Judge James Russell, Conflict, Disclosure and Recusal

(This article first appeared in The Nevada View)

Nevada's Second Congressional District special election is in the national spotlight as political pundits look for bellwethers of the nation's taste for Democrats and Republicans going into the 2012 election cycle. That attention has brought a spotlight to an issue haunting the judiciary in Nevada and elsewhere in this country.

Nevada District Court Judge James Russell decided a case which determined how the political candidates would be chosen for the special election, overturning the Secretary of State's decision to allow multiple candidates from each political party to run. Aside from the issues we could take with his determination, Judge Russell's decision to not recuse himself (and not even disclose the potential conflict) has an entirely different set of consequences outside the merits of the case.

Judge Russell did not disclose that he was a former law partner and current co-owner of a mining interest with Mark Amodei. Mark Amodei became the Republican nominee, and because of the decision, he gets to run as the only Republican on the ballot, unopposed by others like Sharron Angle. Russell claims he didn't know Amodei was running for the office, even though it had been all over the media. Even so, Mark Amodei was the sitting chair of the Republican Party, the plaintiff in the lawsuit. That alone raises enough question.

Let's be clear -- The issue we are discussing here is strictly about the integrity of the judiciary and how that relates to public confidence in our system of justice. By the way, the Nevada Supreme Court upheld the decision by Judge Russell, so again, this is about the underlying issue of having an impartial judiciary.

Duty to Sit Doctrine Still At Play in Nevada

A probable factor in Russell's whole attitude is the Duty to Sit Doctrine, which pushes judges NOT to recuse themselves when it's a close call. This doctrine was repealed by federal law (as it relates to federal courts) in the early 70s after a member of the Nixon Justice Department was appointed to the Supreme Court (Justice Rehnquist) and who refused to recuse himself in a case involving the Justice Department, and certain domestic surveillance programs that were called into question -- practices he himself would have been involved in. Rehnquist had in part relied on the Duty to Sit Doctrine.

However, it is up to each state to enact their own laws governing the conduct of state court judges. Until 2009, Nevada's Code of Judicial Conduct still expressly endorsed the Duty to Sit Doctrine.

The Nevada Supreme Court adopted the American Bar Association's Model Code of Judicial Conduct in late 2009, thus removing the express endorsement of the Duty to Sit, and adding language that would appear to be contrary. However, the Court rejected two proposals by the Judicial Code Commission that would have reduced any doubts or questions:

"The Commentary could also specifically state that in close cases, the ordinarily preferable practice is to resolve the matter in favor of disqualification unless there are strong extenuating circumstances such as disrupting resolution of a matter needing immediate decision, a shortage of judges or the like."

Jeff Stemple, Nevada Judicial Code Committee, Memorandum in 2008 on "Duty to Sit" (UNLV Law Professor)

Jane Ann Morrison of the Las Vegas Review Journal reported this story in early 2010, but frankly I don't remember ANY public concern. I suppose that shouldn't shock anyone.

The new Judicial Code contains this language:

Rule 1.2. Promoting Confidence in the Judiciary. A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.

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...

Nevada Supreme Court Justice Jim Hardesty suggested that making the stronger changes to the Code, recommended by the Commission, might be in direct conflict with prior decisions of the Court. He said that changes to the Duty to Sit are better made in new cases that come before the Court (See Jane Ann Morrison reference above). One can only wonder if and when that time will ever come.

The Court also rejected a recommendation that judges automatically recuse themselves when they've received $50,000 or more -- over a fixed amount of time -- by way of campaign contributions from any of the parties in a lawsuit. Once again, rejecting this recommendation demonstrates a shocking sense of protectionism in the Nevada judiciary, and a rejection of concerns over negative public perception of the justice system.

Even though the express endorsement of the Duty to Sit was omitted in the new Code, there is still plenty of case law that judges can rely on which make it a legal doctrine. This is why the Commission recommended stronger language to make it clear that when in doubt, judges should recuse themselves.

Today, the Duty to Sit Doctrine is alive and well in Nevada. According to some sources (See Stempel Memo to Nevada Judicial Conduct Code Commission - page 7), Nevada is just 1 of 9 states that still follow this practice. Just know this -- if there is a grey area, judges will continue to choose to sit. Therefore, it's highly unlikely that Judge Russell will see consequence for not recusing himself.

Where Judge Russell may get hit is under the disclosure requirement in rule 2.11. In fact, Kate Marshall limited her comments to as much, never suggesting he should have automatically recused himself. Under the Code, he was required to disclose what others "might reasonably consider relevant."

[5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification. A judge making such a disclosure should, where practicable, follow the procedure set forth in Rule 2.11(C).

2.11 Comment (5)

Where the Judicial Ethics Commission or the Courts rule on this subject is anyone's guess. Russell is essentially saying that he didn't believe that any of the parties or their lawyers might reasonably consider his relationship with Mark Amodei as relevant for a possible motion for disqualification, even if he didn't believe there was basis for disqualification. Ha!

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