BEFORE THE NEVADA COMMISSION ON JUDICIAL, oP ED STATE OF NEVADA NOV 22 2007 °F RTTEER caseno. V}527 Inthe Matter of |THE HONORABLE Wiliam S. Potter, Eighth Judicial District Cour, Dept. M, Clark County, State of Nevada, Respondeat, CERTIFIED COPY OF FINDINGS OF FACT, CONCLUSIONS OF LAW AND. TMEOSITION OF DISCIPLINE Pursuant to Commission Procedural Rule 28, I hereby certify thatthe document attached hereto is true and correct copy of the FINDINGS OF FACT, CONCLUSIONS OF LAW AND IMPOSITION] OF DISCIPLINE filed with the Nevada Commission on Judicial Discipline on November 2, 2017 DATED this J2“éay of November, 2017 STATE OF NEVADA, COMMISSION ON JUDICIAL DISCIPLINE P.O. Box 48 {Carson City, NV 89702 (075) 687-4017 By: Lez Sy Tages ave te Hah onde gat nd he paper cans noe min conta fe costo However, this was a cll mater wherein Responded pysal resis 1 puive mess fran strony would ot arse Respondents "yes "no" queon nd, ths, the Cerison nd the handeaig tobe imprope 6vas handeuffed, Ms. Cramer noted that she was worried that she would got jail and concemed about ber lien, both of which impacted her ability to preset her client's ease. Throughout her testimony, Ms. Came was visibly upset. In fact, Ms. Cramer disclose that she sil as lot oF anxiety regarding this incident end that she no longer appears before Respondent. Ms. Cramer explained to the Commission that she Flt that she could not say anything during the etrng* ‘The vdeo ofthe Cramer matter was shown twice during the Commision hearing, and each time Respondent closed his eyes ashe listened to the video and acknowledged that the vide is terble and described his behavior as shor, rude and abesive, Respondent also made the following statements in reference to his behavior onthe video: “When I watch hat video, 1 cringe"; “My behaviors bad is unaceptable"; and “I allowed my emotions to become too involved”. When asked by one of the ‘Commissioners to define a “lly” Respondent replied“ think i you watch the video that you get asc of it" and agreed tht such behavior causes fer. Nevertheless, despite his admissions tothe contrary, Respondent still denied that his actions violated the Judicial Canoas. ‘The Respondents actions in ling to acord Ms. Cramer the sight tobe heard, by sepetedly sing intemperate language and visually yeling at Ms. Cramer, and by directing that Ms, Cramer be bandeufed during the Scorelle . Scorelle hearing, clearly and convincingly established voltons of [Canon 1, Rule 1.1, requiring the Respondent to comply with the law, including the Code; Rule 12, fr lure to promote confidence in the judiciary; Canon 2, Rule 22, requiring impartiality and fines; Rule 2.6(A), requiring the right wo be heard; and Rule 28, requiring Respondent to maintain decorum and demeanor. 5. The factual allegations in Count Five ofthe Formal Statement of Charges regarding Respondent holding Ms. Cramer in contempt of court on January 13, 2015, and sentencing her to seventy-two (72) hours in the Clark County Detention Center, suspended pending counsel's “improved behsvoe, her drafting a leter of spology to Defendant for her refusal to comply with basic discovery requests anda eter of apelogy tthe Court” have been proven by clea and convincing evidence The Conmision rtd Hat once Me. Cramer was ret repeat her nt whe handel a srt of Responden’'s dete oral coop dig, Repundes onto fhe ering ine impied Ms. Cras iy represen: er it, 1‘The credible evidence established that on or about January 13,2015, n Case No, D-14-490728- D, atthe conclusion ofthe hearing, Respondent went off he record to admonish the sil hundeutfed Ms. ramet. Respondent then weat back onthe record to make « minste oder finding Ms. Cramer i contempt fo efising osnswer a question refusing to confer with her client and her continued aguing wit the Court, Respondent sentenced Ms. Cramer to seventy-two (72) hours in the Cask County Detention Center, which was suspended pending counse's “improved behavior, he dating a eter of apology to Defendant for her esa to comply with basic discovery requests and a eter of spology to the Court” Respondent's sentence also required Ms, Cramer “to conduct herself in respect and courteous manner when she pracies in front of this Court and sll other courts in this jwisticton'County" and “if thi Cout hears from it colleagues that she is not complying with procedural rules and is disourteous, the Court wil impose the sanctions.” Respondeat then released Ms, Cramer. of contempt was notin acordance with Neva aw in the following respect: (A) Respondent eld Mo. Came in ene fr stent o sos tt do ot conte ment ner Nova! (8) Responses ey fr ote vat Neva en tut Repo hance Mi crme tn ree at ite head om hi colegus"hat she was ot camping ith proce rls end is scouens, be Cou wil ipo suc (©) Repent fled 1 aly ener he eit oder flowing Reondns Sing of mae Respondent eid hat he flowed te aon conten, bt aie tt he nly vated Rule 28 reging pines ad decorum. Det is ell hat Re opie with conte Reponte sted at fe hs let eaten fd juice cash el wih tu psd of sc bu od wage Cu aad sal eviewed the ano css inthe Nevada Revied Sues regulng cote, and tthe ‘Commission hearing, appeared to not understand the parameters for finding a person in contempt.*| —naee ees ee judge has dy oko the lw of comp. Gadmon v.Mevade Comm'n on Jutta! Dipl, 108 New. 251,830 24109 (1992) ovr on hr ground fy Matar fF, Nev. 1001, 1003.17, 13 Pd 00,414, 17 0),Although Respondent testified that he complied withthe law on contempt, he also simultaneously acknowledged that the order of contempt was “unenforceable” and filed months after the oral contempt nding. ‘The Respondent's sctons of holding Ms. Cramer in contempt of court on January 13, 2015, and his resulting sentence, clearly and convincingly established violations of Canon 1, Rule 1.1, requiring the Respondent to comply with the law, including the Code; Rule 12, for failure to promote confidence in the judiciary; Canon 2, Rule 22, requiting impartiality and faimess; Rule .6(A), requiring the right tobe heard; and Rule 2.8, requiring Respondent to maintain decorum and demeanor. 6. The Commission finds thatthe factual allegtiors contained in Count Three have not been proven by clear and convincing evidence, B. CONCLUSIONS OF LAW 1. As to Count One of the Formal Statement of Charges, the Commission finds that the| Prosecuting Officer has proven by clear and convincing evidence that Respondents actions constitute canon violations of Canon 1 of the Code, Rules 1.1 and 1.2; and Canon 2, Rules 2.1,2.2,2.9, and 2.1 3, Rule 3.5; and Canon 4, Rule 4.2(AX(). ‘The Commission rejects Respondents argument that his comments to the press were protected by the First Amendment to the U.S. Constitution? The First Amendment does offer protection to [judges even while they are acting in their capacity as judges, but this protection is limited. In support of his egal argument, Respondent cited toa case involving an sttomey"s public comments made during Peoding criminal case. In Gentile v. State Bar of Nevada, S01 US 1030 (1991), the United States Supreme Court considered storey speech in active cases In Genie, the U.S. Supreme Court upheld the “substantial likelihood of material prejudice” test Prohibiting lawyers from making public comments on pending cases as set forth in Nevada Supreme| [Court Rule 177. The Court reasoned thatthe “substantial likelizood of material prejudice” standard Respondent aged forthe ist in in is relearn Brie, and sequent the conclsion of te hearing, th es Fs Amendment right 10 goto the pes. Respoder ified that he coc the pet ia ede o reserve i pation rep pyrite telecon and to presrve thelr ofthe jc. ‘The Cornision didnt id Responen’steimony credible sto contacting the ress 10 presee Judea inepiy. The Commision be eederce to Respondents itviw satenens and Arse erp wren ed e wet oo pee Bests te oil newspaper rile pulsed tm as aha so closet te elsion Thee, te Consens tht Respondents commento the pss wee in elation is e-lestion comply 9u B B 14 15 6 0 18 9 20 21 23 4 25 27 28 constitutes a constitutionally permissible balance between the First Amendment rights of atomeys in pending cases andthe State's interest in fir tas. [ at 1075. “The ‘substantial likelihood” test. s constitutional under this analysis, frit is designed to protect the integrity and the faimess of a State's judicial system, and it imposes only narow and necessary limitations on lawyers’ speech.” 1d¥ Rule 2.10's language is similar in that it prohibits judges from making “any public statement that might reacomably he expected to affect the outcome or impair the feimess of « matter pending Accordingly, under similar reasoning, Rule 210 is constitutionally permissible, ‘Moreover, statements to the press by a judge threaten the faimess of pending proceeding, and faimess is essential justice. Because judges and atlomeys play diferent roles in the judicial proces, thet public comments on pending judicial proceedings theaten the fainess of those proceedings in different ways. and to different deprees. The public understands that in judicial proceedings lawyers although also officers ofthe court, are advocates forthe inttests of their clients (Se, e., Gentle x: State Bar of Nevada supra, 501 US. at p. 1051, 111 ‘S.Ct. 2720 [professional mission of criminal defense barista challenge attons of the state); therefore, the public does not expect @ high degre of neutrality or objectivity when layers comment on pending cases, nor does the public expect all atte’ 0 assess the merits of pending cases in the same way. Judges, by contrast, cannot be advocates forthe interests of any paris; they must be, and be perceived to be, neuttal arbiters of both fact and law (see Preamble, Cal Code Jud. Ethes) who apply the law uniformly and consistently. Because judges are both “highly visible members] of government” (ibid) and neutral decision makers in all court proceedings, their pubic ‘comments will be received by the public as more authoritative han those of awyers. And. because judges have this greater influence over public opinion, imappropite public comment by judges poses a much greater threat ta the faimess of judieal proceedings than improper public comment by lawyers. Broadman v. Comm'n on Julicial Performance, 18 Cal. 4 1079, 1099-101 (1998), as ‘modified Sept. 2, 1998)" * Aithoug the US. Sure Cou fund Rule 177 void for vagus, ly dil so due o Rae 17 “safe harbor" provision which appeared to permit the spcch i gurston. Conf t 104.” With respec othe Code, Rule 2.10 mt agus. The lw ecopsizes ht th sandard for vgutuss rete when applied to jl cont. See. Mato Hotvrson 123 Nev 483, 1€8 P34 116), 11762007 (W]he evaluating asst apis ol to gen he se wheter a onary jue could understand ancl comply wih". [aft cours have cose rejected vagsnes| challenges in jit dsepine mars ds Se li, Judial Conduct Comm’ McCue (Ine MoGue), 685 NW 788, 71 (ND. 200: mre Bar 3 SW. 595, 63 (Tex Rew. Ti, 199 mre Complain spot Harper 77 Oo 813211, 673 N24 1253, 1263 (1990 re Dscpinany Proceeding Aga Rich, 123 Wash 20 25, 870 P2496, | 9721894); Maner of Your, 522 NE24 385, 38-85 (In 1988); Mar of Seraphim, 97 Wi 45, 286 N'W.24 485, 2931980 Se aio In re Maths, 188 NJ. 486, 21-2 2006. The Und States Sore Court lo rset adresse the eloship betwen jugs consis right oe spetch and restictons on a use’ spench impose by ces of net ethics. Soe Wil Yalee Fla Bar = US. 38. Ct 16, 16273, 191 L634 570 QD) hldng a Potion agaist» personal solitaton of canpugn find by a cant oeking elton to become age nt cn te candidat’ Fist Armendinent righ). AE the Fle cout observed, the ste has» “comping interes | eerving pli confidence in the etry of the jin” and tat he “pereplon of jal inert irate terest 102. As to Count Two ofthe Formal Statement of Charges, the Commision finds thatthe Prosecatng Officer es proven by clear and convincing evidence tat Respondent's asionsconstute voltons of Canon 1, Rules It and 1.2; Canon 2, Rules 2.2 end 24 3. As to Count Four ofthe Formal Statement of Charges, the Commision finds tht the Proseutng Office has proven by clear and convincing evidence that Respondent's adions consi violations of Canon 1, Rules 1.1 and 1.2; and Canon 2, Rules 22,2.6(A) and 28, 4, As to Count Five ofthe Formal Statement of Charges, the Commission finds that he Prosecuting Officer has proven by clear and convincing evidence that Respondent's ations constitute violations of Canon 1, Rules 1.1 end 1.2; Canon 2, Rules 22,2.6(A) and 2. 5, As to Count Taree ofthe Formal Statement of Charges, the Commission found tat the factual proof was insufcient to sustain the charges at the clear nd convincing threshold ‘6. The Commission has both personal jurisdiction over Respondent and subject mater over the violations ofthe Code at issue in his ease IMPOSITION OF DISCIPLINE In consideration of the totality of Respondent's actions and violations of the Code, and all urs evidence presented, the Commission concludes thatthe appropriate discipline under Commission Rule| 28 shall be as follows: [By unanimous vote ofthe Commission, after due deliberation and consideration ofthe evidence presented; Respondent's lack of prior discipline by the Commission; and Respondent's character reference leters; but nevertheless, in ligt of the seriousness of Respondents failure to follow the law and the Code in several respects, along with consideration of the Commission's recent issuance ofa] eter of caution to Respondent in 2016 which involved Respondent yelling, belting and theateing| both partes before him! itis decided tht pursuant to subsections (a) and (6) of Article 6, Section 21 ofthe Constitution of the State of Nevada, NRS 1.4653(1) and (2), NRS 1.4677(1)(),), (@, and (9, ete highes ner dat 1656 intel qutations wd cons mite). Cade Roe 210 oes ja epi, and te Casio hae ompling eres nating he etary oe ular nd eforcing the Cole Te Conmision may conser eter of caution when decitng te sppropite aon to be anon abeguet conpliat unes the leer fenton fot elevate the micondct alge i the stsequntcomphit RS 1 466702), NaS 146702) u2 B “ 13 16 ” 8 19 21 2 2 4 26 a 2 and Commission Rule 28, Respondent shal be hereby suspended without py fora period of sixty (60) days, effective as of the filing dat of this Onder; required to atend and completa judicial edvation| course, this own expense, on dealing with dificult parieslatomeys or such oter similar course as may be available with the approval ofthe Commission's Executive Directs, within one (1) year ofthe date of tis Order; senda writen lever of apology to both Ms. Cramer and Mr, Bache within sty (60) with the Southem Nevada days ofthe date ofthis Order; perform ten (10) hours of community se /Ancbullying Couneil (SNABC) which supports he Clark County Schoo! District's ant-bllyin| programs, or such other organizations that suppor anti-bullying programs as may be available with the approval ofthe Commission's Executive Director, within sx (6) months of te date of ths Order; pay a 85,000 fine to the Southern Nevada Ansibullying Ceuncil (SNABC), or such other organizations tht support anti-bullying programs as may be avaiable with the approval ofthe Commission's Executive Director, within sixty (60) days of the date ofthis Onler; and submit toa psychiatric exam, at his own] ‘expense, st ComPaych, conducted by a physician licensed to practice medicine inthe State of Nevada, or such other psychistric organization located in Clrk County, Nevada, as may be available with the spproval of the Commission's Executive Director, within ninety (90) days of the date of this Order, with the eport of such evaluation submitted directly tothe Commission's Exeeutive Diretor, alon| vith the requirement that Respondent timely comply with any recommendations contained therein. Respondent shall timely notify the Commission upon sompliance with all requirements of this Order. Respondent fils 10 comply with the requirements of this Order, such actions will result in his| permanent removal from the bench. NRS 1.4677(1}¢" ‘The primary purpose of the Revised Nevada Code of Judicial Conduct isthe protection ofthe public, not the punishment of judges. The Commission protects the public by instilling confidence in the integrity ofthe judicial system in Nevada, as publi: rust is essential tothe administration of justice. In carying out this duty, the law provides the Commission a broad range of disciplinary measures to be imposed which include, but are not limited to, removal rom office, suspensions, fines, educational ne Dus tote improper and uneafrceable nature of be cote cde pains Ms. Cramer, he Comision elves tat wall be appropri under th eveumsanes for Respondent oie an order vesting mane po an the fing oer ry10 2 B “ 1s 16 ” 8 19 21 2 2 2 2s 26 2 28 requirements, public reprimands, ete. The imposition of disipline further serves the function of| Aiscouraging future misconduct by the disciplined judge as wel asthe judiciary as a whole. ‘The evidence clearly and convincingly supported that Respondent put his desire tobe re-elected heed of the Judicial Canons when he commented to the press. Furthermore, the comments fa exceeded Rule 2.10(E) which permit a judge to respond regarding a judge's conduct. Specifically, the] [comments regarding Mr, Mann's divowce wete cutiely uuelwed wo the initial LVRY ariel, Respondent's misconduct did not top with his comments to the press, Respondent manifested his expressed bias against Mr. Mann when Respondent rfised to vacate a scheduled hearing afer Mr. ‘Mann's Motion to Reeuse was filed, and told the pro se party to file @ State Bar complaint aginst Mr. ‘Mann. See generally NRS 1.235, Respondents inappropriate ations were also no limited to Mr. Mann. Respondent's sctions in finding Ms, Cramer in contempt, handcuffing her, quelling her argument, and issuing an unenforceable| contempt order, violated th law and the Judicial Canons. Respondents attempt to lay the blame forthe contempt incident on Ms. Cramer's less than professional conduct does not excuse Respondent from| adhering to the Code. Respondent testified that he has a duty to contol his courtroom; however, that duty must be tempered, tailored and used in the least retitive means. The Commission found that Respondent's use of physical restrints far exceeded the least restrictive means. Moreover, the| ‘Commission noted that once Ms. Cramer was handcuffed in court, that ation stifled her client’ igh to be heard, and the contempt order itself had the potential to hamper Ms. Cramer’s ability to zealously advocate in other matters before different judges ‘The Commission found that Respondent did not take full responsibilty or lear from the incidents in question. The Commission found it disturbing that Respondent never apologized to Mc. Mann or Ms. Cramer for his actions; filed to acknowledge that the contempt order was unlawful despite agrecing that it was unenforceable; committed numerous legal errors regarding the contemp| incident; filed to vacate a hearing once a motion to recuse was filed and fled to admit to most of the| However, the most troubling aspect of the hearing occurred. when| Respondent's temper exploded during the Commission hearing itself, thus allowing the Commission to ern 2 4 1s 16 ” 8 9 20 21 2 2% 2s 26 n ident Such a witness first-hand the very same behvior thatthe judge exhibited during the Cramer visceral and emotional display of rage on the part of Respondent towards the Prosecuting Officer | response to whether the Prosecuting Officer was asking him a question or merely reading into the record his prior statements caused the Commission to seriously question Respondent's mental stability an capacity to control his anger, thereby necessitating a psychiatric evaluation.” The Commission must hold the judges ofthis state to the highest standards of personal and| professional conduct. Respondent's intemperate behavior on and off the bench demeaned the office he| holds and the judiciary in general. Respondent's public disparagement of Mr. Mann and egregious conduct towards Ms. Cramer created prejudice, partiality, bia, loss of integrity and intTectiveness of the administration of justice in Clark County's Family Court. Besed on the foregoing, the Commission finds that Respondent’s misconduct justifies the dstpline impose. D. ORDER ITIS HEREBY ORDERED by unanimous vote of Comnissioners Chairman Gary Vause, Kal Armstrong, Esq, Honorable Jerome Polaha, Bruce C. Hahn, Esq, Mary-Sarah Kinner, Stefinie Humphrey, and Honorable Leon Aberastur that Respondent shall be hereby suspended without pay for a period of sixty (60) days, effective as of the filing date ofthis Order, required to attend and complete a cial education cours, at his own expense, on dealing with difficult parties/ttomeys, or such other i similar course as may be available with the approval ofthe Commission's Executive Director, within| one (1) year of the date of this Order; send a written letter of apology to both Ms, Cramer and Mr. Buche within sity (60) days ofthe date ofthis Order; perform ten (10) hours of community service| ‘withthe Souther Nevada Antibullying Council (SNABC) which supports the Clark County School District's anti-bullying programs, or such other organizations that support anti-bullying programs as| may be available withthe approval ofthe Commission's Cxcoutive Director, within sx (6) months of the date ofthis Order; pay a $5,000 fine to the Southern Nevad Antbullying Council (SNABC), oF "In fa, the Respondent actually speed o be provoking and goaing th Prostcting Officer int conottion by tenting Stating “Lee, Yuet tose te gy wha vaso the ideo” Repos Transp of Proceedings, Vo 2s dated November 3,217, 936i tines 5, 2 The NevaiaSuprene Cour ha approved te Judea Dips Commision mating noe of he deeanor a jaca ig Commision herng as afta thc may be cose a the procs of delBerating on appropiate sanctions Mae of Dav 113 Nev 1304, 946 28 10531997), “such other oranizations that support anti-bullying programs as may be available with the approval of the Commission's Executive Director, within sity (60) days of the date ofthis One and submit to a Psychiatric exam, at his own expense, at ComPsjch conducted by a physician licensed to practice medicine in te State of Nevada, of such oer pychisrie orgniation located in Clark County, Nevada, as may be available withthe approval ofthe Commission's Executive Dirsor, within ninety (00) days of the dat ofthis Order, with the report of such evaluation submited directly tothe Commission's Executive Director, along withthe requirement tht Respondent imsly comply with ay recommendations contained therein, IT IS FURTHER ORDERED that Respondent shall timely notify the Commission upon compliance wih all requirements ofthis Order and provide copies othe Commision of al relevant documentatir evidencing compliance with this Order. TIS FURTHER ORDERED that ire to comply with this Order's requrements shall result in Respondent being permanenly removed fom the bench and forever bared from serving a judicial officer in the fue. NRS 1.4677()(6). Accordingly, the Commission retains juadction over this matter for he equi period of tie for Respondent to comply with hs Order. TTIS FURTHER ORDERED ty unanimous vote thatthe Chinnan is eubrized 10 sign this eocament on thal ofall voting Commissioner, DATED this AP*ay of November, 2017 STATEOF NEVADA ‘COMMISSION ON JUDICIAL DISCIPLINE P.O, Box 48 Carson Cry, NV 89703u 2 B “4 1s 16 0 6 19 a1 2 23 m 25 a 2% ‘CERTIFICATE OF SERVICE T hereby cei that Iam an employee ofthe Nevada Commission on Judicial Disipine and that on the QAM day of Noverber, 2017. 1 served a copy of the FINDINGS OF FACT, CONCLUSIONS OF LAW AND IMPOSITION OF DISCIPLINE by emsil and US Mai, postage Psd, addressed to the following: William B. Tery, Chartered Atomey at Law 1530 South Seventh Street, Las Vegas, NV 89101-6011 info@WitliamTesrvLaw.com ‘Thomas C, Bradley, Esq. Sinai, Schroder, Mooney, Boesch, Bradley & Pace 48 Hil Steet Reno,NV 89501 ‘Tom(@TomBredlev.awcom ea rtilandye Tianses, Cdabnission Cl 16