Every week, NPRI President Andy Matthews writes a column for NPRI’s week-in-review email. If you are not getting our emails, which contain our latest commentaries and news stories, you can sign up here to receive them. Just enter your email in the box on the top right.

For today’s week-in-review email, Andy examines the Nevada Supreme Court and its involvement in the Foreclosure Mediation Program.

Principles

If your parents were anything like mine, they did their best to instill in you at an early age the importance of principles.

“Don’t steal.” “Respect your elders.” “Do unto others as you would have them do unto you.”

Try as I might to find exceptions to these rules, my parents insisted I abide by them.

Consider the “don’t steal” directive. Even if I had argued that the store would never miss just one candy bar or that I really wanted my friend’s matchbox car, because he didn’t take good care of his toys, it wouldn’t have flown.

While there were plenty of “self-centered” reasons to act right – imagine the consequences of getting caught or if my friend started taking my cars – my parents were content to tell me just one: “It’s wrong.”

That’s a lesson that’s stayed with me as I began working in the policy world. Our governmental system is based on many essential principles, such as the rule of law, separation of powers, inalienable rights, federalism, etc…

Many times policy proposals promise something good – more jobs or free health care – but the policy would violate an essential principle of our governmental system. In almost all cases, these policies wouldn’t deliver the promised results, but even if they did, the policies are destructive, because they would violate a principle our very system of government is based on.

I’m reminded of that this week, because every justice on the Nevada Supreme Court is poised to violate a foundational principle of our justice system – the need for an impartial judge to decide a case. This principle is so foundational that the Nevada Supreme Court-approved Code of Judicial Conduct begins, “An independent, fair and impartial judiciary is indispensable to our system of justice.”

On Oct. 2, 2012, the Nevada Supreme is scheduled to hear oral arguments in Wells Fargo Bank vs. Renslow, which involves a constitutional challenge to Nevada’s Foreclosure Mediation Program.

The seven justices of the Nevada Supreme Court, though, are not impartial arbitrators of the Foreclosure Mediation Program’s constitutionality. That’s because these justices administer the Foreclosure Mediation Program, helped craft the original law, implemented the program from scratch, advertise the program on their website, have frequently and publicly bragged about how many people the program has helped, and collect the fees to run the program.

Each justice on the Supreme Court has an obligation to recuse himself or herself or at the very least acknowledge this conflict of interest from the bench.

Of course, to do so would highlight a substantial Constitutional problem with the Foreclosure Mediation Program – that the Supreme Court is running, what is in everything but name, an administrative agency in violation of Nevada’s separation-of-powers clause.

When he served as Chief Justice in 2010, Justice Ron D. Parraguirre, even wrote that “[t]he Judiciary’s efforts in support of programs such as … Foreclosure Mediation go beyond our core functions of hearing and determining causes and controversies.”

Now there are lots of “self-centered” reasons I could give you to care about this – this could lead to a judge having a conflict of interest in a case you care about or that this will give each of us serious reason to doubt that our system of justice is just – but I don’t think those reasons are as important as the one my parents taught me some years ago.

It’s wrong. Period

Take care,

Andy Matthews
NPRI President

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