Carson City Judge John Tatro has a lot in common with Disgraced Judge Jim EnEarl who was removed from the bench.

Posted: June 25, 2013 in Judge John Tatro
Tags: , , , , , , ,
Disgraced Judge Jim EnEarl

Disgraced Judge Jim EnEarl

Carson City Judge John Tatro has a lot in common with Disgraced Judge Jim EnEarl who was removed from the bench.  Judge Tatro has a pattern of violating the laws like NRS Chapter 4 (4.320)and engaging in hillbilly justice. jp tatro ruthless and toothless

When Douglas County Sheriff’s Captain Jim EnEarl ran for East Fork Township Justice of the Peace in 1994, he knew many county voters wondered if he had the right temperament for the job.

Would he dispense justice evenhandedly?

Or, after spending his whole professional life as a cop — 11 years in Orange County, California, then 17 in Douglas County — would he be biased in favor of fellow sheriff’s department officers and the district attorney’s office he’d worked with so long?

EnEarl hastened to assure county voters there would be no problem. He asserted he had conducted internal investigations in Douglas County for the last 15 years, had even once or twice recommended officer termination, and so had “insight.”

But most significantly, EnEarl repeatedly assured Douglas County voters he was deeply concerned about  their constitutional rights as Americans.

“Strong Belief in Individual Rights” – Really wtf?

It’s “because of my strong belief in individual rights and the experience I have gained in both the public and private sector, [that] I am seeking this office,” he told the Gardnerville Record- Courier.

And to the Nevada Appeal, EnEarl boasted, “I first took an oath to defend the Constitution 31 years ago…. I have an impeccable record of defending the Constitution of the United States.” Today, however, Tom Hillman might dispute that last statement. He might even laugh out loud — from his Douglas County jail cell.

Hillman is a 44-year-old Gardnerville roofing carpenter. He believes that Nevada and other states’ laws, over the years, have unconstitutionally restricted what the U.S. Supreme Court — in Shapiro v. Thompson, 1969 — called your “unconditional right to travel.”

Citizens have no true freedom of travel, as Hillman sees it, if their right to use their own automobiles is conditioned upon governmental permission in the form of licenses, car registration and proof of insurance.

Part of a nationwide “right to travel” movement dedicated to that view, Hillman wanted to challenge Nevada motor vehicle laws in the state courts.

So about the middle of last year, rather than renewing his old vehicle registration and driver’s license, he replaced the state-issued license plates on his van with a new, lovingly made, light-reflecting aluminum plate.  “Citizen of Nevada,” it said across the top. “In exercise of his rights to travel, private property, St. & HWY.” Cited as authority was: “NV. Const. Art.I.Sec. 1,2,3,4,5,7,8,17,18, & 20, U.S. Const. Art.IV Sec.2. CL.1.., Amend. V, IX, XIV.” Next it said, “Public Notice: Non-Commercial, private property automobile, privately owned by;” — and then the big letters:  “T.E.HILLMAN” followed by his mailing address, phone number, and a reference, “NRS 706.281, 1 & 2”. That statute, in Hillman’s view, is a trace still visible in Nevada law of the earlier era when the state still fully acknowledged every Nevadan’s unconditional right to operate a private auto on gas-tax-supported state roads.

Hillman knew he’d be stopped, and that he’d probably have to take the fight all the way up the ladder to the Nevada Supreme Court, or even higher. Still, he believed somebody should make the effort.

A Douglas County Sheriff’s Deputy stopped Hillman in his van on September 24. As Hillman had expected, he was cited for no driver’s license, no registration, and no insurance.

What he didn’t count on, though, was that East Fork JP Jim EnEarl would apparently take Hillman’s ‘constitutionalist’ point of view, and resulting challenge to the system, as a personal affront. Nor did Hillman expect that EnEarl would make it his personal mission — utilizing threats of ever-expanding jail sentences — to try to raise the threshold of pain until Hillman would completely abandon the effort to challenge Nevada motor vehicle statutes.

For example, initially late last October, when asking Hillman if he wanted a public defender, EnEarl assured the roofing carpenter that no jail sentence was going to be imposed. In a statement Hillman later cited, in a legal motion, as clear evidence of prejudice, EnEarl had said to Hillman, before witnesses, “Don’t worry. When the court finds you guilty, it does not plan to impose a jail sentence.”

By early March, however, when he ordered Hillman to jail, EnEarl was reinterpreting the activist’s behavior differently — in ways that would permit four consecutive six-month jail sentences. “Right — life on the installment plan,” comments Brant Honkanen, one of four other candidates who sought the East Fork Justice Court job in the 1994 election.

“There’s no due process” in EnEarl’s court, says Honkanen. “It’s a police court — an administrative court” where defendants are considered guilty until proven innocent. Because Nevada attorney Terri Keyser-Cooper takes a well-known active interest in due process and defendants’ rights, she was consulted on the Hillman case by Electric Nevada.

“What I find personally appalling,” she said, after reviewing information sent her, “is that it is quite obvious that the judge did not agree with the personal philosophy of this constitutionalist and he felt he could slam the guy because he didn’t agree with him. And that’s flat wrong; he can’t. “And anyone in a position of judicial authority who takes that kind of position, ought to be horsewhipped. I mean, I think that’s horrendous. “You can’t use your personal bias as an excuse to ramrod and disregard the justice process. There’s a reason we have these safeguards.

All the various rights that people have, have been put in there for very important reasons and if the judge, in charge of overseeing those rights, says ‘It doesn’t matter because the guy’s a scumbag, and I can disregard it because he doesn’t have a case anyway,’ I mean, that just throws the whole system out the window. I mean, we can’t do that; it’s crazy.”

JP Broke ‘No Jail Time’ Commitment

One of the justice court actions that Keyser-Cooper said she found most objectionable was the judge’s role in first telling Hillman he would not be entitled to a public defender, “as the court would not be seeking incarceration,” and then later, going ahead and imposing jail time. “It really upsets me when I read a JP tells somebody he’s not going to incarcerate them and then he incarcerates them,” she said.

“If there is going to be the potential of incarceration, the guy has got to know that, and has to have a lawyer.” Keyser-Cooper pointed out she won suits on exactly that point against the cities of both Reno and Sparks.

“I sued Janet Berry, and another Reno judge, because they were discouraging — – when they were Reno city judges — they were discouraging indigents from exercising their right to counsel. They were saying things like, ‘Well, most people who appear don’t really need a lawyer.’ And that’s absolutely false, because the other side is a lawyer; … a prosecutor!

“It is their job to slam you, and if you don’t know what you’re doing, you’re going to be slammed. And the law requires that you have to have a lawyer, unless you give up that right, if there’s a chance you’re going to go to jail. “What [Hillman] needs to do,” she told Electric Nevada, “is file a writ, and what you need to do is publicize this to make sure this asshole is not re-elected.”

Other specific instances in which the East Fork Justice Court showed gross bias, in the view of Keyser-Cooper and other legal observers apprised of the case, were by:

1) effectively denying Hillman his right to call witnesses,

2) denying him adequate time to prepare his defense,

3)  effectively sabotaging his hoped-for subsequent appeals, and

4) repeatedly ruling against Hillman motions that were never even opposed or answered by the Douglas County District Attorney’s Office.

The Lost Right to Call Witnesses

Hillman was effectively denied his right to call witnesses, said Keyser- ooper, when the East Fork justice court refused to follow Nevada Revised Statutes 174.305 and 4.320 and issue blank subpoenas to Hillman. Instead, EnEarl’s constable conditioned issuance of the documents on a demand that Hillman first fill them out, listing all his expected witnesses.

NRS 174.305 (1) says that “The clerk shall issue a subpoena, signed and sealed but otherwise left in blank, to a party requesting it, who shall fill in the blanks before it is served.” And NRS 4.320 says “Blanks must be filled in all papers issued by a justice, except subpoenas.

The summons, execution, and every other paper made or issued by a justice, except a subpoena, must be issued without a blank left to be filled by another; otherwise it is void.” According to Hillman, he believed not following the statute exactly could immediately void the subpoenas even before they were issued..

Subsequently, as a consequence of never being issued the subpoenas, Hillman was never able to call witnesses when his quick trial was conducted by EnEarl on November 25.

Too Little Time to Prepare a Defense

A second way that the East Fork justice court demonstrated gross unfairness, said Keyser-Cooper, was by denying Hillman adequate time to prepare his defense. EnEarl, on October 29, had scheduled Hillman’s trial for November 25, and when Hillman asked for a 60-day continuance, EnEarl denied it, saying he had given the defendant 30 days and that was enough. In actual fact, EnEarl’s own Notice of Setting — specifying trial for 9 a.m. November 25 – — had been issued (and dated) the 29th day of October.

“How serious is it,” said Keyser- Cooper, “that he said he gave him 30 days, when he didn’t? Well, let me put it in  context. “When a prosecutor asks for a ontinuance, it is a hundred-percent granted every single time. In federal court, anybody who asks for a continuance the first time: [it’s] a hundred percent granted. The second time, almost always granted, unless there’s a serious reason why they shouldn’t be. Continuances are routinely granted all the time to lawyers, because the courts understand that things come up.

“Here, it was very, very inappropriate not to grant a continuance to someone representing himself, who is struggling to get witnesses, get subpoenas issued — all this sort of thing. It was clearly an abuse of discretion. Abuse of discretion means, ‘it’s grossly unfair.’”

JP Court Ignores State Law on Docket

Keyser-Cooper was also astonished to learn that a recent check of the East Fork Justice Court’s docket for the Hillman case showed the court had failed to follow Nevada law — NRS 4.230 — and keep the docket at all current. Although there had been court appearances, hearings, motions, rulings and other case activity from September, 1996 through early March, 1997, only one entry, at the start of that period, had been made.

Keyser-Cooper noted the court’s failure to keep the docket could essentially sabotage any appeal to a higher court.  “That’s impossible,” she said. “I can’t understand how they can possibly do that. The guy has a right to appeal —  to the district court — bad decisions.

And how is he going to appeal that if the judge doesn’t even say what he’s doing?”

EnEarl was Prosecutor also

Finally, said Keyser-Cooper, EnEarl’s practice — demonstrated throughout the case — of routinely ruling against all Hillman motions, even though the District Attorney’s Office virtually never bothered to file a response, “shows tremendous bias.”

A Nevada district court rule says judges may consider the failure of one side to respond to a motion as acquiescence, but EnEarl never did interpret any of the D.A.’s failures to respond in that fashion.

“I don’t understand, said Keyser-Cooper. “This shows tremendous bias, and it’s such an obvious abuse if the other side doesn’t have to do anything.

You have the judge being the prosecutor as well. And this is fundamentally unfair. “It really sickens me, because I know that for every Hillman out there that you hear about, there’s fifty that you don’t hear about.”

Hillman was very well-informed, she said, for a non-lawyer representing himself in court. “This guy was on top of it, as far as most pro per, or people who represent themselves, are. And he was slammed. He was totally slammed. So think about what happens with all these other people, that you and I don’t hear about, who are treated in a very similar fashion.”

 

The discipline of Judge James EnEarl or how the public’s supposedly “protected” by not telling them why.

 

A spokesperson for Nevada’s Commission on Judicial Discipline told the media on June 23, 2011 that “to protect the public,” the details couldn’t be disclosed concerning a stipulated settlement where a former judge agreed to never again seek judicial office.

Admittedly, there are statutory restrictions the Commission has to follow about when and what it can or cannot say when judicial disciplinary matters are involved. But to assert that its unwillingness to reveal specific information about an elected official’s stipulated ethical violations because of a supposed concern for the public’s protection — that rises to self-contradicting sophistry of the worst kind.

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Were it not that the public is getting treated like dunderheads or tow-headed toddlers, that statement might even be funny. But in truth, it’s outrageous. Why should greater weight be given to protecting a public official’s private embarrassment over the public’s right to know? After all, we’re not talking about a private personal matter but a public one involving a duly elected, taxpayer-paid official who was in its employ and who admitted to on-the-job misconduct so serious as to permanently disqualify him from ever holding that job anywhere else.

Berobed no more.

And in another wrinkle, the disciplined official who agreed to never again don the judicial robes is actually no longer in office. [1] He has accepted discipline even though he retired August 6th of last year. He is James EnEarl, formerly JP of East Fork Township, Douglas County, NV. See EnEarl barred from ever sitting as a judge” | RecordCourier.com

But since not much is being disclosed, it’s open to speculation on whether or not this was the actual basis for Judge EnEarl’s abrupt and surprising resignation from his well-paid office last August. At that time, he explained his decision to leave the $103, 417 post by saying, “There are just more demands on my time than I can meet. I’m just spread too thin.”  See East Fork justice of the peace resigning Aug. 6.”

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Since the Commission’s website section,”Decisions of the Nevada Commission on Judicial Discipline,” does not have any information about the parties’ June 23, 2011 stipulated deal, the only thing left to go on are public news accounts, which state that the undisclosed violations of the canons of judicial ethics involved Judge EnEarl “repeatedly engaging in comments and actions with the court staff of the East Fork Township Justice Court that were of an extremely inappropriate and offensive character and that he continued to do so after being advised by court staff that his conduct was unacceptable and offensive.”

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But when reporters asked for more about the allegations or for a description of what happened, they were blown off.

Not the first time.

This also isn’t the first time Judge EnEarl has been disciplined by the Commission. In 2003, he was accused of “numerous improprieties during a probation revocation hearing” involving Joseph Manoukian, the son of a former state supreme court justice.

Tragically, Joseph Manoukian, who was battling depression, hung himself in jail after his probation was revoked and he was incarcerated. See Douglas JP Facing Complaint After Inmate’s Suicide.” In its unanimous decision to impose discipline “In the Matter of the Honorable James EnEarl,” the Commission found his “impatience and intemperance unwarranted” in violating Joseph Manoukian’s due process and right to counsel when the loss of liberty is implicated.

Judge EnEarl, a former deputy sheriff by background and not a lawyer, held a probation revocation hearing, which the Commission called “a one-sided colloquy with an unrepresented litigant” since Manoukian’s defense lawyer wasn’t present “to either contest the allegations or to enter his client’s waiver of a hearing.”

To the appall of many in out of the legal community, the discipline imposed was only a “public reprimand.” See reviewjournal.com — News: “Panel reprimands judge in case ending in suicide.”

Pss’t . . . it’s confidential.

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In Nevada, the confidentiality of disciplinary proceedings involving judges is covered by NRS 1.4683, which says at (1), “Except as otherwise provided in this section and NRS 1.4675 and 239.0115, all proceedings of the Commission must remain confidential until the Commission makes a determination pursuant to NRS 1.467 and the special counsel files a formal statement of charges.” 

Therefore, this means that since a formal statement of charges was never actually filed nor was there ever a formal hearing, a loophole in the statute enables a settlement to be kept under wraps. Otherwise, NRS 1.4687 would have required not only disclosure to the public but an open hearing. Here is what the relevant section says at (a): “Upon the filing of a formal statement of charges with the Commission by the special counsel, the statement and other documents later formally filed with the Commission must be made accessible to the public, and hearings must be open.”

Since that didn’t occur, then to quote the immortal words of William Henry Vanderbilt, “The Public Be Damned,” as far as any right the public thinks it has to know the facts. The great unwashed will have to content themselves with fermenting in the dark unpleasant substrate attendant to growing basement mushrooms.

And as for Open Meeting laws, well, those are inapplicable to the Commission on Judicial Discipline since the definition of “public body” under NRS 241.015 (3) does not include a judicial body. See NRS 241.030(3)(a), and Goldberg v. Eighth Judicial District Court, 93 Nev. 614, 572 P.2d 521 (1977), which held that “NRS ch. 241, as applied to judicial bodies, is an unconstitutional infringement on the inherent powers of the judiciary which violates the doctrine of separation of powers.”

Non-disclosure protects the public interest?

What’s most disconcerting about all this is what’s glossed over when coequal branches of government enact rules to protect their turfs. Sometimes, the public interest gets caught in between, even when “Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf.” [2]

Or as James Madison reminds us in The Federalist #49, “the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived.”

___________________________________________________________________________________________

[1] By comparison, in Arizona last year, the Arizona Commission on Judicial Conduct opted not to pursue an ethics inquiry into a Pro Tem Probate Judge’s actions in a highly publicized and acrimoniously contested probate because the jurist had already retired. See “Judicial immunity for a probate judge’s ex-parte contacts” and “Judge: probate judge acted unethically but she wasn’t biased against old lady.”

[2] H.R. Rep. No. 94-880, pt. I, at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 2183, 2184.

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Posted in Law, Legal ethics., On Judges | 6 Comments

6 Responses

  1. I had all sorts of problems with former judge Edward Nottingham. He violated Rule 11 procedure and Rule 65 procedure and he ordered that I should be imprisoned without a criminal charge, arraignment, bail hearing, speedy trial notice, opportunity to cross examine witnesses etc. for 5 months. I was not accused of disrupting a court room or of fraud. He made threatening statements threatening violence under color of law unless my husband and I filed motions that he dictated in another federal court.

    I wrote to DOJ and complained about this. I got back a thick envelope from the victims’ ombudsmen discussing my complaints and in there it said that DOJ doesn’t prosecute judges. Anyone can get a copy of this from Freedom of Information Act to the U.S. Attorneys office.

  2. PS If you want to get a copy of the memo that says that DOJ doesn’t prosecute judges, it is FOIA 2011-1507. You can get it from
    FOIA/PA Mail Referral Unit
    Department of Justice
    Room 115
    LOC Building
    Washington, DC 20530-0001
    (301) 583-7354
    (301) 341-0772 fax

    It is just a little memo in the notes

  3. Mo-

    Can’t you just ask the court clerks who work there what happened?

    • Douglas County, NV epitomizes small town life in many ways. Consequently, I already have a general idea what happened. But unfortunately, without it becoming subsequently public through, for example, if there’s an actual adjudication or media interview – – – I’m unable to say, particularly on my blog.
      I do thank you, though, for your interest and your query.
      – Mo

  4. on February 28, 2013 at 3:32 pm | Reply Justice Finally

    What should be said is both he and his wife were in need of investigation for a variety of actions while both were employed by Douglas County Nevada, he as a “Justice of the Peace” judge without a law degree, and she as a public administrator who handled peoples estates. What happened, in my opinion, was a cover-up and both could have faced jail time had an investigation been started by the state for charges relating to corruption and malfeasance in office. The wrist slapping he received wasn’t even close to what he deserved, while she appears to have escaped after a “sudden” emergency retirement while holding the position, like her out of control husband. They got away with their actions, this is the real disgrace.

  5. In regards to Justice Finally; I have witnessed this husband and wife duo and had mentioned the same to coworkers as they had also witnessed; further more I have been in a case where Judge Enearl refused to allow an appeal to the courts in a case that should have fallen the other way in everyones eyes but his. Makes you wonder what else, or whom else lives he has ruined for his own personal gains. The one case was a Minden resident was killed in an auto accident in CA. and Mrs. Enearl was the so called trusted Public Admin. of his estate which the gentleman owned a large vintage car collection among other property of great value.

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