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Posts Tagged ‘Nevada Supreme Court’

Note: The following is re-blogged with the express permission of author, noted family law specialist, and Nevada attorney, Marshal S. Willick. It was originally posted May 25, 2018 as Volume 66 of the Willick Law Group‘s Newsletter.

Willick’s insights and prescriptions are timely, persuasive and on-the-mark. Among his key recommendations is that the Nevada Supreme Court “assess the efficacy and impacts of mandatory CLE.” His commentary is definitely must reading.

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Vol. 66 – The New CLE Fee Structure Stinks and Should Be Changed

A legal note from Marshal Willick about how Nevada’s CLE system has been made destructive to both education and scholarship while increasing dramatically in cost, and why only the Nevada Supreme Court – which ultimately is responsible for this mess – can do anything about solving it.

The cost of CLE in Nevada just increased by an order of magnitude while the number and variety of available offerings has been greatly curtailed, and scholarship is being actively punished.

I. WHAT CHANGED AND WHY

The Nevada Board of Continuing Legal Education was created in 1982; it is distinct from – but intertwined with – the Nevada Bar Board of Governors (“BOG”). In 2014, in a “turf” squabble, the CLE Board asked the Supreme Court to reduce the number of CLE Board members appointed by the BOG since the Bar was a “provider” and the CLE Board complained of a conflict of interest.

The CLE Board declared that to do its job, it had to be a “stand-alone” entity that was “financially self-sustaining” so as to “avoid or eliminate conflicts of interest.” It complained that the number of lawyers and fees only “grows slowly” but the Board’s “profitability erodes as operating expenses [primarily its own salaries and benefits] increase over time.” It complained that in 2014, the CLE Board expended $15,000 more than it received from fees, while quietly noting a “reserve” from prior fees received of over $600,000.

So the CLE Board submitted ADKT 499 to change its “business plan” from reliance on annual attorney CLE fees (and late fees), claiming (at the beginning, anyway) its intent to get the “hugely profitable” CLE providers to start funding the cost of mandatory CLE to “reduce or eliminate fees for the lawyers.” It apparently never occurred to the CLE Board to explain why it should seek to be “profitable.”

The new plan was supposed to replace lawyer CLE fees by imposing on “accredited” CLE providers an annual fee of $500 plus $5 for each credit hour earned by every attendee, with another $5 per credit to be paid by each lawyer. For “non-accredited” providers, the new business plan charged a $25 “application fee” per program plus $5 per credit hour per attorney to be paid by the CLE provider, with another $5 per credit to be paid by each lawyer.

Begrudgingly, the fees would not apply to providers “that are non-profit and do not charge attorneys for attending their programs,” or to “Federal, State, and local governmental agencies, nor for legal aid, provided they do not charge attorneys.”

The CLE Board predicted that the change would improve CLE in Nevada because “higher quality providers will accept new fees to continue operating in Nevada, while others will exit the State.” No explanation was suggested as to what denoted “quality” or how that had anything to do with being large for-profit enterprises.

The CLE Board also promised to increase efficiency and economy through use of electronic communications to replace paper, to streamline its processes, and to save staff time by ceasing to “cajole” or “hand-hold” lawyers and instead greatly increase financial penalties imposed against lawyers for non-compliance, predicting that doing so would actually decrease the total of those fees by increasing lawyer compliance.

The Bar opposed the reorganization and parts of the new CLE “business plan,” but agreed to collect the annual CLE fees along with annual Bar dues so that fewer lawyers would be confused and end up having to pay the very expensive “late fee” penalty that constituted 40% of the funding of the CLE Board.

After public comment, a hearing, and several rounds of written input, mainly from the BOG and other bar associations, the Supreme Court approved both the reorganization and the new business plan.

II. THE REAL WORLD AND CONSEQUENCES, INTENDED AND OTHERWISE

Many Nevada lawyers have complained about the CLE “industry” for years, noting that it was already much too expensive, and that for many lawyers it was a totally hollow exercise which generated money for both the Bar and the CLE Board but had no discernable effect on actually improving lawyer competence.

For example, see Legal Notes Vol. 33, “Make Lawyer CLE Meaningful” (Jan. 2011); Vol. 36, “Judicial CLE” (Mar. 2011); Vol. 40, “Other Updates to Prior Notes” (Jun. 2011), and Vol. 54, “Putting Your Money Where Your Mouth Is: Cheap & Useful CLE” (Oct. 2012), all posted at https://www.willicklawgroup.com/newsletters/.

Those notes stepped through the history of CLE in Nevada, detailing how it had devolved from the aspiration of promoting lawyer competence into the meaningless extraction of funds to fund the CLE bureaucracy, and how both the Bar and the CLE Board had ignored the obvious reforms that would make it actually useful to the public.

We detailed the huge sums involuntarily extracted from lawyers and being fed to the Bar, to the CLE Board, and to private companies, and protested that since all known studies showed no actual improvement to lawyer competency from mandatory CLE, what Nevada had created was a time-and-money-consuming bureaucracy that falsely portrayed itself as providing a service important to the public, but which actually did not make lawyers better or provide the public any useful information, and so did no actual good.

We explained how my firm was going to try to encourage reform by producing and presenting substantive and specialized CLE at no cost to attendees for the purpose of trying to improve the practice and drive down the fees charged by others.

And we expressed the hope that if that approach was emulated by a sufficient number of others, enough of the profit motive could be taken out of the CLE racket to cause the CLE bureaucracy to focus on actually serving the legitimate interests of lawyers, public, and the courts.

Over the following six years, we produced low-to-no cost CLEs on a wide variety of family law topics, with any money beyond the cost of snacks going to Legal Aid. The “Basics” series (Jurisdiction, Child Custody, Relocation, Property Division, and Practical Mechanics of Family Trial Practice) was acclaimed by those attending, as was the 1-hour Lunch-and-Learn series addressing topics from pension division to the new local rules.

And others did emulate that model – experts throughout the Bar started putting on programs at no cost in their various specialty areas, significantly enhancing the actual education of lawyers in multiple fields.

But this did not generate any money for the CLE bureaucracy, which reacted like a bureaucracy does, seeking its own perpetuation and expansion at the expense of those it purports to serve.

So now, if you want to give away your time, experience, and expertise for the benefit of others, you are required to submit a $25 “application” fee and pay another $5 for every credit that every attendee receives. In other words, for the privilege of volunteering to do all the work to provide a one-hour CLE for 30 people, you have to pay the CLE Board $175. If 100 people happen to show up, it will cost you $525. Lord help you if 1,000 people want to hear what you have to teach.

Who is exempted from paying these fees? The Bar, its sections, and specialty Bars, but only if all proceeds go to legal aid, or to TIP mentors, or the credits offered are 1.5 hours or less. Or if the provider is the government, or a non-profit agency. Otherwise, too bad. The full set of “how we intend to take more money from you” regulations is set out at https://www.nvcleboard.org/formsinformation.asp#.

And this was by no means accidental. The CLE Board, in the debate leading up to adoption of the new regulations, stated in its submissions that it fully intended to cause the “exit of low volume non-accredited providers.” In other words, prevent lawyers from teaching other lawyers for free.

The CLE Board brushed aside the fact that large for-profit providers would obviously pass along to their captive lawyer market the increased fees and costs and that the lawyers would end up paying a lot more every year, saying “Overall, the Board expects no more than a modest effect on provider pricing, as anecdotal input suggests.”

In other words, the CLE Board very deliberately wanted to destroy the ability of lawyers to provide free CLE, because it was not good for the bureaucracy’s income growth, actual damage to the education of members of the Bar be damned. And they knew all along that their new plan would not “reduce fees” to lawyers but would instead greatly increase them, and they didn’t care about that, either.

III. YOU EVEN HAVE TO PAY THEM TO PAY SOMEONE ELSE

The regulations are unclear on the point, but apparently you have to pay the CLE Board if you actually want to obtain specialized education and training in your field.

A divorce lawyer gets the highest-possible quality of education from programs put on by the American Academy of Matrimonial Lawyers. But if you go to the 3-day annual CLE in Chicago – paying to travel there, to register, and to stay out of town for three days – you apparently also have to pay the CLE Board $5.00 for every credit you already paid to get.

So the AAML annual meeting, with its 10.5 hours of general and ethics credit, will cost every attendee another $52.50. Every year. On top of the cost of anything earned in Nevada (you have to pay $5 for most credits earned here, too).

The system has been altered so that the more any lawyer seeks out specialized training and education to actually be better, the more expensive it will be. Low-quality, irrelevant, and outdated CLE can be found which is cheap, but of course signing up for such won’t actually make any lawyer any more competent. The incentives are backward.

IV. THE DELIBERATE DISCOURAGEMENT OF SCHOLARSHIP AND PUBLICATION

Every major legal publication in Nevada works hard to attract quality substantive articles – The Nevada Family Law Report, the Nevada Lawyer, the Clark County Communique, the Washoe County Writ, etc.

One of the few tangible benefits for spending the dozens of hours of research, writing, and editing it takes to create such articles has always been the ability to obtain CLE credit for helping to teach other members of the Bar through such publications.

Now, it will also cost you. Regulation 9 of the new CLE rules imposes a $25 fee to get credit for writing scholarly articles – so if you volunteer your time and expertise to help educate the Bar by writing an article for the NFLR or Nevada Lawyer, you have to pay for that, too.

It is hard to imagine a way to more actively discourage lawyers from volunteering their time and expertise to write scholarly articles. And this thought apparently did not even cross the mind of anyone involved in adoption of the new rules – it appears nowhere in the written record of ADKT 499.

V. THE NEW POLICY IS WRONG AND COUNTERPRODUCTIVE

The “mission statement” of the CLE Board is to ensure that Nevada lawyers “continue their education through a wide range of quality educational programs and to have and maintain the requisite knowledge and skills to fulfill their professional responsibilities.”

But every aspect of the new model discourages providing quality education or scholarship, and decreases what is available to Nevada lawyers who want to actually improve their knowledge and skills. Costs are increased for every lawyer, and the more a lawyer actually cares about getting the best possible education and training, the more it will cost that lawyer.

Every impact of the new plan is directly antithetical to the CLE Board’s supposed reason for existing – but it does feed more money to its bureaucracy. The priorities for those involved in the discussion seem crystal clear.

It is not as if the Supreme Court has not previously been presented with budget impacts related to CLE. In 2016, the Court approved an expansion of CLE from 12 to 13 hours annually, so that every lawyer, every year, had to get a credit related to substance abuse and mental health. We were already the fifth most-expensive-to-remain-in-practice Bar before that change.

Justice Pickering dissented from the addition, noting the minimum $1 million in cost/lost productivity that change would cost, and the entire lack of any empirical evidence that it would actually do any good.

It seems likely that with that new “business plan” being adopted, the CLE Board will make Nevada number one – in cost to remain in practice on zero evidence of any actual benefit to the bench, Bar, or public. Hooray.

VI. RESPONSES BY THE BAR AND SECTION LEADERSHIP HAVE BEEN INADEQUATE

Essentially every entity that participated in the debate over ADKT 499 was solely interested in looking out for its own budget and programs, with scant attention or concern for the lawyers who would end up paying the freight (or their clients, on whom the increased cost of the lawyers remaining in practice ultimately descends). Each entity was focused on trying to secure exemptions from the new fees – for itself.

The State Bar submissions at least claimed to be concerned for the general Bar membership – in addition to the Bar’s own fees and programs, of course – but with all the numbers thrown out during the debate for over two years, no one involved apparently took the time to project what the new policy would actually cost each individual lawyer.

More than anything else, the written submissions looked like Russell Long’s famous summary of input to how tax policy is made in Washington:

Don’t tax you,
Don’t tax me,
Tax that fellow behind the tree.
(William B. Mead, “Congress Tackles the Income Tax” (Money, July, 1973)).

As with the debacle that is e-filing in Clark County, which has been extensively detailed in these notes, it has apparently never occurred to anyone involved that the proper response to increased efficiency, automation, and technology is to lower the cost to the user. If the size of the Bar membership (apparently about 8,000), and the fees that all those members pay, is only growing “incrementally,” then the growth of the bureaucracy’s budget should be likewise constrained to “incremental” increase.

If that is not “adequate,” require the CLE Board to piggy-back on existing State Bar mailings, notices, and staff for functions and communications that can be combined for the purpose of lowering costs.

VII. AN ACTUAL SOLUTION TO THE “PROBLEM”

It is worth circling back to the policy that is supposedly being served by creation of this CLE bureaucracy and the massive money it takes to run it: improving lawyer competence, ultimately for the benefit of the public hiring those lawyers.

The actual “solutions” that would serve that policy goal are simple and cheap, as detailed in Legal Notes 33 and 54 seven years ago: If you want to ensure that lawyers are actually learning something at CLE, require providers to test them on the subject matter of the course. If you want the public to hire the best trained and most educated lawyers, have the Bar publicly post the CLE record of all lawyers so that the public can see the currency and validity of attorneys’ continuing education.

What is not helpful to either lawyers or the public is to fund an ever-better-paid CLE bureaucracy primarily fixated on its own perpetuation and growth.

VIII. CONCLUSIONS

By my estimate, the cost of CLE in Nevada just (at least) doubled, while the number and variety of available offerings has been drastically reduced. Half a dozen companies have pulled out of Nevada entirely, and free CLE offered by law firms has essentially disappeared. Our CLE Board is actively discouraging anyone from wanting to provide either education to others, or scholarship and authorship. The new policy is counterproductive in virtually every imaginable way.

Only the Nevada Supreme Court can do anything about this. The CLE Board will never do anything to reduce its own budget and growth, and neither will the Bar. Both of those entities report to the Court, which should start with figuring out what end results it is trying to produce, and then target policies and directives to actually achieve them.

Given the enormous costs in both time and money, it may be time to re-evaluate the value of the entire system. Getting empirical evidence as to whether mandatory CLE actually does any good would seem to be a good first step.

At bare minimum, policies that discourage volunteering and scholarship should be reversed. There should be no fee of any kind for providing CLE without charging for it, and there should be no fee of any kind for seeking credit for scholarly articles and publications. It would be a good idea to have some kind of sliding scale beyond that, so that folks that have a modest charge to attendees (for example, to finance lunch or renting space) are not punished for providing a public service.

Overall, the concept is that the CLE Board should be focused on facilitating the actual providing of useful information and training to members of the Bar at the lowest possible cost, rather than maximizing revenues to perpetuate its own bureaucracy.

The CLE Board long ago lost all sight of the purpose of CLE, and the bureaucracy spawned is now solely concerned with its own perpetuation, expansion, and increase in budget. As currently constituted, the Nevada mandatory CLE system does nothing measurable to improve the competence of lawyers or judges, and the Bar does nothing to let the public get any potentially useful information from or about it. CLE is now about nothing but funding.

There is no defensible rationale for what has metastasized into the current hot mess. The State Bar, on behalf of the general membership, should ask the Court to assess the efficacy and impacts of mandatory CLE, and the Court, on behalf of the lawyers and the public, should do so.

IX. QUOTES OF THE ISSUE

“In any bureaucracy, the people devoted to the benefit of the bureaucracy itself always get in control, and those dedicated to the goals the bureaucracy is supposed to accomplish have less and less influence, and sometimes are eliminated entirely.”
– Jerry Pournelle (Pournelle’s Law of Bureaucracy)

“Bureaucracies force us to practice nonsense. And if you rehearse nonsense, you may one day find yourself the victim of it.”
– Laurence Gonzales, Everyday Survival: Why Smart People Do Stupid Things

“Bureaucracies are inherently antidemocratic. Bureaucrats derive their power from their position in the structure, not from their relations with the people they are supposed to serve. The people are not masters of the bureaucracy, but its clients.”
– Alan Keyes

“You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”
– Thomas Sowell

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For some of the CLE materials and articles produced by the Willick Law Group, go to https://willicklawgroup.com/cle-materials/ and https://willicklawgroup.com/published-works/. For the archives of previous legal notes, go to https://www.willicklawgroup.com/newsletters.

If there are any problems with or suggestions for these newsletters, please feel free to email back to me. Thanks.

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In June I wondered whether the Nevada Bar would be first to impose an unconstitutional speech code on their members. In May, that Bar’s governing board had filed a petition asking the state supreme court to amend a lawyer professional conduct rule, specifically ABA Model Rule 8.4(g).

Purporting to prohibit lawyers from engaging in harassing or discriminatory conduct, the new, vague, and over broad ABA Model Rule 8.4(g) would have chilled free speech; weaponized lawyer discipline; and infringed on lawyers’ free exercise rights.

Surprise, surprise, surprise!

As it happens, though, another state beat Nevada to the punch. In August, Vermont surprised a lot of people — not the least being Vermont lawyers — to become the first and so far, the only jurisdiction to adopt the ABA’s suggested model rule.

Noting how there were “zero public comments submitted,” law professor Josh Blackman wrote on his blog, “The bar counsel for the state’s professional responsibility program boasted, “So as you can see, this rule obviously had a lot of support.” 

Opposition in Nevada

As for Nevada, acknowledging that “many comments were filed in opposition . . . that caused the Board to pause,” the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” Just the same, in what seems little more than face-saving, the Board also expressed its “reservation to refile” if and when supposed inconsistent language in other jurisdictions is sorted out. That all this so-called inconsistency in other jurisdictions was already well-known is, of course, unmentioned. Every jurisdiction, after all, is free to adopt its own professional conduct rules.

It’s also worthy of note that though the court twice extended the public comment period, no comments were ever filed in favor of the Bar’s petition. All comments filed were opposed. The Board’s request was granted September 25, 2017.

So Vermont notwithstanding, the proposal has to date continued facing strong opposition not just in Nevada but elsewhere. The key is lawyers being adequately informed about it. What has to be overcome are the preferences of mandatory bar majordomos inclined toward the enactment of onerous initiatives as fait accompli with little preceding notice, detection or commotion. But when lawyers are told and widely noticed the opportunity to comment, legal elites have problems flying their officious meddling under-the-radar.

So far the proposed ABA Model Rule 8.4(g) has been turned back in other states, including Illinois, South Carolina and Louisiana. It has been roundly criticized in Texas and failed to find traction in Montana. See “Montana legislature says ABA model rule on discrimination and harassment violates First Amendment.”

The rule is currently under review in Utah but has encountered powerful headwinds there, too. It is opposed in Idaho. And in Arizona, opponents are galvanized to fight an ABA Model Rule 8.4(g) petition queued up for January 2018.

Yet despite all this, this month the ABA Journal took artistic license to soft pedal the reality of this mounting widespread antagonism to the lawyer speech code, writing, “States split on new ABA Model Rule limiting harassing or discriminatory conduct.”

Vermont, apparently, wasn’t an outlier. “States split,” they say.

And I’m a superhero.

Alternative facts, alas, remain in vogue.

 

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Credits: “Oral Exam,” by Ben Sutherland at Flickr Creative Commons Attribution; “What,” by Alexander John, Flickr Creative Commons Attribution; “40+112 Superhero Fail,” by Bark at Flickr Creative Commons Attribution.

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Note: The following story was originally published by ProPublica, “an independent, nonprofit newsroom that produces investigative journalism in the public interest.” It is republished with permission.

The behavior of Bill Kephart, who led the murder prosecution of Fred Steese, was repeatedly lambasted by the Supreme Court of Nevada. But that didn’t stop him from becoming a judge. This month he was charged with misconduct in that position too.

by Megan Rose, ProPublica

May 26, 2017

In the legal world, prosecutors are rarely called out by name. Their misconduct is usually attributed to unidentified prosecutors or the “State” in rulings by appellate judges. But as a Las Vegas prosecutor, Bill Kephart — now a judge — achieved a dubious distinction: He was chastised publicly.

The Supreme Court of Nevada took the rare step in 2001 of ordering him to prove why he shouldn’t be sanctioned for his behavior in one of his cases with a fine or a referral to the state bar for “violation of the Rules of Professional Conduct.” The ruling was disseminated statewide and, in Kephart’s own words, “professionally embarrassed” him. In his response, he wrote that the ruling had “already had a great impact” on him and promised that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future.” The justices nevertheless fined him $250.

Fred Steese served more than 20 years in prison for murder even though evidence in the prosecution’s files proved he didn’t do it. But when the truth came to light, he was offered a confounding deal. Read the story.

The Supreme Court’s rebuke was particularly notable in Nevada, where the judges are elected and part of the state’s insular legal community. They typically rule unanimously and seldom come down too hard on prosecutors. As one retired chief justice put it: “Picking fights with district attorneys might not be the best thing for [a judge’s] career continuation.” But Kephart’s behavior challenged that status quo, compelling one or more of the justices to issue dissents in several cases, saying his behavior called for convictions to be overturned.

Overall, the Nevada high court has noted prosecutorial misconduct in at least five of his cases over a dozen years, not including his actions during the trial of Fred Steese — who was tried by Kephart for a 1992 murder and ruled innocent 20 years later after exculpatory evidence was found in the prosecution’s files. In the cases in which Kephart is not named, he is the prosecutor whose misconduct is cited:

  • In 1996, the court noted “several instances of prosecutorial misconduct” in a sexual assault case. The conviction was upheld, but one justice dissented, saying that Kephart had “infected” an already “muddled case” and it warranted reversal. (In 2001, a judge granted the defendant an evidentiary hearing and he was released.)
  • In 1997, the court reversed the murder convictions of two men based entirely on the “deliberate” and “improper comments” made by the prosecution during cross examination and closing argument. The DA’s office had sought the death penalty, which in Nevada increases costs by about a half million dollars on average, making this and other reversals based on Kephart’s behavior expensive screw-ups for taxpayers. (Both men were retried and convicted again in 1998, one sentenced to life in prison and the other to death.)
  • In 2001, in the case he was fined $250, the court said Kephart gave the jury a misleading explanation of the standard for reasonable doubt when he instructed them: “you have a gut feeling he’s guilty, he’s guilty.” A justice said at a hearing that the remark seemed “like deliberate misrepresentation.” The court upheld the conviction, but noted that Kephart’s “improper remark was particularly reprehensible because this is a capital case and the remark was gratuitous and patently inadequate to convey to the jury its duty…”
  • In 2002, the court took issue with Kephart for assaulting a witness. During the trial of a sexual assault case, Kephart said he wanted to demonstrate how the victim said she was choked, pressing his forearm into the defendant’s neck while he was on the stand. The court upheld the verdict, but noted there was “absolutely no reason” for Kephart’s behavior, which went “well beyond the accepted bounds of permissible advocacy.” One justice dissented, saying “the instances of prosecutorial misconduct were pervasive and substantial…an accused who takes the stand runs many risks. One of them should not be that the prosecutor would physically assault him or her.”
  • In 2008, the court tossed out a murder conviction in another death penalty case, saying, among other issues, the prosecution’s misconduct was “significant” and “occurred throughout the trial,” including Kephart’s remarks during jury selection and in closing. One judge dissented, saying the prosecutorial misconduct and other issues didn’t require reversal. (The defendant eventually pled guilty in 2014.)

In 2002, Kephart prosecuted another highly contested murder case against Kirstin Lobato, then 19, which has garnered national outcry for the meager and sometimes contradictory evidence against her. Lobato was recently granted an evidentiary hearing and is represented by the Innocence Project. This month, the prosecuting officer for the Nevada Commission on Judicial Discipline filed misconduct charges against Kephart for a media interview he gave about the case last year, in which he said it “was completely justice done.” Kephart’s “statements could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges. The statement said Kephart violated several rules of the judicial code of conduct. He has not yet filed a reply.

Kephart, who joined the DA’s office in the early 1990s as a brash young attorney, once got in a shoving match with a defense attorney. Another time a judge had to admonish him for repeatedly shaking his head, making faces and rolling his eyes. His behavior eventually led to minor reprimands from the Clark County District Attorney’s Office, according to several people who worked with him during that time. In 2002, after Kephart’s reasonable-doubt flub, the entire DA’s office had to complete a two-hour ethics course and continuing legal education classes, which the deputy district attorneys tagged the “Kephart CLE.” That same year, Kephart was briefly banned from trials. Regardless, he later became a chief deputy.

Kephart also was called before the state bar for his behavior in Steese’s murder trial, but, according to lawyers at the hearing, his boss made an appeal on behalf of him and the other prosecutor on the case, and neither was sanctioned.

Kephart declined several requests for comment.

Despite these repeated critiques of his conduct, Kephart was voted onto the bench in 2010 as a justice of the peace and in 2014 moved to the Eighth Judicial District Court of Nevada, where he today he presides over civil, construction and criminal cases.

Update, May 31, 2017: In his official written response to the disciplinary commission, Kephart has denied charges that he violated judicial canons with his remarks to the media about an open case. His response said that he had “participated in interim rehabilitation by taking classes,” and the commission should consider his honest motives, clean judicial disciplinary record, and “character and reputation.”

Megan Rose covers the military for ProPublica. Previously she was the national correspondent at Stars and Stripes.

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Clarence Thomas - Caricature | by DonkeyHoteyU.S. Supreme Court Justice Clarence Thomas told a meeting of lawyers last week that “unchecked judicial power” means “we leave it for the least accountable branch to decide what newly discovered rights should be appended to our Constitution.” To his point, the role of courts is to interpret constitutions not to make or enforce law. (I won’t repeat that umpire analogy).

Likewise among the states, their supreme courts are supposed to interpret and rule on the constitutionality of statutes not make law from the bench. But when things don’t go precisely like they’re supposed to, you notice.

Which brings me to what happened in Arizona last week. It was the state supreme court decision in the public employee pension case of Honorable Phillip Hall Et Al., v. Elected Officials Retirement Plan/State of Arizona.

Without diving into the weeds, Hall was about retirement benefits and contributions and whether they’re part of an ’employment contract.’ It was also about the Gift Clause in the Arizona Constitution. For an accessibly excellent commentary, see Arizona Republic Columnist Robert Robb’s aptly titled “Pension reform is now impossible in Arizona.”

Yipee! Project 365(3) Day 250 | by Keith Williamson

Pension reform matters because according to a 2013 report by the independent financial research group, Morningstar, most states’ pension plans continue to be underfunded below the 80 percent level considered healthy. As summarized by Ballotpedia, “Decreased funding and increasing liabilities since the 2008 recession continued to put pressure on local and state budgets, in some cases leading to bankruptcy. Higher pension costs can have the following consequences:

  • higher taxes
  • less intergovernmental aid for services
  • lower credit ratings
  • higher interest rates on state borrowing”

I agree completely with Justice Clint Bolick’s dissent in the Hall case. It was well-reasoned and persuasively argued. Most of all, it was refreshingly candid. Reading the majority opinion, you have the sense they didn’t much care for the demurrer.

How bracing, though, to hear a dissenting voice on this state’s high court — so welcome, so invigorating, so rare. Four of the five sitting justices recused themselves because the case would have had a bearing on their own retirement plans. But because Justice Bolick joined the high court after the law was changed, he had no such conflict nor did the four guest justices also deliberating.

Grisham-like legal fiction.

J.C. Hallman 10.06.09 | by kellywritershouse

Bolstered by a sharp wit, Justice Bolick’s keen analysis evoked nods and smiles from the first page. He likened the Court’s 51-year old finding that at-will state employees actually had a contract with the state to “a work of legal fiction to which the likes of John Grisham could only aspire.”

Equally remarkable, too, was that across its 21 pages, the majority failed to mention taxpayers — the poor slobs who’ll face higher taxes or cuts in services to pay promised pension benefits. To be fair, the majority did reference “the State” but in doing so, seemed to gloss over taxpayers who are ultimately the ones saddled with funding shortfalls in the State’s largesse. Indeed, Justice Bolick appeared to chide the majority’s rather cavalier observation that the retirement plan’s “actuarial soundness is within the Legislature’s control” — because it can always hike taxes and court fees — “apparently ad infinitum.”

Judges Gavel“Of the judges, by the judges, and for the judges.”

But the money paragraphs were these from Justice Bolick:
“If  ever  there were a  case in  which  we  should  seriously indulge  the  presumption  of  statutory constitutionality,  this  is  it.   The majority winks  at  that rule,  then  utterly fails  to apply it.   It  repeatedly invokes  the  mantle  of  judicial restraint  while  casually  invalidating  a statute designed  to  preserve  the financial stability  of  a  public  employee pension  plan,  a  purpose  so  important  that  the  voters  made  it  part  of  our state’s organic law.
 
 “The  majority  opinion  portends  a  huge  financial windfall  for the  class  members,  a  burden  the  taxpayers  will  shoulder.   Under  such circumstances,  we  should  act  with  great  restraint,  lest  the  rule  of  law be undermined by  a  public  perception  that  this  decision  is  of  the  judges,  by the  judges,  and  for  the  judges.   On  this  important issue,  the  majority exhibits  no such  restraint,  and we  therefore  respectfully  dissent.”

Outcome-based jurisprudence.

If there’s one thing you learn in law school is that courts sometimes back into their decisions. Adopting what’s called outcome-based jurisprudence, they first decide what the outcome of a case should be and then work backwards to find the reasoning that reaches the desired conclusion. A criticism of this approach was made in March when a split U.S. Supreme Court left mandatory union dues in place in Friedrichs v. California Teachers Association.

In my opinion, the Arizona Supreme Court found the outcome it wanted, which was to shift policy choice burdens away from active employee retirement plan members and place them instead on taxpayers “by freezing employee contribution rates in perpetuity” to quote Justice Bolick. Indeed, he referred to some of the majority’s rationale as “pick-and-choose jurisprudence.”

https://cdn.morguefile.com/imageData/public/files/p/pippalou/03/l/1363479372ipbgy.jpgIn Nevada, I remember its version of “pick-and-choose.” It was the 2003 Nevada Supreme Court case of Guinn v. Legislature, which came about when the Nevada Legislature deadlocked over the state budget. Nevada’s late Governor Kenny Guinn petitioned the Nevada Supreme Court for an Order declaring the Legislature in violation of the Nevada Constitution. More to the point, he wanted the Court to compel the legislature to fulfill its constitutional duty to approve a balanced budget; to ignore the 2/3rd super majority Nevada Constitutional requirement to raise taxes; and to appropriate funds for public education during that fiscal period.

A child's primer of natural history (1899) | by CircaSassyBut there was a fly in the apothecary’s ointment. Notwithstanding the Court’s decision, the Nevada Constitution at Art 4. Sec. 18(2) enacted in 1996 by voter initiative was not to be ignored. The voters and taxpayers enshrined in their state constitution the 2/3 super majority tax hike requirement to make raising taxes difficult. And that was the rub.

It’s clear the Court had the outcome in mind to fund education — a meritorious end to be sure. But to do so, it had to find justifiable means. So it parsed the super majority requirement to pirouette over the voter imposed 2/3 majority prerequisite. It said the requirement was “procedural” while the affirmative constitutional obligation to fund public education was “substantive.”

And so procedural rights were thrown under the bus when the Court decided the substantive right was more important even as Nevada’s Constitution Article 11, Sec. 6 only required that “the Legislature shall enact one or more appropriations to provide the money the Legislature deems to be sufficient, . . . .”

To its credit, Nevada’s high court reversed itself as part of a subsequent 2006 opinion.

But don’t expect a similar reconsideration in Arizona.

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Credits: Clarence Thomas – caricature by DonkeyHotey at Flickr Creative Commons attribution license; Yippee, by Keith Williamson at Flickr Creative Commons attribution license; J.C. Hallman, by kellywritershouse at Flickr Creative Commons attribution license; A child’s primer of natural history, by CircaSassy at Flickr Creative Commons attribution license.

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SG_01_IMG_3458_MFI was disappointed to recently learn from a colleague about the demise of the Washoe County, Nevada volunteer program known as SAFE, Special Advocates for the Elderly. SAFE’s purpose is to assist judges by independently gathering and evaluating information about elders under or facing guardianships.

Based in Reno, NV, the Washoe County SAFE program became a victim of the great recession when grants and donations apparently dried up during 2008 to 2010. The sad consequence was that an indispensably meritorious organization was forced to shut its doors. A shame I’m late on the news.

SAFE

rep.5 | by simajeSAFE volunteers are appointed by the court in civil or criminal matters involving allegations of exploitation, abuse or neglect of a vulnerable adult or ward. In addition to acting as the court’s eyes and ears, SAFE volunteers provide essential companionship that improves the quality of life and enhances the dignity of at-risk elders. And unlike financially motivated stakeholders, these volunteers work autonomously for the court as trained advocates not conflicted by financial self-interest.

The model for SAFE is the Court Appointed Special Advocate (CASA) program for children. CASA advocates “for the timely placement of abused and neglected children in safe, permanent homes and for the highest quality of their care while they are under the court’s jurisdiction.”

rep.1 | by simaje

SAFE volunteers are trained to investigate the appropriateness of guardianship for elders by visiting residents in nursing homes and other facilities. They review court documents and accounting records. They interview witnesses, family members, attorneys, and facility staff. Advocates prepare reports of their findings for the court and attend court hearings for the wards.

I’ve been remiss not keeping up with the topic of elder financial abuse here as I once did. The problem hasn’t gone away. Far from it. In fact, I still think SAFE ought to be duplicated throughout the country.

Happily, the SAFE program created 6 years ago in Douglas County, NV continues to thrive. I’ve even heard Douglas County’s SAFE has become a state model and that it may be adopted by other Nevada counties.

https://i1.wp.com/cdn.morguefile.com/imageData/public/files/b/bjwebbiz/preview/fldr_2008_11_02/file000228637046.jpgIndeed, last week the same Nevada colleague speculated that SAFE’s laudable objectives may even be gaining traction with a Nevada Supreme Court statewide commission created a year ago to study the administration of guardianships in Nevada’s Courts.

Under Nevada Supreme Court Administrative Order ADKT 0507, the Commission to Study the Creation and Administration of Guardianships in Nevada’s Courts has been reviewing the processes for creating guardianships and conservatorships, stakeholder accountability, court documentation and tracking, judicial training, and any resources available or needed to assist Nevada’s courts in administering guardianships.

While it’s commendable Nevada’s high court has tasked a state commission to undertake this comprehensive review, why does it always seem such praiseworthy initiatives only occur in temporal proximity to media scrutiny, scandal and public embarrassment?

the Clinquant of the Future | by DerrickTLike in other jurisdictions, including Arizona’s, probate court reforms come in fits and starts and seemingly only after disconcerting media revelations. In 2011, for example, The Arizona Republic published a multi-part investigation, “Probate Court: A Troubled System,” which “revealed that Maricopa County Probate Court is allowing the life’s savings of vulnerable adults to become engines of profit for attorneys, for-profit fiduciaries and care providers. Their fees can drain a large portion of the assets of people who have lost the ability to take care of themselves.” Court reforms and remedial legislation followed.

In Nevada, ongoing problems with the probate system in Clark County came to light in a series of Las Vegas Review-Journal articles published in April 2015. “Cases high­lighted by the newspaper showed a lack of oversight by the courts, such as failing to require guardians to file annual accounts of a ward’s finances even though it is required by state law.”  Two months later, there was a statewide guardianship commission.

DSCF1286 | by rahnekat

But no matter the timing or how belated, this ought not diminish the importance of the Commission’s charge. Past Supreme Court Chief Justice James W. Hardesty is Chairperson and is joined by stellar state jurists with longstanding interests in doing right by Nevada’s most vulnerable populations.

Additionally, the Supreme Court’s Order limited the Commission membership to no more than 20 representatives from the public and private guardianship system. And in a refreshing departure from the insular approach too often taken by Arizona’s high court, Commission members also include members of the state legislature and even the news media. Public testimony has also been taken statewide.

And so strong is the Commission’s interest in getting it right that the deadline for the its final report was recently extended by the current Chief Justice to September 30, 2016. The Commission’s website has news, documents and forms as well as meeting recordings. I will keep you posted.

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Credits: “rep.5” and “rep.1” by sima dimitric at Flickr Creative Commons Attribution; “the Clinquant of the Future” by Derrick Tyson at Flickr Creative Commons Attribution; “DSCF1286 Nevada Supreme Court in Carson City. January 18, 2011” by Rahne at Flickr Creative Commons Attribution; other photos via Morguefile.com no attribution required.

 

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I was watching a segment on Sunday about America’s oldest teacher, Agnes ‘Granny’ Zhelesnik of New Jersey, who just turned 100 and is still working 35-hours a week teaching home economics to kids. Going strong five days a week, she hasn’t called in sick since she was 98. And the children adore her.

Living deep.

LAW AND JUSTICE 63

Which prompted me to wonder whatever became of Alice Thomas who graduated from law school at age 79.  That was four years ago. And it was news then because Thomas was at the time, the oldest person ever to graduate from McGeorge Law School in Sacramento. It was another of those seasoned citizen atta-girl/atta-boy moments I like so much.

For instance, there’s Charles Elliott who last year turned 100-years old and marked that milestone by skiing at the Colorado ski resort he helped found. He made four runs before stopping to sip champagne and eat cake with members of the Gray Wolf Ski Club.

And when it comes to aging fearlessly with joy, who can forget Ilona Royce Smithkin or Oliver Sacks or ‘over-the-rainbow’ Dorothy Ellis or ski slope silver surfer 91-year old Klaus Obermeyer or centenarian Octavio Orduño — who I hope is still riding his bike well past 100.

Although it’s increasingly more commonplace, most of us won’t be hitting the century mark — much less going beyond it like the now late Brazilian architect Oscar Niemeyer who famously called turning 103 a ‘crap’ birthday. Just the same, these are people who grabbed life by the throat. And who regardless of advancing years, chose to live deep and to continue sucking the marrow out of life.

Biting not “nibbling” at injustice.

lentes01As for Alice Thomas, on graduating law school she remarked how she aspired to ‘nibble’ at injustice. Since I couldn’t locate her on the state bar’s membership directory, I’m not sure if she ever sat for the bar exam in Nevada. But all the same, that’s not stopped her from trying to make good on her aspirations and to do more than just nibble at injustice.

The now 82-year old Thomas has been busy. She founded and heads a non-profit organization called Civil Rights for Seniors to provide legal services to seniors and other Nevada residents and to empower them through advocacy. “Seniors must be our priority as they do not have time to regain their security and take part in the General Welfare, a guarantee under our Bill of Rights,” she told Senior Spectrum Newspaper.

It’s confidential.

People 153Last October, her organization made news despite losing a state supreme court case seeking expanded public access to Nevada’s Foreclosure Mediation Program records. The records are maintained by the Administrative Office of Courts (“AOC”), which is an arm of the Nevada Supreme Court. Thomas and her organization wanted access to those records to “verify one way or another whether the program is or is not a success.”

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/a/a9/Sign_of_the_Times-Foreclosure.jpg/320px-Sign_of_the_Times-Foreclosure.jpgIt’s a good question even though overall I think Nevada’s Foreclosure Mediation Program has done more good than bad. Nonetheless, that doesn’t mean the program hasn’t been a mixed bag.

But how successful? That hasn’t been entirely clear. In 2011, the Reno Gazette-Journal concluded “that independently assessing its effectiveness was difficult because of incomplete data and a far-reaching confidentiality policy that encompasses nearly all of its records.”

j0289753Civil Rights for Seniors tried testing the limits of that policy and ran into the same problems the newspaper did with respect to the “far-reaching confidentiality” of those records. The organization also made much of the fact the since the Nevada Supreme Court administers the foreclosure mediation program and shares in the fees — it had a conflict of interest. The Court’s decision is outrageous!” said Thomas. “I am not surprised, but since when can judges sit in judgment of themselves and decide their own cases?” The case is Civil Rights for Seniors v. AOC, 129 Nev. Adv. Op. 80 (Oct 31, 2013).

NRS: Chapter 239 generally provides the public with access to inspect and copy public books and records held by governmental entities to the extent permitted by law. Civil Rights for Seniors’ records access efforts were turned back when the high court ruled the foreclosure mediation records held by AOC, a judicial entity, “are confidential as a matter of law.”

Despite this setback, I doubt it’s dissuaded Thomas and her legal team from persisting in efforts as she told “Senior Spectrum” to hold “those accountable who need to be held accountable” or from working to “create the conditions seniors need to flourish.”

Secret of life.

Like all the above-mentioned octogenarians, nonagenarians and centenarians, Thomas found her “one thing.” As Curly told Mitch in City Slickers, it’s what each of us has to find to get to our own “secret of life.”

In Curly’s words, it’s the “One thing. Just one thing. You stick to that and the rest don’t mean shit.”

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Photo Credits: “Not in Kansas Anymore,” by garlandcannon, at Flickr via Creative Commons-licensed content requiring attribution;”Sign of the Times – Foreclosure,” by respres at Wikimedia Commons via Flickr under the Creative Commons Attribution 2.0 Generic license.

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“Politicians are like diapers. They both need changing regularly and for the same reason.” – Unknown

https://cdn.morguefile.com/imageData/public/files/a/anitapatterson/preview/fldr_2004_10_16/file0001529137639.jpgAs I don’t think much of politicians, I’m in favor of term limits. And this is why I invoked the above-mentioned quote about pols and their affinity to soiled nappies when I blogged about lawyers who discuss politics with clients.

File:Unangenehme Vaterpflichten.JPG

U.S. public domain tag

But the quote’s also timely since the Nevada Supreme Court has agreed to look at whether term limits as enshrined in Article 15, section 3 of the state constitution apply to district attorneys. More to the point, is it constitutionally permissible for a recently reelected county district attorney to serve a fourth term since he’s already held the Office for 12 years?

Article 15, section 3, (2) of Nevada’s Constitution states: “2. No person may be elected to any state office or local governing body who has served in that office, or at the current expiration of his current term if he is serving will have served, 12 years or more, unless the permissible number of terms or duration of service is otherwise specified in this Constitution.”


O’Connor v. Mallory

In filing his appeal to Nevada’s highest court, John O’Connor is challenging the reelection of wanna-be 4 term Churchill County District Attorney Arthur Mallory.

O’Connor says that D.A.s are “either a legislative or state office under Article 4, section 32 of the Nevada Constitution” and that term limits apply.

Mallory, on the other hand, says that the constitutional provision is inapplicable since he’s a local officer not a state officer. See O’Connor v. Mallory (57312)

But these semantic distinctions are nonsensical. When the Nevada electorate voted for term limits, they intended to hold elected nonjudicial officials accountable by limiting the terms of their political office so they couldn’t be either local or state office lifers.

‘Whatchamacallit’

But leave it to lawyers to argue over labeling the ‘whatchamacallit’ while forgetting what the ‘thingamajig’ was meant for.

As for myself, I don’t think it much matters whether you call it a donkey or a burro, it’s still a jackass. And if D.A.s aren’t politicians and political animals in every sense, then you can beat me like a rented mule.

And then there’s what Stephen Raher wrote in “Defending D.A. Term limits” about a Colorado referendum that would have exempted D.A.s from term limits. Raher said the “immense power” wielded by district attorneys places them at the pinnacle of the elected officials who need the greatest degree of oversight and control. “Probably no other person in government can affect an individual’s life as much as a prosecutor – – and no one can harm an innocent person as much as a district attorney bent on bringing a highly publicized prosecution.”  

Far as I know, Colorado is the only state that term limits district attorneys. It was part of a 1994 amendment to Article 18, Section 11 of the state constitution that limited all “elected government officials(2) other than judges, to two four-year terms. Most district attorneys around Colorado have term limits.

Poster-child prosecutorial misconduct.

To underscore why I think such limits are a good thing, take poster-child New Orleans, Louisiana where in the absence of term limits, Harry Connick, Sr. ruled for 30 years. Connick’s tenure as head of the Orleans Parish District Attorney’s office was best distinguished by prosecutorial misconduct charges.

The bad part is that despite instances of misconduct in New Awlins and elsewhere, prosecutors are largely immune from adverse consequences. Time and again, the prosecutorial bacon is saved.

Moreover, there’s little respite or remedy from the canons of professional responsibility. For instance, how often are prosecutors disbarred? (1)

A recent study also found that prosecutors who withhold evidence are almost never disciplined. And the same study further concluded that,“professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct.” See The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct.” (2)

Further corroborating what happens when there’s no accountability, down in the ‘Big Easy,‘ notwithstanding the U.S. Supreme Court’s wrong-headed decision in Connick v. Thompson, the hits just keep on coming. For the third time in 16 years, the U.S. Supremes will get more bites at the same apple as the “Orleans Parish D.A.’s Office Again Faces U.S. Supreme Court.”

And doubtless since he invested so much of himself in the Thompson Opinion, Justice Clarence Thomas will likely again take up the lead in gently applying his cavalier ministrations on the ham-fisted work of Orleans Parish prosecutors.

So back in Nevada, in light of the above, the practical and realistic solution to protect the community from potential prosecutorial abuses is to term limit the D.A. – – –  just as the voters intended.

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(1) But hold that thought for the non-refuting rule exception in the case of Maricopa County Attorney Andrew Thomas.

(2) David Keenan, Deborah Jane Cooper, David Lebowitz & Tamar Lerer, The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203 (2011), http://yalelawjournal.org/2011/10/25/keenan.html.

(3) “Section 11. Elected government officials limitation on terms. (1) In order to broaden the opportunities for public service and to assure that elected officials of governments are responsive to the citizens of those governments, no nonjudicial elected official of any county, city and county, city, town, school district, service authority, or any other political subdivision of the State of Colorado, no member of the state board of education, and no elected member of the governing board of a state institution of higher education shall serve more than two consecutive terms in office, except that with respect to terms of office which are two years or shorter in duration, no such elected official shall serve more than three consecutive terms in office. This limitation on the number of terms shall apply to terms of office beginning on or after January 1, 1995. For purposes of this Section 11, terms are considered consecutive unless they are at least four years apart.

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