Another Deadline Day

  • Law

  • Today is another deadline day in the legislature. Will your favorite bill make it to the next round? [TNI]
  • The US Supreme Court is going to decide whether a citizenship question can be added to the census. [KNPR]
  • Here is the Errico v. Stahl opinion being discussed in the comments yesterday.
  • And here is the Sitton v. State opinion with Judge Hardesty’s concurring page-long footnote listing all the cases where the Supreme Court found Judge Smith failed to follow well-established law. 
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Anonymous
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Anonymous
April 23, 2019 3:33 pm

I don't know if the Errico thing bothers me that much. Looked like the plaintiff was trying to shoehorn a bad set of facts into an inapplicable law by way of an extraordinary remedy that featured an incomplete record – terrible combination of factors if one wanted to break some kind of new legal ground.

Anonymous
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Anonymous
April 23, 2019 4:03 pm

In the Sitton V. State matter, it is highly unusual in that it rebukes the judge by name, rather than the usual generic references such as "the District Court", "the trial court", or whatever. It singles him out by name, and the whole tone is quite personal and vitriolic, which, again, is highly unusual for these opinions, which are usually quite detached and dispassionate.

And that would all be unusual enough, but then something else occurs which I have never seen before. The opinion then barbecues the trial judge for a series of other cases he mishandled, which are unconnected to the case at bar.

I'm no fan of the trial judge in question, but I wouldn't wish this kind of opinion on my first enemy. For many who serve on the bench, if this type of
inflamed opinion was issued against them, they would hide under the nearest rock, while they contemplate whether they could ever again hold their head high enough to resume their duties.

Fortunately, the judge in question, since he is retiring, probably has it in perspective and does not care nearly as much as he otherwise would. And why should he? I think he retires with two healthy pensions.

For all the criticism we make of judges(much of it quite deserved), they need to be quite thick skinned as their mistakes can become very public, usually to a lot greater degree than most attorney mishaps.

Some of them have the requisite thick skin, while others are quite thin-skinned and defensive. Before people put in for a judicial appointment, or run an election, they seldom ask themselves if they have the fortitude to accept very public rebukes, learn from it, and not be unduly defensive or easily hurt.

Anonymous
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Anonymous
April 23, 2019 4:10 pm

9:03-I assume you mean you wouldn't wish this kind of opinion on your "worst" enemy, not your "first" enemy.

Well, I wouldn't either, but, unfortunately this is a situation where the criticism, although admittedly unusually harsh, is quite warranted.

When dealing with case involving long imprisonment, or even death penalty, these types of glaring errors are quite disturbing. This is a judge with many years on two different courts, and who spent his whole attorney career in the Criminal Law realm. This all suggests he knew better. Even the State
was aware of these major errors that would pollute the record and were joining in with the requests of the defense–whether it be to sever the cases, avoid the line of questioning which improperly tends to identify the one defendant, etc.

Anonymous
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Anonymous
April 23, 2019 4:52 pm

After Judge Smith had his whole pension issue go up on appeal (and lose), the NVSC has viewed him with a skeptic lens. And once they knew he was retiring, i believe they finally let out their thoughts on a judge that caused them more work than any other judge due to simple failure to follow the law

Anonymous
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Anonymous
April 23, 2019 5:21 pm

9:03 and 9:10 make some valid points, but I think 9:52 succinctly distills precisely what is occurring here.

The NSC was put off by what they perceived as a pension grab, with double-dipping aspects. That soured them to this judge.

And then that was all compounded by all the legitimate appeals that were resulting from his rulings.

So, finally they let loose. Perhaps they would have held back a bit,and been a bit more circumspect with their language, had he intended to continue to serve on the bench for years to come. But since he was leaving, perhaps they thought this opinion was the appropriate retirement gift.

I agree with those who say they have never seen an opinion quite like it, as it is quite personal and singles him out by name. It's quite unique-and somewhat entertaining as well.

Anonymous
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Anonymous
April 23, 2019 6:50 pm
Reply to  Anonymous

The NSC didn't all sign off on this. Hardesty wrote separately and went off on Smith by himself.

Anonymous
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Anonymous
April 23, 2019 7:14 pm
Reply to  Anonymous

I don't think it was the pension issue that got them bent out of shape. Many judges before him have successfully done the same thing (e.g. Judge Teuton – currently collecting his $192k current salary + $199k pension; Michael Gibbons – $200k current salary + $165k pension). Additionally, it appears that 28 former judges collected their pensions while also getting paid as senior judges (also a form of double dipping).

The NSC spanked Judge Smith over the pension issue in their decision denying special dispensation for his late application. That decision alone probably cost him well in excess of 1M+ in lost benefits.

I doubt they were upset that he tried to "double dip" as that has long been pursued by many members of the judiciary. If anything, they may have been upset that he exposed the dirty secret of it's existence by screwing up his paperwork and then filing an appeal which forced a public opinion on the practice.

Anonymous
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Anonymous
April 23, 2019 5:23 pm

I have seen worse things said on here about a colleague of ours for no reason. I do not feel sorry for Rogue Fresh.

Anonymous
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Anonymous
April 23, 2019 5:24 pm

Dougie

Anonymous
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Anonymous
April 23, 2019 5:49 pm

10:23–certainly worse things are said about colleagues on this post and elsewhere.

But this was a Supreme Court opinion, and the tone, and approach, is in fact quite noteworthy

Anonymous
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Anonymous
April 23, 2019 5:50 pm

I hope you don't mind, but I'm making Rogue Fresh my new DJ name.

Anonymous
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Anonymous
April 23, 2019 6:08 pm
Reply to  Anonymous

I am glad my typo works for you.

Anonymous
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Anonymous
April 23, 2019 6:08 pm

10:50. You have our blessings. Since no one else has apparently laid claim to the moniker, you will be Rogue Fresh from this date forward.

Anonymous
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Anonymous
April 23, 2019 6:10 pm

I have a page limit question, when it is thirty pages or less, that means full 30 pages, right?

Anonymous
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Anonymous
April 23, 2019 9:05 pm
Reply to  Anonymous

It means you can do a full 30 pages or less.

Anonymous
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Anonymous
April 23, 2019 6:15 pm

I had awful things said about me by Bulls for conducting discovery. On her, not on me. Judges are so nasty now a days, I do not put any weight in the snarky and personal attacks by judges in this town.

Anonymous
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Anonymous
April 23, 2019 7:28 pm
Reply to  Anonymous

You must remember and consider that first and foremost the judges are human and are under a great deal of stress and pressure.

Many of the things that the judges snap at may be recurring problems they keep seeing over and over and over again. Many times they have tried repeatedly (possibly directed to other lawyers) to correct the problem but nothing seems to change with the same problem still recurring repeatedly (possibly with different attorneys). Eventually, the problem happens during a period of stress/pressure and becomes the straw that broke the camel's back causing the judge to snap at the current offender.

It may be the first time that the "victim" attorney committed the offense, but not the first time that the judge had to deal with it. While it may not be fair that the lawyer taking the brunt of the judge's response may have committed the offense for the first time and get the full force of the judge's pent-up frustration about the issue while others have gotten away with it for ages… that's human nature.

Timing is everything in life. If your going to do things that ultimately become a judge's pet peeve, do them early on before the frustration level builds and causes an eruption within the judge.

Anonymous
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Anonymous
April 23, 2019 8:30 pm
Reply to  Anonymous

Respectfully, disagree. The Canons require that a judicial officer preside with temperance and patience. If you are going to take the job, you don't get to have tantrums or belittle people. If you do, IMO, you are not fit to have the job. Take a break and gather yourself if you are experiencing stress or pressure. Justice Hardesty's concurring opinion is chickensh*t. There have been issues with Judge Smith for decades and nothing was ever done (including substantiated complaints filed with the Commission on Judicial Discipline for which Judge Smith signed Consent Orders). Actual people suffered under his whims and tax payers spent more money on re-trials. But to spit at his back as he is leaving seems an act of spiteful cowardice and to what end?

Anonymous
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Anonymous
April 23, 2019 8:31 pm
Reply to  Anonymous

12:28–I don't take issue with any of that, but I believe it conveniently ignores something really important.

Agreed that judges are entitled, like anyone else, to occasionally become aggravated and snappish, but when one applies for, or runs for, a judicial position, they are presumably experienced lawyers who should
recognize and embrace the following: a consistent, respectful decorum should be maintained to the greatest extent possible, and the fact that some attorneys will test a judge's patience with unnecessarily aggressive, and even ludicrous, arguments is not an excuse to consistently lose one's cool.

When one commits to become a judge, they are already well-aware that there are a fair number of attorneys who will either be aggressive to a fault, not know when to stop arguing, and/or who tend to advance preposterous arguments and excuses, and attempt to make them sound reasonable and acceptable.

When that happens, and it will with a fair degree of regularity, once the judge has heard enough, they should calmly indicate that argument is complete and issue their ruling. Good judges, after ruling, don't consistently get sucked into debates and challenges by the aggrieved attorney, demanding that the judge further justify their ruling, or trying to buffalo the judge to change their ruling.

So, I find the failure to realize all that, and to adjust one's demeanor accordingly, a major failing in some judges. In other words, if a judge proudly proclaims that their reputation is that they don't tolerate bullshit, I think good judges should be conditioned to tolerate a certain amount of bullshit without losing their cool. On a motion, give each side a few minutes to argue, then once argument is closed, rule, and don't get sucked back into it by one of the attorneys.

And a much bigger problem is that after those types of difficult lawyers induce certain judges to lose their cool, there is a residual impact, and such judge then demonstrates an abrupt demeanor to the next attorneys who present, even if those attorneys are very appropriate in their approach to the court.

Anonymous
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Anonymous
April 23, 2019 8:40 pm
Reply to  Anonymous

"But to spit at his back as he is leaving seems an act of spiteful cowardice and to what end?"

THIS.

If Judge Smith was so awful (and it appears he was), then why didn't you do anything sooner Justice Hardesty? His failures are obviously not a new revelation to you. The concurring opinion is gratuitous, spiteful and serves absolutely no purpose. Further, the fact that it's a concurring opinion that no other justices signed on to strongly suggests the other six justices thought the concurrence was at least an over-reach if not outright inappropriate.

Anonymous
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Anonymous
April 23, 2019 8:58 pm
Reply to  Anonymous

Nasty, self-righteous punk. That is Hardesty. A bully in the worst way, ironically in the same way that Smith occasionally would be. I only hope Judge Smith or others are waiting for Hardesty once he is off the bench and likewise no longer able to defend himself to give him the one-fingered salute Hardesty so deserves for the destruction to the judicial system that he has caused.

Anonymous
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Anonymous
April 23, 2019 9:20 pm
Reply to  Anonymous

Southern NV Judicial Discip from the North is a joke. They only go after certain judges, Smith being one of them.

Anonymous
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Anonymous
April 23, 2019 10:30 pm
Reply to  Anonymous

I agree with the posters on both sides of the Smith matter. Yes, Hardesty's concurring opinion was largely accurate,but,No,it was in no way necessary, productive, or appropriate.

So, I agree with the poster who says, why now?(and who also points out that no other justice joined in that concurring opinion, suggesting that they may have viewed it as unnecessary and inappropriate at best, and spiteful and counterproductive at worst).

I personally find Hardesty to be a very well-prepared and insightful jurist, which is admittedly an opinion which is not shared by anyone else who is posting. But there is also no blinking at the fact that he can be heavy-handed at times, and this time it even took a quite personal tone.

So, even though I generally like him as a jurist, I totally agree that this whole concurring opinion was way out of line.

The attack on Smith also included 86 million other instances where he screwed up. So, this concurring opinion essentially says, he really sucked in this case and we have remanded 86 million of his cases back to him, and here's the citations on those 86 million cases.

And that all means that there were 85,999,999 earlier opportunities to lower the boom on him, and to try to redirect and educate him while he was still on the bench, by taking this very harsh stance. And no one ever did–until the 86 millionth time, when he retiring and won't be around to commit any errors.

Anonymous
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Anonymous
April 23, 2019 6:17 pm

Bulla

Anonymous
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Anonymous
April 23, 2019 9:22 pm

I love Doug Smith. I don't give a shit what any of you say. He was a judge that tried to do the right thing as he saw it and damned the consequences. I always did well in front of him.

Anonymous
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Anonymous
April 23, 2019 11:51 pm
Reply to  Anonymous

I used to like Smith, but it became clear i did not have the right underwear for him….

Anonymous
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Anonymous
April 23, 2019 10:12 pm

Doesn't anybody else find it strange that Smith changed his mind about the severance because the Chief Judge told him to? See p. 2. of Order.

Anonymous
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Anonymous
April 23, 2019 10:41 pm

I agree with what 2:22 says, and it explains both why Smith is admired by certain attorneys, and also explains why he is reviled by others.

The "he does what's right" approach, even if it is inconsistent with the Law, will be applauded by those who wanted that "right"(but perhaps legally incorrect) approach, while that approach will be condemned by those who expect the law to be clearly adhered to.

Those with respect for the Law, and who want it adhered to, will consistently condemn the approach of a judge "who does what's right even if not supported by law" and will condemn such approach even when they get lucky, and prevail in the matter, because the judge merely doing what he wants to, and what he thinks is right, sometimes will actually match up with what the Law requires.

And these are lawyers who have integrity. They are content that they won, but distressed of how they won–i.e. the judge doing what he feels like this time just so happens to be consistent with the Law.

These attorneys recognize that more often than not, a judge ignoring the law to do what he/she thinks is right, will be inconsistent with the mandates of the Law.

Anonymous
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Anonymous
April 24, 2019 10:00 pm
Reply to  Anonymous

222pm Here. Personally, I CANNOT wait to get in front of him as a Senior Judge in Family Court.

Anonymous
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Anonymous
April 24, 2019 12:02 am

Are there any benefits of being a non-equity partner other than a bump in pay?

Anonymous
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Anonymous
April 24, 2019 2:08 am
Reply to  Anonymous

I am a non-equity "partner" and I didn't even get a bump in pay. The whole idea of non-equity "partners" is a farce. I am embarrassed by my honorary title. Did not ask for it.

Anonymous
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Anonymous
April 24, 2019 8:15 pm
Reply to  Anonymous

The only benefit is the perceived expertise that comes along with the title in the eyes of potential clients.

Dan
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Dan
April 24, 2019 10:40 pm
Reply to  Anonymous

This comment has been removed by the author.

Anonymous
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Anonymous
April 24, 2019 1:38 am

Assisted suicide bill died.

Anonymous
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Anonymous
April 24, 2019 1:44 am
Reply to  Anonymous

Horrible wording.