Compare and contrast: Justice Kagan and the Nevada Supreme Court

Victor Joecks

Earlier this week, Supreme Court Justice Elena Kagan recused herself from a case involving Arizona’s controversial law dealing with illegal immigration.

The SCOTUS blog notes that she recused herself because “presumably because she had something to do with the issue in her former role in the Obama Administration Justice Department.”

That’s how it’s supposed to work in court cases. It’s impossible for a judge to be a neutral arbitrator in all cases, because they have friends, family and business interests. So, if there’s a “proceeding in which the judge’s impartiality might reasonably be questioned,” Nevada’s Code of Judicial Conduct, which is adopted by the Nevada Supreme Court, dictates that a judge should recuse himself or herself.

The code then details that this includes times when “[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding” or if a judge is “a party to the proceeding or an officer, director, general partner, managing member, or trustee of a party.”

So, let’s check. The Supreme Court administers the foreclosure mediation program, helped create the program, implemented it, advertises for it on their website, collects fees from it (although the justices don’t benefit from those fees) and publicly brags about the program.

If this isn’t a situation where a “judge’s impartiality might reasonably be questioned” or a “judge has a personal bias or prejudice concerning a party,” I’m not sure one exists.

From the Las Vegas Sun:

The Nevada Supreme Court is in the unusual and uncomfortable position of deciding whether a state program that it operates is constitutional.

The court has since 2009 operated a state mediation program, providing a forum in which homeowners and lenders see if they can negotiate a deal to avoid foreclosure. The Legislature created the program after the housing bubble burst and the state became the nation’s foreclosure capital. It has so far served more than 12,000 Nevada homeowners. …

Assembly Majority Leader Marcus Conklin, D-Las Vegas, wondered last month whether the Supreme Court can be unbiased as it decides this case because it collects fees to administer it.

Here are some of Conklin’s comments that the story is referencing:

Conklin: It [the Supreme Court ruling the FMP unconstitutional] would be kind of odd, because the court administers the mediation program, and the court system retains all the fees. So sometimes you wonder what, you know, what level of bias there might be, you know, in that process, but I would suspect that they would uphold it.

Nevada Newsmakers host Sam Shad: You’re concerned about bias from the Supreme Court due to the fact that they collect fees from the program?

Conklin: I’m not concerned about it, but the fact still remains that they administer that program, so, because they administer that program and they know it in detail, you know, I would assume it’s awfully hard to argue against.

Not to mention the fact that members of the court were there to testify in support and participate in the drafting of the law in the first place. So, I would hope if there’s a constitutionality question, we would have addressed it during the legislative session when we had members of the Supreme Court present.

Given this information, let’s try some simple logic.

Nevada’s Code of Judicial Conduct, which is approved by the Nevada Supreme Court, says a judge should recuse himself or herself from a “proceeding in which the judge’s impartiality might reasonably be questioned.”

As detailed above, there are significant reasons to question the impartiality of every Supreme Court justice in the case involving the constitutionality of the Foreclosure Mediation Program. These reasons boil down to the fact that the Supreme Court justices are running the program.

Therefore, as directed by the very judicial conduct code they approved, every Supreme Court justice should recuse himself or herself from the Foreclosure Mediation Program case.

This isn’t even a tough call. Nevada’s Supreme Court justices need to follow the example of Justice Kagan and recuse themselves.