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96 Chapter Eight The Nevada Judiciary Introduction In interpreting the meaning of various statutes and constitutional provisions, the judges of Nevada’s courts engage in a form of policy making that affects not only the lives of the litigants in each case but also the lives and fortunes of all the state’s citizens. It should come as little surprise, then, that the state’s judges, especially the justices of the Nevada Supreme Court, have come under intense scrutiny and, on occasion, criticism for the decisions they have made. Two periods of Nevada history in particular illustrate the vigor of the courts’ critics. The early years of the judiciary in the Great Basin were not good ones. As noted in chapter 1,early settlers in the CarsonValley were eager to gain separate territorial status as early as 1851. This desire was based in part on their wish to rid themselves of the Utah territorial judiciary, Mormon judges who were accused by the settlers of “so [mixing] together church and state that a man [could not] obtain justice in any of its courts.”1 Even after separate territorial status was granted in 1861, however, the courts were not spared criticism of their actions.President Lincoln’s three appointed territorial judges (Chief Justice George Turner,Associate Justice Horatio N. Jones, and Associate Justice Gordon N.Mott) and their successors were subjected to at least as much criticism as their Mormon predecessors, albeit for different reasons. Although, as we will discuss, the Nevada territorial judges did behave in unprofessional and inappropriate ways, the primary factors undermining them were the overwhelming number of disputed mining claims they were forced to handle and the unbridled desire of William M. Stewart to control the territorial and state governments. The Nevada territorial courts were inundated with mining claims and did not have the staff to deal with them in a timely fashion. As one historian of the period has noted, “The first result of the opening of the Comstock mines was wild speculation, and the second almost endless litigation .”2 Chief among the reasons for this litigation was the question whether various lucrative ore veins were part of a single ledge and therefore the property of one company or whether they were separate ledges that would allow ownership by a number of individuals or companies. A decision by the judges on behalf of either theory meant the gain or loss of tremendous fortunes to those involved. With such high stakes at issue, the 96 The Nevada Judiciary 97 judges were in a no-win situation and could not escape severe criticism regardless of how they decided. To make matters worse, there were virtually no statutes governing the issues at hand and the judges were forced to apply obscure mining-district regulations and common law, when those were available. As though the deck were not stacked enough against the judges, witnesses and jurors in these cases were often bribed by the mining companies, which stood to win or lose millions of dollars. It is perhaps possible that the first territorial judges could have survived the controversy over mining claims, had it not been for the actions of William M. Stewart.As explained in chapter 2, Stewart was partly responsible for the failure of the 1863 constitution because he maneuvered control over the Union Party convention in Storey County and ensured that individuals allied with him were listed on the ballot for the state’s first officers. The unwillingness of many in Nevada Territory to allow Stewart and his minions to control the new state government led them to defeat the proposed constitution and Stewart’s handpicked slate of candidates by a 4 to 1 margin. Stewart, however, was not to be stopped. Politically and economically, Stewart had much to gain by destroying the territorial judges’ legitimacy. As a well-paid attorney for wealthy California mining companies,he and his clients stood to win (or lose) vast riches depending upon the judges’ decisions in these mining-claim cases.Politically,Stewart could achieve two goals important to him by undermining the territorial judiciary. He could, on the one hand, increase support for statehood and rid the area of its appointed territorial judges, replacing them with elected state judges, whom he believed would be more controllable.On the other hand,he could wreak revenge against his old nemesis, John North, who had replaced Justice Mott on the territorial bench. Stewart’s conflict with Justice North had begun at the 1863 constitutional...


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