Conflicted court: Justices must recuse themselves from appeal

The Nevada Supreme Court will hear oral arguments in Las Vegas this morning on Wells Fargo Bank v. Renslow. Justices will be asked to rule on the constitutionality of Nevada’s Foreclosure Mediation Program, which is administered by the justices themselves.

The conflict of interest is obvious. Under Nevada’s Code of Judicial Conduct, a judge is instructed that he or she “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

“1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

“2) The judge knows that the judge … is: a) a party to the proceeding or an officer, director, general partner, managing member, or trustee of a party; … (or) c) a person who has more than a de minimis interest that could be substantially affected by the proceeding.”

Appearing on KSNV-TV’s “Face to Face” back in March, Chief Justice Nancy Saitta explained that under the legislation that created the program, “We were tasked with the Foreclosure Mediation Program, setting it up in our courtroom. And it’s a separate and distinct program from anything that the court or the justices or our central staff have to do with.”

Yet former Chief Justice James Hardesty, who testified before legislative committees on how to set up the Foreclosure Mediation Program and even contributed an amendment to the bill establishing the program, went on “Nevada NewsMakers” on Oct. 31, 2011, and bragged about how many people the program has helped, even claiming it’s probably the “most financially stable government program in the state.”

Justice Saitta herself, asked in a follow-up question last March whether the program is working, replied: “Well, I would like to think that it’s working. If you look at statistics, at least we are getting homeowners who are at risk of losing their homes into a program where someone’s listening, someone’s listening.”

So “we” – the justices of the high court – are getting people into the program, yet the justices need not recuse themselves because they’re not “parties” to this lawsuit, they have “no personal knowledge of facts that are in dispute in the proceeding,” they have “no more than a de minimis interest” in the proceeding, nor could the court, which collects fees for the mediation program, “be substantially affected by the proceeding.”

Victor Joecks, communications director for the Nevada Policy Research Institute, laments, “Now justices who administer the Foreclosure Mediation Program, who helped craft the original law, who implemented the program from scratch, who advertise the program on their website, who have frequently and publicly bragged about how many people the program has helped, and who collect he fees to run the program, are preparing to rule on whether their pet program is even constitutional.”

It’s not too late for the obviously conflicted justices to disqualify themselves and have another court hear the appeal. They should do just that this morning.