Nevada Commission on Judicial Discipline rules to continue investigation of Judges Melanie Andress-Tobiasson and Amy Chelini

LAS VEGAS — The Nevada Commission on Judicial Discipline ruled to continue the investigation into Las Vegas Township Justice Court Judges Melanie Andress-Tobiasson and Amy Chelini,  who are accused of judicial misconduct.

That matter was set for a two-day consolidated public interim suspension hearing before the Commission commencing on December 16, 2019, in Las Vegas, Nevada. The ruling was released on December 24.

Thomas C. Bradley, Esq. and Brian R. Hutchins, Esq. served as the Prosecuting Officers to the Commission.  Judge Andress-Tobiasson was represented by William B. Terry, Esq. and Judge Chelini was represented by Thomas F. Pitaro, Esq.  During the hearing, the Commission considered all evidence and testimony presented.

COMMISSION’S DECISION 

In exercising its discretion as conferred on the Commission pursuant to Art. 6, Sec. 21(9) of the Nevada Constitution, the Commission has decided to not take action against Respondents [Tobiasson and Chelini] at this time.

The Commission’s investigations against Respondents shall continue in accordance with Nevada law until such time that the Commission decides, if at all, to file a Formal Statement of Charges against Respondents.  Respondents are ordered to fully cooperate with the Commission’s ongoing investigations against them.

EXCERPTS FROM THE COMMISSION’S ORDER

At its meeting on May 31, 2019, the Commission unanimously authorized the Executive Director of the Commission to file complaints against the Respondents,   based on objectively verifiable evidence from which a reasonable inference could be drawn that Respondents were abusing the prestige of their respective offices, interfering in Human Resource matters pertaining to the assignment and discipline of court clerks, creating a hostile work environment for Las Vegas Justice Court Administration and staff, as well as various other allegations of misconduct.  The Commission authorized a thorough investigation into these matters.

On October 18, 2019, the Commission unanimously decided to suspend the Respondents with pay pursuant to NRS 1.4675, based on the results of the Commission’s investigation which revealed evidence of:

1.) Justice Court administrators and others being bullied, harassed, threatened and intimidated by Respondents, thereby creating a hostile work environment.

2.) The Justice Court Administrator, Justice Court Division Administrator and the Justice Court Clerk Supervisor being terminated allegedly in retaliation for either informing the Chief Judge of issues involving Respondents or for cooperating with the Commission’s investigations of Respondents.

3.) Other current Justice Court employees being retaliated against for allegedly either filing a complaint with the Commission and/or cooperating with the Commission’s investigations of Respondents.

4.) Justice Court administrators and supervisors being routinely addressed as “Mother Fu**ers” and “Fu**king Bitches” by Respondents during working hours and toward and around employees.

5.) Respondent Tobiasson on more than one occasion wearing a sweater inside and around the Justice Court that reads “Eat Sh*t and Die”.

In her interview with the Commission’s investigator and at the hearing, Respondent Tobiasson admitted to wearing the sweater and even remarked that “I guess some could say it was inappropriate.”   There was also evidence admitted at the hearing of a photo (taken in Respondent Tobiasson’s judicial chambers and posted to her personal Facebook page) of Respondent Tobiasson posing with a life-sized cardboard cutout of a famous actor (located in her judicial chambers even as of the date of the hearing) with her hand over the actor’s groin area.

6.) The Justice Court’s daily operations in servicing the public being plagued by strife and internal conflict by virtue of the practice of  “blacklisting” and “reverse-blacklisting” court clerks by Respondents and others.

“Blacklisting” refers to the practice of judges restricting certain clerks from working in their judicial departments, while “reverse-blacklisting” refers to the practice of judges restricting certain clerks from working in other judicial departments.

See Chief Judge Bonaventure’s email to all Las Vegas Justice Court Judges dated December 31, 2015.  Chief Judge Bonaventure also stated in his email that some court clerks “manipulate judges or misconduct themselves to produce these results.  I have also been made aware that some judges refuse to report errors clerks make or refuse to allow clerks to be disciplined for errors. This all has created an unworkable, impractical, unrealistic position for court administration and staff.”

The evidentiary record supported that Respondent Tobiasson allegedly ordered two female court clerks, who filed complaints against Respondent Tobiasson’s male court clerk for improper behavior toward them, to not be assigned to her court.

The evidentiary record further demonstrated that if anyone filed a complaint against Respondent Chelini’s court clerk for improper behavior toward them, Respondent would allegedly “blacklist” them and not permit them in her courtroom.

7.) Respondents’ interference in Justice Court Administration’s court clerk assignments as well as in disciplinary investigations and actions involving their respective court clerks. Moreover, even the current Justice Court Administrator, Grissell Hernandez, characterized the Las Vegas Justice Court as a “mess” and a “sh*t show across the board” due to lack of leadership and supervision.

The evidentiary record before the Commission revealed that Respondents would demand that court clerk transfers not take place, disciplinary actions not be taken and/or imposed and, in some cases, would order Justice Court Administration to not speak to their respective clerks or discipline them in any way, despite evidence that these clerks created a hostile work environment by bullying, demeaning and belittling other court clerks and, with respect to Respondent Tobiasson’s court clerk, exhibiting improper behavior toward women.

The evidentiary record before the Commission further revealed that Respondent Chelini demanded that any coaching and counseling ordered to be given to her court clerk be rescinded, even if it had already occurred, so it would not appear on her court clerk’s employment record.

Based on its detailed review of the evidentiary record at the time, including Investigation Reports submitted by the Commission’s investigator, along with multiple supporting exhibits and witness interviews and related transcripts, the Commission decided to suspend the Respondents with pay.

The Nevada Supreme Court has offered this Commission guidance in applying evidence to suspension hearings brought before it.  Moreover, the Nevada Supreme Court further observed that “focusing the inquiry on whether a judge poses a current or future threat does not require the Commission to disregard evidence of past misconduct that would indicate an ongoing problem.  Past misconduct is a reasonable basis upon which to predict future conduct, and we have expressly recognized this premise in several legal contexts.”

CLARK COUNTY, NEVADA NOT COMPLYING WITH SUBPOENAS

The Commission also reminds Clark County that they have a legal obligation to comply with constitutionally authorized subpoenas duces tecum issued by the Commission in connection with these matters. Under the Nevada Constitution, as a Court of Judicial Performance, the Commission is authorized to “summon witnesses to appear and testify under oath and compel the production of books, papers, documents and records.”

To date, Clark County has rejected, and is currently refusing to comply with, certain subpoenas duces tecum issued by the Commission, the effect of which is obstructing the Commission’s investigations against Respondents, thereby delaying the receipt of critical documents and information needed by the Commission to further proceed in the investigatory phase of the judicial discipline process.

If the Commission decided to suspend Respondents at this time, NRS 1.4675(7) requires that the Prosecuting Officers file Formal Statement of Charges against Respondents within just sixty (60) days.  As noted in Halverson, “if the Commission unduly prolongs its decision about whether to file formal charges, so that the suspension extends beyond what could reasonably be characterized as temporary, then the due process analysis could change.”  Not only does much more evidence remain to be gathered and analyzed (interrupted by the public suspension hearing), but the ’60 day’ rule would inhibit the Commission from continuing its thorough investigations.

Consequently, to avoid violating NRS 1.4675(7), as well as any due process challenges identified in Halverson based on delays in filing formal charges, the Commission has decided to forego the expediency of suspending the Respondents at this time in favor of continuing its investigations, particularly in light of the anticipated delays associated with Clark County’s ongoing refusal to comply with the Commission’s subpoenas duces tecum, as well as the existence of additional information and evidence received by the Commission following the issuance of the Notices of Intent to Suspend Respondents and during the hearing, which are currently being investigated and followed-up on by the Commission.

The Commission found it very troubling that Clark County’s Office of Diversity (“OOD”) provided a closing memorandum of a highly confidential employee investigation concerning one of the Prosecuting Officers’ witnesses to two of Respondents’ witnesses as a “public record.” This Memorandum was subsequently included in Respondents’ hearing exhibits by Respondents’ counsel just a few days prior to the hearing and apparently provided to a reporter who has since publicly disseminated such information, all the while the Commission’s subpoena duces tecum for certain personnel records remain rejected to this day along with the Commission’s subpoena duces tecum for electronic mail messages for certain former Clark County employees which have also not been produced to date.

In the course of the Commission hearing, however, the Justice Court Administrator, Grissell Hernandez, after refusing to answer the Prosecuting Officer’s question regarding the identity of the person who filed the complaint with the OOD, and after having to be ordered to do so by Presiding Judge Mason Simons, eventually testified that the individual who filed the complaint against the witness in question was in fact Respondent Chelini’s court clerk.

If Clark County continues to reject the Commission’s lawfully issued subpoenas duces tecum, the Commission will be forced to hold Clark County in contempt of court and impose a penalty to enforce the subpoenas pursuant to NRS 1.466(2) and Commission Procedural Rule 20.  If Clark County continues to refuse to comply, the Commission shall then follow the procedures set forth in NRS 1.466(3),(4) and (5) before the Clark County District Court to address Clark County’s continued non-compliance.

Moreover, based on testimony during the hearing by Respondents and certain witnesses, the Commission feels compelled to point out that not one Las Vegas Justice Court judge who testified on behalf of Respondents could bring themselves to admit that routine utterances of sub-judicial standard profanity inside the Las Vegas Justice Center, during working hours and toward and around employees, and the wearing of clothing inside and around the Las Vegas Justice Court containing vulgar statements, were inappropriate or a violation of the Code of Judicial Conduct.

Remarkably, these occurrences were dismissed by Respondents’ witnesses and counsel as being (i) merely colloquial phrases that are also heard on television and in songs; (ii) simply the manner in which someone is accustomed to speaking or greeting people; and (iii) in the eyes of the beholder, thereby seemingly relegating such vulgarities to acceptable behavior for judges who represent the judicial system of this State since they did not occur inside a courtroom.

THE CODE OF JUDICIAL CONDUCT

In case the meaning of judicial integrity, honor, respect and dignity are in doubt, the Commission, Respondents and respective counsel, as well as other members of the judiciary, the press and the public, should be mindful of what is stated in the Preamble to the Code of Judicial Conduct:

1.) An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.

2.) Judges should maintain the dignity of judicial office at all times and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.

3.) The Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies.

It is further ordered pursuant to Code Rule 2.16(B) that no person known or suspected to have assisted or cooperated with an investigation of a judge shall be retaliated against, directly or indirectly.

COMMISSION WITNESS EXPRESSED FEAR FOR HER PHYSICAL SAFETY

The Commission also noted in their order:

In their respective Commission investigative interviews, several witnesses stated that they and others were scared of Respondents and in fear of losing their jobs.  One witness even expressed a fear of her physical safety based on statements made by Respondent Tobiasson that she [Respondent Tobiasson] knows a lot of people in town and that they “take care of things.” This witness perceived Respondent Tobiasson’s statements to be veiled threats of what Respondent could do to her if she [the witness] did not comply with Respondent Tobiasson’s demands.

The Baltimore Post-Examiner has obtained a 2018 email message that was sent by Judge Melanie Andress-Tobiasson to a retired Las Vegas Metropolitan Police Department detective in which Tobiasson wrote: “The irony that I will have to rely on pimps and outlaws to protect me from cops and prosecutors.  When you realize that the bad guys aren’t really all that bad and they have far more honor than the good guys.”

Note: Judge Melanie Andress-Tobiasson is currently under investigation by the Nevada Commission on Judicial Discipline for other complaints originating in 2018 that are unrelated to the current investigation.

For further on Judge Tobiasson’s testimony before the Commission on December 17, 2019, read our December 19^th article, ‘Did Las Vegas Judge Melanie Andress-Tobiasson lie to the Judicial Commission about Baltimore Post-Examiner interview?’