Beyond the Sun
Like other judges in Nevada, justices of the peace are elected. But on many days the people presiding over Las Vegas Justice Court have not been put on those benches by voters.
Las Vegas’ 10 justices of the peace have been making regular use of a 1991 Nevada law that allows them to hand over their robes to lawyers who fill in for them. These substitutes are given the power to deal with civil disputes involving less than $10,000, oversee misdemeanor cases and deal with the early stages of felony cases — including deciding whether or not defendants will be bound over to District Court for trial on murder charges.
The elected judges do not account for their time off and keep no records of which temporary judges sit in for them. And, the justices have no formal system in place to evaluate the performances of their substitutes, who have received hundreds of thousands of taxpayer dollars over the years.
The only records available to track the use of the “pro tems,” as the temporary justices of the peace are called at the Regional Justice Center, are the vouchers they submit to get paid.
On their vouchers, the pro tems do not have to explain how or why they were called into service. And it wasn’t until the Sun inquired about the reporting procedures in March that court officials required the pro tems to start identifying the justices of the peace they temporarily replace on the bench.
Record-keeping related to the pro tems and the justices of the peace needs to be more transparent “to earn the public’s trust,” said Chuck Short, the courts’ chief executive. “Anytime you’re talking about public money, it’s important that you account for it in an appropriate manner. Any form of better record-keeping would be appropriate in this case.”
Short said he made recommendations to Chief Justice of the Peace Douglas Smith at the end of May and was told they were under consideration.
Both Smith and Justice of the Peace Tony Abbatangelo, who assumes Smith’s administrative duties in his absence, were on vacation late last week and could not be reached to comment on the recommendations. But in an interview before Short made the recommendations, Smith said the job of tracking the use of the pro tems should rest with court administrators. “I’m not a micromanager,” Smith said.
One of Short’s suggestions is that Justice Court simply follow the same procedures the Nevada Supreme Court uses to assign senior judges in District Court. When a district judge asks for a substitute, the judge must submit a form explaining why he is making the request and how long he expects to be gone. The judge also must explain what kind of case or cases the senior judge will be asked to handle, and he has to sign a statement acknowledging that he first attempted to transfer his court calendar to another full-time district judge.
According to William Dressel, president of the National Judicial College in Reno, courts across the country have been taking steps to improve accountability over the growing use of pro tems, which can be a “cost-effective method” of providing additional judges.
“You should have some accountability for days worked and some kind of evaluation as to how they are doing,” Dressel said.
The Clark County Commission, with the recommendation of the justices of the peace, approves a panel of 32 pro tems, all local lawyers, every two years. This past year, Senior District Judge Joseph Bonaventure also was allowed to fill in as a pro tem. Before they submit the list of names to the commission, the justices of the peace hold a closed personnel session to discuss the names.
Since the fiscal year ending in June 2005, the pro tems have logged 7,734 hours sitting in for justices of the peace, costing taxpayers $249,808, according to court records provided the Sun. Those figures include $11,346 Bonaventure received for the 170 hours he spent in Justice Court this past year.
As a senior judge, Bonaventure is paid considerably more to sit as a pro tem than the lawyers on the panel. Court officials said he receives a sliding hourly rate based on the salary range of the justices of the peace, which is from $128,700 to $153,449. His rate has averaged $66.50 an hour, records show. The County Commission gave the pro tem panel members a raise in January to just less than $37 an hour.
The money paid overall to the pro tems steadily increased each year from fiscal 2005 to 2007, records show. The amount more than doubled from $31,758 for 1,027 hours of work in 2005 to $74,539 for 2,409 hours in fiscal 2006. The use of pro tems reached its height in fiscal 2007, when Justice Court paid $74,907 for 2,413 hours.
Records provided by Justice Court last week show the figures, which include the work put in by Bonaventure, declined slightly in fiscal 2008, as the Sun made its inquiries, to $68,604 for 1,885 hours on the bench.
The pro tem costs have gone up, for the most part, while the number of justices of the peace has increased from eight in 2005 to 10 this year.
Justice Court does not keep a schedule of the days the judges plan to be on vacation. The justices of the peace get no set vacation time, but, as elected officials, they are entitled to take time off whenever they want. Some may be gone more than others — but the records don’t indicate how many days each justice of the peace is gone.
A Sun analysis of the pro tem payments found they averaged 24.8 days off a year from 2004 to 2008. The highest average, 33.5 days, occurred in fiscal 2006.
Those averages do not include 11 holidays the justices of the peace, as county employees, receive throughout the year. Those days off include all the typical ones plus some additional holidays that many in the private sector don’t get, such as Nevada Day (Oct. 31 or the weekday closest to it if the date falls on a weekend) and “Family Day,” the Friday after Thanksgiving.
State law gives the pro tems authority to do everything an elected justice of the peace does. But the Las Vegas justices of the peace voted not to let their substitutes sign criminal search warrants or perform marriages.
Still, the sweeping powers given to the pro tems — which include accepting criminal pleas, handing out sentences and issuing orders that affect the outcome of cases — have caused some concerns within the legal community over the years.
One of the pro tem concept’s biggest critics has been defense attorney Thomas Pitaro, who believes it violates the state’s constitution.
“The constitution provides for elected judges, and pro tems are not elected, so they shouldn’t be allowed to make substantive rulings that the constitution has reserved for elected judges answerable to the people,” Pitaro said.
“If a county commissioner can’t make a meeting, he doesn’t go get someone to be a county commissioner for the day.”
In 1995, enough concerns were raised for then-Clark County District Attorney Stewart Bell, now a retiring district judge, to seek a legal opinion from the Nevada attorney general’s office on the use of pro tems.
Deputy Attorney General Robert Auer endorsed the law, concluding that the Legislature has authority to create temporary judicial positions and that the 1991 statute creating the pro tems “must be read in harmony” with the constitution.
The law has not been successfully challenged since then.
Although they acknowledge they need to improve the efficiency of their performances on the bench, several justices of the peace said the pro tems provide a valuable public service by keeping the courts open for business whenever they take time off.
They said they look to handle each other’s court calendars before bringing in the temporary judges.
“We try to be cognizant of when one of us is gone, and we cover for each other,” Justice of the Peace Abbi Silver said.
Silver said that although she was on maternity leave from Aug. 28 to Dec. 1, she made a point of not taking any other days off during her pregnancy year.
Justice of the Peace Deborah Lippis said the amount of money being spent on pro tems is not out of line.
“If there was anybody abusing the system, we’d be all over them,” she said. “It just doesn’t happen.”
At the same time, Lippis and the other justices of the peace said they don’t keep track of who is called in to substitute for them. And they said they have no formal process for choosing their temporary replacements. Generally, that task is left to their assistants, they said.
Records show that about a dozen of the 32 pro tem panel members regularly appear for the justices of the peace.
Topping the list is Nathaniel Reed, a 79-year-old semiretired lawyer who has been paid $38,376 for the 1,231 hours he has put in on the bench since fiscal 2005.
“I do it to keep busy and stay active,” said Reed, who has been filling in for 15 years.
At $37 an hour, he said, the public is getting a bargain.
Robert J. Walsh, who received $27,854 for the 873 hours he has put in since fiscal 2006, said he doesn’t do it for the money either. He said he normally charges a client $400 an hour for his legal services.
“If you don’t do a good job, you’re not going to be sitting there very long,” he said. “The last thing the judges want is for them to come back from vacation or a seminar and have to clean up the mess you left.”
James Gubler, a retired chief deputy public defender, said his years of courthouse experience benefit the public whenever he substitutes on the bench. Since fiscal 2005, Gubler has received $30,260 for 950 hours of work.
“I’m just happy that I can do it,” he said.
Records show that Walsh and Gubler, by far, have made the most campaign contributions to the justices of the peace of all the pro tem panel members since 2004.
Walsh gave a total of $2,720 to eight justices of the peace during this time. Either Walsh or his law firm, Walsh & Friedman, gave $600 to James Bixler, $420 to Nancy Oesterle and $200 to Abbatangelo in 2004. His firm also donated $500 to Bill Jansen and $250 each to Lippis, Smith, Silver and Ann Zimmerman in 2006.
Gubler contributed a total of $2,250 in 2004 and 2006 to five justices of the peace. He gave Smith $500 and Jansen $250 in 2005 and $750 to Zimmerman, $500 to Lippis and $250 to Silver in 2006.
Walsh said he and his firm don’t play favorites when it comes to making campaign donations.
“Everybody asks us to contribute,” he said.
And Gubler said his donations have nothing to do with whether the justices of the peace call him for work, adding, “I’m glad to support them.”
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