O'BRIEN v. State Bar of Nevada

Rose, J., with whom Young, J., joins,

dissenting:

I would order those members of the Board of Governors who voted for FitzSimmons to file an answer to address the issue of whether two Board members voted with conflicts of interest, thereby nullifying the vote and requiring a re-election. Since the majority is not so inclined, I can only comment on the facts thus far presented.

As the majority recognizes, this court has exclusive jurisdiction and control over the State Bar of Nevada and the power to fashion an appropriate remedy if illegality or unfairness is noted in the State Bar’s activities. It appears that two of the Board members had serious conflicts of interest when they voted for O’Brien’s opponent in the initial vote and then on reconsideration. Without those two tainted votes, the result would have been in O’Brien’s favor. Rather than deny the petition outright based on the refusal to exercise our plenary discretion, I would use the *79power vested with this court to further inquire into what appears to be a fundamentally unfair election to one of the judiciary’s most important commissions.

Numerous people in attendance at the Board of Governor’s meeting heard Dickerson state that O’Brien had a serious attorney discipline matter pending against him. While later denied and explained by Dickerson, the fact remains that the very person who apparently slandered O’Brien provided the one vote margin for O’Brien’s opponent. It seems obvious that the very person slandering an individual should not then participate in a vote when the person slandered is a candidate.

Judge Steve Jones voted to select FitzSimmons and then voted against a rehearing. Each vote prevailed by a one vote margin. Judge Jones had a clear conflict of interest and should have abstained. FitzSimmons donated $10,000 to Judge Jones’ campaign for the Nevada Supreme Court last year, and her husband gave him another $10,000. In addition, FitzSimmons’ law partner, Kermitt Waters, and his wife gave $95,000 to Judge Jones’ campaign individually and through businesses they controlled. This is a grand total of more than $100,000 in campaign donations given to Judge Jones in the past year by FitzSimmons and her law partner.

This court has held that, as a general proposition, contributions by an attorney or a party to a judge’s campaign do not disqualify the judge when the party or the attorney appear before the judge. In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988). However, when the contribution is very large or greatly disproportionate to the contributions made by a similar class of contributors, then an appearance of impropriety should be recognized. Lawyers’ contributions to judicial campaigns generally range from small contributions up to several thousand dollars. However, few are made by lawyers above the $5,000 level. A judge is compelled to run for office by the Nevada Constitution, and raising money to finance a campaign is an integral part of that process. Every judicial candidate I have known was thankful for all contributions made by lawyers, large or small. However, there does come a point when the amount of money contributed creates an appearance of impropriety, especially when the judge is ruling or voting on an issue critical to the lawyer contributor, as Judge Jones did in this case.

The contributions made by FitzSimmons, her partner, and their businesses to Judge Jones’ campaign for election to the Nevada Supreme Court in 1996 totaled at least $115,000 and was more than one-fourth of the total money Judge Jones raised for that campaign. This amount would be considered an enormous contribution by any person or business, but especially when received *80from two lawyers. Unless the Board members who voted for Judge Jones could persuade me otherwise, this certainly appears to present an obvious conflict of interest that should have prevented Judge Jones from voting in a contested election where FitzSimmons was a candidate. Judge Jones was asked not to participate in the vote for reconsideration because of this obvious conflict; he refused, and his vote was critical to preserving FitzSimmons’ electoral victory.

My opinion that this matter should be pursued is based, in part, on the function of the Commission to which each candidate sought election. The Nevada Judicial Selection Commission was created by the Nevada Constitution to select the best candidates for judicial vacancies and recommend them to our Governor. The judge who is appointed is vested with enormous authority that aifects the citizens of this state in a variety of ways, including, in some cases, the very decision of life or death.

Given the paramount importance of this Commission, we should all insist that its membership selection and operation be done by the letter of the law and be above reproach. We insist that a judge be fair and impartial and not participate in a case where doing so would present the appearance of impropriety and thus a conflict of interest. Why should the standard for the Commission who selects our judges be any less?

The petitioner has shown that members of the Board of Governors voted when they had apparent conflicts of interest, thus denying him the election. Recognizing that the slanderous remarks made about O’Brien were false is certainly appropriate but clearly an inadequate remedy. O’Brien asks only that a re-election be held and that those Board members with conflicts of interest not participate in it. He may win or lose, but we would be assured that the Commission’s membership is not tainted by an improper election process. Fairness demands no less.