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Presently, judges in Nevada are selected through contested, non-partisan elections. However, earlier this year the Nevada Legislature approved a measure that could lead to an amendment to the Nevada Constitution modifying the prescribed manner of judicial selection. This proposed amendment to the Nevada Constitution would change the judicial selection process from competitive elections to a system of merit selection, sometimes referred to as the “Missouri Plan.” Senator William J. Raggio is the primary sponsor of the proposal, documented as Senate Joint Resolution No. 2 (“SJR2”).1

If the proposed amendment is ultimately passed, Nevada would join a minority of states, including a few of its neighbors (Arizona, Colorado and Utah), in adopting this system.2 SJR2 was supported by the State Bar, which argued that “[j]udicial campaigns required that candidates devote an increasing amount of time and resources to fundraising and campaigning and a decreasing amount of time to the increasing workload….”3 (SJR2 is not the first attempt to restructure the judicial selection process in Nevada. Similar proposals before the Legislature and electorate in past years were defeated in 1972 and 1998.4)

The proposal comes after the Los Angeles Times ran a series of articles titled “Juice vs. Justice” in June 2006, which outlined specific incidents of apparent corruption and impropriety among certain members of the Nevada judiciary. The article stated: “In Las Vegas, they are playing with a stacked judicial deck. Some judges routinely rule in cases involving friends, former clients, and business associates and favor lawyers who fill their campaign coffers.” As a consequence of the L.A. Times articles, and of the extensive media coverage of events surrounding a particular elected judge, Nevada judges and lawmakers have explored alternative institutional and structural changes to the judicial selection process— hoping these efforts will curb corruption and limit the appearance of conflicts of interest between campaigning judges and campaign contributing lawyers.

However, in order for SJR2 to become law, it will have to pass the unusual and rigorous requirements for constitutional amendment governed by Articles 16 and 18 of the Nevada Constitution.5 Article 18, Section 1, of the constitution authorizes the Nevada Legislature to initiate proposed constitutional amendments in the form of a joint resolution. In order for the joint resolution to pass, Article 16 requires a majority vote of the legislature in two consecutive legislative sessions. If the proposal survives a majority vote in both sessions, it is then submitted to the people for approval and ratifi cation by a majority vote.

SJR2 passed in the 2007 legislative session. If it passes in identical form in the 2009 session (the Nevada Legislature meets every other year), it must be placed on the ballot for the 2010 General Election. If voters then approve the proposed amendment, the language of SJR2 itself specifies that the new method of selecting judges will take effect, “commencing with a term of office that expires on or after December 31, 2011.” Therefore, the amendment could not take effect before 2012.

The Nevada Senate voted on the measure in April, but the vote was divided 15-6, with Senators Amodi, Beers, Cegavske, Heck, McGiness, and Schneider dissenting. Five of the six dissenters are Republicans; Senator Schneider being the only Democrat. Subsequent to the proposal passing in the Senate, SJR2 was transferred to the Assembly. It failed to pass by a vote of 9-5. However, the proposal was subsequently passed by a vote of 3011 on May 25, after it was amended to change the percentage of the vote that an incumbent judge would be required to receive to survive a retention election, from 60 percent to 55 percent.6 Operationally, SJR2 would amend the Nevada Constitution to provide for uncontested “yes or no” retention elections after an initial appointment of judges and justices by the governor. Specifically, under SJR2, when a vacancy occurs on the Nevada Supreme Court or a district court, the governor would appoint a judge from three candidates selected and recommended by the “Commission on Judicial Selection.” The governor would only be permitted to select a candidate recommended by the Commission. If he chooses to select none of the candidates offered by the Commission, the Commission must send him three more candidates; however, the governor is then limited to that second group of candidates and must make a selection from that slate. The Commission on Judicial Selection would be composed of nine individuals, five of whom are lawyers, namely (1) the chief justice (or an associate justice designated by the chief justice); (2) four members of the State Bar of Nevada selected by the State Bar; and (3) four non-lawyers, appointed by the governor.

Once the governor makes an appointment, the judge would then be subject to an initial term which expires on the first Monday of January, following the general election, occurring at least 12 months after the judge is appointed. Thereafter, if the judge wishes to serve an additional term, he or she must declare candidacy for a retention election. If the judge obtains the required 55 percent approval in the retention election, he or she would then serve a 6-year term. However, if the judge fails to declare candidacy, or does not obtain the required 55 percent in favor of retention, a vacancy is created at the end of the judge’s term, which must be filled once again through the new appointment process.

SJR2 would also require each judge who has declared his/her candidacy for a retention election to undergo a mandatory performance review. Accordingly, the measure contemplates the creation of the “Commission on Judicial Performance” to perform these reviews. This second Commission would be composed of five members, three of whom are lawyers, including (1) the chief justice of the supreme court (or an associate justice designated by the chief justice); (2) two members of the State Bar selected by the State Bar; and (3) two non-lawyers. The Commission would review the judge’s record and conduct at least one interview with the judge. At the conclusion of its review, information from the review, including a recommendation on whether the judge should be retained, would be released to the public, no later than six weeks before the election in which the judge is seeking retention.

The arguments for and against SJR2 are beyond the scope of this article.7 The measure’s legislative history details many of the rationales supporting the proposal as well as its weaknesses.8 Proponents of SJR2 argue that it will stifle corruption in the judiciary by preventing campaign contributions by lawyers as well as eliminating negative campaigning. Advocates of SJR2 also point out that judicial election campaigns are expensive and time consuming, resulting in judges wasting their time campaigning, rather than adjudicating their cases. Opponents of SJR2 contend that it will simply bring politics behind closed doors because the Commission on Judicial Selection may formulate their appointment decisions based on political persuasion or simple “good old boy” politicking. Indeed, they argue, there is nothing preventing the Commission on Judicial Selection from selecting judges based on improper motives. Also, given that five of the nine Commission members would be lawyers, there is concern that lawyers will too heavily influence the judicial selection process. Opponents also express fear that retention elections will not adequately address the problems associated with non-performing judges, because, historically, only a minute percentage of judges are ever defeated in retention elections, regardless of the judge’s performance.

Whether Nevada citizens will amend their constitution and allow a Commission to choose their judges remains to be seen.

* Matthew D. Saltzman is an attorney and a shareholder at Kolesar & Leatham, Chtd in Las Vegas, Nevada.

 

Endnotes

1 S.J. Res. 2, 2007 Leg., 74th Sess. (Nev. 2007).

2 According to the American Judicature Society, less than 25 states have adopted some form of the “Missouri Plan” http://www.judicialselection.us. See also Stephen B. Presser et. al., The Case for Judicial Appointments, The Federalist Society “White Papers,” available at http://www.fed-soc.org/publications/pubID.89/pub_detail.asp. and Jan Witold Baran, Judicial Elections: Changes and Challenges, 42 AJA Court Review 16 (January 2007), available at http://www.wileyrein.com/docs/publications/12926.pdf.

3 Nevada State Bar Website, State Bar Supports Senate Joint Resolution No. 2, available at http://www.nvbar.org/pdf/sjr2whitepaper.pdf.

4 See Minutes of the Senate Committee on Judiciary, S.J. Res. 2, 2007 Leg., 74th Sess. (Nev. 2007) (statement of Sen. William Raggio on March 8, 2007).

5 Nev. Const. art. 16 and art. 18, § 1.

6 See S.J. Res. 2, 2007 Leg., 74th Sess. (Nev. 2007) (Amendment No. 984).

7 For a more thorough analysis see Presser, supra note 2; Michael DeBow et. al., The Case for Partisan Judicial Elections, Federalist Society “White Papers,” available at http://www.fed-soc.org/ publications/pubID.90/pub_detail.asp.

8 See generally, Minutes of the Senate Committee on Judiciary, S.J. Res. 2, 2007 Leg., 74th Sess. (Nev. 2007). 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].