concurring:
I concur fully in the majority opinion,1 but I write separately to *192express my own views on the matter. I write now in order to perform the duty imposed upon me by the Code of Judicial Conduct, which commands that judges shall “strive to enhance and maintain confidence in our legal system.”
For almost a year and one-half now, the supreme court panel which decided this case (made up of two sitting justices, one retired justice and one district court judge) has been publicly disparaged for having allowed Judge Whitehead to seek judicial review of unorthodox judicial discipline proceedings against him, all in a manner specifically provided for in the applicable rules. This concurring opinion is the best (and only) way that I know of for me to “strive” to restore and maintain the public’s “confidence in our legal system,” as I am required to do by the Code of Judicial Conduct.
Obviously, I cannot hope in this one writing to reverse the effect of the many false and misleading statements that have tended to foster negative impressions of our court and of Judge Whitehead’s attempt to seek prescribed and established legal remedies; but I do hope, at least, that I can convince patient readers of this opinion that Judge Whitehead acted in full accordance with the law when he petitioned for this court’s review of improper actions that were being taken against him by the discipline Commission and that this court acted properly in undertaking the requested review.
Let me begin by giving a very simple statement of the case that will set the stage for the rest of this opinion:
Judge Whitehead did not ask that this court exonerate him; all he asked was that the Discipline Commission be confined to acting within the rules promulgated for its governance. The court has entertained Judge Whitehead’s petition for review, as provided for under ARJD 40(7), and has required that all proceedings against him be conducted in accordance with the currently applicable rules. That is all.
*193This court’s simple, run-of-the-mill, procedural ruling has caused the court to be subjected to an unprecedented array of destructive criticism and public condemnation. It is not easy to understand how all of this came to pass, but I will try to explain. First, however, I want to present a summary, comprised of thirteen numbered paragraphs, by which I will give an overview of the case.
1. To understand this case, it is vital to understand the procedures that the Commission should have followed in this judicial discipline matter. These procedures are clearly set forth in the Administrative and Procedural Rules for the Judicial Discipline Commission (ARJD). The rules are simple and easy to understand:
a. Discipline proceedings can be commenced only by the filing of “initial complaints” which “must be made upon oath in writing” and “made by the person complaining.” ARJD 12 (emphasis added).
b. The Commission has the duty to “consider all complaints brought before it” and the duty to “determine whether or not there exists sufficient cause to proceed to a probable cause hearing.” ARJD 14.
c. The constitution (article 6, section 21(7)) requires that the Commission shall either “dismiss the matter or order a hearing to be held before it.” Judges against whom sworn complaints have been filed have the right, under the constitution and the ARJD, to have the Commission timely “consider” sworn complaints and either dismiss them or order a hearing to be held.
2. By failing to “consider” and timely act upon sworn “complaints brought before it,” namely, sworn complaints filed in the summer of 1992 by Dorothy Nash Holmes and Judge Breen, the Commission has denied to Judge Whitehead significant rights that are given to him by Nevada’s constitution and by the ARJD. Now, some two and one-half years after the sworn complaints were filed, the Commission still has not acted on these complaints in the manner clearly specified and required by the ARJD.2
3. The Commission did more than just deny Judge Whitehead his right to timely disposition of the Holmes and Breen complaints in the manner required by ARJD 14, it *194sidetracked the procedures prescribed by the rules and devised its own, unique method of handling this particular case. Rather than simply ordering a probable cause hearing on the sworn complaints, as provided in the rules, the Commission elected to adopt an entirely new set of procedures, tailored for this case alone.
4. The first new tactic applied to Judge Whitehead was for the Commission to hire (some six months after the first sworn complaint was put on file) a former professional federal prosecutor (one Donald Campbell) to launch a massive “investigation” of Judge Whitehead. The investigation obviously was not related to the Commission’s duty to make a preliminary ruling as to the merits and “sufficiency” of the Holmes and Breen complaints, because the Commission has never made the required ruling on these sworn complaints and apparently has never intended to do so. The only other possible explanation for the Commission’s institution of a sweeping investigation of Judge Whitehead would be for the improper purpose of trying to uncover possible misconduct on the part of Judge Whitehead that could be included in a complaint that the Commission instructed Mr. Campbell to prepare and file after the investigation was done.
5. Special Deputy Attorney General Campbell later testified that the “result” of what he called his “fact-finding mission” (which was conducted over a six-month period by three investigators at a cost to the State of at least $40,000.00) was that “most of the incidents of misconduct alleged by Ms. Holmes were eliminated as potential charges,” and that after interviewing “many witnesses” he was able to “verify the specific allegations detailed by Judge Breen.” There has been no explanation as to why it was thought necessary to spend this much time and money just to “verify” the “allegations” of Judge Breen.
6. After the completion of his fact-finding mission, Mr. Campbell prepared and signed his own complaint based on the “information and belief’ obtained from the “many witnesses” which he and his team of investigators had interviewed. The Campbell Complaint does not conform to the ARJD. Mr. Campbell did not sign his complaint “upon oath” as required by ARJD 12; and there is a serious question as to whether his hearsay complaint conforms to the ARJD requirement that initial complaints must be made by the “person complaining” (rather than outside “investigators”) and must contain “facts” (rather than rumors, “information” or “belief”) which “establish grounds for discipline.” Id.
*1957. Shortly after filing his unsworn complaint, Mr. Campbell issued to Judge Whitehead a “Notice of Probable Cause Hearing,” notifying the judge that “a complaint has been filed against [him]” and advising him that he was “required to respond, in writing, within thirty (30) days” to Mr. Campbell’s complaint. Mr. Campbell’s “Notice” also required Judge Whitehead to be present at a probable cause hearing to be held on September 7, 1993.3
8. At the time that Judge Whitehead received the Campbell order requiring him to respond to the Campbell Complaint and to appear for a hearing based on that complaint, the following jurisdictional and procedural problems were evident: (1) Neither Mr. Campbell nor the Commission itself had the jurisdiction to order Judge Whitehead to “respond” to the unsworn Campbell Complaint and to appear for a probable cause hearing on a complaint that was invalid on its face. (2) The Holmes and Breen sworn complaints had sat dormant for a year without the required ARJD 14 ruling on their sufficiency having been made. (3) There was no apparent legal or constitutional authority for the Commission to conduct the mentioned, six-month, three-investigator, $40,000.00 inquisition before a ruling had been made on the sufficiency of any sworn complaint.
9. Judicial review of jurisdictional questions and irregularities such as those described in the previous paragraph is invited by ARJD 40(7), which specifically provides for “[rjeview of interlocutory orders of the commission” on the application of either a judge or the Commission’s prosecuting officer. Judge Whitehead therefore was simply filing an ARJD 40(7) petition seeking review of the interlocutory order that required him to respond to the unsworn Campbell Complaint and seeking review of the illegal and irregular proceedings that had been instituted against him. Judge Whitehead did not seek exoneration or dismissal of charges, or the prohibition of lawful proceedings against him. At that point in time, it does not appear from the record that Judge Whitehead had ever been informed that the properly-filed Holmes and Breen complaints were in existence.
10. After receiving the Whitehead petition, this court (Justices Rose, Steffen and Springer) ordered:
*196a. that the Commission not act further on the Campbell Complaint until the Whitehead petition had been reviewed and
b. that the confidentiality4 to which Judge Whitehead was entitled be preserved until the court ruled on the jurisdictional and procedural questions raised by Judge Whitehead.
11. When Judge Whitehead challenged the Commission’s unauthorized, newly-innovated practices in the present writ proceedings, the Commission’s unexpected and ill-founded response was to deny the authority of this court to give any hearing to Judge Whitehead’s claims of jurisdictional excesses and to refuse to obey this court’s orders. This contempt of court and denial of the supreme court’s clearly-defined authority to review Commission actions under ARJD 40(7) that are claimed to be irregular, coupled with the Commission’s extended efforts to prevent two of the justices of this court from hearing the case and its filing of a series of completely meritless pleadings, occasioned long and unnecessary delays in this case. (Although I consider these actions to have been ill-conceived, I do not wish to question either Mr. Campbell’s or the attorney general’s motivation and good faith. Intemperate public statements and legal oversights aside, we must give some understanding and even respect to the zealousness with which these two advocates sought to advance the interests of the Commission as they saw them.)
12. When this court finally finished dealing with the Commission’s seeming defiance and contempt of court, the case was easily and readily disposed of merely by ordering the Commission not to proceed against Judge Whitehead on the defective Campbell Complaint and by ordering that, in the future, the Commission must comply with its own rules.
*19713. The Whitehead matter is now back in Commission hands; but, unfortunately, two of the Commissioners are not qualified to sit in judgment of Judge Whitehead: one, because he has been engaging in ex parte conferences with the prosecutor and doing “useful” legal research for the prosecution; and the other, because he has written an open letter to all judges and lawyers in the state in which he expresses his opinion as to the merits of the case. If these two Commissioners continue to insist on sitting in judgment of Judge Whitehead, such a state of affairs obviously will introduce further impediments to Judge Whitehead’s getting due process of law.
There is, obviously, nothing out of the ordinary in a court’s ordering that a governmental body must operate in accordance with its own official rules. That such a ruling could have become the source of controversy and adverse commentary that it has in this case is out of the ordinary and a matter deserving of some explanation. I will now explain.
The story begins in October of 1993, immediately after this court affirmed an order directing the Commission to provide Judge Whitehead with discovery of investigative documents relating to his case, as provided for in the ARJD. The Commission refused to comply with court orders, and confidential Whitehead documents were “leaked” by “unnamed sources” to an “investigative reporter” for the state’s largest newspaper. The reporter called the court to see what the justices thought about the leak. When a justice expressed his opinion that the unnamed sources, who had leaked documents which were confidential by reason of the constitution and court rule, were “unethical,” the reporter’s response was: “Then, there must be a lot of unethical people in high places.” From that time on, justices of this court have had their eyes open for unethical “people in high places” who had access to confidential documents and who might have been responsible for the leaks and other subversions of the legitimate judicial discipline process.
Soon afterward, we began to witness a pattern of false or very misleading public statements by certain “people in high places” who issued periodic and very similar public statements relating to the Whitehead case. The pattern of what may appear to some as “orchestrated” misstatements about the case contains three recurrent themes: (1) the actions of the supreme court are described as being legally unsupportable; (2) the actions of the supreme court are described as having put an end to all Whitehead proceedings, thus preventing the Commission from “performing its constitutional duty”; and (3) the actions of the *198supreme court are described in terms of its members having corruptly based their judicial decisions on personal or political favoritism rather than on legal considerations. One person who helped to convey these three inaccurate impressions was no one less than the chief justice of the supreme court himself, Robert Rose.
One of the strange paradoxes of this case is that the chief justice would join the attack against his own court even though he himself has sided with the majority in making some very important decisions in the case. Before the chief justice disqualified himself, he signed a very important and significant order, as chief justice, that ordered that the case be kept confidential until it was decided whether Judge Whitehead’s challenge to the Commission’s jurisdiction and procedural irregularities were of substance. On July 30, 1993, the chief justice signed an order (joined by Justices Steffen and Springer) which ordered that “[t]he Commission and all persons purporting to act pursuant to its authority shall maintain strict confidentiality concerning the proceedings below, and shall maintain the confidentiality of this proceeding before this court.” Like the other members of the court who signed the order, the chief justice correctly saw at the time that because there had been no determination of probable cause, ARJD 5 required that “all proceedings,” including the proceedings before this court, must be kept confidential. It is a bit hard to understand, then, how it could be that the chief justice would later (after he became disqualified to sit on the case)5 publicly condemn other, unspecified rulings of this court as being “wrong” and “improper.”
As time progressed, the chief justice’s reported attacks on the court’s rulings (including, apparently, those in which he had joined) and his adverse comments concerning Judge Whitehead and his attorneys became more extravagant. Of all the “people in high places” who have been conveying misimpressions of this case and thus undermining the parties’ rights to orderly justice administered in a dispassionate setting, Justice Rose’s reported *199violation of his duty not to comment publicly about pending judicial matters could be seen as the most prejudicial. This is so principally because the reported remarks of the chief justice were necessarily attended by credibility and significance by reason of their source, the highest judicial ofiicer in the state.
There was a time when, in my own mind, I was inclined to put the blame for the public misportrayal of this case on the news media. The more I thought about this, however, the less sense it made to me. Why, I asked myself, would the news media ever deliberately engage in such a false and unwarranted attack on the supreme court’s efforts to address and adjudicate Judge Whitehead’s challenge to improper Commission procedures? The answer is that they would not. The media were merely echoing what they were being told by “people in high places,” who seemed to be credible. If I were an “investigative reporter” or any agent of the news media, and a bevy of highly-placed persons told me that the court’s decisions were “wrong” and not based on the law, in all likelihood I would believe these kinds of statements when they came from such seemingly reliable sources.
It is ordinarily not ethically permissible for a judge to comment publicly on a pending case. Compliance with the Code of Judicial Conduct limited the options of the court panel that was considering Judge Whitehead’s petition. We were ethically constrained to avoid unseemly public response to unfounded attacks. For this reason the only version of this case that the media has had available to it was that given to it by “people in high places,” who apparently did not consider themselves bound by ethical prohibitions against making public comments on a pending case. When a newspaper was asked to correct public misstatements, the request for journalistic fairness, quite remarkably, was used by the Commission as a basis for trying to disqualify two members of this panel.
It is almost as though the patterned statements from highly-placed sources were scripted. Ever-recurring expressions like “whitewash,” “good-old-boy” and “bullying lawyers” have become formulaic in the reporting of this case. Whether Chief Justice Rose and the other “people in high places” that I am about to discuss were accurately quoted and whether they acted in concert, I, of course, will not presume to say.
Although media reports indicate that others in high places have breached their obligation to protect Judge Whitehead’s right to confidentiality and his rights to due process and the presumption of innocence, I will limit my discussion of “people in high places” to the chief justice, the attorney general, a chief district judge, the president of the state bar and a leading member of the Judicial Discipline Commission.
*200Attorney General Frankie Sue Del Papa was, during much of this litigation, acting as counsel for the Discipline Commission; she therefore is more easily forgiven than some of the others for taking the extremely partisan positions that she has taken. She could have used more restraint in some of the public comments that she has made. She certainly had no business issuing a press release in which she described Judge Whitehead as a “person who would resort to gross misrepresentations of fact and to smearing others to try desperately to save himself’; and, likewise, it was a bit extreme for her office to employ such expressions as “[t]he fix is in” when speaking of this court.6 Still, although excited and unrestrained utterances directed against the court cannot be condoned, they can be understood when spoken in the heat of battle by a zealous and disappointed advocate. Recalling my own years as an advocate, I do not question the sincerity of these statements, only their professional propriety.
District Judge Brent Adams, while he was chief judge of the Second Judicial District Court, reportedly made a number of improper public comments about this case while it was pending before this court. I find this conduct much less understandable than that of the attorney general, who was acting as counsel for the Commission. A chief judge who was personally involved in the effort to advance charges against Judge Whitehead certainly should not have gratuitously intruded himself into the case in order to put pressure on the appellate court that was adjudicating Judge Whitehead’s challenge to those charges. According to press accounts, Judge Adams publicly “rap[ped]” the supreme court, charging that the court had prevented the Commission from “perform[ing] its constitutional duty,” and that it had done so with “no legal authority.” If indeed Judge Whitehead’s judicial colleague, Judge Adams, was a potential witness against him and did make such untoward and prejudicial public statements, it is no wonder that legally untrained reporters accorded credence to Judge Adams’ statements rather than comprehending and reporting the impropriety of such conduct on his part. So far as appears, the media were not even aware of Judge Adams’ surreptitious role as one of the judges who was generating discipline complaints against Judge Whitehead.
Another of the “people in high places” that reportedly contributed to the public denigration of this court is Discipline Commission member Alan Lefebvre.
*201Commissioner Lefebvre was quoted in a news article bearing the headline, “High court accused of special deals.” The lead line of this story was, “Nevada Supreme Court rulings favoring a Reno Judge stemmed from political alliances rather than any concern for the law, a Nevada Judicial Discipline Commission member claims.” (Emphasis added.) Commissioner Lefebvre reportedly “explained” to the press that if Judge Whitehead “did not have very close personal ties” to two of the justices, the decisions of this court “would not have occurred.” Much like the allegations by the chief justice that members of this court were covering up for Judge Whitehead and were out to “win” the case for him, Mr. Lefebvre’s charge was both irresponsible and false. I regard the statement about supposed “very close personal ties” to be a gross distortion of reality; and when publicly proclaimed by a member of the Discipline Commission, these kinds of groundless implications are very destructive to the court and to our entire judicial system. They provide justification for media representatives to have a “field day” with the supreme court and with Judge Whitehead, especially when fortified by the chief justice, the attorney general, a chief judge and the president of the state bar.
Finally, among the “people in high places” who have had a high level of influence with the press in matters concerning Judge Whitehead and this court, I list Nevada Bar Association President, Margo Piscevich. Shortly before she was sworn in as president and while she was still president-elect of the Bar Association, Ms. Piscevich is reported to have made the public outburst that in the Whitehead case this court had “bound, gagged and raped the Commission.” Ms. Piscevich is also reported to have publicly condemned this court’s decisions as “outrageous” and said that she was “not aware of any lawyer who is not disgusted” with the court. Such immoderate criticisms of the court, attributed to a high bar official by the largest newspaper in the state, did damage to the court and to the orderly administration of justice in exactly the ways that SCR 177 is intended to prevent. The reputation of the court was damaged despite the fact that the State Bar’s Board of Governors later issued a formal resolution confirming that both our action in undertaking review of Judge Whitehead’s petition and our order preserving confidentiality pending review were entirely lawful. The public indictments of this court attributed to Ms. Piscevich strongly reinforced the ill-founded misconception that not only had the court unlawfully prevented the Commission from performing its constitutional duty, it had done so in a manner that was biased and corrupt. President Piscevich’s reported remarks received vastly more publicity than the Board of Governor’s subsequent *202repudiation of them. Once more I am forced to say that, given the credibility that a person in Ms. Piscevich’s position ordinarily possesses, it would be difficult to fault those members of the media who have uncritically accorded great weight to her words as reported.
I now continue with a somewhat more in-depth analysis of this case, which I set out in the following separate, numbered sections.
1. Constitutional Foundation of the Commission. The Judicial Discipline Commission was created in 1976 by constitutional amendment. Nev. Const, art. 6, § 21. The Commission is given the extraordinary power of being able to censure judges or to remove them from office.7 The Constitution provides that “any person” can complain about the “fitness” of a judge, and that when this happens, the Commission shall, after a “preliminary investigation,” either “dismiss the matter” or order that certain hearings be held before it. The Constitution also provides that the supreme court shall “make appropriate rules” for “the confidentiality of all proceedings” and make rules providing for the grounds for censure and the “conduct of investigations and hearings.”
2. Nature of the Commission. That the Commission is a judicial body, a hearing tribunal, should not require any further explanation or discussion. Some misunderstanding of this simple concept may have been generated in the minds of some by the use of the term “preliminary investigation” in the Constitution. The term necessarily relates to the preliminary inquiry and consideration that the Commission may conduct before it makes its first, critical decision as to whether it is going to dismiss a sworn complaint or proceed to a probable cause hearing. ARJD 14. All parties in this case now agree that the purpose of any preliminary inquiry or “investigation” is to protect judges against having to defend against unfounded or frivolous complaints.8 Certainly the *203use of “preliminary investigation” does not make of the Commission an inquisitorial body that first investigates and then holds a hearing on charges based on what it found out in its own investigation.9
*2043. Operational History of the Commission. Historically, the Commission got off to a bad start. It “misconceive[d] its constitutional purpose” and began misbehaving when it started to act as a “secret inquisitional body meeting behind closed doors investigating acts of judicial wrongdoing” and hired an investigator/ prosecutor to conduct open-ended investigations against targeted judges. See Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 128, 869 P.2d 795 (1994) (Whitehead I). In 1979, before the enactment of the new ARJD procedural rules, at least four jurists were “investigated” by an out-of-state Commission Inquisitor in investigations marked by “[pjlanned, selective leaks [which] resulted in giving inaccurate and unreliable information to the public which [ ] incited public furor and unjustifiably damaged the reputation of a judicial officer who was never even charged.” Id. at 147, 869 P.2d at 806. It appears now (as will be explained) that the Commission has not only reverted to the untoward inquisitional practices of the past, it has abandoned the procedures provided for in its rules and at some time during the past four years adopted the policy of conducting its disciplinary proceedings in secret.
4. Reaction of the Court to Past Commission Abuses. In response to the mentioned Commission abuses, the supreme court, pursuant to its constitutional rule-making powers, appointed a special committee to propose “corrective measures” designed to “foreclose future opportunities for such abuses of power.” This Study Committee (comprised of lawyers, judges, legislators, former prosecutors, a former chairman of the Commission, a former attorney general and a political science professor), in its report to the court, recounted the abuses of power that the Commission had been engaging in and addressed these abuses by recommending changes in the procedural rules that would “provide a fair and open forum governed by clear and explicit rules.” Whitehead I, 100 Nev. at 146 n.15, 869 P.2d at 806 n.15.
5. “Corrective Measures.” The “clear and explicit rules” drafted by the Study Committee to foreclose “future opportunities” for abuses of power, provided for “proceedings [that] would then be accusatory rather than inquisitorial, open rather than closed, and accompanied by due process formalities . . . rather than loose, unstructured and informal.” Id. The Study Committee also recommended that “[i]nitial complaints, in writ*205ing and under oath, must [ ] state specifically the nature of the offense” and be “attested by an identified complainant.” Id.
6. The New Procedural Rules: ARJD. Largely as the Study Committee proposed, the new rules were placed in final form and adopted in 1988, setting up an “accusatorial” system whereby an “initial” complaint “must be made upon oath” by the “person complaining.”10 Once a complaint is filed, a complained against judge has the right to have the Commission “consider” the complaint “with a view to determining whether or not there exists sufficient cause to proceed to a probable cause hearing.” ARJD 14. If no “sufficient cause” exists, the Commission must dismiss the complaint; otherwise, it must order that a probable cause hearing be held on the sworn complaint. In making this dismiss-or-go-ahead determination, the Commission may, for the protection of the judge (taking care not to compromise its obligation to sit as an impartial tribunal), engage in whatever preliminary inquiries might be necessary in making the required determination as to the sufficiency of a sworn complaint. In most cases, of course, the sufficiency determination can be made merely by reference to the sworn complaint alone. If a probable cause hearing is ordered and probable cause is found, the Commission then acts very much like a criminal court. After probable cause has been found the Commission must designate an outside “prosecuting attorney,” who has the responsibility, independent of the Commission, to investigate and prosecute the case before the Commission, which sits as an independent hearing tribunal. It is rather apparent that the Commission “jumped the gun” by hiring a prosecutor before it had even ruled on the sufficiency of a sworn complaint. It also should be apparent that, if the Commission would only follow the rules, complaints of substance would become known to the public and press at an early date, immediately following an expeditious hearing and determination of probable cause. There would be no secret discipline. Complaints without substance would not languish for years, tormenting judges and their families. Evidently the Commission has not wished to give up clandestine practices, but instead appears to continue to assert its claim to be able to operate almost interminably in secret, as it has been doing in the Whitehead case prior to the leak of confidential Commission proceedings.
7. History Repeats Itself: Present Day Aberrations. The “clear and explicit” ARJD were specifically tailored to “foreclose” the kinds of abuses of power that were evident in the late *2061970s; and it was with no little amazement that members of this court received (even before the Whitehead case) word of secret hearings and other closed-door proceedings again being conducted by the Commission. See, for example, the “Judge D” case (see Whitehead v. Comm’n on Jud. Discipline, Docket No. 24598 (Order Granting Petition, September 9, 1994)). Revelations coming to light in the present case clearly showed that the Commission had adopted procedures that in many ways were more harmful than the inquisitions of the past. The most disturbing of Commission practices were those of bringing judges before the Commission in secret sessions. In these closed-door sessions, under the threat that charges against them would be disclosed to the public, judges make secret deals with the Commission, by the terms of which they had to submit to informal disciplinary sanctions (such as probationary supervision by the attorney general) which allowed judges to avoid any public disclosure of the judicial discipline proceedings.11 As might be expected, and as a *207natural consequence of secret deals being made by the Commission, we are again seeing (reminiscent of the abuses in the 1970s) the “planned, selective leaks” of the past, coupled with the also predictable hiring of secret investigators to look into all aspects of a targeted judge’s personal and professional life.
8. “Distortions of the Record.” The dissenting justice has written12 that she is “appalled” by certain, unidentified “distortions of the record,” which she claimed to find in the majority opinion. I would ordinarily not use the word “distortion” to describe a colleague’s opinion because the word denotes an intentional perversion or twisting of the truth; however, now that the dissenting justice has used the word “distortion” to denigrate the majority opinion, I feel justified in using the word to describe the dissenting justice’s suggestion that the Commission’s departure from its own rules is in some way a product of its not being able to understand the ARJD. I too am “appalled” (overcome by dread) when I read the dissenting justice’s florid suggestion that all is well with the Commission and that it “has been trying to resolve matters as fairly and expeditiously as possible under rules that have many gaps and leave much room for interpretation.” Nothing could be further from the truth. Anyone who has read Whitehead 713 and Whitehead 7/14 and who is aware of the history of Commission abuses, past and present, will readily understand that the present rules were carefully and successfully designed to *208prevent the repetition of previous improprieties and purposefully drafted to set out the plain and simple procedures outlined above. The Commission’s regressive return to the pre-ARJD abuses of the 1970s (expensive and time-consuming inquisitions of targeted judges, secret disciplinary hearings and, arguably, contrived leaks) has absolutely nothing to do with “gaps” in the rules or any difficulty in the “interpretation” of the rules. This opinion demonstrates that the new rules set out clearly how the Commission should conduct disciplinary proceedings. The new rules are easy to understand and easy to follow. Anyone who tries to blame the rules for what the Commission has been doing either has not read the rules very carefully or (to borrow the term from the dissenting justice) is guilty of a “distortion of the record.”
9. The Commission’s “Side” of the Case. This final numbered section will deal with what I would call the Commission’s “side” of the case. It is not easy to identify exactly what, if any, position the Commission might be taking at this time. I say this because it has totally abandoned the two positions that it so forcefully maintained when this case began, namely: (1) that the Supreme Court has no power to “interfere” with the Commission, and that, consequently, the court was acting improperly and outside of its lawful powers when it decided to review jurisdictional excesses and procedural improprieties in the manner provided by ARJD 40(7); and (2) that the Commission is a super-agency15 that is “beholden only to the people” and, conse*209quently, not required to obey the orders of this court. Unless I am mistaken, the Commission has now fully abandoned these extreme and, of course, untenable positions. Since these positions comprised the major thrust of the Commission’s resistance to the Whitehead petition for jurisdictional review, I have some difficulty in defining for the readers of this opinion just what the remaining arguments of the Commission are.
Although the Commission has abandoned its super-agency theory and its claim that it does not have to obey the orders of this court, I find in the dissenting addendum an allusion to two other possible issues that might remain unresolved in the minds of some. These matters have already been resolved by the court’s past opinions; but, still, there may be some benefit in discussing them. The questions are: (1) whether the Commission had the power to proceed on the basis of a “charging document” prepared and signed by (but not “under oath” of) a special deputy attorney general who calls himself “special counsel” to the Commission; and (2) whether the Commission has the power to institute a full investigation directed against a judge prior to the Commission’s required threshold determination that there is “sufficient cause to proceed to a probable cause hearing” based on a sworn complaint. ARJD 14.
With regard to the first question, relating to the legitimacy of the Campbell Complaint, the dissenting addendum tries to defend the Campbell Complaint by arguing that just because the rules require that a “person complaining” must file a complaint under oath, this does not necessarily mean that the Commission is precluded from proceeding on a complaint that is not under oath. The dissenting addendum argues that the Campbell Complaint (which the dissenting justice gives a new name, “formal complaint,” to distinguish it from the “initial complaint” provided for in ARJD 12) is a proper “charging document” (to use Chairman Shipler’s term) for initiating discipline proceedings under the ARJD. This cannot be. ARJD 12 plainly provides that “initial complaint[s] ” must be filed “upon oath” by a “person complaining.” “Complaint” is specifically defined in ARJD 2 as the “sworn written charge alleging judicial misconduct.” (Emphasis added.) Mr. Campbell did not swear to his complaint; and by its nature (because it is based on thirdhand information and not made by the “person complaining”) the Campbell Complaint is not consistent with the spirit of the ARJD.
It is very difficult for me to follow the dissenting justice’s argument that the Commission should now be permitted to “proceed” on a completely new species of unsworn complaint that is not mentioned or provided for in the Commission’s rules of procedure. It is difficult for me to understand how it can possibly be maintained that this strange “second kind of complaint” or *210“formal complaint” (as the dissenting justice calls it) can afford a basis for proceeding under the ARJD. The majority was clearly correct when it ordered that Judge Whitehead could not be required to respond to such a fugitive, “second kind of complaint.”
The other possible Commission contention that still may linger relates to the inquisitional powers of this judicial tribunal and to whether the Commission had the right to conduct the kind of massive investigation of Judge Whitehead, when it did and as it did in this case. The previously-mentioned Study Commission report clearly decried these kinds of inquisitions; and, by prescribing the accusatorial procedures contained in the ARJD, this court expressed its disapproval of the practice of targeting a judge for investigation rather than proceeding to “consider” sworn complaints in the manner required by the constitution and by ARJD 14. Still, the dissenting justice (citing inapplicable cases from California, a state in which inquisitional practices are part of the disciplinary process) argues that the Nevada Commission has the power to hire an investigator to do the kind of pre-investigation that was done here, before the Commission has determined, pursuant to ARJD 14, that an initial, sworn complaint has “merit.” I have explained in some detail in footnote 8 that it is understood by both sides of this litigation that the purpose of a “preliminary investigation” is limited to those unusual circumstances in which the Commission decides that further inquiry must be made into the merits of a sworn complaint in order to protect a judge against suspect or factually unsupportable complaints. The subject needs no further elaboration here.16
Having discussed the nature of the Commission and its operations, past and present, in a manner that I think will cast some unaccustomed light on what has been a very dark and obscure subject, I turn now to a discussion of two of the categories which I put forward in my Addendum of October 28, namely:
1. The Commission’s Uneven Administration of Judicial Discipline. The administration of judicial discipline in this state has been very “uneven,” if not politically motivated and discriminatory. Whether this unevenness, this lack of uniformity and fairness in the application of judicial discipline, is caused by favoritism, oppressive attacks upon political enemies or is merely the natural outcome of conducting penal proceedings in a secret or hidden manner, I shall not attempt to resolve. I merely summarize the facts that I have learned in the course of my judicial *211duties and that are verifiable from public records and historical sources.
2. The Incapacity of Present Commissioners to Sit in Judgment of Judge Whitehead. A person who assists the prosecution cannot sit in judgment of the accused; and a person who publicly prejudges the guilt of an accused cannot sit in judgment of the accused. Two Commissioners fall into the foregoing categories; and the Commission seems to be approving of and ratifying their actions, thus putting the impartiality of the remaining members of the Commission in question.
I.
UNEVEN ADMINISTRATION OF JUDICIAL DISCIPLINE: “COBWEBS” 17 AND SELECTIVE PROSECUTION
That the judicial discipline apparatus in this state has been malfunctioning is hardly a matter of debate. It is not necessary to dwell on the causes of the breakdown in judicial discipline, except, perhaps, to remind the reader that when penal proceedings are improperly conducted in secret and are permitted to escape the critical eye of public scrutiny, the natural, if not inevitable, result is that some guilty persons will escape deserved punishment and that some less-favored persons will be the subject of overly-zealous action against them.
Although some of the many citable examples of undisciplined judicial misconduct can be attributed to the unwillingness of a complainant to come forward to “bell the cat,”181 would blame many instances of unpunished judicial misconduct on the ability of some offending judges to “make a deal” with the Commission. I do not know the specific details of the secret “deals” that have been made and which could not have been made if the Commission had been following the ARJD; but I do know that the judges who made the deals have not been subject either to being adjudicated as guilty of judicial misconduct or to suffering the constitutionally-prescribed punishments of censure or removal. I note that the newly-innovated procedures created for Judge Whitehead did not encompass the advantages attendant to the making of secret deals.
Whatever else might be said about the manner in which this *212case was handled, there is one thing that is absolutely clear: Judge Whitehead was treated differently from any other judge when the Commission decided to adopt a new, “second kind” of procedure that was tailored for Judge Whitehead and for Judge Whitehead alone. I see many ways in which the Commission treated Judge Whitehead differently from other judges; one that strikes me is the one just mentioned. Judge Whitehead was not allowed to play “Let’s-make-a-deal.” Since the secret “Let’s make-a-deal” game had become the general Commission practice (e.g., “Judge D”), one wonders why the Commission did not play the game with Judge Whitehead and why Judge Whitehead was not given the advantage of some of the attractive deals that other judges had been given.
Another striking difference in the way Judge Whitehead was treated is that no other judge has been the subject of a six-month investigation by three paid investigators (Donald Campbell, Bryan K. Scott and J. Colby Williams) and subject to prosecution by means of a new, “second kind” of seventeen-page, twelve-count complaint prepared by a professional prosecutor.
In my study of the recent actions of the Judicial Discipline Commission, attendant to the preparation of this and other related opinions, I have become conversant with a number of instances in which serious judicial misconduct has, for reasons that certainly are not yet clear to me, been ignored by the Commission. I have learned of a number of instances of apparent and, in some cases, formally charged cases of judicial misconduct. Among a number of cases that appear to be unpunished judicial misconduct, I can mention a few: the case of a judge’s casting a Spanish-speaking person into jail “until he learned to speak English,” the case of a judge’s being charged with a repeated “pattern” of racial and gender bias, the case of a judge’s being convicted of drunken driving, and the case of a judge’s using his judicial office to try to influence a prosecutor to give favored treatment to two friends. In these cases, either charges were dismissed without a hearing or no charges were brought at all. Why three investigators, six months of investigation and over $40,000.00 in investigation fees were invested in the Whitehead case and in none of the just-mentioned kinds of cases is a matter that the reader might want to ponder.
I see the historical record of the Discipline Commission as being illustrative of the Franklin aphorism that is quoted in the margin. There is substantial force to an argument that a number of “great ones” have broken through the disciplinary cobweb, leaving for the Commission’s ardent attention only the “small flies,” and the flies that do not enjoy the political good favor of the Commission. In each incident of apparent judicial misconduct *213which I have sampled above there has been no formal disciplinary sanction imposed by the Discipline Commission against any offending judge.
II.
BIASED AND THEREFORE DISQUALIFIED MEMBERS OF THE COMMISSION
A. BIAS OF COMMISSIONER LEFEBVRE
I have learned through an examination of the secret documents which the Commission fought to keep from the court, but finally agreed to deliver, that Commissioner Lefebvre has been collaborating with the prosecution. These documents revealed that Mr. Lefebvre had, with respect to the Whitehead matter, been acting in an executive capacity, as an investigator (advising the hired prosecutor as to whom he should interview) and as a prosecutor (submitting legal research to the prosecutor which Mr. Lefebvre thought would be “useful” in the Whitehead prosecution). Also, according to these documents, Mr. Lefebvre had been engaging in “multiple” ex parte conferences with the prosecutor concerning the Whitehead matter, and Mr. Lefebvre prepared for Mr. Campbell a legal brief containing “legal research” intended for use by the prosecution.19
*214The approach taken by the dissenting justice to the problem of Mr. Lefebvre’s aiding the prosecution is to dismiss Mr. Lefebvre’s lurid conflict of interest summarily by saying (in a rather unmannerly way) that my position on this matter is an “absurdity.” The dissenting addendum pretends that when Mr. Lefebvre was conferring with Mr. Campbell about matters relating to the investigation and prosecution of Judge Whitehead, he was merely “talking to the Commission’s own attorney.” I will avoid such questionable manners and will not call my colleague’s position “absurd,” but I would point out that Mr. Campbell was not at the time in question acting as Mr. Lefebvre’s attorney nor as the Commission’s “own attorney.” Mr. Campbell, in whatever other capacity he may have been acting, was certainly acting as an investigator and a prosecutor of Judge Whitehead, and as such he should not have been discussing the case, ex parte, with members of the hearing panel who were going to hear the case.20
One who is being “useful” to the prosecution cannot be said to be “impartial”; and Commissioner Lefebvre’s being “useful” to the prosecution in the matter stated above is a denial of due process.21
*215I am willing to join with the majority in leaving, for now, the matter of Mr. Lefebvre’s disqualification to the Commission itself; but it is very difficult for me to see how Mr. Lefebvre can be permitted to sit in judgment in any matters relating to Judge Whitehead.
B. BIAS OF CHAIRMAN SHIPLER: THE “SHIPLER LETTER"
Under date of April 18, 1994, on letterhead bearing the title “Nevada Commission on Judicial Discipline,” Commission Chairman Guy Shipler sent out a letter written on behalf of the Discipline Commission, which he signed as “Chairman” and transmitted to all “Members of the Nevada Bar and Judiciary.” The letter, later released to the news media, comprises a direct commentary on the merits of the Whitehead case; and its announced purpose was to explain to the world what the Whitehead case was all about, or, as Mr. Shipler put it, “to clarify[22j both factual matters and the legal issues in this case.” Mr. Shipler, I should note, apparently was completely unaware of how grossly improper it was for him, as one of Judge Whitehead’s judges, to be talking about the merits of a case that was to be heard before him as the chairman of the Commission. Chairman Shipler also seems to be unaware of the impropriety inherent in his publicly “clarifying” or explaining the facts of this case, at a time when the case was awaiting his decision as a judge.
One of the ways in which Mr. Shipler chose to “clarify” the facts and the law of the case that was going to be heard before him at a later time was to present to the public, and to the many *216lawyers and judges who received the letter, an affidavit of District Judge Peter Breen in which Judge Breen testifies under oath that it is “common knowledge” that Judge Whitehead has been guilty of “unethical practices.”23 The Breen affidavit accompanying Mr. Shipler’s letter testifies as to the nature of Judge Whitehead’s allegedly improper procedures under SCR 48.1 and claims that Judge Whitehead is guilty of “violations of Canons One and Two of the Nevada Code of Judicial Conduct.” The Shipler letter makes special mention of the enclosed “affidavit[] of the Honorable Peter Breen,” stating that it and the other affidavits accompanying the letter “provide explanation” regarding the judicial discipline action. Commission Chairman Shipler thereby makes known to the world the Commission’s “position” and his own belief that Judge Whitehead is guilty as charged.
As this court explained in its previous Whitehead opinions, the function of the Judicial Discipline Commission is that of an impartial hearing tribunal; and, again, the role of a Commissioner is the role of a judge. In our system of justice and under the Code of Judicial Conduct, a judge (including a commissioner/ judge) is not permitted to comment on or pass judgment on the merits of a pending case prior to its being heard and still remain in the position of a judge who will ultimately decide the case. For a judge to adopt and disseminate publicly his or her own opinion, or the authoritative, sworn testimony of others, relative to the guilt or innocence of an accused is totally unacceptable under our system of justice; and such conduct by one who is supposed to sit in impartial judgment is certainly a clear basis for disqualification to sit in any case. If a judge in a criminal case were to send out a letter on official letterhead, stating in the letter that its purpose was to clarify “factual matters” or “legal issues” relating to a pending criminal case or for the purpose of dispensing authoritative opinions that the defendant was guilty as charged, no one *217would give a second thought to the necessity for removing such a judge from the case. “Judge” Shipler had no business commenting at all on a case that was scheduled to be decided by him, much less to endorse and publish Judge Breen’s sworn affidavit that Judge Whitehead was guilty of “unethical practices.”
The Commentary to Canon 3B(9) makes it clear that the “requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition.” The same Commentary makes it clear that “in cases such as a writ of mandamus where the judge is a litigant [Chairman Shipler is a litigant in the writ proceedings now before us] in an official capacity, the judge must not comment publicly.” Furthermore, the Commission’s own rules prohibit this kind of conduct and provide that “[a]t all times, however, the commission . . . must refrain from any public or private discussion about the merits of any pending or impending matter . . . .” ARJD 8. There is no conceivable justification for Chairman Shipler’s writing and then publishing this letter; and in doing so Mr. Shipler has violated the Code of Judicial Conduct as well as the procedural rules of his Commission (the ARJD).24
I do not dissent from the majority opinion, which, at this juncture would allow Chairman Shipler to continue to sit in the Whitehead matter. I am interested to see if the Commission will vote to permit Chairman Shipler to continue to sit in judgment of Judge Whitehead, given the comments and opinions which are expressed in Shipler’s open letter of April 18, 1994.
C. BIAS OF REMAINING COMMISSIONERS BASED ON THE SHIPLER LETTER
When I wrote my concurring Addendum, filed October 28, 1994,1 gave the benefit of the doubt to the Commission and wrote on the assumption that the Commissioners (being mostly judges and lawyers who are aware of the ethical principles being violated by Commissioners Lefebvre and Shipler) did not join in or ratify Chairman Shipler’s public commentary on this case or his expression of the “Commission’s position” on the case. Sending out an open letter commenting on the merits of the Whitehead case is so *218clearly violative of Commission rules and of common fairness and decency that I had wanted to believe the Commission members were not advised in advance that the Chairman was going to send out this opprobrious letter in the Commission’s name. On October 29, 1994, Chairman Shipler announced publicly that “the decision to send a letter to the lawyers explaining the commission’s position in the case against Whitehead was made by all the commissioners,” saying further that he would not have sent out such a letter “without consulting other commissioners.” If this is true, and all of the Commissioners joined in publicly “explaining” all about the “case against Whitehead,” then I submit that none of the Commissioners who joined in sending this letter should be allowed to sit in judgment of Judge Whitehead.
IV.
SUMMARY AND CONCLUSION
Judge Whitehead filed a petition under ARJD 40(7), which expressly invites review of “interlocutory orders” of the Commission.25 Judge Whitehead’s petition did not seek exoneration or termination of disciplinary proceedings against him; he merely objected to the Commission’s proceeding against him on a facially defective complaint and asked the court to review what he claimed were improper inquisitional activities on the part of the Commission. This court issued two writs by which the Commission was prohibited from proceeding on the mentioned invalid complaint and was ordered to proceed in the future in accordance with its rules. There is nothing to prevent the Commission from proceeding on the Breen or Holmes complaints, or on any other legally-sufficient complaint, if the Commission should choose to do so.
The unorthodox and unauthorized procedures adopted by the Commission in this case cannot in any way be tied to “gaps” or any other perceived weakness in the procedural rules. The rules enacted in 1988 tell the Commission exactly how it is supposed to *219proceed: The Commission must act on all sworn complaints.26 The Commission may engage in a limited “preliminary investigation” if it questions the legal or factual sufficiency of a sworn complaint on file. The Commission must proceed to a probable cause hearing if it determines that a sworn complaint has merit.27 There is nothing difficult to understand about any of this, and it is hard for me to understand what prompted the Commission to pursue the unprecedented and completely unauthorized way of proceeding that it adopted in this case, apparently under the pretense that it was “protecting” Judge Whitehead from becoming the victim of a “misrepresenting” complaint. The Commission’s position that its investigation, during which it played cat-and-mouse with Judge Whitehead for a year, was merely to protect Judge Whitehead against “misrepresenting” complaints is simply not tenable.
At all times since the summer of 1992 the Commission has had pending before it two properly-sworn complaints. ARJD 14 imposes upon the Commission the duty to act on these complaints and either dismiss them or “proceed to a probable cause hearing.” To date, the Commission has ignored these complaints and denied to Judge Whitehead his right to have these complaints disposed of in a timely manner. Instead of simply dismissing or proceeding to a probable cause hearing, the Commission mysteri*220ously decided to investigate Judge Whitehead and then have its “special counsel” file a new “second kind” of complaint. In any event, this discipline matter is now two and one-half years old, and still the Commission has not taken the action required by ARJD 14.
Although it is a side issue and one already finally disposed of by this court, I again remind the reader that ARJD 5 provides that a judge is entitled to confidentiality and that “[a]ll proceedings must be confidential until there has been a determination of probable cause and filing of formal statement of charges.” I suppose that it could be argued that the price of filing such a challenge with this court ought to be having to give up the right of pre-probable cause confidentiality; but the rules do not say this, and this court ruled (Justices Rose, Steffen and Springer) that, as stated in ARJD 5, a judge is entitled to confidentiality in “[a]ll proceedings” until probable cause has been found. There is no way under these circumstances that the three mentioned justices can be said to have improperly “interfered” with the judicial discipline process.28
In conclusion, let me restate what now must be obvious: Far from “interfering” with the Commission’s performance of its constitutional duties, this court has acted only with respect to one, invalid complaint, prohibiting the Commission from proceeding on that complaint because it did not conform to Commission rules. Since the summer of 1992, two properly-sworn complaints have been pending before the Commission; but the Commission has failed to dismiss or proceed on these complaints as required by ARJD 14. The Commission is, of course, free to proceed on these complaints or on other proper complaints.
For doing what its members were elected to do (hearing a writ matter authorized by ARJD 40(7) and decreeing that proceedings *221remain confidential until the writ could be acted upon) this court has been repeatedly excoriated and charged not only with making wrong legal decisions but with being corrupt as well. Perhaps the worst aspect of this case is that a jurist who exercised his clear legal right to seek our review has been subjected to continuing, improper public degradation. Judge Whitehead’s energies have been diverted for several years from the job the people of this state elected him to do; and huge amounts of public resources have been expended on this case, which, if litigated in the ordinary and expected way, would have been over long ago. Notwithstanding all of this, something will have been gained if the Commission has learned the legitimate scope of its jurisdiction and the attorney general has learned that her zeal and determination must be confined by respect for the rule of law. We look forward to working with all of the parties to this litigation on a more amiable basis in the future.
The writs in this case were issued on September 9, 1994. Notice of remittitur has issued, and except for certain “housekeeping” matters, as to which we have reserved jurisdiction, the case has been closed since this time. After issuance of the writs and prior to today’s filing of these formal *192opinions, certain supplements to the September 9 order were filed by Justices Shearing and Springer and by Judge Guy. Among these was my Addendum of October 28, 1994, which I was prompted to file because I did not believe that our writ-granting order of September 9 adequately instructed the Commission on matters that I believed should have been made known to it prior to the time of our issuing a formal, published opinion. I was concerned that in the interim the Commission might ill-advisedly involve itself in other actions that might unnecessarily call for further judicial review. I note that the Commission has taken no such action. In this concurring opinion, I publish the views expressed in my October 28 Addendum relating to the incapacity of certain members of the Commission to sit in impartial judgment of Judge Whitehead. I will also refer briefly to the “uneven” and discriminatory manner in which the Commission has administered its powers of judicial discipline in the past; however I will not protract this opinion with all of the data that I have now compiled on that rather unsettling subject.
The Commission is required by ARJD 14 to act on the Breen and Holmes complaints. These complaints have now been pending for about two and one-half years. Whether the Commission will dismiss or proceed on these two and one-half year old complaints is a matter that remains to be decided by the Commission.
In fairness to Mr. Campbell and Attorney General Frankie Sue Del Papa, I should note that I do not assert that either he or she set out consciously to violate the ARJD in the manner described in the text. It appears, rather, that they may have incorrectly thought that they were following the practices which had been condoned in the past by this court.
ARJD 5 provides that “[ajll proceedings must be kept confidential until there has been a determination of probable cause and filing of formal statement of charges.” (Emphasis added.) When Justices Rose, Steffen and Springer signed the order requiring that the confidentiality to which Judge Whitehead was entitled be maintained, their reasoning was that if a judge wished to claim that the Commission was not following its rules or was denying due process, such a judge should not have to waive confidentiality in order to assert his or her right to interlocutory review. That a judge is entitled to challenge jurisdictional excesses of the Commission by filing an ARJD 40(7) petition without waiving the ARJD 5 right to confidentiality is now the law of this state. Justices Rose, Steffen and Springer were acting in an entirely proper and legal manner when they signed the mentioned confidentiality order. In December of 1993, after making its own independent evaluation of the issue, the Board of Governors of the State Bar publicly signified its agreement with our reasoning.
On the subject of Chief Justice Rose’s withdrawal from this case, I would note that he did not recuse himself until after he had defeated a challenge to Justice Shearing made on the basis that Judge Whitehead was the judge sitting on a large lawsuit in which Justice Shearing’s husband was a party. On August 24,1993, Chief Justice Rose innovatively took care of this challenge simply by entering a one-judge order removing Judge Whitehead from the Shearing case, thus ending any challenge to Justice Shearing, the dissenting justice in this case. When Justice Rose did this, Judge Whitehead could not have been legally or properly removed from the Shearing case, absent proof of demonstrable bias or other established legal ground.
Over a year ago my chambers received a telephone call from a television news reporter advising that I was being given an opportunity to respond to an attorney general staff member’s charge that the “fix was in” with the supreme court in the Whitehead case. I declined this opportunity; and, thanks to the prudence of the television news staff, these intemperate allegations never became public.
In other states, e.g., California, the Commission is not given such great power, and the ultimate power to remove a judge from office is vested in the state supreme court. Commissions in other states are given powers to investigate and make recommendations to the Supreme Court. They are quite different from our Commission; and for this reason, citations to California judicial discipline cases are not of much value here.
The term “preliminary investigation” refers to the preliminary screening inquiry that the Commission may decide to engage in before it makes the crucial decision as to whether a given complaint has “merit.” This preliminary investigation should not be confounded with the investigation that the Commission’s “prosecuting attorney” will necessarily be making in preparation for a formal hearing or even, in some cases, like the Goldman case, in counsel’s preparation for a probable cause hearing on a sworn complaint. Goldman v. Bryan, 104 Nev. 644, 764 P.2d 1296 (1988). There seems to be *203no dispute that a “preliminary investigation” is indicated only in cases where there is doubt as to the “sufficiency” of a sworn complaint and where there is a need to “protect” the subject of a complaint from unauthentic or unfounded complaints.
During oral argument, Assistant Attorney General Nielsen agreed with the court that there was “nothing wrong” with a preliminary investigation, “as long as you do it for the benefit of the judge.” (Emphasis added.)
During oral argument, prosecutor Campbell also recognized that a “preliminary investigation” was related to the Commission’s preliminary decision as to the sufficiency of a sworn complaint and to the need for the Commission in certain cases to look more deeply into a complaint in order to protect the judge against improper charges. Mr. Campbell gave an illustration of when a preliminary investigation might be proper and necessary:
How would you feel, if after serving on the bench for years, someone had filed a completely false or in large measure materially misrepresenting document with the Commission saying that you had violated all manner and sorts of the Code of Judicial Conduct and we or the Commission accepted that at face value? Wouldn’t you be appalled?
During argument, the court agreed with Mr. Campbell that all complaints should not be accepted on “face value” and that “before you accept [a complaint] on face value, you look into it to protect the judge and made sure it is a valid complaint.” (Emphasis added.)
In its Answer to Judge Whitehead’s petition, the Commission also recognized that the function of a preliminary investigation was that of “weeding out those complaints” which were not adequately supported. The same Answer pointed out that the Commission’s investigation of Judge Whitehead had been “focused on a single offending and recurring practice of ex parte contacts.” This contention is consistent with Mr. Campbell’s announced purpose, which was “to verify the specific allegations of misconduct detailed by Judge Breen.” It is important to keep in mind that protection of an accused judge is the sole purpose of the “preliminary investigation” referred to in the Constitution.
With regard to the problem of a disciplinary body’s mixing up inquisitional and judicial functions, I would note here that the American Bar Association has addressed this problem in its November 1993 publication “Model Rules for Judicial Disciplinary Enforcement.” These model rules provide for a “disciplinary counsel” who is absolutely prohibited (Rule 10) from having any “ex parte contacts” with “members of the commission.” The model rules also provide for an “investigative panel” of three members which can conduct investigative activities but does not sit in later judgment of an accused judge. The Nevada rules provide for an independent “prosecuting attorney” but only after a finding of probable cause. In the Goldman case, the Commission, under the old rules, hired independent counsel to prepare for the probable cause hearing. 104 Nev. 644, 764 P.2d 1296. The Commission did not, of course, employ its then legal advisor, the attorney general, in this prosecutorial capacity. The Commission’s employing independent counsel to conduct the probable cause hearing in the Goldman case is entirely different from using a “special deputy attorney general” to conduct a full-*204scale Commission investigation before the Commission has even made its required ARJD 14 ruling on the merits of a sworn complaint and before a decision had been made to proceed to a probable cause hearing. If, as stated in the dissenting addendum, Mr. Campbell was hired as the “Commission’s own attorney,” this kind of practice necessarily compromises the Commission’s capacity to act as an impartial hearing tribunal.
The only exception to the rule requiring a complaint to be signed under oath by the person complaining is the provision under ARJD 12(2) which allows the executive officer to swear to a complaint under “exceptional circumstances,” which do not apply here.
One of the most significant things that has come to light in these proceedings is confirmation that the Commission has been conducting secret hearings that are contrary to its rules. These cabals are, in addition to being in violation of ARJD rules, contrary to the letter and spirit of this state’s open-meeting laws. I trust that after the issuance of this opinion, the Commission will no longer engage in procedures that, for lack of a better descriptive term, I have come to call “Let’s-make-a-deal.” Let me give an illustrative example of what I mean:
A complaining judge files a sworn complaint against an erring judge, charging serious judicial misconduct which the complaining judge believes should result in removal from office. The Commission does not serve the complaint on the respondent judge, but, rather, instructs the judge to appear for a secret “Let’s-make-a-deal” hearing. The judge who filed the complaint is never told about the secret hearing, and neither is anyone else. The accused judge pleads for mercy, tells the Commissioners that he will do almost anything if they will not make the complaint public. The Commission decides it will keep mum if the judge will agree not to be bad any more, to visit a counselor and to submit to probation under the supervision of the attorney general. The secret deal is done, and the complaint is dismissed. The public never knows. The judge who filed the sworn complaint walks away, shaking his head, wondering what in the world has happened to his complaint.
The foregoing example is a composite narration based on fact. The described procedure is bad for the judges, and it is bad for the citizens of this state. It is bad for judges because this type of secret coercion is very demeaning and can lead to serious abuses, even though the judge “agrees” to the secret discipline. It is bad for the system because the complainant is frustrated, the press and the general public are denied access to the proceedings, and abuses in the form of unwarranted dismissals of valid complaints are inevitable in any secret penal system. The ARJD rules do not permit these kinds of secret proceedings.
If a judge deserves to be disciplined, she or he deserves to be disciplined in public and not in secret. This does not mean that a judge is not allowed under ARJD 31, and after there has been a finding of probable cause (ARJD: “V *207Procedure After Finding of Probable Cause” contains the applicable ARJD Rule 31), to “plea bargain” and in cases of contested fact to offer to plead guilty in exchange for a specific disposition. The procedure provided for in ARJD 31 is open and not secret and permits a respondent judge to give a “written consent” to being censured or removed from office. Where the Commission enters an order under this rule, a “certified copy of the order must be filed with the clerk of the supreme court”; thus, because probable cause has been found and because the rule requires filing of a copy of the Commission’s order with the court, the entire proceedings become a matter of public knowledge. I would assume that those who value open government, such as the Nevada Press Association, will concur in this view.
In footnote 1 to this concurring opinion, I have referred to a series of supplemental orders filed by Justices Shearing and Springer and Judge Guy. On November 22, 1994, Justice Shearing filed in this case a document entitled “Dissenting Addendum to Order Granting Petition,” in which Justice Shearing expressed her disagreement with the court’s order granting the writs. See Majority Opinion, n.l. This mentioned dissenting addendum was the subject of widespread news coverage and expressed the substance of the dissenting justice’s views. When I refer to statements by the “dissenting justice,” I am referring to statements made in the mentioned November 22 “Dissenting Addendum.”
Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 128, 869 P.2d 795 (1994).
Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994).
The Commission initially took the position that it was a super-agency “created as totally independent from any control by anyone in the three established branches of government,” and that “no .action of the Commission, however wrongful or prejudicial, is subject to any control or review whatever, unless and until a ‘final’ order is entered at the conclusion of its disciplinary proceedings in a given case.” The Commission adopted an even more extreme position when it made the claim that it was not subject to the orders of this court and did not have to obey them. The Commission insisted that this court’s orders were “unwarranted intrusions into the Commission’s ‘constitutional duty’” and therefore “void.” Whitehead I, 110 Nev. at 799-800, 869 P.2d at 135. These assertions are of considerable interest and value in any attempt to understand the nature of this powerful political body. We must bear in mind that this body is made up mostly of lawyers and judges and that most of the members owe their positions to political appointments that are dependent upon the current political alignments of the Supreme Court and the Board of Governors of the State Bar Association. Like other political bodies with great powers, the Commission is subject to the temptation to exceed its powers. It is the “nature of the beast.” Fortunately, political bodies of this kind must subordinate their power impulses to the rule of law. Given the nature of this political body, it is really quite understandable that the members of the Commission were so resistant in this case to the idea that they were subject to judicial review or to any other kind of “interference” with their perception of absolute power. However sincerely these beliefs may have been embraced, the Commission has done much damage to the Nevada judiciary by its persistent refusal to recognize the existence of judicial superintendence over the Commission’s exercise of power.
The unasked and unanswered question here is, of course, whether it was necessary, in order to “protect” Judge Whitehead, to have three investigators investigate him for six months.
“Laws like to cobwebs, catch small flies, Great ones break them before your eyes.”
Benjamin Franklin, Poor Richard (1734).
“Old Mouse: ‘What Big Whiskers had said is all very well, but pray tell me, who is going to bell the cat?”’ Aesop, “Belling the Cat,” My Book House (The Bookhouse for Children, Chicago, Toronto, 1925).
Among the secret documents which the Commission finally divulged under threat of punishment for contempt was a letter which Commissioner Lefebvre wrote to the prosecutor hired to prosecute Judge Whitehead. The letter contained a number of legal citations to be used in the prosecution of Judge Whitehead and some tactical advice that Mr. Lefebvre advised the prosecutor to employ in investigating Judge Whitehead. This document, which I call the “Lefebvre Brief,” is dated March 26, 1993, a date falling within the period that prosecutor Campbell was investigating Judge Whitehead and preparing charges against him. Commissioner Lefebvre claims that he was merely harmlessly conferring with one of the Commission’s attorneys; but his brief belies this claim because Mr. Lefebvre states in the brief that his intent is to be “useful” to Campbell in his prosecutorial activities. I must also note that Mr. Campbell’s assigned task was not that of a legal advisor to the Commission (the attorney general’s office was doing this); but, rather, prosecutor Campbell’s function was, as a “special deputy attorney general,” to investigate and prosecute Judge Whitehead, that is to say, to file a complaint and prosecute that complaint before a hearing tribunal upon which Mr. Lefebvre was to sit.
The Lefebvre Brief offers suggestions as to whom the prosecutor should interview and is accompanied by copies of “several cases” which Commissioner Lefebvre believed the prosecutor might find “useful to add to [his] research” in prosecuting Judge Whitehead (e.g., Roberts v. Commission on Judicial Performance, 661 P. 2d 1064 (Cal. 1983); McCartney v. Commission on Judicial Performance, 526 P.2d 268 (Cal. 1974); Geiler v. Commission on Judicial Qualifications, 515 P.2d 1 (Cal. 1973)). (Emphasis added.) 1 do not know how valuable Commissioner Lefebvre’s prosecution brief was to *214prosecutor Campbell, but the mere fact that Mr. Lefebvre was providing “useful” legal support for the prosecution certainly should be enough in most people’s minds to keep him from sitting in judgment of Judge Whitehead.
Finally, I would note that prosecutor Campbell’s billings to the attorney general show that Mr. Campbell had “multiple telephone conferences” with Mr. Lefebvre. Judge Whitehead’s lawyers were never included in any of these ex parte conferences between Campbell and Lefebvre, and Judge Whitehead’s attorneys were not served with the Lefebvre Brief.
Special Deputy Attorney General Campbell himself tells us, under oath, that after he was hired in “early March” of 1993, he “began a ‘preliminary investigation’” of Judge Whitehead. Based upon the “evidence gathered in the investigation,” Mr. Campbell proceeded to “draft[] a proposed complaint, and requested that a probable cause hearing take place.” Mr. Campbell’s activities appear to have been limited to those of being an investigator and prosecutor and the person whose sole duty it was to file and prosecute charges against Judge Whitehead. Mr. Campbell was seemingly hired to investigate and prosecute Judge Whitehead and acted at all times in this role and not as the Commission’s “own attorney.” By deciding to help out with the prosecution, Commissioner Lefebvre rather clearly forfeited his right to sit in judgment of Judge Whitehead.
It is very well established in this country that “a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955). This Commission cannot possibly be seen as a “fair tribunal” for so long as a person who has been active in preparing the prosecution’s case is sitting in judgment of the accused.
Over the years, the United States Supreme Court has recognized this “basic requirement” of due process in a number of cases. For example, in Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1985), the Supreme Court vacated the judgment of the Alabama Supreme Court because one of the *215justices on the Alabama court had joined in an opinion affirming an insurance bad faith award without disclosing that he was a plaintiff in a similar action. The Supreme Court held that even though the Alabama jurist’s conduct did not show actual bias (as does Mr. Lefebvre’s prosecutorial activity), the Alabama jurist’s conduct nevertheless violated the insurance company’s right to an impartial tribunal because it created the appearance that the Alabama justice had not held “the balance nice, clear and true.” Id. at 825 (quoting Turney v. Ohio, 273 U.S. 510, 532 (1926)). In the present case, we are not dealing with the mere appearance of bias, we are dealing with a person who has actually expressed bias in the clearest of terms by way of his announced intention to be “useful” to the prosecution.
Mr. Shipler’s saying that his letter was intended to “clarify” factual and legal issues appears to be an artless attempt to come within ARJD 8 which provides for “public statements” to be made by the commission to “clarify the procedural aspects of the disciplinary proceedings.” (Emphasis added.) On its face, the letter in question is a statement by the chairman and not by the Commission, and the letter does not state that its purpose is to clarify “procedural aspects of the disciplinary proceedings.” Rather, it is a bland expression by Mr. Shipler that he and Judge Breen believe Judge Whitehead to be guilty of “unethical conduct.”
I note that Canon 2B of the Code of Judicial Conduct prohibits a judge from testifying voluntarily “as a character witness.” It seems to me (unless Mr. Shipler published Judge Breen’s affidavit without the judge’s permission) that Judge Breen may have improperly attested to matters relating to Judge Whitehead’s character if he testified publicly that Judge Whitehead was guilty of “serious ethical violations.” I note further that in November of 1993, Judge Breen issued a press release about this case in which he self-righteously explained that it was “incumbent” upon him to “complain of violations of the Canons of Judicial Ethics [sic],” thereby representing that in his opinion Judge Whitehead was guilty of some wrongdoing. Judge Breen publicly “challenged Whitehead” to a duel, stating that he was “willing to meet at a public forum” “with all press and public invited and Judge Whitehead in attendance” for a “full discussion of the complaints and subsequent related events.” These kinds of impermissible public statements by Judge Breen about a pending case are comparable to the objectionable public statements made by Judge Adams and other “persons in high places” that are discussed in the text.
Certainly, if Chairman Shipler were a juror, he would not be permitted to sit on a case after publicly expressing his opinion in the manner that he did. NRS 16.090 expressly provides for the exclusion of any juror who has “formed or expressed an unqualified opinion or belief as to the merits of the action.” NRS 16.090 merely expresses the common sense of the matter. We do not want people who have opinions or express opinions about a person’s guilt or innocence to be sitting in judgment of that person. The impartiality of judges and jurors must remain “nice, clear and true.” Aetna Life, 475 U.S. at 825 (citing Turney v. Ohio, 273 U.S. 510, 532 (1926)).
ARJD 40(7) was
partially based on recognition of problems that a prosecutor for the Commission had faced in obtaining a speedy, authoritative answer to a jurisdictional issue that related to a Reno municipal judge. ARJD 40(7) was, of course, also adopted in the recognition that the prior Commission practices, in which investigations concerning illusory or unfounded charges about innocent judges had languished while the subject judges and their families were subjected to torments occasioned by untruthful “leaks” to the press, could no longer be tolerated. It is most difficult to raise a legitimate question or challenge to the sound policy which supports the enactment of ARJD 40(7) and the constitutional and precedential authority which supports the rule.
Whitehead /, 110 Nev. at 154-55, 869 P.2d at 812.
It must be emphasized and clearly kept in mind that Judge Whitehead was deprived of a very critical right when, instead of ruling on the “merit” of the sworn Holmes and Breen complaints, as it was required to do by ARJD 14, the Commission decided to engage in a long-term, sweeping investigation of Judge Whitehead. If the Commission had followed its rules, it might very well have ruled that the Holmes and Breen complaints did not have sufficient merit because they were based on hearsay “information” and were not made by the actual “person complaining.” (For example, the Breen complaint merely states that Judge Breen had in his possession certain “information which indicates a substantial likelihood” that Judge Whitehead had violated the Code of Conduct. Judge Breen then goes on to give information about complaints that other, actual complainants might have had.) In considering the Holmes and Breen complaints (both based only on “information” about the complaints of others) the Commission could very well have ruled that these complaints lacked “merit” and that the potential complainants (whose names are revealed in the Holmes and Breen complaints) should come forward and file their own, first-hand sworn complaints.
I would note here that although the present rules do not provide for the employment of an independent prosecutor to prosecute at a probable cause hearing, I can see that in certain cases it might be advisable and proper for the Commission to have independent counsel employed for this purpose, after it has decided to proceed to a probable cause hearing on a sworn complaint. As indicated in the text, there is a big difference between the actions of independent counsel preparing for a probable cause hearing (as in the Goldman case) and the impermissible hiring of a professional prosecutor to conduct a six-month investigation of a judge for the purpose of creating a factual basis for the prosecutor to make his own complaint.
I fully understand that there are those who, despite the constitutional mandate, do not believe in confidentiality at any stage of judicial discipline proceedings and who think that all complaints of any kind should be subject to immediate release to the public. This would result in hundreds of unfounded complaints against judges being made public and to unnecessary degradation of the judiciary; nevertheless, I can understand the argument for full publicity, and I abhor the secrecy which has characterized the Commission’s activities over the past several years. The point must be made, however, that whatever position the reader of this opinion might have on this question, it is very clear that at the time Judge Whitehead filed his petition, and at the present time, the Constitution and ARJD 5, command the preservation of confidentiality, at least until after probable cause has been found. Thus, I submit, it should be very clear that this court (Justices Rose, Steffen and Springer) had no choice (prior to a probable cause determination) other than to try to maintain confidentiality until this court had a chance to review the charges of jurisdictional excesses and due process violations brought by Judge Whitehead.