NPRI: Every Nevada Supreme Court justice has a conflict of interest in upcoming case

Victor Joecks

If you care about our justice system, you should care about this issue. This is a very dangerous precedent for the future and a miscarriage of justice in the present.

NPRI: Every Nevada Supreme Court justice has a conflict of interest in upcoming case

LAS VEGAS – The Nevada Supreme Court on Oct. 2 will hold oral arguments in a case where it is both the judge and the defendant. The case, Wells Fargo Bank v. Renslow, is a challenge to the constitutionality of Nevada’s Foreclosure Mediation Program, which was implemented by and is currently administered and run by the Nevada Supreme Court itself.

“Now,” said Victor Joecks, communications director at the Nevada Policy Research Institute, “justices who administer the Foreclosure Mediation Program, who helped craft the original law, who implemented the program from scratch, who advertise the program on their website, who have frequently and publicly bragged about how many people the program has helped, and who collect the fees to run the program are preparing to rule on whether their pet program is even constitutional.

“These individuals are not impartial arbitrators of the key questions involved, including whether or not the constitution’s separation-of-powers provision prohibited their administering of what is, by its nature, an executive-branch function,” said Joecks.

“An impartial judiciary is a foundational principle of our judicial branch of government and every citizen has a right to an impartial judge,” he continued. “Not only is it a dangerous precedent for the Supreme Court to disregard the need for an impartial judiciary, it’s just plain wrong.”

This isn’t the first time Nevada’s Supreme Court has faced controversy. In 2003, at the request of teacher-union attorneys and the Guinn administration, the court produced what has since become a case study in failed jurisprudence, its Guinn v. Legislature of State of Nevada opinion. The decision produced multiple critical law review articles nationally and inspired at least one Supreme Court staff attorney to resign after losing faith in the court’s claim to impartiality.

Later, the court expressly reversed itself in a 2006 decision, declaring that “the Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision.”

Joecks noted tha Nevada’s Code of Judicial Conduct – approved by each current member of the Supreme Court – states, “An independent, fair and impartial judiciary is indispensable to our system of justice.”

“The Nevada Code of Judicial Conduct also states that a judge ‘shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned’ or if the judge is ‘a party to the proceeding or an officer, director, general partner, managing partner, or trustee of a party.’

“The Nevada Supreme Court’s actions mock the very idea of an impartial judiciary, and reinforce the national perception that judicial decisions in the Silver State are an insider’s game, indifferent to the law and transparently political,” said Joecks.

For example, when he served as Chief Justice in 2010, Justice Ron D. Parraguirre wrote that “[t]he Judiciary’s efforts in support of programs such as … Foreclosure Mediation go beyond our core functions of hearing and determining causes and controversies. The courts, however, realize the value and benefit to our communities that these programs provide and are committed to contributing the hard work necessary to ensure continued success.” (Emphasis added.)

“Every citizen – rich or poor, popular or not – has a right to expect that his or her case will be heard by an independent and impartial judge,” Joecks added. “That is not happening in this case.”

The Supreme Court’s conflict of interest is so obvious that last year, Assemblyman Marcus Conklin said he expected the court’s justices to uphold the FMP precisely because they are running the program.

Conklin stated, “It would be kind of odd [if the Supreme Court ruled the FMP unconstitutional], 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.”

In an earlier challenge to the constitutionality of the FMP, Second District Court Judge Patrick Flanagan reversed a ruling he had made – that the program was an administrative agency – in order to find the FMP constitutional.

Wells Fargo is challenging the FMP on multiple grounds, including the separation-of-powers question. The Supreme Court has previously ruled that “the requirement that one department cannot exercise the powers of the other two is fundamental in our system of government.”

The Nevada Supreme Court will hear oral arguments in Wells Fargo Bank v. Renslow on Tuesday, Oct. 2, 2012, at 10:00 a.m. on the 17th floor of the Las Vegas Regional Justice Center.

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