dissenting:
I would dismiss Judge Whitehead’s petition for writ of mandamus or prohibition.
I would hold that the Judicial Discipline Commission has jurisdiction to proceed to a probable cause hearing based on the complaint prepared by special counsel Donald Campbell.
I would hold that Judge Whitehead has been furnished with all of the documents required to be furnished under ARJD 14(5) at this stage of the proceedings.
I would hold that if probable cause is found for Judge Whitehead to answer at a formal hearing, that he be furnished with all the discovery provided under ARJD 21, including special counsel’s notes of relevant interviews, with the exception of any communications or documents to which the attorney-client privilege or the work product privilege applies.
I would rescind the order for a special master.
*229INTRODUCTION
I am disappointed that the majority has chosen to make every inference of fact and interpretation of rules against the Nevada Judicial Discipline Commission and/or its counsel. The majority makes it appear that members of the Judicial Discipline Commission and/or its counsel conducted themselves or their proceedings in this case in an outrageous manner, in violation of the United States Constitution, the Nevada Constitution, the Commission rules and principles of fairness. The record does not support such a proposition. I see nothing in the record which warrants any conclusion other than that the Commission has attempted in good faith to perform the sensitive and difficult job of protecting the rights of both the judge and the citizens of this State. It appears that the Commission has attempted to resolve the matter as fairly and expeditiously as possible under rules that have many gaps and leave much room for interpretation.
Unfortunately, the majority has attributed numerous opinions on the applicable law to me to which I do not subscribe and which my previous statements do not justify. I do not question a litigant’s right to challenge the jurisdiction of any agency or commission by way of a writ proceeding when that agency or commission acts in excess of its jurisdiction. I simply do not believe that the Petitioner has shown that intervention by way of an extraordinary writ is warranted in this proceeding.
The majority has stated, “[pjerhaps the most alarming aspect of the dissenting justice’s dissent is her willingness to accept the validity of her lone dissent on this subject as a basis for virtually promoting disobedience to the lawful orders of this court.” There is no justification for this statement. I do not presently nor have I ever promoted disobedience to the orders of this court. I simply disagree with the view of the majority on the applicable law and the appropriate orders in this case and it is my right and duty to express my opposing view. This expression is not equivalent to advocating disobedience to the orders of this court. Ironically, on the one hand the majority accuses me of not recognizing its authority; on the other hand, it accuses me of changing my previous position when I do recognize its authority and agree to provide the relief Judge Whitehead requests, that the order of confidentiality be lifted. While I disagree with the original order, I recognize the force of that order until it is modified.
I fully appreciate the policy arguments in favor of confidentiality of judicial discipline proceedings. I support screening out frivolous charges before public disclosure. However, the majority fails to recognize that there is a vast difference between *230proceedings before this court and proceedings before the Commission. The issue of the openness of Commission proceedings is not before this court; the issue of the openness of court proceedings is before this court. Proceedings in our courts should be open to public scrutiny. I am very concerned about the spectre of judicial proceedings that are so secret that their very existence is not known to the public and therefore cannot be challenged.
The majority also accuses me of having already concluded that Judge Whitehead is guilty of the charges. There is no justification for this accusation. I recognize that the charges are merely allegations and that no determination has been made as to their truth or falsity.
The majority also devotes a substantial portion of its opinion to criticism and discussion of the news media because “allegiance to the rule of law and our obligations under the Code of Judicial Conduct will not allow us to permit the misguided attacks on the independence and integrity of this court and this state’s judiciary to go unopposed.”
I disagree wholeheartedly with the majority view that this court should respond in its opinions to the comments and criticisms of the media, in addition to addressing the litigants’ arguments. While no public official enjoys being criticized by the media, one of the media’s most important responsibilities is to report on the actions of public officials and to criticize them if necessary. This court has the responsibility to decide cases and controversies. United States Supreme Court Justice Murphy suggested the appropriate response of a public official to criticism almost fifty years ago. “Silence and a steady devotion to duty are the best answers to irresponsible criticism.” Craig v. Harney, 331 U.S. 367, 383 (1947) (Murphy, J., concurring).
Attacking the media does not protect the “independence of the judiciary,” as the majority suggests. The Supreme Court of Maine implies that it achieves the opposite result.
Independence of the judiciary is not inconsistent with accountability for judicial conduct. Lawless judicial conduct — the administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himself — is as threatening to the concept of government under law as is the loss of judicial independence. We see no conflict between judicial independence and judicial accountability. Indeed, a lack of judicial accountability may itself be the greatest danger to judicial independence.
Matter of Ross, 428 A.2d 858, 861 (Me. 1981).
It is equally doubtful that the majority’s attacks on the media are likely to “promote and protect public confidence in the *231judiciary.” As Justice Black wrote for the Court in Bridges v. State of California, 314 U.S. 252, 270-71 (1941):
The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.
In his dissenting opinion, Justice Frankfurter added:
Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindfiil of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.
Id. at 289.
As for the editorials and “malevolent editorial cartoons,” to which the majority takes offense, I suggest that the court has attributed to them wholly undeserved significance. It should be remembered that freedom of the press “covers something more than the right to approve and condone insofar as the judiciary and the judicial process are concerned. It also includes the right to criticize and disparage, even though the terms be vitriolic, scurrilous or erroneous.” Pennekamp v. State of Fla., 328 U.S. 331, 370 (1946) (Murphy, J., concurring).
The media is doing its job in reporting on our proceedings and has every right and obligation to express opinions. Chief Justice Burger noted the important role of the media in judicial administration as follows:
“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Although it is assumed that judges will ignore the public clamor or media reports and editorials in reaching their decisions and by tradition will not respond to public commentary, the law *232gives “[j]udges as persons, or courts as institutions ... no greater immunity from criticism than other persons or institutions.” The operations of the courts and the judicial conduct of judges are matters of utmost public concern.
“A responsible press has always been regarded as the handmaiden of effective judicial administration . . . .”
Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838-39 (1978) (quoting Mills v. State of Ala., 384 U.S. 214, 218 (1966), Bridges, 314 U.S. at 289, and Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)).
COMMISSION JURISDICTION OVER SUBSTANTIVE CHARGES
The majority suggests that former Commission counsel inserted into this case the issue of whether the alleged conduct of Judge Whitehead violates the Code of Judicial Conduct. This suggestion ignores the fact that Judge Whitehead alleged as one of the grounds in his petition for the writ that his alleged conduct has no “legal or ethical relevance to the Code of Judicial Conduct and the function of the Nevada Commission on Judicial Discipline” and “[therefore the Commission is without jurisdiction to impose discipline for such an alleged violation.” Once this court agreed to intervene by way of extraordinary writ to determine the matter of jurisdiction, it had an obligation to resolve the jurisdictional issues raised by the petition, one of which is that the alleged conduct does not violate any provisions of the Code of Judicial Conduct. Therefore, the charges against Judge Whitehead are examined in some detail.
Paragraphs 4, 5, 9, 10 and 15-18 of Counts 1 through 3 of the complaint describe these factual allegations:
4. That beginning at a time, the precise date of which is unknown, but on or about June 24, 1986, Judge Whitehead intentionally embarked upon a scheme to deter and punish counsel in the exercise of their absolute right to challenge him by means of filing a peremptory challenge pursuant to Supreme Court Rule 48.1.
5. The mechanics of the scheme as conceived and employed by Judge Whitehead were as follows. First, Judge Whitehead would obtain a copy of the peremptory challenge and note the name of the challenging attorney and the name of the opposing, non-challenging, attorney. Then, Judge Whitehead would initiate an ex parte contact with the opposing, non-challenging, attorney and permit that attorney to select the new judge to preside over the case or controversy.
9. A specific occasion on which Judge Whitehead *233engaged in this scheme was in connection with Case No. 86-1277, Frandsen v. MGM Grand Hotel — Reno, et. al.
10. On or about June 24, 1986, John Frankovich, Esq., counsel to defendant MGM, filed a peremptory challenge to the presiding judge, Jerry Carr Whitehead. Thereafter, and upon receiving notice of the peremptory challenge, Judge Whitehead personally telephoned Robert McQuaid, Jr., Esq., counsel for the plaintiff, and asked him to select the next presiding judge. This telephone conversation was initiated by Judge Whitehead outside the presence of the defendant MGM and their counsel, and was engaged in without their knowledge or consent.
15. Yet another specific occasion on which Judge Whitehead engaged in this scheme was in connection with Case No. 84-3606, In the Matter of the Civil Actions filed against Montessori Schools, Limited, et al.
16. On or about September 16, 1988, David Grundy, Esq., counsel for one of the defendants in the Montessori case, filed a peremptory challenge to the presiding judge, Jerry Carr Whitehead. Following an order to quash the challenge, Judge Whitehead summoned defense counsel, David Grundy, Esq., Don Nomura, Esq., Robert McQuaid, Esq., and Plaintiff’s counsel, Peter Chase Neumann, Esq., to the Judge’s chambers on or about October 15, 1988, for a meeting. As a result of this off-the-record discussion, Judge Whitehead stated that he would “voluntarily” transfer the case to any court in any judicial district desired by plaintiff’s counsel, Mr. Neumann. After announcing his decision, Judge Whitehead dismissed all defense counsel so that he and Mr. Neumann could discuss the matter alone and arrive at the selection of a judge.
17. On or about December 16, 1988, defense counsel learned of Mr. Neumann’s selection when they received an “Order Transferring Cases” which named Judge David R. Gamble of the Ninth Judicial District Court as the new judge.
18. Judge Whitehead’s abdication of his judicial power to Mr. Neumann by allowing him to select the next presiding Judge graphically illustrates the inherent danger in this scheme. For, after the assignment to Judge Gamble, it became known that Mr. Neumann had previously been a partner of Judge Gamble in a real estate venture and had also loaned Judge Gamble a significant sum of money to help finance Judge Gamble’s recent election campaign.
The conduct alleged in these paragraphs can be divided into three separate categories: (1) Judge Whitehead repeatedly initi*234ated contact with the non-challenging attorney; (2) Judge Whitehead engaged in conversations with the non-challenging attorney outside the presence of the challenging attorney, in other words, on an ex parte basis; and (3) instead of choosing the next presiding judge himself, Judge Whitehead delegated that task to the non-challenging attorney.
The majority claims that other judges in Washoe County and throughout the State of Nevada engaged in the same conduct. Actually, there is not a shred of evidence in the record which suggests that any single other judge on even one occasion ever allowed the non-challenging attorney to select the next presiding judge, or that a judge who had a peremptory challenge filed against him or her thereafter engaged in any ex parte communications with the non-challenging attorney. Several judges and attorneys have complained that some judges: (1) initiated contact with the challenging attorney; (2) engaged in conversations with the challenging attorney regarding the reasons for the peremptory challenge (when the peremptory challenge rule does not require that any reason be given); and (3) proceeded to choose the next judge to preside over the case.
Former SCR 48.1 authorized a challenged judge to choose the next judge to preside over a case; thus, this behavior did not violate the Code of Judicial Conduct. This authority was a source of discomfort for many members of the bench and bar, however, since the challenging attorney frequently suspected that the disqualified judge may have been offended by the peremptory challenge, and may have taken that into account in selecting the next presiding judge. Because this discomfort was virtually inherent in the process, irrespective of the judge or the party, the process itself was flawed. This court recognized that fact and amended SCR 48.1 on August 15, 1993, to provide that the next presiding judge be selected at random rather than by the disqualified judge.
Attorneys were troubled when a judge would contact the challenging attorney and ask, in effect, “Why did you decide to exercise your peremptory challenge against me?” If the purpose of the communication was to intimidate the attorney from exercising the peremptory challenge in the future, or to retaliate by making the attorney feel uncomfortable or worse, this communication would clearly be a violation of the Code of Judicial Conduct. Even if the disqualified judge called the challenging party without any animosity or ill will, but rather with the noble aim of seeking constructive criticism for self-improvement, there would still be an ex parte communication if the contact were made before the judge had reassigned the case. It is this latter scenario which various judges and attorneys note was not unusual among the judges of the state. The question is whether such an ex parte communication is sanctionable.
*235Canon 3B(7) proscribes ex parte communications except in certain situations which are not applicable to the scenario described above. In interpreting its comparable canon, the Florida Supreme Court stated, “[t]his canon was written with the clear intent of excluding all ex parte communications except when they are expressly authorized by statutes or rules.” In re Inquiry Concerning a Judge: Clayton, 504 So.2d 394, 395 (Fla. 1987). The Supreme Court of Oregon considered ex parte communications in similar circumstances and concluded that since the ex parte communication “apparently had no impact on the parties, the attorneys, or the merits of the cases,” and since “we cannot say that by itself the contact had a significant impact on the public’s confidence in the judiciary,” no punishment beyond an admonition was required. In re Conduct of Schenck, 870 P.2d 185, 208 (Or. 1994).
Nonetheless, “[rjegardless of how well-intentioned the judges may be, these ‘routine’ types of ex parte communications can expose the court system in general, and the individual judge in particular, to precisely the types of charges which Canon 3 is designed to prevent. Judges must refrain from taking actions which increase the potential for harm to both their own reputations and careers and the court system in general. ... By their very one-sided nature, ex parte communications raise questions about motivations and impartiality which can never be resolved to everyone’s satisfaction.” Matter of Kaufman, 416 S.E.2d 480, 485 (W.Va. 1992).
The court in In re Thoma, 873 S.W.2d 477, 499 (Tex. Rev. Trib. 1994), stated that ex parte communications “suggest to the citizens of our state that judges, who are sworn to impartiality, are entitled to implement an ‘open door policy,’ which may be available to a select predetermined constituency. An ‘open door policy,’ or the disposition of any case for reasons other than an honest and open appraisal of the facts and law as disclosed by the evidence and the advocacy of both parties, undermines the integrity of the courts, breeds skepticism and distrust, and thwarts the principles on which the judicial system is based.” The problem with ex parte communications is not that the member of the “select constituency” would be offended by the absence of the other party. The problem is that the non-participating attorney and that attorney’s client would be offended, and, more importantly, that the appearance of integrity of the courts would be undermined for all.
Thus, even this relatively benign type of ex parte communication is looked upon with disfavor. Moreover, while Judge Whitehead claims that other Nevada judges engaged in behavior similar to that with which he is charged, there is no indication in the record that any other Nevada judge did any more than engage *236in this “benign” type of ex parte communication. This “benign” communication, while still objectionable, is nevertheless quite different from contacting the non-challenging attorneys and delegating to them the choice of the next presiding judge as Judge Whitehead is alleged to have done.
Even if it were true that other judges engaged in the conduct attributed to Judge Whitehead, and even if the Commission had expressly considered and dismissed similar charges (of which there is no evidence), that would be of no relevance to the case against Judge Whitehead. As the New York Court of Appeals stated in Sardino v. State Commission on Judicial Conduct, 448 N.E.2d 83, 85 (N.Y. 1983):
Although we doubt that many Judges follow the practices of this petitioner we agree with the commission that such evidence would be irrelevant.
Each Judge is personally obligated to act in accordance with the law and the standards of judicial conduct. If a Judge disregards or fails to meet these obligations the fact that others may be similarly derelict can provide no defense. Indeed one of the obvious reasons for establishing a permanent Commission on Judicial Conduct is to elevate judicial performance by insuring that the practices in the various courts comply with the high standards required of judicial officers.
The court further stated in In the Matter of Harris, 529 N.E.2d 416, 416 (N.Y. 1988), “we do not accept petitioner’s contention that, by way of sanction, the Commission was obliged to give him only a warning, because it had done so previously in connection with a similar charge involving another Judge.” “Selective prosecution” simply does not constitute a defense to a charge of judicial misconduct.
The conduct with which Judge Whitehead is accused would not only violate Canon 3B(7) of the Code of Judicial Conduct, it would also violate SCR 48.1 as it existed at the time the alleged conduct took place. I do not see, as the majority alleges, how the former SCR 48.1 is ambiguous. While the Rule may not have been good policy, neither was it unclear. The majority is wrong when it states “[tjhere is no suggestion in this record that Judge Whitehead at any time or in any way acted in violation of former SCR 48.1.” SCR 48.1 required that the challenged judge select the next presiding judge. If the allegations in the complaint are true, Judge Whitehead did not choose the next presiding judge, but instead delegated that task to the non-challenging attorney. A judge is not free to delegate his or her responsibilities to whomever he or she wishes. If a judge could delegate the selection of a *237new judge to an attorney with a strong interest in the matter, he could equally plausibly delegate his criminal sentencing function to the victim’s family, or have his bailiff rule on objections to evidence. He has no such authority. Clearly, when former SCR 48.1 required the challenged judge to select the next presiding judge, it referred to Judge Whitehead himself and not some third party.
The majority suggests that a judge is not prohibited from contacting attorneys after a peremptory challenge is filed because the filing of the challenge terminates the judge’s jurisdiction over that case. Under former SCR 48.1, a judge’s jurisdiction over the case was not terminated by the filing of the challenge. Even after deciding if the challenge was timely filed, the judge still had the duty to assign a new judge to preside over the case. Quite plainly, the conduct alleged in the complaint relates to conduct before jurisdiction ends since Judge Whitehead is alleged to have asked the non-challenging attorney to choose the next presiding judge.
The same allegations in the complaint which would violate Canon 3B(7) of the Code of Judicial Conduct would also violate Canons 1 and 2A of the Code. This is not surprising, since “the behaviors encompassed by each canon are not separable into rigid and distinct categories. Nevertheless, the canons are not mere platitudes. They direct each judge in conducting himself or herself in office, and guide the Court in determining when judicial misconduct has occurred.” Matter of Seaman, 627 A.2d 106, 121 (N.J. 1993).
Canon 1 provides, “[a] judge shall uphold the integrity and independence of the judiciary.” Canon 2A provides, “[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” If the allegations in the complaint are established, then Judge Whitehead has not complied with Canons 1 and 2A of the Code because his alleged behavior will have violated former SCR 48.1 and have detracted from public confidence in the integrity, independence, and impartiality of the judiciary.
It is apparent that allowing the non-challenging attorney to select the new judge would deter a litigant from exercising his or her right to file a peremptory challenge. The complaint also alleges, however, that Judge Whitehead sought to deter peremptory challenges by stating his intended response to peremptory challenges publicly. Specifically, the allegations in the complaint are:
22. As this scheme or “procedure” became more widely known, it had a chilling effect upon the right of litigants and their counsel to exercise peremptory challenges to Judge *238Whitehead pursuant to SCR 48.1. Not all litigants, however, were dissuaded. Therefore, beginning on or about February 14, 1991, at a “Bridge The Gap” seminar held in Reno, Nevada, Judge Whitehead began to publicly declare his personal antagonism to SCR 48.1. Specifically, Judge Whitehead left open the possibility that the exercise of a peremptory challenge against him could result in an unfavorable assignment to a new department as a means by which he would punish those exercising their rights under SCR 48.1.
23. Judge Whitehead’s commentary served to undermine the public’s confidence in the impartiality, integrity, and independence of the judiciary in that newly admitted members of the Bar were intimidated and feared retaliation if they exercised their right to challenge Judge Whitehead. Thus, the Judge thereby committed a violation of Canons 1 and 2A of the Nevada Code of Judicial Conduct.
25. The following year, on or about February 27, 1992, at another “Bridge The Gap” seminar held in Reno, Nevada, Judge Whitehead again attempted to dissuade newly admitted members of the Bar from exercising their rights to challenge him.
26. During the seminar, a member of the audience, Myra Sheehan, Esq., questioned Judge Whitehead concerning the manner in which a judge could be challenged. Judge Whitehead responded in a hostile tone, making known his personal offense to the exercise of SCR 48.1 and warned that he would permit the opposing counsel to select the new judge on an ex parte basis.
The majority has concluded “as a matter of law that the allegations of misconduct stemming from Judge Whitehead’s comments at a continuing legal education seminar do not state grounds for discipline under ARJD 11.” I disagree. The allegation is not that Judge Whitehead simply expressed his opinion of SCR 48.1 or sought a change in the rule. The allegation is that Judge Whitehead threatened attorneys assigned to his court with punishment if they exercised their legal right to avail themselves of SCR 48.1. This is a judge publicly declaring that the law must not be applied in his court or those who seek to invoke the law will suffer adverse consequences.
This conduct clearly constitutes intimidation and threatened retaliation. Before discussing the applicable case law, however, it is necessary to review some of the allegations in the complaint that show actual retaliation against the challenging attorney or litigant beyond simply allowing the non-challenging attorney to select the next presiding judge.
*239The facts alleged in Counts 8 through 11 of the complaint are as follows:
38. Judge Whitehead’s personal antagonism toward and desire to punish those who exercised their right to challenge him under SCR 48.1 was clearly displayed in Case No. 92-03314, Boyer v. Valley Bank of Nevada.
39. For many years the firm of Beasley, Holden & Brooks had acted as trial counsel to Valley Bank of Nevada. While acting in this capacity, Ms. Gayle Brooks, a partner in that firm, legitimately exercised the right to peremptorily challenge Judge Whitehead on July 15, 1992.
40. Instead of promptly reassigning the case, however, Judge Whitehead telephoned Ms. Brooks’ partner, Mr. James Beasley. During the conversation which followed, Judge Whitehead opined that the good working relationship that had existed between his court and the Beasley firm might be in jeopardy. Judge Whitehead went on to explain that Mr. Beasley’s partners, Pete Holden and Gayle Brooks, had both recently filed peremptory challenges against him in two different cases. Judge Whitehead then suggested that Mr. Beasley find out the underlying reasons for the peremptory challenges and report back to him once he had done so.
44. Following the telephone call from Judge Whitehead, Mr. Beasley inquired of Mr. Holden and Ms. Brooks as to their reasons for filing the peremptory challenges. On July 22, 1992, as requested by Judge Whitehead, Mr. Beasley reported back to the Judge in his chambers and divulged the underlying reasons for the peremptory challenges. In the case of Mr. Holden, the peremptory challenge was filed after consultation with the client. In the case of Ms. Brooks, the peremptory challenge was filed, in part, due to the impression that Judge Whitehead had created a hostile judicial environment for female attorneys.
48. Dissatisfied with the answers given by Mr. Beasley as to why he was challenged, Judge Whitehead refused to reassign the Boyer case. Instead, he set out to make his dissatisfaction with the Beasley, Holden & Brooks firm known to their clients, the directors of Valley Bank of Nevada. Sometime shortly after July 23, 1992, Judge Whitehead personally visited the offices of Mr. Ernest Martinelli who was then Vice-Chairman of the Board of Valley Bank of Nevada. During that meeting, Judge Whitehead complained to Mr. Martinelli that the peremptory challenge filed by Beasley, Holden & Brooks was the first he *240had ever received and constituted a “black mark” on his career. Judge Whitehead further stated that he was curious as to what he had done to so upset the Bank since he had been a “good friend” to the Bank over the years and had been a substantial source of business referrals. Judge Whitehead then asked Mr. Martinelli to look into the matter and get back to him.
53. When Mr. Martinelli did not report back to Judge Whitehead as requested, Judge Whitehead instituted yet another ex parte contact with Valley Bank of Nevada. On July 28, 1992, Judge Whitehead summoned John Sande, a director of Valley Bank of Nevada, to his chambers. Judge Whitehead again raised the issue of Ms. Brooks’ peremptory challenge and complained that it was unfair in light of his relationship with the Bank. Mr. Sande, like Mr. Martinelli, was asked to “check into the matter” and report back to Judge Whitehead.
54. At the time of the above referenced meeting, Judge Whitehead had still not reassigned the Boyer case.
55. As Judge Whitehead could have easily forecasted, his ex parte contacts with members of Valley Bank’s board of directors resulted in serious consequences for the law firm of Beasley, Holden & Brooks.
56. By the following Monday, August 3, 1992, Valley Bank had relieved the firm of Beasley, Holden & Brooks of all responsibility as their counsel in the Boyer case. In their place, Valley Bank of Nevada retained the firm of Vargas & Bartlett. At the time that Vargas & Bartlett entered the case, Judge Whitehead’s son, Jeifrey, was a lawyer with that firm. Vargas & Bartlett’s first act as counsel for Valley Bank was to withdraw the peremptory challenge which had been filed nearly three weeks before.
The majority states that it is a “matter of conjecture” whether any of the conduct alleged here would amount to violations of Canons 1 and 2 of the Code of Judicial Conduct. To the contrary, one does not have to be a scholar of judicial ethics to recognize that the conduct alleged in these paragraphs, if true, amounts to judicial misconduct of an extremely serious nature, whether in Nevada or any other jurisdiction. Any Nevadan, and certainly any member of the Nevada bar, can understand that if Judge Whitehead caused a law firm to lose Valley Bank of Nevada as a client merely because it dared to exercise a legal right which it was entitled to exercise, then Judge Whitehead engaged in a very serious retaliation indeed for what he perceived to be a challenge to his authority.
*241This pattern of retaliatory conduct is expressly prohibited by several canons throughout the Code of Judicial Conduct:
Canon 1
A judge shall uphold the integrity and independence of the judiciary.
Canon 2
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.
Canon 3
B. Adjudicative Responsibilities.
(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.
(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism.
(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials, and others subject to the judge’s direction and control.
(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
*242(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.
(8) A judge shall dispose of all judicial matters promptly, efficiently and fairly.
E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(c) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;
(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.
(Emphasis added.)
When Judge Whitehead was presented with a peremptory challenge by Ms. Gayle Brooks on July 15, 1992, Judge Whitehead had an obligation to act on the motion promptly. It should have been clearly understood that in Nevada, under SCR 48.1 as it was then in effect, a party had a right to one peremptory challenge of a *243judge. The Supreme Court of Missouri in Matter of Buford, 577 S.W.2d 809, 828 (Mo. 1979), stated:
No judge has any right to impede, forestall, or delay sustaining a motion for change of judge when it is timely filed in proper form and presented to the court. And this is so regardless of what the judge may think the movant’s motives may be. In short, a party’s motives have nothing to do with the matter. Nor is it of any consequence that the judge may feel personally slighted by the motion. ... it should be obvious that no judge has any right to penalize any party or lawyer because the lawyer frequently or routinely disqualifies a particular judge.
The complaint alleges that instead of promptly sending the case to another judge, Judge Whitehead embarked on a personal vendetta. “The use of judicial power as an instrument of retaliation is a serious violation of the Code of Judicial Conduct.” Matter of Boles, 555 N.E.2d 1284, 1288 (Ind. 1990). A recent Missouri case describes the potential consequences when a judge engages in such behavior:
His pique at his colleagues and at the attorneys has unduly burdened the judicial system and jeopardized the ability of some attorneys to represent their clients to the fullest extent of their abilities. Far from inspiring litigants’ confidence in the integrity and impartiality of the judicial system, his actions have undoubtedly led them to doubt that the system adheres to those ideals.
The Code of Judicial Conduct exists to protect the public and maintain public confidence in the judicial system. When a judge undertakes a willful pattern of discourtesy, abuse and vendetta against both his colleagues on the bench and those who appear before him as officers of the court or persons whose legal needs require impartial resolution, he erodes the very foundation of the system.
In re Elliston, 789 S.W.2d 469, 484 (Mo. 1990).
The Iowa Supreme Court has considered a case similar to the case involving Judge Whitehead, concluding that the judge’s behavior constituted a violation of the Code of Judicial Conduct. When a lawyer from a leading law firm was at odds with an Iowa judge and began requesting recusals, that judge considered those requests an “affront to his integrity.” Matter of the Inquiry Concerning Eads, 362 N.W.2d 541, 548 (Iowa 1985). The Iowa Supreme Court found that for a period of approximately two years the judge carried out a campaign of intimidation against the *244lawyer. The campaign expanded to other members of the law firm when they supported their partner.
The Iowa Supreme Court concluded that this behavior violated Canons 1, 2, 2A, 2B and 3A(3) of the Code of Judicial Conduct. It quoted with approval the Commission’s findings that “the judge’s conduct toward [the lawyer] and members of his firm was reprehensible. . . . His course of conduct substantially caused injury to the firm and its clients and may have affected the outcome of litigation. It certainly adversely affected the client’s perceptions of the impartiality and fairness of the judiciary.” Id. at 550. In reviewing the Commission’s findings, the court held that “the fact cannot be denied under the present record that [the judge] improperly instituted and then carried on an inexcusable campaign against a lawyer. In doing so, he was guilty of serious and substantial breaches of fundamental canons of judicial conduct.” Id. at 551.
In Judicial Inquiry and Review Board of Supreme Court of Pennsylvania v. Fink, 532 A.2d 358 (Pa. 1987), a judge interjected himself into the attorney-client relationship as Judge Whitehead is alleged to have done. There, the judge “rather than acting as an impartial arbiter, . . . demanded] a private meeting with the plaintiff’s son and attempted to convince the son that his father’s lawyer was not to be trusted. Having undermined the attorney-client relationship, he then attempted to use the son to impose a solution to the case which the judge favored and which was contrary to the relief requested by the father and the disfavored attorney. Finally, to add injury to injury, when the attorney found out what the judge had told his client’s son, and when [the attorney] suggested that the judge was biased against him (which he obviously was) and requested recusal, the judge held the attorney in contempt. Not only is such judicial conduct unacceptable; it rises to the level of outrageousness.” Id. at 365.
ARJD 11(3) provides, “[w]hen applied for the purposes of determining whether misconduct has occurred, the provisions of the Nevada Code of Judicial Conduct must, considered as a penalty provision, be strictly construed in favor of the respondent Judge.” The majority suggests that this rule is “of importance” in this case. To the contrary, this rule has virtually no impact on this case because the alleged conduct so clearly violates the Code of Judicial Conduct. A reading of the Canons and the cases interpreting the Canons shows that if the alleged conduct is proven, serious violations have occurred.
In a recent Arizona Supreme Court case, Matter of Peck, 867 P.2d 853, 861 (Ariz. 1994), the court stated that “[respondent's failure to recuse himself and his initiation of ex parte contacts were not minor transgressions. . . . Under our system of govern*245ment, judges hold office subject to rules of conduct that are designed to ensure a basic concept of fairness — that judges will dispense justice, not favors or revenge. In the final analysis, Respondent’s actions violated not only the Code but this most basic concept of justice. Removal from office is therefore appropriate.” Many judges throughout the country have been disciplined for Code violations less serious than those alleged in the present complaint.
The majority states that it appears that Judge Whitehead acted in a “frank and open manner,” that he “freely discussed his peremptory challenge practices” and “there is no indication or charge that Judge Whitehead believed that there was anything irregular, much less ethically incorrect” in his behavior. The majority seems to suggest that these facts make Judge Whitehead less culpable. Ignorance of the law is no more an excuse for a judge than it is for a lay person; it could be persuasively argued that it is even less of an excuse for a judge!
The majority also suggests that because the practices were not uncommon (although the record does not support this assertion), the pervasiveness of these practices is “some indication that those who engaged in them may not be guilty of ‘willful misconduct.’” The majority misstates the legal standard for willful misconduct. Willful misconduct occurs when “a judge commits acts (1) which he knows, or should know, are beyond his authority (2) for reasons other than the faithful discharge of his duties.” McCullough v. Commission on Judicial Performance, 776 P.2d 259, 261 (Cal. 1989). Although a judge must act in “bad faith in order to commit wilful misconduct, he need not necessarily seek to harm a particular litigant or attorney; disregard for the legal system in general will suffice.” Id. at 262. See also Goldman v. Nevada Com’n on Judicial Discipline, 108 Nev. 251, 294, 830 P.2d 107, 135 (1992).
If the alleged conduct took place, Judge Whitehead knew or should have known that he was acting beyond his authority. He also knew or should have known that conduct violating multiple provisions of the Code of Judicial Conduct cannot be described as falling within the faithful discharge of a judge’s duties. Thus, it would constitute no defense to a charge of willful misconduct that Judge Whitehead engaged in the alleged conduct openly and publicly, or even that he took pride in his behavior.
There has been no hearing to determine if the charges against Judge Whitehead are true, and the trier of fact must presume that he is innocent of the charges unless and until evidence is presented to convince the trier of fact otherwise. However, to interpret the Code of Judicial Conduct in such a way as to condone the conduct-described in the complaint against Judge Whitehead does *246a grave disservice to the judges, attorneys, litigants, and citizens of this State. It is unconscionable to suggest that the conduct described is not serious enough to be within the jurisdiction of the Commission on Judicial Discipline.
INTERPRETATION OF THE ADMINISTRATIVE AND PROCEDURAL RULES FOR THE NEVADA COMMISSION ON JUDICIAL DISCIPLINE
The majority has accused the Commission of violating several provisions of the ARJD and the Nevada Constitution. The universal standard for interpreting rules is that they “must be applied according to the underlying policies and purposes and ‘may not be construed in a way that would attribute to the [drafters] an intent that would result in absurdities or would defeat the underlying purpose of the enactment.’ ” Matter of Almeida, 611 A.2d 1375, 1380 (R.I. 1992). For other cases noting this standard, see Oakley v. State, 105 Nev. 700, 702, 782 P.2d 1321, 1322 (1989) and cases cited therein. In interpreting the ARJD and the Nevada Constitution according to this standard, it cannot be said that the Commission has acted improperly in its handling of the complaints against Judge Whitehead.
There is nothing unusual or sinister about the fact that the ARJD do not specifically address every potential issue in a judicial disciplinary proceeding. See Matter of Almeida, 611 A.2d at 1382 (noting that “[statutes by and large do not encompass every potential factual situation that may arise”). While the rules cover the most basic and important issues that arise, in many respects they form only an outline, lacking the level of detail evident in the Nevada Rules of Civil, Criminal or Appellate Procedure. Even these more detailed rules are not perfectly complete. As Justice Jackson noted in his well-known concurrence in Hickman v. Taylor, 329 U.S. 495, 518 (1947), “all such procedural measures have a background of custom and practice which was assumed by those who wrote and should be by those who apply them.”
The majority adopts, on occasion, the illogical principle that what is not specifically authorized in the ARJD is expressly forbidden. This principle is nowhere to be found in the Rules, custom, or case law. When an issue of first impression is presented to the Commission, the Commission is free, at least in the first instance, to address that issue in any manner which is reasonable and consistent with the ARJD and the purpose and intent behind the formation of the Commission. Based on the record before this court, it appears that the Commission has acted in accordance with the applicable rules, and has interpreted them *247in a manner which is reasonable and consistent with the interpretation of similar rules by other courts.
When the Commission chooses a course of action which is not inconsistent with its rules, and which is consistent with actions of other Commissions across the United States, it is unreasonable for this court to assert that the only possible interpretation of the Commission’s rules is the interpretation which this court chooses. This court has afforded great deference to an administrative body’s interpretation when that interpretation is within the statutory language. Thus, this court should defer to the Commission’s interpretation of the rules. State ex rel. Nevada Tax Comm’n v. Safeway Super Service Stations, 99 Nev. 626, 630, 668 P.2d 291, 294 (1983). In addition, the Nevada rules were drafted based on rules that other jurisdictions already adopted for their judicial discipline bodies. Thus, other jurisdictions’ interpretations of comparable rules are instructive in the interpretation of our rules. Contrary to the majority’s assertion, the rules in other states are not that different from Nevada’s rules. Each state deals with the same types of concerns and attempts to do so in a fair and principled manner. Deferring to the Commission’s interpretation of the rules makes even more sense when that interpretation concurs with the interpretation of other jurisdictions.
Judicial disciplinary proceedings begin with the filing of a complaint. ARJD 2(3) defines a “complaint” as a “sworn written charge alleging judicial misconduct by or disability of a judge.” Under the definition, a complaint could be construed as either a simple letter written by a lay person in non-legal language and notarized by a notary public, or as a document drafted by a lawyer or judge with technical legal language pursuant to the Nevada Rules of Civil Procedure.
A lay person and an attorney have two different concepts of the word “complaint.” When a lay person is upset about a department store purchase, for example, he or she wonders where to go to lodge his or her “complaint.” In contrast, attorneys know that when they file a “complaint” in court, the complaint must comply with a myriad of technical requirements.
The ARJD refer to both of these types of “complaints.” ARJD 12 provides:
Rule 12. Initiation of procedure.
1. Except as provided in subsection 2, initial complaints of judicial misconduct must be made upon oath in writing and may be made by the person complaining. Such a complaint must contain facts which, if true, would establish grounds for discipline under these rules.
2. In exceptional circumstances, in which the commis*248sion has substantial reason to believe that a complainant may in likelihood suffer untoward risk of embarrassment, harassment, or other detrimental consequences, the commission may on request, authorize its executive officer to sign and swear to a complaint on information and belief, in the complainant’s stead.
(Emphasis added.)
If the word “complaint” in these rules unambiguously referred to the formal variety, i.e., a “complaint” filed in court, then the drafters of the rules would not likely have used the words “initial complaint” in Section 1 of ARJD 12. The most reasonable interpretation of the meaning of “complaint” as it is used in the rules is that the ARJD contemplate both an “initial complaint” and a later, more formal “complaint” prepared by an attorney for the Commission if necessary to clarify the issues.
This interpretation is consistent with procedures followed by jurisdictions across the United States. An initial complaint is nothing more than a notarized letter. In fact, some jurisdictions refer to it as the “letter complaint.” It is also proper for an attorney or judge to submit a more formalized document as the initial complaint. However, to hold that a lay person must submit a formal legal document precludes everyone but lawyers, judges, and a tiny minority of lay persons from initiating disciplinary proceedings against a judge. This is clearly not consistent with Article 6, Section 21(7) of the Nevada Constitution, which provides that “[a]ny person may bring to the attention of the commission any matter relating to the fitness of a justice or judge.” The ARJD were drafted after Article 6, Section 21(7) of the constitution, and it must be assumed that the drafters were aware of the provisions of the constitution.
There is no requirement under ARJD 12 that the notarized letter contain “evidence” — even a formal legal complaint does not qualify as “evidence.” All that the letter must contain is a description, in lay person’s language, of facts, which, if true, would establish grounds for discipline. An initial complaint “cannot be expected to be a lawyer’s model of clarity and detail.” Matter of Agerter, 353 N.W.2d 908, 916 (Minn. 1984). It is not even necessary that the individual wishing to initiate proceedings submit the notarized letter himself or herself. The words “may be made by the person complaining” clearly contemplate that an individual may ask an attorney or other agent to submit the notarized letter on his or her behalf. ARJD 12(1) (emphasis added).
The purpose of the requirement in ARJD 12(2) that the initial complaint be made upon oath is also clear. The oath discourages the filing of frivolous complaints by forcing would-be complain*249ants to swear that they are not making false statements. Nonetheless, there is nothing wrong with an individual sending an unsworn letter to the Commission (in fact, such action is protected by the First Amendment), but the effect of the rule requiring the oath is that an unsworn letter cannot form the basis for the commencement of disciplinary proceedings. If an unsworn letter were submitted to the Commission, the Commission could quite properly advise the would-be complainant to notarize the same letter and resubmit it.
The second type of complaint, which various jurisdictions label differently, but which I refer to here as the “formal complaint,” is typically drafted by an attorney for submission to the Commission to clarify the legal and factual issues. I use the term “formal complaint” because the Nevada rules use the term “formal statement of charges” to describe a similar, but separate document which is prepared after a probable cause hearing and before a formal hearing. An attorney typically drafts the pre-probable cause “formal complaint” after the allegations of the initial complaint have been adequately investigated and the attorney is ready to present the case to the Commission. The Commission then determines whether or not a probable cause hearing is warranted.
The formal complaint is a legal document generally drafted in the same format as required by the rules of civil and/or criminal procedure. The purpose of the formal complaint is to clarify the legal and factual issues for the Commission to consider. Despite the protestations of the majority that a “formal complaint” is not contemplated under the Nevada rules, other jurisdictions have seen no reason to force each Commission member to rely solely upon his or her individual efforts at sorting through a lay person’s complaints in order to eliminate redundant material and clarify the legal and factual issues for consideration. Everyone, not only the Commissioners, but also the accused judge and counsel for both sides, benefits from addressing the relevant issues by presentation in a legal format.
Like formal complaints in civil or criminal proceedings, the formal complaint in a judicial disciplinary proceeding is typically a sworn document. The fact that the formal complaint in this case was filed in the name of the Commission administrator, Eve King, is typical of how formal complaints are filed in other jurisdictions. In fact, many jurisdictions refer to this formal complaint as the “administrator’s complaint.” There is nothing in the Nevada rules indicating that the administrator or the attorney preparing a formal complaint must swear to it. Moreover, it cannot be reasonably suggested that the issue is of any consequence. The initial sworn complaint is necessary to commence *250the proceedings, and additional documents which clarify the issues after the investigation help everyone and are not inconsistent with the rules.
There was nothing improper about the formal complaint prepared by special Commission counsel Donald Campbell. Based on the sworn initial complaints and the subsequent investigation of the charges in those complaints, counsel clarified the factual and legal issues, benefitting both the Commission and Judge Whitehead. To suggest that the method of signing this document is jurisdictional is, at the very least, elevating form over substance.
The majority correctly notes that Article 6, Section 21(7) of the Nevada Constitution states that after the Commission receives a complaint, a “preliminary investigation” must take place after which the Commission shall “dismiss the matter or order a hearing to be held before it.” While the ARJD do not use the words “preliminary investigation,” the Rules clearly contemplate that such an investigation should take place. The proper scope of this preliminary investigation is undefined.
The majority employs the phrase “confined to the narrowest possible activity” to describe the scope of the preliminary investigation. In its analysis of what such an investigation encompasses, the majority refers to the Random House Dictionary as its single source of authority. Random House defines “preliminary” as: “1. preceding and leading up to the main part, matter, or business; introductory; preparatory; preliminary examinations. 2. something preliminary, as an introductory or preparatory step, measure, contest, etc.” I see nothing in this definition which suggests that “preliminary” means “narrow,” “non-thorough,” “incomplete,” or “non-exhaustive.” The majority apparently does, however, because it concludes that a preliminary investigation is “substantially different from an exhaustive survey and interrogation of persons who may know a respondent judge and have some basis for cooperating in the furtherance of complaints against the judge.” The majority suggests that the Commission may conduct a more thorough investigation only after the probable cause determination, and that the preliminary investigation is “primarily a screening device to prevent unfounded or capricious prosecutions from going forward.” The majority thus seems to suggest that the preliminary or “non-thorough” investigation will prevent an unfounded prosecution from going forward. I fail to see how a non-thorough investigation will prevent unfounded and capricious prosecutions, especially if the initial complaint is based on hearsay.
The majority opinion does not make clear how much of the Campbell investigation information the Commission may use if it *251decides to proceed against Judge Whitehead. The majority characterizes the Campbell investigation as overly broad and implies that the Commission must start the investigation anew based upon the sworn initial complaints. However, the majority has also ordered that all of the notes from the Campbell investigation be turned over to Judge Whitehead. This suggests that the Commission is free to use the results of the Campbell investigation since Judge Whitehead would not be entitled to discovery of those results if they were irrelevant.
ARJD 15 suggests the proper scope of a preliminary investigation. It states in part that “[a] finding of probable cause is a determination that, in reasonable probability, the evidence available for introduction at a later formal hearing could clearly and convincingly establish grounds for disciplinary action within the commission’s jurisdiction.”
It would make a mockery of this rule to hold that a preliminary investigation must be halted before enough information has been gathered to determine whether or not clear and convincing evidence of judicial misconduct within the Commission’s jurisdiction exists. The scope of investigation required to reach this point necessarily varies with the facts and circumstances of each case. For example, while in Ryan v. Commission on Judicial Performance, 754 P.2d 724, 727 (Cal. 1988), the preliminary investigation consisted of sworn interviews with over one hundred people, other preliminary investigations can be resolved with only one telephone call.
ARJD 15 also implies that the investigation must explore all avenues which might reasonably lead to information relevant to the determination of probable cause. If, for example, only two of five reasonable avenues are explored, it might appear that there was enough evidence to eventually meet the “clear and convincing” standard. A determination at that point could not meet the “reasonable probability” standard, however, since the three unexplored avenues of investigation might have yielded exculpatory evidence. Thus, the preliminary investigation is not complete until all reasonable avenues of investigation have been pursued. To hold otherwise would render the Commission powerless in its mission to ensure the integrity of the judiciary while simultaneously protecting judges from specious charges.
It is probably unusual for an accused judge to volunteer relevant information concerning an investigation into his or her conduct to a Commission investigator. Given this reality, along with the fact that once the judge becomes aware of the investigation, he or she often attempts to contact potential witnesses ahead of the investigator, most investigators choose not to contact the accused judge during the course of the investigation. There is *252nothing objectionable in this. There is no requirement that a judge receive notice of a preliminary investigation prior to its completion. See Kloepfer v. Commission on Judicial Performance, 782 P.2d 239 (Cal. 1989); Ryan v. Commission on Judicial Performance, 754 P.2d 724 (Cal. 1988).
I am not suggesting that an investigation may properly reach into any and all aspects of a judge’s life based on the prospect that a violation unrelated to the initial complaint might be discovered. The investigator may only pursue reasonable leads. Reasonable in this context means “reasonably related to a proper subject of inquiry.” New York State Com’n on Judicial Conduct v. Doe, 459 N.E.2d 850, 852 (N.Y. 1984); Nicholson v. State Commission on Judicial Conduct, 409 N.E.2d 818, 825 (N.Y. 1980). A practical example demonstrates this point. An initial complaint from a citizen states that a judge requested a bribe in exchange for a favorable result. The preliminary investigation begins, and the investigator is led to evidence of other incidences where the judge has “traded justice” for money or other consideration. These other incidences are plainly “reasonably related to a proper subject of inquiry.” It would undermine the Commission’s mission if the Commission were not allowed to follow up on evidence of similar conduct in other cases assigned to that judge.
On the other hand, if, in the course of the bribery investigation, the investigator learns that the judge routinely had cases under submission for more than three years, the investigator may not expand the investigation into this area of inquiry. The latter revelation is not reasonably related to the original subject of inquiry, namely bribes. A new initial complaint would be necessary to trigger an investigation on the subject of delay.
I am concerned about the majority’s implication that only the exact facts alleged in the complaint may be investigated or charged. If, for example, one or more complaints were filed alleging that on a particular day or days a judge was drunk on the bench, the holding of the majority would suggest that the Commission may not investigate anything more than what happened on the particular days alleged in the complaints. I believe that this is an unduly narrow construction of the rules and that this construction frustrates the Commission’s mandate. I also believe that, on the basis of a complaint, the Commission should be not only free, but obligated to investigate whether drunkenness on the bench is a pattern or an isolated incident with that particular judge. Determination of that fact is vital in order to determine whether that judge is fit to continue in the occupation.
Applying this interpretation of the ARJD to the facts and circumstances of this case is not difficult. The initial complaint suggested that Judge Whitehead engaged in a practice of ex parte *253communications, most of which were apparently for the purpose of intimidation and retaliation against litigants and counsel who exercised peremptory challenges against him. Any investigation of the initial complaints on which charges were eventually brought would have been properly confined to this pattern of alleged judicial misconduct. All twelve counts of the subsequent formal complaint address alleged incidents that relate to this practice. It therefore appears that the investigation was thorough and at all times within its proper scope.
It must be noted that there were additional initial complaints of alleged misconduct against Judge Whitehead that were not related to ex parte conversations after a peremptory challenge. The Commission chose not to file a formal complaint on those charges. Had the Commission determined that those allegations had merit, however, it could have charged these unrelated charges in a single formal complaint. In any event, there is nothing improper about the fact that those other charges were investigated.
The majority vehemently objects to allowing judges, when faced with an allegation of judicial misconduct, to negotiate a consent order, a settlement, or a “plea bargain” with the Commission rather than contest the charges. In fact, it appears that such a resolution is the rule, rather than the exception, in judicial disciplinary proceedings in Nevada and throughout the nation. See, e.g., Matter of Drury, 602 N.E.2d 1000, 1010 (Ind. 1992) (stating that “[tjypically, the respondent judge and the Commission agree to an appropriate sanction, negating the necessity for a formal hearing”); Geiler v. Commission on Judicial Qualifications, 515 P.2d 1, 8 (Cal. 1973) (noting that “[ajlthough formal proceedings of the Commission have been few, the potentiality of such proceedings has proven to be the vital element of the Commission’s efficacy”). The United States Supreme Court has specifically endorsed the practice of resolving judicial disciplinary matters through the processes named above as one of the theoretical benefits of confidential judicial disciplinary proceedings. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 835-36 (1978) (noting that “[wjhen removal or retirement is justified by the charges, judges are more likely to resign voluntarily or retire without the necessity of a formal proceeding if the publicity that would accompany such a proceeding can thereby be avoided”).
It is clear that the drafters of the ARJD were neither unaware of “plea bargaining” nor found it objectionable, since they explicitly provided for it in ARJD 31:
Rule 31. Consent orders. Upon written consent of the respondent, the commission may order the respondent’s *254censure, removal or retirement at any stage of the proceedings and this order takes effect immediately. A certified copy of the order must be filed with the clerk of the supreme court and a copy of the order must be served on the respondent.
(Emphasis added.) The majority is aware of this provision, but nonetheless spends many pages criticizing the Commission’s resolution of the Stringfield and “Judge D” cases. To circumvent the clear language and obvious meaning of ARJD 31, the majority claims that the words “any stage of the proceedings” really mean “any stage of the proceedings after a probable cause hearing and the filing of formal charges.”
The majority’s support for this proposition is the fact that ARJD 31 is the last of sixteen rules located under the heading “V. Procedure After Finding Probable Cause.” It is unreasonable to assume that the drafters of the ARJD intended anything different than what is clearly stated in the rule, or that they attached greater significance to the order and placement of the rules than to their contents. There is nothing improper where the Commission resolves cases through an ARJD 31 consent order.
The majority appears convinced that the Judicial Discipline Commission follows different rules for different judges. There is nothing in the record that substantiates this conclusion. It is true that Justice Steffen entered a letter into the record from a judge who complained that after a probable cause hearing had been scheduled, witnesses subpoenaed, and after receiving copies of the complaints against him, “Judge D” negotiated a plea bargain with the Commission. The judge was unhappy that the Commission had not held a probable cause hearing. He recognized that it was proper for the Commission to provide “Judge D” with a copy of the complaints in order for the judge to prepare a proper defense, but he felt that the complainant should have had an opportunity to testify before the Commission. He objected to plea bargaining by judges, as did Justice Steffen in his memorandum to the other justices.
On the basis of the information in the complaining judge’s letter in the “Judge D” case, the majority now accuses the Commission of providing “Judge D” with discovery which the Commission unfairly refused to give Judge Whitehead. There is nothing in the record which supports the view that the Commission treated the two judges differently and the complaining judge’s letter belies any difference in treatment. The judge’s letter states that his complaint “consisted of seven pages . . . together with a list of approximately 20 individuals” who had complained of “Judge D’s” conduct. According to the complaining judge, “Judge D” “properly” received a copy of his complaint, as well *255as other written complaints against him. The record reflects that Judge Whitehead also received a copy of the complaints against him. It is difficult to see how, on the basis of this, that the Commission discriminated against Judge Whitehead.
Although the record is far from complete in Judge Stringfield’s case (because we only have Judge Stringfield’s statement of events), it appears that the Commission took a practical approach to resolving what was essentially a disagreement between the County Clerk and Judge Stringfield, not a disciplinary matter. Instead of coldly declining to act, it suggested that the parties mediate with Judge Beko to resolve the problem. This conduct is far from “sinister,” as the majority suggests. The Commission wisely attempted to aid the judiciary by encouraging the parties to resolve their conflicts with the assistance of a third party, rather than by allowing a public slugging match to develop between two officials, one of whom was a judge. There is nothing in this scenario which suggests that the Commission treats judges inequitably. Each case must be evaluated on its own merits.
The majority objects not only to the fact that consent orders were entered in other cases, but also to the terms of those orders. Specifically, the majority objects to orders that disciplinary measures such as mediation, arbitration, probation, public apologies, etc., be taken. The majority supports its argument by pointing to Article 6, Section 21(1) of the Nevada Constitution, which provides that a judge may only be “censured, retired or removed by the commission on judicial discipline.” The Constitution was subsequently amended in 1994 to explicitly provide for lesser forms of discipline. The former language, however, does not prohibit the Commission from imposing a lesser form of discipline, such as a consent order, at any stage of the proceedings. Even if the former language did prohibit the Commission from imposing a lesser form of discipline, where a judge has consented to a lesser form of discipline, the prior proceedings are not invalidated.
Language similar to Section 21(1) in Article 6 of the Nevada Constitution is found in most state constitutions or in statutory provisions creating judicial discipline commissions. Several state supreme courts throughout the country have agreed that lesser forms of discipline not specifically set out in the provisions may be imposed. The approach of the Rhode Island Supreme Court in Matter of Almeida, 611 A.2d 1375, 1380 (R.I. 1992), is typical:
In order to ensure the integrity of the Judiciary, we find that there are sanctions and remedial actions available that may not be expressly stated as one of the enumerated categories of § 8-16-4. Mere exclusion of every possible potential *256sanction does not mean that the Legislature specifically intended to limit possible courses of action. Rather, certain remedies may be implicit within the general categories of § 8-16-4 and necessary for the orderly interpretation and implementation of the statute. The enumerated categories of possible recommendations are guideposts rather than strict limitations on the extent of sanctions the commission may recommend.
See also Matter of Buckson, 610 A.2d 203, 217 (Del Jud. 1992) (recognizing that “the power to remove implicitly carries with it the power to impose less severe sanctions short of removal”).
In addition, the types of lesser disciplinary measures employed by the Commission, such as consent orders, are typical of those employed by other judicial disciplinary bodies throughout the country. The Vermont Supreme Court in In re O’Dea, 622 A.2d 507, 517 (Vt. 1993), noted “the trial court administrative judge shall develop a program of training and counseling for respondent so that his inappropriate conduct . . . will not recur. . . . Our consent to such an assignment will depend upon the effectiveness of these measures as conveyed to us by the trial court administrative judge.” Similarly, in In re Turner, 421 So.2d 1077, 1080 (Fla. 1982), the court stated, “[t]he conduct of Judge Turner as described herein brings the Judiciary into disrepute and this file will remain open and the future conduct of this Judge will be monitored by the Commission.”
These measures are not only typical of measures taken by judicial disciplinary bodies in other states, they are consistent with the purpose behind imposing sanctions in cases of judicial discipline. Sanctions are not imposed because the Commission seeks vengeance or retribution. “Those concepts have no place in a disciplinary system designed to assure the orderly administration of justice in the public interest. Any sanction must be designed to preserve the integrity and independence of the judiciary and to restore and reaffirm the public confidence in the administration of justice.” Matter of Ross, 428 A.2d 858, 868 (Me. 1981). Moreover, sanctions should be selected with an aim to “correct[] any deficiencies found by taking the least severe action necessary to remedy the situation.” Cornett v. Judicial Retirement and Removal Commission, 625 S.W.2d 564, 568 (Ky. 1981) (citation omitted).
Justice Springer, in his separate concurrence, implies that the Commission has been dilatory in acting on the complaints against Judge Whitehead. Justice Springer states,
Now, some two and one-half years after the sworn complaints were filed, the Commission still has not acted on *257these complaints in the manner specified and required by the ARJD.
Apparently he has forgotten that the Commission was expressly forbidden to take any action whatsoever by an order of this court entered on July 22, 1993. That order provided as follows:
IT IS HEREBY ORDERED that pending the determination of this petition on its merits, all proceedings before and actions of the Nevada Commission on Judicial Discipline and the actions of those acting on behalf of the Commission relating to this matter, including the filing of an answer to a purported “complaint,” the holding of a hearing to determine probable cause, and the conducting of any further investigative activities, are stayed.
Had the Commission taken any action with respect to Judge Whitehead after this order was filed, it would have likely been subject to a contempt citation.
On the basis of the information before this court, it appears that the Nevada Commission on Judicial Discipline has conformed to the word, spirit and purpose of the ARJD and the provisions of the Nevada Constitution to improve the quality of the judiciary.
DUE PROCESS CONSIDERATIONS
Judicial disciplinary proceedings are neither civil nor criminal in nature, but sui generis, designed to protect the citizenry by insuring the integrity of the judicial system. In re Gillard, 271 N.W.2d 785, 812 (Minn. 1978). Of course, due process requirements apply to judicial disciplinary proceedings. In fact, the full panoply of procedural guarantees provided by the ARJD exceeds the minimum requirements of constitutional due process for judicial disciplinary proceedings. “‘[D]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances” but is “flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (citations omitted).
Even if actual violations of the ARJD have occurred in this case, those violations would neither invalidate the entire proceeding nor cause the Commission to somehow lose jurisdiction of the matter. In no case would the judge be exonerated. See In re O’Dea, 622 A.2d 507, 512 (Vt. 1993).
A party must suffer actual and substantial prejudice before a lack of proper procedure implicates due process. This concept is as important a concept in judicial disciplinary proceedings as it is in civil, criminal and other administrative contexts. “Procedural *258rules designed to foster the orderly transaction of business before the Court do not confer substantive rights on a litigant.” Matter of Buckson, 610 A.2d 203, 218 (Del. Jud. 1992). A procedural due process claim does not even approach becoming colorable until a showing of prejudice has been made. As the United States Supreme Court in American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538-39 (1970), stated:
The Commission is entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary. . . . [TJhere is no reason to exempt this case from the general principle that “[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.”
(Citations omitted) (emphasis added). Even if any of the alleged violations of the ARJD had actually taken place, the majority has failed to show how, if at all, the Judge was thereby actually and substantially prejudiced.
If this were a criminal case, then the petitioner could not, pursuant to the Nevada or the United States Constitutions, be punished unless he were convicted by an unanimous jury. This is not a criminal case. I note this because the majority has cited the criminal case of Sheppard v. Maxwell, 384 U.S. 333 (1966), apparently for the proposition that the extensive publicity surrounding this case means that it may not be possible to seat a jury not influenced by media reports. The majority fails to take into account the fact that there is no jury in this case. Not only is there no jury, but the trier of fact, the Judicial Discipline Commission, already had access to all the information. It makes no sense to say that the media reports of information which the trier of fact already possessed have biased that trier of fact.
Even if this were a criminal case, pre-trial publicity would not prevent a criminal defendant from having to stand trial. At most, a criminal defendant might have his conviction reversed on the ground that the trial itself was conducted in such an unfair manner that it amounted to a denial of due process. However, these circumstances are extremely rare. See Murphy v. Florida, 421 U.S. 794, 799 (1975) (finding that the cases “cannot be made to stand for the proposition that juror exposure to . . . news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process”), and Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976) (asserting that *259“pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial”). Even the few criminal defendants who have obtained reversals on this basis have been subject to retrial on the same charges.
Thus, pre-trial publicity is clearly relevant in the context of a criminal jury trial, since the notion that jurors approach a trial with an open mind is fundamental to the concept of a jury trial. However, pre-trial publicity in the context of a judicial disciplinary proceeding is irrelevant. The Commission members already have substantial knowledge of the case and accurate information available to them. They are, therefore, the group least likely to be prejudiced by inaccurate news accounts.
The Nevada Constitution clearly grants the Judicial Discipline Commission both investigatory and judicial functions. This contrasts with the functions of the courts of this state, which do not have the responsibility to perform investigations. Because of this difference in assigned functions, analogizing Commission functions to court functions can be misleading. By the time the Commission holds an evidentiary hearing, its members already have substantial knowledge of the case and have made some decisions based on that knowledge.1 Both this court and the United States Supreme Court have clearly held that no due process violation necessarily occurs where hearings are conducted by a group of individuals who approach the hearings with a substantial knowledge of the case. See Rudin v. Nevada Real Estate Advisory Commission, 86 Nev. 562, 565, 471 P.2d 658, 660 (1970) (holding that as a general proposition, the combination of investigating, prosecuting, and judging functions does not constitute a denial of due process); Whitehead v. Com’n on Judicial Discipline, 110 Nev. 874, 921, 878 P.2d 913, 942-43 (1994) (Shearing, J., dissenting, quoting Withrow v. Larkin, 421 U.S. 35, 47-53 (1975)). Plainly, Petitioner’s due process rights are not implicated by any pre-trial publicity.
I agree with the majority that Judge Whitehead would be free to challenge any Commission member for cause at the probable cause hearing. Although ARJD 3(6) and (7) explicitly apply to formal hearings only, I believe that by implication they should apply to probable cause hearings as well. ARJD 3(6) provides:
Any member of the commission or sitting alternate member may be disqualified upon challenge for cause by the *260respondent or by counsel prosecuting the formal statement of charges. A challenge must be heard by the commission, and the commission may disqualify any commissioner who by reason of actual or implied bias would, in the opinion of a majority of the members present, either be prevented from adjudicating the matter in a fair and impartial manner or, by reason of facts creating an appearance of impropriety, be prevented from adjudicating the matter in a manner consistent with maintenance of public confidence in the commission.
ARJD 3(7) allows challenges for implied bias on any of the grounds for which jurors may be challenged under NRS 16.050. NRS 16.050 sets forth eight grounds for a challenge, including “[t]he existence of a state of mind in the juror evincing enmity against or bias to either party.” While Petitioner is free to assert a challenge for cause, as in any hearing, the Commission may also properly overrule the challenge if it is not supported by substantial evidence.
The fact that Petitioner and his counsel have publicly attacked the Commission members numerous times is not a basis for an implied or actual bias challenge, since such challenges must be based on something other than what has taken place during the proceedings. See, e.g., U.S. v. Grinnell Corp., 384 U.S. 563, 583 (1966). Commissioners, like judges, are men and women presumed to be “of fortitude, able to thrive in a hardy climate.” Craig v. Harney, 331 U.S. 367, 376 (1947). If the rule of law were otherwise, an accused judge could simply hurl epithets at successive sets of commissioners, challenge them for cause, and then have each disqualified. This is not the rule of law in any jurisdiction.
I have no doubt that the members of the Commission and their counsel recognize that criticism from accused judges is to be expected. “It is the nature of the work. It has been said that the public should be concerned when Commission counsel is not criticized by individual judges under investigation and their counsel. Judges hold powerful positions. Lawyers everywhere are reluctant to cooperate. Attacks on Commission counsel are so common, they are taken in stride and given due weight.” Affidavit of Gerald Stern in support of Motion to File Amicus Curiae Brief of the Association of Judicial Disciplinary Counsel (filed May 19, 1994).
Allegations of judicial misconduct are frequently the subject of extensive publicity before the judicial disciplinary proceedings are completed, indeed, often before those proceedings have begun. Nevertheless, an excess of publicity has never formed the basis for a dismissal of the proceedings. Time and again, without *261exception, disciplinary proceedings have moved forward to the extent warranted by the evidence of misconduct itself. See, e.g., In re Zoarski, 632 A.2d 1114, 1120 (Conn. 1993); In re Hill, 568 A.2d 361, 368 (Vt. 1989); Council on Probate Judicial Conduct re Kinsella, 476 A.2d 1041, 1054 (Conn. 1984); Roberts v. Commission on Judicial Performance, 661 P.2d 1064, 1071 (Cal. 1983). Publicity, no matter what its source, certainly does not present any obstacle to providing Judge Whitehead with a fair hearing, fully consistent with the requirements of due process.
The majority has also alleged that members of the Commission, especially Chairman Guy Shipler, may have exhibited actual bias towards Judge Whitehead. With regard to Judge Whitehead’s challenge of members of the Commission based upon actual bias, the majority states:
Despite our concerns regarding the due process implications involved in having any members of the Commission who have heretofore participated in the Whitehead proceedings continue to sit in any further proceedings against Petitioner, we trust that the challenging procedures available to Petitioner will effectively resolve these concerns.
This suggestion that members of the Commission who have been involved in these proceedings thus far are somehow disqualified from continuing to act because they have formed an opinion regarding the matter is contrary to the law regarding disqualification in Nevada and elsewhere. Concerning disqualification of judges, this court has stated that “[ejven where the court’s prior judicial and administrative actions may support an inference that the justices in question possess legal opinions at odds with appellant’s views of the court’s constitutional authority, that fact does not constitute a legally cognizable ground for disqualification.” Goldman v. Bryan, 104 Nev. 644, 654, 764 P.2d 1296, 1302 (1988).
Like judges, Commission members form opinions and make decisions; that is their job. Although a judge may have a strong opinion on the merits of a cause or a strong feeling about the type of litigation involved, the expression of such views does not establish disqualifying bias or prejudice. Ainsworth v. Combined Ins. Co. of America, 105 Nev. 237, 257, 774 P.2d 1003, 1018 (1989) (citing In re Guardianship of Styer, 536 P.2d 717 (Ariz. App. 1975)). In Goldman and Ainsworth, this court made it clear that a judge may not be disqualified as biased where that judge acquired information about the case in his or her official capacity. Only information gained from extrajudicial sources may form a basis for disqualification.
In Ainsworth, this court stated regarding allegations of bias that “although former Chief Justice Gunderson’s response does *262indicate that ... [he had] adverse judicial impressions of the respondent insurance company ... his response recites no facts supporting a reasonable inference of preconceived bias against the insurance company stemming from an extrajudicial source at or prior to the date this case was decided.” Id. at 258, 11A P.2d at 1018. In Goldman, this court quoted with approval from Tynan v. U.S., 376 F.2d 761 (D.C.Cir. 1967), cert. denied, 389 U.S. 845 (1967):
[A] federal statute respecting disqualification, “never contemplated crippling our courts by disqualifying a judge,” solely on the basis of a state of mind “acquired from evidence presented in the course of judicial proceedings before him. Any other construction would make the statute an intolerable obstruction to the efficient conduct of judicial proceedings, now none too speedy or effective.” Id. at 765 (iciting Craven v. U.S., 22 F.2d 605, 608 (1st Cir. 1927).
Goldman, 104 Nev. at 655 n.8, 764 P.2d at 1303 n.8. Goldman and Ainsworth as well as numerous other cases2 make it clear that to disqualify a judge on the basis of bias, that bias must have been present before any complaints were filed with the Commission, or must have emanated from an extrajudicial source during the proceedings.
Judge Whitehead has accused the Commission and/or its counsel of violating a duty to maintain confidentiality. He argues that since it did not maintain confidentiality, the Commission is thereby disqualified to act. The majority has implied that the Commission might be disqualified because Commission counsel argued against conducting an investigation. Presumably, the majority infers that if the Commission counsel believed that an investigation should not be conducted, then something is rotten in *263Denmark. I see no basis for disqualifying a Commission member unless actual bias is shown. Judge Whitehead alleges that the Commission members are actually biased because they leaked unfavorable reports about this case to the media. There is not one iota of evidence that the Commission or its counsel were responsible for any disclosures to news media. On the contrary, there is evidence that some of the disclosures may have come from complainants and some from the court itself.3
Justice Springer suggests the unique concept that a Commission member may be disqualified for speaking with the Commission’s own attorney. This is an example of the type of confusion which occurs when the functions of the Commission and the courts are' confused. As mentioned earlier, the Commission, unlike the courts, has an investigatory and an adjudicatory function. If a judge were to have an ex parte contact with a district attorney prosecuting a case, that contact would be improper because the judge’s only role is adjudication. The Commission, however, is charged with investigation as well as adjudication. The fact that the Commission hired an attorney to conduct the investigation instead of conducting an investigation itself does not transform that attorney’s status from investigator to independent prosecutor. In fact, Commission members have every reason to expect free and open communication with the Commission investigator.
PRODUCTION OF DOCUMENTS
Rule 14(5) of the Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline provides:
*264In preparing to oppose a determination of probable cause, the respondent has the right to inspect all records of the Commission relating to the disciplinary action against the respondent and to be fully advised as to the contents of the administrative record considered by the commission determining that there was sufficient reason for a probable cause hearing.
(Emphasis added.)
The language of this rule is certainly not an example of excellent legislative draftsmanship. The word “and” in the middle suggests that it provides the judge with two separate and independent rights: (1) “to inspect all records of the commission” and (2) “to be fully advised as to the contents of the administrative record.” The problem with this language is that the second right appears to add nothing to the first. After inspecting all records of the Commission, the “inspector” is, by definition, fully advised as to the contents of the administrative record.
Since the second right is redundant, I focus my attention on the first. The majority assumes that “records of the commission” include notes that special counsel Donald Campbell took while interviewing potential witnesses. This interpretation is inconsistent both with the Rule’s plain language and with similar language in contexts other than judicial disciplinary proceedings.
According to case law, when an attorney creates documents or other sources of information for a commission, those documents become “records of the commission” only if they become part of the basis for the commission’s decision on the merits. See, e.g., Matter of Krynicki, 983 F.2d 74, 75 (7th Cir. 1992); Matter of Special March 1981 Grand Jury, 753 F.2d 575, 577-78 (7th Cir. 1985).
Thus, if the special counsel had submitted or read his notes to the Commission so that they could be considered on the issue of whether to hold a probable cause hearing, the notes would become “records of the commission” and would be discoverable by the Judge. Because the Commission’s attorney took neither of the above actions, his notes maintain their original character as his own private notes and, therefore, do not come within the scope of ARJD 14(5). Thus, under the present rules, there is no basis for the assertion that these notes are discoverable by the Judge.
The majority seems to indicate that the Commission’s investigator was obligated to take a written statement from potential witnesses. There simply is no such requirement in the rules. Nor do the rules contain any requirement that an investigatory interview be partially or fully transcribed. Nor must the investigator ask each informant if he or she is willing to become a witness. *265Conversely, neither is there anything in the rules which would prohibit an investigator from taking these actions. The manner in which an investigator conducts the investigation is traditionally a matter of the investigator’s discretion. Contrary to the repeated insinuations of the majority, there is nothing “unusual,” “improper,” or “sinister” about the fact that an investigator in one Commission case asked interviewees for written statements, whereas another investigator in a different investigation did not. There is no rule specifying how investigations take place.
Special counsel Campbell’s notes contain two different categories of information which do not fall within the scope of ARJD 14(5) and so may not be obtained by Judge Whitehead, at least before the probable cause hearing. First, the notes contain the names of interviewees who wish to keep their identities confidential to the extent permitted by the rules. Second, the notes contain opinions and impressions, i.e., the attorney work product, of the special counsel. The majority now acknowledges that the attorney work product should be excluded from discovery. However, the majority still maintains that the rest of the material collected in the investigation, including the material falling into the first category, should be turned over to Judge Whitehead. Of course, if the Commission may not use the results of the Campbell investigation and must conduct a new investigation, as the majority suggests, there is no justification whatsoever for turning over the notes of the Campbell investigation to Judge Whitehead. However, even if the Commission is not required to conduct a new investigation, I do not agree that the ARJD authorize discovery of all material except for the attorney work product at this time.
Courts around the country have discussed the reasons behind permitting the use of confidential informants in investigations, including investigations involving judicial disciplinary matters. The reasons include (1) protecting the source of information from recrimination by the accused judge, and (2) increasing the flow of relevant information. See Irons v. F.B.I., 880 F.2d 1446, 1449 (1st Cir. 1989); In re Elliston, 789 S.W.2d 469, 473 (Mo. 1990); People ex rel. Illinois Judicial Inquiry Bd. v. Hartel, 380 N.E.2d 801, 805 (Ill. 1978).
Both of these concerns are valid, and in cases that are resolved before a formal hearing takes place, ARJD 14(5) serves both purposes effectively with few, if any, untoward consequences. However, in those cases which progress to the formal hearing stage, the drafters of the rules apparently believed that the countervailing considerations of allowing the judge to know the identity of his accusers and their allegations are of greater importance than permitting interviewees to remain confidential or “unrevealed.” This is apparent in ARJD 21(2), which provides:
*266Rule 21. Discovery
2. The commission’s obligation under this rule extends to material and information in the possession or control of any persons who, on behalf of the commission, have participated in any investigation of the charges.
The contrast between ARJD 14(5) and ARJD 21, which apply at two different stages of the proceedings, clarifies that the accused judge is not entitled to all of the investigator’s records until after the probable cause hearing. To hold otherwise is to render the difference in language between the rules meaningless.
ORDER OF CONFIDENTIALITY
On July 22, 1993, at the inception of this case, this court ordered that “all proceedings before this court shall remain strictly confidential, and the petition and all other documents, exhibits and pleadings related thereto, as well as any further documents submitted for filing in this matter, shall be filed under seal. . . .” On November 3, 1993, at Judge Whitehead’s request, this court ordered that the previous order requiring confidentiality be lifted. Ordinarily where there is no order of confidentiality, the issue of confidentiality of the proceedings before this court would be a moot issue. However, the majority of this court has issued the following order: “We expressly retain jurisdiction to carry forward and implement all determinations and rulings that we have made in the course of these proceedings or will make in the future.”
Once this court issued the order granting Judge Whitehead’s request, there was no basis for it to retain jurisdiction. If new proceedings are instituted against Judge Whitehead before the Commission, and Judge Whitehead challenges those proceedings, a new petition would be required. This court would then have jurisdiction over the case. The only possible justification for retaining jurisdiction now is the order issued in Whitehead v. Commission on Jud. Discipline, 110 Nev. 874, 890, 878 P.2d 913, 923 (1994), that a special master be appointed “to conduct such investigations as shall be necessary to determine the sources of the unlawful breaches of confidentiality that have occurred in these proceedings and the extent to which they may have impacted Petitioner’s due process rights.”
I disagree that the retention of jurisdiction is required or authorized. This proceeding is over. Judge Whitehead has succeeded in requiring the Commission to begin anew if it chooses to pursue disciplinary proceedings against him. Thus, this court has no basis for consideration of alleged violations of the Judge’s due *267process rights. If the Commission opts to proceed anew on charges against Judge Whitehead, he would be entitled to due process in that new proceeding, including a fair and impartial tribunal. If he were deprived of due process in that new proceeding, any deprivation would be resolved either in that proceeding or in subsequent appellate review. Thus, the majority’s decision to retain jurisdiction as it relates to Judge Whitehead’s due process rights is unjustified.
Apparently, the majority decided to retain jurisdiction in order to conduct an investigation into violations of the order of confidentiality. I suggest that this court reconsider conducting any such investigation, since it had no basis for attempting to keep the records of this proceeding confidential in the first place. There is no authority to issue such an order either in the Nevada Constitution, our statutes, the common law, or in the United States Constitution.
The majority insists that the Nevada Constitution mandates that all the proceedings in this court relating to Judge Whitehead’s petition for a writ be kept confidential. The plain language of the Nevada Constitution contains no such mandate.
The majority finds this “mandate” in Article 6, Section 21(5)(a) of the Nevada Constitution. It provides:
5. The supreme court shall make appropriate rules for:
(a) The confidentiality of all proceedings before the commission, except a decision to censure, retire or remove a justice or judge.
(Emphasis added.)
The majority recasts this simple grant of rule-making authority as a “strong public policy” of this state to maintain confidentiality. This interpretation finds no support in the language of the constitutional provision. In fact, there is a countervailing public policy of open government, particularly concerning proceedings in open court.
Proceedings before the Nevada Supreme Court are not “proceedings before the commission,” any more than a petition to quash a grand jury subpoena is a “matter[] occurring before the grand jury.” Special March 1981 Grand Jury, 753 F.2d 575, 578 (7th Cir. 1985). The proceedings before this court concern the proceedings before the Commission, but the proceedings are not themselves included in the constitutional provision providing for confidentiality before the Commission itself. Similarly, ARJD 5(1), which provides, “[a]ll proceedings must be confidential until there has been a determination of probable cause and a filing of formal statement of charges,” applies only to proceedings before the Commission, not to those before this court. A rule that *268this court adopted specifically to govern Commission proceedings certainly may not be considered as legal authority under which Nevada Supreme Court records or proceedings may be sealed and kept secret contrary to law.
Furthermore, this court has already interpreted Article 6, Section 21(5) of the Nevada Constitution in a manner inconsistent with the majority’s view that this constitutional provision grants the judge complete confidentiality until the decision to censure, retire or remove a justice or judge. This court adopted ARJD 5(1), which makes judicial discipline proceedings public after probable cause is found. At the time ARJD 5(1) was adopted, this court did not interpret Article 6, Section 21(5)(a) to require confidentiality until the final decision “to censure, retire or remove. ...” Rather, the reasonable interpretation which this court made in adopting ARJD 5(1) was that this court may make rules regarding confidentiality, not that confidentiality is mandated. Now the majority has altered that interpretation of our constitution. This alteration is not in accordance with our prior interpretation and is unwarranted.
I do not question the authority of this court to review certain matters “in camera” when necessary in order to protect the rights of parties or witnesses. However, I strongly question the authority of this court to conduct secret proceedings in which the legal issues in the action and the very existence of the action are hidden from the public. Even if Judge Whitehead, or any judge accused of misconduct, had an absolute right to confidentiality (which I dispute), that confidentiality could be preserved by a less drastic measure than that chosen by the majority. The name of the judge and any facts identifying the judge could be deleted from the case entirely. Instead, the majority selected the remedy of surrounding the court proceedings in total secrecy. Holding secret proceedings to decide vital issues of law and public policy is contrary to law and tradition in this state and country.
Nevada statutes provide that both court records and proceedings in open court be made public. NRS 1.090; NRS 239.010.4 *269The majority suggests that NRS 239.010, requiring public access to public records, does not apply to the judicial branch of government. Indeed, the majority states that applying the statute to the judicial branch is a “dubious proposition” and contradicts the clear language of the statute. NRS 1.020 specifies that this court, as well as the district and justice courts, are courts of record. Given the language of the statutes, I have difficulty seeing how the records in any of these courts are not considered “public records.”
The majority goes on to state that NRS 239.010 “simply has no application to records which have been lawfully declared not to be public by this court.” There seems to be some implication that this court has an unfettered right to seal any records it pleases. The law does not provide this court with that power. This court must conform to certain standards before it is free to close any proceedings. See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984).
The mandate of the common law, in addition to the legislative mandate, keeps court proceedings open to the public. The Seventh Circuit noted this in Matter of Krynicki, 983 F.2d 74, 75 (7th Cir. 1992):
[Wjhen proceeding in common law fashion courts must reckon with the corpus of the common law. Judicial proceedings in the United States are open to the public — in criminal cases by constitutional command, and in civil cases by force of tradition. . . . What happens in the halls of government is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification.
(Citations omitted.)
That proceedings are open to the public is true no matter how *270strong the apparent justification for holding secret proceedings. The Krynicki court continued as follows:
Public argument is the norm even, perhaps especially, when the case is about the right to suppress publication of information. Briefs in the Pentagon Papers case . . . and the hydrogen bomb plans case . . . were available to the press, although sealed appendices discussed in detail the documents for which protection was sought. The Court denied a motion to close part of the oral argument in the Pentagon Papers case (citations omitted).
The occasional withholding of the name of a litigant also does not shield the facts and arguments of the case. The parties present public arguments leading to a public decision (citations omitted).
Have the litigants in today’s two cases done more to justify the sealing of the briefs than the litigants in cases such as Pentagon Papers, where disclosure was said to threaten the national security, and The Progressive, where disclosure was said to threaten the survival of mankind? Not exactly.
Id. at 76.
The litigant in this case, like the litigants in Krynicki, has “not exactly” justified sealing the records of these proceedings. Everyone can appreciate that the petitioner would prefer that the records not be made available to the public. After all, those records contain allegations of serious judicial misconduct likely to be of interest to the news media. However, the fact “[t]hat journalists are interested in the events underlying litigation is neither unusual nor deplorable. Judicial proceedings are not closed whenever the details are titillating, and open only when the facts are so boring that no one other than the parties cares about them.” Id. at 78.
“Public argument” as mentioned in Krynicki encompasses the public’s ability to review the basis of an important court decision contemporaneously with the court’s review of that decision. Allegations of a district court judge’s intimidation and retaliation are of significant public interest. There is also a strong public interest in understanding (1) why Judge Whitehead thought that he should not have to answer the allegations contained in the Commission’s complaint, and (2) why the Nevada Supreme Court might see fit to grant his wishes. The Judge’s interest in maintaining his privacy does not amount to a compelling governmental interest sufficient to overcome these interests. See, e.g., Miller v. Indiana Hospital, 16 F.3d 549, 551 (3rd Cir. 1994); Smith v. U.S. Dist. Court for Southern Dist. of Illinois, 956 F.2d 647, 649-50 (7th *271Cir. 1992); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1074 (3rd Cir. 1984).
Judge Whitehead is not the first judge in the United States who has resorted to the courts both to attack disciplinary proceedings against him and keep allegations against him secret from the press and the public. Most judges have been unsuccessful in this attempt. Other courts have consistently refused to grant confidentiality to judges challenging judicial discipline proceedings. See, e.g., Roberts v. Commission on Judicial Performance, 661 P.2d 1064, 1072 (Cal. 1983) (Mosk, J., dissenting); McKenney v. Commission on Judicial Conduct, 388 N.E.2d 666, 674 (Mass. 1979); Matter of Owen, 413 N.Y.S.2d 815, 818 (N.Y.Ct.Jud. 1978), Nicholson v. State Commission on Judicial Conduct, 409 N.E.2d 818, 825-26 (N.Y. 1980).5
There was no legal basis for providing Judge Whitehead with a special dispensation contrary to the statutes and the common law. As the Third Circuit stated in Bank of America National Trust and Savings Association v. Hotel Rittenhouse, 800 F.2d 339, 345 (3rd. Cir. 1986), “[w]e cannot permit the expediency of the moment to overturn centuries of tradition of open access to court documents and orders.”
For the reasons discussed above, secret supreme court proceedings violate statutory and common law. More importantly, such proceedings violate the supreme law of the land, the Constitution of the United States. The reasoning in a series of cases beginning with the United States Supreme Court opinion in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), makes clear that holding secret proceedings without certain safeguards violates the First Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment.
The United States Supreme Court has held that the public and press have a First Amendment right of access to the following judicial proceedings: (1) criminal trials, even in unusually sensitive circumstances such as the testimony of minor victims of sexual offenses; (2) the voir dire examination of jurors; (3) California-style preliminary hearings; and (4) Puerto Rican preliminary hearings. See, respectively, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), Globe Newspaper Co. v. *272Superior Court for Norfolk County, 457 U.S. 596 (1982), Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984), Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986), and El Vocero de Puerto Rico (Caribbean Intern. News Corp.) v. Puerto Rico, .U.S., 113 S. Ct. 2004 (1993).
The United States Supreme Court has established a two-part test which lower courts have applied to determine whether a qualified First Amendment right of access applies. In applying this test, lower courts have consistently held that the First Amendment clearly protects public and media access to civil proceedings. See Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1067-71 (3d Cir. 1984); Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308-16 (7th Cir. 1984). The first part of the test requires a court to determine whether access to a particular type of judicial proceeding or document has historically been available. The second part requires a court to determine whether access serves an important function in monitoring prosecutorial or judicial misconduct. The test is easily applied to this proceeding.
In his discussion of the history of maintaining open judicial trials, Chief Justice Burger noted that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, 448 U.S. at 580 n.17. None of the historical sources that he relied upon in making that determination suggest that appellate proceedings, either civil or criminal, have been excluded from that tradition. It appears that, at least since 1267, all judicial proceedings have been presumptively open:
Sir Edward Coke declared in the early Seventeenth century that the Statute of Marlborough of 1267 required court proceedings to be held in public: “These words [In curia Domini Regis] are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the King’s Courts openly in the King’s Courts, whither all persons may resort_” 2 E. Coke, Institutes of the laws of England 103 (6th ed. 1681).
Publicker Industries, 733 F.2d at 1068.
The tradition of public access to court proceedings was followed in the new American colonies. For example, “the 1682 and 1776 Pennsylvania Constitutions both provided that ‘all courts shall be open,”’ Gannet Co., Inc. v. DePasquale, 443 U.S. 368, 386 n.15 (1979) (citation omitted) (emphasis added). Thus, it appears that access to public proceedings has historically been available. Therefore, the first part of the two-part test is satisfied.
*273Additionally, the Eleventh Circuit has held that the maintenance of a dual-docketing system like the one used in this case (in which some documents are made public, but some are filed in secret), is an unconstitutional infringement on the right of access of both the public and the press. U.S. v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (citing CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of California, 765 F. 2d 823, 826 (9th Cir. 1985)). After acknowledging that closed proceedings are not absolutely precluded, but must be rarely employed, and then only when cause for holding closed proceedings outweighs the value of holding open proceedings, the Valenti court stated:
Thus, in determining whether to close a historically open process where public access plays a significant role, a court may restrict the right of the public and the press to criminal proceedings only after (1) notice and an opportunity to be heard on a proposed closure; and (2) articulated specific “findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
Id. at 713 (quoting Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984)).
The second inquiry concerns “whether public access plays a significant positive role in the functioning of the particular process.” Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8 (1986). In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the United States Supreme Court identified societal interests in open trial court proceedings that are so relevant to the immediate proceedings that they bear recitation at length.
Openness of court proceedings gives “assurance that the proceedings [are] conducted fairly to all concerned, and . . . discourage^] perjury, the misconduct of participants, and decisions based on secret bias or partiality.” Id. at 569.
Openness encourages public acceptance for both the means of achieving justice and its results. It prevents justice from taking place in a covert manner. It provides a significant therapeutic value as an outlet for community concern, hostility and emotion. It also prevents an unexpected outcome from causing the public to believe that, at best, the system has failed, or at worst, has been corrupted. Id. at 571.
Openness of court proceedings further encourages public confidence in the judiciary, because “[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Id. at 572. “The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelli*274gent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.” Id. (quoting 6 J. Wigmore, Evidence § 1834, at 438 (1976)).'
“[T]he function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.” Id. at 593 (Brennan, J., concurring) (quoting Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975)). “[Pjublic access to court proceedings is one of the numerous ‘checks and balances’ of our system, because ‘contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.’ ” Id. at 592 (Brennan, J., concurring) (quoting In Re Oliver, 333 U.S. 257, 270 (1948)). “Open trials assure the public that procedural rights are respected, and that justice is afforded equally. Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law.” Id. at 595. In his concurrence, Justice Blackmun stated:
[T]he public has an intense need and a deserved right to know about the administration of justice in general; about the prosecution of local crimes in particular; about the conduct of the judge, the prosecutor, defense counsel, police officers, other public servants, and all the actors in the judicial arena; and about the trial itself.
Id. at 604. There can be little doubt that considerations such as openness and public access serve an important function in this case and for this court. Accordingly, the second part of the two-part test is satisfied, thereby mandating public access to this proceeding.
The First Amendment creates a presumption of public access to all court proceedings. However, the First Amendment presumption can be overridden if “(1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Washington Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991) (citation omitted).
The majority quotes Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla. 1988), to show that there are circumstances under which closure of court proceedings is appropriate. However, this court’s action would not be appropriate even under the guidelines outlined in that case. In Barron, the court stated:
We conclude that the following factors must be considered to determine a request for closure of a civil proceeding.
First, a strong presumption of openness exists for all court *275proceedings. A trial is a public event, and the filed records of court proceedings are public records available for public examination.
Second, both the public and news media shall have standing to challenge any closure order. The burden of proof in these proceedings shall always be on the party seeking closure.
Third . . . ,6
Fourth, before entering a closure order, the trial court shall determine that no reasonable alternative is available to accomplish the desired result, and, if none exists, the trial court must use the least restrictive closure necessary to accomplish its purpose.
Fifth, the presumption of openness continues through the appellate review process, and the party seeking closure continues to have the burden to justify closure.
Id. at 118.
Closure of the proceedings in this case did not meet the criteria in Barron. First, this court’s actions kept the very existence of the proceedings secret. This contravenes the first Barron factor and nullifies the second — because neither the public nor the news media can challenge a closure order of which they are unaware. Further, no alternatives were considered, and the most restrictive, rather than the least restrictive closure necessary to accomplish the purpose was immediately implemented. This appears to contravene the fourth factor in Barron.
In this case, the only interest in favor of secrecy is the interest of the accused judge and the judiciary in general to maintain the confidentiality of charges against judges. I have been unable to locate even a single case in which a court determined that the interests in favor of confidentiality of public officials accused of wrongdoing outweighed the other compelling interests elaborated upon in Barron and elsewhere.7
*276All of the “compelling interests” in this case favor granting complete public access to these court proceedings, thereby fostering the interests protected by the First Amendment, and protecting those rights set out in our state statutes and constitution. Although the majority considers my suggestion that Judge Whitehead relinquished his right to confidentiality when he chose to seek relief in this court to be “sheer folly,” I maintain that the constitution and laws of this state and country mandate such a result.8
In an attempt to keep the proceedings in this case confidential, this court entered an unconstitutional order. When that order was violated, this court sanctioned the violators. There is no basis for applying sanctions for violation of an unconstitutional order. I would rescind the order appointing a master and return jurisdiction of the entire matter to the Nevada Commission on Judicial Discipline where it should have remained all along.
Many jurisdictions have separated the investigatory and adjudicatory functions of their judicial discipline commissions. There is little doubt that this separation enhances the appearance of fairness, if not actually ensuring more impartial proceedings. The Nevada Constitution does not separate the functions of the Commission. In any case, due process can certainly be had whether the Commission’s functions are separated or not.
See also United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) (to be disqualifying, alleged bias must stem from an extrajudicial source); United States v. Conforte, 457 F.Supp. 641, 657-58 (D.Nev. 1978), modified on other grounds, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S. 1012 (1980) (where origin of judge’s impressions was inextricably bound up with judicial proceedings, judge’s alleged bias did not stem from an extrajudicial source); Davis v. Board of School Com’rs of Mobile County, 517 F.2d 1044, 1050 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976) (if a party could successfully challenge a judge based upon allegations of bias against that party’s attorney, it “would bid fair to decimate the bench” and lawyers, once in a controversy with a judge, “would have a license under which the judge would serve at their will”); State v. Rome, 685 P.2d 290, 296 (Kan. 1984) (in disciplinary proceedings, supreme court justices were not required to disqualify themselves under Code of Judicial Conduct because the court was involved in litigant’s removal from judicial office); United Nuclear Corp. v. General Atomic Co., 629 P.2d 231, 323 (N.M. 1980), appeal dismissed, 451 U.S. 901 (1981) (under New Mexico constitution, as well as under Code of Judicial Conduct, alleged bias must be personal, not judicial).
The vast majority of the publicity concerning this case occurred after this court’s order opening the proceedings. Newspaper articles prior to November 3, 1993, are interesting both for what they do and do not contain. First, it is likely that the media has at least one source within the court itself since an article appearing in the Las Vegas Review-Journal on October 12, 1993, stated “Justices Thomas Steffen and Charles Springer favored Whitehead’s position, while Chief Justice Robert Rose and Justice Miriam Shearing were neutral.” This information was not available to the Commission. In addition, a newspaper reporter has given me information concerning the status of this court’s internal proceedings on this case of which I had not been informed by my colleagues and of which I was otherwise unaware. Another indication that the Commission was not the source of the “leaks” is that none of the articles correctly reported which charges were included in the Commission’s complaint. For example, the Review-Journal article of October 14, 1993, speculated that the complaint included an accusation that Judge Whitehead changed the custody of a child without a hearing. The complaint did not include this accusation. Other articles reported on other charges which were not included in the complaint. If the reporter had a source in the Commission, he or she would have been disabused of this incorrect information.
Nevada Revised Statutes 1.090 and 239.010 provide:
1.090 Public sittings.
The sitting of every court of justice shall be public except as otherwise provided by law; but the judge of any court may exclude any minor during any criminal trial therein except such minor be on trial, or when testifying as a witness, or when he shall be a law student preparing to apply for a license to practice law.
239.010 Public books and public records open to inspection.
1. All public books and public records of a public agency, a university foundation or an educational foundation, the contents of which are not otherwise declared by law to be confidential, must be open at all times during office hours to inspection by any person, and may be fully *269copied or an abstract or memorandum may be prepared from those public books and public records. Any such copies, abstracts or memo-randa may be used to supply the general public with copies, abstracts or memoranda of the records or may be used in any other way to the advantage of the public agency, university foundation or educational foundation or of the general public.
2. As used in this section:
(b) “Public agency” means any officer of the state or a county, city, district, governmental subdivision or quasi-municipal corporation and any office of this state.
The majority quotes extensively from the lower court ruling in Nicholson v. State Commission on Judicial Conduct, 422 N.Y.S.2d 701 (N.Y.A.D. 1979) which granted confidentiality. The New York Court of Appeals reversed that determination. The majority seems to regard as significant that some judges believed confidentiality was appropriate. Our jurisprudence is not developed through opinion poll. The state’s highest court rejected the claim of confidentiality. I do not agree that the majority’s attempt to distinguish the Nicholson holding is valid.
The third factor, quoted by the majority, sets out a list of when certain parts of court proceedings may justifiably be closed.
The case of State ex rel. Bilder v. Delevan Tp., 334 N.W.2d 252, 261 (Wis. 1983) is instructive in that a police chief challenging discipline proceedings demanded confidentiality of court proceedings because the contents of the documents would be “extremely damaging to [his] character, reputation and future career in law enforcement.” Judge Whitehead has made similar claims. The Wisconsin court concluded that Bilder’s interest in his reputation was not sufficient to overcome the public policy of open court proceedings and did not support the exercise of the court’s inherent power to close the file. Id. Moreover, the court added that “Bilder is not an ordinary citizen. He is a public official subject to close public scrutiny.” Id. at 261-62 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974); Garrison v. State of La., 379 U.S. 64, 77 (1964)). “By accepting his public position *276Bilder has, to a large extent, relinquished his right to keep confidential activities directly relating to his employment as a public law enforcement official.” Id. at 262.
The majority focuses on the fact that Bilder recognizes the inherent power of the courts to close proceedings. Bilder actually recognizes that the power of the court to close proceedings is limited and that confidentiality is even less appropriate when the conduct of public officials is involved.
The majority has cited three cases in support of its contention that confidential proceedings in this court challenging Commission jurisdiction do not violate the Federal constitution: First Amendment Coalition v. Judicial Inquiry and Review Bd., 784 F.2d 467 (3rd Cir. 1986); People ex rel. Ill. Jud. Inquiry Bd. v. Hartel, 380 N.E.2d 801 (Ill. 1978), cert. denied, 440 U.S. 915 (1979); Kamasinski v. Judicial Review Council, 797 F.Supp. 1083 (D. Conn. 1992). None of these cases support that contention. Each of these cases challenges the confidentiality before a judicial discipline body, not before a court. There is no dispute that confidentiality before judicial discipline bodies is constitutional.