if true, would establish grounds for discipline under these rules.
(Emphasis added.)
The Campbell Complaint is without question formally deficient because Campbell did not, as required by ARJD 12(1), sign his complaint under oath; therefore, the Commission has no jurisdiction to proceed on that complaint. ARJD 2(3) defines a "complainant" as the "one who signs a complaint filed with the commission." Campbell is the surrogate "complainant" here and the "one who sign[ed] [the] complaint;" but, aside from being an unauthorized surrogate who did not bring a complaint before the Commission, he did not sign it under oath as required by ARJD 12(1). Consequently, the complaint can be of no legal effect.
To be sure, Commission Executive Director Eve M. King, did append an affidavit to the Campbell Complaint attesting to the truth of the Campbell allegations. This is Campbell's pleading, however, and the verification statute, NRS 15.010, contemplates that where a pleading is verified "it shall be by the affidavit of the party.'" (Emphasis added.) Even a vain attempt to salvage the complaint by verification would have required the pleading to be verified by the complaining party, Donald J. Campbell. Except in cases of corporate or attorney verification, one person does not verify another's pleading. In any event, Campbell signed the complaint but did not swear to it, and King swore to the complaint but did not sign it. Thus, it is clear that the Commission may not proceed to the probable cause hearing on the basis of the Campbell Complaint which was not made "under oath" as required by ARJD 12(1). See State v. Judicial Standards Commission, 643 P.2d 210 (Mont. 1982) (supreme court issued writ of prohibition barring judicial discipline proceedings based on complaint of misconduct that was not verified in compliance with statute and Commission's own rule). Therefore, the Campbell Complaint does not conform to the clear intent of ARJD 12(1) to require charges "to be reduced in writing and attested to by an identified complainant." Whitehead I, 110 Nev. at 145-47 n.15, 869 P.2d at 806 (quoting the Study Committee Report).
2. THE CAMPBELL COMPLAINT IS NOT AUTHORIZED BY ARJD 12(2)
ARJD 12(2) provides:
In exceptional circumstances, in which the commission has substantial reason to believe that a complainant may in likelihood suffer untoward risk of embarrassment, harassment, or other detrimental consequences, the commission may on request, authorize its executive officer to sign and swear to a complaint on information and belief, in the complainant's stead.
(Emphasis added.) The affidavit of the Commission's Executive Officer Eve King appended to the Campbell Complaint is insufficient to justify a filing under the provisions of ARJD 12(2). Even if Ms. King were considered to be the complainant, it will be shown that she was not in compliance with the requirements of ARJD 12(2).
In order for the Commission to authorize its executive officer to "sign and swear" to a complaint under ARJD 12(2), some actual complainant must come forward and, after demonstrating exceptional circumstances, request the anonymity available under the rule. Before granting such a request, the Commission must have "substantial reason to believe" that the filing of a complaint in the actual complainant's own name, would cause the complainant "in likelihood [to] suffer untoward risk of embarrassment, harassment, or other detrimental consequences." See ARJD 12(2).
In the present case, there is not even colorable compliance with the rule. It does not appear that any request for protection was made by any actual complainant, that there was any substantial reason to believe that the actual complainant would suffer any untoward risks or that the Commission ever took any action which could be said to authorize the executive officer to complain in the true complainant's stead under ARJD 12(2). Certainly, it cannot be pretended that the executive officer signed the complaint to protect Judge Breen or former District Attorney Holmes, for they have been most prominent and vocal in publicizing their assertions about Judge Whitehead. Thus, the Campbell Complaint is not authorized by ARJD 12(2).
3. THE COMMISSION RULES DO NOT PERMIT THE COMMISSION, THROUGH COUNSEL, TO INITIATE PROCEEDINGS BY FILING ITS OWN INITIATING COMPLAINT
The Nevada Constitution commands this court to adopt appropriate rules for "[t]he conduct of investigations and hearings." See Nev. Const, art. 6, § 21(5)(c). As noted above, in furtherance of this constitutional mandate, this court adopted the current ARJD pursuant to the recommendations of a Study Committee that identified and extensively evaluated exigencies peculiar to Nevada's past experience demonstrating a clear necessity for a judicial discipline system in this state that is inherently accusatory rather than inquisitional.
The Nevada Constitution, article 6, § 21(7) provides that "[a]ny person may bring to the attention of the commission any matter relating to the fitness of a justice or judge." Under the accusatory system established by the rules, any such matter may be brought to the attention of the Commission by a person who files a complaint "upon oath in writing" containing "facts, which, if true, would establish grounds for discipline under these rules." See ARJD 12(1).
The Commission must consider all such sworn complaints "brought before it with a view to determining whether or not there exists sufficient cause to proceed to a probable cause hearing." See ARJD 14(1) (emphasis added). Where the Commission "determines that there is merit to the charges and that there is sufficient reason for a probable cause hearing," the respondent judge must be notified that he or she "is required to respond to the sworn complaint in writing . . . .''Id. (emphasis added). Thus, under Nevada's accusatory system, the Commission cannot proceed with either an investigation or a probable cause hearing until a sworn complaint has been filed. See, e.g., McKenney v. Commission on Judicial Conduct, 388 N.E.2d 666 (Mass. 1979) (Commission on Judicial Conduct has no authority to investigate alleged judicial misconduct until a complaint has been filed with it); Richter v. State Com'n on Judicial Conduct, 445 N.Y.S.2d 307 (N.Y. App. Div. 1981) (scope of commission investigation is limited to matters contained in complaint; commission was without power to require judge to testify on matters not mentioned in complaint); see also New York State Com'n on Jud. Conduct v. Doe, 459 N.E.2d 850 (N.Y. 1984) (subpoena duces tecum was modified to eliminate requests for information not reasonably related to subject matter under investigation; New York law was designed to prevent "investigatory fishing expeditions" and the Commission's receipt or filing of a complaint triggers Commission's authority to commence an investigation into judicial improprieties); Nicholson v. State Com'n on Judicial Conduct, 409 N.E.2d 818 (N.Y. 1980).
In addition, and in contrast to the systems in place in some other jurisdictions, this state's accusatory system only permits the Commission to proceed to an investigation and a probable cause hearing regarding matters stated in "sworn complaints" that are "brought before it," as opposed to complaints that the Commission may have produced on its own resulting from an investigation. The alleged misconduct in the "sworn complaint" is the subject matter of the Commission's inquiry into whether a probable cause hearing is warranted; it is also the subject matter of any actual, subsequent probable cause hearing where the existence of probable cause is in fact determined. See ARJD 15 (finding of probable cause must be based, in part, "upon the sworn complaint"). We again emphasize that a respondent judge notified of a probable cause hearing is required to respond in writing to the sworn complaint, and not to expanded charges unspecified within the sworn complaint. See ARJD 14(1).
The Commission proceedings based upon the Campbell Complaint have not conformed to the meaning and intent of these rules. Under the ARJD it is not the function of the Commission to employ counsel to devise their own charges against members of the Nevada judiciary. The rules provide that initial complaints of judicial misconduct must be made upon oath and in writing. The rules presuppose that concerned citizens will be motivated to submit sworn factual complaints to the Commission and that the Commission will thereafter, under ARJD 14, consider such complaints when they are filed and determine whether they warrant proceeding to a probable cause hearing.
Instead of processing the Breen and Holmes complaints, the Commission allowed Campbell, in the role of a prosecutor, to file his own, new and superseding complaint based upon his own investigation and not on facts stated under oath by actual, identified complainants. The superseding Campbell Complaint is made up of "allegations" which he "culled" not only from the Breen and Holmes complaints, but from other sources which were then incorporated in the complaint "on information and belief." The twelve counts of misconduct alleged in the Campbell Complaint go beyond the specific allegations culled from the Breen and Holmes complaints. The Campbell Complaint alleges misconduct that is not asserted or encompassed within the Breen and Holmes allegations.
There is nothing in the ARJD that would authorize a Commission prosecutor rather than a sworn complainant to initiate proceedings against a judge. After a finding of probable cause, under ARJD 16, a public, formal statement of charges is prepared and filed by a special prosecutor appointed by the Commission; but before this time, proceedings must be initiated under ARJD 12 by a sworn complaint signed by a true, identified complainant and not by a prosecutor employed by the Commission.
In the instant case, however, Campbell filed with the Commission an entire complaint based not on facts known to him but on his information and belief as to what misconduct he believed Judge Whitehead had engaged in. Campbell's belief is stated to have been acquired by examining Commission files and by interviewing a number of unnamed witnesses. There are no affidavits or other statements from these witnesses, and the only information that was conveyed to Judge Whitehead by the Campbell Complaint was comprised of Campbell's own charges, prepared from what he had culled from the Breen and Holmes complaints and learned during his secret investigation of Judge Whitehead.
Usually, a complainant required by the ARJD to state facts under oath would be providing particulars stemming from the complainant's own personal knowledge. A fact (Latin, factum "thing done"), as used in this rule, will usually or preferably represent actions and conduct, "things done," that are known to the complainant, and not by some third party who was informed or believed that some facts exist that may constitute misconduct. For example, if Judge Whitehead were being accused by some lawyers of intimidating them by asking them why they had filed a peremptory challenge against him, one would naturally expect that the aggrieved lawyers would be the complainants and that they would be the ones who state facts showing the nature of the claimed intimidation. See SCR 202(2) ("A lawyer having knowledge that a judge has committed a violation of . . . rules of judicial conduct. . . shall inform the appropriate authority"); see also Nevada Code of Judicial Conduct Canon 3D(1); In re Hampton, 775 S.W.2d 629, 630-31 (Tex. 1989) (under Texas law, sworn presentments on personal knowledge were required to institute inquiry into judicial conduct).
Notwithstanding the natural expectation that an accused judge should be faced by actual accusers rather than by persons who had merely been told about alleged acts of misconduct, we nevertheless would supply a liberal construction to the rules and hold that a valid complaint may contain reliable hearsay information and need not be based on personal knowledge. See, e.g., McKenney v. Commission on Judicial Conduct, 388 N.E.2d 666 (Mass. 1979) (state law requiring complaint to be signed under pains and penalties of perjury does not require signer to have personal knowledge; however, lack of first hand knowledge could have bearing on whether complaint is worthy of investigation). Although usually complainants will be speaking from their own personal knowledge, reality dictates that flexibility be allowed in accepting hearsay aspects to a complaint, especially if the complaint appears reliable in other respects. A complaint based in part on hearsay might be adjudged adequate by the Commission if, for example, the dates, names and times relating to charged misconduct were in some way stated and made available to a respondent judge so that he or she would be in a position to answer to the charges. Proceedings run contrary to the ARJD, fairness, and due process when they are initiated by a complainant and then pursued by the Commission to a probable cause hearing on the basis of charges wholly uncorroborated by known fact, and supported entirely by hearsay, rumor or belief.
As required by ARJD 14, every complaint that is filed with the Commission is subject to an adjudication by the Commission of the merits of the complaint. Each complaint must be judged on its own merits, and in most instances an uncorroborated complaint based principally on rumor or hearsay would likely be rejected by the Commission as not being based on facts. On the other hand, a complaint which, although largely based on hearsay information, clearly gave the respondent judge specific notice of the nature of the charges, with names, dates and places, would probably be upheld. Our point is that the fairest and most reliable way to initiate proceedings for judicial discipline under the ARJD is to have a complainant who has actual knowledge of judicial misconduct come forward and state under oath facts which establish grounds for discipline; but still, the Commission might under certain circumstances proceed on complaints that did not meet this ideal, provided that fair notice was given to the judge of the nature of the charges.
The Campbell Complaint is comprised of allegations which Campbell claims to have culled from a variety of sources, including parts of complaints which he had eliminated and hearsay information which he had obtained from a number of unidentified witnesses whom he interviewed in a wide-ranging investigation of Judge Whitehead. When Judge Whitehead asked the Commission to provide him with information relating to the source of Campbell's information, it refused to do so. Accordingly, Judge Whitehead has been deprived, in some measure at least, of the names of his accusers and the nature of their accusations against him. If a sworn complaint is made up entirely of charges based on rumor and belief, and no corroborating evidence is discovered in a preliminary investigation, the Commission should rule, under ARJD 14(1), that "there is [no] merit to the charges." The mere inclusion of hearsay information in a proper, sworn complaint will not, of course, have any effect on the validity of the complaint if there is otherwise "sufficient cause to proceed."
As noted previously, prior to a finding of probable cause, the Commission is not authorized to hire a special prosecutor to investigate, expand upon, and supersede a sworn complaint "brought before" the Commission. The ARJD makes no provision for such a procedure; we therefore disapprove of this practice in the instant case.
However, as we discuss below, the Commission is, of course, permitted to conduct whatever "preliminary investigation" may be necessary in order to ascertain, under ARJD 14, whether the allegations of a sworn complaint have sufficient merit to warrant the scheduling of a probable cause hearing. Moreover, once the Commission has found probable cause to proceed, a more thorough investigation may be indicated in the prosecution of a formal statement of charges, but the preliminary investigation attendant to the initial complaint is primarily a screening device to prevent unfounded or capricious prosecutions from going forward and to determine whether the specific charges of the sworn complaint have sufficient merit to warrant a probable cause hearing on those charges. We therefore hold that the accusatory system established by the ARJD does not permit the Commission to initiate probable cause proceedings on allegations that have not been brought before it in a sworn written complaint by an identified complainant. The Commission, therefore, cannot proceed to a probable cause hearing based upon the Campbell Complaint.
4. THE COMMISSION MAY NOT PROCEED TO A PROBABLE CAUSE HEARING ON THE BASIS OF THE CAMPBELL INVESTIGATION AND COMPLAINT BECAUSE CAMPBELL WAS CONSTITUTIONALLY DISQUALIFIED FROM ACTING
As we held in Whitehead III, the Attorney General and her deputies are constitutionally disqualified from acting in the capacities in which they have served the Commission in the proceedings involving Judge Whitehead. 110 Nev. 874, 878 P.2d 913 (1994). We have held that the Attorney General cannot be the advisor to the Commission and at the same time appear before the Commission as a prosecutor; nor can the Attorney General be the Commission's probation officer. We cannot, so to speak, have the prosecutor in the jury room. Consequently, aside from all other considerations, the Commission must be prohibited from proceeding to a probable cause hearing based on Special Deputy Attorney General Campbell's investigation and complaint because he was constitutionally disqualified from acting in this proceeding, either as prosecutor or surrogate complainant.
5. THE NATURE OF THE UNDERLYING ALLEGATIONS OF MISCONDUCT
In view of the widespread public interest generated in these proceedings, and the Commission's expressed desire for some direction from this court, we believe it is proper to attempt to provide some guidance to the Commission regarding the nature of the charges that have been made in the Campbell Complaint, as well as in the Breen and Holmes complaints. Our analysis is intended to provide some insight to the Commission concerning the views of this panel in the event that the Commission conducts future proceedings against Petitioner or other judges who may have followed practices similar to the alleged practices of Judge Whitehead in peremptory challenge matters.
All but two of the charges in the Campbell Complaint and in the Breen and Holmes complaints relate to the manner in which Judge Whitehead routinely and openly deported himself in handling peremptory challenges. At the time all of the complaints were filed, peremptory challenges were governed by a version of SCR 48.1 which has since been amended to clarify the procedures formerly permitted by the rule. The "SCR 48.1" to which we refer in this opinion is the former, pre-amendment rule, the rule by which Judge Whitehead was bound. There is no suggestion in this record that Judge Whitehead at any time or in any way acted in violation of former SCR 48.1. There is nothing that suggests that Judge Whitehead performed any of his judicial functions in other than a frank and open manner; in fact, as stated in the Campbell Complaint, Judge Whitehead freely discussed his peremptory challenge practices while instructing at legal seminars. Further, although Campbell charges Judge Whitehead with willful misconduct, there is no indication or charge that Judge Whitehead believed that there was anything irregular, much less ethically incorrect, about his administrative practices under former SCR 48.1. Finally, and quite significantly we think, the peremptory challenge practices out of which the Whitehead accusations arose are practices of a nature that apparently have been regularly engaged in by many Nevada judges for many years, in several departments of Judge Whitehead's own district and throughout the state.
The nature of the two kinds of charges levied against Judge Whitehead were succinctly described as applicable to multiple judges by Chief Judge Brent Adams of the Second Judicial District Court, Washoe County, in a letter to this court dated May 13, 1993. Chief Judge Adams identified "two specific problems which have been the subject of repeated complaints." First, wrote Judge Adams, "judges or their administrative assistants have contacted lawyers ex parte inquiring why a peremptory challenge was made." Second, the "other problem has been designation by the preempted judge of the new presiding judge." All but two of the charges in the Campbell Complaint relate to Judge Whitehead's manner of administering SCR 48.1 and either to (1) his having contacted lawyers or parties "inquiring as to why a peremptory challenge was made" or (2) his procedures in the "designation . of a new presiding judge."
The ambiguity and uncertainty inherent in former SCR 48.1 and its statutory predecessor, NRS 1.230, have over the years led to a certain amount of disagreement among judges and lawyers. This reality was well-described in a letter written to the chief justice on May 18, 1993, from Richard Horton, a veteran trial lawyer. In his letter, Mr. Horton referred to the May 13, 1993, Adams letter and stated that he wished to add "his voice to that of others that we do need and for many, many years have needed the proposed rule change to discourage judges who have been challenged from questioning counsel about the challenge and from selecting the judge to then hear the case." Mr. Horton claimed to have had "more than enough personal experience with the situation to know that it is a serious and ongoing problem and has been for the 43 years I have been practicing." Mr. Horton supported the amendment of SCR 48.1: (1) to prohibit challenged judges from contacting parties or counsel, and (2) to eliminate the portion of the rule requiring challenged judges to appoint their successors. Following the recommendation of lawyers and judges and the Bar, this court amended SCR 48.1. On August 15, 1993, after reciting as a fact that SCR 48.1 presented "a problem or a potential problemf] [that] exists throughout the state," we amended the rule to resolve the disagreement among judges and "make it clear" that challenged judges should not contact challenging attorneys. (Emphasis added.) The amendment adopted by this court also changed the rule so that challenged judges would no longer be required or permitted to select their successors. See infra note 63.
In discussing the practice of judges, "throughout the state," who contacted lawyers, "inquiring" about peremptory challenges, we should first note that this long-established practice does not fit well into the category of "willful misconduct" on the part of any of the "offending" judges. It may be argued that these judges should have recognized that it was not good form to ask lawyers why they filed a challenge. After all, lawyers had the right to file a peremptory challenge without stating why they did it. However, judges who engaged in this "offending," but not uncommon, practice might advance a number of legitimate reasons for making such inquiries, and the mere contact, of itself, may not constitute misconduct. It should be remembered that once a timely challenge was filed under the former version of SCR 48.1, the challenged judge was no longer the presiding judge in the case and had "lost the power to do anything further in the case except to transfer the action to another judge." Sisson v. Georgette, 78 Nev. 176, 180, 370 P.2d 672, 674 (1962) (citations omitted). Thus, a judge's separate contact with the lawyers in a case after the judge had been removed, would at least arguably have been permissible under the former rule. Moreover, it would have constituted judicial misconduct only if the contact were made in such an offensive or improper manner as to be unbecoming a judge, or contrary to accepted high standards of conduct expected of a judge, and thus violative of the Code of Conduct. If a lawyer or other person has claimed to be deterred or chilled or otherwise offended or prejudiced by a contact with Judge Whitehead, and that complainant has come forward and stated facts under oath which would establish a willful violation of the Code of Conduct, then there would be cause for concern. We infer no opinion as to whether such a complaint has been filed in this case.
The second aspect of former SCR 48.1 that caused problems statewide and through the years was the rule's mandate that the challenged judge "shall transfer the case to another department of the court." SCR 48.1(6). Evidently, the specific practice that has bothered lawyers and judges with respect to this rule is the practice of the challenged judge contacting the nonchallenging attorney concerning the transfer process. Even though challenged and removed from the case, judges still had the duty and discretion to transfer the case to any department they might choose. The practice of judges' calling the nonchallenging attorney to obtain suggestions regarding a successor judge may certainly be viewed as objectionable, but it apparently has not been an isolated practice and was not expressly forbidden by SCR 48.1. As previously noted with respect to contact with challenging lawyers, judges contacting nonchallenging lawyers might be perceived (prior to the rule amendment) as acting appropriately or inappropriately, depending upon the circumstances. For example, a challenged judge (who under the old rule, had the sole and unrestricted authority in choosing a replacement) may have benignly contacted a nonchallenging lawyer to obtain assurances that the new judge to whom transfer was planned would not also be subject to a second peremptory challenge, and thus another occasion for delay. At least in theory, a transfer to any judge not otherwise disqualified, should not result in prejudice to any party because judges are held to a standard of fairness and impartiality. On the other hand, there are ways a judge might possibly have run afoul of the Code of Judicial Conduct in the process of designating a replacement judge. Each case is different, and that is why if charges of judicial misconduct are to arise out of practices employed under the former rule, the complaint should contain a fairly precise statement of fact, specifying what the judge is accused of doing wrong.
We also consider ARJD 11(3) to be of importance in this respect. That rule provides: "When applied for purposes of determining whether misconduct has occurred, the provisions of the Nevada Code of Judicial Conduct must, considered as penalty provisions, be strictly construed in favor of the respondent judge." It should also be remembered that ARJD 9 provides that the Commission "has no jurisdiction to review or to base charges upon differences of opinion between judges as to matters of law or policy, or as to other issues committed to judicial or administrative discretion."
It is certainly arguable that the judges in Judge Adams' district, who were engaged in the kinds of activities of which he complained, were merely applying their own interpretation to the ambiguities in former SCR 48.1 and not engaging in "willful misconduct." Under the old rule there were "differences of opinion" among the judges as to how SCR 48.1 should be administered. As discussed above, however, a judge might go beyond the limits of propriety while carrying out any administrative function; still, the administrative nature of these proceedings and the favorable construction to which accused judges are entitled by virtue of ARJD 11(3) should be evaluated and considered if the Commission is called upon to judge the merits of any complaint relating to the administration of former SCR 48.1.
6. CONCLUSION
ARJD 40(7) expressly authorizes review by this court of interlocutory orders of the Commission when it is charged with acting without or in excess of its jurisdiction. On July 6, 1993, Donald J. Campbell issued a document entitled, Notice of Probable Cause Hearing, which "required" Judge Whitehead "to respond" to the Campbell Complaint and to appear at a certain time and place for a probable cause hearing based upon the Campbell Complaint. The notice and order issued by Mr. Campbell were both without and in excess of the Commission's jurisdiction.
In Whitehead I, we settled any question relating to this court's power of interlocutory review, citing along with other authority the case of People ex rel. Harrod v. Illinois Cts. Com., 372 N.E.2d 53 (Ill. 1977), a case in which the Illinois Supreme Court declared that it had "both the authority and the responsibility" to determine whether the proceedings before the Discipline Commission were beyond the Commission's constitutional grant of authority and, if so, to declare such actions invalid. (Emphasis supplied.) Today we declare the actions of the Nevada Commission on Judicial Discipline to be invalid and order that a writ of prohibition issue prohibiting the Commission from proceeding in any manner based on the Campbell Complaint. We therefore direct the clerk of the court to issue a writ (1) prohibiting further prosecution of the Complaint Seeking Determination of Probable Cause now pending and (2) mandating that any further Commission proceedings against Judge Whitehead be conducted in accordance with the Administrative Rules of Judicial Discipline (the ARJD), as construed below.
B. REMAINING PROCEDURAL CONCERNS
As discussed above, Petitioner Whitehead has contended that the Commission has violated his rights to due process of law by treating him in a discriminatory way, inconsistently with the ARJD, and in a manner unlike comparable discipline proceedings involving other judges. "If due process is to be secured, the laws must operate alike upon all and not subject the individual to the arbitrary exercise of governmental power . . . ." The Constitution of the United States of America: Analysis and Interpretation 1407 (Lester S. Jayson et al., eds., 1973). If an individual is pursued by the application of laws or regulations that are applied to that person alone, rather than by general provisions which affect all equally, then the guarantees of due process of law are surely implicated. Id.; see Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894). See also In re Greene, 403 S.E.2d 257 (N.C. 1991) (because a judge's interest in continuing in public office is an individual interest of sufficient importance to warrant constitutional protection, Commission proceedings must meet basic requirements of due process, including the right to an adequate and fair hearing). It cannot now be denied that the Commission has been functioning without regard to its own rules of procedure and the Nevada Constitution or that Petitioner Whitehead has indeed been treated in a manner quite different from the manner in which the Commission has treated other similarly situated judges in the past.
We have concluded, as discussed above, that Petitioner has not been accorded his rights under the Nevada Constitution and the ARID, and that the Commission's proceedings thus far in this matter must be nullified. We now turn to the problem of assuring that the Commission provides Petitioner Whitehead and other accused judges with the process to which they are entitled in any proceedings hereafter instituted. To that end, we interpret for the first time the proper scope of the Commission's preliminary investigation prior to the probable cause hearing, and other provisions of the ARID relevant to this proceeding. We then turn to the question of whether Petitioner can receive fair and impartial treatment before the present Commission, emphasizing in the process, the importance of the constitutional mandate of confidentiality in Commission proceedings.
1. THE PROPER SCOPE OF A PRELIMINARY INVESTIGATION PRIOR TO A PROBABLE CAUSE HEARING
We reject Judge Whitehead's contention that the Commission must determine "from the complaint itself," without any preliminary inquiry whatever, whether a basis exists to proceed to a probable cause hearing. We further reject, however, the Commission's evident contention that the Nevada Constitution authorizes a preliminary investigation encompassing whatever wide-ranging inquisition the Commission or its investigators may choose to pursue.
This court is obligated under the state constitution to adopt rules for the Commission pertaining to "[t]he conduct of investigations . . . ." See Nev. Const, art. 6, § 21(5)(c). Moreover, article 6, § 21(7) provides, in pertinent part, that "[t]he commis sion shall, after preliminary investigation, dismiss the matter or order a hearing to be held before it." (Emphasis added.)
Although there is no express definition within the rules of "preliminary investigation," the proper scope of a pre-probable cause "preliminary investigation" must be interpreted by reference to the current rules, in particular ARJD 12 and ARJD 14(1) and (4). In Whitehead II, we observed:
We have not yet interpreted the meaning of "preliminary." However, the dictionary definition of the term includes: "1. preceding and leading up to the main part, matter, or business; introductory; preparatory: preliminary examinations. 2. something preliminary, as an introductory or preparatory step, measure, contest, etc." The Random House Dictionary (2nd ed. 1987).
110 Nev. at 411-12 n.26, 873 P.2d at 965-66. Clearly, the constitutional provision for a preliminary investigation refers to an investigation of a type that is substantially different from an exhaustive survey and interrogation of persons who may know a respondent judge and have some basis for cooperating in the furtherance of complaints against the judge.
Obviously, the preliminary investigation must begin with the sworn complaint. Under ARJD 12(1), unless the complaint contains facts which, if true, would establish grounds for discipline under the rules, i. e., facts establishing one or more of the grounds for discipline set forth in ARJD 11, the complaint must be dismissed. Although, under exceptional circumstances, and on request, the Commission's executive officer may sign and swear to a complaint on information and belief, such a surrogate complaint must precisely reflect the charges contained in the sworn complaint first submitted to the Commission by the party who is the actual complainant. The complaint that thus survives a preliminary screening for ARJD 11 grounds, must be evaluated further to assess whether an investigation or inquiry may be necessary to determine if the charges have sufficient credibility to warrant the scheduling of a probable cause hearing. In many instances, a contact with the complainant or even the judge complained against, may satisfy the Commission representative concerning the credibility of the charges and the proof that may be adduced in support of the charges at the probable cause hearing. The complainant will almost always be the source of determining the extent to which further contacts or inquiry beyond that with the complainant may be necessary.
Since the sworn complaint must specify facts which, if true, would establish ARJD 11 grounds to invoke the Commission's jurisdiction, the complainant must possess information in support of the sworn charges. There will be instances, however, where the Commission may determine that further preliminary investigation beyond the contact with the complainant may be necessary in order to ascertain the merit of the charges. By way of an example, if a complainant should swear that he is aware of a judge having accepted a bribe, and upon questioning, the complainant advises the Commission representative of the names of two persons who were witnesses to the event, it would be appropriate for a Commission investigator to contact the named persons in order to ascertain the extent of their information and its credibility.
It would not be appropriate, however, at this preliminary stage, to launch an investigation designed to produce other possible complainants. In other words, the preliminary investigation must be confined to that which is necessary to satisfy the Commission that there is sufficient merit to schedule a probable cause hearing on the precise charges specified in the sworn complaint. It would be inappropriate for the Commission, upon ascertaining that there is reasonable merit to the precise charge of bribery in the hypothetical posed, to have the investigator launch an investigation among other persons, including attorneys and judges, who may be able to provide information upon which to base additional, unrelated complaints. ARID 14(1) provides that the Commission "will consider all complaints brought before it with a view to determining whether or not there exists sufficient cause to proceed to a probable cause hearing." (Emphasis added.) The same provision also provides that if the Commission determines that there is sufficient reason for scheduling a probable cause hearing, the respondent judge must respond "to the sworn complaint." (Emphasis added.) ARID 5(4) provides in part that "[wjhenever there is not an adequate factual or legal basis for further proceedings before the commission, the commission must dismiss them . . . ." ARID 14(4) also provides that in the event the Commission concludes there is insufficient cause to proceed to a probable cause hearing, and notoriety has resulted from the complaint, or "the inquiry or proceedings related thereto," the Commission must issue information to the public indicating the lack of cause to proceed. (Emphasis supplied.) The emphasized language in ARID 14 demonstrates two salient points. First, the Commission acts on accusations in complaints that are brought to it, as opposed to complaints that the Commission may produce through an investigation. Second, the rule implies that any inquiry or investigative proceedings must be confined to the sworn complaint.
In summary, then, a preliminary investigation or other inquiry should be no more than what may be necessary to determine whether the specific charges of the sworn complaint have sufficient merit to warrant a probable cause hearing on those charges. In effect, the length and breadth of a preliminary investigation should be confined to the narrowest possible activity necessary to satisfy the Commission that there is or is not merit to the specific charges contained in the sworn complaint.
2. THE RESPONDENT JUDGE'S RIGHT TO INSPECTION UNDER ARJD 14(5)
ARJD 14(5) provides:
In preparing to oppose a determination of probable cause, the [accused judge] has the right to inspect all records of the commission relating to the disciplinary action against the [accused judge] and to be fully advised as to the contents of the administrative record considered by the commission determining that there was sufficient reason for a probable cause hearing.
In Whitehead II, we discussed the Commission claim respecting attorney-client and work product privilege, and observed that in some states there is no protection provided for work product. We cited to an American Judicature Society publication which quoted the director of the judicial discipline commission in Kentucky as follows: "work product protects little, if anything. All information gathered must be given to the judge under Rule 4.170(4) of our rules before formal charges are filed." See Whitehead II, 110 Nev. at 413, 873 P.2d at 967 (citing Judith Rosenbaum (with the assistance of Jeffrey M. Shaman and Katherine Levin), American Judicature Society, Practices and Procedures of State Judicial Conduct Organizations, ch.8 at 28 (1990)).
In our Order Granting Petition filed September 9, 1994, we indicated that we would follow the Kentucky Supreme Court Rule 4.170(4) and make all work product subject to discovery by the respondent judge. We now clarify our earlier ruling to exclude true attorney work product as material discoverable by a respondent judge. Under the accusatory system established by Nevada's rules, ARJD 14(5) is construed not to permit discovery of the attorney-investigator's or special prosecutor's work product insofar as it relates to the attorney's mental impressions, conclusions, or legal theories or strategies. However, work product may not be asserted as a basis for refusing to disclose the identity and statements or the substance of the statements of witnesses. We thus emphasize that whether (as with Judge D), the Commission or its counsel elects to investigate by taking signed statements from witnesses or, as with Judge Whitehead, elects to have the investigator or prosecutor forego the taking of signed statements and simply take notes regarding the substance of a witness's information and expected testimony, all such materials are properly the subject of discovery by a respondent judge. In other words, the identity of witnesses and the substance of their information and testimony must be made available to the respondent judge in order to prepare for a probable cause hearing irrespective of whether signed statements from such witnesses have been secured. This ruling is also consistent with ARJD 21 which applies after a finding of probable cause. The latter rule specifies precisely what must be disclosed to a respondent judge, but is silent as to work product. We therefore interpret Rule 21 to exclude work product in the sense described above.
Even where the Commission's attorney-investigator or special prosecutor interviews a potential witness but concludes that said witness has no information relevant to the subject of investigation, the identity of the witness must be revealed along with a statement indicating that the witness has no relevant information and will not be called to testify. Discovery concerning the latter category of non-percipient witnesses is essential in order to provide assurance that the scope of the investigation is confined to that permissible under our ruling with respect to preliminary investigations. Simply stated, we conclude that the reference in ARJD 14(5) to "all records of the commission" means exactly that, i. e., "all records of the commission." Similarly, the terminology: "fully advised" as used in ARJD 14(5), means "fully advised." However, true attorney work product, as defined above, shall not be subject to what otherwise appears to be the all-inclusive scope of Rule 14(5).
If the Commission should proceed to a probable cause hearing on the basis of the allegations relating to SCR 48.1 contained in the sworn complaints from Judge Breen, and the change of venue matter contained in former District Attorney Holmes' complaint, the Commission may not entertain such proceedings before first providing Judge Whitehead with all documents and materials of any kind, including those developed or produced by Campbell.
3. THE SCOPE OF THE COMMISSION'S INQUIRY AT A PROBABLE CAUSE HEARING
Petitioner contends that at any probable cause hearing, under ARJD 15, the Commission may not receive or consider matters or evidence except the sworn complaint, the respondent judge's response and supporting documents, and testimony of witnesses presented by the respondent judge. Although the literal terms of the rule could be so construed, we reject this contention.
ARJD 15 provides: "A finding of probable cause is a determination that, in reasonable probability, the evidence available for introduction at a later formal hearing could clearly and convincingly establish grounds for disciplinary action within the commission's jurisdiction." At a probable cause hearing, unless the Commission hears what that evidence is, it cannot form a reasonable belief of whether evidence available for introduction at a later formal hearing would clearly and convincingly establish ARJD 11 grounds for discipline. To form this "reasonable belief," the Commission in many instances will have to consider something other than the allegations in a sworn complaint and the evidence presented by the accused judge. Reason dictates that ARJD 15 be construed to also permit the Commission to consider, in addition to the respondent judge's evidence and the sworn complaint, whatever other relevant, properly admissible evidence the Commission may have secured or received regarding the specific charges of the sworn complaint, including both documents and the testimony of witnesses.
4. WHETHER PETITIONER COULD RECEIVE DUE PROCESS IN ANY FUTURE PROCEEDING, IN LIGHT OF THE BREACHES OF CONFIDENTIALITY
It is fundamental to our system of jurisprudence that due process requires an impartial tribunal. This is true in civil, criminal and administrative matters, and whether the matter is tried before judges or juries. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). This same fundamental principle applies to the actions of the Commission.
The issue of moment raised by Petitioner and opposed by the Commission and former Commission counsel is whether a breach of Petitioner's right to confidentiality has adversely impacted his right to a fair and impartial tribunal and therefore his rights to due process. During oral argument on this issue, Special Deputy Attorney General Campbell argued categorically that due process is not implicated in a breach of confidentiality. Moreover, Campbell maintained that even if one or more members of the Commission were the source of distorted and unlawful leaks to the press, there would be no due process concerns because any discipline imposed against Petitioner would have to be supported by substantial evidence of record discernible by this court on appeal. Aside from the fact that such a view is not supportable under any principles of law with which we are familiar, we note that Campbell, in effect, would have this court accept the proposition that a biased judge in a civil, criminal, or administrative proceeding would not impact due process because any judgment or decision would have to reflect the presence of substantial supporting evidence of record. Ergo, as long as there is sufficient evidence to support a judgment, decision, or verdict on appeal, Campbell apparently maintains that we need not be concerned about the absence of due process at the trial or evidentiary hearing level. We conclude that such an argument is patently meritless.
It should be clear beyond cavil that if the source of the unlawful leaks proves to be one or more members of the Commission, Petitioner could not receive a hearing free of actual bias and hostility. Given the hostile, distorted, and unrelenting attack on Petitioner by certain media sources, a Commission member's contribution to that form of calumny would poison any hearing Petitioner would receive before the Commission. Moreover, even if there is no showing of actual bias, the rule is well established that even the appearance or likelihood of bias is sufficient to deny a litigant due process of law. See Peters v. Kiff, 407 U.S. 493 (1972).
Campbell also contended that due process concerns are inde pendent and not co-extensive with concerns regarding confidentiality, referring by way of example to highly publicized cases in which trials are nevertheless permitted to go forward. This argument misses the mark. Even in cases involving extensive pre-trial publicity, the issue of selecting an impartial and unbiased jury is of serious importance, and courts will not hesitate to overturn convictions reflecting the improper influence of jurors by media reports. See generally, Sheppard v. Maxwell, 384 U.S. 333 (1966).
Campbell further insisted that due process would not be impacted in the case of a hypothetical Commission member who was the source of the unlawful leaks because the Commission's final determination to discipline must in any event be sustainable by record evidence on review by this court. This interesting theory implying that a lack of due process in the Commission is of no significance because of the availability of appellate review is simply without any merit. As this court observed in Matter of Ross, 99 Nev. 1, 13, 656 P.2d 832, 839 (1983):
[I]t should be noted that the United States Supreme Court has made it clear that the fullest review by this court would not "cure" a defective adjudicatory proceeding below. As the Court held in [Ward v. Village of Monroeville, 409 U.S. 57 (1972)], a "trial court procedure [may not] be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance." 409 U.S. at 61-62.
Suffice it to say, we firmly reject any claims that breaches of confidentiality by members of the Commission would not implicate due process concerns.
Although it could be inferred from the Commission's adamant opposition to efforts to discover the sources of the unlawful, pernicious disclosures, that the Commission or certain of its members could be the source of those disclosures, this court is unwilling to draw such a damning inference. If further proceedings are resumed against Petitioner Whitehead based on the sworn complaints, we will rely on the Petitioner's right to challenge Commission members pursuant to ARJD 6 and 7 as the basis for at least initially determining the propriety of each such challenged member of the Commission to participate in the proceedings. To allow the present members of the Commission to sit without reasonable assurances of impartiality after all that has happened, would impinge on Judge Whitehead's right not only to have a fair tribunal but to also have a tribunal free from the appearance of bias.
PART V: PETITIONER'S MOTION TO DISQUALIFY THE MEMBERS OF THE COMMISSION
Petitioner requests this court: (1) to declare that all persons who have acted as members of the Commission in this matter be disqualified from continuing to act in any matter relating to Petitioner; and (2) to declare all proceedings heretofore conducted against him to be null and void.
We conclude that the Honorable Nancy Becker must be disqualified as a matter of law. With regard to the other members of the Commission we conclude that too many questions of fact remain unanswered which are best left to the Commission to address, at least in the first instance, should the Commission elect now to proceed against Petitioner. We will, however, discuss selected contentions raised by Petitioner in order to provide the Commission with guidance for any future proceedings.
A. THE HONORABLE NANCY BECKER
Judge Nancy Becker is a resident of Clark County. Article 6, § 21(4) of the Nevada Constitution states: "An appointing authority shall not appoint more than one resident of any county." The provision is clearly intended to provide accused judges with assurances of geographic diversity on the Commission panel. At the time this court appointed Judge Becker as an alternate member of the Commission, and she agreed to act as an alternate, District Judge Sally Loehrer, also a resident of Clark County, had already been appointed to the Commission as a permanent member. Judge Loehrer continues to act as a permanent member of the Commission. It is therefore impermissible, under the state constitution and as a matter of law for Judge Becker to sit as an alternate member of the Commission in any proceedings in which Judge Loehrer is also participating. See also Nev. Const, art. 6, § 21(8) (the supreme court shall appoint substitutes from among eligible judges).
B. CHAIRMAN GUY SHIPLER
Petitioner urges as grounds for Chairman Shipler's disqualification his economic interest in the outcome of these proceedings, an appearance of impropriety in violation of Canon 2, and his exhibition of actual bias against Judge Whitehead. We conclude that the allegations of economic interest and the appearance of impropriety involve too many issues of fact which must be determined before this court could properly rule on these grounds. With regard to Chairman Shipler's actual bias against Petitioner, the question is much closer. As evidence of Shipler's actual bias against Petitioner, Petitioner draws this court's attention to a letter of April 18, 1994, directed to all members of the bar and judiciary of this state, purportedly signed by Chairman Shipler. The author of the letter, written on Commission letterhead, seeks to "assist" the bench and bar in their "understanding" of the "legal issues" in this case. This assistance is provided in the form of affidavits from sitting district court judges and legal ethicists who have prejudged the disciplinary matter now pending before the Disciplinary Commission.
In one of the referenced affidavits, a sitting Nevada district court judge, Brent T. Adams, testifies under oath that "Judge Whitehead had engaged in serious conduct constituting serious ethical violations of the Nevada Code of Judicial Conduct" and that "conduct by Judge Whitehead undermines the integrity of our legal system." Judge Adams testifies further that he "know[s] that the allegations of Count I, Count II, Count III, Count IV and Count V are accurate and readily provable." In a similar affidavit apparently endorsed by Chairman Shipler if he actually signed the cover letter, another sitting district court judge, Peter I. Breen, testifies that "unethical practices of Judge Whitehead" are matters of "common knowledge."
Thus, in the author's purported attempt to "clarify both factual matters and the legal issues in this case," he has apparently expressed and adopted a belief that Petitioner is guilty of all charges, despite the fact that the Commission has yet to even determine whether there is probable cause to proceed against Petitioner. Although statements to the press attributed to Shipler would, if true, indicate that both Shipler and the other members of the Commission did indeed subscribe to the referenced letter and materials, we decline to ascribe accuracy or authenticity to such reports, electing instead to rely on the procedural safeguards available to Petitioner for ascertaining the truth of these factual matters in the event the Commission decides to continue its disciplinary proceedings against Petitioner.
C. THE REMAINING COMMISSION MEMBERS
We also decline to presently resolve in this writ proceeding Petitioner's challenges to the other Commissioners. The issues presented in this respect are inherently factual in nature, and the Commission rules provide a means through which Petitioner may challenge any of the other members of the Commission for cause. See ARJD 3(6); see also ARJD 3(8). Despite our concerns regarding the due process implications involved in having any members of the Commission who have heretofore participated in the Whitehead proceedings continue to sit in any further proceedings against Petitioner, we trust that the challenging procedures available to Petitioner will effectively resolve these concerns.
PART VI: ADDENDUM RE DISSENTING VIEWS
Reasonable minds can legitimately differ over legal and factual matters implicated in these proceedings, and we respect our dissenting colleagues' prerogative to voice responsible disagreement with this court's opinion. Justice Shearing's November 22, 1994, dissenting addendum, however, sets forth a number of remarkable assertions which are so contrary to our understanding of the facts and the law that we are compelled to respond lest our silence be construed as according those assertions undeserved credibility. In Part I of this opinion, we have already addressed in detail Justice Shearing's erroneous assertions regarding the constitutionality of this court's initial orders directing these proceedings to remain strictly confidential. In this addendum, we rebut other untenable positions taken in Justice Shearing's dissenting addendum and we address an inaccuracy advanced in the separate concurring and dissenting addendum filed by Judge Guy on November 23, 1994.
A. ALLEGED DISTORTIONS OF THE RECORD
Justice Shearing relates she is "appalled at the distortions of the record in the majority opinion." Although we are not told specifically what these appalling, alleged distortions might be, our colleague does accuse this court of having distorted the record "to make it appear" that the Commission has conducted its proceedings "in an outrageous manner, in violation of the United States Constitution, the Nevada Constitution, the Commission rules, and the principles of fairness." Justice Shearing maintains that the record, viewed objectively, does not support the proposition that the Commission has been operating in violation of the provisions governing its proceedings.
We have carefully and extensively documented precisely how the Commission has been operating in violation of the Commission rules and state constitutional provisions governing Commission proceedings, not just in this matter, but in numerous other matters as well. The Commission's proceedings regarding "Judge D" and Judge Stringfield are but two examples, and it would serve no purpose here to restate the unrefuted facts we have related above regarding those matters. We do observe, however, that the people's recent adoption of a state constitutional amendment regarding the Commission's jurisdiction is highly instructive of the Commission's clear failure to conduct its past proceedings in accordance with the Nevada Constitution and the Commission rules.
In the recent November 1994 election, the People of the State of Nevada voted to amend article 6, § 21 of the Nevada Constitution, so as to expand the Commission's constitutional jurisdiction to impose discipline, and to require this court to adopt rules for the exercise of that expanded jurisdiction. The Ballot Question Explanation provided to Nevada voters explained:
The commission's authority to discipline is limited to the actions of censure, removal, or retirement. Adoption of the amendment would allow the commission to utilize other forms of discipline in addition to censure, removal, or retirement.
(Emphasis added.) Under the constitutional amendment recently approved by the voters, this court is now commanded to make appropriate rules for the Commission's imposition of forms of discipline other than censure, removal, or retirement. See 1993 Nev. Stat. 2971. Thus, the amendment recognizes that neither the Nevada Constitution nor the Commission rules have ever provided for the Commission's imposition of forms of discipline other than censure, removal, or retirement. Quite plainly, and as the Ballot Question Explanation to the voters pointed out, the Commission's authority under the state constitution and the rules prior to the effective date of this recent amendment was limited to the actions of censure, removal, or retirement. See Lake v. Lake, 17 Nev. 230, 238, 30 P. 878, 880 (1882) ("[i]t is settled that affirmative words in a constitution, that courts shall have the jurisdiction stated, naturally include a negative that they shall have no other") (citing Marbury v. Madison, 5 U.S. 137 (1 Cranch) (1803)).
This opinion and Justice Springer's concurring opinion, however, are replete with examples demonstrating that, in fact, prior to the effective date of this amendment, the Commission routinely imposed forms of discipline other than censure, retirement, or removal in a manner wholly inconsistent with the procedures established by the Commission rules. Our dissenting colleague is well aware that prior to the enactment of the recent amendment, such other forms of discipline were utilized by the Commission, including agreements that jurists accused of unethical campaigning issue public apologies.
Such other forms of discipline evidently have been employed: (1) without constitutionally required hearings, see Nev. Const, art. 6, § 21(7) ("[t]he commission shall, after preliminary investigation, dismiss the matter or order a hearing to be held before it"); (2) without required Commission findings of probable cause, see ARJD 14, 15; (3) without required public filings of formal statements of charges, see ARJD 16 and 17; (4) without required written decisions explaining the nature of the proceedings, findings of fact, conclusions of law on issues presented by the formal statements of charges, see ARJD 30, 31; and (5) without the filing of certified copies of the orders with the clerk of this court, id. Yet, the dissenting addendum proclaims, incredibly, that we have resorted to "distortions" "to make it appear" that the Commission exceeded its authority under the Nevada Constitution and the Commission rules.
Moreover, Justice Shearing's analysis of the Commission rule governing consent orders ignores the language, as well as the intent of the rule. It is true that ARJD 31 authorizes the Commission to order disciplinary action, upon the "written consent" of the respondent judge, "at any stage of the proceedings." The rule provides in full, however:
Upon written consent of the respondent, the commission may order the respondent's censure, removal or retirement at any stage of the proceedings and this order takes effect immediately. A certified copy of the order must be filed with the clerk of the supreme court and a copy of the order must be served on the respondent.
(Emphasis added.) Prior to the adoption of the recent constitutional amendment, the only forms of discipline that the Nevada Constitution specifically authorized the Commission to impose were censure, removal, or retirement. See Nev. Const, art. 6, § 21(1) ("[a] justice of the supreme court or a district judge may . be censured, retired or removed by the commission on judicial discipline"). Similarly, the only forms of discipline that ARJD 31 specifically authorized the Commission to impose upon the written consent of the respondent judge were censure, retirement, or removal.
ARJD 31 contains the further requirement that a copy of any consent order must be filed with the clerk of this court. Thus, consistent with the limited authority vested in the Commission by the Nevada Constitution prior to the recent amendment, ARJD 31 did not authorize the Commission to order the imposition of lesser forms of discipline by means of the secret, abbreviated, informal procedures that have been employed by the Commission.
Because the dissenting addendum does not identify precisely what facts or circumstances have allegedly been distorted in this opinion, we are of course unable to refute Justice Shearing's general allegation with any degree of specificity. We have certainly not distorted the fact, however, that the Commission has in the past on numerous occasions imposed discipline other than censure, retirement or removal in blatant violation of the Nevada Constitution and the Commission rules. We can perceive no principled bases for endorsing the obvious fiction that the Commission has been abiding by the Nevada Constitution and the Commission rules.
Despite Justice Shearing's accusation of unspecified distortions, we remain confident that the factual and legal premises underlying our decision are authentic, reliable, and sound. We are also confident that objective observers will realize that the mere labelling of this opinion as an appalling distortion of the record does not make it so. Such hollow, vacant accusations add little to the public's reasoned understanding of the sensitive issues in this proceeding, and can only serve to further inflame the volatile, hostile atmosphere that has sadly permeated public perceptions of this matter.
B. CRITICISM OF MEDIA
We are admonished by Justice Shearing for responding to the comments and criticisms of the media. Based upon persuasive case authority, Justice Shearing quite convincingly builds a strong case for the proposition that, under the First Amendment, the media must be permitted to promote judicial accountability unencumbered by the threat of criminal contempt of court. We are in full accord with the authority cited in Justice Shearing's dissenting addendum holding that the judiciary is generally not empowered to stifle media criticism and interfere with First Amendment rights of the media through the exercise of the judicial contempt power. Nothing of that sort has occurred in this case, however.
This opinion does not hold, threaten, or even suggest that the media should be subject to this court's contempt power. Rather, we have simply attempted to correct misapprehensions and inaccuracies fostered by and in the media. It is difficult to understand how the dissenting justice can be so "appalled" at unspecified, alleged "distortions" in this opinion, and yet so accepting and tolerant of the unrelenting flood of deceptive reports and commentary pertaining to this matter that have been unleashed in the media.
The dissenting justice discusses both the right and the importance of the media covering judicial matters, and quite rightly notes that judges are not above criticism. Indeed, we would venture to say that a responsible media has an obligation to inform the public of judicial misconduct. Moreover, we consider it both proper and healthy that the media report and editorialize on the wisdom of judicial rulings. The First Amendment guarantee of freedom of the press is a powerful and highly cherished right in this nation. We note, however, that it is a right that is frequently abused by powerful media interests that fail to keep faith with the public trust implicit in the guarantee of press freedom under the First Amendment.
Our dissenting colleague asserts that "[b]y and large . the reporting [on the instant proceeding] has been of a factual nature and correct. Nothing in the majority opinion provides evidence to the contrary." This incredible statement leads us to wonder whether our colleague has bothered to read the onslaught of variously biased, distorted, false and irresponsible articles, editorials, and cartoons appearing in a major media source in this state. The fact that most of the articles and editorials contained distortions, half-truths, unjustifiable inferences and outright misrepresentations unmistakably reflective of extreme bias and inob-jectivity, may be proved beyond all doubt by any objective body interested in pursuing the matter. Despite our colleague's tempting invitation to compare coverage to facts, we nevertheless elect not to devote additional time to the subject beyond that which already appears in our previous opinions in this proceeding.
Moreover, the apparent need of the dissenting justice and a majority of this court to take the rare measure of addressing the subject of an irresponsible lead media source that has concentrated on creating a totally unwarranted and highly deleterious public perception of the instant proceeding represents a recognition that even the media should not be above evaluation and criticism.
Unfortunately, the media may serve or disserve the public; it may enlighten or disinform; it may properly or improperly destroy reputations and institutions; it may rightly or wrongly influence public opinion; it may expand or suppress knowledge; it may publish facts or characterize fiction as facts; it may pursue righteous or unrighteous agendas; it may promote enlightening and healthy public discourse or stifle objective assessment by denying a public platform to sources it seeks to destroy or ridicule; it may justify or betray the public trust underlying the creation of the First Amendment freedom of the press.
By no means do we intend our expressions as a blanket indictment of the media or a faltering respect for freedom of the press. Fortunately, the vast majority of the media sources that serve Nevada's citizens are responsible in their news coverage and their desire to factually, fairly, and objectively inform. Nevertheless, because of the enormous damage inflicted by a demonstrably irresponsible newspaper, we leave the subject with some food for thought written by Lee C. Bollinger, Dean of the University of Michigan Law School:
Putting aside for the moment the fact that we also have an interest in encouraging people to enter public affairs, it simply is wrong to suppose that the pain inflicted by defamatory statements about public officials and figures is not our responsibility or concern. It should always be open to people to object to the way the world works under the rules we create, and not be dismissed by the claim that they have chosen to continue living in that world and, therefore, can be taken as having assented to it.

But as important as this concern is about the minimization of the private interests sacrificed to the principle of press autonomy, there are even more serious matters to worry about. We must also consider how press freedom might, instead of enhancing public discussion and decision making, actually prove to be a threat to it — a threat to quality decision making, a threat to democracy, a threat to the very values the First Amendment (as defined by New York Times v. Sullivan and its successors) is supposed to further.
There is no guarantee that the press will not abuse the freedom it possesses under the autonomy model. And there are many ways in which it might do so. The press can exclude important points of view, operating as a bottleneck in the marketplace of ideas. It can distort knowledge of public issues not just by omission but also through active misrepresentations and lies. It can also exert an adverse influence over the tone and character of public debate in subtle ways, by playing to personal biases and prejudices or by making people fearful and, therefore, desirous of strong authority. It can fuel ignorance and pettiness by avoiding public issues altogether, favoring simple-minded fare or cheap entertainment over serious discussion. Even if the pressures for low-quality discussion come from the people themselves, as to some extent they do, the press acts harm fully by responding to those demands and hence satisfying and reinforcing them. It matters not whether the press is the instigator of what is bad or the satisfier of inappropriate demands originating in the people. In either case, the press can be an appropriate locus for reform.
Of course, all these concerns become more serious as the number of those who control the press become fewer, and as more and more members of the general population turn to a few outlets for information about the world — both phenomena having undeniably occurred in the twentieth century. The value the First Amendment places on many speakers is not based on a premise that more speakers result in less bias in any one, rather it is assumed that more speakers mean more people who have a self-interest in correcting the biases of others, despite the fact that they are biased themselves. As the number of those who control the gateway to public discussion decreases, this natural corrective is lost. It is, of course, a widely known fact of this century that, for example, the total number of daily newspapers has declined sharply and that the number of towns and cities across the country with competing papers has been reduced to a mere handful. Coupled with this phenomenon is the increased reliance by citizens on massive media enterprises for information about the world.
These would seem to be the sorts of worries that ought to command our attention.
Lee C. Bollinger, Images Of A Free Press, 25-21 (1991) (footnotes omitted).
Justice Shearing insists that the "media is doing its job in reporting on our proceedings and has every right and obligation to express opinions." Further, she notes that "Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions." Dissenting Addendum at 3 (quoting Bridges v. State of California, 314 U.S. 252, 289 (1941) (Frankfurter, J., dissenting)). Again, we are not in disagreement with these sentiments. We are of the view, however, that the media also holds no special immunity or dispensation from criticism and correction.
The quest for the truth and fairness is the essence of judicial process. Justice Shearing would seemingly deprive the court of the right and obligation to promote that objective by responding to inaccurate, unfair, and misleading media attacks through the only vehicle available to the court, its written opinions. She apparently views media reports and commentary — no matter how vile, malicious, misleading, or inaccurate — as forever above reproach and deserving of no condemnation or response from the court. Yes, media coverage should rarely warrant a response by the court. We simply cannot ascribe to the notion, however, that this court should never attempt to set the record straight where the public's perceptions of the judiciary have been manipulated through unfair, incorrect, and misleading reports and comment.
As we have stated above, under the Code of Judicial Conduct, there are times when a court not only has the right but also the obligation to speak out candidly and truthfully. This is especially so where, as here, inaccuracies fostered through media coverage have provoked what many — including respected members of the bench and the bar — have perceived as a crisis of public confidence in the state judiciary. Neither this court, nor the media should be above or immune from candid criticism. What is sauce for the goose is sauce for the gander. Despite the very real threat that a malevolent, manipulative newspaper may pose to an entire branch of government and those who are extending themselves to honorably function therein, we will devote no further eifort to the subject in this protracted opinion.
C. JUSTICE SHEARING'S ANALYSIS OF COMMISSION'S JURISDICTION OVER SUBSTANTIVE CHARGES
Justice Shearing states: "I agree with the majority's assertion that whether Judge Whitehead's alleged conduct is within the Commission's jurisdiction is a factual determination that is clearly within the province of the Commission."
The elementary ruling actually announced by this opinion is that factual determinations regarding whether a judge has committed acts of judicial misconduct are clearly the province of the Commission in the first instance. Additionally, we agree as a general proposition that the Commission in the first instance should entertain and resolve challenges to its jurisdiction to act. We have not held, however, that it is exclusively the province of the Commission to determine its own jurisdiction, or that proceedings in excess of the Commission's jurisdiction are not chal-lengeable in this court by way of an interlocutory, extraordinary writ. Nor does this opinion hold that a respondent judge is not entitled to petition this court for relief through an exercise of the court's discretionary intervention by way of extraordinary writ under circumstances similar to those in the instant proceeding. See ARJD 40(7) ("[rjeview of interlocutory orders of the commission, which are considered either by the prosecuting officer or the respondent judge to be without or in excess of jurisdiction, may be sought by way of petition for an appropriate extraordinary writ").
Justice Shearing also asserts that this opinion "appears to suggest" that Judge Whitehead "should be exonerated," and that "one premise of the majority opinion is that other judges in Washoe County and throughout the state routinely engaged in the conduct alleged in the complaint against Judge Whitehead." Further, Justice Shearing states that "[i]t is unconscionable to suggest that the conduct described is not serious enough to be within the jurisdiction of the Commission on Judicial Discipline." We have not made any such suggestions in this opinion. To the contrary, we have specifically stated, "[wjhether and to what extent the Commission may elect to proceed on the sworn Breen complaints and the aspect of the sworn Holmes complaint concerning the allegations relating to a change of venue in the Kinnamon case is a matter for the Commission to decide." See supra note 47. Elsewhere, we make it clear that we have made no judgment as to whether Judge Whitehead's alleged actions respecting a change of venue in the Kinnamon case "either occurred or constitutes judicial misconduct. . It is for the Commission to determine in the first instance whether sufficient cause in fact and law warrants further consideration of any of the allegations in the sworn complaints." See supra note 55.
Additionally, and contrary to Justice Shearing's assertion, this opinion clearly acknowledges that the mere fact that it has not been uncommon in the past for judges to engage in peremptory challenge practices similar to those out of which the Whitehead accusations arose "does not mean that the practices were appropriate or that they were not susceptible of being conducted in such an untoward manner as to constitute judicial misconduct." See supra note 57. We have indicated, in an effort to be helpful to the Commission, that the fact that these types of practices were not uncommon is "some indication that those who engaged in them may not be guilty of 'willful misconduct.'" Id. This, however, does not amount to a suggestion that Judge Whitehead should be exonerated. We again emphasize that we express no judgment as to whether Judge Whitehead committed acts constituting judicial misconduct as charged in the sworn Breen and Holmes complaints, complaints upon which the Commission remains free to proceed in the manner specified above.
The significant concerns and focus of this opinion relate to the invalidity of the Campbell Complaint, the Commission's failure to follow rules that have been in effect for over six years, and the resulting disparate treatment of respondent judges accused of misconduct. Engrossed in a fanciful flight of speculation concern ing the seriousness of allegations of misconduct that thus far lack even a finding of probable cause, and that were improperly alleged in an inadequately sworn, unsigned, invalid complaint unconstitutionally prepared by an agent of the Executive Branch, the dissenting justice has apparently missed or ignored the major point of this opinion, i.e., that the Commission has not been proceeding against accused judges in a uniform manner and has not been obeying the Nevada Constitution and the Commission rules.
As we have previously emphasized, we express no opinion respecting whether Judge Whitehead actually engaged in conduct constituting judicial misconduct as alleged in the sworn Breen and Holmes complaints. Our dissenting colleague has apparently found and concluded, however, without even the benefit of a probable cause hearing, that "Judge Whitehead appears to be alone in contacting the non-challenging attorneys and delegating to them the choice of their next presiding judge." (Original emphasis.) Further, the dissenting justice states that she is aware of no disagreement "among judges or attorneys over whether such conduct constitutes improper behavior," and that it is "unconscionable" to suggest that such conduct is not within the Commission's jurisdiction. Thus, despite the dissenting addendum's remonstrations to the contrary, it appears that Justice Shearing is quite willing to usurp and invade the province of the Commission to determine in the first instance whether Judge Whitehead actually committed an act constituting judicial misconduct.
Further, unlike this opinion, Justice Shearing's dissenting addendum appears to have concluded, prematurely and as a matter of fact and law, that Judge Whitehead engaged in prohibited ex parte contacts. As we have observed, it is at least arguable that a judge's alleged contact with the lawyers in a case after the judge has been removed may not constitute a prohibited ex parte contact. See Nev. Code of Judicial Conduct Canon 3B(7) ("A judge shall not initiate, permit, or consider ex parte communications . . . outside the presence of the parties concerning a pending or impending proceeding") (emphasis added). This opinion leaves it to the Commission in the first instance to address many of Judge Whitehead's jurisdictional arguments, including his contention that upon the filing of a timely peremptory challenge, a district judge's jurisdiction over a case is terminated, and that, therefore, ex parte contacts are not prohibited because the case is no longer pending or impending before that judge. See, e.g., Sisson v. Georgetta, 78 Nev. 176, 370 P.2d 672 (1962).
D. JUSTICE SHEARING'S INTERPRETATION OF THE ARJD
Justice Shearing accuses the Majority of failing to recognize that "a complaint could be construed as either a simple letter written by a lay person in non-legal language and notarized by a notary public, or as a document drafted by a lawyer or judge with technical legal language pursuant to the Nevada Rules of Civil Procedure." Nothing could be further from the truth. Our decision simply cannot reasonably be construed as prohibiting either type of complaint. This opinion does not prohibit what Justice Shearing describes as informal "letter complaints," or "formal complaints." As long as a complaint is made upon oath, in writing, by the person complaining, and alleges facts which, if true, would constitute judicial misconduct, the rules, as well as this opinion, will permit it. This opinion does not preclude "everyone but lawyers, judges, and a tiny minority of lay persons from initiating disciplinary proceedings against a judge." Nor have we required that "a lay person must submit a formal legal document." Nor have we "force[d] each Commission member to rely solely upon his or her individual efforts at sorting through a lay person's documents in order to eliminate redundant material and clarify the legal and factual issues for consideration." The dissenting addendum's insinuations to the contrary are entirely specious.
Justice Shearing observes that the filing of the Campbell Complaint in the name of the Commission Administrator, Eve King, is "typical of other jurisdictions." This is quite true. Such a superficial comparison of procedures, however, is highly misleading. Unlike the accusatory system of judicial discipline established in Nevada, the constitutional provisions, statutes, and rules governing judicial discipline proceedings in many other jurisdictions specifically authorize the use of an "Administrator's Complaint," or a similar device, as a means of permitting a Commission to initiate an investigation on its own motion. See, e.g., Nicholson v. State Com'n on Judicial Conduct, 409 N.E.2d 818 , 824 (1980) (pursuant to state constitutional and statutory provisions, the New York Commission may receive, initiate, investigate and hear complaints, and may, on.its own motion, initiate an investigation upon the filing of written complaint signed by the administrator). In these types of jurisdictions, the discipline commissions function in a "inquisitional" manner.
As we have emphasized above, in contrast to judicial discipline systems in some other jurisdictions, the system that has been established in Nevada under the current ARJD is "accusatory" rather than "inquisitional." We have further emphasized that the Study Committee appointed to evaluate changes in the old, unworkable Revised Interim Rules extensively evaluated exigencies peculiar to Nevada's past experience, and concluded that these exigencies demonstrated a clear necessity for a judicial discipline system in Nevada that is inherently accusatory rather than inquisitional.
We agree with Justice Shearing that our interpretation of the rules must be consistent with and guided by the underlying policies and purposes of the rules and that the rules should not be construed so as to attribute to the drafters an intent resulting in absurdities or defeating the underlying purpose of the enactment. It is well settled in Nevada that the courts should follow the intent of the drafters in resolving any ambiguities in the law. See McKay v. Bd. of Supervisors, 102 Nev. 644, 650-51, 730 P.2d 438, 443 (1986). Although Justice Shearing reads ambiguities into many of the governing provisions, she nonetheless has absolutely failed to acknowledge or appreciate the intent of the drafters expressed in the policies, purposes, and recommendations articulated by the Study Committee that proposed the basic procedural structure for Commission proceedings ultimately approved by this court and incorporated into the ARJD. As a result, the dissenting addendum concludes erroneously that the Nevada Commission rules must be interpreted so as to authorize our Commission to act in the same manner as some other Commissions in some other jurisdictions with inquisitional judicial disciplinary procedures quite unlike Nevada's.
Nothing could be more clear than the intent of the drafters evident in the policies, purposes, and recommendations expressed in the Study Committee's Report. The Committee proposed distinctive judicial discipline procedures for this court's adoption, which were devised to correct problems peculiar to Nevada's past experience. With minor changes, this court approved and adopted the basic procedural structure proposed by the Study Committee, a structure premised on the policies and concerns stated in the Study Committee Report. Quite simply, for reasons emanating from Nevada's past experience, Nevada has a system of judicial discipline procedures quite different from the systems found in the jurisdictions cited in Justice Shearing's dissenting addendum. We have interpreted the Commission rules in light of the intent of the drafters to create procedures providing an accused judge with a full measure of due process. Moreover, we have interpreted the ARJD in light of the intent of the Study Committee and this court to create a system that is "accusatory rather than inquisitorial, open rather than closed, and accompanied by due process formalities . . . rather than loose, unstructured and informal." See Whitehead I, 110 Nev. at 145-47 n.15, 869 P.2d at 806-07 (quoting Report of Study Committee, ADKT 38 at 8). Thus, Justice Shearing inappropriately relies on Commission procedures and actions approved in other jurisdictions with very dissimilar constitutional provisions, statutes and rules of disciplinary procedure.
While we do not disagree that interpretations of comparable rules by other jurisdictions can be instructive and helpful in many instances, this court first and foremost must endeavor to interpret our own rules in a manner consistent with the purposes, policies, recommendations, and intent explicitly stated by the Study Committee that proposed the basic procedures ultimately promulgated by this court. The fundamental flaw in Justice Shearing's interpretation of the ARJD is traceable to her failure to heed this elementary rule of construction and to acknowledge the plain intent underlying the ARJD.
There are other aspects of the dissenting addendum with which we take issue. We have confined our response to the above-described assertions contained in Justice Shearing's dissenting addendum because they in particular are so fundamentally at odds with our view of the facts and the law, and because further clarification of our rulings that have been so unfortunately misinterpreted may enable the Commission to avoid future prejudicial errors.
E. JUDGE GUY'S CONCURRING AND DISSENTING ADDENDUM
In his separate concurring and dissenting addendum, Judge Guy states:
I dissent from that part of the Majority Opinion stating that the Commission and a judge may not agree to a judge's censure, removal, or forced retirement without a public probable cause hearing.
(Emphasis added; footnote omitted.) Thus, Judge Guy has apparently misconstrued our holding to mean that the Commission's probable cause hearings must be open to the public. We hasten to correct this misapprehension.
Under the present rules, probable cause hearings are not public. See ARJD 5(1) ("[a]ll proceedings must be confidential until there has been a determination of probable cause and a filing of formal statement of charges"). Additionally, pursuant to ARJD 16, confidentiality ceases only after the Commission returns a finding of probable cause, designates a prosecuting attorney, and a formal statement of charges is signed under oath and filed with the Commission by the prosecuting attorney. ARJD 16 provides in part:
In all cases in which probable cause for disciplinary action is found by the commission, the commission must designate a prosecuting attorney who must sign and file with the commission a formal statement of charges signed under oath by the prosecuting officer. Thereupon, confidentiality ceases. The formal statement of charges is a public document.
(Emphasis added.)
Moreover, as we have emphasized repeatedly in our opinions, the Nevada Constitution commands that the Commission, after a preliminary investigation, either dismiss the complaint or schedule a hearing. Nev. Const, art. 6, § 21(7). The constitution also requires the confidentiality of Commission proceedings except a decision to censure, retire or remove a justice or judge. Nev. Const, art. 6, § 21(5)(a). Thus, "in all cases" a formal statement of charges — a public document — must be filed after the Commission conducts a probable cause hearing and returns a finding of probable cause. Prior to the filing of the formal statement of charges, the Commission proceedings are confidential.
It would be perfectly proper, of course, for a respondent judge, at the scheduled probable cause hearing, to concede the issue of probable cause, thus enabling the Commission, should it elect to do so, to dispense with the presentation of evidence. This opinion does not rule out this possibility. In such a case, however, the Commission would nonetheless be obligated under ARJD 15 and 16 to determine independently the existence of probable cause and designate a prosecuting attorney, who, in turn, would remain obligated to file and sign, under oath, a public document constituting a formal statement of the charges. This procedure assures that this court and the public will be made aware of the actual charges upon which the finding of probable cause is based. [Headnote 49]
After a finding of probable cause and the public filing of the formal statement of charges, a respondent judge may thereafter consent to his or her censure, removal, or retirement at any stage of the proceedings. See ARJD 31. Nevertheless, even where a respondent judge concedes the existence of probable cause at the probable cause hearing and thereafter consents to an order of censure, removal, or retirement, the Commission "must" also, "after reaching a decision that discipline should be imposed . . . prepare and adopt a written statement of the nature of the proceeding, findings of fact, and conclusions of law on the issues presented by the formal statement of charges and the answer thereto, if any." See ARJD 30 (emphasis added). Thereafter, a certified copy of the order of censure, removal, or retirement must also be filed with the clerk of the supreme court. See ARJD 31.
PART VII: CONCLUSION
Because the Campbell Complaint is procedurally insufficient and clearly invalid under the ARJD, we conclude that the Commission lacks jurisdiction to proceed to a probable cause hearing against Petitioner based upon that complaint. We therefore grant Judge Whitehead's petition for a writ of prohibition with respect to the Campbell Complaint.
The Commission has not conducted its investigation and proceedings relating to Petitioner in the same manner accorded to other respondent judges in the past. We therefore grant Judge Whitehead's petition for a writ of mandamus commanding the Commission, in any of its future activities concerning any and all respondent judges, including Judge Whitehead, to proceed in an even-handed and uniform manner consistent with the state constitution and the ARJD as interpreted in this opinion. Accordingly, should charges of judicial misconduct be pursued against Judge Whitehead with respect to the claims asserted in the Breen or Holmes complaints, the Commission is directed to provide Petitioner with all materials generated by Campbell's investigation including, but not limited to, all materials provided to this court for its in camera inspection, which materials are, by order of this court, to be returned to the Commission.
We expressly retain jurisdiction to carry forward and implement all determinations and rulings that we have made in the course of these proceedings or will make in the future.
Springer, J., and Zenoff, Sr. J., concur.
We emphasize that this court must interpret the current, permanent Administrative and Procedural Rules of the Nevada Commission on Judicial Discipline, Supreme Court Rules, Part VII (ARJD). The current ARJD have been in effect since 1988 and have applied throughout the instant proceeding. Therefore, any expressions or comments as to possible improvements to the existing rules would be irrelevant with respect to these proceedings.
The Commission has pressed this court for an early decision. See, e.g., ADKT 189 (emergency petition filed by the Commission on July 22, 1994, asserting "that a crisis situation exists which justifies the immediate attention and intervention of the Nevada Supreme Court"); see also the Letter of June 20, 1994, from Commission Chairman Shipler to Chief Justice Rose requesting that this court provide prompt "clarification" and "coherent direction" with respect to the ARJD. The Commission has advised that it has "more than one hundred other complaints pending before it," and that it has notified all complainants that it is holding in abeyance all proceedings in judicial discipline matters "[a]s a result of ongoing litigation concerning procedures before the Commission." The propriety or necessity of the Commission's decision to suspend any of its other proceedings is not before this court. Of course, we express no opinion at this time regarding the Commission's decision to hold any particular matter in abeyance. We note, however, that the wheels of justice across the nation do not ordinarily grind to a halt simply because important issues of procedure are under review. Moreover, the Commission has not explained why this court's review of any particular issues in this proceeding necessarily forecloses the Commission's review and rejection of an undoubtedly large percentage of complaints which are subject to out-of-hand dismissal as unfounded, frivolous, or lacking in grounds necessary to properly invoke the Commission's jurisdiction. See Shaman, Lubet and Alfini, Judicial Conduct and Ethics, § 13.15 at 419 (1990) (nationwide, 75 % percent of all judicial disciplinary complaints are rejected as unfounded, frivolous, or lacking proper jurisdiction).
We therefore deny Petitioner's motion of May 27, 1994, requesting a further briefing schedule.
It will be apparent later in this opinion that, if the Commission constituted a body insulated from challenge unless and until a respondent judge elected to appeal from a Commission decision to discipline, the Commission could essentially function in total secrecy so long as judges were willing to accept the Commission's dictates without complaint. The impact such a system would have on the independence of the judiciary should be evident to everyone.
Unfortunately, the Commission, shortly prior to this court's issuance of Whitehead II, expended scarce public funds by mailing to all members of the State Bar copies of various documents, including the Commission's procedurally and substantively deficient Petition for Rehearing. The unprecedented mailing constituted an obvious, and totally misleading attempt to undermine the reasoning of this court's ruling in Whitehead I. This court's opinion in Whitehead II thoroughly addressed the erroneous and deficient positions taken by the Commission in its Petition for Rehearing.
We note with interest, however, that it appears that our dissenting colleague, Justice Shearing, has previously also recognized the propriety and constitutional necessity of maintaining the confidentiality of Petitioner's interlocutory filings in this court. In response to a formal request for interim relief made by Petitioner in his initial petition, Justice Steffen entered an order on July 22, 1993, directing that the proceedings involving Petitioner in this court and before the Commission should remain confidential. On July 30, 1993, Chief Justice Rose, Justice Springer, and Justice Steffen entered a second order specifically reaffirming Justice Steffen's prior ruling that Petitioner was entitled to confidentiality. On November 3, 1993, Chief Justice Rose, Justice Steffen, Justice Springer and Justice Shearing all signed an order concluding that Petitioner could elect to waive his right to confidentiality. In this order, which we emphasize was signed by four justices including our dissenting colleague Justice Shearing, this court observed as a preliminary matter that the issue regarding Petitioner's request to waive confidentiality was before the court "due in part to serious breaches of confidentiality by 'unnamed sources' in apparent violation of both the Nevada Constitution and the rules of this court." (Emphasis added.) Further, this order observed that Petitioner "has borne the brunt of the press accounts of the proceedings against him . . . ." Petitioner subsequently waived his right to confidentiality, and the proceedings before this court thereafter became public. It is also worthy of note that the Board of Governors of the State Bar of Nevada subsequently issued a public statement noting that "[ARJD] 40(7) allows a judge accused of misconduct to challenge the jurisdiction of the Commission. Judge Whitehead has filed a petition challenging the jurisdiction of the Commission. Until there has been a determination that probable cause exists, proceedings alleging misconduct are to be conducted confidentially."
As noted later in the body of this opinion, there are many state disciplinary systems that provide for confidentiality until such time as a discipline commission makes a recommendation for discipline to the highest court in the state. Public awareness of these proceedings comes at a much later time than under the rules adopted by this court for Nevada's disciplinary scheme.
We note that the recent amendment to article 6, § 21 of the Nevada Constitution does not in any way affect the requirement for either a dismissal or a hearing. Nor does it affect the right of the public, under Rule 16, to be fully informed of a finding of probable cause resulting from the necessary hearing.
In Kamasinski, the court observed:
Connecticut's judicial review process is clearly based on the understanding that open proceedings prior to a finding of probable cause would invite chronic, disgruntled litigants to use the JRC proceedings as a forum for collateral litigation of legal claims or theories rejected elsewhere or for the pursuit of vendettas against judges. Without confidentiality at the preliminary stage of judicial conduct review, Connecticut might have difficulty attracting and retaining high quality personnel for its judiciary if judges were to face continual abuse and harassment in JRC proceedings as a consequence of discharging their constitutional duties. Even more ominously, if exposed to complaints in open, preliminary proceedings, Connecticut judges might tend to be intimidated or unduly influenced by belligerent litigants who would be more likely than others to commence a retaliatory campaign of harassment of the judge before the JRC. The Connecticut General Assembly . . . stated in the preamble to the JRC statutes that "the continued independence of the judiciary is indispensable." Conn. Gen. Stat. § 51-51g.
Id. at 1092.
It is ironic indeed, that, as noted above, the dissenting justice would find a statute preeminent over a conflicting court rule adopted pursuant to constitutional mandate, and then argue, in clear effect, that the constitutional requirement of a dismissal or a hearing is superseded by ARID Rule 31 that states "[ujpon written consent of the respondent, the commission may order, the respondent's censure, removal or retirement at any stage of the proceedings and this order takes effect immediately. A certified copy of the order must be filed with the clerk of the supreme court and a copy of the order must be served on the respondent." Despite the fact that Rule 31 is included under Section V of the ARJD entitled "PROCEDURE AFTER FINDING OF PROBABLE CAUSE," Justice Shearing argues that at any stage of the proceedings means at any time after the filing of the complaint, including the period prior to a determination of probable cause. Thus, the dissenting justice not only arrogates primacy to her construction of Rule 31 over the constitutional requirement for either a dismissal or a hearing, but then undermines her own claim of preference for openness. If the Commission were free to disregard the constitutional provision that requires it, after "preliminary investigation," to "dismiss the matter or order a hearing to be held before it," then we would have a constitutional body that could grant or withhold favor or punishment under cover of darkness and in accordance with its biases for or against respondent judges — precisely the condition that has prevailed due to the Commission's failure to abide by the current Commission rules.
It should be noted, moreover, that the Commission has compounded the problem even under the Shearing interpretation of Rule 31 by making no attempt — except on one occasion shortly after the Rule took effect — to comply with the Rule's mandatory requirement that a certified copy of the Commission's consent orders be filed with the clerk of the supreme court. With only that one exception, in no instance, including those itemized in Justice Springer's concurring opinion, has the Commission ever filed its consent orders with this court! Neither the public nor this court has been made aware of the allegations of misconduct and the basis for the Commission's ad hoc rulings. Public awareness has thus been either totally circumvented or at best greatly restricted by the Commission's practice of eliminating both the constitutionally required probable cause hearing and the filing of consent orders reached through a bargaining process. Moreover, the Commission has provided no basis — other than blind trust — for evaluating the Commission's performance.
It is indeed both ironic and tragic that Petitioner Whitehead, certain other judicial officers, and this court have become the equivalent of sacrificial lambs in the process of enforcing a public disciplinary process as contem plated by the ARJD. It is far better that a rare pre-probable cause jurisdictional challenge be reviewed in confidence than that the entire disciplinary process be enshrouded in secrecy. As long as judges are given the option of a secret "deal" with limited or no publicity as opposed to public notoriety upon judicial challenge, a closed system will be the rule rather than the exception.
Again, we are not speaking hypothetically. In the case of Judge D, in announcing the public censure of the judge, Commission Chairman Shipler was quoted in the media as saying "[i]f [Judge D] had not agreed to the censure, he could have faced a public hearing in which all the details of the case would have become public information." (Cite omitted to discourage further notoriety occasioned by the Commission's breach of confidentiality.)
Please note that if the Commission had adhered to the constitutional mandate of either a dismissal or a scheduled hearing after preliminary investigation, there would have been a "public hearing" only in the event of a determination of probable cause. Also, assuming a finding of probable cause by the Commission, ARJD 16 would have required the public filing of a formal statement of charges which the Commission would have heard at a later, public hearing unless the judge agreed to a consent order under Rule 31. Finally, if this procedure had been followed, either Judge D would have avoided damaging public criticism by prevailing in a probable cause hearing or, in the event of a probable cause finding, the public and this court would have been fully aware of the charges and the basis for any discipline imposed and the propriety of the Commission's ruling.
The procedure specified by the Nevada Constitution and implemented by this court in the ARJD simply provides for confidentiality and the protection of a respondent judge's reputation by the dismissal of a complaint, or a finding of probable cause for discipline with full public awareness of the charges and the results of the disciplinary process. Thus, no form of discipline may be imposed in the State of Nevada without fiilly informing the public after a finding of probable cause.
In Doe v. State Com'n on Judicial Conduct, 520 N.Y.S.2d 513 (N.Y. Sup. Ct. 1987), a New York Supreme Court denied a judge's request to seal court records concerning the judge's challenge to judicial conduct commission proceedings. Citing to Nicholson, the lower court observed that "there is neither a blanket rule requiring all court proceedings remain confidential, nor one mandating openness in all cases" and that "a court may draw on its power to seal its own records in an appropriate case." Id. at 515 (emphasis added). Under the facts of the particular case before it, however, the court concluded that an order sealing the record was not warranted. In particular, the court noted that conduct alleged had already been publicly disclosed.
In referring to the shift from the Commission's forum to that of this court as being a "temporary" one, we are, of course referring to those instances where, as here, the jurisdictional challenge results in a remand to the Commission rather than an outright dismissal of the discipline proceedings. It is a fundamental principle of law that if, in a given case, it could be demonstrated that the Commission was acting without jurisdiction, dismissal would be mandatory. As an example based upon historical fact with the Commission, if the Commission were to accept jurisdiction over a non-judge judicial candidate, and interfere with the candidate's election campaign, or elect to publicly censure judges without first receiving a cognizable complaint or giving the respondent judges (who in fact had committed no act of wrongdoing) an opportunity to be heard in a probable cause hearing, this court, upon challenge, would have no alternative other than to dismiss the unlawful exercise of jurisdiction by the Commission. In this historical example, confidentiality was not an issue in brief proceedings in this court because the Commission had already unlawfully released its unlawful sanctions to the media.
We note that, under the rules adopted by this court for the Commission, judicial discipline proceedings become public in Nevada after a finding of probable cause has been made by the Commission and the public filing of a formal statement of charges, a point far earlier in the proceedings than is apparently the case in Pennsylvania.
See, e.g., Commission's Opposition to Motion for Appointment of Master/Investigator at 1.
See State Supreme Court Secretly Halts Probe of Washoe Judge, Las Vegas Review-Journal, October 10, 1993. Throughout this opinion we will from time to time refer to media accounts respecting the many facets of this case. We consider the extensive media attention devoted to this matter to be relevant in establishing that unlawful, unethical, and improper disclosures and comments have been made to the media, with the predictable and deleterious result that the administration of justice has been impeded and the judiciary in this state has suffered a loss of public respect and confidence. We wish to make it clear that this court has not relied on any facts related in media coverage as a basis for any other findings and conclusions.
We note that the Chief Judge neglected or elected not to submit his allegations of misconduct "under oath" as required by ARJD 12(1).
See Secret High Court Ruling to Be Protested, Las Vegas Review-Journal, October 12, 1993. Chief Judge Brent Adams' reported public declaration is simply in error. See Nev. Const, art. 6, § 21(5)(a); ARJD 5(1); see also SCR 121; State ex rel. Bilder v. Township of Delavan, 334 N.W.2d 252 (Wis. 1983) (discussing inherent authority of court to limit public access to judicial records when administration of justice requires it). Additionally, as the American Judicature Society has commented in its amicus brief, this court "was correct, if it were going to intervene at all, to request the Commission's papers on a confidential basis and to review them in camera."
See Secret justice is no justice at all, Las Vegas Review-Journal, October 17, 1993 (editorial by Thomas Mitchell).
See Commission Letter to the Justices of the Nevada Supreme Court, dated October 14, 1994. The Commission's refusal to comply with this court's orders was the primary subject of this court's interlocutory rulings in Whitehead I and Whitehead II.
See Nevada State Bar to Review High Court Flap, Las Vegas Review-Journal, November 4, 1993. We also note the irony of a letter sent to the members of this court and others from the then President-elect, stating that she had attended the ABA Leadership Forum in Washington, D.C. on November 7 and 8, 1993, where the attendees were informed, inter alia, that "[i]n regards to the perception of the public, it was brought [to] the group's attention that when one negative comment or statement is communicated to 13 other individuals, it will take 20 positive comments to each individual to overcome that one negative comment, or multiplied by 13, a total of 260 positive comments just to overcome one negative comment." Perhaps this may serve to illustrate the extensive and irreparable nature of the damage that has been unjustifiably and improperly generated over these proceedings.
As Petitioner has repeatedly pointed out in this proceeding, the Commission previously exceeded its jurisdiction and violated its rules when it took action against Petitioner, another district judge, and a candidate for the office of district judge. To the Commission's credit, it later issued a clarification vindicating the three subjects of its unwarranted conclusions and expressing regret for its actions.
See Commission's Opposition to Motion to Disqualify Chief Justice Rose at 6.
Specifically, the Attorney General has reportedly indicated that "[w]hat-ever happens in the federal investigation . the war will go on in Nevada." See FBI Investigates a Nev. Judge Inquiry, The National Law Journal, April 18, 1994.
This court is grateful for the American Judicature Society's amicus brief. The Society has submitted a responsible, objective, and helpful evaluation of the Commission's procedures and these proceedings. We grant the motion to file the amicus brief submitted by the American Judicature Society, and order the clerk of the court to file it forthwith. We are also grateful for the responsible and helpful amicus brief submitted by Attorney Leo Puccinelli for the Ad Hoc Committee for the Preservation of an Independent Judiciary which was filed by order of this court on May 19, 1994.
In the Amicus Curiae brief of the American Judicature Society, the Society opined that "as a general matter, . . . extraordinary writs should be reserved for those rare occasions where a disciplinary commission is acting so far outside the bounds of its permitted functions that it has become a 'rogue commission.'" Am. Judicature Soc'y's brief at 14. We essentially agree. Unfortunately, as we will partially reveal in this opinion, the Commission has been so functioning. In pertinent part, the term "rogue" refers to: "no longer obedient. . . and hence not controllable or answerable; deviating . . . ." The Random House Dictionary (2d ed. 1987). We hasten to observe, however, that a "rogue commission" may, as here, consist of members who are clearly not "rogues." Without doubt, however, the Commission has been functioning without obedience to, or regard for, the dictates of its own rules of procedure and the Nevada Constitution.
The respected district judge filed the initiating complaint with the Commission against "Judge D," and wrote to the members of this court regarding the procedures employed by the Commission in resolving his complaint.
See FBI Investigates a Nev. Judge Inquiry, The National Law Journal, April 18, 1994 (quotation attributed to Attorney General).
Although the Commission referred to Judge D by name in its motion, we will continue to use the designation "Judge D."
Early in its history, for example, the United States Supreme Court even conducted jury trials in the exercise of its original jurisdiction. Id. at 12 n.36.
We also noted in Whitehead II that where there are incontrovertible facts verifiable from records in the building where we sit, our precedents do not require us to disregard them. See Whitehead II, 110 Nev. 380, 418 n.35, 873 P.2d 946, 970 (1994) (citing Cannon v. Taylor, 88 Nev. 89, 92, 493 P.2d 1212, 1213 (1972)) (opinion on rehearing); see also Eureka Bank Cases, 35 Nev. 80, 98-109, 126 P. 655, 659-664 (1912) (over objection of the state, court heard and considered testimony and evidence relevant to the issue of probable cause to indict in the context of an original proceeding instituted in the supreme court seeking a writ of habeas corpus). In the final analysis, we concluded that our reference to this evidence is necessary because this court is no longer willing to indulge the charade promoted by the Attorney General to the effect that the Commission has been functioning in a consistent manner in the investigation and administration of discipline matters, and that this court has provided a favored and unjustifiable intervention on behalf of Petitioner Whitehead.
We have directed the clerk of this court to include redacted copies of the letter from the complaining judge and Justice Steffen's memorandum as part of the official record of this proceeding for the express purpose of demonstrating the fact that this court, or at least certain of its members, had serious concerns about the way the Commission was functioning immediately prior to Judge Whitehead's filing of the instant petition for writ relief with this court. It should be emphasized that Justice Steffen's memorandum does not represent, nor is it intended to be inferred to represent, an authoritative position of the court with respect to the views expressed therein.
It is of serious concern to this court that the Attorney General apparently has declared publicly that she has no knowledge concerning "Judge D." See High court slams probe of judge, Las Vegas Review-Journal, April 23, 1994, indicating that "Del Papa said that she was not aware of the case [Judge D]." We are reliably advised that a member of the Attorney General's staff performed the investigation concerning Judge D and obtained the numerous signed statements from witnesses. We are further advised that Assistant Attorney General Brooke Nielsen informed the complaining judge that the probable cause hearing had been cancelled. The complaining judge was also given the name, which we need not divulge here, of the Commission member who decided to cancel the probable cause hearing in order to have the matter resolved by negotiation. In the event the Attorney General desires to deny the accuracy of this information, she may do so by filing a sworn statement with the clerk of this court to that effect and the matter may be properly included as a matter for investigation by the special master appointed in these proceedings by this court.
We will consider elsewhere in this opinion the propriety of the Commission's position based upon ARJD 14(5) which provides: "In preparing to oppose a determination of probable cause, the respondent has the right to inspect all records of the commission relating to the disciplinary action against the respondent and to be fully advised as to the contents of the administrative record considered by the commission determining that there was sufficient reason for a probable cause hearing." (Emphasis added.)
It will be recalled that the Commission's letter of October 14, 1993 constituted an outright refusal to obey this court's order of October 4, 1993, requiring the Commission to produce all investigative materials concerning the Whitehead matter for an in camera inspection by this court.
Notably, this Petition for Rehearing was signed not only by Commission counsel, but by each individual member of the Commission involved in these proceedings. See Whitehead II, 110 Nev. at 387, 873 P.2d at 951.
It has been no small source of concern to this court that the Commission and Commission counsel have been so willing to play fast and loose with the facts in these proceedings. The Commission, for example, through Commission counsel, makes the blatantly false assertion here that "[t]his rule of confidentiality [regarding the availability to the respondent judge of witness statements and identity] has been continually applied to prohibit the judge who is the subject of the investigation from obtaining this information, for to rule otherwise would impair the Commission's ability to conduct an investigation upon receipt of complaints." As noted during the oral argument held on May 20, 1994, there was also no factual predicate for the statement of the Commission (each individual member serving in these proceedings) and Commission counsel that this court had accorded "long-standing acquiescence" to the investigative procedures "historically followed by the Commission." Aside from the implications resulting from what would appear to be a violation of ARJD 14(5), we emphasize again that the investigation of Judge D resulted in the Commission providing to Judge D all signed, written statements of the adverse witnesses. All of these statements and the identities of the witnesses were provided to Judge D prior to a scheduled probable cause hearing, which was subsequently cancelled and never held. We also emphasize that Judge D and Petitioner Whitehead were being investigated contemporaneously. Thus, it can hardly be said that the misstatement quoted above was the result of an oversight or dimmed memory.
Again we note, without accepting at face value the accuracy of the Las Vegas Review-Journal's attribution to the Attorney General (see supra note 35) that Del Papa reportedly denied having any information concerning Judge D. If the report is true, the denial appears to be patently false, and represents one more aspect of this case that should be investigated. A press release issued by the Commission regarding Judge D indicates, at paragraph 7, that "[t]he Attorney General's Office will conduct follow-up investigations at six month intervals to assess the judge's behavior and will report the results of the investigations to the Commission." See Exhibit P to Petitioner's Answer to Petition for Rehearing, filed April 22, 1994. Interestingly, this same release, at paragraph 2, specifies an 18-month probationary period imposed against Judge D during which "[t]he Commission must receive no sworn written complaints of judicial misconduct, which can be verified as being supported by probable cause. . . ." This seems to imply that the Commission would determine whether probable cause exists on any such future complaints without convening a probable cause hearing as required by Commission rules. It thus appears that the "probation" imposed against Judge D without a finding of probable cause includes the threat of such a finding based upon any future complaint and without giving Judge D the benefit of a hearing and the opportunity to present evidence in opposition to such a finding. Needless to say, this would constitute a blatant violation of Commission rules and a violation of Judge D's fundamental rights to due process. In addition, since the Attorney General monitors Judge D's performance (and "assesses" it for the Commission) while litigating criminal and civil matters before him, there are additional, highly significant problems resulting from this procedure. See In Interest of McFall, 617 A.2d 707 (Pa. 1992). These problems have already manifested themselves in this court with petitions in death cases requesting affidavits from members of this court and the Commission to the effect that no member of this court or no trial or other district court judge connected with the cases is, has been, or may be subject, during any of the proceedings, to disciplinary probation administered by the Attorney General.
Of concern to this court in any ongoing "war," as apparently envisioned by the Attorney General, see supra note 26, either in this court or in a different forum, will be such considerations as: (1) the relationships and the nature thereof between Commission members, the Attorney General and others respecting Judge D and Petitioner Whitehead; (2) the role that such relationships may have played in the disparate treatment and approach taken in the two proceedings; (3) an objective view of the comparative seriousness between the complaints against Judge D and Petitioner Whitehead; (4) evidence regarding favored treatment and selective prosecution involving Judge D, other judges, and Petitioner Whitehead; (5) evidence concerning why a complaining judge, claiming that duty arising out of Canon 3D (1) of the Code of Judicial Conduct compelled him to complain to the Commission about Petitioner Whitehead, failed to also complain against other judges that he represented to this court were doing the same thing; (6) why the Commission saw fit to provide secrecy to Judge D with respect to the full extent of the charges against him, and has steadfastly opposed attempts to ascertain the sources of unlawful disclosures of confidential materials and documents concerning Petitioner Whitehead; (7) why the Commission voluntarily provided Judge D with the names and statements of the witnesses against him, but stridently opposed giving such information to Petitioner Whitehead on grounds that it would be rendered impotent if it did so; and (8) why the Attorney General reportedly denied having knowledge about the proceedings involving Judge D.
In the letter referenced above addressed to the members of this court, the complaining judge in Judge D's case noted that the Commission's actions with respect to Judge D did not conform to the instructions sent to the complaining judge by the Commission. The Commission's instruction sheet stated:
The Commission, through its secretary, conducts an initial screening, after which the Commission may reject the matter or order a preliminary investigation by an attorney or an investigator. After the preliminary investigation, the Commission must either dismiss the matter or order a hearing.
We are generously assuming, of course, that there was a complaint properly invoking the Commission's jurisdiction in the first place. We express no opinion as to whether this was actually the fact.
We note, parenthetically, that in only one case processed under the current ARJD where the Commission has imposed any form of discipline by consent of the respondent judge, whether in supposed conformity with Rule 31 or not, has there been a certified copy of a Commission order imposing discipline filed with this court as required by Rule 31.
We note that there is no provision in the ARJD that would prohibit a respondent judge from conceding probable cause to the charges of the sworn complaint at the probable cause hearing. In any such case, however, a public, formal statement of charges would still have to be filed as required under Rule 16. The public would then have complete knowledge of the charges against the respondent judge. Thereafter, if the Commission and the respondent judge were so inclined, a consent order imposing censure, removal or retirement of the judge pursuant to Rule 31 would be entirely permissible. The public would still be fully informed, as a certified copy of any such disposition would have to be filed with this court as a public document in accordance with Rule 31.
In commenting on the power of the Pennsylvania Judicial Inquiry and Review Board to conduct secret proceedings up until the point where it recommends the imposition of a sanction by the Pennsylvania Supreme Court, the court has observed:
Unaccountable secrecy, with its attendant opportunity to harass, intimidate, favor, raise or lower standards in particular unreported cases, to satisfy their view of what ought to be or not be, is a power beyond any known to our law. A tribunal that operates in secrecy can indulge its suspicions, yield to public pressure, even its whims, send zealous agents with a deliberate intent to find grounds to bring a judge beneath its influence for good or purposes of their own. Their purposes can run the gamut used by secret power to bend compliance to their wishes. Whether they do or not, the existence of the possibility must render them strictly accountable whenever their proceedings surface.
See Matter of Chiovero, 570 A.2d 57, 60 (Pa. 1990).
The amicus brief filed by the American Judicature Society concludes with the recommendation that we "interpret the Rules and pass on the procedural aspects of the case, or, more efficiently, dismiss Judge Whitehead's charges without prejudice." Although this is a writ proceeding, not an appeal and we do not dismiss or remand in writ proceedings, we are finally in a position to accomplish our original task, thus recognizing, as did the Society, that "[w]hat the Nevada System needs now is . an interpretation of the governing Rules as a matter of law." As will shortly be seen, this opinion interprets the rules implicated in this original proceeding and prohibits further proceedings on the faulty Campbell Complaint before the Commission. Whether and to what extent the Commission may elect to proceed on the sworn Breen complaint and the aspect of the sworn Holmes complaint concerning the allegations relating to a change of venue in the Kinnamon case is a matter for the Commission to decide.
In composing his complaint, Special Deputy Attorney General Campbell, as Commission counsel, decided to eliminate or incorporate prior complaints into his own complaint. As Campbell averred in an affidavit dated August 11, 1993, he relied on an array of interviews of unnamed witnesses and on "four separate written and verified complaints," namely, the sworn complaints of Judge Peter Breen and former Washoe County District Attorney Dorothy Nash Holmes. In preparing his own, superseding complaint it is apparent that Campbell made certain judgments as to the merits of the sworn complaints already on file. For example, Campbell states in his affidavit that "most of the allegations alleged by Ms. Holmes were eliminated as potential charges," but that one charge was "found [to have] merit." (Emphasis added.) After having eliminated what he decided did not have merit, Campbell discarded the old complaints and filed a new one of his own. Campbell's decision to do this was apparently ratified by the Commission; otherwise, Chairman Shipler would not have described the Campbell Complaint as the "charging document" upon which the Commission was to rely. Thus, it is clear that if the Campbell Complaint is jurisdictionally deficient, the Commission must be prohibited from proceeding to a probable cause hearing on the basis of that pleading.
ARJD 12(1) requires that complaints "must be made upon oath and in writing and may be made by the person complaining." (Emphasis supplied.) The use of the word "may" in the second clause merely means that the complaint "may" be made by the person complaining or by the executive officer if the requirements of ARJD 12(2) are met. As we will discuss, the requirements of ARJD 12(2) have not been satisfied.
Although the Campbell Complaint is signed by Donald J. Campbell, Campbell signs as "Special Counsel," ostensibly as counsel for one Eve M. King. It is thus not entirely clear who was intended as the real "complainant." If Eve M.' King were to be considered as the complainant, there is certainly nothing in the ARJD that would permit her to make her complaint through her attorney. No matter how the Campbell Complaint is viewed, it does not conform to the formal requirements of the ARJD.
The underlying decision of the New York Supreme Court, sitting in Special Term, Greene County, held that in attempting to conduct an investigation against the judge on matters for which a complaint had not been forthcoming, the State Commission on Judicial Conduct expressly exceeded its jurisdiction and thus the judge had established a clear right to issuance of a writ of prohibition. See Richter v. State Com'n on Judicial Conduct, 430 N.Y.S.2d 796 (N.Y. Sup. Ct. 1980). In the decision of the New York Supreme Court, Appellate Division, Third Department, cited in the above text, the court held that the judge's testimony before the Commission on these matters rendered the writ proceedings moot.
There is a great difference between hiring legal counsel and appointing a "prosecutor" who, under ARJD 16, is charged with preparing a "formal statement of charges" and conducting an investigation preparatory to the "formal hearing" provided for in ARJD 21. Nothing in the rules prevents the Commission from hiring counsel to advise it concerning its first and crucial determination relating to whether the initial sworn complaint filed by a "complainant" (and not by counsel or a prosecutor) has "merit," but such "pre-probable cause" counsel certainly is not empowered to file an initial complaint unless counsel has actual knowledge of judicial misconduct independent of his employment by the Commission and files such a complaint without regard to his assignment with the Commission.
It is common in criminal practice to allow complaints to be filed by police officers or other persons who do not have first-hand knowledge of criminal acts. In such cases, however, a trained prosecutor screens and authorizes such proceedings. Injudicial discipline cases the main protection against improper charges being filed against judges is the requirement that a complainant state facts under oath, and great care must be given to insure the reliability of these statements. This is the reason that ARJD 14(1) demands that the "commission will consider all complaints brought before it with a view to determining whether or not there exists sufficient cause to proceed to a probable cause hearing." "When the Commission receives an unsworn complaint or one based entirely on hearsay it would be proper for the Commission to advise a would-be complainant of the requirements of ARJD 12 and that sworn facts must be presented if the Commission is to proceed. Again we emphasize that the Nevada Commission is not an inquisitional or investigatory tribunal; it is an adjudicatory tribunal. Only a properly-sworn complaint can trigger judicial discipline proceedings.
The Commission freely admits that Campbell did not base any of the allegations in his complaint on his own knowledge, but, rather, that "counsel culled these allegations from both the many complaints on file and the evidence gathered in the investigation, [and then] drafted a proposed complaint, and requested that a probable cause hearing take place."
The rather perplexing quoted language leads us to wonder whether the Commission or Campbell confused or intermingled the sworn complaint requirements of ARJD 12(1) with the language of ARJD 16, which provides that after a finding of probable cause, "the commission must designate a prosecuting attorney who must sign and file with the commission a formal statement of charges signed under oath by the prosecuting officer." Although Campbell's Complaint was unsworn, it does provide a form of formality and authoritative preparation that approaches the formal statement of charges that must be prepared after a finding of probable cause. Under the ARJD there is no authority granting the Commission the right to hire a "prosecutor" until after a probable cause finding, and, certainly, no prosecutor or any other attorney is given the power to sign pleadings other than the formal statement of charges mentioned in ARJD 16.
The Breen and Holmes complaints are the only sworn complaints filed with the Commission. The only portion of the six hundred-page Holmes complaint that was salvaged by Campbell did not, as do the rest of the complaints in this case, relate to Judge Whitehead's manner of administering peremptory challenges under the former SCR 48.1. As incorporated into the Campbell Complaint, the referenced Holmes' charge is that "Judge Whitehead telephoned Deputy District Attorney Larry Guy Sage and asked him to stipulate to move the Kinnamon trial to Elko, Nevada" and that by "seeking to choreograph a change of venue before a prospective jury panel was even seated, Judge Whitehead created the appearance that he was attempting to retaliate against [defense counsel] Mr. Mausert by seeking to have him held financially responsible for the additional costs which would result if such a change of venue would occur."
In one of the Breen complaints, the charge is made that Judge Whitehead "manipulated and persuaded" Valley Bank to fire the firm which filed a peremptory challenge against the judge, to hire another firm, and to withdraw the peremptory challenge. We make no judgment as to whether Judge Whitehead's alleged choreography in the Kinnamon trial either occurred or constitutes judicial misconduct. Nor do we infer any opinion with respect to the allegations of the Breen complaint relating to the Valley Bank matter. It is for the Commission to determine in the first instance whether sufficient cause in fact and law warrants further consideration of any of the allegations in the sworn complaints. For present purposes, we restrict our discussion to the charges out of which all other complaints arise, the manner in which Judge Whitehead handled peremptory challenges.
We conclude as a matter of law that the allegations of misconduct stemming from Judge Whitehead's comments at a continuing legal education seminar do not state grounds for discipline under ARJD 11. Changes in procedure and law frequently result from free and open discourse and criticism voiced at such events. Judges must be accorded the right to free speech so long as their exercise of that right does not entail conduct violative of the Canons of the Nevada Code of Judicial Conduct. No such prohibited conduct is implicated in the allegations relating to Judge Whitehead's participation in the CLE course.
The mere fact that these practices have not been uncommon and have been going on for a long time does not mean that the practices were appropriate or that they were not susceptible of being conducted in such an untoward manner as to constitute judicial misconduct. That the practices were not uncommon is, however, some indication that those who engaged in them may not be guilty of "willful misconduct."
There appears to be no question but that the two mentioned practices were not uncommon throughout the state and to some degree had been problematical over the years. The "problem" certainly existed in other than the "several departments" of Chief Judge Adams' and Judge Whitehead's district. (Attorney Schumacher wrote to us on May 24, 1993, that in Chief Judge Adams' district she was "aware of a number of incidents of concern that involve at least three Departments.") Chief Judge Becker, of the Eighth Judicial District Court, Clark County (who has served as a member of the Commission sitting in judgment of Judge Whitehead), advised this court in a letter dated May 14, 1993, that, although she was "not certain it is a substantial problem with the Bar," in her district "some judges do this routinely and take a peremptory challenge as a personal affront." Interestingly, Chief Judge Becker also advised the court that it was necessary "to make clear to the judiciary " that judges should not engage in the practice of contacting challenging attorneys. (Emphasis added.)
A "judge against whom a peremptory challenge is filed shall not contact any party or attorney representing any party." SCR 48.1 as amended, August 15, 1993.
Under the rather anomalous and ambiguous situation that predated the 1993 rule amendment, challenged judges may have wanted, justifiably, to inquire of a challenging attorney as to whether they should automatically disqualify themselves in future cases or to engage in some other legitimate and perfectly ethical discussion. The mere contact, of itself, was not prohibited by the rule and was not, of itself, ethically objectionable. It is the nature of the contact that might bring it within the field of judicial misconduct. For example, an abusive or coercive approach by a judge could very possibly be seen as a violation of the broad Code provisions relating to the "high standards of conduct" expected of a judge.
Mention has been made of the "ex parte" quality of such inquiries, but it appears that the judge's not including the other attorney in these contacts has little or nothing to do with the problem. The lawyer who is contacted by a judge about that lawyer's reasons for a challenge would not likely be interested in or offended by his opponent's net being a party to the contact. When former SCR 48.1 was in effect, a discipline complaint against a judge would have more likely been based upon the judge's unethical abuse of his station as a judge in improperly accosting the lawyer and demanding in an objectionable manner an explanation for actions which, by rule, called for no explanation.
There are no allegations in any of the "complaints" that any of the conduct by Petitioner related to peremptory challenges that were untimely.
The terms, "deterring" and "chilling" are taken from the Campbell Complaint. The much-repeated, emotive phrase "bullying lawyers" was coined by the news media to describe the accusations made in the "leaked" Campbell Complaint. The word "bullying" does not appear in any of the Commission documents, and the repetitive use of this extravagant and judgmental term is illustrative of the type of damage that has been inflicted on Judge Whitehead's reputation and to his chances of receiving due process in this matter. Whether any of the complaints in this record state "information" or a "belief which if properly charged would show possible violations of Canons 1 and 2 arising out of Judge Whitehead's manner of administering SCR 48.1 is a matter of conjecture; and we make no judgment on the point because of the clear facial invalidity of the Campbell Complaint, i. e., the charging document.
Under the amended rule the clerk will "randomly reassign the case to another judge within the district." SCR 48.1(2)(a).
ARJD 11 provides:
Grounds. Grounds for discipline by censure or removal are:
1. Conviction of any felony or of any misdemeanor involving moral turpitude.
2. Any acts or omissions amounting to any public offense which tend to corrupt or to impair the administration of justice in any court.
3. Any acts or omissions in the performance of judicial or administrative duties which contravene express provisions of the Nevada Code of Judicial Conduct. When applied for purposes of determining whether misconduct has occurred, the provisions of the Nevada Code of Judicial Conduct must, considered as penalty provisions, be strictly construed in favor of the respondent judge.
4. Willful and persistent failure to perform the duties of office.
5. Habitual intemperance.
Judge Becker, who has been serving as a member of the Commission in this case, saw rather clearly the function of the preliminary investigation or inquiry into the merits of an initial complaint when she advised us in her statement to the court dated March 9, 1994, that the Commission was bound to make such inquiry into the merits of sworn complaints because "[otherwise, a judge could be burdened inappropriately by having to come before the Commission in a formal Probable Cause Hearing where the facts would demonstrate that a hearing was not necessary and warranted. This can only be eliminated by a preliminary investigation." The constitutional reference to a preliminary investigation is reflected in the requirements of the ARJD that the Commission must make a preliminary determination of "sufficient cause" before proceeding. These early inquiries will, as indicated in the text, ordinarily be comprised of a review of the written content and legal sufficiency of the complaint (whether, pursuant to ARJD 12(1), it contains facts which, if true, would establish grounds for discipline under these rules), and perhaps limited personal or telephonic inquiries directed to the complainant and other percipient witnesses to the specific charges of misconduct contained in the sworn complaint. In rare cases, a more substantial pre-probable cause investigation might be called for after the filing of a sworn complaint, but before the employment of a prosecutor under ARJD 16. Naturally some investigation by a prosecutor may become necessary and proper after a finding of probable cause when, in accordance with ARJD 16, "the commission must designate a prosecuting attorney who must sign and file with the commission a formal statement of charges signed under oath by the prosecuting officer."
Despite various contrary comments from ethicists and others published in the media, at no time has this court approved, inferred, or implied, the absurd proposition that the Commission has no right to perform a preliminary investigation prior to a probable cause hearing.
In keeping with our ruling, however, to the extent any of the Campbell materials may be properly placed in the category of work product as defined in this opinion, such material need not be delivered to Judge Whitehead. We further direct the clerk of this court to return to the Commission the materials previously submitted to this court for its in camera review.
As noted, after being relentlessly subjected to distorted publicity and calumny produced by the interplay of unlawful and inaccurate disclosures and media collaborators, Judge Whitehead finally asked this court to waive his right to confidentiality. We do not view the judge's attempt at self-preservation to be in any sense a legal waiver of any right he possessed to have these proceedings maintained in confidence. Nor do we view any such waiver as having any legal effect upon his entitlement to due process of law.
During oral argument on this issue, Special Deputy Attorney General Campbell argued that there was no relationship between a breach of confidentiality and Petitioner's due process rights. Indeed, when confronted with a hypothetical assuming that the leaks could be traced to one or more members of the Commission, Campbell maintained that even if such a situation existed, due process would not be implicated because there must be actual bias on the part of the Commissioners. Apparently, Mr. Campbell was contending that under the hypothetical, a Commissioner's involvement in the leaks would merely be indicative of implied bias. This would indeed be a highly dubious proposition in a situation where the nature and extent of the unlawful disclosures approach those encountered in the instant case. In any event, even the appearance of bias is sufficient to warrant the removal of Commission members.
Special Deputy Campbell appears to be confusing the concept of pre-trial publicity with breaches of confidentiality. It is true that undue media attention, standing alone, is not a sufficient basis for trial delay, and that pre-trial publicity does not amount to a per se violation of due process, providing the members of the jury or forum hearing the cause are nevertheless capable of performing their function impartially. However, to conclude that due process is not implicated or offended when jurors or judges themselves are the source of antagonistic press leaks about the accused is clearly untenable.
In light of our conclusions stated in Part IV of this opinion, we decline to resolve this latter request at the present time.
In our order appointing Judge Becker as an alternate to Justice Young we did not order that she sit in all cases irrespective of constitutional limitations, nor did we order that she sit in this case. However, in fairness to Judge Becker, we note that she agreed to serve as an alternate at the request of this court. Moreover, this court was not sufficiently attentive to the fact that it was likely that the appointment of Judge Becker as Justice Young's alternate would result in the unconstitutional presence of two judicial appointees from the same county. In the future, this court will endeavor to appoint alternates from counties other than the two counties in which either of the permanent members resides. We thus wish to dispel any implications of impropriety on the part of Judge Becker whose service as a member of the Commission in these proceedings was the direct result of her willingness to accept an assignment from this court.
The amendment became effective on Wednesday, November 23, 1994. See Torvinen v. Rollins, 93 Nev. 92, 560 P.2d 915 (1977) (state constitutional amendment becomes effective on date votes are canvassed); NRS 293.395(2) (canvass of votes occurs on fourth Wednesday of November after election).
This is not to say that the Commission was completely foreclosed from imposing any discipline except censure, retirement or removal. Incident to an order of censure, for example, the Commission might have also justifiably required the issuance of a public apology. Similarly, in deciding that a judge should be removed or retired, the Commission may also have adjudicated the judge's entitlement to an enhanced disability pension. Depending upon the particular case, it might well have been within the Commission's jurisdiction to impose conditions or sanctions not enumerated in the constitution but which were shown to be necessary and incidental to the effective implementation of an order of censure, retirement or removal.
We do note, however, that a recent news article is highly illustrative of inaccuracies reported in this matter. The article characterizes the Majority ruling as having "nullified] the complaints the Judicial Commission was to investigate regarding Whitehead," and as having "told the commission it must follow new, more restrictive rules if it again tried to investigate Whitehead . . . ." Amazingly, the article also quotes the immediate past chairman of the Commission as having characterized what has happened in these proceedings as "a crime." See, Judicial Panel's Image Hurt, Nevada Appeal, December 12, 1994.
Of course, the rules governing the Commission and interpreted and applied in the Majority Opinion are not "new." The Majority did not pull these rules out of thin air to apply to the Whitehead matter; they have been in eifect and on the books since April 29, 1988. The Majority ruling simply requires the Commission to obey the rules governing its proceedings that have been in effect for well over six years. Moreover, the Majority has not "nullified" the above-noted portions of the initial sworn complaints filed by Judge Breen and former District Attorney Holmes which initiated the Commission proceedings at issue. The Majority has ruled only that the Commission may not proceed on the subsequent, unsworn, invalid "Complaint Seeking Determination of Probable Cause" prepared by Special Deputy Attorney General Campbell. Under the Majority ruling, the Commission is free to pursue those portions of the sworn Breen and Holmes complaints noted above.
As we have explained, in "exceptional circumstances," where there is a "substantial reason" for concluding that it is likely that a complainant may suffer an "untoward risk of embarrassment, harassment, or other detrimental consequences," ARJD 12(2) will permit the Commission's Executive Officer to sign and swear to a complaint upon information and belief, in the actual complainant's stead.
We again emphasize that ARJD 31 appears in Section V of the ARJD entitled: "PROCEDURE AFTER FINDING OF PROBABLE CAUSE." Rule 31 was never intended to permit the circumvention of the required probable cause hearing and the subsequent public filing of a formal statement of charges. It is thus seen that whenever any form of discipline is imposed upon a respondent judge, there will be a complete public record for evaluation by this court and interested members of the public and the media. Any meaningful analysis of a respondent judge's misconduct and the propriety of the Commission's response thereto could not occur without public disclosure of both the specification of charges and the rationale for the Commission's choice of discipline. The current Commission rules have required such disclosure from the time of their adoption by this court in 1988. We further note that the constitutional amendment to article 6, § 21 of the Nevada Constitution, adopted by the people at the most recent election, will not result in any change in these procedures. Following the promulgation of appropriate rules by this court, the constitutional amendment will merely enable the Commission to exercise greater latitude in forms of discipline to be defined in the rules.
Such materials would, however, exclude Campbell's attorney work product as defined in the body of this opinion, unless any part of such product would relate to or reveal a basis for, challenging any member of the Commission to sit in further proceedings against Petitioner Whitehead. In the latter event, such writings or memoranda must also be provided to Petitioner.
On March 10, 1994, the Commission moved this court for an order disqualifying attorney Vivian Lynch and the law firm of Hamilton and Lynch from any further participation in this matter. The Commission also sought an order referring Lynch to State Bar Counsel. We perceive no ex parte communication or conduct on the part of attorney Lynch which warrants disqualification or referral to State Bar Counsel under the circumstances present here. See Cronin v. District Court, 105 Nev. 635, 781 P.2d 1150 (1989). Accordingly, we deny the motion.
In light of this court's holdings as set forth in the opinions and other orders issued herein, we deny as moot the Commission's motions of September 24, 1993, October 18, 1993, and November 24, 1993, seeking dismissal and a remand. We further deny as moot Petitioner's motion of October 18,1993, to strike the Commission's response to the petition and to issue a permanent writ of mandamus or prohibition and for other sanctions.
Cause appearing, any pending and heretofore unresolved motions by the parties seeking leave to file replies are granted. We hereby direct the clerk of this court to file those replies forthwith. All other pending motions are denied because they either seek relief encompassed within the specific directives and relief granted by this court in its prior orders and opinions, or because they request relief considered by this court to be unwarranted under the circumstances.