WINNEMUCCA — Parties connected to Stermitz v Wagner have petitioned the Nevada Supreme Court for a rehearing, and the justices have ordered Humboldt County Public Defender Matt Stermitz to respond to issues raised in the petition.

A party in a case may petition for a rehearing if the court has overlooked, misapplied or failed to consider a statute.  The two issues the court ordered Stermitz to respond to were:  1) that case assignment falls within the boundaries of court business, 2) the applicability of the de facto officer principles in Lueck v Teuton.

The rehearing request came from Pershing County Jim Shirley who was joined by Pershing County Public Defender Steve Cochran and Judge Richard Wagner. Shirley and Cochran were parties in the original case.

At issue are the actions taken by Wagner last year once he determined for himself he could no longer hear cases where Stermitz was the attorney for the defense due to an ongoing dispute between the two men.

On March 9, 2009 Wagner issued an order recusing himself from Stermitz’s cases. All cases involving Stermitz were transferred to department 2 (Judge Michael Montero’s court) and Wagner took no further action in those cases.

On March 12, Wagner issued a second order wherein all cases coming out of Union Township Justice Court and into Judge Wagner’s court where Stermitz was the attorney for the defendant were reassigned to conflict counsel, which was the Pershing County Public Defender Steve Cochran. Wagner noted it would be unfair to Judge Montero to receive the lion’s share of criminal cases coming out of justice court.

In Stermitz v Wagner the justices ruled Wagner should have taken no further action after the March 9 order.  But in the petition for rehearing, Shirley noted the second order fell within NRS statutes because it dealt directly with case management and the regulation of court business.

He wrote, “...the reassignment orders were entered to effectuate case management. A case management order/assignment of cases is the classic example of the regulation of the business of the court.”

Judge Wagner is, in fact, elected to exercise his authority over the business of his court, the petition notes.

The March 12 order merely regulated court business by outlining how the appointment of legal counsel would be handled on new cases involving indigent defendants.

Stermitz was given 15 days to respond to the issues raised in the petition.

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NSC issues decision in dispute between judge and public defender

NSC hears arguments in Stermitz v Wagner