State Bar of Nevada v. Claiborne

*240 Gunderson, C. J.,

concurring:

I applaud our brother Steffen’s conscientious and scholarly effort to provide for history an organized and documented recitation of the sequence of facts involved in the years-long pursuit of Judge Claiborne, the prosecutions of Judge Claiborne and various others, and the eventual conviction and impeachment of Judge Claiborne himself.

Nonetheless, this court cannot hope to prove — by hundreds of citations to the many thousands of pages contained in the record before us — that we have arrived at the final, complete, and ultimate “truth” concerning the Claiborne saga. Nor can we hope to validate, to the satisfaction of everyone, that we are “correct” in deciding that the 71-year-old respondent has at long last suffered enough. I would hope, however, that through Justice Steffen’s careful and measured exposition of the historical background, it will be demonstrated, to open-minded folk at least, that there are principled bases — both in fact and in law — for our conclusion that he should not be punished further.

There is a venerable allegorical tale about three sightless mendicants who sensed an elephant passing by them, and who each reached out a hand and touched a different part of his anatomy. One beggar, who contacted the pachyderm’s leg, pronounced it confidently to be a tree. Another, who encountered the beast’s side, felt himself without question to be facing a wall. And the third, who grasped the animal’s trunk, believed beyond any doubt that he had taken hold of a great snake. Each stated his own view with certitude, and wondered what evil demons had possessed his fellows and impelled them to announce their obviously false and groundless claims. A heated dispute ensued between the beggars. All accused the others of being fools and liars; no agreement was ever reached.

As experienced by many, discussions of the Claiborne case almost certainly will be destined for a similar fate. The pursuit, the trials, the conviction, and the impeachment of Judge Claiborne has generated an elephantine body of data, from which diverse inferences and conclusions can be drawn — perhaps even by someone who carefully evaluates the data. And, although most of those data are available in the huge record lodged with this court’s clerk here in Carson City, the public neither has any practical access to the record, nor the time and training to sift and weigh its contents. One might argue that, in the interest of our country, the press as the public’s surrogate should undertake to analyze the record carefully on behalf of the citizenry. Certainly, as Justice Steffen’s efforts demonstrate, its contents reveal a tale— indeed, several tales — worth telling.

*241 I am informed by this court’s staff, however, that except for the few token passing glances, no one from outside the court-journalist, lawyer, or lay person — has sought to look at the record at all. There are those who justify their unwillingness to address or assess the facts by professing to believe — notwithstanding the fact that Judge Claiborne was wrongly pursued for years on a series of baseless charges — that the only fact now of importance is that the government ultimately managed to convict him, on very tenuous evidence, of filing false tax returns. Well, let anyone who so desires start and end his or her personal thought processes with that one fact. If the pachyderm’s tail — the conviction — is all such persons wish to consider, so be it! I will concede such persons the right to their opinions — although, as Bernard Baruch once opined, I tend to think no one is entitled to be wrong or ignorant about the facts.

In regard to such persons’ notions of what the law should be, I can only respond — based on the authorities cited in our brother Steffen’s opinion — that under the established law of this state, and of many other jurisdictions for that matter, our court clearly has had a more expansive and more difficult duty to fulfill than merely to notice that Judge Claiborne was ultimately convicted of a federal offense. And it does seem to me, frankly — after so many laws and rules have been ignored and altered throughout the federal system in the long process of achieving Judge Claiborne’s conviction and impeachment — that the man should at least be entitled now to have this court adhere with fidelity to our prior precedents: precedents which clearly dictate that we should evaluate all mitigating factors in the course of deciding whether or not, as a further and collateral consequence of his conviction, to strip away this elderly man’s only remaining means of earning a livelihood.

If each member of this court were to set forth all of his thoughts about this case, I think we would probably quadruple the length of Justice Steffen’s opinion. I, for example, am just as astounded as the Reno Gazette-Journal has been over the bargain government agents struck with a multiply-convicted brothel owner, and I hereby adopt that newspaper’s comments by reference. See Reno Gazette-Journal, June 29, 1984, Conforte Reels in Some Mighty Big Suckers, at 21 A. I consider the editorial just cited to be as relevant today as when it was written, because the Gazette-Journal set forth a very cogent picture of how and why the prosecution of Judge Claiborne was initiated and pursued. In the crucial area covered by the editorial, I could not present my thoughts nearly so lucidly, although I would attempt to be less strident. The Gazette-Journal stated:

*242 The Justice Department and the FBI were so incensed at Judge Claiborne that the need for revenge blinded them to everything but one burning desire. The federal government could not rest after Claiborne denounced its Strike Force lawyers as “rotten bastards” and “crooks and liars.” It could not bear Claiborne’s other insinuations without retaliating.

So it dug and dug, and when Conforte put out his bait, the government swallowed it right up to the fishing pole.

I have discovered nothing in the record that does not support the Gazette-Journal’s further observation that agents of the government were “too busy with retaliation to bother with facts.” However, I would not — as the Gazette-Journal seems to— condemn all representatives of the Justice Department and the FBI. I believe that the vendetta the newspaper described was pursued by only a limited number of agents, one of whom (Yablonsky) has since exited both his office and Nevada under a cloud of charges that related to misuse of his office and to apparent expropriation of a large sum of money belonging to a bank. As to other dubious prosecutorial behavior that has been revealed — for just one example, the persecution of respected Nevada IRS Director Gerald Swanson — I join Justice Steffen in hoping the same did not result from a knowing vendetta by the Justice Department or FBI, but from the indiscretions of a small group of people. I believe the management of the Gazette-Journal must understand the reason that better men, higher in government, tolerated the abuses was because the targeted judge had traversed the important principle of political science that the Gazette-Journal implicitly recognized in its editorial. That is, if members of a group are criticized and embarrassed,' cohesion tends to develop among all of its members, and this tends to be particularly true when the criticism is harsh and directed toward the group as a whole.

In any case, in our brother Steffen’s effort to apply the law to the evidence in the record, he has alluded to the foregoing and to most of the other significant facts and ideas that have occurred to me while studying this record. Also, to the extent they have relevance to the case before us, Justice Steffen has touched upon the more important considerations which repel certain unfair allegations anonymous “sources” have tendered to the media concerning procedural aspects of the handling of this case-allegations that never have been raised as issues by Bar Counsel — but which the “sources,” by distorting facts, have attempted to convince the media should be deemed burning concerns nonetheless.

*243 As tempted as I am to do so, I will therefore not enlarge extensively upon Justice Steffen's work in order to repel spurious non-issues which have been raised to the press by “bar sources” but never by Bar Counsel. Issues not preserved for our consideration, either by objection or by motion of counsel, are not normally considered by this court. 1 Thus, the attacks launched through the media by anonymous “bar sources,” which concern notions never tendered to this court as issues by Bar Counsel, either contemporaneously or at all, should be considered no proper part of the case before us.

Before concluding, I want to mention that I have now served nearly 18 years on this court, which is vested with the solemn task of providing a final resolution for the most hotly debated issues which arise in our courts. Members of this court now must gird themselves to decide more than four cases per judicial day. This does not leave unlimited time to reflect. This court is no longer the relaxed, contemplative environment law students envision when they think of O. W. Holmes, Jr., and Learned Hand, and, to anyone who suggests our decisions are sometimes flawed by the imperatives of haste, I must acknowledge my fear that this is true. I do not believe such a thing occurred in the instant case, however.

In the time I have served here, I have participated in the determination of over 12,000 cases, involving some 30-thousand or so litigants plus their attorneys. For every successful litigant, there is a loser. In the nature of things, at least half or more of them must go away dissatisfied with our judgments — sometimes desperately so. And, in cases with a high public profile, such as this one, the number of the general public who will be disappointed, disgruntled, or incensed necessarily increases quite markedly. In my time, few matters have possessed as much potential for sharply dividing public opinion as the case before us. Unfortunately, in matters as controversial as this one, citizens who find their wishes have not prevailed tend to vent their frustrations in personal, ad hominem attacks against this court.

*244 As one example of this kind of reaction, I wish to note that, apparently on the basis of anonymous sources, who could have nothing substantial to back up their claims, it has repeatedly been printed as a fact that I am a “close friend” of Judge Claiborne. Without belaboring the point, I believe such an appellation totally mischaracterizes my past associations with the respondent herein. The Recorder, a San Francisco legal newspaper which has reported on this matter with more objectivity than some, quoted legal ethicist Charles W. Wolfram, a Cornell University law professor, as characterizing my acquaintance with Judge Claiborne as “not shocking at all and almost to be expected in such a small legal community — especially when both Gunderson and Claiborne are two of its best known figures.” The Recorder, Apr. 4, 1988, at 18. In any case, Bar Counsel knew that I believed I should not disqualify myself, and he never saw fit to raise the question by tendering any motion for my disqualification, in the manner provided by law.

In my view, I was not disqualified to sit either because of my Active “closeness” to Judge Claiborne, or because I had testified under subpoena as a fact witness in his first trial, about matters which later neither remained at issue nor were subject to any question. Obviously, I could have taken the easy way out by disqualifying myself. But under Nevada law, I had a positive obligation not to disqualify myself as to matters concerning which I did not believe myself disqualified. Now, of course, a judge’s own views on the subject of his disqualification are not the final authority. Under Nevada statutes, counsel for either side may question the judge’s assessment of such an issue by formal motion. If Bar Counsel had done so, of course, I would have been afforded a chance to present my views in a public hearing, held openly pursuant to NRS 1.225(4). No motion for disqualification has ever been filed. 2

Again, another media outlet has printed speculations— altogether without basis and contrary to fact — that this court has *245 been “dragging its feet” in regard to producing an opinion in this matter. Quite to the contrary, as I believe Justice Steffen’s opinion makes obvious, we have given a maximum effort and priority to trying to satisfy the demands of history for a full and documented analysis of the pertinent facts and the relevant law. The problem in formulating an opinion in this matter has not been that supporting data are sparse, as it has been hypothesized, but that they are so many.

And to take a final example, another media outlet has gone so far as to suggest to its readers — without any facts to justify the notion, of course — that the members of this court perhaps think of Harry Claiborne as a “hero.” Well, I do not regard Judge Claiborne as a hero; nor do I know anyone on this court who does. Certainly, Judge Claiborne acted precipitously by the manner in which he retaliated verbally against his tormentors; he was at least negligent in handling his personal affairs; he thereby left himself vulnerable — and he has paid a terrible price for these lapses.

Yet, while I certainly would not seek to tender Judge Claiborne to the world as a hero, I will suggest that if the man had been a quitter — had he capitulated, “rolled over” as the saying goes in courthouse circles — so that the background facts of his pursuit and prosecution remained forever obscured, it could have been extremely unfortunate for the American bench and bar. Indeed, it could have been most unfortunate for America. One of the greatest bulwarks for freedom in this country is our independent, life-tenured federal judiciary. It is vitally important, therefore, for the notion never to gain credence that a United States District Court judge can easily be targeted, discredited and destroyed. Whenever such an effort to discredit and destroy a federal judge is undertaken, I think it is essential that any suspect facts concerning the undertaking shall be made known. Hence, through Judge Claiborne’s stubbornness — I will not say whether his resistance should be called courage — I suggest that he has impelled, and is impelling, an important examination of the processes by which his indictment, conviction and impeachment were achieved.

While I suppose anonymous “sources” may castigate me for even tendering it, I will close by offering the idea that, because the independence of the federal judiciary is so important, it may be fortunate for our country’s system of checks and balances that the targeting and pursuit of the United States District Court judge here in question has not ended with his total annihilation. There is no doubt whatever that the pursuit began with a fixed purpose— but without any evidence whatever — that the United States District Court judge should be destroyed. The pursuit was totally goal-oriented toward that end. The notion of tax charges had not *246 even been dreamed of, when the effort began to find something to justify a prosecution, any prosecution!

And when the pursuit ended, it did not culminate with any clear affirmation of the premise on which it started — namely, that the United States District Court judge was corrupt — but, rather, it ended with a collection of data that, as Senator Orrin Hatch cogently argued, is more consistent with a finding of mere negligence than with any inference of criminal culpability. In these circumstances, I concur in the majority’s conclusion that the final denouement of this unfortunate episode in American history should not be the total and complete destruction of the judge as a human being and as a productive citizen.

See Trustees, Carpenters v. Better Building Co., 101 Nev. 742, 743 , 710 P.2d 1379, 1381 (1985) (in absence of objection, point not considered on appeal); Whalen v. State of Nevada, 100 Nev. 192, 194 , 679 P.2d 248, 250 (1984) (objection to allegedly incompetent evidence is necessary, or court will accept same as admissible); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52 , 623 P.2d 981, 983 (1981) (point not contemporaneously urged is deemed waived); Diversified Capital v. City of N. Las Vegas, 95 Nev. 15 , 19 n.4, 590 P.2d 146 , 148 n.4 (1979) (appellant without standing to assert master’s failure to make a record, since no request made); Auto Fair, Inc. v. Spiegelman, 92 Nev. 656, 659 , 557 P.2d 273, 275 (1976) (absent objection to testimony, point not later considered by this court).

In this regard, I refer particularly to the case of Ham v. District Court, 93 Nev. 409 , 566 P.2d 420 (1977), in which the Supreme Court of Nevada issued a writ of prohibition to prevent a judge from disqualifying himself voluntarily in a case when, in so doing, he had stated he felt there was no cause for him to do so. In other words, this court held that a judge is not free to disqualify himself voluntarily, without good cause, thereby shirking over to another judge his own obligations in a contentious or difficult matter. If he does not deem himself disqualified, the judge has a duty under Nevada law to continue presiding, unless and until he is removed by other authority.

The aforedescribed concept, which has been called the “duty to sit doctrine,” is not peculiar to Nevada law. It is also recognized by federal courts and, in fact, Judge Walter Hoffman referred to the doctrine in denying requests for his disqualification. See, e.g., Rec. Pt. I, Vol. VI, Pleading No. 56.