12 15 08 Nash Holmes Response to Halverson Motion for Prelim Injunct NVD Doc 37 1006

7/29/2019 12 15 08 Nash Holmes Response to Halverson Motion for Prelim Injunct NVD Doc 37 1006

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CATHERINE CORTEZ MASTOAttorney GeneralJILL C. DAVISSenior Deputy Attorney GeneralNevada Bar No. 8418Bureau of Public AffairsPublic Safety Division555 East Washington Avenue, #3900Las Vegas, Nevada 89101Tel: (702) 486-3420Fax: (702) 486-3773Attorneys for Defendant,DOROTHY N. HOLMES, SPECIAL PROSECUTOR

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

ELIZABETH HALVERSON, a citizen of Nevada,

Plaintiff,

v.

NEVADA COMMISSION ON JUDICIALDISCIPLINE, an agency of the State of Nevada,and DOROTHY N. HOLMES, individually, and inher official capacity as Special Prosecutor for the

Nevada Commission on Judicial Discipline,

Defendants.

CASE NO. 2:08-cv-01006-RCJ-LRL

RESPONSE TO MOTION FORPRELIMINARY INJUNCTION

Defendant, DOROTHY N. HOLMES, by and through her attorneys, CATHERIN

CORTEZ MASTO, Attorney General, and JILL C. DAVIS, Senior Deputy Attorney here

submit this Opposition to Plaintiffs Motion for Preliminary Injunction.

MEMORANDUM OF POINTS AND AUTHORITIES

I. NATURE OF MOTION

Plaintiffs preliminary injunction is not proper under Younger v. Harris, 401 U.S. 37,

(1971). Plaintiff is attempting to circumvent the proper procedures by filing this action

Federal Court. Plaintiff under NRS 1.4675(4) notes that a judge may appeal any suspensi

to the Nevada Supreme Court. The Nevada Supreme Court is where this matter should

Case 2:08-cv-01006-RCJ-LRL Document 37 Filed 12/15/08 Page 1 of 18


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heard, not in Federal Court. This is a state court matter, and under statute and case law, t

Federal Court is without jurisdiction to hear this matter.

Furthermore, the Motion for Preliminary Injunction is now moot as the Judic

Disciplinary Commission has ruled. Specifically to Special Prosecutor Dorothy Nash Holme

the issue regarding her letters sent on behalf of government entities was addressed by t

Judicial Disciplinary Commission, and as stated above, any issues regarding the ruling shou

have been appealed to the Nevada Supreme Court.

Former Judge Halverson is attempting to have the Federal Court interfere with a Sta

action. There is no legal basis for this Court to essentially overrule motions decided by t

Judicial Disciplinary Commission regarding the Dorothy Nash Holmes. There is no legal bas

for this case to be in Federal Court, and therefore the matter must be dismissed w

prejudice.

II. STATEMENT OF FACTS

A. PROCEDURAL HISTORY

1. INFORMAL PROCEEDINGS

On April 25, 2007, the underlying disciplinary action was commenced by way

Complaint based upon allegations of judicial misconduct engaged in by former District Judg

Elizabeth Halverson (hereinafter Plaintiff or Halverson), which was filed with the Nevad

Commission on Judicial Discipline (hereinafter Defendant Commission or Commission

Upon review of the allegations of misconduct, the Commission determined that there w

sufficient basis to temporarily suspend Plaintiff Halverson from her duties as District Jud

and entered an order on May 10, 2007 reflecting such. Thereafter, Plaintiff Halvers

retained three separate attorneys as counsel for the proceedings, and on May 25, 2007, file

a reply to the interim suspension coupled with a request for a hearing on the suspensio

Exercising its discretion, the Commission held the Order of Interim Suspension in abeyan

pending Plaintiffs requested hearing on the suspension, which was set for June 21, 2007.

Dorothy Nash Holmes (hereinafter Defendant Holmes or Special Prosecut

Holmes) was retained on June 1, 2007 to act as a Special Counsel to present evidence to t



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Commission at the contested hearing on interim suspension. On June 8, 2007, Plaintiff filed

Motion to Continue the hearing date with the Commission as two of her three attorneys we

unavailable at the original time set for hearing. The Commission accommodated the reque

and re-set the hearing for July 16, 2007, by that time providing Plaintiff almost two months

prepare since the initial Order of Interim Suspension. In anticipation of the upcoming heari

and out of courtesy, the Commission provided full, continuing discovery to Plaintiff Halvers

and Defendant Holmes as received from The Advantage Group - investigators hired by th

Commission to gather evidence in this case. By the time of the suspension hearing, bo

parties were in possession of the existing discovery up to that point in the proceedings.

After 5:00 p.m. on July 13, 2007, three days prior to the scheduled hearing before t

Commission, the Commissions clerk received two Orders of the Nevada Supreme Court

two separately filed cases, denying Plaintiffs Emergency Petition for Writ of Prohibition, or

the alternative, for Writ of Mandamus. Despite Plaintiffs requests, the Court refused to

delay the July 16, 2007 hearing before the Commission, and 2) issue the writ based upon t

alleged non-disclosure and/or untimely disclosure of discovery material and the improp

enjoinment of Plaintiffs right to issue subpoenas. As such, the suspension hearing was he

on July 16, 2007. The Commission ordered Plaintiffs interim suspension at the conclusion

the hearing based upon sufficient evidence presented as to four separate grounds. At th

time, Plaintiff requested a stay of the suspension pending appeal, which the Commissi

denied. A written Final Order of Interim Suspensionwas entered on July 25, 2007, orderi

Plaintiffs suspension with pay. Two days later, Plaintiff moved the Nevada Supreme Court

stay the suspension, which that was denied on the same day. Thereafter, following Plaintif

appeal to the Nevada Supreme Court, the interim suspension was affirmed and judgment w

entered on November 1, 2007.

Meanwhile, the investigation by The Advantage Group had continued after the init

hearing. On December 10, 2007, the Commission members met to review and consider

the investigative materials obtained in the case. They found, per NRS 1.467, that there w

a reasonable probability that grounds for discipline could be proved against Plain



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Halverson. The Commission issued its findings and conclusions in a detailed written Order

December 31, 2007. That Order directed the Executive Director of the Commission to ha

the Special Prosecutor to file formal charges and prosecute the case to a public hearing. Id.

On January 2, 2008, Plaintiff Halverson filed an Emergency Motion to Dismi

Disciplinary Proceedings (Case No. 50822) with the Nevada Supreme Court in attempt

prevent the Commission from instituting proceedings against her. An Emergency Petition

Writ of Prohibitionwas also filed in under the same case number on January 4, 2008, claimi

her next election campaign was prospectively prejudiced by the delay in the filing

disciplinary charges since the Supreme Courts ruling in November, 2007. These matte

were still pending before the Nevada Supreme Court at the time the formal proceedings we

initiated against Plaintiff Halverson.

2. FORMAL PROCEEDINGS

Formal Statement of Charges was issued on January 7, 2008. Again seeking to del

or derail proceedings, Judge Halverson filed another Emergency Motion to Stay, on Janua

25, 2008,again under the same case number. The Nevada Supreme Court issued an Ord

Denying Stay, on January 25, 2008, and ordered the Commission on Judicial Discipline

respond to Judge Halversons writ petition and explain why charges were not filed right aft

the Courts November 1, 2007 denial of Plaintiff Halversons appeal.

The Commission filed its brief in the pending Supreme Court case on February 1

2008, explaining that it read the statutes to require that the investigation be complete before

could review for probable cause and have charges filed. The Nevada Supreme Court sa

that was a reasonable interpretation and denied relief to Judge Halverson.

Plaintiff Halverson filed her Answer to Formal Statement of Charges on January 2

2008 with the Commission and then filed another one, this time adding the statement that s

was not waiving her right to have the disciplinary hearing within 60 days, per Commission

Judicial Discipline Rule 18. Thereafter, Defendant Holmes filed a Motion to Set Hearing Da

with the Commission on February 29, 2008. Three days later, the Commission set the da

for the public hearing on the Formal Statement of Charges for April 14, 2008.



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At Plaintiffs request, Defendant Holmes entered into a Stipulation to Continue Heari

Date, which was filed on March 13, 2008. On March 14, 2008, Plaintiff Halverson filed h

Reply Brief in the pending Supreme Court case. On March 19, 2008, the Nevada Suprem

Court denied the writ.

The attorneys and Commissioner Judge Wagner then had a conference call about t

timing of the public hearing, with counsel indicating they had all stopped trial preparations

await the Supreme Courts decision. On March 24, 2008, counsel for Plaintiff Halverson th

filed her Unopposed Motion to Continue Hearing of April 14th, together with a waiver signed

Judge Halverson, giving up her right to have the public hearing in 60 days. The continuan

was not opposed. As such, the Commission issued its Order Granting the Motion

Continuance on April 17, 2008, and one week later, set the new hearing date for June 2

2008.

On May 22, 2008, Judge Halversons three attorneys jointly filed a Motion to Withdra

from representing her, citing an unidentified irreconcilable conflict of interest, together with

Motion for Order Shortening Time to Respond. Soon after, on May 26, 2008, Jud

Halverson filed a Motion for Continuance, seeking a minimum five months continuance of th

formal hearing date. On May 27, 2008, Defendant Holmes filed an opposition to a

additional continuance and requested that the Commission explore the purported conflict

determine if withdrawal was appropriate.

At an emergency hearing on May 29, 2008 the Commission approved the withdrawal

counsel, granted Plaintiff Halversons request for another continuance, and set the ne

hearing date for August 4-8, 2008. Plaintiff was also given 10 days to indicate if she wou

represent herself or hire new counsel. Previously claiming she could not afford mo

attorneys, Plaintiff chose self-representation, filing her Notice of Appearanceon June 9, 200

She subsequently hired Michael Alan Schwartz of Michigan less than a month later, on Ju

3rd

and he applied in Nevada to associate with her as co-counsel to appearpro hac vice.

. . .

. . .



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On July 7, 2008, Judge Halverson filed yet another Emergency Motion for Stay (which

was treated as a writ petition) in Nevada Supreme Court Case No.51973. The Supreme Co

entered an order denying the motion/writ on July 11, 2008.

On July 21, 2008, Plaintiff Halverson fax-filed a Motion to Continue Hearing (regardi

New Counsel), requesting an additional 75-90 days to prepare for the hearing. Mr. Schwar

application to appear in Nevada was approved July 24, 2008 by the State Bar and t

Commission approved his joining the case in a telephone conference call/hearing held on Ju

25, 2008, but denied the continuance. Mr. Schwartz agreed that he had cleared his calend

and would be prepared to proceed.

On the first morning of the public hearing, August 4, 2008, Judge Halverson fax-filed

Emergency Motion for Stay and a Petition for Writs of Mandamus, Prohibition and/or Certiora

and for Declaratory Relief, which totaled 1,000 pages, in the Nevada Supreme Court in a

attempt to again, postpone the proceedings. The Nevada Supreme Court denied the relief

August 6, 2008, on the grounds that extraordinary intervention was not warranted, noting th

her most recent petition three weeks earlier was so defective it could not evaluate her claim

on the merits, and that she chose not to correct those defects and re-file it. The Court chid

her for waiting until the public hearing had commenced for filing anew.

On August 4, 2008, Plaintiff also filed the Complaint in the instant matter, along with a

Emergency Motion for a Temporary Restraining Order on an ex parte basis. This Honorab

Court denied Plaintiffs Motion on August 6, 2008. This Court further Ordered that Plain

submit briefing containing documentary evidence and affidavits in support of her request for

preliminary injunction, with Defendant Holmes, along with Defendant Commission, to respo

in accordance with the Courts briefing schedule. Defendant Holmes responds as follows.

MEMORANDUM OF POINTS AND AUTHORITIES

A. STANDARD OF LAW

i. YOUNGER DOCTRINE

Federal Court should abstain from adjudicating this matter pursuant to the Young

doctrine. In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court espoused a stro



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federal policy against federal-court interference with pending state judicial proceeding

absent extraordinary circumstances. See H.C. v. Koppel,203 F.3d 610, 613 (9th Cir.200

Middlesex County Ethics Committee v. Garden, 457 U.S. 423, 431 (1982). The policy res

of notions of comity and respect for state functions. Champion Int'l Corp. v. Brown,731 F.

1406, 1408 (9th Cir.1984). These considerations of comity and federalism dictate that t

normalthing to do when federal courts are asked to enjoin pending proceedings in state co

is not to issue such injunctions. Ohio Civil Rights Commission v. Dayton Christian Schoo

Inc., 477 U.S. 619, 627 (1986) (quoting Younger, 401 U.S. at 45) (emphasis in origina

Abstention is required when: (i) the state proceedings are ongoing; (ii) the proceedin

implicate important state interests; and (iii) the state proceedings provide an adequa

opportunity to raise federal questions. Delta Dental Plan of California, Inc. v. Mendoza,1

F.3d 1289, 1294 (9th Cir.1998) (internal citations and quotations omitted).

ii. PRELIMINARY INJUNCTION

Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of

preliminary injunction or temporary restraining order (TRO). The Ninth Circuit has held th

a request for a TRO and injunctive relief may be based upon either of two sets of criteria. T

traditional test requires the movant to: (1) establish a strong likelihood of success on t

merits; (2) show the possibility of irreparable injury to the plaintiff if the preliminary relief is n

granted; (3) show a balance of hardships favoring the movants; and (4) show that granting t

injunction favors the public interest. Los Angeles Memorial Coliseum Comm'n v. Nat'l Footb

League,634 F.2d 1197, 1200 (9th Cir.1980).

The alternative test requires that the movant demonstrates either a combination

probable success on the merits and the possibility of irreparable injury, or that serio

questions are raised and the balance of hardships tips sharply in their favor. See Diamontin

v. Borg,918 F.2d 793, 795 (9th Cir.1990). These two formulations represent two points on

sliding scale in which the required degree of irreparable harm increases as the probability

success decreases. Diamontiney, 918 F.2d at 795. The Ninth Circuit has stated that the

alternatives represent extremes of a single continuum rather than two separate tests a



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thus, the greater the relative hardship to [the party seeking the preliminary injunction,] t

less probability of success must be shown. Clear Channel Outdoor, Inc. v. City of L

Angeles,340 F.3d 810, 813 (9th Cir.2003). A prohibitory injunction preserves the status q

while litigation is pending, while a mandatory injunction provides preliminary relief well beyon

maintaining that status quo. Stanley v. University of Southern California,13 F.3d 1313, 13

(9th Cir.1994). Mandatory preliminary injunctions are disfavored, and the district court shou

deny such relief unless the facts and law clearly favor the moving party. Id. (quoti

Martinez v. Matthews,544 F.2d 1233, 1243 (5th Cir.1976). The granting or withholding of

preliminary injunction rests in the sound judicial discretion of the trial court. Dymo Industrie

Inc. v. Tapeprinter, Inc., 325 F .2d 141, 143 (9th Cir.1964). At the very least, however, t

moving party must show a fair chance of success on the merits. Armstrong v. Mazurek,

F.3d 566, 567 (9th Cir.1996).

iii. MOOTNESS

Article III of the Constitution limits federal courts to the adjudication of actual, ongoi

controversies between litigants. Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 52

528 (1988). Mootness is a jurisdictional issue, and federal courts have no jurisdiction to he

a case that is moot, that is, where no actual or live controversy exists. Foster v. Carson,3

f.3d 732, 745 (9th Cir.2003), quoting Cook Inlet Treaty Tribes v. Shalala,166 F.3d 986,9

(9th cir.1999). If there is no longer a possibility that [a litigant] can obtain relief for his clai

that claim is moot and must be dismissed for lack of jurisdiction. Id., quoting Ruvalcaba

City of Los Angeles,167 F.3d 514, 521 (9th Cir.1999).

iv. PROSECUTORIAL IMMUNITY

The Ninth Circuit has recently detailed the immunity afforded to prosecutors in t

context of 1983 actions:

A prosecutor is protected by absolute immunity from liability fordamages under 1983 when performing the traditional functionsof an advocate. Kalina v. Fletcher,522 U.S. 118, 131, 118 S.Ct.502, 139 L.Ed.2d 471 (1997). However, the actions of aprosecutor are not absolutely immune merely because they areperformed by a prosecutor. Buckley v. Fitzsimmons,509 U.S.259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Prosecutorial



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immunity depends on the nature of the function performed, not theidentity of the actor who performed it. Kalina,522 U.S. at 127(quoting Forrester v. White,484 U.S. 219, 229, 108 S.Ct. 538, 98L.Ed.2d 555 (1988)). Prosecutors are entitled to qualified immunity,rather than absolute immunity, when they perform administrativefunctions, or investigative functions normally performed by a

detective or police officer. Id.at 126; see alsoBurns v. Reed,500U.S. 478, 494-96, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).

Genzler v. Longanbach,410 F.3d 630, 636 (9th Cir.2005).

Furthermore, under Nevada law, Special Prosecutors for the Commission have immunity.

NRS 1.465 provides statutory, absolute immunity as follows:

1. The following persons are absolutely immune from suit for allconduct at any time in the course of their official duties:

(a) Any member who serves on the Commission;

(b) Any person employed by the Commission;

(c) Any independent contractor of the Commission; and

(d) Any person who performs services pursuant to NRS 1.450 or1.460 for the Commission.

v. ISSUE PRECLUSION

As a matter of federal common law, the fact-finding of a State agency, acting in

judicial capacity in a proceeding where the parties have had an adequate opportunity

litigate, is also given preclusive effect. Univ. of Tenn. v. Elliott,478 U.S. 788 (1986) (quoti

United States v. Utah Construction & Mining Co.,384 U.S. 394 (1966)). Gayle v. County

Marin,2005 U.S. Dist. LEXIS 40514, 9-10 (D. Cal. 2005). The Ninth Circuit has extend

Elliotto give preclusive effect to state administrative adjudications of legal as well as factu

issues, as long as the state proceeding satisfies the requirements of fairness outlined in [ Ut

Construction]. Miller v. County of Santa Cruz,39 F.3d 1030, 1032-33 (9th Cir. 1994) (quoti

Guild Wineries and Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir. 1988)). Tho

fairness requirements are (1) that the administrative agency act in a judicial capacity, (2) th

the agency resolve disputed issues of fact properly before it, and (3) that the parties have

adequate opportunity to litigate. Id. (citing Utah Construction,384 U.S. at 422).



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B. LEGAL ARGUMENT

i. THE YOUNGER DOCTRINE PRECLUDE FEDERAL JURISDICTION IN THMATTER

All three prongs of the Younger test are satisfied here. The state court mechanism

seeking review of the administrative decision is to file an appeal with the Supreme Court of t

State of Nevada. NEV. REV. STAT. 1.4675. The Supreme Court has provided for appeal wh

the Commission has issued an order of censure, removal, retirement, or other form

discipline. NRAP 3D (3). An appeal from the now final Order issued by the Judic

Commission is the appropriate venue for former Judge Halverson. When the initial Motion

Preliminary Injunction was filed, the case was actively ongoing. The fact that the case h

ceased due to continued needs by Halverson to continue the hearings should not be permitt

to allow the first prong to not be met in this matter. At the time of the filing in federal cou

there were ongoing state proceedings. See Canatella v. California,304 F.3d 843, 850 (9

Cir.2002) (We consider whether the state court proceedings were ongoing as of the time t

federal action was filed. (citation omitted)); Dubinka, 23 F.3d at 223 (The Supreme Co

has held that Younger abstention applies to prevent federal intervention in a state judic

proceeding in which a losing litigant has not exhausted his state appellate remedies. (citi

Huffman v. Pursue, Ltd.,420 U.S. 592 (1975))). Therefore, the finding should be that the sta

proceedings are ongoing.

Next, it must be determined whether the state court actions implicate important sta

interests. See Delta Dental Plan, 139 F.3d at 1294. The ability of Nevadas Judic

Disciplinary Commission to investigate, charge and prosecute judges qualifies as an importa

state interest.

Finally, to invoke Younger abstention, Halverson need be accorded only

opportunity to fairly pursue [her ] constitutional claims in the ongoing state proceeding

Juidice v. Vail,430 U.S. 32 (1977) (emphasis added); see also Communications Telesystem

196 F.3d at 1019. Youngerrequires only the absence of procedural bars' to raising a fede

claim in the state proceedings. Communications Telesystems, 196 F.3d at 1020; see al



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Pennzoil Co. v. Texaco, Inc.,481 U.S. 1 (1987) (holding that federal plaintiff must show th

state procedural law barred presentation of [his] claims' (quoting Moore v. Sims,442 U.S.

432, 99 S. Ct. 2371)); Dubinka,23 F.3d at 224 (same). [A] federal court should assume th

state procedures will afford an adequate remedy, in the absence of unambiguous authority

the contrary. Pennzoil,481 U.S. at 15, 107 S. Ct. 1519.

Halverson presented her due process issues regarding Dorothy Nash Holmes befo

the Commission. (CD 43, p. 24-41- motions regarding Holmes.) Plaintiff in her own br

admits that the subpoenaed entities responded to her subpoena requests by stating that th

requests would not be honored. (CD 33). Motions were filed in the underlying case regardi

the Letters by Holmes pertaining to the Eighth Judicial District Court and Office of Divers

Clark County. This allegedly constitutional issue was fully litigated in the lower proceeding

Furthermore, the Nevada State Courts can decide whether Halversons constitutional righ

were violated, and if the Commissions actions were proper. Plaintiff in the underlying acti

appealed numerous times to the Nevada Supreme Court. The claims Halverson makes cou

be litigated in the state proceedings, such a forum provides an adequate opportunity to rai

federal questions.

Accordingly, all three prongs of the Younger test have been satisfied. The Co

should therefore abstain from adjudicating Halversons claims in this matter and dismisses t

complaint.

ii. PRELIMINARY INJUNCTION IS MOOT BASED UPON RULING BY JUDICIA

DISCIPLINARY COMMISSION REMOVING FORMER JUDGE HALVERSO

FROM THE BENCH

Article III of the United States Constitution requires that there be a live case

controversy at the time a federal court decides a case. O'Neal v. City of Seattle,66 F.

1064, 1066 (9th Cir.1995). Specifically, the Ninth Circuit recognizes that the requis

personal interest that must exist at the commencement of the litigation (standing) mu

continue throughout its existence (mootness). Id. The Ninth Circuit characterized t

constitutional doctrine of mootness as the doctrine of standing set in a time frame. Zegarr

Gomez v. I.N.S., 314 F.3d 1124, 1126 (9th Cir.2003). In order to avoid dismissal on t



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ground of mootness, a party must continue to have a personal stake in the outcome of th

lawsuit and there must be a justiciable live case or controversy between the parties. Id. Th

case is similar to cases where a student sues his university, but then graduates. It is we

settled that once a student graduates, he no longer has a live case or controversy justifyin

declaratory and injunctive relief against a school's action or policy. Cole v. Oroville Uni

High School Dist.,228 F.3d 1092, 1098 (9th Cir.2000)(citing Doe v. Madison School Dist. N

321,177 F.3d 789 (9th Cir.1999)(en banc)).

Halverson no longer has a personal stake in being a judge as she has been barr

from being a judge by the Commission. The issue is moot based upon the ruling of t

Commission. There is no injunction to enforce. The Commission has ruled and Halvers

lost her bid to be judge in the primary election.

Furthermore, Plaintiff has failed to demonstrate any deprivation of a constitutional rig

To establish a prima facie case under 42 U.S.C. 1983, a plaintiff must demonstrate that

the action complained of occurred under color of law, and (2) the action resulted in

deprivation of a constitutional right or a federal statutory right. McDade v. West, 223 F.

1135, 1139 (9th Cir. 2000) (citing Parratt v. Taylor,451 U.S. 527, 535, 68 L. Ed. 2d 420, 1

S. Ct. 1908 (1981), overruled on other grounds by Daniels v. Williams,474 U.S. 327, 330-3

88 L. Ed. 2d 662, 106 S. Ct. 662 (1986)). Azer v. Connell,306 F.3d 930, 935 (9th Cir. 2002)

In this case, plaintiffs completely fail to articulate any facts which result in a deprivati

of a constitutional right or a federal statutory right. Ibid. Pursuant to Nevada law, t

Commission had the power and the duty to appoint a special prosecutor and hold hearin

regarding disciplinary actions to be taken against former Judge Halverson. Therefore,

addition to the mootness claim, there is a lack of any constitutional claim.

iii. DOROTHY NASH HOLMES IS ENTITLED TO PROSECUTORIAL

IMMUNITY

Special Prosecutors are immune from suit pertinent to their prosecutorial decisions.

Butz v. Economou, 438 U.S. 478 (1978), the Supreme Court held that persons performi

judicial functions within a government administrative agency are entitled to absolute immun



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for their judicial acts if the proceeding is conducted within a framework of due proce

safeguards similar to the judicial process and the persons are free to exercise th

independent judgment on the basis of the evidence before them, free from pressures from t

parties or other officials within the agency. Further, absolute judicial immunity has be

extended to non-judicial participants in the judicial process, known as quasi-judicial immuni

mainly to those individuals who perform functions integral to the judicial process. State

Nev. v. Second Judicial Dist. Court ex rel. County of Washoe, 118 Nev. 609, 616 (2002).

determine whether absolute quasi-judicial immunity applies, the Butz Court considered t

following nonexclusive factors: (1) whether the official in question performed the functio

sufficiently comparable to those of officials who have traditionally been afforded absolu

immunity at common law; (2) whether the likelihood of harassment or intimidation by person

liability was sufficiently great to interfere with the officials performance of his or her dutie

and (3) whether procedural safeguards exist in the system that would adequately prote

against unconstitutional conduct by the official. Id. at 424-425; citingButz, 438 U.S. at 51

517.

This absolute quasi-judicial immunity has been extended to prosecutors. Id. (citi

Butz, 438 U.S. at 508-517). Additionally, officials performing functions analogous

prosecutors such as initiating proceedings or exercising prosecutorial discretion not to initia

proceedings are entitled to absolute immunity. Butz, 438 U.S. at 515; see also Kalina

Fletcher, 522 U.S. 118 (1997). The harassment by unfounded litigation possibly causing

deflection of the prosecutors energies from her public duties and the possibility she wou

shade [][her] decisions instead of exercising the independence required by public [][he

public trust has led courts to this view. Imbler v. Pachtman, 424 U.S. 409, 423 (1976).

Defendant Dorothy Nash Holmes was appointed the special prosecutor in th

underlying matter. As such she is immune from a civil suit for damages pertaining

prosecution. See Imbler, 424 U.S. at 431. Allowing Plaintiff in this case to bring suit again

Defendant Special Prosecutor Dorothy Nash Holmes would harass, intimidate, and th



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deflect special prosecutors energies from their public duties by hindering their prosecutor

independence.

In the alternative, if Plaintiffs sole means of relief is injunctive relief, Defendant Holm

contends that as the formal disciplinary has concluded, there is no conduct currently engag

in by Defendant Holmes that may be enjoined. As Special Prosecutor, Defendant Holme

primary role in the underlying matter was limited to the preparation for the hearing and t

presentation of evidence against Plaintiff Halverson during such hearing, which is no long

an ongoing proceeding that may be enjoined. These facts, as they pertain to Defenda

Holmes, lend themselves to this federal districts adherence to the principal that a defendant

a civil rights action under 42 U.S.C. 1983, whose quasi-judicial function as prosecutor

longer exists, is not properly in a position to afford injunctive relief as to proceedings alrea

concluded. Condos v. Conforte, 596 F.Supp. 197, 200 (Dist. Nev.1984). As such, she cann

be a proper target for such injunctive relief as requested by Plaintiff. Id.

In the case at hand, Defendant Holmes was appointed as Special Prosecutor for t

specific disciplinary proceedings involving Plaintiff Halverson. However, Defendant Holme

capacity as a prosecutor is limited, as the primary focus of her practice as an attorney is

private, civil counsel. As the purpose for which Defendant Holmes was appointed Spec

Prosecutor in the instant proceedings was extinguished at the conclusion of the form

disciplinary proceedings on August 22, 2008, Defendant Holmes is no longer a proper party

she ever was, against which injunctive relief may be afforded.

iv. THIS MATTER IS PRECLUDED FROM BEING LITIGATED IN FEDERACOURT

As a matter of federal common law, the fact-finding of a State agency, acting in

judicial capacity in a proceeding where the parties have had an adequate opportunity

litigate, is also given preclusive effect. Univ. of Tenn. v. Elliott,478 U.S. 788, 799, 106 S. C

3220, 92 L. Ed. 2d 635 (1986) (quoting United States v. Utah Construction & Mining Co.,3

U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642, 176 Ct. Cl. 1391 (1966)). Gayle v. County

Marin, 2005 U.S. Dist. LEXIS 40514, 9-10 (D. Cal. 2005). The Ninth Circuit has extend



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Elliotto give preclusive effect to state administrative adjudications of legal as well as factu

issues, as long as the state proceeding satisfies the requirements of fairness outlined in [ Ut

Construction]. Miller v. County of Santa Cruz,39 F.3d 1030, 1032-33 (9th Cir. 1994) (quoti

Guild Wineries and Distilleries v. Whitehall Co.,853 F.2d 755, 758 (9th Cir. 1988)). Tho

fairness requirements are (1) that the administrative agency act in a judicial capacity, (2) th

the agency resolve disputed issues of fact properly before it, and (3) that the parties have

adequate opportunity to litigate. Id. (citing Utah Construction, 384 U.S. at 422); see al

Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1283-84 (9th Cir. 1986) (

preclusive effect afforded to informal unemployment benefits hearing because the plaintiff d

not have an adequate opportunity to litigate factual issues related to discrimination).

The Ninth Circuit found that California has adopted the Utah Construction standa

and therefore that federal courts need only look at whether the administrative hearing met t

requirements of California law such that a California court would have accorded t

determination preclusive effect. Id.at 1033 (citing Eilrich v. Remas,839 F.2d 630, 633 (9

Cir. 1988)). Gayle v. County of Marin, supra,at pp. 11-12.

The Commission hearing in this matter was conducted over five days. Halverso

attended, and was well represented by counsel, as indicated in the transcripts supplied on C

Rom to the Court. Halverson had a full hearing on the matter of her removal. The findings

fact in the Commissions Order properly concluded that former Judge Halverson violated h

judicial duties. That conclusion of law was proper under Nevada law. Under Gayle,plainti

should not be able to relitigate this underlying fact or seek contrary conclusions of law.

Similarly, in Miller v. County of Santa Cruz,39 F.3d 1030, 1032-33 (9th Cir. 1994), the

court affirmed an order granting a summary judgment, where the plaintiff had an opportunity

contest a dismissal from his employment before a county civil service commission in a public

evidentiary hearing. In doing so, the court stated:

We affirm the judgment of the district court. In so doing, wereiterate our longstanding policy, arising out of concerns of comityand finality, of respecting state court systems for review ofadministrative decisions. Eilrich [v. Remas],839 F.2d at 633 [(9thCir. 1988)]. California has made it quite clear that a discharged civil



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servant who elects an administrative forum for review of his or hertermination must succeed in overturning that administrativedecision through the judicial mandamus review procedure prior tofiling a suit for damages on claims arising out of the termination.See, e.g., Swartzendruber [v. City of San Diego],5 Cal. Rptr. 2d at69. So long as the minimum criteria of Utah Constructionare met,

we will defer to the considered judgment of the courts of Californiathat an unreviewed agency determination, such as that involvedhere, is equivalent to a state court judgment entitled to res judicataand collateral estoppel effect. Any other result would render theadministrative forum a place for meaningless dry runs of wrongfultermination claims destined to be assailed on constitutionalgrounds in federal court.

Miller v. County of Santa Cruz,at 1038.

The administrative process in this case met the minimum criteria of the releva

authorities. In this case, the Commission acted in a judicial capacity, it resolved the disput

issues of fact properly before it, and the parties had an adequate opportunity to litiga

Collateral estoppel applies in this case. Halverson cannot continually forum shop in

attempt to escape the review of the Commission.

Furthermore, Plaintiff has failed to exhaust her remedies. Plaintiff has imprope

applied for relief from Federal Court when an adequate remedy at law exists. Under the Ne

Constitution, the final order the Commission may be appealed to the Nevada Supreme Cou

Article 6 21 of the Nevada Constitution provides:

1. A justice of the supreme court, a district judge, a justice of thepeace or a municipal judge may, in addition to the provision ofarticle 7 for impeachment, be censured, retired, removed orotherwise disciplined by the commission on judicial discipline.Pursuant to rules governing appeals adopted by the supremecourt, a justice or judge may appeal from the action of thecommission to the supreme court, which may reverse such actionor take any alternative action provided in this subsection.

Furthermore, Procedural Rule of the Nevada Commission on Judicial Discipline (Ru

34 explicitly provides for the following remedy following the entry of an adverse order by the

Commission:

. . .

. . .



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1. A respondent may appeal an order of censure, removal orretirement to the supreme court of the state of Nevada inaccordance with rules adopted by the Supreme Court in regardthereto.

The Plaintiff must appeal this action to the Nevada Supreme Court. She has failed

properly exhaust her administrative remedies in this matter.

C. CONCLUSION

Halverson lacks jurisdiction to be before the Federal Court at this time. The Young

Doctrine bars the Federal Court from hearing this matter. Furthermore the issue is moot, a

Special Prosecutor Dorothy Nash Holmes is entitled to immunity.

DATED this 15th day of December, 2008.

CATHERINE CORTEZ MASTOAttorney General

By: /s/Jill Carol DavisJILL CAROL DAVISDeputy Attorney GeneralNevada Bar No. 8418Office of the Attorney GeneralPublic Safety Division555 East Washington Avenue, #3900Las Vegas, Nevada 89101

Attorneys for Defendants

CERTIFICATE OF SERVICE

I, Gina Long, hereby certify that I am an employee of the Office of the Attorney Gene



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and that on the 15th day of December, 2008, I served the foregoing RESPONSE TO MOTIO

FOR PRELIMINARY INJUNCTION,by causing a true and correct copy thereof to be filed w

the Clerk of the Court and served on the party below using the CM/ECF system and by mail:

ELIZABETH HALVERSON

3850 E. FLAMINGO RD. #152LAS VEGAS NV 89121-6227

SCOTT M. ABBOTT, Esq.3000 W. CHARLESTON BLVD SUITE 3LAS VEGAS NV 89102

___/S/ Gina Long __________________An employee of the Office of the Attorney General


Documents

12 15 08 Nash Holmes Response to Halverson Motion for Prelim Injunct NVD Doc 37 1006