A.
Findings Of Fact
The Commission finds that the legal evidence presented by the Special
Prosecutor at the hearing clearly and convincingly established each of the
following fact:
1. That Respondent was, at all times applicable to the allegations
contained in the Formal Statement of Charges, a Justice of the Peace for
the East Fork Township, located in the County of Douglas, State of
Nevada and Respondent was a judicial officer whose conduct was subject
to the provisions of the Nevada Code of Judicial Conduct (hereinafter
the “Code”).
2. That the factual allegations contained in Charge 1 (which are
specifically referenced in Paragraph 1 of the Formal Statement of
Charges), with one minor exception noted below, regarding the
Respondent’s conduct during a May 21, 2001 hearing regarding a criminal
defendant, have been established by the required standard of proof of
clear and convincing evidence. The facts regarding alleged ex parte
contacts by the Respondent were not proven to the requisite level of
proof. All other allegations were proven to the requisite level of proof.
3. That the factual allegations contained in Charge 2 (which are
specifically referenced in Paragraph 2 of the Formal Statement of Charges)
regarding the Respondent’s conduct during a May 21, 2001 hearing
regarding a criminal defendant, have been established by the required
standard of proof.
B.
Conclusions of Law
The
Commission unanimously concludes that the proof suffices to prove the
Formal Statement of Charges, as follows:
As To Charge 1: A violation of Canons 2A, 3B(4) and 3B(7) of the
Code occurred regarding Charge 1 contained in Paragraph 1 of the Formal
Statement of Charges. The Commission also concludes that the proof
adduced did not prove a violation of Canon 3E(1) and that it was
not necessary for the Respondent to recuse himself.
As To Charge 2: A violation of Canons 2A, 3B(4) and 3B(7) of the
Code occurred regarding charge 2 contained in Paragraph 2 of the Formal
Statement of Charges. The Commission also concludes that the proof
adduced did not prove a violation of Canon 3E(1) and that it was
not necessary for the Respondent to recuse himself.
C.
Imposition of Discipline
With regard to Charges 1 and 2, for which the Commission found a
violation of the Code, the Commission concludes that the appropriate
discipline imposed under Commission Interim Rule 28 as to said charges
shall be as follows:. . .
By unanimous vote of the Commission, pursuant to Subsections
5(a) and (b) of Article 6, Section 21 of the Constitution of the State
of Nevada, NRS 1.4653 (2), and Commission Interim Rule 28, the
Respondent shall herewith receive a public reprimand.
Critically, as admitted by the Respondent, he did not allow defendant
Joseph Manoukian to be heard through his duly appointed representative,
attorney Michael Roeser, with regard to allegations that defendant
Manoukian had violated the terms of his probation. While there may well
have been evidence available and good factual and legal reasons to
revoke the defendant’s probation, the Respondent’s failure to ensure
that attorney Roeser was present either to contest the allegations or to
enter his client’s waiver of a hearing, denied the defendant critical
due process protections afforded by the law, and required by the Code of
Judicial Conduct. The Respondent’s own conduct demonstrates impatience
and intemperance that are unwarranted.
While the Respondent generally may be successful in
handling with so-called “tough love” minor offenders experiencing drug
problems, the law expects that imposition of punishment will be afforded
after the provision of minimal due process protections, including the
right to counsel where loss of liberty is a possibility. As a
defendant given the privilege of probation, Mr. Manoukian faced the prospect of several
months incarceration if the Respondent concluded that revocation of the
privilege was warranted. It was the Respondent’s responsibility, not
that of the defendant himself or the deputy district attorney, to ensure
that probation was revoked only after a fair hearing with counsel, not a
one-sided colloquy with an unrepresented litigant. Notwithstanding the
defendant’s previous failures to appear or tardiness for court, or both,
it was the Respondent’s duty to ensure that the defendant was
incarcerated permanently only after due process protections were
afforded. It is clear Mr. Manoukian had counsel appointed by the
Respondent when he entered his plea. It should have been equally clear
to the Respondent that the defendant’s advocate should have been
notified of the allegations and allowed to appear at the hearing on the
revocation issue before revocation was a fait accompli.
The Commission concludes that its finding that either charge is true
would warrant the same sanction as imposed for both charges in this
instance, i.e., a public reprimand, not a public censure.
Finally, the Commission concludes that no other sanction is warranted at
this time, and it expects that the Respondent will not allow similar
instances to occur in the future.
D. IT IS HEREBY ORDERED that the Clerk’s Certificate of Mailing,
found below, shall constitute notice of entry of this document
pursuant to Commission Interim Rule 34, and the clerk shall promptly serve
it on the counsel for the Respondent and the Special Prosecutor.
NOTICE is hereby tendered to the Special Prosecutor and the Respondent
that pursuant to NRAP 3D, an appeal may be taken by filing a notice of
appeal with the clerk of the Commission and serving such notice on the
prosecuting counsel within fifteen (15) days of service of this document
by the clerk of the Commission.
DATED this 18th day of September, 2003.
