NV Supreme Court Chief Justice Nancy Saitta’s ‘Captain Louis Renault’ moment

Victor Joecks

On Wednesday, Nevada Supreme Court Justice Nancy Saitta appeared on Jon Ralston’s “Face to Face,” where Ralston asked her how the Supreme Court could simultaneous run the Foreclosure Mediation Program and rule on its constitutionality in the pending case, Wells Fargo Bank v. Renslow. (8:39 mark)

Ralston: Philosophically, that sounds very strange to me: That you would have the Supreme Court running this thing [the Foreclosure Mediation Program] and then having to rule on the constitutionality of it. Isn’t that weird?

Nancy Saitta: No, in fact, the way, the manner in which the legislative decision-making happened, we were tasked with the foreclosure mediation program, setting it up in our court room. And it’s a separate and distinct program from anything that the court or the justices or our central staff have to do with. So we’re really reviewing a case – whether it’s a foreclosure mediation case, a child custody case or a death penalty case – we’re reviewing it with the same look at transcript, existing law, impacting law and applying the facts of that case to that decision.

Ralston: But how do you then rule on whether the system, that you are essentially a part of, is constitutional or not?

Saitta: We aren’t a part of the process, and with respect to constitutionality, there are principles that guide us when we’re looking at constitutional questions, and those are what we apply. It’s quite simple.

Now, it’s easy to show that what Saitta said is inaccurate and incomplete. On multiple occasions, then-chief justice and current Nevada Supreme Court Justice James Hardesty testified before legislative committees on how to set up the Foreclosure Mediation Program. Hardesty even contributed an amendment to the legislation establishing the program. Once the bill was passed, the seven justices mobilized to implement the program, from scratch, in less than 30 days.

The Nevada Supreme Court runs the program and currently collects fees from it – although there’s no evidence those fees benefit the justices financially. Prominently, on the Supreme Court website, there is a link to the Foreclosure Mediation Program.

Frequently, justices have gone on television, proclaiming the program a success (Oct. 31, 2011 edition of “Nevada Newsmakers,” 16-minute mark) and boasting about how many people the program has helped. Hardesty has even proclaimed it probably the “most financially stable government program in the state.”

As reported by David Schwartz in the Las Vegas Sun, the seven justices are now considering whether or not to implement proposed rule changes to the Foreclosure Mediation Program.

Leaving all that aside for the moment, consider the next question Ralston asks Saitta.

I don’t know if this was just a natural follow-up question or a brilliantly subtle trap set by Ralston, but it perfectly illustrates how involved the seven Supreme Court justices are in running the Foreclosure Mediation Program. (7:31 mark)

Ralston: Is the program working?

Why would Saitta answer a question on whether the program was working? Just seconds earlier, she had stated that the Foreclosure Mediation Program is a “separate and distinct program from anything that the court, or the justices or our central staff have to do with” and that “[w]e aren’t a part of the process.”

Instead, she gives the answer you would expect from someone … running the Foreclosure Mediation Program – even using the word “we” to describe the program.

Saitta: Well, I would like to think that it’s working. If you look at statistics, at least we are getting homeowners who are at risk of losing their homes into a program where someone’s listening, someone’s listening. Like any other program, it can always be made better.

This earns Nevada Supreme Court Chief Justice Saitta a “Captain Louis Renault” award.

Now, under Nevada’s Code of Judicial Conduct – issued by Saitta and the other six current members of the Nevada Supreme Court, no less – these circumstances mean all seven justices should “disqualify” themselves from the Renslow case.

Rule 2.11. Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The 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.
(2) The judge knows that the judge … is:
(a) a party to the proceeding or an officer, director, general partner, managing member, or trustee of a party; …
(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; (Emphasis added.)

The need for these disqualifying factors also shows that the way the Foreclosure Mediation Program is set up violates Article 3, Section 1 of the Nevada Constitution, the separation-of-powers clause. There are other reasons the program is unconstitutional, but this one should be a no-brainer.

(h/t to Hotair for the Captain Louis Renault award gimmick)