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SECRECY OF JUDICIAL COMPLAINTS TARGETED Official Says Confidentiality Rule Created to Protect Judges By Glen Puitt, Las Vegas Review-Journal, 11-22-02, P. B1 Nevada judges who act inappropriately won't be able to keep that fact secret if a newly filed lawsuit succeeds in U.S. District Court. The lawsuit, filed Thursday by the American Civil Liberties Union of Nevada, asks a federal judge to toss out state laws that mandate confidentiality for misconduct complaints lodged against Nevada judges. "The laws present a totally absurd and ridiculous situation that is highly unconstitutional," says ACLU lawyer Allen Lichtenstein. "This is the most brazen form of censorship." Currently, if someone believes a judge has acted improperly, the person can file a complaint with the Nevada Commission on Judicial Discipline. But according to state laws put into place in 1997, the person can file a complaint with the Nevada Commission on Judicial Discipline. But according to state laws put into place in 1997, the person who files the complaint is prevented by law from disclosing to anyone that a complaint has been filed. A violator of the laws dictating confidentiality can be found in contempt and be fined or be put in jail. One can discuss such a complaint only after the commission issues a formal finding indicating it is reasonable to believe misconduct occurred. However, Lichtenstein said judges occasionally may resolve a complaint before a finding from the commission is issued, making the complaint against them forever secret. "It makes for a permanent gag order," said Gary Peck, executive director of the ACLU of Nevada. On Thursday, the ACLU filed a lawsuit against the Nevada Commission on Judicial Discipline, saying the laws dictating confidentiality are unconstitutional. To prove its case, the ACLU cited in the lawsuit the predicament that Las Vegan Terry Mosley faced when she filed complaints with the commission regarding the father of her child, District Judge Donald Mosley. The two have been involved in a contentious child custody dispute that continues to this day. Terry Mosley filed her complaint with the commission in 2000. The confidential complaint, details of which the Review-Journal reported earlier this year, accuses the judge of keeping his child custody case file in his courtroom chambers, among other allegations. In March 2002, Terry Mosley received a letter from the commission's then executive director, Alan Rabkin. The letter said the commission would have a difficult time proving the allegations in her complaint and that the complaint must remain confidential. "Since the commission determined that they could not pursue your complaint further, these proceedings must remain completely confidential (under Nevada law,)" the letter reads. When contacted Thursday, Terry Mosley said she could not discuss anything related to her child custody dispute because a judge issued a gag order on the matter Thursday. Regarding her complaint with the Commission on Judicial Discipline, she said: "I was totally disillusioned. ...If you file a complaint and it happens to be against a judge who has political preference, no one will ever know that judicial misconduct even occurred. It is as if it never happened." In February, a month before Terry Mosley received the letter from the commission, Donald Mosley privately resolved one of the ethics complaints against him by issuing a private letter of apology. In a March ruling, the Commission on Judicial Discipline subsequently found that Donald Mosley committed several ethics violations during a two-year period. The commission fined Donald Mosley $5,000 and issued a censure, but Mosley, who has always disputed the allegations, is appealing. The current director of the Commission on Judicial Discipline, David Sarnowski, said Thursday he could not comment on the pending litigation. However, he said state law does not prevent someone from making a public comment about a judge's conduct. The law prevents them from discussing any complaint they might have filed with the commission until after a formal finding has been issued. Sarnowski said the confidentiality requirement was created to protect judges from baseless allegations. It also offers protection for judges from litigants who might be motivated to file complaints against judges simply to get the judge removed from certain cases. "The law is designed to protect a judge from in appropriate or unfounded allegations, and also to keep litigants from abusing the system," Sarnowski said. Sarnowski said judicial discipline forums in many other jurisdictions, including the federal system, also carry with them confidentiality provisions. "Nearly all of them, just like federal court proceedings, have some form of confidentiality," he said. Chief District Judge Mark Gibbons, who was elected to the Nevada Supreme Court earlier this month, said he also could not comment on the ACLU's lawsuit. However, Gibbons said he operates under a general philosophy that all court proceedings should be accessible to the public. "My personal belief is we need to have as much openness as possible when it comes to the judicial system," Gibbons said. Lichtenstein said state law dictating confidentiality for judicial complaints is a clear violation of the First and Fourteenth amendments, which offer protections for free speech, an individual's right to due process and equal protection. "What you end up having is a commission that is basically a secret tribunal," Lichtenstein said. "There is no logical, acceptable or rational reason for having these laws." WORKING TOGETHER TO ATTAIN FAIRNESS
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