All NV Supreme Court justices should recuse themselves from the Foreclosure Mediation Program case

That's the conclusion of my just-released commentary over at

Imagine that, less than three years ago, you helped create a new government program.

On multiple occasions, you testified before legislative committees on how to set it up. You contributed an amendment to the legislation establishing the program. Once the bill was passed, you and your colleagues mobilized to implement the program, from scratch, in less than 30 days.

Then, your office ran the program and collected fees from it for the next 2½ years - as you do still today. Prominently, on your website, you feature a link to the program.

Frequently, you've gone on television, proclaiming the program a success (Oct. 31, 2011 edition of Nevada Newsmakers, 16-minute mark) and boasting how many people the program has helped. One of your colleagues proclaimed it probably the "most financially stable government program in the state."

Now, imagine that another organization challenges the program's constitutionality and appeals to the Nevada Supreme Court.

Wouldn't you and your colleagues be inclined to vigorously defend your handiwork?

Why, no ... supposedly. Not if the challenged law is the Foreclosure Mediation Program and you're a justice on the Nevada Supreme Court.

In that case, you'd be the ones ruling on the constitutionality of the program!

Yes, you read that right.

The individuals who administer the program, who helped craft the original law, who implemented the program from scratch, who advertise the program on the Supreme Court website, who have frequently and publicly bragged about how many people the program has helped, who collect fees from the program - they are going to be the impartial arbitrators of the program's constitutionality?

Yep. That is exactly what the Supreme Court is preparing to do.
The whole thing - especially the comments by Assemblyman Marcus Conklin - is stunning.

The Supreme Court runs the Foreclosure Mediation Program. The Supreme Court is preparing to rule on the constitutionality of the Foreclosure Mediation Program. That's the very definition of conflict of interest.

The emperor has no clothes here. Everyone knows it, and it's time to start acknowledging it - or Nevada's judiciary will once again become America's judicial laughingstock.

Every Supreme Court justice should recuse themselves from this case - which would be a de facto admittance that the Foreclosure Mediation Program violates the Separation-of-Powers clause in Nevada's Constitution and is unconstitutional.

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