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A Law Unto Themselves

Nevada's Judge Roy Bean Justice System
by Steven Miller

A swaggering chap wearing city clothes drove into Langtry one day and stalked into the Jersey Lilly. As he drank his beer his eyes scanned the many pictures of the actress pasted against the back-bar. "Who’s that?" he asked.
"The purtiest woman in the world," Judge Roy Bean replied, "Lily Langtry."
"I’ve seen ‘em much more beautiful," replied the fellow in store clothes. "In fact, she looks a little like a range heifer, to me."
There was a deep roar in Barkeeper Bean’s throat. Quickly he removed his apron and walked from behind the bar. At the end of the bar he asked a close friend, "How much do you think he can fork up?" The advisor calculated that about ten dollars would be the limit.
"You’re under arrest for slander!" Roy vehemently informed the stranger. "The fine is ten bucks. You can pay now."
Evidently the newcomer had heard before of Bean’s court and its odd dispensation of justice, for he reached into his pocket without hesitation. He handed Bean a $20 gold piece. "Give me my change, please."
Bean blinked. He cast his eyes around at his friend. "The court made a technical error," he commented gravely. "So I re-open this here case. And I fine you twenty dollars. This court don’t give no change!" He tied his apron back around his waist and resumed his duties behind the bar. "Drinks on the house. What’ll it be, gents?"

Vinegarroon: The Saga of Judge Roy Bean,
"Law West of the Pecos,"
by Ruel McDaniel

ost of the best-known tales about Judge Roy Bean recount the seemingly endless ways that the old ruffian found, under color of law, to deprive his victims of their available cash.

In modern-day language you might say that Bean was a jurist with a highly developed revenue orientation.

It’s the kind of outlook that many modern Nevada judges—finding themselves in a situation somewhat similar to Bean’s—also tend to develop.

Like ol’ Roy, they dearly want to be a jurist. But also like him, they run courts that, insofar as possible, must be financially self-supporting.

Bean’s plight was that without his court and its declamatory and fine-levying possibilities, he was just one more opinionated but poverty-stricken old scoundrel. The situation of Nevada’s judges, while parallel in principle, is a bit more complex. Usually these men and women bring to their calling more public respectability than did The Law West of the Pecos. They usually don’t run saloons in their courtrooms, nor keep bears chained to a post in the corner.

What Nevada jurists have in common with the late Roy Bean is that like him, they face constant financial pressures of a sort that guarantee conflicts of interest and virtually ensure the sacrifice of judicial integrity.

Pocketing the Proceeds

he U.S. Supreme Court held long ago that a judge cannot act objectively if he or she has a direct, personal, substantial economic interest in the outcome of his rulings [Tumey v. Ohio (1927)]. The court also has ruled that citizens charged with traffic offenses are denied due process if compelled to stand trial before a judge who is responsible—through his court’s fines, forfeitures costs and fees—for providing a substantial portion of a municipality’s funds. [Ward v. Monroeville (1972)].

Yet here in the Silver State, those two situations are practically standard. By law, every time a defendant is found or pleads guilty, his sentence includes not only the fine imposed, but also an additional "administrative assessment" fee, part of which the judge levying the fine gets to spend on his own court. Each fine levied by the local justice or municipal judge puts an automatic $7 into his fund. Each fine levied by the local district judge gives him another $5. The money adds up quickly, and each magistrate’s use of his funds is entirely discretionary. Gold lamé wallpaper on his chamber wall and a custom Jacuzzi hydrotherapy shower off his private bath are entirely within Nevada law.

The Ward decision becomes relevant because municipal and justice courts are funded through local city and county budgets. This insures that judges running those courts face local pressures—from not only vociferous politicians but the community in general—to minimize the courts’ dependence on local taxes. Thus the local JP or muni judge can easily conclude that his or her own financial, political and even social self-interest requires that he maximize the fines, fees and forfeitures he can levy so his court becomes financially self-sustaining.

Operating under these pressures, Nevada’s local justices and judges suffer an inherent conflict of interest. Having a substantial personal interest in the outcome of the cases before them, they occupy a situation not in principle different from that of the old unbathed West Texas reprobate whose outrages against justice eventually became folklore. The pressing question, of course, is how close in practice are Nevada justices coming to Judge Roy Bean’s antics?

Anecdotes of the All-Too-Skewed

he short, sad answer is that you can’t be around Nevada courts very long without hearing numberless anecdotes from bemused lawyers and outraged citizens of all-too-skewed actions of Nevada judges and prosecutors.

Item: On January 5, 1999 deputy sheriffs dispatched by Washoe County District Attorney Dick Gammick entered Reno television station KOLO and illegally seized unedited videotapes of a jailhouse interview with confessed freeway sniper Christopher Lee Merritt. Gammick’s flying squad of deputies also descended on two other TV stations and the Reno Gazette-Journal, demanding unpublished notes and tapes.

The warrants—for which Gammick went to Reno Justice of the Peace Edward Dannan, a chum and former employee—were sought and issued in explicit defiance of Nevada’s crystal-clear press shield law, NRS 49.275. It states:

No … employee of any … television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing such information to the public … in any … trial … before any court.

Making the warrants even more odious was the fact that Gammick’s office by all accounts had no need for the materials. While Merritt had been repetitively explaining in other jailhouse interviews how and why he had shot at motorists, deputies had been present, making videotapes for law enforcement.

"I just find this case to be unbelievable," said KOLO attorney Kevin Doty. "You have material that is protected from disclosure before state law. You have a search that is illegal pursuant to federal law. And this is all happening in a case where the accused has already confessed."

The federal law cited by Doty is the 1980 Privacy Protection Act, which prohibits both federal and state officers from searching or seizing "work product" or "documentary materials" in a journalist’s possession. Exceptions are limited and generally only allow newsroom searches when journalists have committed crimes or when materials are needed to prevent immediate death or serious bodily injury.

Item: Nevada law—NRS 4.230—requires courts to at all times keep case dockets current. Yet witnesses report that Douglas County’s East Fork Township Court, where former Sheriff’s Deputy Jim EnEarl now reigns as Justice of the Peace, does not reliably do that—essentially sabotaging defendants’ right to appeal.

In 1996 and 1997 Gardnerville roofer and "right to travel" activist Tom Hillman sought in a case before the East Fork court to lay groundwork for a supreme court challenge to provisions of Nevada motor vehicle law. Yet by early March, 1997, after numerous court appearances, hearings, motions, rulings and other case activity dating back to September, 1996, the docket, according to witnesses, bore only one entry, at the very start of the period.

Item: EnEarl had also assured Hillman before witnesses that though EnEarl was going to grant Hillman’s motion for legal counsel of his choice, Hillman would not actually need counsel, because EnEarl would not be seeking incarceration. According to witnesses, EnEarl’s exact words—later cited in a legal motion as clear evidence of bias—were, "Don’t worry. You won’t need counsel. When the court finds you guilty, it does not plan to impose a jail sentence." By early March of ‘97, however, EnEarl had in fact denied Hillman’s request for counsel of his choice and sentenced Hillman to six months in jail.

Item: EnEarl’s name also came up in another interview conducted by Nevada Journal. A defendant challenging a speeding citation case before EnEarl offered evidence suggesting that the Douglas County sheriff’s deputy who issued the ticket had testified falsely before the court. According to witnesses, EnEarl told the defendant, "You’re telling me an officer in my court is lying? Keep saying that, and you’re going to jail!"

Before retiring as Captain within the Douglas County Sheriff’s Office, EnEarl had spent 17 years there. He won election to the East Fork Township seat in 1994, after—according to Douglas and Carson newspapers—explicitly and repeatedly assuring Douglas County voters he would not be reflexively biased in favor of fellow sheriff’s deputies.

Item: An attorney who’d represented a client in a Mineral County traffic case told a Nevada Journal writer of an appearance in the court of Mina Township Justice of the Peace Eugene Gates. The attorney was seeking to challenge the accuracy of a Mineral County sheriff deputy’s radar gun when Gates stopped him.

"I bought that radar unit for the sheriff’s department," declared Gates from the bench, "and I know it’s correct!"

Nevada Journal contacted Justice Gates to ask whether he had, in fact, purchased the radar unit with his court’s discretionary administrative assessment fees. He confirmed he had, but said, "Normally, I’m not going to probably be doing that anymore" because "the equipment moves around and the police cars move around, [and] deputies change jobs."

Jurists flagrante delecto

robably the largest and best-documented account of pervasive indifference to state law among members of the Nevada judiciary surfaced in the 1995 Legislative Audit report on the state courts.

The report—commissioned by the Nevada Legislature’s interim commission and conducted by Legislative Auditor Gary Crews and staff—focused almost exclusively on revenue issues. Under the Nevada constitution, court fines levied for violation of state laws are automatically earmarked for the state Permanent School Fund, and lawmakers representing the state education establishment were concerned about reports that millions of dollars in court fines were never getting to the state treasury.

After a year-plus inquiry, the legislative auditor concluded lawmakers’ anxieties were well-grounded.

There were three parts to the problem in Nevada courts, the report said:

  • Millions of dollars in state fines and assessments were going uncollected.
  • Millions that were collected were being routed to local government coffers, despite constitutional and statutory requirements that the moneys be sent to the state.
  • Many courts had such inadequate accounting controls they were vulnerable to embezzlement and other fraudulent misuse of the fine money they collected.

Often the pages of the report seemed to suggest that when the happily arbitrary Judge Roy Bean had died, his ghost had hot-footed it to the Silver State:

  • In one court, if a fine was paid in cash the court recorded it as state money, while if it was paid by check it turned into county money.
  • In one court, if the citizen requested a hearing before the judge he or she was charged a $25 non-refundable "witness fee" in addition to the full amount of the Nevada Highway Patrol (NHP) citation.
  • In one court, if a citizen signed the back of the citation the court recorded the payment as a local fine. If the back of the citation was not signed, the court recorded it as a state fine.
  • One court used the date of payment to decide whether the fine should go to the state or the county. Payments received before the court appearance date were recorded as county money; payments received after that date were recorded as state money.

Counter clerks at one court had been authorized to offer "bargain-basement" rates to enhance collection rates—accepting half the amount listed on the citation as payment-in-full for the violation.

Although Nevada has 75 courts of limited jurisdiction—56 justice courts and 19 municipal courts—only 43 of them cooperated with the auditors and responded to the survey. Nevertheless, several witnesses before the last Legislative Commission opined that collection and accounting practices in Nevada’s courts have probably improved substantially since the audit report.

Systemic Problems

iven the embarrassment generated by the report, it would be natural to expect such improvement. Yet there are good reasons not to be sanguine. Sunlight has not penetrated far into the Nevada court system. As the cooperation rate with the auditors suggests, judges at all levels are often jealous of their autonomy and power, and secretive about their doings. Further, there are potent historical, institutional and political reasons for the Nevada judicial system to remain largely impervious to any serious effort at reform.

Paradoxically, nothing better demonstrates this than the aftermath of the 1995 legislative auditor’s report itself—especially the ensuing fight over who should get to keep the fine revenue. On display have been the powerful forces that push Nevada’s local courts to make their revenue function primary and the integrity of the law and the claims of justice secondary. Still, the underlying problems appear systemic, beyond the control not only of Nevada’s local courts but even the court charged with responsibility for the judicial hierarchy—the Nevada Supreme Court.

The jockeying over fine revenue broke into open warfare when the legislative auditor’s report cited legal opinions from the office of the Legislative Counsel, which argued that Nevada’s municipal and justice courts had been improperly routing into local coffers fines that by rights were due the state. In 1993 alone, the auditors estimated, these practices had lost the state $5.5 million.

Deputy Legislative Counsel Bradley A. Wilkinson wrote the opinions, addressing in detail a number of questions from the auditors.

First he addressed the practice by many local courts of classifying money that came in from citations issued by the state highway patrol as forfeitures of bail (payable to the county or city) rather than fines (payable to the state):

In summary, for minor traffic offenses, a person’s appearance in court is assured by his written promise to appear, not by cash deposited with the court. The payment of a citation is more characteristic of a pecuniary punishment imposed for being convicted of the offense charged than of a penalty for failing to appear in court. Therefore the payment of a traffic citation without appearing before a judge is more characteristic of a "fine" and should not be characterized as a "forfeiture of bail" to avoid the applicable constitutional provision.

That provision, noted Wilkinson, is section 3, article 11 of the Nevada Constitution, which "pledges all fines collected for the violation of the penal laws of this state for educational purposes and prohibits the transfer or other use of that money."

Although challenged later by Carson City District Attorney Noel Waters and other defenders of local courts’ practices, Wilkinson’s core argument, on reflection, is overwhelming. If the money were genuinely a local "bail forfeiture," and not a penalty for breaking state traffic law, the inescapable corollary would be absurd—namely that no actual penalty exists under state law for violation of its misdemeanor traffic provisions.

We Hereby Incorporate The Laws of the World

nother way that the state appeared to be improperly losing fine revenue to the localities, noted legislative auditors, stemmed from the growing practice by cities and counties of incorporating state traffic laws into the local city charter or county code. Then, when NHP traffic tickets would arrive, citing violation of state laws (payable to the state), justice and municipal courts would change the charges to violations of local ordinances (payable to local governments).

So Crews asked the Legislative Counsel to address the validity of local ordinances regulating traffic on state and federal highways. Writing for the Legislative Counsel’s office, Wilkinson responded that:

…pursuant to the provisions of NRS 244.357, a county may enact ordinances regulating parking and vehicular, pedestrian and other traffic within the unincorporated area of the county, but a county is expressly forbidden from enacting an ordinance fixing a speed limit upon a federal or state highway.

NRS 244.357 says:

1. Each board of county commissioners may enact and enforce such local police and sanitary ordinances and regulations as are not in conflict with the general laws and regulations of the State of Nevada, but may not enact any ordinance or regulation fixing a speed limit on any United States highway or any highway or road which is constructed, reconstructed, improved or maintained by the Department of Transportation as provided in chapter 408 of NRS [Emphasis added].

This was the major hole in the subsequent 13-page brief of arguments submitted to the interim legislative commission by Carson DA Waters: The express prohibition in NRS 244.357 was not addressed. Given the first part of the sentence comprising the statute, the plain meaning of the second part can only be to deprive counties of the authority to turn state speed limits into county ordinances (and thus reroute state fines into county coffers).

Probably the best arguments made by Waters and others on behalf of local practices in regard to the NRS-violation fines are not the legal but the practical and policy arguments. Foremost among these is that because local governments absorb most of the costs by far of the state’s misdemeanor-level justice system, it would be thoroughly unfair for the state to deprive them of revenues from the system which can help offset those costs. Another point is that state legislators have long countenanced the extralegal arrangements implemented by the cities and counties in this regard. Thus the new enthusiasm among some lawmakers for suddenly enforcing the letter of state law appears thoroughly hypocritical. Finally, it’s clear that a sudden ban on the localities’ dubious practices, absent replacement revenues, would wreak a budgetary bloodbath throughout the state. At this writing, these and other arguments appear to have won the day with state lawmakers—for this legislative session, at least.

Unlawful Judges? (Yawn)

et the very strength of the localities’ practical and policy arguments shows the degree to which the actual provisions of Nevada law—both constitutional and statutory—have long been of indifferent concern to both state lawmakers and many members of the state judiciary. Otherwise, state law and state practice could never have diverged so far.

It is a telling comment on Nevada justice that great swaths of the judiciary were not following the law. It also reveals much about the context in which the judges operate that this scandal never achieved political force or even legal attention in Nevada until surfacing in a factional dogfight over revenue.

Clearly, Judge Roy Bean’s ghost did move to Nevada. He lives now in the primacy the courts’ revenue-gathering function has achieved over the courts’ responsibility to the integrity of the law. He also, therefore, lives in the now-institutionalized bad faith in which jurists reside vis-a-vis their most sacred personal oaths.

Given that latter demoralization, how deep does the corruption of the Nevada judiciary go? Anecdotal evidence is not encouraging. Neither is the absence of transparency in the oversight system, nor the institutional weakness of Supreme Court leadership, nor the Nevada Legislature’s mischief-sowing insistence that the state gets the fines while local governments bear misdemeanor courts’ budgetary burdens.

There is always a cost to Roy Bean justice, no matter how comical the folklore and entertaining the anecdotes. Behind almost every tale are individuals suffering oppression by the powerful—maddeningly, by men and women publicly pledged to justice and the rule of law. So Roy Bean justice yields not just cynicism but, eventually, rage at the grass roots. The rage can be long hidden. It can be unpredictable. But it is simple human nature.

Down in Langtry, Texas, Roy Bean’s son Sam had grown up under the privileges that result—for a while—when you’re exempt from the law. So Sam was overbearing and insolent, and, naturally enough, eventually—after ample warnings and for good cause—got a good cuffing from one individual he’d been riding, a local family man named Upshaw. Sam’s response was to run into his dad’s famed saloon, the Jersey Lily, and grab a rifle. Sighting down its long barrel, the young man promptly put two slugs into Upshaw, murdering him.

The elder Bean, well-practiced in the art, set out to obstruct justice in every way he could. Local witnesses were intimidated while others more resistant were paid to leave. Finally, in March, 1899, 100 years ago, the case was heard in a neighboring town.

Sam was acquitted, but not without heavy costs to Roy. His wealth had largely been drained away in lawyer fees, lost business, and other expenses. Worry had turned his gray beard white. Then, just as he was coming home after the trial, the worst blow fell.

As the train pulled up to the Langtry station and Roy looked out the window at the long-familiar scene, something seemed to be missing.

Then he realized. It was the Jersey Lily.

Only a smoking heap of charred wood remained.

Tired of being mere props for the aggrandizement of Roy Bean, some local folks had at last decided to follow his example and exempt themselves, too, from the obligations of law.  NJ

Steven Miller is managing editor of Nevada Journal.

News to Use
Tumey v. Ohio, 273 U.S. 510 (1927) and
Ward v. Monroeville, 409 U.S. 57 (1972)

http://www.findlaw.com/casecode/supreme.html [go to Citation Search]
Interim Subcommittee on Fines, Fees etc.
http://www.leg.state.nv.us/Interim/Studies/Fees/
Steven Miller
sm@npri.org

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