Mosley v. Nevada Commission on Judicial Discipline

Citations: 102 P.3d 555; 120 Nev. 908; 120 Nev. Adv. Rep. 94; 2004 Nev. LEXIS 126Docket: 39336

Court: Nevada Supreme Court; December 21, 2004; Nevada; State Supreme Court

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On May 22, 2000, the Nevada Commission on Judicial Discipline filed charges against District Court Judge Donald M. Mosley. The complaint included eleven counts of alleged violations of the Nevada Code of Judicial Conduct (NCJC), primarily relating to improper use of official letterhead, ex parte communications, and failure to recuse himself from a case. Specific counts included writing letters on judicial letterhead to a school principal, engaging in ex parte conversations regarding a case, and improperly releasing a defendant without notifying the district attorney.

A formal evidentiary hearing occurred from February 25 to February 28, 2002. The Commission found Judge Mosley guilty of several charges (Counts I, II, III, IV, VI, VII, and VIII) but dismissed others (Counts V, IX, X, and XI). The imposed discipline included mandatory attendance at an ethics course, a $5,000 fine, and strongly worded censures. Judge Mosley appealed, contesting the sufficiency of evidence and other aspects of the Commission's decision. The Supreme Court of Nevada affirmed the Commission’s findings and the disciplinary actions, determining that clear and convincing evidence supported the Commission’s conclusions, except for Counts III and IV.

Counsel appointed by the Nevada Commission on Judicial Discipline bears the burden of proving disciplinary justification by clear and convincing evidence, as outlined in Rule 25 of the Procedural Rules. The Nevada Supreme Court, in Goldman v. Nevada Commission on Judicial Discipline, clarified that appellate review of the commission's factual determinations is limited to assessing whether the evidence supports the commission's findings, without de novo review or disregard for conflicting evidence.

In the case involving Judge Mosley, evidence revealed that he issued letters on Eighth Judicial District Court letterhead to his son's school during a contentious custody battle with his ex-girlfriend, Terry Mosley. These letters requested that the school prevent Figliuzzi from visiting their child, Michael. Testimony indicated that school officials, Diane Reitz and Frank Cooper, were not swayed by Judge Mosley's position when processing the letters. The Commission concluded that Judge Mosley violated NCJC Canon 2B, which prohibits judges from allowing personal relationships to influence their judicial conduct or from using the prestige of their office for personal gain. As a disciplinary measure, Judge Mosley was ordered to attend an ethics course at the National Judicial College at his own expense.

The issue of judicial letterhead usage for personal matters is addressed for the first time by this court. While NCJC Canon 2B does not explicitly forbid such use, its commentary advises judges to avoid leveraging their judicial status for personal advantage, emphasizing that judicial letterhead should not be used in private matters.

Judge Mosley argues that he did not breach NCJC Canon 2B since the school principals were aware of his judicial position before he sent them letters on judicial letterhead. He claims that the principals did not grant him special treatment, thus he was not leveraging his position. The U.S. Supreme Court emphasizes that judges should be assessed by an objective standard, as perceptions of integrity can be clouded by public suspicion. A precedent from Alaska involved a justice using judicial stationery for personal matters, which was deemed problematic because it could mislead the public regarding the justice's ability to separate personal and judicial roles. Applying this objective reasonable person standard, evidence suggests that Judge Mosley's use of judicial letterhead to communicate with his son's school was an attempt to gain a personal advantage, violating NCJC Canon 2B.

Regarding Counts III and IV, District Judge John McGroarty recounted his involvement in a criminal case with Robert D'Amore, originally charged with burglary and theft, later negotiated to attempted theft with a restitution requirement of $10,000 monthly. McGroarty issued a bench warrant for D'Amore due to missed payments and hearings. Barbara Orcutt sought Judge Mosley's help for an own recognizance (OR) release for D'Amore, citing health concerns and lack of flight risk. Judge Mosley inquired with McGroarty about issuing the OR release, which McGroarty opposed due to the existing warrant but did not find the inquiry unethical. He acknowledged that Mosley could have independently issued the OR release. Additionally, investigative aide Peter Dustin testified that Judge Mosley contacted him regarding D'Amore, whom Dustin described as a con man, suggesting that D'Amore would likely reoffend if released.

Judge Mosley, with twenty-three years of experience, indicated he never contacted a district attorney regarding an OR release prior to granting one to D'Amore. District Attorney Alexandra Chrysanthis testified she would have objected had she been consulted. Mosley stated he decided to grant the OR release before speaking with Judge McGroarty, whom he contacted as a courtesy, receiving the response, "Mos, it's your call." After calling the jail, he issued the OR release for D'Amore. The Commission found Mosley violated NCJC Canons 1, 2, 2A, and 3B(7) by engaging in an ex parte communication regarding D'Amore's case and by ordering the OR release without notifying the district attorney's office, leading to a strongly worded censure.

In his defense, Mosley argued that the evidence of improper ex parte communication was not clear and claimed that such communications were authorized by law and common practice in the Eighth Judicial District. He asserted that it was customary for judges to respond to inquiries from various parties regarding OR releases, a practice that had been accepted by district attorneys for over thirty years. Testimony supported that many judges in Clark County engaged in similar ex parte communications, which were often necessary for law enforcement. While acknowledging the practice violated the Canons, as it created an appearance of favoritism, the flawed customs and the acquiescence of district attorneys led to the reversal of the Commission's findings against Judge Mosley regarding Counts III and IV.

Counts VI, VII, and VIII address issues of ex parte communication and delayed recusal involving Joseph McLaughlin's criminal case. McLaughlin faced serious charges, including first-degree kidnapping and robbery, and was represented by attorney Catherine Woolf. He ultimately pleaded guilty to lesser charges of robbery and burglary and agreed to cooperate as a witness against his co-defendant. In July 1997, the case was assigned to Judge Mosley. Woolf testified that in August 1997, McLaughlin expressed concerns about Figliuzzi living in his home and his dissatisfaction with Woolf's handling of her son’s custody situation with Judge Mosley. Woolf informed McLaughlin that cooperation in the child custody case could lead to Judge Mosley recusing himself from McLaughlin's criminal case, a situation Woolf was not pleased with due to Judge Mosley’s reputation for harsh sentencing.

Woolf met privately with Judge Mosley, without notifying the district attorney, where they discussed McLaughlin's plea and cooperation with authorities. Woolf noted that Judge Mosley did not indicate any intention to recuse himself during this meeting. A subsequent meeting occurred involving Judge Mosley, Woolf, and both McLaughlin and his wife, during which Judge Mosley inquired about the custody battle. Woolf reiterated that McLaughlin's case was assigned to Judge Mosley, a fact Lovell, Judge Mosley’s attorney, learned during this meeting. Afterward, the McLaughlins signed affidavits for the custody case and testified on October 10, 1997. Woolf had not been informed of any recusal prior to this date, while Judge Mosley's assistant, Lois Bazar, testified that he instructed her to recuse himself that morning. The formal recusal order was recorded later that day, after the McLaughlins had testified, which deviated from Judge Mosley’s usual practice of waiting until the next court date to recuse himself.

Judge Mosley was found to have violated multiple ethical canons, specifically NCJC Canon 3B(7), by engaging in ex parte meetings with Woolf alone and with both Woolf and the McLaughlins, as detailed in Counts VI and VII. Additionally, he breached NCJC Canons 1, 2, 2A, and 2B by failing to recuse himself from the McLaughlin case until the date of the custody hearing, October 10, 1997, as alleged in Count VIII. The Commission imposed a strongly worded censure for Count VI, required attendance at an ethics course for Count VII, and levied a $5,000 fine for Count VIII. Judge Mosley contended that his discussions did not constitute ex parte communications since the merits of the McLaughlin case were not discussed. However, Woolf testified that they did discuss key aspects of the case, including McLaughlin's cooperation with law enforcement, which should not have been addressed in an ex parte setting. 

The Commission noted that even if an emergency concerning his son's welfare was present, the conditions for permissible ex parte communications were not met, as substantive matters were discussed and the district attorney was not notified afterward. Evidence suggested that Woolf intended to gain a procedural advantage from these communications. Judge Mosley delayed recusal until after Mrs. McLaughlin had testified in his custody case, which could imply he sought to ensure favorable testimony before stepping down. His argument that recusal timing is flexible and contingent on a clear reason was rejected by the Commission.

Judge Mosley should have recused himself after receiving a call from Woolf about the McLaughlins' information regarding his custody case, as Mr. McLaughlin was assigned to his chambers for sentencing. The Wisconsin Supreme Court highlighted the risk that a judge’s failure to recuse could imply a lack of impartiality, undermining public confidence in the judiciary. The Commission correctly found that Judge Mosley violated NCJC Canons 1, 2, and 3B(7). Mosley contends that excluding his expert witness, Professor Stempel, violated his Due Process rights under both the Nevada and U.S. Constitutions. Stempel was supposed to offer a summary opinion on Mosley's ethical conduct. The Commission, applying Nevada rules of evidence, determined that expert assistance was unnecessary for their decision-making process regarding ethical violations. The discretion to admit expert testimony rests with the district court, which will not be disturbed unless there is a clear abuse. The Commission, as representatives of the public, is tasked with establishing ethical standards without reliance on expert witnesses, as their role is essential in determining ethical issues. While Mosley argued that other witnesses were allowed to provide expert opinions, the Commission found that the testimony could have been cumulative. Ultimately, the Commission did not abuse its discretion in excluding Mosley's expert witness.

During the evidentiary hearing, the Commission posed hypothetical questions to various witnesses, which Judge Mosley claims violated his due process rights due to the perceived lack of qualifications of those witnesses. The court disagreed, referencing NRS 50.265, which allows lay witness testimony to be based on rational perception and helpful in determining relevant facts. The Commission's questions were deemed pertinent to Judge Mosley’s defense that his actions aligned with common practices in the Eighth Judicial District, and the challenge to the qualifications of the witnesses was found to be unfounded. Both parties engaged in asking hypothetical questions without significant objections, affirming the Commission's discretion in this regard.

Regarding public statements made by the Commission, Judge Mosley argued that comments by Leonard Gang, the Executive Director of the Judicial Discipline Commission, violated CPR 7 by appearing partial. Gang stated in a newspaper article that he could not address Mosley's claims about the commission's constitutionality but noted that judicial discipline commissions are common and upheld across states. The court concluded that Gang's remarks merely addressed legal context without undermining the merits of Mosley's case, thus not violating due process.

The court affirmed the Commission’s findings that Judge Mosley violated several NCJC Canons (1, 2, 2A, 2B, and 3B(7)) in Counts I, II, VI, VII, and VIII, leading to disciplinary actions requiring him to attend an ethics course, pay a $5,000 fine, and receive censure. However, it reversed the findings of violations in Counts III and IV. Justices Agosti and Maupin concurred in part, with Maupin also dissenting on Count IV, expressing a different view on the discipline imposed for that count.

Count III addresses Judge Mosley's interactions with Barbara Orcutt, while Count IV pertains to the release of Robert D'Amore. In Clark County, magistrates and district judges have historically released individuals charged with nonviolent offenses based on ex parte communications, as allowed by NRS 178.4853. This practice has been tacitly accepted by the Clark County District Attorney's Office under various administrations. However, it was typically limited to cases not yet presented to a magistrate, with an understanding that releases would be denied if another judge was involved. Few abuses have been documented, and ex parte applications have often supported law enforcement efforts.

The communications between Orcutt and Mosley were deemed consistent with local practice, justifying the majority's reversal of discipline regarding Count III. However, Judge Mosley improperly released D'Amore, who had absconded after a guilty plea to a felony and was under a bench warrant. Judge McGroarty, the presiding judge, opposed D'Amore's release, which Mosley must have known. Evidence suggested Mosley contacted McGroarty merely as a formality, having already decided to release D'Amore, indicating favoritism and disregard for proper judicial process. This release did not align with accepted practices and violated Canon 2 of the Nevada Code of Judicial Conduct, warranting the Commission's disciplinary action under Count IV.

Judge Becker and Judge Puccinelli concurred, while Judge Rose partially agreed, dissenting on Count VII, which involved ex parte communications in Lovell's office. The record indicated that Woolf, during cross-examination, denied that any improper discussions occurred, stating that only the fact of McLaughlin's status as a defendant was mentioned. Thus, no evidence suggested that the merits of McLaughlin's case were discussed, undermining the allegations in Count VII.

Judge Mosley's communications with McLaughlin and Woolf primarily focused on Terry Figliuzzi's parenting and did not impact the substance of the prosecution against McLaughlin. Although it appears Judge Mosley may have sought favorable evidence for his custody case through his judicial role, this does not constitute a violation of the prohibition on ex parte communications or NCJC Canon 3(B)(7) regarding Count VII. Justice Gibbons dissents from the majority's decision to uphold the Nevada Commission on Judicial Discipline, arguing that the exclusion of evidence supporting an expert's opinion can be an abuse of discretion. In the case of Born v. Eisenman, Judge Mosley's refusal to allow a patient's expert to reference a relevant prior case was deemed an abuse of discretion after the jury ruled in favor of the surgeons. The current case involves Judge Mosley’s attempt to call Professor Jeffrey Stempel to testify on judicial ethics, which was denied by the Commission. Citing Pineda v. State, Gibbons asserts that defendants are entitled to present expert testimony that aids their defense theory, emphasizing that due process warrants the inclusion of Stempel's testimony. The majority's reliance on a Judicial Conduct Reporter article to deny this right is contested, with Gibbons arguing that Judge Mosley's procedural due process is paramount. Additionally, Gibbons notes three justifications for admitting expert testimony on judicial ethics: the inaccessibility of legal ethics law, the benefit of objectivity, and the value of cross-examination. The complexities surrounding legal ethics rules may necessitate expert insights, which are more reliable than informal research or non-scholarly advocacy.

The argument posits that expert testimony in cases before the Commission on Judicial Discipline is beneficial for achieving justice due to its objectivity. Expert witnesses, having no attorney-client relationship with the accused, do not tailor their opinions to fit a defense strategy, thus maintaining their credibility. Expert testimony is subject to cross-examination, allowing for rigorous scrutiny of the opinions presented, unlike written works that cannot be challenged in the same way. The text argues that denying Judge Mosley the right to present expert testimony constitutes an abuse of discretion and undermines his due process rights. The expert testimony could have been instrumental for the Commission's decision-making. The conclusion calls for the reversal of the Commission's decision and for the case to be remanded to consider Professor Stempel's testimony.

A judge must not use their judicial authority to promote personal or external interests, nor allow any perception of improper influence. According to NCJC Canon 3B(7), judges must grant every interested party in a proceeding, or their lawyers, the right to be heard and are prohibited from engaging in ex parte communications related to pending matters, except under certain conditions: 

1. Ex parte communications for scheduling or emergencies are permitted if no party gains an advantage, and all parties are promptly informed of the communication's substance.
2. Judges may seek advice from disinterested legal experts if parties are notified and given a chance to respond.
3. Consultation with court personnel or other judges for assistance in adjudicative duties is allowed.
4. Judges may confer with parties and their lawyers separately to mediate or settle disputes if there is mutual consent.
5. Ex parte communications are permissible when explicitly authorized by law.

The court noted its obligation to consider all circumstances in professional and judicial discipline matters. Although the Commission's findings were reversed in this case, judges in Clark County must comply with the new Rule 3.80 of the Eighth Judicial District Court's Rules of Practice. Furthermore, a judge has the discretion to disqualify themselves if they believe their integrity is compromised. Recent changes to the Eighth Judicial District's Rules clearly outline when judges may reduce bail without contacting the state.

A dissenting opinion advocates for the establishment of an "on-call" system to allow judges and deputy district attorneys to review informal bail reduction applications, facilitating broader access to bail reductions before initial court appearances. The discussion references the Proposed Eighth Judicial District Court Rule (EDCR 3.80) concerning release from custody or bail reduction, adopted on May 23, 2003. Legal precedents are cited, including *Matter of Varain*, highlighting that brief judicial communications with defendants do not impact the prosecution's merits. The excerpt also references scholarly discussions on the role of ethics expert witnesses in legal proceedings, particularly Professor Selinger's view that ethical concerns may outweigh justifications for their use, suggesting that ethics experts should act as advocates rather than expert witnesses to assess potential ethical violations.