On one of your Facebook advertisements, I saw an example of what the June 12, 2018 primary ballot will look like. The ballot identifies the candidates for Seat C on the Nevada Supreme Court as “non-partisan.” Are you registered to vote as a non-partisan?
No. That designation of “non-partisan” for each candidate is placed on the ballot because the law (NRS 293.0675 ) says so. That law states: Nonpartisan office” defined. “Nonpartisan office” means an elected office for which a political party may not nominate a candidate.
Why are the candidates for Nevada Supreme Court Justice not running as Democrats or Republicans?
Law in Nevada is made primarily by the state legislature. The Nevada legislature decided in 1917 that judges should not run for judge by identification with a political party. [Statutes of Nevada 1917, Chapter 148, p. 249, made all judicial offices “nonpartisan” (defining judicial officers and offices and school officers and offices, and declaring them nonpartisan)(codified at NEV. STAT. §§ 2568-2569 (1929))..] This law states:
NRS 293.195 Nonpartisan offices.
1. Judicial offices, school offices, the office of county sheriff, the Board of Regents of the University of Nevada, city and town officers, the State Board of Education and members of boards of hospital trustees of public hospitals are hereby designated nonpartisan offices.
2. No words designating the party affiliation of a candidate for nonpartisan offices may be printed upon the ballot.
If I ask you, can you tell me your political party so I am not entirely in the dark?
Yes. This is what the rule made by the Supreme Court says:
“Even though judges in Nevada are chosen by means of nonpartisan elections, judges and candidates for judicial office are occasionally asked at candidates’ forums to identify their political party affiliations. Rule 4.1(C)(2) permits a judge or candidate to identify his or her political party membership upon request. While judges and candidates may properly respond to questions regarding their party affiliation, it is impermissible in campaign materials for them to align themselves with a political party or to affiliate themselves with a political party. Nonetheless, judges and candidates may place their campaign materials on a table designated for the distribution of literature at any gathering regardless of whether the table is sponsored by a particular political party.”
Can I go on the county registrar’s voter website and find out to which political party you belong?
So the designation of “non-partisan” on the ballot does not mean that the candidates for Seat C are actually all “non-partisan,” and can be registered as voters affiliated with a political party?
Yes. The subject has been written about in the local newspaper: https://www.reviewjournal.com/news/news-columns/jane-ann-morrison/supreme-court-hopeful-tao-scrubs-ties-to-harry-reid/
Can a candidate for the Nevada Supreme Court advertise the fact that she or he is a Republican or Democrat so a voter can gauge what the candidate’s predispositions are? Somebody who supports President Trump might make an entirely different type of judge than one wanted to vote for Bernie Sanders.
Candidates for judicial office must follow rules made by the Supreme Court, and one of its rules states:
Rule 4.1. Political and Campaign Activities of Judges and Judicial Candidates in General.
(A) … a judge or a judicial candidate shall not:
(6) publicly identify himself or herself as a candidate of a political organization;
(7) seek, accept, or use endorsements or publicly stated support from a political organization;
The Supreme Court gets its power to decide this matter by the Nevada legislature and to make the rules. The court believes that judges are different. This summaries the “philosophy” behind the rule:
“Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure.”
Is Nevada like other states that elect judges?
Yes. Here are sources of more information on “non-partisan” elections of judges:
Different states have different rules.
Where can if find these rules?
Here is one source, “canons 4.1 and 4.2” and commentary, provide guidance on what a candidate can reveal to the voting public : https://www.leg.state.nv.us/courtrules/scr_cjc.html
Can these rules be changed?
Yes. If the law first made by the legislature in 1917 saying judges can’t be affiliated with “political parties” was changed, voters might find more out “leanings” of candidates for judge.
Why is this primary important?
There are 5 candidates running in addition to a “none of the above” option. The last time there was an election in which the people of Nevada had a voice in selecting a justice was 2008, when there were 4 candidates in addition to the none of the above option. The vote distribution in that primary election was:
Allf, Nancy Lee …………………….. 39,715
Chairez, Don ……………………….. 40,563
Pickering, Mary (Kris) …………… 45,983
Schumacher, Deborah ………… 42,886
None of these candidates ……. 12,155
About 172,00 votes were cast, and the top 2 went on to the general election. The ultimate winner went on as a justice voting to attempt to save the people’s right to “recall” judges as set out in the constitution. https://www.reviewjournal.com/local/north-las-vegas/elected-judges-cannot-be-recalled-nevada-high-court-rules/
As an “elected” justice, I will be be vigilent to ensure your constitutional rights are “secured” and not “reasoned” away at whim.
Mike Yarter, who helped launch Ramsey’s recall effort and is president of the North Las Vegas Police Officers Association, sided with the dissenting opinion.
“We’re not saying that a judge has to commit an ethics violation to be recalled,” he said. “What if we’re just not happy with the rulings from the bench? Voters have been handed a great disservice today. If judges are to be elected in Nevada, they should have to follow the same rules as everyone else who is elected to office. Otherwise, why are we electing judges?”
A word in favor of judicial elections
excerpt from ABA Journal
by Robert H Edmunds, Jr.
Elections give the judicial candidate numerous opportunities to discuss the rule of law and the role of the judiciary. Those who run know that, while many voters are unexpectedly well-informed about legal matters, many others have little sense of importance of judicial independence. Judicial forums, candidate rallies, newspaper interviews, all give the candidate the opportunity to explain what used to be taught in high school civics classes.
Judicial elections are hardly perfect. For an incumbent, seeking re-election is a second full-time job. If the elections are not publicly funded, raising money is a painful necessity. Outside funds can swamp anything that the candidate is able to raise, though that particular vulnerability exists under other systems. A tide of voter unrest can sweep out saints and sinners alike. Perhaps most pertinently, judicial elections tend to exclude qualified introverts who are uncomfortable in the rough-and-tumble of a campaign, as well as successful lawyers who are unwilling to sacrifice part of their practice and income during the months (and sometimes years) that a campaign requires.
Acknowledging the imperfections of judicial elections does not mean that they should be discarded in favor of other systems that have different weaknesses. Americans have always relied on voters. So far, that reliance has served us well. For that reason, I see a place for elections as one the valid methods of assuring that qualified men and women serve on the bench.
What is your opinion on RED FLAG laws (extreme risk protection laws which allow a judge to issue an order that enables law enforcement to confiscate guns from individuals deemed a risk)? As an appeals court judge, do you think that such a law would violate the Second Amendment if one was enacted in Nevada, when the legislature goes back into session in 2019?
As a candidate for a judicial office, I cannot make pledges in advance of a dispute which might telegraph how I would rule on a matter. I can only pledge be fair and impartial and not decide a question based upon my personal biases or prejudice. The law which mandates this states:
Rule 4.1. Political and Campaign Activities of Judges and Judicial Candidates in General.
(A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not: ***(13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
Right now, Nevada does not have such a law. However, many states are enacting such “RED FLAG” laws. Here is some background on existing state laws in other jurisdictions and what various states are considering: https://www.usatoday.com/story/news/politics/2018/03/25/red-flag-laws-allow-temporary-restrictions-access-guns-gain-momentum-across-nation/454395002/
If the Nevada legislature passed such law, it might come before the Nevada Supreme Court. I cannot predict how the issue would be framed by the parties and give a hypothetical answer in the abstract about whether I would agree with such a law or not. Whether such a state law would pass constitutional muster is complex, depending upon how it might be structured by the legislature. Some state laws permit out-and-out gun grabbing. Other variations permit a family member to go to court and petition the court for a gun seizure order based on the fear of a suicide attempt by the gun owner. Some variations are based upon “seize” first and then afford due process to the aggrieved gun owner later. These proposals are foreign to those of in the western part of the United States. Attitudes about guns vary greatly depending on the region of the country. In Las Vegas, there are 45 gun stores. In Manhattan, the last gun store closed 2 years ago. What a person like Mayor Bloomberg thinks is “reasonable” is not what a person born and raised in a western state, like Nevada, might think. Importing laws from other states is tricky.
What do you know about what Nevada law provides now in regards to the gun seizure laws and restrictions on them?
The Second Amendment’s protection allowing citizens “to keep and bear arms” has been held to a personal right to keep weapons for self-protection as part of the Bill of Rights which secures personal rights belonging to the people. If the enforcement of local or state law infringes on that personal right, the legislative body must demonstrate in court a “compelling state interest” for the enforcement of the law in question, and courts are to apply “strict scrutiny” when deciding if the law is valid. The judges in Heller v District of Columbia used that measure of “strict scrutiny” to strike down a gun seizure law.
In Nevada we have a state constitutional provision which is a version of the federal Second Amendment, and this gives a broad right of self-protection to Nevada citizens.The provision states:
“Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.” [Article 1 section 11 of the Nevada Constitution.] It became part of the Nevada Constitution in 1982.
The legislature has provided that, in the event that a gun is lawfully possessed but seized wrongly by an over-zealous official, the citizen has the guaranteed access to court to get it back and win attorney’s fees against the offending party who wrongfully seized the gun. This restricts the state of Nevada’s power to seize guns and provides a remedy in the event of a constitutional violation.
NRS 414.155 Limitations on emergency powers relating to firearms. Pursuant to Amendment II of the Constitution of the United States and Section 11 of Article 1 of the Constitution of the State of Nevada, and notwithstanding any other provision of law, the emergency powers conferred upon the Governor and upon the executive heads or governing bodies of the political subdivisions of this State must not be construed to allow:
1. The confiscation of a firearm from a person unless the person is:
(a) In unlawful possession of the firearm; or
(b) Unlawfully carrying the firearm; or
2. The imposition of additional restrictions as to the lawful possession, transfer, sale,
carrying, storage, display or use of:
(b) Ammunition; or
(c) Components of firearms or ammunition.
CHAPTER 414 – EMERGENCY MANAGEMENT
NRS 414.070 Additional powers of Governor during existence of state of emergency or declaration of disaster.
Sec. 11. Right to keep and bear arms; civil power supreme.
1. Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.
2. The military shall be subordinate to the civil power; No standing army shall be maintained by this State in time of peace, and in time of War, no appropriation for a standing army shall be for a longer time than two years.