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From the Los Angeles Times
JUICE VS. JUSTICE
| A TIMES INVESTIGATION
In Las Vegas, They're Playing With a Stacked Judicial Deck
Some judges routinely rule in cases involving friends, former clients
and business associates -- and in favor of lawyers who fill their
campaign coffers.
By Michael J. Goodman and William C. Rempel
Times Staff Writers
June 8, 2006
LAS VEGAS — When Judge Gene T. Porter last ran for reelection, a group
of Las Vegas lawyers sponsored a fundraiser for him at Big Bear in
California. Even by Las Vegas standards, it was brazen. Some of the
sponsors had cases before him. One case was set for a crucial hearing
in four days.
"A Lavish Buffet Dinner will be catered By Big Bear's Premier
Restaurant," invitations to Porter's fundraiser said. "There will be
Food, Fun, Libations … a 7:30 p.m. Sunset Cruise on the Big Bear Queen
… a Zoo Tour for the Little Ones." Porter, 49, a Nevada state judge,
attended. The evening blossomed into a festival of champagne, lobster
and money. Organizers said guests contributed nearly $30,000, dropping
much of it into a crystal punch bowl.
Some lawyers considered it protection against ill fortune. Robert D.
Vannah, a sponsor of the fundraiser whose firm had the hearing
scheduled in Porter's courtroom in four days, would later explain his
donation this way: "Giving money to a judge's campaign means you're
less likely to get screwed…. A $1,000 contribution isn't going to buy
special treatment. It's just a hedge against bad things happening."
Vannah and others in his law firm, along with one of their
consultants, made donations worth a total of $13,500, fundraising
reports show. It was the fattest combined contribution of the night.
On the other side of the case, counsel for Michael D. Farney, then a
resident of Ojai, Calif., whose company was being sued, hadn't chipped
in a dime. Worried that bad things might happen to him, the lawyer,
Douglas Gardner of Las Vegas, asked Porter to withdraw from the case.
"The timing of the campaign gala," Gardner's motion said, "is too
close."
Porter refused, protesting he had "no bias or prejudice."
At the hearing four days after the fundraiser, Gardner requested a delay.
Porter refused that too.
The case went to trial, and Porter ordered Farney's company to pay
$1.5 million in damages.
The California businessman said his attorneys were appalled. "
'Hometown justice,' " Farney said
they called it. "I don't plan to go
back for more."
Porter's refusal to withdraw is hardly unusual in Las Vegas courts.
This is a juice town, some Las Vegas
attorneys openly concede.
Financial contributions "get you juice
with a judge — an 'in,' " Ian
Christopherson, a lawyer in Las Vegas for 18 years, said in an
interview. "If you have juice,
you get different treatment. This is
not a quid pro quo town like, say, Chicago. This town is a juice
town."
Las Vegas is one of the fastest-growing metropolitan areas in the
United States. Since 1960, census figures show, its population has
exploded by 1,246%. But many of its courts have not grown with it,
much less grown up. At the heart of the Las Vegas court system are 21
state judges who hear civil and criminal cases, and who can be
assigned anywhere in Nevada, but who are called district judges
because they work out of courthouses in the judicial districts where
they are elected. These state judges often dispense a style of
wide-open, frontier justice that veers
out of control across ethical,
if not legal, boundaries. The consequences reach beyond Nevada,
affecting people in other states, especially California.
Some of the effect falls upon visitors from Los Angeles who come here
to gamble, flirt with sin and have a good time. More than a quarter —
about 29% — of the 38.5 million visits to Las Vegas in 2005 were made
by Southern Californians, including many who came here more than once.
By that estimate, published by the Las Vegas Convention and Visitors
Authority, Southern Californians make more than 11 million visits to
Las Vegas every year.
But the effect falls, as well, upon Californians in business. Like
Michael Farney of Ojai, who owned Elite Marine, a boat company that
served southern Nevada and Lake Mead, an uncounted number of people
from Southern California hold financial interests in Las Vegas and its
surrounding metropolitan area. Of all businesses that relocate to
Nevada, according to the state Commission on Economic Development, at
least 36% come from California.
Whether they want to play or do business, all who come to Las Vegas,
from Southern California or elsewhere across the nation, expect a fair
shake, especially from its courts. Las Vegas is a town, however, where
some judges, operating in a new $185-million Clark County courthouse
two blocks from casinos, wedding chapels and strip clubs, routinely
rule in cases involving friends, former clients and business
associates, even in cases touching people to whom they owe money.
In 1990, Porter borrowed $15,000 from attorney George P. Kelesis.
While he owed Kelesis the money, Porter ruled in at least six cases
involving the law firm of Cook & Kelesis. A recent search found no
statement in court records that he told opposing attorneys about the
loan. Kelesis says he had left the firm but allowed it to continue
using his name to boost its stature. Porter promised to repay the
money in 1993, according to county records. But when he retired from
the bench in 2003, his disclosure statements show, he still owed
Kelesis at least $5,000.
Porter, who has joined a Los Angeles-Las Vegas law firm, declined to
be interviewed for this story and would not respond to written
questions.
Las Vegas is a town where James C. Mahan, 62, who served initially on
the state bench and is now a federal judge, awarded more than $4.8
million in judgments and fees during more than a dozen cases in which
a recent search of court records found no statement that he disclosed
his ties to those who benefited. Mahan, who sometimes wears a
holstered semiautomatic pistol on his right hip while sitting at his
desk in the U.S. courthouse, approved court fees for a former business
associate who twice served as his judicial campaign treasurer and was
instrumental in his federal appointment.
Mahan approved additional fees for his former law partner, who was
providing free legal services for the judge's wife and the judge's
executive judicial assistant and with whom he still had financial
ties, including property ownership and a profit-sharing arrangement.
In an interview, Mahan said the relationships made no difference in
his decisions. "I don't care who the attorneys are," he said. He
denied seeing any conflict of interest and grew angry at being
questioned.
Las Vegas is a town where District Judge Nancy M. Saitta, 55, running
unopposed in 2002, raised a political war chest totaling $120,000. She
received nearly $70,000 from 140 attorneys and law firms. All 55
lawyers or law firms giving $500 or more had cases assigned to her
courtroom or pending before her, according to court and campaign
records. Her campaign collected donations at fundraisers hosted by
lawyers, also with cases before her.
In one instance, Saitta awarded more than $1 million in fees for a
certified public accountant and his attorneys, two of whom held a
fundraiser for her while she was ruling on their case.
In an interview, Saitta said, "People who appear in my courtroom are
all on equal footing." She said she came up with likely contributors
to invite to her fundraisers by finding out who gave readily to other
judicial campaigns. Did she take names from her court docket? "Oh,"
she said, "I would never do that."
Las Vegas is a town where District Judge Sally Loehrer, 59, also
running unopposed in 2002, collected about $80,000 in campaign funds.
Of 54 attorneys and law firms contributing $500 or more, fundraising
reports and court records show that 51 had cases pending before her or
assigned to her courtroom. On the eve of one fundraiser, according to
the reports, four law firms gave her 12 bottles of wine, a 13-inch TV,
two DVD players, a gas grill, dinner for four at Zefferino's
restaurant, two theater tickets, two golf lessons and a pool float
with two beach towels. All four firms, court records show, had cases
pending before her.
In response to written questions, Loehrer said: "I do not keep a list
of persons who have contributed in my head, in my desk nor on my
computer…. My decisions are based solely upon my understanding of both
the facts and the law at the time of the decision and nothing more."
She said the wine, beach towels and other items were given away as
door prizes.
Loehrer publicly donated $3,300 of her campaign contributions to other
candidates, records show. They included candidates for district
attorney and attorney general, both of whom try cases before her.
Nevada judicial canons say judges shall not "publicly endorse" another
candidate.
She responded that her "best analysis" of the canons and a subsequent
advisory ruling by Nevada's Standing Committee on Judicial Ethics and
Election Practices was that judges may buy tickets to campaign
functions regardless of cost. She did not say whether her donations,
ranging from $150 to $900, were for tickets.
But the ethics committee noted that any donation of more than $100 had
to be reported publicly. Hence, it said, if a ticket cost more than
$100, then buying it constituted "a public endorsement" and was
"in
violation of the Nevada Code of Judicial Conduct."
Las Vegas is a town where District Judge Joseph S. Pavlikowski, 78,
officiated on May 4, 1969, at the wedding of Frank "Lefty" Rosenthal,
notorious as a front man for the Chicago mob — and then accepted a
discounted wedding reception for his own daughter at a casino where
Rosenthal was a top boss. Pavlikowski subsequently ruled for Rosenthal
in three cases when authorities attempted to bar him from running a
casino.
Today, Pavlikowski is a senior judge, commissioned by the Nevada
Supreme Court to serve at its pleasure without accountability to the
voters.
He declined to be interviewed and would not respond to written questions.
Las Vegas is a town where District Judge Donald M. Mosley, 59, gave
unspent campaign funds to a girlfriend. He called it a loan. She said
it was a gift. Canon 7 of the state Code of Judicial Conduct said a
judge or a candidate for judicial office "should not use … campaign
contributions for purposes unrelated to the campaign." Mosley
acknowledged six years ago in a deposition that he provided her with
$10,000 of his political money. Mosley said it was restored to his
campaign fund, but his girlfriend said she did not repay it.
Mosley's campaign fundraising reports leave the matter unresolved.
They show that the money was neither withdrawn nor paid back.
In a written statement, Mosley said he had been subjected to absurd
and unsupported allegations by political opponents and by the
girlfriend, with whom he eventually fought for custody of their child.
"Neither these individuals nor their attacks," he said, "deserve
the
dignity of a response."
Judicial campaign rules vary from state to state. The Nevada Supreme
Court, the top court in the state, whose justices collect money from
lawyers and casinos for their own campaigns, allows district judges to
accept campaign donations from people who might appear before them.
State judicial canons encourage the judges to solicit and accept the
donations through campaign committees, but the canons also allow the
judges to do it personally.
U.S. and Nevada judicial canons say judges should withdraw from cases
where their impartiality might reasonably be questioned. Nevada canons
also say judges must avoid even the appearance of impropriety and
should reveal on the record anything that they think anyone in court
could reasonably consider relevant to disqualification — even if the
judges do not think they should withdraw.
Nevada, however, does not require judges to reveal when their donors
appear before them.
When lawyers in California and Nevada, along with a number of Nevada
district judges, both sitting and retired, were asked about how this
affected justice in Las Vegas, many
spoke openly about its pernicious
effects — particularly about how lawyers and their clients sometimes
must pay to play on a level field.
They also told how the effects of judicial corruption seep from Nevada
across the state line into California.
Federal and state rules are often ignored, some lawyers said. They
cited a good-old-boy culture of cronyism and chumminess that accepted
conflicts of interest as "business as usual" and as part of Nevada's
maverick history of government-sanctioned prostitution, gambling,
drive-through marriages and quickie divorces.
"The common excuse is that this is the way it's always been done —
fast and loose — the wild, wild West," said Las Vegas attorney Charles
W. Bennion. "But the people making those excuses are the only ones
that benefit, and they want it to stay that way."
A common perception among a dozen out-of-state lawyers interviewed
about their experiences in Nevada courtrooms is that justice
in Las
Vegas is just another form of legalized gambling.
"I don't think what goes on in Nevada bears any resemblance to a
justice system," said John C.
Kirkland, a Santa Monica attorney. He
said he had clients who were victimized in Las Vegas courts. "It's an
old-boy network. It's not a legal system."
Justice in Nevada, conceded Cal Potter
III, a veteran Las Vegas
lawyer, is such that "outside law firms just don't trust Nevada
courtrooms."
Many blame the campaign funding practices of district judges who have
to run for office. "There should be a provision in the law prohibiting
judges from directly soliciting a campaign contribution," said state
Judge Brent Adams of Reno. "The one standard for a judicial candidate
in Nevada today is, 'How much money can you raise?' "
During the most recent Nevada election in which all district
judgeships in Las Vegas were on the ballot, 17 incumbents raised more
than $1.7 million in campaign funds, collecting much of it from
lawyers and casinos with cases pending before them, campaign financial
reports and court records show. At least 90% of all contributions for
the election, held Nov. 5, 2002, came from lawyers and casinos.
Frequently, a donation was dated within days of when a judge took
action in the contributor's case, the records show. Occasionally the
contribution was dated the same day.
"It can seem like a shakedown," conceded Jeffrey Sobel, a judge who
lost his seat — and that was the point. Sobel collected donations of
$1,000 to $5,000 each from 39 attorneys or law firms while their cases
were pending in his courtroom, records show. The Nevada Commission on
Judicial Discipline investigated him after learning that he had
discussed campaign contributions during a conference on a case pending
before him. Commission records show Sobel told one attorney that "he
was f---ed because he hadn't contributed while others had."
Sobel later said he was joking, but the commission ruled last July
that he had violated the state Code of Judicial Conduct, censured him
publicly and "permanently barred [him] from serving as an elected or
appointed judicial officer in Nevada." The commissioners recommended
that "judges should avoid, even during normal campaign activities,
soliciting campaign help from attorneys" with cases pending before
them, and even from attorneys with "the reasonable likelihood of
future litigation" in their courts.
Nonetheless, the commission allowed Sobel to continue to mediate and
arbitrate cases, which comprised the majority of his law practice, and
it allowed him to continue to be appointed as a special master, who
investigates claims in lawsuits and makes recommendations to judges.
Because of campaign contributions from lawyers and casinos appearing
before them, said Don Chairez, a former Las Vegas state judge, "Nevada
judges find themselves losing or bargaining away their integrity or
independence."
Some lawyers, said Steve Morris, a prominent Nevada attorney with 35
years of experience, "are in almost terror of not giving" to judges
seeking campaign contributions. His law firm spread about $7,500 in
contributions among 11 candidates in the 2002 election, fundraising
reports show.
"If it's a close call," Morris said, "asking judges to treat
lawyers
who contribute money the same as lawyers who don't is asking for the
superhuman. When judges come around and say, 'I need money,' it's a
nasty bit of business."
At the very least, some lawyers said, pay-to-play can get them
favorable court dates on crowded dockets.
Each state judge in Las Vegas handles more than 2,700 cases a year. A
contribution of $500 to $1,000 might not "get you a favorable ruling,
[but] it can grease the skids … get your case called first," said
former prosecutor Ulrich Smith, in private practice since 1995.
Bucking this system can be the "kiss of death," some lawyers said.
"If
you speak out, certain judges take it personally," said Grenville
Pridham, a state deputy attorney general for 11 years who is now in
private practice in Las Vegas. "You'll pay dearly when you visit their
courtroom."
In 2002, Pridham ran for district judge. During his campaign, he
denounced fundraising by judges. He accepted no donations.
He lost by more than 160,000 votes.
It got worse, Pridham said. Since the election, he said, regardless of
when his cases are scheduled, some judges "call the lawyers around me,
even if it's out of order, until I'm the last private attorney left in
the courtroom."
Some lawyers are particularly critical of the way judges use leftover
campaign money.
Thirteen of the 17 incumbent judges in 2002 ran unopposed, but they
collected $967,000 anyway, in both cash and checks, according to
fundraising reports. After the election, 11 of the unopposed judges
reported they were sitting on a total of about $634,000 in unspent
contributions.
"It's scandalous how much unused campaign money is allowed to pile
up," said Sobel, the former judge who was defeated. "There's no limit
on how much you can keep…. There is no watchdog and no real definition
of what exactly is or isn't proper. You can return [unspent money], or
save it for a future campaign, or you can give it to a charity, or
spend it for some political purpose.
"That leaves a good deal of room for interpretations of all kinds. You
could argue that [having] dinner on the Strip gives you a chance to
talk to waiters and maitre d's — so, technically, you're campaigning."
Disclosing the size of an unspent bankroll is mandatory, said Dean
Heller, Nevada's secretary of state and chief elections officer. But
the requirements for specifying what happens to it, he said, are
vague. "It's pathetic … a system designed by politicians to work for
them."
Heller said the Legislature gave him only seven people to monitor
elections and the campaign reporting of up to 1,000 candidates
statewide. Worse, he said, legislators "won't give us authority to
audit or even look for reporting irregularities unless we receive a
complaint in writing. We get a lot of complaints over the phone, but
not many want to put it in writing."
He said the Legislature had rejected his attempts to toughen
requirements to disclose unspent contributions. "They want to raise as
much money as possible," Heller said, "and tell the public as little
as possible."
The public information officer for state courts in Las Vegas, Michael
Sommermeyer, advised judges to say nothing in response to questions
from The Times. "My recommendation is for all of the judges to refuse
to comment," he said in an April 28 memo to Saitta.
Saitta was among three state judges who chose to ignore Sommermeyer's
memo. "My job as a public servant has to be open to scrutiny by the
public," she said. "I have to be answerable and subject to that
scrutiny. I can't hide. I don't have anything to hide."
Case Study
Gene Porter
The lawyers who filled the crystal punch bowl with money at Judge Gene
Porter's fundraiser at Big Bear certainly had reason to believe that
he would not hesitate to hear their cases.
A Times review of lawsuits that came before Porter during his eight
years on the bench shows that 61 presented possible conflicts of
interest. In 50 of them, there is no statement in court records that
he withdrew or disclosed the possibility of a conflict.
The 61 cases were found in a review of more than 2,000 legal actions
involving members of his former law firm as well as his former legal
clients, political allies, business associates and creditors.
One example involved Desert Springs Hospital in Las Vegas. Porter's
law firm had listed the hospital as one of its "representative
clients" in the Martindale-Hubble legal directory the year Porter was
appointed to the bench. Porter had been the hospital's attorney of
record in at least three lawsuits, court records show.
When six cases naming Desert Springs as the plaintiff or defendant
came before Porter as a judge, there is no statement in court records
that he revealed his former relationship to the hospital.
In a seventh case, in January 1997, he withdrew, saying, "Because this
court represented Desert Springs at the time of this incident … this
court hereby disqualifies itself."
But Porter did not withdraw from the other cases.
Similarly, in at least 15 cases, Porter did not disclose his longtime
friendship with attorney Matthew Callister when he presided over
Callister's cases. He and Callister had been friends since high
school, and Callister became his close political ally when they served
together in the state Assembly. Callister also served as a resident
agent for a real estate company formed by Porter's wife.
In a lawsuit involving two business executives from California, Porter
appointed Callister as a $200-an-hour receiver, or caretaker of
assets. One of the executives, Irenemarie Kennedy of Laguna Niguel,
had sued Ashik Patel of Orange, her partner in Seaspan Inc., a hotel
management firm incorporated in Nevada.
Porter instructed Callister to run the company during the dispute,
replacing another receiver appointed two weeks earlier by another
judge. "I wasn't happy," Patel said in an interview. Soon, Patel said,
he learned "that the judge and Callister were buddies." Then, Patel
said, he made another discovery: "Callister had an association with
the other side."
According to court documents submitted by Patel's lawyer and records
in the Nevada secretary of state's office, while Callister was serving
as receiver in the Seaspan suit, he or his law firm were resident
agents for two other corporations and a partnership formed by Kennedy
— and he had been doing legal work for Kennedy and her family lawyer.
Patel's lawyer, Samuel B. Benham, asked Porter to allow Callister to
withdraw. Court records show that Porter denied the request without
comment.
Callister declined to be interviewed and did not respond to written questions.
Kennedy did not return phone calls. Instead a man identifying himself
as "Mike Walker, an advisor to the Kennedys," responded, saying:
"I
don't know if the relationship between Callister and the judge was
disclosed at the time, but afterward we did learn they had a
relationship. But I met with Callister at least five times, and he was
objective and is doing a good job."
In 2002, Porter was reelected to a six-year term. In a campaign
fundraising report filed Jan. 10, 2003, he said he still had $32,816
"cash on hand." Porter resigned that September, saying financial
considerations forced him from the bench.
As of this week, Secretary of State Heller said, Porter had not met a
requirement to file an accounting of his unspent campaign money.
Licensed to practice in Nevada and California, Porter has joined a Las
Vegas-Los Angeles law firm and serves as a private judge for
Alternative Resolution Centers, a mediation and arbitration firm that
provides settlement and fact-finding services in Las Vegas and Los
Angeles.
Case Study
Nancy Saitta
The fight was over a company with a subsidiary that made a liposuction
machine, which guzzles fat from loins, necks, thighs and waists.
The company was Medical Device Alliance Inc., incorporated in Nevada
but whose subsidiary was based in Carpinteria, Calif. Minority
shareholders said Donald McGhan, its founder and chief executive
officer, should be removed. McGhan fought back. The dispute landed in
the courtroom of Judge Nancy M. Saitta.
In June 1999, she appointed George C. Swarts, a certified public
accountant, as a receiver — someone to run the company while it was
embroiled in the dispute.
Within six months, McGhan and a second, separate group of stockholders
filed complaints that Swarts' decisions were biased, lacked expertise
and often were unauthorized by Saitta.
Privately, attorneys expressed dismay. "George [Swarts] had inordinate
power" with the judge, Alfred E. Augustini, a Los Angeles attorney and
legal advisor to McGhan, said in an interview. Swarts "would threaten
us, tell us, 'The judge will do anything I ask, whatever I present to
her.' George was running the case. We had to yield to George … comfort
George … agree with George. He was God … the great pooh-bah … the big
Jabba the Hutt."
What Swarts wanted most of all, Augustini said, was "to keep the meter
running." The case was in limbo, he said, and "limbo was paying very
well."
Swarts' fees were mounting.
"We tried to get Saitta to fire Swarts," Augustini said, "but
that
only made things worse."
McGhan tried to disqualify Saitta from the case.
"Judge Saitta has publicly pronounced McGhan guilty three times
without hearing the evidence or the testimony of witnesses," said his
Nevada attorneys, Steve Morris and Todd L. Bice, in a motion filed in
August 2000. "By passing judgment … without a trial, Judge Saitta can
no longer be considered a fair and neutral arbiter…. Under the law,
she is required to step aside."
Swarts' attorneys countered that the real target of the attack was Swarts.
The request to remove Saitta went before Lee Gates, the chief judge in
Las Vegas at the time.
But Gates had a possible conflict. An attorney from the Frank Ellis
law firm, which often represented Swarts, was defending Gates' wife,
Yvonne Atkinson Gates, a county commissioner, against a recall,
including a lawsuit that court records show was on appeal before the
state Supreme Court.
A recent search found no statement in court records that Judge Gates
disclosed the relationship or similar relationships in two other cases
involving his wife and the Ellis law firm.
Within two weeks, he denied the motion to disqualify Saitta, declaring
that she "is not biased or prejudiced concerning any party."
By now, Saitta had come under attack for refusing to let anyone
examine paperwork supporting the first bill submitted by Swarts and
his lawyers: $524,680 in fees from June 29, 1999, to May 30, 2000.
"Unconscionable … exorbitant … outrageously excessive," said
lawyers
for McGhan and one of the stockholder groups. Attorney Matthew
Callister, who represented a second group of stockholders, said in a
motion that if Saitta did not deny Swarts' fee or require him to
account for its size, then "a great injustice will occur in this
case."
Nonetheless, Saitta approved Swarts' request for $524,680, as well as
a second request, this one for fees totaling $662,411 for him and his
attorneys covering June 2000 through September 2001, court records
show.
Attorney Daniel J. McAuliffe, representing McGhan and other
defendants, complained in a motion that Swarts had filed the second
request 13 months late, "in violation of this court's order."
In yet another motion, Swarts asked that fees be doubled for his
attorneys through 2001 and requested 18% interest on unpaid fees since
his appointment in 1999.
McGhan's attorneys protested that Swarts' requests "provide for the
looting of [the company] to line the pockets of various and numerous
counsel — all with no accountability." The request for 18% interest,
they said, was "astonishing…. Even Visa and MasterCard charge less."
Nonetheless, Saitta approved both of those requests as well.
In 2002, according to a report McGhan entered into court records, she
approved $588,000 for Swarts and $630,000 for his lawyers.
When she was asked about the fees during her interview, Saitta said:
"I handle 2,400 cases a year. You're asking me for details on one
case. I don't have time to go back and look up every case."
Neither Swarts nor Judge Gates responded to written questions.
In 2002, an election year, Saitta announced that she would seek
another term on the bench. Nevada judges seeking reelection
historically try to scare off potential opponents by raising large war
chests quickly. By March, however, Saitta had raised less than $5,000,
campaign records show.
She got help from J. Randall Jones, one of Swarts' attorneys in the
ongoing Medical Device Alliance case.
With major decisions in the case still pending, Jones, of Harrison,
Kemp & Jones, held a fundraiser for her. The fundraiser was set for
May 2 at Jones' home in Las Vegas. Invitations said, "Minimum
Suggested Contribution: $500." A cohost was Mark James, an attorney
for Medical Device Alliance shareholders. James had played a key role
in persuading Saitta to appoint Swarts.
In the 60 days leading up to the fundraiser, Jones, as Swarts' lawyer
and a Saitta defender against the accusations of bias, appeared before
her at least four times and received favorable rulings, which included
her approval of a hotly contested $4-million "good faith settlement"
sought by Jones' and James' clients against Wedbush Morgan Securities,
based in Los Angeles.
During the fundraiser, Saitta personally greeted about two dozen
contributors. Court and campaign records as well as interviews show
that at least 18 of the contributors were lawyers with one or more
cases pending before her at the time.
The event collected about $20,000 on her behalf.
At election time, she ran unopposed.
Jones and James were asked in separate telephone interviews why they
held the fundraiser.
"I think it is incumbent upon attorneys to support good candidates for
the bench and retain qualified judges," James said. He added, "That's
all I have to say."
Jones said, "I have nothing to say to you." He hung up.
In her interview, Saitta said Jones "asked if he could do the party."
Attorneys attended from both sides of the Medical Device Alliance
case, she said. "As a candidate, you just show up. You meet with the
people. You shake their hands. There's a bowl for the checks."
She said her campaigns do not accept cash. If anyone tries to hand her
a check personally, she said, an aide standing beside her takes it
instead. "I don't want anything to do with the money."
Saitta and Swarts served as judge and receiver in the case until
Medical Device Alliance was sold in January 2004 for $60 million and
all claims were settled, court records show.
When Swarts and his lawyers originally persuaded Saitta to name him
the receiver, they dismissed predictions that the "costs of Mr.
Swarts' appointment would be in excess of $1 million." Such claims,
they said, were "hyper-alarmist arguments" and were "grossly
over-exaggerated."
In fact, the cost of Swarts' receivership topped $1 million within its
first three years, court records show.
Case Study
Donald Mosley
Donald Mosley, the judge who turned over $10,000 of his unspent
campaign money to his girlfriend, testified in 1999, nine years after
he did it, that it was "the only cash I had available at the time."
He said he did not seek any legal opinions about the legality of what he did.
"I don't know that it's a direct violation to borrow against [campaign
funds] on occasion and return the money plus interest," Mosley said
during a deposition in an unrelated defamation suit and counterclaim.
"I'm not too concerned about that as an infraction of ethics."
Mosley said he gave the money to Terry Figliuzzi (who later changed
her name to Mosley). "The situation was that it was early in December
and her parents were coming out from Minnesota to visit us … [and] she
wanted to buy Christmas gifts and show her parents a good time."
Mosley said he loaned his girlfriend the money because she expected to
win a lawsuit over an unpaid real estate commission of more than
$600,000. "It was thought at the time that it was just a matter of
several weeks or a month or so and she would have this enormous
judgment and so the money would be available."
Eventually, the judge said, the $10,000 was restored to his campaign
fund when he received $20,000 from a claim against the judgment.
In an interview, Terry Mosley disputed the judge's version, saying
that she had regarded the $10,000 as a gift — "Christmas money. He
brought it home in cash and tossed it on the table. It wasn't a loan.
I never signed anything."
She said the $20,000 was unrelated to the gift. "I never paid Don back
for that — not to this day."
Judge Mosley's campaign funding reports do not resolve the conflicting
versions. His 1990 reports say he raised $56,811 and spent $27,573 —
leaving $29,238 unspent, but the reports show no $10,000 withdrawal or
loan.
The reports he filed in 1996, before his next campaign — one year
after Terry Mosley won her $606,877 judgment — reflect no loan
repayment.
In 1990, the year Mosley said he withdrew the money from his campaign
fund, Canon 7 of the Nevada Code of Judicial Conduct held that a judge
or candidate for judicial office "should not use … campaign
contributions for purposes unrelated to the campaign."
Today, the question is covered by Canon 5, which says judicial
candidates "shall not use or permit the use of campaign contributions
for the private benefit of the candidate or others."
Since 1991, Nevada state law has banned personal use of campaign
donations by any state or local candidate. In its most recent
formulation, Nevada Revised Statute 294A.160 states: "It is unlawful
for a candidate to spend money received as a campaign contribution for
his personal use."
Apart from what Mosley did with his campaign money, his girlfriend's
real estate lawsuit entangled him in a conflict from which he did not
withdraw.
To provide her with a $100,000 security bond for her suit, Mosley put
up his house as collateral — giving him a direct stake in the outcome
of her case. He arranged for his girlfriend to hire attorney Jason G.
Landess, who was appearing before him in another case. While Landess
represented Mosley's girlfriend, court records show the judge made
several rulings favoring Landess' other client.
The opposing attorney in that case, Richard McKnight, said in an
interview that he was never informed about Mosley's stake in Landess'
case on Terry Mosley's behalf. "I kept getting my brains beat out in
Mosley's court," he said. "It felt sometimes like Mosley and Landess
were teaming up against me."
*
Goodman's e-mail address is mj.good@yahoo.com;
Rempel's is
william.rempel@latimes.com
*
Times researcher Nona Yates contributed to this report.
====================================================================================
http://www.latimes.com/news
From the Los Angeles Times
JUICE VS. JUSTICE
A Judge Who Isn't Playing by Fast and Loose Rules
By Michael J. Goodman
Times Staff Writer
June 8, 2006
LAS VEGAS — Judge John S. McGroarty did it differently.
In the last Nevada election in which all district judgeships in Las
Vegas were on the ballot, 13 incumbents ran unopposed. Unlike others,
McGroarty returned his unspent campaign contributions.
"I sent the money back. It wasn't mine to keep," McGroarty said in an
interview. "I didn't have an opponent, so I didn't need it. I don't
want slush funds … money burning a hole in my pocket."
Particularly, McGroarty said, when the money comes from those who are
likely to appear in court before him. "It can seem like a quid pro
quo," he said.
Not every state judge in Las Vegas plays fast and loose with conflicts
of interest. McGroarty, 64, has been a state judge since 1982.
He retired as a regular judge this year and was commissioned as a
senior judge to fill in and ease the caseload. He says he does his
best to avoid conflicts.
It is not always easy. Being a judge in Las Vegas, McGroarty said,
"puts personal integrity to the test."
"This is a fast track, a fast town — very fast," he said. "This
isn't
Des Moines, Iowa." He rubbed his thumb and forefinger together to
indicate money. "This is a juice
town," he said. "Go out there and
start messing with that juice, and it
will come back and get you.
"There are crosscurrents. Go out there with impunity, and you will get
burned."
McGroarty said he would never knowingly seek a campaign contribution
from anyone with a case pending in his courtroom.
When that sort of thing happened, he often found out. "Somehow," he
said, "the big contributor is always brought to your attention." Then,
McGroarty said, "I'll take extra time, do more research" to make
absolutely certain that all of his decisions in the case are
well-supported by the facts.
The 2002 judicial election illustrated how far McGroarty was willing
to go to avoid conflicts of interest. The 13 unopposed incumbents,
including McGroarty, raised a total of nearly $1 million in
contributions well before any challengers could file papers to run
against them.
At least 90% of their cash came from lawyers, law firms and casinos
that frequented their courtrooms, according to a comparison of court
and campaign records. Some of the judges collected contributions, the
records show, even while they were deciding a contributor's case.
The incumbents, including McGroarty, spent part of their campaign
money for early displays of determination to scare off potential
competitors. "I put up signs around town right away," McGroarty said,
"like everybody else."
When the filing period closed, all 13 remained unopposed.
Their victories were assured.
But they all had leftover campaign funds. In their campaign filings
after the election, other unopposed judges reported that they were
still holding a total of $634,000.
McGroarty was the only one who gave his leftover money back.
"Don't get me wrong. If I had an opponent, I'd use the money,"
McGroarty said. "I know other judges keep the money, and that's their
business."
McGroarty had received 96 contributions, ranging from $20 to $5,000,
for a total of $31,666, campaign records show. That was a
comparatively small amount of money. Seven unopposed judges had
amassed war chests ranging from $69,531 to $166,401, the records show.
McGroarty listed campaign costs totaling $14,759, largely for
fundraisers, advertising, campaign staff and office expenses. He
reported that he had $16,907 left when the filing deadline passed and
he was unopposed.
The following month, he returned his leftover campaign contributions,
prorating the returns to each of his 96 contributors. "I think it
worked out," McGroarty said, "that everybody got back about 56 cents
on the dollar."
A $20 contributor, for example, was refunded $14. McGroarty's lone
$5,000 contributor, Coast Hotels and Casinos, was refunded $2,800,
records show.
McGroarty said he returned his leftover contributions in 1996, as
well, when he also ran unopposed.
===================================================================================
http://www.latimes.com/news
From the Los Angeles Times
JUICE VS. JUSTICE
| A TIMES INVESTIGATION
For a Vegas Judge and His Friends, One Good Turn Led to Another
James Mahan got his jobs on the state and federal benches through the
connections of old pal George Swarts. Things turned out well for
Swarts too.
By Michael J. Goodman and William C. Rempel
Times Staff Writers
June 9, 2006
LAS VEGAS — Without help from a friend, James Mahan might never have
become a Las Vegas state judge. Certainly he wouldn't have gotten one
of the top judicial jobs in town: a lifetime appointment to the
federal bench.
Then again, without Mahan, his friend George Swarts would never have
gotten to run an Internet porn business, a hotel-casino hair salon or
a Southern California software company. Indeed, the careers of Judge
James C. Mahan, 62, and his friend George C. Swarts, also 62, whom he
appointed again and again as a receiver to manage troubled businesses,
might be the ultimate example of how juice
replaces justice in Las
Vegas courtrooms.
In this town, people speak reverently of having juice,
or an "in," and
Mahan — bearded, likable but sometimes caustic — has made it a
striking feature in his courtroom. First as a state judge and now as a
federal judge, he has approved more than $4.8 million in judgments and
fees during more than a dozen cases in which a recent search of court
records found no statement that he disclosed his relationships with
those who benefited from his decisions.
On the state bench for three years, and since his appointment as a
U.S. District Court judge four years ago by President Bush, Mahan has
approved many of these fees for Swarts, a certified public accountant
who had served as his judicial campaign treasurer and whose political
connections got him appointed. Mahan approved additional fees for
Frank A. Ellis III, 51, a former law partner with whom the judge still
owned property and participated in a profit-sharing plan. Ellis also
provided free legal services for Mahan's family and for his executive
judicial assistant.
Mahan, like a number of Las Vegas judges, has taken on cases despite
state and federal prohibitions against such apparent conflicts. Some
Las Vegas judges have ruled in cases involving their friends, even
those to whom they owe money.
The practice harms visitors and business people alike, especially
Californians, who come here in large numbers to work and play. They
fall victim to an untamed style of justice,
blatantly tangled in
clashing local interests.
Las Vegas is a town of instant millionaires, 60-second weddings,
six-week divorces and a sly wink at conflicts of interest, to say
nothing of the abuses that go with them. Some California lawyers view
Las Vegas justice as just another
crapshoot. When they are pressed
about it, some Nevada lawyers openly condemn the system. The excuse,
says Las Vegas attorney Charles W. Bennion, "is that this is the way
it's always been done — fast and loose."
Even in Las Vegas, however, Judge James Cameron Mahan stands out.
When owners fight over a business, judges often appoint someone
independent as either a special master, to investigate the dispute, or
as a receiver, to run the business until the differences are settled.
On 13 occasions in state and federal court, Mahan has installed
Swarts, a large man in a business suit who tells people how to spell
his name — "think of 'wart' with an 's' on each end" — or his son,
Curtis, 41, taller and more often casually dressed, at up to $250 an
hour, to be a special master or receiver in cases that come before
him.
Mahan has then given his approval when George Swarts hired Ellis,
low-key and quiet-spoken, or his firm, at up to $250 an hour, to
represent Swarts in nine of these cases. In all, Mahan ordered
plaintiffs and defendants to pay Swarts and Ellis more than $700,000,
the records show.
U.S. and Nevada judicial canons say judges should withdraw from cases
where their impartiality might reasonably be questioned. Nevada canons
also say: "A judge should disclose on the record information that the
judge believes the parties [in a case] or their lawyers might
reasonably consider relevant to the question of disqualification, even
if the judge believes there is no real basis for disqualification."
A recent search of court records in the 13 cases involving Swarts or
Ellis, as well as interviews with litigants and their attorneys, found
no disclosure of Mahan's relationship with either of the two men.
Complaints of excessive fees and inaction occasionally united opposing
sides to implore him to remove Swarts. In case after case, he refused.
Mahan's judicial power and soaring reputation silenced many of those
who suspected or knew of his undisclosed ties, according to lawyers.
He was southern Nevada's top-rated state judge in 2000 and 2002 in a
biennial survey of attorneys by the state's largest newspaper, the Las
Vegas Review-Journal.
In an interview with The Times, Mahan acknowledged that he routinely
did not disclose personal relationships. He dismissed them as
insignificant and bristled at being questioned.
Face flushed and jabbing a forefinger in anger, Mahan said he
appointed receivers in lawsuits based upon their ability and
experience. He said he had named Swarts as a receiver for those two
reasons and not because of any favoritism.
Mahan also said he had never influenced Swarts to choose Ellis to
represent him as receiver's counsel.
"I don't see any conflict of interest," Mahan said.
At one point during the interview in his chambers at the Las Vegas
federal courthouse, Mahan moved in his chair, and a holstered
semiautomatic pistol became visible on his right hip. In written
questions submitted for this story, Mahan was asked about the pistol.
He did not respond.
In a separate interview, Swarts said his appointments from Mahan were
proper. "I don't think that is a problem," he said. "In fact, if
you
were going to put someone in a position of responsibility, why
wouldn't you put in someone you know, someone you trust … somebody you
knew had integrity?"
When he was asked if Mahan was favoring him with lucrative court
assignments, Swarts replied: "Me and Judge Mahan? That's amazing.
That's crazy! That's the craziest thing I've ever heard…. Judge
Mahan's only appointed me two or three times."
When he was told that Mahan had in fact appointed him in a dozen or
more cases, Swarts replied: "No way! No way! I know what you guys are
going to do. You're just trying to make us look bad. I don't see any
reason to talk to you…. Judge Mahan? He's a fine person. I can't
believe you're looking at him."
Ellis was given written questions about his relationship with Mahan
and cases in Mahan's court. He did not respond.
One Las Vegas attorney willing to speak out about Mahan, P. Sterling
Kerr, who represented two clients in a case before him, said the judge
appointed Swarts simply "to give his friends some business."
Kerr called it "a travesty of justice."
Chapter 1
The Lee Case
Mahan has been dismissive of conflicts from the start.
He came to Las Vegas as a lawyer in 1973 and went to work for John
Peter Lee, a veteran Nevada attorney. Seven years later, Lee hired
Frank A. Ellis III. Two years after that, Mahan and Ellis set out on
their own.
Within six months, Mahan sued Lee, claiming that Lee had stiffed him
on a profit-sharing bonus. Lee sued back, claiming that Mahan took
office furniture, including a desk, and left behind an interest-free
IOU, payable only when he got his bonus.
With Ellis representing him, Mahan pursued the matter to the Nevada
Supreme Court. It ruled in Lee's favor and ordered Mahan to pay for
the furniture — desk and all. "I was surprised at [Mahan's]
deep-seated resentment," says attorney Richard McKnight, who had spent
five years with him at Lee's firm.
Seventeen years later, when Mahan became a state judge in Las Vegas,
Lee asked that he disqualify himself "from all of our firm's [cases]
due to past problems between you and the firm … so we may protect our
clients."
Court records show Mahan wrote back: "I have instructed court
administration to recuse me from all of your cases."
Mahan did disqualify himself shortly afterward during a case in which
Lee was an attorney, court records show. But in another case seven
months later, Mahan refused to withdraw when Lee and his son James,
also an attorney, asked him to when they appeared in his courtroom as
co-counsel, according to court records and interviews.
The Lees were representing a woman in a palimony suit over a $35-million estate.
A jury ruled against the Lees' client. The Lees asked Mahan to order a
new trial, saying, among other things, that he had wrongly instructed
the jurors. Court records show that Mahan denied the request.
"It was improper," John Peter Lee said in an interview. "I still
feel that way."
When he was asked why he did not withdraw, Mahan said in an interview:
"I decided I was going to hear that case. Judges are supposed to hear
cases."
Asked about the desk and other furniture he took from Lee's law firm,
Mahan shrugged, smiled and patted an unremarkable but ample wooden
desk in front of him.
"This is the desk," he said.
Chapter 2
Swarts and Rogich
Many of Mahan's undisclosed relationships were with Swarts, a
politically connected businessman who grew up in Las Vegas.
His financial relationship with Mahan began as early as 1988, when the
law firm of Mahan & Ellis formed the first of at least 12 companies or
joint ventures for Swarts, several in partnership with Frank Ellis'
father, according to Nevada secretary of state records. Often either
Mahan or the younger Ellis — or both — served as resident agents or
directors.
One such project drew Swarts and the elder Ellis into a lawsuit
against investors in a development deal. Court records show that Ellis
and Swarts were represented by Mahan and another attorney.
During the 1990s, Mahan expanded his ties with Swarts.
A booming Nevada economy gave him the opportunity. The boom attracted
entrepreneurial opportunists with more brass than bankroll. Business
disputes and bankruptcies began choking the Nevada courts. In some
cases, judges appointed receivers to protect investors, preserve
assets and manage troubled businesses while the conflicts dragged on.
Like special masters, receivers are independent, neutral officers of
the court, answerable only to the judges who appoint them and
typically give them absolute control over the businesses in dispute.
Receiverships are easily abused. Historically, state and federal
courts appoint receivers only as a last resort.
In contrast to California's rules, Nevada's requirements for receivers
are loose. In both states, receivers are governed by court orders. In
Nevada, lawyers write the orders and judges sign them, sometimes
changing them as they see fit. But in Los Angeles County, for
instance, judges begin with standardized orders and use or rewrite
them. Steve Morris, a prominent Las Vegas trial lawyer with 35 years
of legal experience in Nevada, said, "Rules for receivers here are
short, ambiguous and elastic."
By the mid-1990s, Swarts had become a receiver in both state and
federal courts. He brought in his son, Curtis, also a CPA. In 1996,
the law firm of Mahan & Ellis incorporated them as Swarts & Swarts.
With increasing frequency, Swarts asked judges to let him hire his own
counsel at the expense of the parties in dispute. Most often, he chose
Mahan & Ellis.
In 1998, Mahan decided to become a state judge.
His decision put him in Swarts' debt for two favors. In Nevada, state
judges are elected. Mahan ran for a judgeship in Las Vegas, and as the
first favor, Swarts, seasoned in local politics, agreed to be his
campaign treasurer.
Mahan lost the election.
"I decided not to stop," he said in an interview. Two state judges
from Las Vegas had won seats on the Nevada Supreme Court, creating a
pair of vacancies. Newly elected Gov. Kenny Guinn, a Republican, would
fill them after his inauguration in January 1999. "I began 'running
for appointment,' " Mahan said.
In this quest, Mahan needed only one vote — that of Nevada power
broker Sig Rogich, a Republican fundraiser and media specialist who
had been a consultant to Presidents Reagan and George H.W. Bush. It
was Rogich who was responsible for the elder Bush's TV ad showing
Democratic opponent Michael S. Dukakis perched on a tank with a helmet
dwarfing his head.
More important to Mahan, Rogich had masterminded Guinn's gubernatorial
election. Guinn had never run for public office.
Rogich was part of old Las Vegas. By contrast, Mahan was a newcomer,
but he knew an insider: Swarts. He and Rogich had been friends since
grade school.
Indeed, while Swarts had been Mahan's campaign treasurer, Rogich had
entrusted him with keeping the books for Guinn's $6-million campaign
as well. Records show that Swarts donated his time.
Now, in the second of the two favors, Swarts spoke to Rogich on Mahan's behalf.
"I put [Mahan's] name in with Sig," Swarts said in an interview.
"And
why did I do that? Because I believe Jim Mahan is one of the finest
people I have ever known…. I'd put his name in again."
Mahan was summoned to Rogich's office. "He wanted to meet me," Mahan
said in an interview. After the meeting, said a participant who
requested anonymity, Rogich promised to "go to the governor."
It worked.
On Feb. 22, 1999, during his second month in office, Guinn appointed
Mahan to the bench in the state's 8th Judicial District in Las Vegas.
In an interview, Rogich refused to discuss the matter publicly.
Seventeen days after the appointment, Mahan was assigned to decide the
appeal of a lawsuit that Rogich won in Justice
Court against Phillip
Crenshaw, a Las Vegas store owner, over a damaged stereo.
Despite the canons demanding that judges disqualify themselves when
their impartiality might reasonably be questioned, Mahan sat in
judgment on the appeal.
He reduced Rogich's $3,449 award by $90, but decided in his favor.
R. Clay Hendrix, the attorney for Crenshaw, said he was unaware of
Mahan's connection to Rogich until after the case ended, when he
received an invitation from Rogich to a Mahan fundraiser. Hendrix was
asked how he felt when he found out about Mahan's ties to Rogich. He
shrugged and looked away.
This was, after all, Las Vegas.
Mahan was given written questions about this and other cases in this
story. He did not respond.
Chapter 3
Elkind-Wilson Case
When Mahan became a state judge, he left Mahan & Ellis. But the law
firm did not exactly leave him. He remained a part owner and landlord
of the law firm property and continued to draw interest from the Mahan
& Ellis profit-sharing plan, according to land records and financial
disclosures required of state and federal judges.
The disclosures show that he received income from the law office
building until June 2001 and from the profit-sharing plan until
mid-December 2002, when his share of the proceeds was rolled over into
an IRA.
Meanwhile, the financial fortunes of his former law firm were tied in
part to the fortunes of one of its most active clients — George
Swarts. On the eve of Mahan's appointment to the bench, court records
show, the law firm represented Swarts in three receiverships involving
combined legal fees of about $150,000.
During the first weeks of his judgeship, Mahan acknowledged a conflict
if he were to preside over a case involving Ellis, court records show.
On March 26, 1999, he disqualified himself from a case "to avoid the
appearance of impropriety and implied bias" because Ellis was his
former law partner.
But 2 1/2 weeks later, in his second month as a judge, Mahan
recommended and then appointed Swarts as a $200-an-hour caretaker in a
business dispute — and then approved Ellis as Swarts' attorney,
according to court records.
The case involved Stuart Matthews Wilson, a hairstylist who finally
struck gold: The Desert Inn hotel-casino on the Las Vegas Strip had
selected him to take over its exclusive four-star spa.
The Desert Inn wanted him to expand. He didn't have the money, so he
took on a partner, Abbott Elkind, a contractor and client who chipped
in about $400,000 for 51% ownership.
Right away, they fought. Soon they sued each other.
In an interview, Wilson recalled their first hearing: "We get to the
courtroom and this guy, George Swarts, is already there, waiting. Out
of the blue, Judge Mahan has this guy come in as a receiver to take
over our beauty salon."
There was a glitch. Wilson's attorney, James Lee, said appointment of
a receiver would violate the salon's lease with the hotel-casino. So
Mahan decided to call Swarts a special master.
Lee would later write into the court record that, "in fact, Swarts was
appointed to be a receiver … [and] to act as a receiver in every sense
of the word."
At the start, according to court minutes, Mahan promised Wilson and
Elkind that they would "be included in [Swarts'] business decisions."
Within a month, however, Robert Goldstein, Elkind's lawyer, said in a
court filing that they were no closer to a buyout — and that Swarts,
in effect, had frozen Elkind out of the business.
In response, Mahan wrote that Swarts "shall run the salon business as
he sees fit."
That August, court records show, Ellis billed $4,694 for three months,
and Swarts presented a three-month bill for $95,928. "My lawyer and I
looked at each other in disbelief," Wilson recalled. "Swarts was
charging $30,000 a month for basically having somebody pick up the
salon's receipts each night."
Both sides filed motions pleading with Mahan to remove Swarts and sell
the business before there was nothing left. They said a bookkeeper or
payroll service could do for $1,000 a month what Swarts was doing for
30 times that amount.
But Mahan refused to remove him.
In March, a year after Mahan appointed Swarts, Wilson filed for
bankruptcy in federal court. "Swarts and Judge Mahan … destroyed
everything I built up in this town for 20 years," Wilson said. "Nobody
— lawyers, anybody — wanted to go up against Judge Mahan or Swarts.
"Anything Swarts wanted from the judge, Swarts got."
The Desert Inn closed in August 2000. Elkind, 66, died in January
2002. Wilson now works at a beauty salon in another hotel on the
Strip.
When asked about the propriety of appointing his friend Swarts, Mahan
responded, "I appoint receivers based on their backgrounds and the job
at hand." Citing another case, he added, "I know George [Swarts] has
done securities work before, so I picked him for a securities case."
Mahan said Swarts was just one of several receivers he had used. He
named two others. "I just want someone who is competent. I knew
[Swarts] was competent. That's why I appointed him."
When asked about the propriety of approving Ellis, his former law
partner, to represent Swarts, Mahan responded angrily: "It's up to the
receiver to pick his own attorney. I never select them. Receivers
select their own attorney. I've never imposed an attorney on any
receiver. I don't care who the attorneys are."
Regarding his financial interests with Ellis, Mahan said he made no
profit from the income listed on his financial disclosure report as
rent from the Ellis office building, because it equaled his share of
the mortgage payment. He noted that he sold his interest in the
building to Ellis in June 2001.
By then, however, Mahan had been on the bench for two years and had
involved Swarts and Ellis in at least seven cases and approved their
fees.
As for the Mahan & Ellis profit-sharing plan, Mahan continued to
receive interest from it for 18 months after selling his property
ownership, his financial reports show — and during that period, court
records reveal, Mahan appointed Swarts as a receiver and approved fees
for Ellis' law firm as Swarts' counsel in at least five additional
cases.
Swarts, in an interview, said there had never been anything improper
about his court appointments from Mahan or any other judge. "I don't
hobnob with judges…. I don't solicit cases. But when a judge calls, I
respond."
Swarts was given written questions about the details of this and other
cases in this story. He did not respond.
Chapter 4
The Topless Case
Three people from Detroit wanted to open a topless bar in Las Vegas.
Ronald Sweatt, his wife, Lydia, and investor Robert Katzman formed a
50-50 partnership, called Motor City III. In 1997, they bought an
empty lounge near the Strip and began turning it into a cabaret with
bare-breasted dancers. Their investment totaled nearly $1 million.
Felony tax evasion convictions ended the Sweatts' chances for
licensing in Nevada. So they put the lounge up for sale.
Katzman sold his interest to Ed Gardocki, also of Michigan. The
Sweatts accused Katzman and Gardocki of dealing in secret and sued
them in Michigan.
They, in turn, sued the Sweatts in Las Vegas.
The case was assigned to Mahan.
He appointed George Swarts as receiver. Mahan said, however, that
Swarts' son, Curtis, would handle the matter because he would bill at
a lower rate, according to court minutes. "No one loses if a receiver
is appointed," Mahan said. Both sides "will be looking at a pile of
money, not a piece of property."
Swarts hired the law firm of Alverson, Taylor, Mortensen, Nelson &
Sanders to represent him. Two and a half years passed, and the topless
lounge still was not sold. Moreover, according to court records, the
tab for Swarts and his attorneys had climbed to more than $100,000.
Both sides tried to get rid of Swarts. Mahan refused.
• On one side: Attorney P. Sterling Kerr, who represented the
Sweatts, said in court documents that the fee for Swarts and his
attorneys "shocks the conscience" because their only job was selling
an empty building.
"Those guys raped my client," Kerr said in an interview. "Mahan
was
looking for an excuse to give his friends some business."
• On the other side: Katzman and Gardocki said Swarts and his
attorneys had been paid out of partnership funds without court
approval and had failed to pay county taxes on the lounge "to the
point where the property itself is in jeopardy."
A month later, Swarts reported that he had paid the taxes.
Attorney Peter Christiansen, who represented Katzman and Gardocki,
reminded Mahan that he had promised that Swarts' son, Curtis, would
handle the receivership and charge less. Instead, Christiansen said,
"George Swarts did the overwhelming majority of the work."
Swarts and his lawyers have "treated this case as a cash cow,"
Christiansen said. If attorneys on both sides combined and quadrupled
their fees, he said, they wouldn't approach what Swarts and his
attorneys were charging.
Some charges, Christiansen said, were for duplicate services, services
not rendered and services negligently rendered.
Records show that George Swarts billed $200 an hour.
A review of resumes and contemporaneous cases shows that four other
Nevada receivers charged $150 to $175 an hour. A year earlier, court
records show, Swarts had charged $150 an hour.
Swarts and his attorneys told the court that attacks against them were
laced with distortions, sometimes fabricated, sometimes absurd and
often as "appalling as they are incorrect." They accused both sides of
opposing their every move and of creating unnecessary, baseless and
frivolous litigation.
As for whether Swarts was running the receivership and not his
less-expensive son, Swarts said that Mahan had set the same fee for
both of them.
By 2005, the topless lounge was still unsold. On July 25, Swarts said
his fees had reached $285,000. Michael Hall, an attorney representing
Katzman, was asked what his client and others in the case thought
about Swarts' fees. He replied, "They thought it was ridiculous."
State Judge Michelle Leavitt, who replaced Mahan when he went on the
federal bench, discharged Swarts as the receiver. On July 27, Leavitt
signed an order "approving sale" of the property and said Swarts' fee
"comes off the top."
The property finally sold for $1.9 million, Hall said. After fees for
Swarts and the attorneys, the pile of money promised by Mahan had
vanished.
In an interview, Swarts was asked to explain how partners so divided
could be so united in their criticism of him.
"Well, Sterling Kerr hates me," he said, referring to the Sweatts'
lawyer. "I have a thankless job. You've got to be crazy to do this.
It's not possible to do this job and not have someone get mad at you.
I've had lawyers come across the table at me…. When I come in, both
parties hate each other, and in the end, both parties hate me."
Chapter 5
Adult On-Line Case
Andrea Norman retired from the escort business when she was 26.
In April 2000, she said, she and her then-fiance invested $500,000 in
Las Vegas Adult On-Line Productions Inc., a website marketing prepaid
cards to anonymously view or buy Internet pornography.
"It was a great idea," she said in an interview at her gated town
house near the Strip. It was late morning. She wore a nightgown, an
anklet and rings on her left hand and the second toe of her right
foot.
Norman and her fiance put their $500,000 investment into a corporate account.
One day, she said, she got a call from the bank. "I just about s---.
There was $16,832 left."
Norman sued her two stockholder-managers.
Meanwhile, Mahan ran to keep his seat on the bench. Swarts served for
the second time as his campaign treasurer. Mahan won without
opposition, and in June 2000, midway through the race, Norman's
lawsuit went to his court. While Swarts was still his treasurer, Mahan
appointed him as the receiver for Adult On-Line.
Norman recalled the first hearing. "George [Swarts] was already there
in court. Bam-pow! He was in as receiver. No discovery. No questions.
[Mahan] just put in a receiver. It was pre-decided … pre-set. My mouth
hit the floor."
Mahan assured Norman that he saw "potential value here and that [the]
asset should be preserved," court minutes show. "Mr. Swarts … will
keep the business running."
Swarts chose the Ellis law firm, where Mahan had been a partner, to
represent him, and Mahan approved the appointment. Mahan was still
receiving what he described as rent, or "investment income," from the
law firm office building, as well as interest from the Mahan & Ellis
profit-sharing plan, according to the financial reports he would file
from the federal bench.
Three months after the suit was filed, the two stockholder-managers
complained to Mahan, saying they feared that Las Vegas Adult On-Line
Productions Inc. was "being bled dry." They said Swarts had frozen or
emptied their accounts, would not pay creditors, had broken financing
promises and would communicate only through attorneys charging up to
$250 an hour.
Unless Mahan intervened, they wrote, they would "be headed into
bankruptcy."
But Mahan allowed the receivership to continue.
A month later, court records show, Ellis told Mahan at a hearing,
"There is little money" left.
Mahan ended the receivership in December, records show, and approved
fees of $15,525 for Swarts and $19,293 for the Ellis law firm for the
three months of July 3 to Oct. 9.
"In the end, whatever funds were in the account went to pay the
receiver," Norman said. "If I ever see [Mahan] on the street, I'm
going to spit in his f------ face."
Chapter 6
The NetSol Case
On June 11, 2001, dissident stockholders, escorted by armed guards,
took over the offices of NetSol International Inc., a software company
in Calabasas.
Although NetSol was based in California, it had been incorporated in
Nevada, and its deposed managers sought assistance there. They sued in
Las Vegas state court, and the case was assigned to Mahan.
"The judge, right out of the blue, said: 'Maybe we should get a
receiver…. I know a guy who is perfect for this,' " John C. Kirkland,
a Santa Monica attorney for the dissidents, said in an interview.
Mahan ordered a recess, Kirkland said, and Swarts appeared in the
courtroom. "Right away," Kirkland said, local attorneys told him that
Mahan and Swarts "were best friends, had barbecues … were very close….
We were told in no uncertain terms: This is the 'judge's receiver,'
and we were going to have to live with him."
Again, Swarts chose the Ellis law firm, where Mahan had been a
partner, to represent him in the receivership, court records show.
By now, Mahan had sold his interest in the law firm real estate. But
according to his financial disclosure statements, he was still
receiving interest from the Mahan & Ellis profit-sharing plan.
Todd L. Bice, a Las Vegas attorney for NetSol management, said in a
telephone interview that he had been unaware of any relationship
between Mahan and Swarts. "I don't remember that the issue ever came
up in court."
A month later, records show, Kirkland, the dissidents' counsel,
accused Swarts of devaluing the firm. "What once was a
multimillion-dollar company is now a penny stock," Kirkland said,
adding that NetSol was doomed.
In August 2001, Mahan ended the receivership. He ordered NetSol to pay
Swarts and the Ellis law firm $65,000 for two months' work.
Although many computer-based companies suffered during the technology
bust, NetSol's plunge was dramatic. In March 2000, its stock traded at
$75 a share. By October 2002, the stock had fallen to a nickel a
share.
This week, it closed at $1.86 a share.
Kirkland scoffed at the Las Vegas justice
system. "It's the most
corrupt system I've ever seen," he said. "They hometown
everyone."
Chapter 7
A Federal Judge
By February 2001, the second anniversary of his appointment to the
state bench, Mahan's name had surfaced for possible nomination to the
federal bench by George W. Bush, the newly elected president.
Sig Rogich had been the finance chairman of Bush's Nevada campaign.
When he learned that Bush would nominate two judges in the state, he
made three telephone calls on Mahan's behalf, according to a political
insider who requested anonymity.
One call was to Sen. John Ensign, the Nevada Republican who would
recommend potential appointees to Bush.
"I nominated Judge Mahan," Ensign said, "because of his
outstanding
record and reputation. Throughout his career, he has demonstrated a
careful and deliberative nature, and a commitment to fairness and the
proper application of the law."
The second call was to the screening panel for the Senate Judiciary Committee.
The third was to the White House.
Mahan won Ensign's approval, as well as the endorsement of Nevada's
veteran Sen. Harry Reid, a Democrat.
"Sen. Reid joined Sen. Ensign in supporting the nomination," said
Reid's spokesman, Jim Manley, "because he felt Judge Mahan had the
qualifications necessary to serve as a U.S. District Court judge."
Bush nominated Mahan on Sept. 10, 2001, to be one of the five U.S.
District Court judges then in Las Vegas. The Senate confirmed him
without controversy, and he joined the federal bench on Jan. 30, 2002,
a lifetime post.
Mahan's confidants, allies and business pals were not far behind. As
his executive judicial assistant, he hired Jeri Winter, a former
member of his campaign staff who had been his executive judicial
assistant when he was a state judge.
Within little more than a month, he approved the hiring of the law
firm of his former partner, Ellis, in a federal case while Ellis was
representing Winter at no charge in a bankruptcy. Only five months
before, Ellis had represented Mahan's wife in a family probate, also
for free.
The federal case was over E-Rex Inc., developer of the Dragonfly, a
portable printer-fax with Internet capability. Dissident shareholders
had sued executives, accusing them of mismanagement, according to
court records.
Mahan appointed Swarts, this time as a special master, to investigate
the accusations, the records show. According to court minutes, Mahan
ordered the dissidents to pay Swarts an advance of $5,000 and an
overall fee of $250 an hour.
Mahan approved hiring Ellis' law firm to represent Swarts at $210 an hour.
"We had no idea that the federal judge, Judge Mahan, had a
relationship to Swarts or his attorney," Ruben F. Sanchez, a Woodland
Hills lawyer representing E-Rex, said in an interview. "That was never
disclosed."
Sanchez said E-Rex hired Harold Gewerter, a Nevada attorney. Gewerter
was asked in a telephone interview if he knew at the time about
Mahan's relationships with Swarts and Ellis. He replied: "I heard
indirectly that — I have no knowledge of any relationship. Judge Mahan
did a fine job."
Mahan awarded Swarts $17,267 and the Ellis law firm $1,582 for work
during March, April, May and June, the court records show.
In July 2002, Mahan dismissed the lawsuit.
The dissidents appealed. In January 2004, a three-judge panel of the
U.S. 9th Circuit Court of Appeals reversed Mahan's dismissal in part,
saying he had erred by denying the shareholders an opportunity to
amend their complaint. The appeals court sent the case back to Mahan.
In April 2005, Mahan granted a change of venue to Florida. The case
was appealed again. It remains an open case.
Chapter 8
Interstate Mortgage
One month after he appointed Swarts in the E-Rex case, Mahan was
assigned a federal lawsuit accusing Interstate Mortgage Group Inc. of
Las Vegas and its former owner and president, David Ferradino, of
fraud, breach of contract and breach of fiduciary duty, court records
show.
Two and a half years earlier, Swarts had been appointed conservator,
or custodian, of Interstate Mortgage, the records show, and then had
been appointed receiver of the firm, which had been seized by the
Nevada Financial Institutions Division, a state agency that regulated
mortgage brokers.
The suit was filed by Robert and Ruby Rogers of Phoenix, who demanded
the return of $110,000 lost through what they called "fraudulent acts"
by Ferradino and his company — plus $5 million to punish them. The
suit meant the firm Swarts was managing had become a defendant in
Mahan's court, and Swarts was a defense witness.
Mahan had vouched for Swarts a month earlier by appointing him special
master in the E-Rex case.
Now he was sitting in judgment upon a firm Swarts was managing in a
case accusing the company of fraud.
Representing Swarts and Interstate Mortgage in Mahan's courtroom was
the Ellis law firm, where Mahan had been a partner and where Ellis had
represented Mahan's wife in a probate and was still providing free
legal counsel for Mahan's executive assistant in her bankruptcy case.
"We were never told Mahan [had] any connections with Swarts or his
attorney," said plaintiff Robert Rogers in a telephone interview.
Mahan dismissed Interstate Mortgage as a defendant, records show. That
left Ferradino as the sole defendant. He was ordered to make
restitution.
Rogers said he settled with Ferradino in 2003 for $82,000.
Chapter 9
The Bulloch Case
Less than a month after dismissing Interstate Mortgage and its
conservator Swarts from the case, records show, Mahan decided a
lawsuit in favor of Howard Bulloch, a longtime Las Vegan, and awarded
him more than $4 million.
Mahan and Bulloch were former business associates.
In July 1997, Mahan, then a partner in Mahan & Ellis, and Bulloch, a
Las Vegas real estate agent, were on a receivership team to sell 89.07
acres in Laughlin, Nev.
At the time, the judge in the case appointed Swarts as receiver.
Swarts had hired Mahan as his lawyer and recruited Bulloch to sell the
property. Mahan's billings, filed in 1998 court records, show how
closely Mahan and Bulloch had worked together.
Jan. 20: "Review letter … to Howard Bulloch." Jan. 22: "Review
letter
… to Bulloch." Jan. 30: "Review proposed flyer from Bulloch.
Telephone
call with Bulloch: proposed revisions." Feb. 5: "Review proposed
purchase and sale agreement from Howard Bulloch; revise and return to
Howard." Feb. 10: "Telephone calls with Howard Bulloch." Feb. 12:
"Conference telephone call with Howard Bulloch … incorporate my
suggestions and revisions, which I faxed to Howard yesterday.
Conference with client; Howard Bulloch." Feb. 13: "Review marketing
efforts documentation from Howard Bulloch." Feb. 19: "Telephone call
…
Howard Bulloch's office." Feb. 24: "Review information from Howard
Bulloch."
That March, the property was auctioned for $1.25 million, Mahan
reported to the judge.
Five years later, Bulloch appeared in Mahan's federal courtroom.
He was suing Michael Shustek, a mortgage broker. According to court
records, Bulloch contended that Shustek had wrongfully collected a
$3.8-million fee on loans to buy land on the edge of Las Vegas.
In March 2003, at the end of a weeklong trial during which Mahan
served as judge and jury, he ruled in Bulloch's favor, saying
Shustek's fee was excessive and unlawful.
Mahan refunded the fee to Bulloch, plus interest — for a total of $4.12
million.
A recent search found no statement in court records that the judge had
revealed their prior relationship. Bulloch said in a telephone
interview that it was disclosed.
Shustek's attorney, Steve Morris, was asked in an interview if he knew
that Mahan had a prior relationship with Bulloch.
"I'm astounded," Morris replied angrily.
Six weeks later, the Nevada Financial Institutions Division, which
regulated mortgage brokers, said that Shustek's fee had been lawful
and appropriate.
Shustek appealed Mahan's decision. A three-judge panel of the U.S. 9th
Circuit Court of Appeals decided in November that Mahan did not have
jurisdiction to hear the case.
The 9th Circuit ruling is being appealed to the Supreme Court.
Goodman's e-mail address is mj.good@yahoo.com;
Rempel's is
william.rempel@latimes.com
*
Times researcher Nona Yates contributed to this report.
===================================================================================
http://www.latimes.com/news
From the Los Angeles Times
JUICE VS. JUSTICE
| A TIMES INVESTIGATION
How Some Nevada Judges Stay Under the Radar
Senior judges are exempt from some rules of accountability. The
careers of three jurists reflect the ethical questions that can
result.
By Michael J. Goodman and William C. Rempel
Times Staff Writers
June 10, 2006
LAS VEGAS — One Nevada judge was nearly indicted on blackmail charges.
Another ruled repeatedly for a casino corporation in which he held
more than 10,000 shares. Still another overruled state authorities and
decided in favor of a gambling boss who was notorious as a mob
frontman, and whose casino did the judge a $2,800 favor.
Yet the Nevada Supreme Court has conferred upon these judges a special
distinction that exempts them from some of the common rules of
judicial practice and reduces their accountability. They are among 17
state judges whom the high court has commissioned as senior judges.
Unlike regular judges, senior judges are not answerable to the voters,
but serve at the pleasure of the high court, and that can mean for
life. Unlike regular judges, they can reject assignments until they
are given a case they want to try. Unlike regular judges, they cannot
be removed from a case by peremptory challenge. And until last year,
they did not have to disclose their financial interests.
With this exceptional flexibility, they could try lawsuits in which
they had a personal stake without revealing it. And because they
cannot be removed by peremptory challenge, which normally permits a
one-time replacement of a judge at the beginning of any case simply
for the asking, it is possible for litigants to be stuck with senior
judges, their conflicts of interest and their decisions.
The judge who was nearly indicted is James A. Brennan. He resigned as
a state judge to avoid being charged by a federal grand jury with
blackmail. After the state Supreme Court returned Brennan to the bench
and then named him a senior judge, he presided over at least 16 cases
involving participants in his real estate deals. A recent search found
no statement in court records that Brennan publicly disclosed those
relationships.
The judge who ruled for a casino corporation in which he held stock is
Stephen L. Huffaker. He owned 12,000 shares of the corporation while
the case was before him. In addition, he presided over cases involving
another casino corporation whose foundation gave his son a partial
scholarship to Yale University. A recent search found no statement in
court records that Huffaker publicly disclosed the scholarship at the
time.
The judge who ruled in favor of the gambling boss is Joseph S.
Pavlikowski. In 1969, he officiated at the wedding of Frank "Lefty"
Rosenthal, known as a frontman for the Chicago mob. Pavlikowski then
accepted a discounted wedding reception for his daughter at a casino
where Rosenthal was a top executive. He subsequently ruled for
Rosenthal in three cases when authorities tried to take action against
him.
Senior judges, including Brennan, Huffaker and Pavlikowski, are on
call statewide to fill in temporarily at any level of the state courts
in which they have previous experience. Sometimes they are brought in
when local judges disqualify themselves from sensitive and thorny
cases.
The Supreme Court, the highest-ranking court in the state, created
senior judges in 1977 to ease a workload that has since grown to an
average of 2,700 cases for each regular judge in Las Vegas per year.
The high court acted independently of the Legislature. It wrote its
own rules for the senior judges, said Ronald R. Titus, the state court
administrator. "Nothing in the statutes," Titus said, "talks
about
senior judges."
The Legislature, however, controls their budget. At one time it was
limited to $340,000 annually, and at one point senior judges numbered
as few as half a dozen. But since then, more senior judges have been
added. The Legislature budgeted $1.5 million last year. Their number
may continue to grow along with southern Nevada.
In response to written questions, Robert E. Rose, chief justice
of the
Supreme Court, said senior judges were accountable because their
decisions might be appealed to the Supreme Court. It is, however, the
same court that appointed them.
"We must rely on the senior judge to recuse himself or herself in
conflict-of-interest situations," Rose said, "or at least bring [the
conflict] to the attention of the parties [involved in the case]. And
any party can file a motion to disqualify a judge for cause."
Unlike a peremptory challenge, however, removal for cause is not
automatic and must be decided by another judge.
Rose also said court administrators monitored the performance of senior judges.
"Many senior judges have had long and distinguished careers," Rose
said. "History has shown that judges have the ability to rule fairly
and impartially on cases, based on the facts and the law…. To date, no
application to become a senior judge or justice
has been denied….
"Senior judges are a tremendous asset to the judiciary and the
citizens," Rose said. "They are often among the most experienced
judges around. They serve only when needed, thus providing a great
resource at a bargain price. Without senior judges, it would be
necessary to add full-time judges at a cost of millions of dollars.
"Senior judges simply provide the best bang for the buck."
**
James A. Brennan
Chapter 1
Threat of Indictment
Judge Brennan almost wound up in the dock himself.
In 1988, a friend, Ada Livingston, died. She had been living with
Brennan's mother. The judge and his mother found $56,000 worth of
savings bonds in her suitcase. The bonds were issued to Livingston and
her granddaughter, Marianne Catelli, who lived in Long Branch, N.J.,
according to court records.
"Brennan said he would send me the bonds, but then I had to cash them
and give him half the money," Catelli, now 61, said in a telephone
interview. She said Brennan did not tell her the total value of the
bonds. "He said he would mail me a few bonds to cash, and then, when I
paid him, he would send me more."
Catelli went to the FBI. William A. Maddox, then the U.S. attorney in
Las Vegas, said in an interview that he took the matter to a grand
jury and determined that Brennan and his mother could be indicted "for
blackmail under federal law." Maddox, now a state judge in Carson
City, Nev., said his goal was not to indict but "to force Brennan to
resign and to keep him from being a judge again."
"I didn't like what he did," Maddox said. "That's not the kind of
thing a judge should do."
Brennan agreed to resign and not run for reelection for at least 18
months, Maddox said. "We figured the 18 months would put Brennan
beyond the next judicial election [in 1990], and then, by the next
judicial election [in 1996], he would have been out of the public eye
for eight years." Together with the investigation, Maddox said, this
passage of time would "make it pretty hard [for him] to get elected."
In March 1989, Brennan announced that he was stepping down. It was not
long, however, before he was back on the bench.
When his 18-month hiatus ended, 16 Las Vegas state judges signed a
resolution of support — whereupon the Supreme Court appointed him to a
58-day temporary judgeship, beginning Jan. 2, 1991, to ease the
caseload in his old judicial district. The appointment was continued
for a year, and in 1992 the Supreme Court commissioned Brennan as a
senior judge.
He is in his 14th year without having had to face election.
Maddox said: "Our goal was to make sure Brennan wouldn't run — never
serve on the bench again. What can I say?"
The news did not reach Catelli until March 2004, when a Times reporter
called. "Isn't that cute!" she said. "I was told he wouldn't get
back
in office. If it were you or me, we'd be in jail. They said they were
going to keep him out of the next election. Well, isn't that cute!
It's all about who you know, isn't it?"
Brennan was given written questions about this and other cases in this
story. He did not respond.
*
Chapter 2
A Testimonial
The letter praised a man accused of smuggling drugs.
Judge Brennan wrote it to a federal magistrate in Tampa, Fla.,
vouching for Benjamin Barrington, then 48, of Las Vegas, who was under
indictment on charges of running a cocaine smuggling ring in Nevada,
Texas and Florida. Barrington was appearing before the magistrate for
bail.
A transcript of the bail hearing shows that Brennan's letter was one
of three from judges who vouched for Barrington. The others, according
to the transcript, were from Charles Springer, then the chief justice
of the Nevada Supreme Court, and from Dan Ahlstrom, then a Las Vegas
justice of the peace.
The case received wide publicity. Court records and a report in the
Las Vegas Review-Journal newspaper show that Brennan's letter, dated
Nov. 21, 1985, was the most effusive.
"For the last couple of years," Brennan wrote, "I have been a
guest in
Ben's home, where I have had the opportunity and the pleasure to
observe a very dedicated husband and father. Ben's son, Benjie, and
his wife idolize Ben, and a team of horses could not separate Ben from
his family. On numerous occasions, Ben and I have gotten together for
'intelligent' conversations over cocktails, and I unequivocally state
that Ben is a man who will make every court appearance which is
required of him."
In a recent interview with The Times, the Florida magistrate, Thomas
G. Wilson, recalled being troubled. "I thought right away it was a
violation of judicial ethics. So when we broke from the hearing, I
went right to the judicial ethics codes, and it said in plain English
a judge is not to voluntarily lend the weight of his office to support
someone's interest like this."
Wilson denied bail for Barrington. He received a lengthy sentence,
according to a spokeswoman for the Federal Bureau of Prisons, and he
died in custody. Wilson said the Nevada judges who vouched for
Barrington "gave the impression the bench was a good-old-boys group.
It didn't raise my opinion of the Nevada judiciary."
Springer, now a Reno attorney, told The Times, "I shouldn't have
written that letter." Ahlstrom, now the public administrator for Clark
County, including Las Vegas, said that in hindsight "a judge would be
well advised not to write such a letter."
*
Chapter 3
The Venetian
After Brennan was returned to the bench and named a senior judge, the
way he handled one major case came under particular attack.
The case involved a breach-of-contract dispute between the
$1.5-billion Venetian casino and resort and its builder, Lehrer
McGovern Bovis Inc. Brennan appointed his former law clerk, Erika Pike
Turner, as special master to conduct hearings.
Venetian lawyers said Turner was inexperienced and that her law firm
represented four clients who had interests in the case. Moreover, they
said, Brennan had given her such sweeping authority that "essentially
nothing remains for [him] to do but enter judgment."
When Brennan did not remove her, the Venetian complained to the
Supreme Court about Turner — and said that Brennan, as an appointee
under the senior judge program, had not been independently elected.
Venetian lawyers also pointed out that he had been forced to resign
years earlier to avoid indictment.
The Supreme Court did not rule on the senior judge issue, but said
that Brennan had abused his discretion by giving Turner such broad
authority.
One justice, Deborah Agosti, said
Brennan had been appointed to ease
the court caseload, but then had appointed someone to relieve him of
his caseload. He "ought to handle this case himself," she said.
A jury awarded Lehrer McGovern Bovis $44.2 million — but also awarded
the Venetian $2.3 million for shoddy workmanship.
*
Chapter 4
Conflicts of Interest?
Judge Brennan's financial dealings tell a story of power in Las Vegas.
He has been in business with some of the most influential people in
town.
He and his Brennan Family Limited Partnership and the James A. Brennan
Family Revocable Trust have appeared in at least 180 recordings of
land and financial transactions in southern Nevada since his return to
the bench in 1991.
His partners and co-investors number more than 300 and include some of
Nevada's most powerful political and gambling figures.
Since 1997, for example, Brennan has participated in at least 45 real
estate transactions in Las Vegas with Gov. Kenny Guinn, now in his
second term, and with Guinn's family. Many of the transactions were
made through the Kenny C. Guinn IRA; the Guinn Family Trust; the
governor's son, Jeffrey; and the son's mortgage company, Aspen
Financial Services, county land records show.
Nevada Lt. Gov. Lorraine Hunt also appears with Brennan in several transactions.
Aside from the governor, an array of longtime casino bosses,
developers, lawyers, financiers, contractors, real estate agents,
bankers and mortgage brokers often have been named in land records as
repeat real estate partners and co-investors with Brennan over the
years. Some are lawyers.
Many have had cases before him.
Sometimes he has withdrawn, but rarely said why.
Without disclosing his relationships, Brennan has ruled in at least 16
lawsuits since 1991 that involved one or more of his real estate or
investment partners or their attorneys, according to a review of land
and court records.
U.S. and Nevada judicial canons say judges should withdraw from cases
where their impartiality might reasonably be questioned. Nevada canons
also say judges must avoid even the appearance of impropriety and
should reveal on the record anything that they think anyone in court
could reasonably consider relevant to disqualification — even if the
judges do not think they should withdraw.
For senior judges, including Brennan, disclosing all financial
relationships has been voluntary until 2005. Now disclosure is
required yearly. Historically, however, few if any senior judges ever
revealed their financial interests. That made it hard for those
appearing before them to know whether the judges had a conflict of
interest.
**
Joseph S. Pavlikowski
Chapter 1
'Lefty' Rosenthal
The first whiff of possible conflict came at a wedding.
It was 1969. The groom was Frank "Lefty" Rosenthal, whose Las Vegas
exploits as a casino boss for the Chicago mob would be portrayed by
Robert De Niro in the movie "Casino."
Pavlikowski, then a justice of the
peace, performed the ceremony.
The wedding was at Caesars Palace hotel and casino on the Strip. In an
interview with The Times, Rosenthal said that Pavlikowski's services,
along with the band and a catered reception, were "comped," or
provided without cost, compliments of Caesars Palace.
By 1974, Pavlikowski had been elected a state judge in Las Vegas, and
the Stardust hotel and casino, under Rosenthal's control, did
Pavlikowski a favor. His daughter held a wedding reception at the
Stardust, and it gave him a "comp" worth $2,800 on the $4,000 tab.
The comp was revealed by The Times 2 1/2 years later in a series of
stories about Las Vegas. Pavlikowski first said, "I paid that bill."
Then he said he paid only $1,200 and sent another $1,000 to the
Stardust afterward, but that his check was returned. He said the bill
"was padded" to help waiters with their tips.
The second and third whiffs of conflict came in the mid-1970s when, in
highly publicized actions, the state Gaming Commission and the
Licensing Board of Clark County, which includes Las Vegas, tried to
deny Rosenthal's bid for licensing as a key employee at the Stardust.
He appealed the Gaming Commission's action to state court. Under rules
calling for random selection among the 12 state judges then in Las
Vegas, Rosenthal drew Pavlikowski to hear his case.
A recent search found no statement in court records that Pavlikowski
publicly disclosed his role in Rosenthal's wedding or that he had
accepted a $2,800 comp from a Rosenthal-controlled casino.
Pavlikowski ruled in his favor.
On Feb. 3, 1977, the state Supreme Court overturned the ruling.
While the case was still on appeal, however, Rosenthal filed a
separate court action to prevent denial by the county licensing board.
That case was assigned to Pavlikowski as well.
Again, a recent search found no statement in court records that he
publicly disclosed his ties to Rosenthal.
And again, Pavlikowski ruled for Rosenthal, granting a temporary
restraining order as well as subpoenas to depose board members.
Rosenthal agreed to drop all but one of the board members from the
case: Robert Broadbent, who said in an affidavit that Pavlikowski was
biased in Rosenthal's favor.
The case was transferred to another judge.
In 1989, Rosenthal found reason to go back to court again. The Gaming
Commission had put him on its List of Excluded Persons, known as the
Black Book, a mug-shot catalog of notorious cheaters and mob
associates that barred them from Nevada casinos.
His lawyers removed the judge assigned to his case and, again, under
rules mandating random selection, Rosenthal drew Pavlikowski.
And again, Pavlikowski ruled in Rosenthal's favor, ordering that he be
removed from the Black Book.
In his ruling, Pavlikowski said he had disclosed that he was the judge
who had decided the gaming license disputes. James J. Rankl, the
deputy attorney general who handled the Black Book case, said,
however, that he could not recall such a disclosure.
"I think," Rankl said, "that is something I would have
remembered."
At the time, Pavlikowski was not yet a senior judge, and he could have
been removed with a peremptory challenge. But Dan Reaser, chief deputy
state attorney general for gaming at the time, said there was no need.
"I knew we would prevail at the Supreme Court."
Reaser was right. The high court reversed Pavlikowski. The Black Book
banned Rosenthal from Nevada casinos. On its "exclusion/ejection
list," the state said Rosenthal "was suspected of overseeing a Las
Vegas casino on behalf of organized crime."
In an interview with The Times, Rosenthal was asked: "You're the
expert handicapper, Frank. What were the odds that you'd draw the same
judge each time?"
Rosenthal paused.
"I didn't even know about" the Black Book case, he said.
He was shown copies of Pavlikowski's ruling and the Supreme Court
reversal. "I'll be damned," he said. "You're telling me something
I
didn't know. I should drop [Pavlikowski] a line. Is he still living?"
A transcript of the Black Book proceedings shows that Rosenthal had
flown in from Florida for the case, was present in Pavlikowski's
courtroom and identified himself to the judge by name.
Pavlikowski was given written questions about this and other cases in
this story. He did not respond.
*
Chapter 2
Drunk Drivers
Arrested for drunk driving? Call John Watkins.
That's who Pavlikowski's son turned to when he lost his driver's
license after a drunk-driving arrest in July 1986. The son, Joseph P.
Pavlikowski, was 23 at the time. At an administrative hearing, he
sought a reversal, and John G. Watkins represented him.
Watkins had been Pavlikowski's law clerk — one of several who became
his friends. As private attorneys, they remain fiercely loyal to
Pavlikowski and to one another, according to Andrew S. Myers, who is
one of them. Pavlikowski, in turn, is loyal to them, Myers said. "It's
like a club … a network."
Watkins fought 16 months to regain driving privileges for
Pavlikowski's son. In March 1988, he won. A state court returned the
driver's license.
During that time, according to court records and interviews with two
former prosecutors, Pavlikowski signed 29 orders temporarily returning
driving privileges for Watkins' other clients, even though their
drunk-driving cases were being heard by other judges.
A recent search of court records found no statement from Pavlikowski
that he asked for or received approval from the judges — or publicly
disclosed his relationship with Watkins.
Grenville Pridham, who spent 11 years as a state prosecutor, said he
discovered that many of Pavlikowski's orders were never sent to the
Department of Motor Vehicles. Hence, Pridham said, the DMV was
crediting drunk drivers with serving their suspensions when, in fact,
they were still driving.
The Supreme Court said Pavlikowski had acted improperly and that
Watkins' failure to inform the DMV was "reprehensible." The court
fined Watkins $500.
In some cases, Pavlikowski restored driving privileges for people
facing their second or third drunk-driving convictions.
In April 1997, Watkins asked Pavlikowski to let Paulette O. Riggs
drive while she appealed her second drunk-driving conviction in four
years. This conviction had involved an accident. A prosecutor said
Riggs' blood-alcohol level was more than 2 1/2 times the legal limit
in one conviction and nearly four times in the other.
Pavlikowski allowed her to drive anyway, pending review of her case.
After five months, Riggs' case was transferred to another judge. He
revoked her driving privileges.
"Pavlikowski did favors for Watkins that no judge would do for other
attorneys," said Pridham, the former state prosecutor.
In frustration, prosecutors exercised peremptory challenges in 1994,
1996 and 1997 to remove Pavlikowski from cases involving Watkins.
At Watkins' request, Pavlikowski refused to remove himself.
That might have been a first, according to state Judge Peter Breen of
Reno, who retired in 2005 after 31 years on the bench. "I can't
remember any [other] judge trying to strike down a peremptory
challenge" in favor of himself.
Watkins was given written questions about these and other cases in
this story. He did not respond.
*
Chapter 3
Favoritism?
A Times examination of court records shows that during the decade
before 1999, when he became a senior judge, Pavlikowski determined the
outcome of at least 72 cases in which Watkins or his firm defended
clients accused of drunk driving or other criminal activity.
A recent search of court records found no statement from Pavlikowski
that he publicly disclosed their relationship. In 66 of the cases, or
nearly 90%, Pavlikowski ruled in favor of Watkins' clients by
reducing, dismissing or reversing charges or other actions filed
against them, the records show.
Thirty of those cases were appeals by clients whose driving privileges
had been revoked by DMV hearing officers after drunk-driving arrests.
In 26 of the 30 cases, or more than 86%, Pavlikowski granted the
appeals, restoring driving privileges.
By contrast, 19 of 21 such appeals to Las Vegas state judges, or more
than 90%, normally are denied, according to a recent 12-month survey
by the DMV. "Chances of getting a reversal in [state] court are 1 in
10," said Randall Pike, a longtime Las Vegas criminal defense
attorney.
In California, "your chances for such a reversal are 1 in 50," said
Anthony Scott, a Redondo Beach attorney, who said he had handled about
1,500 drunk-driving cases in the last 14 years.
How did Watkins fare before other judges?
A Times review of 209 DMV license revocations that Watkins appealed to
10 other judges shows they ruled against his clients in 176 cases —
and for them in 33. Hence, his success rate was 16%.
As for the success rate of Watkins' fellow attorneys before
Pavlikowski, a Times examination of 317 drunk-driving appeals shows
that while Pavlikowski granted nearly 90% of Watkins' appeals, he
approved three of 18, or not quite 17%, of the appeals from other
lawyers.
Prosecutors who appealed Pavlikowski's rulings favoring Watkins almost
always succeeded.
In 12 of 14 instances since 1983 in which the state appealed
Pavlikowski's rulings against the DMV in favor of Watkins' clients,
the Nevada Supreme Court reversed Pavlikowski unanimously. The other
two appeals were dismissed.
*
Chapter 4
Appointing Proteges
Pavlikowski's commission as a senior judge in 1999 gave him no pause
in appointing his former law clerks as defense attorneys in criminal
cases.
For one case, budget-strapped Nye County, northwest of Las Vegas, paid
two of his former clerks tens of thousands of dollars — and remodeled
a public library into a courtroom for Pavlikowski.
Pavlikowski was assigned to the case in October 2000. On trial were
Robert "Red" Dyer, Nye County's former public administrator, and his
wife, Jennette. They were charged with stealing from estates of the
deceased while the assets were under their jurisdiction. Dyer had
named his wife as his deputy.
Pavlikowski appointed two of his former clerks, Andrew Myers and
Martin Hastings, to defend them. Records show Pavlikowski had
appointed Hastings in at least 15 other cases.
A recent search of court records found no statement from Pavlikowski
that he publicly disclosed his relationships with Myers and Hastings,
but their connection was no secret. "We knew they were 'Pav's' former
law clerks," Robert S. Beckett, the Nye County prosecutor, recalled.
"Still, I was optimistic…. We have a tight budget and didn't want this
to drag. We felt 'Pav' would move this case along."
Instead, Beckett said, it became one of the longest and most expensive
cases in Nye County history. By the time it ended, court records show,
Pavlikowski had ordered the county to pay Myers' fees totaling about
$52,000 and Hastings' fees totaling about $61,000.
And then there was the courtroom.
Neither Myers nor Hastings wanted to drive the 120-mile round trip
from Las Vegas to the tiny town of Pahrump and back every day on a
two-lane road clogged with trucks, Myers said in an interview.
Beckett said: "We knew 'Pav' didn't want to drive out here" either.
As the trial neared, the official courtroom was closed to remove mold
suspected of causing bloody noses, hair loss, fatigue, memory loss,
rashes and sore throats, according to county records and interviews.
In its place, a corrugated metal building on a rocky lot was converted
into a crude, temporary courtroom.
Pavlikowski balked.
"So we decided to build a courtroom for 'Pav,' " Beckett said. The
county spent about $10,000 to renovate the library. "We even made a
plaque for him."
But, Beckett said, "they still wanted to get the case to Vegas."
Myers and Hastings argued that the Dyers could not get a fair trial in Pahrump.
Beckett, however, produced a survey that said the "majority of the
public has not formed an opinion" on guilt or innocence.
Pavlikowski let jury selection begin, but prosecutors complained that
he granted Myers and Hastings twice the legal number of peremptory
challenges for disqualifying jurors — and the jury pool ran dry.
Two more alternates were needed.
Chief Deputy Dist. Atty. Kirk Vitto asked Pavlikowski "to send out for
additional jurors," court transcripts show. "The sheriff is standing
by and will serve those people. We can have them here after lunch…. We
are so close."
But Pavlikowski said no.
Publicity, he said, made it impossible to summon more jurors who were impartial.
He declared a mistrial.
Moreover, Pavlikowski said, he already had booked a courtroom in Las Vegas.
"We were devastated," Beckett said.
In Las Vegas, five weeks of trial produced 139 witnesses and 800
exhibits for the prosecution. "We were getting the hell beat out of
us," defense attorney Myers recalled. Then the next-to-last
prosecution witness, Terry Rusheen, took the stand.
A former friend of the Dyers, Rusheen said he had been "self-employed
with macaws and cockatoos as a bird trainer and entertainer." The
record shows he blurted: Jennette Dyer "told me to kill her…."
Lawyers for both sides jumped up and shouted, and Pavlikowski ordered
jurors to disregard the statement.
Myers and Hastings demanded a mistrial. Prosecutor Vitto asked
Pavlikowski to poll the jurors on whether they had heard what Rusheen
said.
But Pavlikowski granted the mistrial without asking the jurors anything.
He set a new trial date.
When the defense requested a delay, Vitto objected. And before
Pavlikowski could rule, Jennette Dyer disappeared.
Now Myers had no client. Court records show Pavlikowski appointed him
co-counsel, along with Hastings, for Robert Dyer, the remaining
defendant. Pavlikowski ordered that Myers be paid the "customary rate
of $75 per hour."
Robert Dyer pleaded guilty, then asked to withdraw the plea. Hastings
said Dyer had not been thinking clearly because of oxygen deprivation
caused by jailhouse rules limiting use of his pocket inhaler for
asthma.
Dist. Atty. Beckett said Dyer submitted no evidence to support the claim.
But Pavlikowski granted Hastings' request.
He also reversed himself on the difficulty of picking an impartial
jury in Pahrump and returned the case to Nye County, where a new state
judge had been trying Dyer on separate charges of attempting to bribe
and intimidate a witness.
With that, Hastings withdrew as Dyer's lawyer. Pavlikowski approved.
Myers, for his part, said he never drove back to Pahrump to appear on
Dyer's behalf. He said he did not know that Pavlikowski had appointed
him co-counsel.
In the end, Robert Dyer pleaded no contest to theft and possessing
stolen property, records show. He was sentenced in June 2004 to two to
five years in prison.
The sentence was in addition to a 1- to 2 3/4 -year sentence for
witness tampering.
His wife remains a fugitive.
Hastings did not respond to written questions about the case.
**
Stephen L. Huffaker
Chapter 1
Casino connections
Downtown casinos and the city of Las Vegas sued Carol Pappas and her sons.
A 63-year-old widow, she and her two boys owned a corner strip mall. A
casino consortium, with the city on its side, wanted the land to build
a parking garage as part of downtown redevelopment. The suit claimed
eminent domain.
It went to Huffaker's court in November 1993. He let the consortium
bulldoze the property.
Pappas filed a counterclaim saying the city and the casinos conspired
to take her property improperly and to violate her civil rights.
Huffaker presided over the high-visibility case for 21 months. His
1994-95 financial disclosure statements showed only that he was
receiving a "small interest on stock dividends." But in August 1995,
he revealed in court that he held 12,000 shares of Elsinore Corp.,
owner of the downtown Four Queens hotel and casino, which had a major
stake in the redevelopment.
Grant Gerber, an attorney for Pappas, told Huffaker in a letter: "For
you to preside over this case violates [judicial] canons." Two days
later, Huffaker withdrew.
But he had been issuing rulings for 21 months.
The attorneys for Pappas asked for dismissal of all Huffaker rulings.
Request denied.
They asked to question Huffaker under oath: Did he have other
conflicts of interest in the case?
Request denied.
Their concern about other possible conflicts appeared to be valid. A
nonprofit foundation sponsored by Mirage Resorts Inc., which owned the
Golden Nugget, another casino involved in downtown redevelopment, had
given Huffaker's son, Stephen, an $11,000 scholarship to Yale in 1994,
according to court records.
Casino mogul Stephen A. Wynn owned Mirage at the time.
The year the scholarship was awarded, The Times found, Huffaker was
presiding over the Pappas case and four other lawsuits involving the
Golden Nugget.
A recent search of court records found no statement from Huffaker that
he publicly disclosed the scholarship at the time. Nor did he reveal
it in his annual financial disclosure statements.
The Pappas lawsuit ended in August 2004 when the city settled for $4.5
million, according to court records and an interview with Gerber.
Huffaker did reveal his son's scholarship in 1994 in another case
involving Wynn's casino interests. Moreover, in his financial
disclosure statements for 1994 through 1997, he said his son had
worked at Wynn's Treasure Island hotel and casino, his Shadow Creek
golf club and at the law firm of Schreck, Jones, Bernhard, Woloson &
Godfrey, which represented Wynn's interests.
At various times during those years, Huffaker presided over five
lawsuits involving the law firm or Wynn's casinos, according to court
records.
In a sixth case, Huffaker presided for nearly a year before Schreck
attorney James R. Chamberlain reminded him that his "son is employed
as a runner for the summer months at the firm," court minutes show.
The opposing lawyer had no objection, according to the minutes.
In a seventh case, a lawyer objected to a similar conflict. The lawyer
represented Joseph Canterino, then a 40-year-old New York dockworker
who sued the Mirage. Canterino said he suffered mental illness after
being savagely beaten and robbed of $70,000 while he stayed at the
hotel in 1992.
Canterino blamed lax security.
A jury awarded Canterino $5.8 million, court records show.
Huffaker called the judgment "absolutely shocking," according to the
records.
He reduced it to $1.5 million.
In an affidavit, Canterino's lawyer, Eckley M. Keach, said Huffaker
had failed during the case to disclose Stephen Huffaker's scholarship.
Huffaker replied that he had told Keach and a Mirage attorney about
the scholarship.
Both said they could recall no such disclosure.
In 2002, the case was settled for an undisclosed amount.
By then, Huffaker had announced he would not seek reelection, and the
Supreme Court commissioned him as a senior judge.
He was given written questions about these cases by The Times, but he
did not respond.
Huffaker received the senior judge commission despite being one of the
most avoided state judges in Las Vegas.
During 2001, for instance, the year before he was appointed, attorneys
dodged his courtroom 163 times by exercising one-time peremptory
challenges to remove a judge without explanation, court records show.
Now, as a senior judge, Huffaker is immune from peremptory challenge.
*
Times researcher Nona Yates contributed to this report.
Goodman's e-mail address is mj.good@yahoo.com;
Rempel's is
william.rempel@latimes.com