WINNEMUCCA — The Nevada Supreme Court has denied the request for a rehearing in Humboldt County Public Defender (Matt Stermitz)  v 6^th Judicial District Court (Judge Richard Wagner).

The decision of the court made in May 2010 will stand.

Bottom line:  all of Stermitz’s cases will continue to be heard in Department 2, currently presided over by Judge Michael Montero.

CASE HISTORY:  The dispute between Stermitz and Wagner was ongoing when the situation escalated in 2009 with each accusing the other of unethical behavior.

On March 9, 2009, Judge Wagner issued a standing order of recusal for all cases involving Stermitz because he could no longer be impartial in cases where Stermitz appeared as the attorney.

The result of that order was the necessary transfer of all Stermitz’s cases to Judge Montero’s court.

Then Wagner reconsidered the matter.  He considered the workload that would be transferred to Judge Montero, who was just elected two months before.

Seeking to correct what he saw as an imbalance, he issued a second order on March 12 recusing Stermitz from his courtroom.

The cases that had been Stermitz’s were reassigned to the Pershing County Public Defender, Steve Cochran, then acting as the Humboldt County conflict attorney.

Those two orders were the subject of the Writ of Prohibition filed by Stermitz, seeking to bar Wagner from reassigning cases in which he was the attorney of record to another attorney.

In oral arguments held before the NSC in January 2010, Stermitz noted that 1) it was not fair to criminal defendants to start off with one attorney at the justice court level then get someone unfamiliar with the case at the district court level, and 2) once the judge recused himself he had no authority to take any further action.

The NSC agreed with Stermitz.  In their written response, the NSC ruled once Judge Wagner recused himself from all cases involving Stermitz on March 9, he had no authority to take any further action.

However, they agreed with Wagner that sufficient evidence of bias existed as to make it proper for him to have recused himself.

REQUEST FOR REHEARING:  The rehearing came at the request of Pershing County and the Pershing County Public Defender Steve Cochran. They requested the rehearing on the grounds there were issues the NSC neglected to consider in their original decision.

The primary issue was a judge’s authority to arrange the court’s calendar and regulate the business of the court (NRS 1.230(5)).

A rehearing may be granted where the court has overlooked, misapplied, or failed to consider a statute or procedure, but issues may not be raised for the first time.

In the matter at hand, the NSC noted, they didn’t so much neglect to consider the matter as someone forgot to bring it up.

They note, “In our May 5, 2010 order, we did not overlook or misapprehend any material facts, nor did we overlook, misapply, or fail to consider any legal authority.  The real party in interest failed to expressly raise NRS 1.230(5) during this court’s consideration of the original writ petition as a basis for sustaining the validity of the judge’s post-disqualification orders …”

But that was irrelevant to the eventual disposition, they went on, because recusing an attorney from the courtroom was a little more than merely arranging the court calendar or taking care of court business.

A disqualified judge may make housekeeping decisions, but not ones that effect the outcome of a case.

Of the attempt to recuse the public defender they noted, “…these actions were clearly discretionary judicial acts.”

Previous Posts:

NSC declines to intervene in contrary actions taken by district court judges 

Parties seek a rehearing in Stermitz v Wagner 

Fall-out from NSC decision: 75 cases transferred to District Court Department 2 

Judge accuses public defender of creating havoc 

NSC issues decision in dispute between district court judge and public defender 

Dispute spills over into the courtroom 

NSC hears arguments in Stermitz v Wagner