BEFORE THE COMMISSION ON JUDICIAL DISCIPLINE
STATE OF NEVADA
In the Matter of the
HONORABLE FRANCES-ANN FINE,
District Judge, Family Court Division,
City of Las Vegas, County of Clark,
State of Nevada,
Case No. 9802-222
Respondent.
____________________________________)
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
DECISION AND ORDER
The above-entitled matter having come on for
hearing on September 2-3, 1998, before the NEVADA COMMISSION ON JUDICIAL
DISCIPLINE (hereinafter referred to as the COMMISSION), Frank J. Cremen, Esq.
appearing as Special Prosecutor for the State of Nevada Commission on Judicial
Discipline, and William B. Terry, Esq. appearing as attorney for the RESPONDENT.
After hearing the allegations and proofs of the
parties, the arguments of counsel and having considered the evidence introduced
by both parties and being fully advised, the COMMISSION states that this
proceeding was a Formal Hearing pursuant to the Administrative and Procedural
Rules applicable to the Nevada COMMISSION on Judicial Discipline for the
purposes of determining whether the acts and conduct of the RESPONDENT warrant
the imposition of discipline. The COMMISSION makes the following Findings of
Fact, Conclusions of Law and Decision of the COMMISSION in this matter.
Findings of Fact
The COMMISSION finds that the legal evidence
presented by the Special Prosecutor at the Formal Hearing clearly and
convincingly established each of the facts hereinafter set forth in Paragraphs 1
through 3 of these Findings of Facts:
1. RESPONDENT is a District Court Judge for the
County of Clark, State of Nevada, Family Division. That while serving in said
capacity in the case of McMonigle v. McMonigle, Case No. D124619,
RESPONDENT on or about March 28, 1993, participated in an ex parte telephone
conversation with Stephanie Crowley, an expert psychologist engaged by one of
the parties to the litigation; and thereafter on or about March 30, 1993,
directed her law clerk to have an ex parte telephone conversation with said
Stephanie Crowley. That on or about June 8, 1993, while presiding in this case,
RESPONDENT conducted an ex parte conference with William Sheldon of the Family
Mediation and Assessment Center, in which Dr. Lewis Etcoff and Stephanie Crowley
participated on the telephone.
2. That RESPONDENT, while serving in the
capacity of District Court Judge, Family Division in the case of Kinnard v.
Kinnard, Case No. D186967, appointed her first cousin to wit, Faith
Garfield, to serve as a mediator to the parties without having disclosed to the
parties or their counsel that the aforesaid Faith Garfield was her first cousin;
and thereafter on or about June 3, 1996, RESPONDENT scheduled an order to show
cause directed to the parties, why they should not be held in contempt for
having failed to pay Faith Garfield for her services.
3. That RESPONDENT, while serving in the
capacity of District Court Judge, Family Division in the case of Greisen v.
Greisen, Case No. D196398, met ex parte in chambers on or about February 24,
1996 with William Sheldon of the Family Mediation and Assessment Center and
discussed the results of his interview of the parties and the temporary custody
of the party's children.
From the above facts, the COMMISSION concludes:
Conclusions of Law
1. The COMMISSION unanimously concludes that
RESPONDENT's conduct as set forth in paragraph 1 of the Findings of Fact,
violated ARJD 11(3) and:
a. Canon 2A which provides, "A judge shall
respect and comply with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary";
and
b. Canon 3B(7) which provides, "A judge shall
accord to every person who has a legal interest in a proceeding, or that
person's lawyer, the right to be heard according to law. A judge shall not
initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties concerning
a pending or impending proceeding***."
2. The COMMISSION unanimously concludes that
RESPONDENT's conduct as set forth in paragraph 2 of the Findings of Fact,
violated ARJD 11(3) and:
a. Canon 2 which provides, "A judge shall avoid
impropriety and the appearance of impropriety in all of the judge's activities";
b. Canon 2A which provides, "A judge shall
respect and comply with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary";
and
c. Canon 3C(4) which provides in part that "A
judge shall avoid nepotism and favoritism."
3. The COMMISSION unanimously concludes that
RESPONDENT's conduct as set forth in paragraph 3 of the Findings of Fact
violated ARJD 11(3) and:
a. Canon 2 which provides, "A judge shall avoid
impropriety and the appearance of impropriety in all of the judge's activities";
b. Canon 2A which provides, "A judge shall
respect and comply with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary";
and
c. Canon 3B(7) which provides, "A judge shall
accord to every person who has a legal interest in a proceeding, or that
person's lawyer, the right to be heard according to law. A judge shall not
initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties concerning
a pending or impending proceeding***."
Decision
The COMMISSION having made and adopted the
foregoing Findings of Fact and Conclusions of Law deems it appropriate to set
forth in some detail the reasoning underlying its Decision.
As indicated above, with the exception of Count
2 of the Formal Statement of Charges, the COMMISSION has found by clear and
convincing evidence that each of the remaining allegations of conduct contained
in the Formal Statement of Charges has been established. In regard to Count 2,
the COMMISSION finds that the RESPONDENT did in fact engage in an ex parte
telephone conference with Faith Garfield and Dr. Marc Caplan, and met ex parte
in her chambers with Dr. Elizabeth Ritchitt, a psychologist who was thereafter
called as a witness at a hearing scheduled by the court. The evidence presented
at the Formal Hearing did not establish by the clear and convincing standard
imposed upon the COMMISSION by its Administrative and Procedural Rules that
substantive matters were discussed at either of the ex parte conferences set
forth above.
Although not charged in the Formal Statement of
Charges, two additional instances of deplorable ex parte conduct were clearly
and convincingly established by the evidence. The RESPONDENT testified that she
received a telephone call from Dr. Marc Caplan at approximately 11:00 p.m. at
her home during the month of November, 1996.(1)
Although the RESPONDENT at first testified that nothing of a substantive nature
was discussed, her later testimony clearly established that at least some
discussion of substantive matters occurred. The RESPONDENT testified that she
had told Dr. Caplan to put his concerns in a letter and that Dr. Caplan
responded "I am afraid if I put it in a letter to the parties or their lawyers,
that the mother will run. That's what he did say."(2)
Although RESPONDENT maintained that she did not
read Dr. Caplan's letter until she had a conference call with the attorneys, the
evidence in the case indicates otherwise. The evidence clearly and convincingly
establishes that after RESPONDENT engaged in the telephone conference with Dr.
Caplan and after she received Dr. Caplan's letter, she set a hearing in this
matter without informing the attorneys as to the purpose of the hearing. A
letter from Marshall Willick, Esq. to the judge, introduced into evidence as
Exhibit 10, indicates Mr. Willick inquired of the court as follows: "Since I was
not given any reason why this hearing was set or what the issues are, I am
requesting guidance on how I am to proceed***."(3)
The evidence clearly establishes therefore, that
Judge Fine received an ex parte telephone communication from Dr. Caplan and a
letter which she reviewed. Based upon these two ex parte contacts, the judge on
her own, set the matter for hearing. She directed her office to call Dr.
Ritchitt to be present at her chambers the morning of the hearing. Her office
informed Dr. Ritchitt that the judge was considering changing custody from the
mother to the father. The judge did in fact change the custody as her staff had
indicated to Dr. Ritchitt.
The evidence clearly and convincingly
establishes that in the same case, JUDGE FINE received an ex parte communication
in the form of a copy of a letter from Dr. Ritchitt which was addressed to one
of the parties, i.e., Mrs. Kinnard. Based upon statements contained in the
letter, RESPONDENT, without notifying counsel or the parties, entered an Order
directing that "the plaintiff, LAURA KINNARD, shall have no contact with the
parties [sic] minor child, Ryan, unless a therapist is present to monitor their
conversations***."(4) The court thus
significantly altered important parental rights of the mother without notice or
a hearing. Although the RESPONDENT attempts to maintain as a rationale for her
actions that she was acting in the best interest of the child, that the orders
she entered were only temporary, and that some of her actions were taken because
of emergency situations, the evidence does not support and the COMMISSION does
not accept the RESPONDENT's rationalization. Dr. Caplan's letter specifically
states that the facts set forth in his letter did not constitute an emergency,(5)
yet the judge without a motion being filed, set a hearing and changed custody of
the minor child.
The RESPONDENT's conduct evidences a pattern of
behavior which virtually eliminates the judicial process as established in the
State of Nevada and the United States of America. JUDGE FINE, using the
rationale of acting in the "best interest of the child," discarded her judicial
capacity and became an advocate. Utilizing rationales of expediency, emergency,
a heavy workload and claiming the orders entered were only temporary, she
dispensed with the presentation of evidence in court through testimony of
witnesses with the opportunity of cross-examination by attorneys. After holding
ex parte conferences by telephone and in person with various persons who were
performing services for the court, the judge made decisions on the ultimate
issue of the case and directly affected peoples lives. Based upon ex parte
communications she received, she set hearings without any motions being brought
by the attorneys. Indeed, as testified by Mr. Willick (attorney for Mrs. Kinnard),
he was being ordered to attend a hearing, the purpose of which was not disclosed
to him, nor was it disclosed to Mr. Kinnard. Although a judge must act in the
best interest of the child where custody of a child is at issue, he or she may
not dispense with the normal judicial process. Although RESPONDENT appears to
maintain that the process of receiving ex parte communications from various
therapists and counselors was endemic in Family Court in Clark County, the
testimony of LaDeana Gamble (Manager of the Family Mediation Center of the
Eighth Judicial District Court, Family Division) does not support this
conclusion. The testimony of Joyce Gallina (an employee of the Family Mediation
Center) called by the RESPONDENT, also does not support this contention.
The evidence clearly and convincingly
established that JUDGE FINE appointed her first cousin, Faith Garfield to serve
as a mediator in the case of Kinnard v. Kinnard. She did so without
having disclosed to the parties that Ms. Garfield was her cousin. Although the
judge maintains that her failure to advise counsel of the family relationship
was unintentional and that her motivation was to "get this family back - -
healed and back together," she acknowledged that "I didn't - - did not want them
to know there was a relationship."(6) After Ms.
Garfield was not paid by the parties, the judge on her own volition, set an
Order to Show Cause why they should not be held in contempt. RESPONDENT's
actions, although they may be well intentioned, create an appearance of
impropriety that can only serve to reduce public confidence in the integrity and
impartiality of the judiciary.
Order
The NEVADA COMMISSION ON JUDICIAL DISCIPLINE,
having made and adopted the foregoing Findings of Fact and Conclusions of Law
and having set forth its Decision above, hereby orders that the RESPONDENT, the
Honorable Frances-Ann Fine, District Court Judge for the Family Division of the
Eighth Judicial District Court, shall appear on October 15, 1998 at the hour of
2:00 p.m. at the Gaming Control Board conference room located at 555 E.
Washington Avenue, Suite 2600, Las Vegas, Nevada for the Imposition of
Discipline.
DATED this _______ day of October, 1998.
document signed by:
NEVADA COMMISSION ON DISCIPLINE
FRANK BRUSA, Chairman
BRENT ADAMS, Commissioner
STEVE CHAPPELL, Commissioner
MITCH COBEAGA, Commissioner
VALERIE COOKE, Commissioner
DIANA GLOMB, Commissioner
MICHAEL R. GRIFFIN, Commissioner
1.
See Formal Hearing transcript dated September 3, 1998, page 279.
