                                                   130 Nev., Advance Opinion II
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                THE HONORABLE STEVEN E. JONES,                       No. 61902
                Petitioner,
                vs.
                NEVADA COMMISSION ON JUDICIAL
                DISCIPLINE,
                                                                     FILED
                Respondent.


                                                                    CH, F DEPUTY CLERK




                             Original petition for a writ of mandamus seeking relief in a
                judicial discipline proceeding.
                            Petition denied.



                Jimmerson Hansen, P.C., and James J. Jimmerson and James M.
                Jimmerson, Las Vegas,
                for Petitioner.

                David F. Sarnowski, Executive Director, and Brian R. Hutchins, Acting
                Executive Director, Nevada Commission on Judicial Discipline, Carson
                City,
                for Respondent.




                BEFORE THE COURT EN BANC.




SUPREME COURT
       OF
     NEVADA


(0) 1047A   e
                                                  OPINION
                By the Court, CHERRY, J.: 1
                            Petitioner, the Honorable Steven E. Jones, is a Nevada family
                court judge against whom respondent, the Nevada Commission on Judicial
                Discipline, is currently conducting disciplinary proceedings. Judge Jones
                filed this original petition for a writ of mandamus seeking to halt and
                dismiss the disciplinary proceedings against him because, he asserts, the
                Commission initiated the investigation based on a defective complaint,
                assigned an unfair or biased investigator who investigated issues outside
                of those indicated in the complaint, and is exercising its jurisdiction
                outside of the permissible time limits. Ultimately, we deny writ relief
                because most of these issues are not yet ripe for review. Nevertheless, in
                this opinion, we clarify that the investigatory stage of judicial discipline
                proceedings provides fewer due process protections than the adjudicatory
                stage. We also take this opportunity to address the reasoning behind our
                denial of Judge Jones' motion to seal these proceedings from public access.
                                                   FACTS
                            The Commission exercises original jurisdiction over the
                discipline of judges, which includes censure, removal, and involuntary
                retirement, among other forms of discipline provided for by statute. Nev.
                Const. art. 6, § 21(1) and (5); NRS 1.440 (exclusive jurisdiction); see, e.g.,




                      'The disciplinary proceeding that is the subject of this writ
                proceeding is separate and distinct from the proceeding that culminated in
                the Commission's February 3, 2014, Findings of Fact, Conclusions of Law
                and Imposition of Discipline, available at http://judicial.state.nv.us/
                Jones%20-%20Findings%20Conclusions%20Imposition%201206-218.pdf.

SUPREME COURT
         OF
      NEVADA
                                                      2
(0) 19,17A
                 NRS 1.4677 (forms of discipline). Before 2010, NRS 1.4655(1) provided
                 that the Commission could investigate a judge's conduct after receiving a
                 written, sworn complaint or any other type of information that reasonably
                 indicated that a judge may have committed misconduct or may be
                 incapacitated. 2 2009 Nev. Stat., ch. 312, § 21, at 1339-40. If the complaint
                 contained allegations that, if proven, would warrant discipline, the
                 Commission would assign an investigator to inquire into the allegations'
                 merits. NRS 1.4663(1). When the investigation resulted in insufficient
                 "reason to proceed," the complaint would be dismissed. NRS 1.4667. If
                 the results showed sufficient reason to proceed, in that there existed a
                 likelihood that the evidence would clearly and convincingly establish
                 grounds for discipline, the Commission would require the judge to respond
                 to the complaint. NRS 1.4667; NRS 1.467. The Commission would then
                 reconsider the matter in light of the judge's response and either dismiss
                 the complaint or direct a prosecuting attorney to file a formal statement of
                 charges, in prelude to a formal, public hearing on the charges, NRS 1.467,
                 at which the Commission would ultimately determine whether and how to
                 impose discipline. NRS 1.4673.
                             In August 2006, after reviewing police investigative reports
                 and newspaper articles concerning Judge Jones' alleged involvement in
                 two particular incidents of domestic battery on June 20 and 22, 2006, and
                 a resulting temporary protective order (TPO) violation, the Commission,


                       2 The judicial discipline provisions were substantially revised in
                 2009; however, the basic procedure remains the same. See 2009 Nev.
                 Stat., ch. 312, §§ 1-36, at 1336-50; id. § 35, at 1350. As the complaint at
                 issue here was filed in 2006, this opinion refers to the provisions in effect
                 at that time, unless otherwise stated.

SUPREME COURT
        OF
     NEVADA

                                                       3
(0) 1947A    e
                through its executive director, issued a verified statement of complaint
                against Judge Jones, alleging that he may have violated Canons 1, 2, and
                4 of the Nevada Code of Judicial Conduct.      See Procedural Rules of the
                Nevada Commission on Judicial Discipline (PRJDC) 10(2). In addition to
                the alleged domestic battery and TPO violation, the complaint detailed
                possible instances of interference with the resulting police investigation,
                misuse of court personnel to render personal services, and exploitation of
                the judicial position through involvement in a private corporation. The
                Commission assigned The Advantage Group to investigate the complaint.
                            Judge Jones was first alerted to the existence of an
                investigation in November 2010, when he was interviewed by The
                Advantage Group. He received a copy of the complaint in July 2012, along
                with a notice of proposed charges. In a letter attached to the complaint,
                the Commission explained that the complaint's main allegations had been
                dropped due to lack of clear and convincing evidence. Nevertheless, the
                Commission's letter continued, over the course of the investigation several
                other concerns developed, to which the Commission believed a response
                was warranted. In particular, the attached proposed charging document
                alleged that Judge Jones had, continually since approximately 1996 or
                1997, violated the Nevada Code of Judicial Conduct by persuading various
                individuals to invest large sums of money in unsound financial schemes,
                some involving undisclosed ex-felons. The proposed charging document
                also alleged that Judge Jones had engaged in and encouraged court
                employees to engage in other business dealings with convicted ex-felons,
                asked his bailiff to personally loan an ex-felon money on multiple
                occasions, and attempted to convince his bailiff that Judge Jones was
                entitled to a portion of his bailiffs disability retirement payout. Further,

SUPREME COURT
        OF
     NEVADA
                                                     4
(0) 1947A
                the proposed charging document alleged that Judge Jones was involved in
                an intimate relationship with an extern and later allowed her to appear in
                his courtroom without disclosing their prior relationship or recusing
                himself. Finally, the proposed charging document alleged that Judge
                Jones misappropriated marijuana evidence from an ongoing case. Outside
                of the first alleged unsound investment schemes, the asserted activities
                took place between 2002 and 2008.
                            Judge Jones, asserting that the investigation upon which the
                proposed charges are based resulted from a defective complaint, was
                conducted by a biased party in an untimely manner, and included an
                improper scope, now seeks this court's extraordinary intervention. The
                Commission has filed an answer, arguing that the matter is not now ripe
                for our consideration, and Judge Jones has filed a reply.
                                               DISCUSSION
                            This court has original jurisdiction to grant extraordinary writ
                relief, MountainView Hosp., Inc. v. Eighth Judicial Dist. Court, 128 Nev.
                          273 P.3d 861, 864 (2012); Nev. Const. art. 6, § 4, and "we are
                empowered to provide extraordinary relief with regard to Commission
                proceedings." Mosley v. Nev. Comm'n on Judicial Discipline,        117 Nev.
                371, 377, 22 P.3d 655, 658 (2001). Whether to consider a petition for
                extraordinary relief, however, is within our sole discretion.   State ex rel.
                Dep't of Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339
                (1983).
                            Here, Judge Jones seeks a writ of mandamus directing the
                Commission to take specific actions in accord with procedural aspects of
                the judicial discipline statutes concerning investigations and, ultimately,
                to dismiss the 2006 complaint filed against him. "A writ of mandamus is

SUPREME COURT
       OF
    NEVADA
                                                      5
0) 1947A    e
                available to compel the performance of an act that the law requires as a
                duty resulting from an office, trust, or station or to control an arbitrary or
                capricious exercise of discretion." Int? Game Tech., Inc. v. Second Judicial
                Din. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); see NRS 34.160.
                Writ relief is generally available only where there is no "plain, speedy and
                adequate remedy in the ordinary course of law." NRS 34.170;                see
                Halverson v. Sec'y of State, 124 Nev. 484, 487, 186 P.3d 893, 896 (2008).
                To the extent that Judge Jones is seeking prehearing relief, no adequate
                legal remedy exists, as an appeal is available only from an order of
                censure, removal, retirement, or other discipline entered after the formal
                hearing. NRAP 3D(c)(2); PRJDC 34(1). As the petitioner, however, it is
                Judge Jones' burden to demonstrate that this court's extraordinary,
                prehearing intervention is warranted. Pan v. Eighth Judicial Dist. Court,
                120 Nev. 222, 228, 88 P.3d 840, 844 (2004). Judge Jones has not met that
                burden here.
                Merits of the writ petition
                             In challenging the Commission's actions, Judge Jones argues
                that the Commission violated procedural statutes and rules during the
                disciplinary investigation when it (1) proceeded with the investigation
                despite a complaint built on hearsay and unreliable evidence, (2) assigned
                a biased investigator and failed to restrict the investigator to charges
                relating to the complaint, and (3) extended the investigation beyond the
                time frames set forth in NRS 1.4655 and NRS 1.4681, Judge Jones asserts
                that he has been prejudiced by the Commission's improper actions and
                inactions because he now faces allegations different from those originally
                presented in the 2006 complaint and he has lost virtually all opportunity
                to mount a defense, especially in regard to the new allegations stemming

SUPREME COURT
        OF
     NEVADA
                                                      6
(0) 1947A
                  from alleged conduct beginning many years ago. Judge Jones also claims
                  that the Commission arbitrarily and capriciously applied statutory and
                  rule-based procedural safeguards during the investigatory phase of the
                  judicial discipline proceeding and robbed him of his due process rights to
                  notice and an opportunity to be heard, thus impinging upon a protected
                  interest in his judicial office.
                                This court has recognized that "commissioned judges in this
                  state have a protected interest in their judicial offices under the
                  Fourteenth Amendment [of the United States Constitution]."         Mosley v.
                  Nev. Comm'n on Judicial Discipline, 117 Nev. 371, 378, 22 P.3d 655, 659
                  (2001). The Fourteenth Amendment provides that no state shall "deprive
                  any person of life, liberty, or property, without due process of law." U.S.
                  Const. amend. XIV, § 1; see also Nev. Const. art. 1, § 8(5) ("No person shall
                  be deprived of life, liberty, or property, without due process of law.").
                  Thus, when a judicial office is at stake, due process mandates "a fair trial
                  before a fair tribunal," Ivey v. Eighth Judicial Dist. Court, 129 Nev. ,
                     , 299 P.3d 354, 357 (2013), requiring, at least, notice of the charges and
                  an opportunity to be heard. See Callie v. Bowling, 123 Nev. 181, 183, 160
                  P.3d 878, 879 (2007).
                                We have recognized in another context, however, that due
                  process rights generally are not implicated during purely investigatory
                  proceedings.    Hernandez v. Bennett-Haron, 128 Nev. , 287 P.3d
                  305, 310-11 (2012) (citing Hannah v. Larche, 363 U.S. 420, 442 (1960)). In
                  Hernandez, highway patrol officers challenged the constitutionality of
                  county code provisions establishing coroner's inquests into officer-related
                  deaths, arguing in part that the provisions violated due process
                  guarantees.    Id. at , 287 P.3d at 308. In determining whether due

SUPREME COURT
      OF
    NEVADA
                                                        7
(0) 1947A mtedp
                    process guarantees were impacted, we considered the constitutional
                    interest at issue, the type of proceeding involved, and the proceeding's
                    potential impact on due process protections.   Id. After analyzing several
                    United States Supreme Court cases on the subject, which culminated in
                    the conclusion that merely investigatory proceedings do not adjudicate
                    legal rights and thus do not implicate due process protections, id. at ,
                    287 P.3d at 313, we concluded that coroner's inquests were merely
                    investigatory and thus did not trigger due process rights. Id. at , 287
                    P.3d at 314.
                                   The same result is warranted here. In Nevada, as elsewhere,
                    judicial discipline proceedings are divided into two distinct phases:
                    investigatory and adjudicatory. See NRS 1.4663 (governing investigations
                    of alleged misconduct to determine whether to issue a formal statement of
                    charges); NRS 1.4673 (governing hearings on formal statements of
                    charges, after which disciplinary actions may be imposed). See, e.g., In re
                    Flanagan, 690 A.2d 865, 871-72 (Conn. 1997); In re Henson, 913 So. 2d
                    579, 589 n.3 (Fla. 2005); In re Chrzanowski, 636 N.W.2d 758, 769 (Mich.
                    2001). During the investigatory proceedings, which are confidential, the
                    Commission reviews the complaint, appoints an investigator and considers
                    the investigator's report, and weighs the judge's response to any probable
                    cause determination; at each step, the Commission is required to
                    determine whether there exists sufficient cause to proceed to the next
                    stage or whether the complaint should be dismissed. Once a formal
                    statement of charges against the judge is filed, the adjudicatory
                    proceedings must be made open to the public, and the judge has every
                    opportunity afforded under the law to defend, including notice of the
                    charges and a formal hearing. NRS 1.4683(1); NRS 1.4687. It is during

SUPREME COURT
        OF
     NEVADA
                                                          8
(0) I94Th    es ,
                      this phase that the judge's legal rights are adjudicated, not before.
                      Accordingly, due process rights will generally not attach before a formal
                      statement of charges is filed.
                                  Other jurisdictions, distinguishing between the availability of
                      due process protections during an investigation and those that attach
                      when adjudication begins, have likewise determined that due process
                      protections do not attach until a judicial discipline proceeding has been
                      initiated. See In re Petition to Inspect Grand Jury Materials, 576 F. Supp.
                      1275, 1284 (S.D. Fla. 1983); Ryan v. Comm'n on Judicial Performance, 754
                      P.2d 724, 729 (Cal. 1988) (stating that while "a judge certainly has the
                      right to conduct a proper defense in disciplinary actions [,] . . . the right
                      attaches [only] once formal proceedings are instituted," not during the
                      preliminary investigation); Flanagan, 690 A.2d at 875 (citing other cases
                      holding the same). In rejecting the appellant's claimed due process right
                      to pre-probable-cause notice of the charges, the Connecticut Supreme
                      Court in In re Flanagan stated that "[a] judge is only entitled to
                      reasonable notice of the charges upon which he may be disciplined after
                      the review council has determined what those charges are." 690 A.2d at
                      875-76. 'Simply stated, a judge does not have the [constitutional] right to
                      defend against a proceeding that has not yet been brought."       Id. at 875
                      (alteration in original) (quoting Ryan, 754 P.2d at 747).
                                  We agree that due process rights generally do not attach
                      during the investigatory phase of judicial discipline proceedings, as this
                      will allow the investigation to proceed unimpeded until the Commission
                      has determined whether formal charges should be brought. Allowing for
                      unobstructed investigation furthers the Commission's goal of protecting
                      the integrity of the judiciary and safeguarding public confidence in the

SUPREME COURT
        OF
     NEVADA
                                                            9
(0) 1947A    48t97,
                 judicial branch but does not unduly burden the judge's right and ability to
                 defend. See NRS 1.462 (explaining that the purpose of judicial discipline
                 is "to preserve an independent and honorable judiciary"); Flanagan, 690
                 A.2d at 875 ("Two interests must be accommodated in judicial disciplinary
                 proceedings: (1) the review council must have broad authority to
                 investigate the conduct of our judges in order to maintain public
                 confidence in the judiciary; and (2) our judges must be afforded adequate
                 process before discipline is imposed to ensure that discipline is not
                 imposed on the basis of unfounded charges of misconduct."). Accordingly,
                 due process typically will not be implicated during the investigatory stage,
                 and Judge Jones' claimed procedural violations regarding the prehearing
                 complaint, investigation, and time limits must be viewed in this context.
                 As the California Supreme Court has recognized, absent due process
                 concerns, relief from any procedural violations occurring during the
                 investigatory stage may be obtained only by a showing of actual prejudice.
                 Ryan, 754 P.2d at 729.
                             The requisite showing of actual prejudice is not present in this
                 case. Both at the time the complaint was filed in 2006 and today, there is
                 no absolute prohibition against initiating an investigation based on
                 hearsay and inadmissible evidence included in the complaint. NRS
                 1.4655(1) (Commission can proceed on "ifinformation from any source and
                 in any format, from which the Commission may reasonably infer that the
                 justice or judge may have committed misconduct or be incapacitated"); see
                 Nev. Const. art. 6, § 21(9) (providing that "[a]ny matter relating to the
                 fitness of a justice or judge may be brought to the attention of the
                 Commission by any person or on the motion of the Commission"); NRS
                 1.4263 (as amended in 2009) (defining, currently, "complaint" as

SUPREME COURT
        OF
     NEVADA
                                                      10
(0) 1947A    e
                      "information in any form and from any source that alleges or implies
                      judicial misconduct or incapacity"). The important consideration is
                      whether the alleged misconduct is capable of proof. NRS 1.4663(1)
                      (requiring that the "complaint contain[ allegations which, if true, would
                      establish grounds for discipline"); see NRS 1.4657 and NRS 1.4663 (as
                      amended in 2009) (both requiring the Commission to• determine that the
                      "complaint alleges objectively verifiable evidence from which a reasonable
                      inference could be drawn that a judge committed misconduct or is
                      incapacitated" before initiating an investigation). Further, although
                      Judge Jones may now face different allegations from those asserted in
                      2006, judges generally have no right to avoid charges based on new
                      evidence discovered during the course of a legitimate investigation.
                      Flanagan, 690 A.2d at 875-76 (explaining that there exists no right during
                      the investigatory stage to notice of the charges or to limit the investigation
                      and charges to only those set forth in the complaint). Judge Jones has not
                      asserted or shown that the additional proposed charges were unfounded or
                      rendered with improper motive, and there is no indication that the
                      allegations were stated in a manner insufficient to allow Judge Jones to
                      respond. Although Judge Jones argues that he is unable to defend against
                      the proposed charges because the evidence has become unavailable and for
                      other reasons, he has not so demonstrated with specific facts, and
                      regardless, those inherently factual issues are not properly before us in
                      the first instance. See generally Millspa ugh v. Millspaugh, 96 Nev. 446,
                      448-49, 611 P.2d 201, 202 (1980) (stating that knowledge of the running of
                      the statute of limitations is "a question of fact to be determined by the jury
                      or trial court after a full hearing where . . . the facts are susceptible to
                      opposing inferences" (internal quotation omitted));        Round Hill Gen.

SUPREME COURT
        OF
     NEVADA
                                                            11
(0) I947A    a(f/D0
                 Improvement Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981)
                 (explaining that this court is ill-suited to resolve factual issues). Based on
                 Judge Jones' failure to demonstrate that writ relief is warranted, we
                 decline to address Judge Jones' procedural challenges to the Commission's
                 actions at this time. Essentially, this writ petition is premature. The
                 timing concerns and any other alleged prejudicial procedural violations
                 may be raised during any formal hearing on the charges and, if aggrieved
                 by the final decision, to this court on appeal.
                 Sealing of court records and documents
                             In arguing that this court's extraordinary intervention was
                 warranted at this stage in the proceedings, Judge Jones validly pointed
                 out that, to some extent, once formal charges are filed and the matter
                 made public, damage to his reputation cannot be undone. For this reason,
                 Judge Jones also moved to seal the court record in this case under Rule for
                 Sealing and Redacting Court Records (SRCR) 3. In so doing, he asserted
                 that the public's interest in open access to the courts should yield to the
                 compelling interests underpinning confidentiality before the Commission,
                 including but not limited to, meritless complaints, attracting and retaining
                 high-quality judicial personnel, preventing belligerent litigants from
                 harassing judges, and encouraging judges with valid complaints against
                 them to retire rather than risk a public hearing.
                             SRCR 3 provides procedures for sealing court records or
                 documents in civil cases. It states that when a motion is made to seal, the
                 information to be sealed remains confidential for a reasonable period until
                 the court determines whether appropriate grounds exist for sealing the
                 records. See SRCR 3. Courts may only seal their records or documents
                 when the sealing is "justified by identified compelling privacy or safety

SUPREME COURT
        OF
     NEVADA
                                                       12
(0) 1947A    e
                interests that outweigh the public interest in access to the court record."
                SRCR 3(4). 3 This presumption favoring public access to judicial records
                and documents is only overcome when the party requesting the sealing of
                a record or document demonstrates that "the public right of access is
                outweighed by a significant competing interest."      Howard v. State, 128
                Nev. „ 291 P.3d 137, 142 (2012) (discussing SRCR 3).
                            In an attempt to meet this burden, Judge Jones relied on the
                catchall provision that justifies sealing or redaction when a party
                identifies another "compelling circumstance." SRCR 3(4)(h). But we have
                already concluded that the statute recognizing the state's interest in the
                confidentiality of judicial disciplinary proceedings by or before the
                Commission does not apply to proceedings before this court. 4 Matter of
                Halverson, 123 Nev. 493, 507, 169 P.3d 1161, 1171 (2007) ("[ARJD 5,
                requiring confidentiality until the filing of a formal statement of charges]
                did not apply to proceedings in this court, particularly in light of NRS
                1.090's mandate that, with only limited exceptions, all courts of justice be



                      3 Identified compelling interests include statutory authorization by
                state or federal law; furthering a district court or justice court protective
                order or order striking material from the record; protecting public health
                and safety; protecting personal, medical, or tax information; protecting the
                confidentiality of settlement agreements; and protecting intellectual
                property or trade secrets. SRCR 3(4)(a)-(g).

                      4Administrative    and Procedural Rule for the Nevada Commission on
                Judicial Discipline (ARJD) 5 was repealed and superseded by NRS 1.4683.
                We held in Halverson that the provisions of NRS 1.4683 are "nearly
                identical" to the prior rules governing confidentiality of proceedings before
                the Commission, and "Steffen remains the controlling authority with
                respect to appeals from confidential Commission rulings." Halverson, 123
                Nev. at 508, 169 P.3d at 1171.

SUPREME COURT
        OF
     NEVADA
                                                     13
(0) 1947A
                  open to the public ...."); Attorney Gen. v. Steffen,   112 Nev. 369, 373-74,
                  915 P.2d 245, 248 (1996). Thus, "when a judge avails himself of the
                  traditionally public forum of this court and seeks to have all proceedings
                  against him by the Commission .. . dismissed," the "public policies to keep
                  government open and the public informed" prevail over "the state public
                  policy favoring confidentiality in initial judicial discipline proceedings."
                  Steffen, 112 Nev. at 373-74, 915 P.2d at 248. The public has a "right and
                  need. .. to know of such an extraordinary dispute in governmental
                  affairs." Id. at 374, 915 P.2d at 248. In addition, the threat of "secret
                  judicial proceedings" would undermine "public confidence in this court and
                  the judiciary," while "[o]penness promotes public understanding,
                  confidence, and acceptance of judicial processes and results." Id. at 374,
                  915 P.2d at 248-49. Accordingly, the motion to seal was denied, and the
                  proceedings before this court have been made publicly available.
                                                CONCLUSION
                              As discussed above, at this investigatory stage in the judicial
                  discipline proceedings below, Judge Jones has not demonstrated actual
                  prejudice stemming from any procedural or substantive violations
                  sufficient to warrant writ relief at this time, although he may be able to
                  establish such harm in the future. Because of the premature nature of




SUPREME COURT
      OF
    NEVADA

                                                       14
(0) 1947A aelm,
                this writ petition, we conclude that our extraordinary intervention is not
                warranted. After this case has developed factually, a future appeal from
                any final order of discipline will allow for meaningful review. Accordingly,
                we deny this petition for extraordinary writ relief.



                                                     Cherry




                                                                  I I WM.Emer. E/MI
                                           ,   CA.                                     J.
                Gibbons                                       Pickering


                                               J.
                Hardesty                                      Parraguirre:
                                                                 (7)

                            L4&                J.                                     , J.
                Douglas                                       Saitta




SUPREME COURT
        OF
     NEVADA
                                                      15
(C) I947A
