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

That was the conclusion today of the U.S. Supreme Court’s  ruling in Caperton v. A.T. Massey Coal Co.. The Court found that the failure of a  judge on West Virginia’s highest court to recuse himself from a matter in which a sizable donor  to the judge’s election campaign had in interest violated federal due process. I've mentioned this case before: Recusal required due to future campaign contributions?

The Court considered the facts from this case extreme. The donor had contributed $3 million to the judge’s campaign, an amount greater than all other donations combined, and made the donation  after his company had been hit with a $50 million judgment. The recipient of the donations defeated the  incumbent by fewer than 50,00 votes. The judge declined to recuse himself from hearing the matter, and the Court subsequently reversed the judgment on a 3 to 2 decision.

Justice Kennedy authored the 5-4 decision.

As we might have expected, Roberts, Scalia, Thomas and Alito dissented.

Regardless of actual bias, there will always be fears of bias when judicial elections can so easily be influenced by an infusion of cash donations to one candidate or another. In the Caperton decision, the Court noted the potential psychological effect of sizable donations upon the judge.

Such risks are considerably decreased under a merit selection system. Assorted changes in my own life (such as moving to a new firm, etc) have caused me to be remiss in applauding the Nevada Legislature for its second passage of the SJR2, which proposes an amendment to the Nevada Constitution to allow for merit selection and retention elections, rather than elections to select judges.

If the voters show the same wisdom, then the fear of bias resulting from donations to judicial campaigns won’t be an issue in Nevada.  I doubt we have any examples from Nevada with the same extreme facts as in Caperton, but enlighten me if I am wrong.

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Electing judges offers such potential for scandalous stories.

For example, Channel 8 reports that one of the attorneys under investigation by the FBI for allegedly conspiring to bilk insurance companies has claim, on tape, to have several Nevada judges in his pocket.

The attorney, who has not yet been charged with a crime, was being taped without his knowledge.  Ironically, he was apparently complaining that his colleague was mouthing off about the influence they wielded in return for their judicial campaign contributions.  The attorney reportedly said his friend was

telling everybody he, he was telling people that he had the judges in his pocket. I've heard him say it -- I would deny I've heard him say it -- but I've heard him say, ‘Yeah, I've got five or six judges that will do anything I want.' I want to tell you something, I know all those judges. There's five or six judges that will do anything I want. They don't do it for [my friend], so it's for me. I mean, we've got some great friends over there."

The judges in question are not named in the TV station's report.

Read the story at I-Team: Trading Favors for Campaign Cash?

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The Supreme Court directed that an answer be filed in Halverson's challenge to being required to run for reelection.  see Order Directing Answer and Setting Oral Argument 

That answer was filed last week.  See Answer of Harvard L. Lomax, Clark County Registrar of Voters, to Original Petition.

Lomax argues that Halverson 1) named the wrong parties and failed to include necessary parties (including candidates for all the other two year terms created at hte same time as Halverson's)positions created , 2) waited too long to challenge the validity  of her two year term; and 3) requests relief that is not appropriate. 

Conspicuously absent was anything  refuting the merits of Halverson's contention regarding the infirmity of the two year positions.

The last argument refers to Halverson's request that her term be extended for another four years. Lomax argues that it was clear that Legislature wanted judges elected on the same cycle, and accordingly, if unable to create a two year terms for the new judges, might have made the the new judicial positions effective in 2008. Lomax asserts that this is the status quo, and therefore, no relief is required. However, unspoken in Lomax's argument is the problem of what to do with all the decisions made by judges who, if Halverson's argument were accepted, were in consitutionally infirm positions.  

Dare we put our hopes in the success of a laches argument?  Hmm. When would laches attach for other potential challengers to decisions made by any of these judges?

This is becoming very interesting.  And even a little scary.

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