Personality problems in Nevada Supreme Court put the system on trial
At the Nevada Supreme Court, the justices have been making front-page news for more than two months now. But that is at issue has little to do with the landmark decisions that normally make headlines; this roiling controversy stems from a feuding court so bitterly divided that its personal disputes have overflowed into the public's lap.
Few legal observers pretend that there are not differences of opinion, as well as personal conflicts, on most court benches. But by their public battles -- and wide use of the press -- Nevada's "brethren" have taken a route generally spurned by a controversy-shy profession used to airing its differences behind closed doors.
In so doing, the high court justices have opened a Pandora's box that no one seems to know how to close. It may require a move by the Legislature to finally solve the problem.
Even the justices themselves admit that, already, the five-man court's reputation has been seriously damaged. Their actions have provoked widespread concern that the conflict may eventually hamper the court's ability to function effectively.
Reports of the feud, which centers around personal animosity between two justices in particular, began appearing in the press over two years ago.
But the dissesion has flared wildly in recent months, fueled by allegations within the court that range from conflict of interest and mental instability to corruption and conspiracy.
And the battle has been further provoked by the release to the press of hundreds of pages of secret documents used in a recent investigation of the court by the state's Judicial Discipline Commission.
Although the justices were cleared of a number of charges of wrongdoing during that investigation, the feuding has persisted. And while the conflict both balles and embarresses the state's legal community, it has also exposed an underlying issue -- the question of how judges are selected.
In Nevada, Supreme Court justices are elected by the public and must run for re-election every six years. It is a system of selection that has long made the profession wince, raising questions, as it does, about both the ability of the judiciary to function as an independent body when its members must periodically run political campaigns and the ability of laymen to determine who is qualified to be a judge.
What many lawyers and jusges prefer is the so-called "Missouri plan" of merit selection. That process involves the screening of judicial candidates by a committee of lawyers and nonlawyers, which recommends two or three individuals to the state governor for final selection.
Over the past decade, the nationwide trend has been toward adopting such merit procedures, according to Larry Berkson, director of educational programs for the American Judicature Society.
Since 1970, he says, 28 states have either adopted or extended merit selection plans -- bringing to 31 the number of states which have followed Missouri's 1940 lead in adopting the system for selecting all or some levels of judges.
Admittedly, says Mr. Berkson, the plan "is not an end-all. Some lawyers just can't make the transition to being a judge. And others wind up staying there [ on the bench] too long. The screening process won't stop that."
In addition, some lawyers argue that elections allows voters a valuable opportunity for input to the legal profession -- and that to take away such leverage would only further damage the profession's already low public rating.
Still, a substantial number of justices, lawyers, and government reform groups insist that overall the merit system will produce a better-qualified judiciary. In Nevada's case, some say, such a system might have averted the high court's present self-inflicted quandary by taking election-year politics out of the court and by screeing out justices who may have been able to win support from the public but not from their peers.
Even while the question of judicial selection is being raised in NEvada, however, few observers hold much hope that the system will be changed. Members of the legal community have tried, without success, since 1947 to introduce such a change. Few obersvers expect the situation will change now.
With no apparent end to the conflict in sight -- "There doesn't seem to be any solution," laments one high court justice -- Nevada's legal community is left, as one observer says, "sort of wringing its hands."
But there are signs that the justices may have their problems settled for them. Gov. Robert List, who had maintained a long public silence on the dispute , recently said he would consider calling for an inquiry of the court's problems by the state Legislature.
Other observers speculate about the possibility of a special state grand jury investigation. And still other quietly mention the power of the Legislature to impeach a judge or, by a two-thirds vote of each house, to remove a judge for "any reasonable cause."
"It would be more appropriate and the results would be better if the judiciary and the legal system were able to keep its own house in order, rather than have somebody else do it for them," says Roger Detweiler, executive director of the Nevada State Bar Association.
"But," he asks, "what do you do in a situation where people just can't get along with each other?"