Oath Sworn Answers Not Required

The Nevada Supreme Court granted in part a judge’s motion by holding that she need not respond to questions under oath in a pre-charges investigation

To be clear, a judge owes an ethical duty to “cooperate and be candid and honest” with the Commission. NCJC Rule 2.16(A). A judge must also “respond to [a] complaint in accordance with procedural rules adopted by the Commission.” NRS 1.4667(3). But nothing in our statutes or the Commission’s procedural rules authorize the Commission to demand that a judge answer questions under oath during the investigative phase, before a formal statement of charges has issued. We therefore grant Andress-Tobiasson’s request for a writ of prohibition to prevent the Commission from requiring her to answer questions under oath at this preadjudicative stage of the disciplinary process.

To the extent Andress-Tobiasson asks that we forbid the Commission from asking her questions before a formal statement of charges, regardless of an oath requirement, we deny her petition. The Commission concedes that a response to its questions is voluntary and that it will not apply Procedural Rule 12(3)’s penalty of default to AndressTobiasson for failure to answer the written questions. See Commission Procedural Rule 12(3) (“Failure of the [judge] to answer the complaint shall be deemed an admission that the facts alleged in the complaint are true and establish grounds for discipline.”). While Andress-Tobiasson still has ethical duties of honesty and cooperation, the lack of adjudicative consequences as to the charges under consideration for failing to respond to the questions alleviates the due process concerns amicus curiae suggest. See Jones, 130 Nev. at 105-06, 318 P.3d at 1083 (recognizing that there is an investigatory stage and an adjudicatory stage of judicial discipline proceedings and that “due process rights generally do not attach during the investigatory phase”). Furthermore, the complaint and the questions the Commission sent Andress-Tobiasson are not in the record and AndressTobiasson has not raised any other issues regarding the propriety of the specific questions posed to her. On this record, Andress-Tobiasson has not demonstrated that extraordinary relief is warranted to prevent the Commission from sending her written questions and asking her to voluntarily answer them during this stage of the disciplinary process.

The case is ANDRESS-TOBIASSON (MELANIE) VS. NEV. COMM’N ON JUDICIAL DISCIPLINE, decide May 10, 2019. (Mike Frisch)