Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

Proving she still has a few tricks the sleeve of her judicial robe, Judge Elizabeth Halverson has filed a writ of mandamus with the Supreme Court of Nevada claiming she is entitled to a six year term, and should not have to run for reelection this year. Halverson claims that the additions to judicial positions for the Eighth Judicial district in 2005 in SB 195, including her own department 23, with an initial term of two years, violates Nev. Const., Article 6, § 5, setting the terms of judgeships at six years.  She's seeking to prevent the election for her seat from occurring.

Clever argument, although it does kind of suggest she despairs of winning reelection fair and square.

But I wonder if perhaps Judge Halverson considered what could happen if SB 195 were held unconstitutional.   Of course, there would be a severability argument, but couldn’t there also be strong arguments that the judicial positions created are invalid entirely or ineffective unless the election was expressly for a six yer term?  Not that such invalidation would be a  good thing, since a lot more would be at stake than her position - including two other departments.  But those arguments seem kind of obvious to me.

Don't blame Halverson's lawyers for this one.  She filed the writ pro se.

Thanks to Jon Ralston and the Las Vegas Sun for posting the writ.

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The Nevada Commission on Judicial Discipline filed its  Answer to Judge Halverson’s Emergency Petition for a Writ of Prohibition, or in the Alternative a Writ of Mandamus  on Tuesday.  

The Answer is a curious mix of folksy discussion and defensive posturing. In general, the lead in to the argument is a bit strident, and even sneering. I speak, of course,  as a brief writer occasionally guilty of both stridency and sneers, and have no doubt that I shall, in a brief I will write later today, refer to my opponent’s “gossamer claims,” since I quite liked that phrase.

On purely rhetorical grounds, I deplore the use of the series of self-righteous questions, appearing page 7. The indignation displayed therein is not unreasonable, of course, but such questions can all too easily put a reader on the defensive – especially questions that refer to the Court’s “admonitions” as “so general as to be impossible to comply with.” That just might be something less than persuasive to the authors of those admonitions.  

Ultimately, the Answer makes a cogent point about the risk of employment of dismissal of an action as punishment for an alleged lack of alacrity in bringing formal charges.  And certainly there can’t be any doubt that Commission has a lot on its plate, given the Del Vecchio situation.   See posts about that discipline complaint here and here.

We can only wonder what else these poor folks have to investigate.

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Here’s the latest in the never ending saga of Judge Elizabeth Halverson. The judge has filed an Emergency Motion for Stay of Proceedings, requesting that her Emergency Petition for Writ of Prohibition or Mandamus  be resolved before she be required to answer the formal statement of charges filed by the Nevada Commission on Judicial Discipline.

You may recall that the basis of the Petition for Writ was that the Commission had failed to act with appropriate speed in bring the formal charges. Filed prior to the issuance of the formal charges, the Petition calls the delay inexcusable and asks the Supreme Court to prohibit the Commission from taking further proceedings.  Thus, there is just a touch of irony in Judge Halverson’s request that those proceedings, now formally commenced, be further delayed.

However, since the Supreme Court did order the Commission to respond to the Petition, even though by the time of that order, the formal charges had been issued, there is also a certain sense in having the issue of the writ resolved first. 

I’ll let you know how the Supreme Court rules.

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Today, in “Don't show her 'Missouri Plan,'” the Sun reports on Judge Elizabeth Halverson’s interaction with last week’s CCBA monthly luncheon speaker Doreen Dodson, chair woman of the American Bar Association 's Judicial Independence Committee. 

I was present at the CCBA luncheon and thought Judge Halverson’s participation added greatly to the presention.  Before taking questions, Ms. Dodson specifically addressed strategies to deal with hostile questions. Judge Halverson provided her with an excellent opportunity to  demonstrate those skills.  

Lest there be any doubt, I am an unabashed supporter of merit selection for judges. The plan approved by the Nevada Legislature this past session is, save for the 55% retention vote requirement,  very like that used with much success in Colorado for some decades. The Nevada version, like Colorado’s, includes performance reviews by a Judicial Performance Commission, which insures voters have relevant information available in making a retention decision.  I urged the adoption of just such a plan in my October 2006 Communiqué article, “Selecting Judges: Making Informed Choices.”  Kudos to the legislature for taking the first step toward helping Nevada’s judges maintain their independence of big money interests.

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Meanwhile, those with an H. v. H. habit can get their fix from the Sun:

Halverson cooking her own goose?

Lawyers opt out of judge's courtroom

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The R-J’s latest input on the continuing saga:

Jane Anne Morrison comments: Judicial commission might have a say on Halverson controversy

and an update on another of Judge Halverson’s legal pending legal matters: Deadline nears in judge's yard battle

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Or perhaps allusion to Part VI, with the fan favored original title "The Revenge of the CJ"  would be more appropriate?  (OK - so I'm a sci-fi geek.)

Anyway --Judge Kathy Hardcastle filed her response to Judge Elizabeth Halverson’s Petition for Writ of Quo Warranto. 

The Response first moves to strike fact statements in the petition unsupported by admissible evidence.

The Response next sets forth a factual statement, supported by sworn affidavits, including allegations of extremely inappropriate treatment of staff and court patrons by Judge Halverson, and the steps undertaken by the Chief Judge in response to the complaints about the conduct. The response also provides details that led to the order banning Judge Halverson from the Regional Justice Center.

In the Legal Argument section of the Response, the CJ challenges Judge Halverson’s authority to seek a writ of quo warranto. The authority given to a chief judge by statute and rule is recited. Security concerns are then discussed.

Exhibits to the Response may be accessed here (part I), here (part II),  and here (part III).

Heady stuff, without question.  Ligth sabers probably won't be needed.

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Justice Mark Gibbons has recused himself from participation in determining the outcome of the petition for writ filed by Judge Elizabeth Halverson.  Halverson had requested Gibbons be disqualified following the justice's disclosure of conversations he has had related to the pending issues. 

See the Notice of Recusal

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As reported here last week, Nevada Supreme Court Justice Mark Gibbons had disclosed in a court filing conversations he had had with court personnel regarding issues relating to Judge Elizabeth Halverson. Yesterday, Halverson moved to disqualify Gibbons from sitting on her pending case before the high court. 

Since Halverson challenges the authority of a chief judge to make case assignments, and since Gibbons disclosed that he had suggested that Halverson’s docket could be restricted to civil cases, the move is not surprising.

Supreme Court Justice Micharl Cherry had already recused himself from involvement in the case.

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Today is the day Chief Judge Kathy Hardcastle is to respond to the Judge Elizabeth Halverson’s Petition for Writ of Quo Warranto.

Meanwhile, here’s what the media has had to say over the past few days, with a few twists in the saga:

Over the weekend, the R-J had these reports

“Halverson returns to court.”

“Editorial: Big day at the courthouse.”

“WEEK IN REVIEW: Halverson returns to bench after ban lifted”

Yesterday, the Channel 8 had a report entitled Judge Halverson Reveals Illegal Ticket Fixing

And in today’s R-J, John L. Smith gives more info about the ticket “fixing” revelation in  “All these court house favors must stop – at least until I get mine.” 

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The Nevada Supreme Court has partially stayed the order of Eighth Judicial District Court Chief Judge Kathy Hardcastle barring District Court Judge Elizabeth Halverson from the Clark County Regional Justice Center. The stay is conditioned upon Halverson conforming to “the protocol applicable to other elected Eighth Judicial District Court Judges.”  In the same order, the Court also directed Hardcastle to file an answer to Halverson’s Petition for Writ of  Quo Warranto by 4:00 pm of May 23, 2007.  Click here for a copy of the order.

The temporary assignment of Judge Huffaker to Halverson’s docket has been rescinded.  

Justice Mark Gibbons has disclosed a non-disqualifying interest. Gibbons notes that in February, he met briefly with Justice Michael Cherry (who has recused himself from this matter due to involvement by his prior chambers staff) and Halverson for a brief discussion of the need to be courteous to all attorneys and litigants. He also noted that he had brief conversations with Judge Betsy Gonzales and Court Administrator Chuck Short regarding Halverson’s “purported meeting with a criminal jury during deliberations and the legal ramifications.” At that time, he stated the chief judge had the authority, under the Eighth Judicial District Court rules,  to reassign a district judge to a specialized all civil calendar and that such assignment may be a better fit for Judge Halverson.” He does not believe these remarks indicate bias but discloses them so the parties to consider whether his disqualification is necessary. See the disclosure here.  

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In addition to filing a Petition for Writ of Quo Warranto yesterday, Judge Halverson also filed an Emergency Motion for Stay. Halverson asks the high court to stay the order entered by Judge Hardcastle on May 10, 2007, barring Halverson from entering the Regional Justice Center until further notice.

The documents filed in Halverson v. Hardcastle, Nevada Supreme Court Case No. 49453, may be viewed or downloaded from the web site of the Nevada Supreme Court.  Click here for links to Halverson’s Petition, Exhibits to that  Petition, and her Emergency Motion for Stay.

 Additionally, local media weigh in:

The R-J has this report on the dispute: “District judge asks justices to settle fight.”  This article includes Judge Hardcastle's comments regarding the issues raised in Judge Halverson's petition.

KLAS – Channel 8 – “I-Team Exclusive: Judge Halverson responds.”

Judge Halverson appeared on KNPR this morning. The broadcast will be available online tomorrow at KNPR’s website.

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In addition to filing a Petition for Writ of Quo Warranto yesterday, Judge Halverson also filed an Emergency Motion for Stay. Halverson asks the high court to stay the order entered by Judge Hardcastle on May 10, 2007, barring Halverson from entering the Regional Justice Center until further notice.

The documents filed in Halverson v. Hardcastle, Nevada Supreme Court Case No. 49453, may be viewed or downloaded from the web site of the Nevada Supreme Court.  Click here for links to Halverson’s Petition, Exhibits to that  Petition, and her Emergency Motion for Stay.

 Additionally, local media weigh in:

The R-J has this report on the dispute: “District judge asks justices to settle fight.”  This article includes Judge Hardcastle's comments regarding the issues raised in Judge Halverson's petition.

KLAS – Channel 8 – “I-Team Exclusive: Judge Halverson responds.”

Judge Halverson appeared on KNPR this morning. The broadcast will be available online tomorrow at KNPR’s website.

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Judge Elizabeth Halverson sought relief from the Nevada Supreme Court by filing a Petition for Writ of Quo Warranto. The Petition requests that Judge Kathy Hardcastle be required to appear before the Nevada Supreme Court to justify her actions, including requiring Halverson to submit to a panel of judges for mentoring, stripping Halverson of her criminal docket, and ultimately, barring Halverson from the courtroom. 

Thanks to Harmful Error, where  Halverson’s  Petition for Writ of Quo Warranto is posted.

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Just a few short weeks ago, I said these games do have rules, but the subsequent bench-slapping escalation makes me wonder.

Harmful Error discusses Nevada authority that may prove relevant as the Hardcastle/Halverson match progresses.

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Read R-J columnist John L. Smith's take on the Halverson-Hardcastle saga here.

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On Friday, the R-J reported that the Nevada Supreme Court appointed a Senior Judge Stephen Haffaker to replace Eight Judicial District Court Judge Elizabeth Halverson indefinitely. Chief Judge Kathy Hardcastle issued the unusual order after discovery that Halverson had hired personal body guards and allowed them to by pass the courthouse security measures.  Halverson reportedly hired the guards because, after her bailiff resigned, no new bailiff was permanently assigned to her courtroom.

Boyd School of Law Professor Jeff Stempel is quoted as saying, "It seems like trying to swat a fly with a bazooka on both sides, to be honest, both Judge Halverson bringing in the security guards and Judge Hardcastle barring her from the premises."

Click here for the complete story.

I view the the authority of a chief judge to make administrative decisions about a court as fairly broad, but my eyebrows certainly rose at the new that a sitting judge had been barred from the courthouse.  However, the Supreme Court's action certainly lends support to  Chief Hardcastle's action.

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Local sparring between judges is heating up to what surely must be unprecedented levels.

The R-J reports that Eighth Judicial District Court Judge Elizabeth Halverson was banned from the Justice Center on Thursday, because she had employed personal body guards and allowed them to by pass security measures. Chief Judge Hardcastle’s administrative order is said to assert that Judges Stewart Bell, Art Ritchie and Betsy Gonzalez recommended to Hardcastle that she bar Halverson from the bench until Halverson agrees to meet with them and "provide assurances that her disruptive behavior and threats to courthouse security will no longer continue." 

Click here for the complete article.

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Will the next move be checkmate or a slide into  Molasses Swamp?

On Wednesday, I noted the R'J's story reporting that Eighth Judicial District Chief Judge Kathy Hardcastle had ordered a reshuffling of Judge Elizabeth's Halverson's cases.  The R-J reports today that Halverson intends to resist the order.  The story by R-J reporter K.C. Howard quotes Halverson as saying "Some of us play chess and some of us are playing Candy Land."  That remark  was reportedly given in conclusion of Halverson's response to a prosecutor's inquiry about where his case would be next week.  Halverson is also reported to have questioned the authority of the Chief Judge to transfer cases. 

Hardcastle  is said to have responded that the EDCR permit her, as Chief Judge, to assign cases.   A quick review confirms that EDCR 130  expressly authorizes the Chief Judge to  "make regular and special assignments of all judges."  However, in response to concerns raised by defense counsel as to scheduled trials, Hardcastle conceded accommodation might be made where the rights of criminal defendants would otherwise suffer. 

I am not taking sides here, but in my objective opinion, one of these judges is in  zugswang.  One thing chess and Candyland have in common is both require the players to obey the rules.

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If you were scheduled to show up in Departments 17, 18 or 23 on Monday, you might want to call the court and ask where your case will be.

The R-J has an article today that begins, “Chief District Court Judge Kathy Hardcastle is stripping District Judge Elizabeth Halverson's docket of criminal cases.” Because of difficulties with transferring individual cases, all of Judge Halverson’s current caseload will be transferred to newly appointed Judge David Barker. The cases originally assigned to Barker will go to another new appointee, Judge Michael Villani. Halverson will receive the civil cases originally assigned to Villani.  The change is effective Monday.

Hardcastle explains the move as an opportunity to allow Halverson to gain experience. Earlier in the year, Halverson had difficulties in criminal cases due to her speaking to deliberating jurors outside the presence of counsel. Three veteran judges, Sally Loehrer, Stewart Bell, and Art Richie, had been appointed to mentor Halverson. They recommended her caseload be reduced.   

Halverson, however, calls the move “just more of the punitive measures I’ve had to endure,” apparently referencing her close election battle with the Chief Judge’s husband in a race for a Family Court judgeship in 2004. After losing narrowing in that election, Halverson won her District Court seat in 2006.

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