CARSON CITY, Nev. (Legal Newsline) - A hospital seeking to overturn a $49 million wrongful-death judgment lost its challenge to how two judges were appointed to the Nevada Supreme Court to replace justices who had to recuse themselves.
Separate sections of Nevada Constitution authorize the governor or the chief justice of the state Supreme Court to appoint alternates, the Supreme Court ruled, rejecting arguments the provisions conflicted and the governor’s authority was superior.
A dissenting justice said “public confidence in the legitimacy of the judiciary” required a more transparent system, such as assigning replacement justices through random selection.
Valley Health System appealed a $48.6 million wrongful death judgment for breaching the standard of care and fiduciary duty to a deceased patient. Supreme Court Justices Elissa Cadish and Patricia Lee were disqualified from hearing the appeal, so the Chief Justice Lidia Stiglich assigned senior justices Michael Cherry and Abbi Silver in their place.
Article 6, Section 19(1)(c) of the state constitution states the chief justice “may assign” a senior justice to the court and in the 45 years since the section was added in an amendment to the constitution chief justices have done that, the court observed. Valley Health argued Section 4(2) of the constitution trumps, giving the governor authority to appoint lower-court justices to temporary assignments on the Supreme Court. The clause says “the governor is authorized and empowered to designate any district judge or judges to sit” on the high court.
“Nothing in section 4(2) gives the governor the sole power to select substitutes for disqualified justices, and to the extent that section can be read otherwise, the provisions must be harmonized,” the Supreme Court ruled, however.
“Under the constitution, Nevada has two methods for selecting substitutes for disqualified justices: the governor can designate lower court judges, or the chief justice can assign senior justices,” the court concluded.
Justice Kristina Pickering dissented in part, saying public confidence would be undermined by allowing judges or the governor to pick justices to hear important cases, instead of assigning them at random.
“Discretionary selection in individual cases has provoked controversy in states elsewhere because it can `seem to invite political considerations to enter and perhaps dominate the process,’” she wrote.
Even with two recusals, she went on, there were an odd number of justices left to decide the case without the chance of a deadlock.