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What I’ve Learned: The Honorable James Hardesty ’70

Hardesty

My time at the University of Nevada, Reno was one of the most important experiences of my life. Not only did I get a valuable education, but also I met my wife, Sandy Packer ’85 (physical education), whom I’ve been married to for 40 years.

I went out for freshman football and had a few other minor athletic escapades that grew into a long-term affection and support for the University’s athletic department. I was in ROTC for a couple of years, having been brigadier general of the Washoe County Junior ROTC in high school.

But the highlight of my college experience was the opportunity to participate in student government.  I was first elected to a term as junior men’s senator, where I witnessed first-hand the student legislative body. Then I ran and was successful in winning the position of student body president for the 1969-70 academic year.

The year I served as president was a unique period in history because of the ongoing war in Vietnam, the increased student activism around the country that the war mobilized, and the increased attention being given to racial discrimination issues. On May 4, 1970, as my term ended, the Kent State shooting incident occurred in which four students were killed. 

National attention was focused on the increase in violence that existed between student and faculty activists and law enforcement authorities over the heightened debates about the war and a variety of social issues.

During my term as student body president, I had the opportunity to work with one of the finest university presidents, N. Edd Miller. He was a person of small physical stature, but a man of great wisdom and compassion. I also took political science from Joe Crowley, who later served for 23 years as University president. Without question, Joe is one of the brightest professors I’ve ever known. In addition, I had the opportunity to interact with the Board of Regents. The chairman at the time was Procter Hug. Jr. ’53 (business administration), ’66HDG (doctor of laws), ’10HDG (doctor of letters) who later became a federal appellate court judge with the Ninth Circuit. Regent Hug’s mentorship and influence on my life would have a lasting impact.

While many campuses around the United States were in turmoil—and ours wasn’t much different in terms of engaging in dialog—we took an entirely different approach as a student government, and fortunately the Board of Regents and the administration were receptive to our approach. This taught me lessons for a lifetime about the value and productivity of civil communication.

Rather than the students being confrontational, our student government chose to work with the administration and the Board of Regents in a cooperative, communicative and proactive way.

One of the things that we did was sponsor N. Edd Miller Day on Oct. 17, 1969. Several thousand students met President Miller at 6:30 a.m. at the gates of the University to express, not our disdain for campus administration, but rather our appreciation of him and his willingness to listen to student concerns. We greeted him with balloons.

The student body sent President Miller and his wife on an expense-paid vacation to San Francisco for the weekend. This event resulted in national publicity for the University. Pictures of President Miller, Robyn Powers ’70 (art), the student body vice president, and me appeared on the front pages of 134 newspapers across the country, as well as some international newspapers.

Reno Evening Gazette article featuring N. Edd Miller Day from a scrap book in Special Collections.

 

The event set the stage for the promotion of issues that were important to students, and which, I suspect, remain important to them today: academic freedom, students’ rights, professor evaluations, the cost of tuition and job placement after graduation. It also laid the groundwork for the Board of Regents’ adoption of the first student bill of rights.  And it allowed us to bring on campus a number of controversial figures of the time to conduct open dialog and speeches about many diverse issues.

For example, President S.I. Hayakawa of San Francisco State University, who at the time was gassing students and engaging in other very restrictive supervision of student activities, presented a very interesting point of view about the duty of a university and the role of a student in education and campus activities. On the other side of the coin we presented Julian Bond, a civil rights activist, co-founder of the Student Non-Violent Coordinating Committee and the first black member of the Georgia State Assembly. He provided an insightful dialog on racial discrimination, black power and similar issues surrounding racial tensions in the United States.

The student government also was proactive in reaching out to students to find out how we could help them. Throughout the history of the University, there have been issues involving the quality of food at the dining commons, and it was no different when I was student body president. There were issues surrounding housing in the dorms. There were disputes about the cost of tuition and health care for students, even back then. Student government, I am proud to say, was very proactive in engaging the administration and the Board of Regents on all of those issues, and, while we were there, made some progress.

Participating in student government taught me the value of civil communication and working together to achieve important success for all of the parties that were involved. That experience benefitted me throughout my life as a lawyer and certainly as a district court judge. When I became a Washoe County district court judge in 1999, I joined a bench that had a number of strong personalities. They had been distracted by controversy that had existed in the previous five or six years. During my time on the bench, I was able to generate cooperation among the judges, and we worked with the county commissioners to facilitate important changes in the way we processed cases, the timeliness of our work, and the budget under which we operated.

During my time as chief judge, I had the opportunity to work with some outstanding judges, and we developed a great working relationship that fostered real progress in the Washoe County judicial system.

In my work as a district judge, I supervised the settlement of the Washoe County Regional Plan in which all three government bodies—Washoe County, the City of Reno and the City of Sparks—were at serious disagreement about how regional planning should be conducted.
 
I also had the opportunity to sit on a number of high profile cases, including a dispute over whether the Mapes Hotel should be demolished. But my experiences at the University of Nevada, Reno helped prepare me for dealing with those kinds of controversies, and again appreciating the value of civil communication, respect for another person’s point of view, and developing skills to find middle ground and compromise where appropriate.

Being a judge helped me understand the value of that kind of communication. The most effective trial lawyer or appellate advocate is not the one who screams the loudest, but the one who communicates most effectively—by their preparation, their intellect, and their civility. I have found throughout my entire life that this approach has been extremely effective and successful in achieving many goals.

I was elected to the Nevada Supreme Court in 2004. On the Nevada Supreme Court, effective communication is particularly important, since this court is the highest court in the state and has a number of important responsibilities concerning the law and the administration of justice. It is vital that the Supreme Court, through civil communication, demonstrate neutrality, impartiality, diligence toward hard work, and an unbiased approach to serving the law, and not political agendas.

Since I’ve been on the Supreme Court, we’ve been very successful in developing a good working relationship among the justices, and our disagreements have been limited to what the law is or ought to be, rather than personal strife or confrontation. We have been able to communicate professionally, and our agreements to disagree are professional and not personal in nature.

In 2009, I was elected Chief Justice of the Nevada Supreme Court. As a professional accomplishment, I am so pleased that I had the opportunity to serve as chief justice of the Nevada Supreme Court. Only 44 Nevadan’s have served our state in that capacity and the experience is challenging and gratifying.  I served as chief justice during the difficult and contentious 2009 legislative session. But, working closely with the legislature in a cooperative effort, three major things came out of that legislative session that affected the judiciary in a big way and will impact our citizens for many years in the future.

First, the court put forward a business plan to the legislature requesting an  increase in the number of judges in the state by 10. There’s no question, by any standard, that the workload of the judges in our state is higher than the workload of judges in any other state in the country.

Adding these 10 judges was particularly important for the district courts—to reduce the time that it takes to get into court and to increase the courts’ ability to respond to important issues, such as family courts, business courts, criminal adjudications and a number of other matters that affect all of our citizens.

Second, how to pay for it became a critical issue. The plan that we proposed increased civil filing fees that hadn’t been examined for some 20 years. The legislature agreed to dedicate those filing fees to the support of the additional judges and associated facility costs. I am very proud of the fact that our plan has been implemented and has been extremely successful. It provided a new source of revenue for rural county judges, who didn’t need new judges, but who needed—badly—money for facilities. We paid for all the facilities needed, and we paid for all the operating costs of the judges. The two urban districts, Clark County and Washoe County, got new judges and a needed supplement to their facilities’ budgets.

That program came about because of a lot of hard work by a lot of people, as well as the development of a close working relationship and civil communication between the judicial branch and the legislative branch during the 2009 session.

The third major piece of legislation—one that the court hadn’t promoted but had to respond to—was the adoption of the foreclosure mediation program. Nevada, which ranks first in the country in foreclosures, needed a program to try to address the many difficulties our citizens were having with their loans, the rate of foreclosure and just plain communication with their lenders.

While I was chief justice, I was surprised that the legislature wanted the court to undertake the responsibility of implementing this new program. We offered input during the legislative session, which the legislature generally considered. But we also made suggestions about how to finance the program. Rather than use taxpayer money, we suggested relying instead on user fees.

I am proud of the fact that those suggestions have proved very successful because the foreclosure mediation program is a stand-alone, independent program that has been  financially successful as a result. It does not use any taxpayer money to meet the important social and economic problem that the state is currently dealing with. Both lenders and borrowers pay fees when the foreclosure notice is filed. The legislation was signed into law at the beginning of June 2009, and the program started July 1, 2009. The court had no money, no mediators, no rules in place, no training for mediators, no forms—all of that had to be pulled together within about a month. That was a tremendous effort for one of the busiest appellate courts in the United States. I think it was pretty successful. It continues to be a work in progress, but it was yet another project that came about as a result of being able to compromise, respect others’ points of view, and communicate effectively in a civil way.

Many people have different points of view about the program, the effectiveness of the program, and how it’s been run, yet all of those views are very worthwhile to the discussion because so many people are impacted by what the program is trying to accomplish. In that dialogue, like any controversy, it is important to respect other people’s points of view and recognize that in doing so, suggestions should be entertained, ideas should be considered, and that anything can be improved. You only improve programs as a result of such communication.

On my desk is a paper weight that contains words offered by President Ronald Reagan :  “There’s no limit to what a man can do [and I’ve often said ‘or a woman’] or where he can go, if he doesn’t mind who gets the credit.”

I think it underscores the idea that it is everyone’s ideas that bring about success, not just one individual’s. It is always important to consider another person’s point of view, either to improve upon your own, or to refine your own. I keep that plaque handy as a nice reminder of the fact that many of us can accomplish many things, if we are not worried about our own ego coming first.

The basis for much of what I have done throughout my professional career came from my experiences at the University. It was a great laboratory, not only a laboratory for learning, but also a laboratory for building a foundation for life experiences. I wanted to be an accountant and eventually a lawyer. I didn’t expect, when I started college, to be embroiled in any kind of controversy.

I can understand why there were controversies in those days because I and many of my friends lost close friends in the Vietnam War. When your family or friends die, it heightens the emotions and it makes the dialogue even tougher. But the controversies also provided an opportunity to work through issues, setting aside the emotions, and focusing on a dialogue and civil communication.

Those controversies of the past are particularly relevant to today’s controversies. Increasingly, we see what appears to be an inability on the part of people to obtain compromise, respect others’ points of view, or communicate effectively and in a civil way. I’m hoping that lessons of the past where effective civil communication has produced such great results can be revisited.

We seem in some instances to have lost respect for our institutions. I’ve seen, over the course of my professional career, that there have been lots of reasons for that. The Nixon era cast a terrible pall on the country and raised suspicions about presidents that I’m sure most citizens would never even have thought of or have considered before that time.

One of the things that I’ve tried to do since joining the Nevada Supreme Court—in my writings as a judge and in my actions as a judge—is to communicate in an impartial and unbiased manner.

If our citizens lack confidence in the judicial branch—if they lack confidence in our institutions at all—it undermines our democracy. When parties appear in front of the judicial branch of government—there is no other branch of government where independence and impartiality is so important—both sides to the dispute need to know that their case is being resolved, not on the basis of political influence or some other bias or preference on the part of the judge who was sitting, but instead will be resolved solely on the facts of the case and the law that impacts it.  The public’s confidence in this branch of government will only come from our actions, not by what we say we will do. 

In a recent case, Clean Water Coalition v. The M Resort—which pertained to an Assembly bill that required transferring money from a southern Nevada entity to the state’s general fund—I worked on the opinion in that case for 18 straight days. It was a wonderful academic experience. The state had never interpreted article 4, sections 20 and 21, of our constitution. I think most people think that the Nevada Constitution came from California or Utah. As it turns out, that’s not true, at least for these sections; they came from Indiana. Some cases had been decided in the Indiana in the 1850s that helped guide our interpretation, using the normal rules of statutory construction and constitutional construction that we have employed for years. The effort by the court has been to produce a scholastic, academic product in its decisions.

The beauty for me in participating in a case like this and being the author of the opinion, is that it sets in motion a discussion by many about alternatives and permutations, which I think is a very healthy discussion to have. Like anything, it opens the door to look at other alternatives and to look at issues that may not have been initially considered.

People have a right to disagree about the outcome of an opinion by the court, but they need to know and have confidence in the fact that it has been undertaken in an academic, scholastic way, so that the disagreement is focused on the scholarship of the product not on an alleged bias or ex parte influence on the judges who were making the decision. In Clean Water and in another recent case, Nevada Democratic Party v. Nevada Republican Party—which pertained to the manner of selecting candidates who would appear on a special election ballot to fill the vacant seat in Nevada’s 2nd Congressional District—we have been able to do that, as well as in many other cases.

There was media attention on the congressional district case and attempts were made to imply that the decision would be partisan. I think anyone who reads the order would conclude that the justices’ personal party affiliation didn’t have anything to do with the outcome. Only two states have adopted the “free-for-all” approach to fill a House seat that the Democrats supported, and since at least 1954, following the death of U.S. Sen. Pat McCarran, Nevada has held that when a vacancy occurs, only the major political parties’ are allowed to designate a candidate to be on a special election ballot.

Every year I’ve been on the court, we have had number of very controversial disputes. Last year alone we had something like 15 or 16 election cases where there were controversies over initiative petitions, candidates for judgeship or for partisan political office, and all of those cases required a prompt adjudication.

The court is regularly called upon to decide these kinds of controversies, and our job is to disregard the clamor, be dispassionate, and focus solely on the facts and the law.

If you are a citizen who is going to court and you are involved in a child custody dispute, or a being charged with a crime, being sued, or you are suing a contractor or have a personal injury claim, where’s the one place that you want a fair, impartial, independent adjudicator of that case? It’s the courts. If our citizens lose confidence in our judicial system because they believe that the judges are operating under some undue influence, then you lose confidence in our democracy.

One of the major differences setting the United States of America apart from the rest of the world is our judicial system. I know that people have different points of view about this and have disappointments with some verdicts that are rendered by juries or by decisions that are rendered by courts, but my hope is that when they have a difference of opinion about a decision by the Supreme Court of Nevada that their difference of opinion has to do with the way we interpreted a statute, or about legislative history or established rules of construction, rather than speculation about some bias that exists in our personal backgrounds that led to our decision.

Again, you establish trust based on your actions. You accomplish confidence in your institution by what you do, not by what you say.

From a July 21 conversation with Melanie Robbins ’06M.A., senior editor of Nevada Silver & Blue. The Honorable James Hardesty was named outstanding senior graduate at Nevada in 1970. He earned a juris doctor degree from University of Pacific McGeorge School of Law in 1975. Following a career in private practice, James was elected district court judge in the Second Judicial District Court of Washoe County and was elected chief judge in 2001 and again in 2003. He was sworn in as a justice on the Nevada Supreme Court on Jan. 3, 2005, and was elected chief justice for the 2009 term. He has served on numerous Supreme Court commissions, among which are current positions on the Access to Justice Commission and the Commission on Statewide Juvenile Justice Reform, among others. He served four years on the Nevada Alumni Council, including a term as president in 1981. He is a philanthropic supporter to several Nevada scholarship funds, as well to Wolf Pack and University endeavors. He has been married for 40 years to Sandy Packer ’85 (physical education). They have two children and five grandchildren.

 

Here are a few additional articles from N. Edd Miller Day:

Craig Sheppard illustration of N. Edd Miller Day.

 

National coverage of N. Edd Miller Day in The Oakland Tribune.

 

International coverage of N. Edd Miller Day in The Stars and Stripes.

 

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