Nevada Supreme Court Ruling: Judge Melanie Andress-Tobiasson wins round one

LAS VEGAS — The Nevada Supreme Court ruled Friday that Las Vegas Township Judge Melanie Andress-Tobiasson is not required to answer written questions from the state Commission on Judicial Discipline under oath until a formal statement of charges are filed against the judge by the Commission.

The Court stated that Tobiasson can voluntarily answer the Commission’s questions before a formal statement of charges are filed, but the Commission cannot demand her to answer.

The order by the Nevada Supreme Court

This is an original petition for a writ of mandamus or prohibition in a judicial discipline matter. Judge Melanie Andress-Tobiasson asks us to prevent the Nevada Commission on Judicial Discipline from requiring her to answer what she calls “interrogatories” before the Commission has filed a formal statement of charges against her. We grant the petition in part, agreeing that the Commission does not have the authority to require that Andress-Tobiasson answer the Commission’s written questions under oath. But to the extent Andress-Tobiasson asks us to prohibit the Commission from asking her to voluntarily respond to written questions before a formal statement of charges, we deny the petition.

The Commission filed a complaint against Andress-Tobiasson but has not yet filed a formal statement of charges. (“Complaint’ means information in any form and from any source that alleges or implies judicial misconduct or incapacity.”), (“Formal statement of charges’ means a document setting forth the specific acts of judicial misconduct or incapacity, including any amendment thereto.”). After an investigation into the complaint, the Commission determined that “there is a reasonable probability that the evidence available for introduction at a formal hearing could clearly and convincingly establish grounds for disciplinary action against” Andress-Tobiasson.  Following this initial determination, and as part of the Commission’s inquiry into whether to file a formal statement of charges, the Commission required Andress-Tobiasson to respond to the complaint against her. See NRS 1.4667(3) (“If the Commission determines that such a reasonable probability exists, the Commission shall require the judge to respond to the complaint in accordance with procedural rules adopted by the Commission.”).

In doing so, the Commission asked Andress-Tobiasson to respond generally to a list of issues from the complaint the Commission wanted addressed, as well as specifically to a written set of questions. The introduction to the set of questions tells Andress-Tobiasson that she “is required to answer the questions separately and fully in writing under oath.” After receiving the questions, Andress-Tobiasson petitioned this court for extraordinary relief, requesting that the Commission’s “set of interrogatories” be withdrawn. While the amicus curiae, Nevada Judges of Limited Jurisdiction, raises additional issues with the Commission’s disciplinary process, Andress-Tobiasson’s petition only requests relief from the set of written questions that the Commission directed her to answer under oath.

We have original jurisdiction to grant extraordinary writ relief in Commission proceedings.  We may exercise our discretion to issue a writ of prohibition to arrest the proceedings of the Commission “when such proceedings are without or in excess of the jurisdiction of the Commission, and “where there is not a plain, speedy and adequate remedy in the ordinary course of law.  No statute or rule authorizes the Commission to require a judge to answer written questions under oath before a formal statement of charges. And it would be inadequate to allow the Commission to require Andress-Tobiasson to answer the questions under oath now and forgo her challenge to the procedure until the Commission issues an appealable decision if it ever does.  We, therefore, exercise our discretion to grant the petition to the extent Andress-Tobiasson requests relief from answering the Commission’s written questions under oath.

The Commission relies on Article 6, Section 21(7) of the Nevada Constitution, NRS 1.462, NRS 1.4667, Commission Procedural Rule 12(3), and Nevada Code of Judicial Conduct (NCJC) Rule 2.16(A) to support requiring a judge to answer written questions under oath at this preliminary stage in the disciplinary process. The Commission concedes that these authorities do not expressly require a response under oath. In contrast, other statutory provisions and the Commission’s procedural rules explicitly provide for responses under oath after a formal statement of charges. See NRS 1.467(6) (requiring a judge to answer a formal statement of charges “under oath”); Commission Procedural Rule 22 (requiring that, at the formal hearing following the formal statement of charges, 101 testimony must be under oath”).

To be clear, a judge owes an ethical duty to “cooperate and be candid and honest” with the Commission.  A judge must also “respond to a complaint in accordance with procedural rules adopted by the Commission.”  But nothing in our statutes or the Commission’s procedural rules authorize the Commission to demand that a judge answer questions under oath during the investigative phase, before a formal statement of charges was issued. We, therefore, grant Andress-Tobiasson’s request for a writ of prohibition to prevent the Commission from requiring her to answer questions under oath at this pre-adjudicative stage of the disciplinary process.

To the extent Andress-Tobiasson asks that we forbid the Commission from asking her questions before a formal statement of charges, regardless of an oath requirement, we deny her petition. The Commission concedes that a response to its questions is voluntary and that it will not apply Procedural Rule 12(3)’s penalty of default to AndressTobiasson for failure to answer the written questions. See Commission Procedural Rule 12(3) (“Failure of the [judge] to answer the complaint shall be deemed an admission that the facts alleged in the complaint are true and establish grounds for discipline.”). While Andress-Tobiasson still has ethical duties of honesty and cooperation, the lack of adjudicative consequences as to the charges under consideration for failing to respond to the questions alleviates the due process concerns amicus curiae suggest.

Furthermore, the complaint and the questions the Commission sent Andress-Tobiasson are not in the record and AndressTobiasson has not raised any other issues regarding the propriety of the specific questions posed to her. On this record, Andress-Tobiasson has not demonstrated that extraordinary relief is warranted to prevent the Commission from sending her written questions and asking her to voluntarily answer them during this stage of the disciplinary process. We, therefore, order the petition granted in part and denied in part.

We direct the clerk of this court to issue a writ of prohibition preventing the Nevada Commission on Judicial Discipline from requiring Judge Melanie Andress-Tobiasson to answer written questions under oath before a formal statement of charges is filed against her.

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The Courts ruling stemmed from oral arguments that were heard from both sides on April 2 of this year.

The Commission opened an investigation on Tobiasson after she appeared on an April 12, 2018 KLAS-TV News 8 interview.

The focus of the investigation was to ascertain if Tobiasson used her position on the bench to solicit the assistance of the Las Vegas Metropolitan Police Department to intervene in a possible prostitution ring that she feared her teenage daughter had possibly become involved in.

It is now up to the Nevada Commission on Judicial Discipline on whether they will file a formal statement of charges against Tobiasson.

The Baltimore Post-Examiner has published several articles on the plight of Judge Tobiasson including the March 15 article, “Why is the Las Vegas media silent on Judge Melanie Andress-Tobiasson.”

For more information read, “Las Vegas judge’s statement to judicial investigator about KLAS-TV interview conflicts with the statement made to the Baltimore Post-Examiner” and  Las Vegas Judge Melanie Andress Tobiasson says she threatened suspect in unsolved murders then kicked in his door.

Doug Poppa

Doug authored over 135 articles on the October 1, 2017 Las Vegas Massacre, more than any other single journalist in the country. He investigates stories on corruption, law enforcement and crime. Doug is a US Army Military Police Veteran, former police officer, deputy sheriff and criminal investigator. Doug spent 20 years in the hotel/casino industry as an investigator and then as Director of Security and Surveillance. He also spent a short time with the US Dept. of Homeland Security, Transportation Security Administration. In 1986 Doug was awarded Criminal Investigator of the Year by the Loudoun County Sheriff’s Office in Virginia for his undercover work in narcotics enforcement. In 1992 and 1993 Doug testified in court that a sheriff’s office official and the county prosecutor withheld exculpatory evidence during the 1988 trial of a man accused of the attempted murder of his wife. Doug’s testimony led to a judge’s decision to order the release of the man from prison in 1992 and awarded him a new trial, in which he was later acquitted. As a result of Doug breaking the police “blue wall of silence,” he was fired by the county sheriff. His story was featured on Inside Edition, Current Affair and CBS News’ “Street Stories with Ed Bradley”. In 1992 after losing his job, at the request of the Federal Bureau of Investigation, Doug infiltrated a group of men who were plotting the kidnapping of a Dupont fortune heir and his wife. Doug has been a guest on national television and radio programs speaking on the stories he now writes as an investigative journalist.