CARSON CITY — Humboldt County Public Defender Matt Stermitz  went before the Nevada Supreme Court on Monday (January 4) in an effort to have the Justices evaluate, and possibly reverse, orders issued by Judge Richard Wagner of the 6^th Judicial District Court.  The orders removed Stermitz from Wagner’s court due to ongoing conflict between the two.

One of the issues before the supreme court, as was noted by Justice Michael Douglas, was the question of whether or not Judge Wagner effectively fired the Humboldt County public defender.

“In another, just a broader picture, are we giving the judge the right to fire the public defender?” Douglas asked Pershing County DA Jim Shirley.

“That’s a good question,” Shirley said in response.

“That’s the question,” Douglas replied. “That’s the question put before us.”

A Personal Matter:

There has been friction between Stermitz and Wagner for more than a year.  Stermitz contends the judge improperly interfered in the business of the Humboldt County Public Defender.  For his part, Wagner maintains Stermitz launched personal attacks against him.

The dispute heated up in March 2009 when Stermitz delivered a letter to Wagner.  The letter was not made public by either side.  However, Judge Wagner has said publicly the letter attacked his integrity and questioned his honesty.

Stermitz acknowledged he “may have been a little aggressive with (his) language” in the letter.

The letter from Stermitz was followed by two orders from Judge Wagner.  The orders were the subject of the controversy.

Wagner’s Actions:

On March 9 Wagner issued an Order of Recusal in which he removed himself from all cases involving Stermitz.  Wagner cited rules from the Judicial Canon that require judges to remove themselves from cases where there is bias or the perception of bias.

At that point, all cases involving Stermitz were transferred to the other 6^th Judicial District Court Judge, Michael Montero.

In a second order issued just three days later on March 12, Wagner noted that moving all Stermitz’s cases was unfair to Judge Montero -- who would receive the lion’s share of the criminal cases coming out of justice court.

Instead, Wagner ordered Stermitz removed from all cases coming before him.   The order included a stipulation that other attorneys be appointed in Stermitz’s place.

Stermitz’s Suit Against Wagner:

Stermitz asked the Justices to rescind the orders.

The first order was not valid, he argued, because there wasn’t a sufficient showing of proof regarding the judge’s bias.

However, Stermitz primarily focused on the second order saying “ … if the judge has decided that he’s biased against me and he’s excused himself as of March 9 then he shouldn’t be entering any other orders.”

Additionally, Stermitz suggested the orders created a negative implication for some of his clients.  He pointed out the defendants would have one attorney at the preliminary hearing then suddenly have someone else if the case was to go before Judge Wagner. In addition, there’s a cost for the public to hire attorneys to take Stermitz’s place in Judge Wagner’s courtroom.

Stermitz ultimately asked the court to rescind the March 12 order, in which Wagner recused Stermitz from the courtroom, and uphold the March 9 order, which would result in all of Stermitz’s cases going before Judge Montero.  Stermitz said the caseloads could be balanced if more of the juvenile and civil cases were transferred to Judge Wagner.

Wagner’s Defense:

Wagner was represented at the NSC by Peter Newman, who made no effort to deny Wagner’s bias where Stermitz was concerned.

Peter Newman

“ …we’ve shown why this judge does have a reason to be biased against Mr. Stermitz.  I mean Mr. Stermitz has attacked this judge personally on an ad hominem basis, called him dishonest, and has done things to him that I think anybody … any reasonable judge would be biased.”

Newman also addressed the necessity of the judge recusing himself for the sake of the criminal defendants.  “Any rational criminal defendant would be concerned that his lawyer, the guy that’s representing him, is in extreme disfavor with the judge. That would bother anybody,” he said.

Newman asked the court to uphold the orders issued by Wagner as they were consistent with the rules of the Judicial Code.

Other Case Participants:

Russell Smith, the attorney for Stermitz’s employer, Humboldt County, was on hand but did not address the court.  Pershing County DA Jim Shirley, representing the Pershing County Board of Commissioners, as employer for the Pershing County Public Defender Steve Cochran, was also on hand and did address the court.

Pershing County DA Jim Shirley

Shirley argued the orders issued by Wagner were appropriate and disagreed when asked if recusing Stermitz from the courtroom was akin to his being fired.

“Did he fire (Stermitz) from doing his duties in the justice’s court, the juvenile court, or the other district court, or the drug court?  He was not  fired from those cases.  (Stermitz) just can’t have cases in front of Judge Wagner,” Shirley said.

Justice James Hardesty followed-up, “Are you conceding the effect of the Judge’s order is the firing of the Humboldt County Public Defender’s Office in cases in district court in the 6^th Judicial District?”

Shirley said he wasn’t conceding that.

Jim Shirley, Russell Smith, and Peter Newman.

Although Pershing County is in the 6^th Judicial District Court, and there were problems between Cochran and Stermitz that allegedly involved Wagner, the Justices stated their preference to remain focused on the issue between the judge and the Humboldt County public defender.

Whether or not Judge Wagner effectively fired a public defender by ordering his cases be turned over to outside attorneys will be up to the Justices to decide.

SPJ will release the NSC decision when it becomes available.

See page 2 for a complete transcript of the hearing.  It is important to note the transcript is not an official document from the Nevada Supreme Court.  The transcript was made by SPJ staff from the recording made available through the NSC.