9th Circuit rules on Burning Man, slaps judge in Reno again
RENO — The 9th U.S. Circuit Court of Appeals has overturned another ruling by the same conservative federal judge in Nevada, criticizing his unorthodox handling of a Burning Man lawsuit and taking the extraordinary step of ordering him off a case for the fifth time in two years.
U.S District Judge Robert Clive Jones had no legal basis to reject a deal lawyers for Burning Man and Pershing County reached in 2013 to settle a dispute over security costs and First Amendment rights at the annual counter-culture celebration in the desert about 100 miles north of Reno, the appellate court ruled on Wednesday.
Jones — who recently shifted to senior status on the Reno bench — inappropriately mocked the lawyers during a hearing, accused both sides of malpractice, described one lawyer’s comments as “mealy-mouthed,” suggested another should return to law school and “noted his own laughter on the record,” the three-judge panel said.
“We have in the past expressed concern over the district’s court’s handling of a number of cases that have reached this court, and we unfortunately must do so again here,” Chief Circuit Judge Sidney Thomas wrote in a unanimous four-page memo issued Wednesday in San Francisco.
Thomas said in granting the Burning Man lawyers’ appeal that he was remanding the case back to district court and instructing Nevada’s chief U.S. district judge to assign the case to a different judge. He listed six cases in which the 9th Circuit reluctantly has issued similar orders involving Jones since 2012 — five in just the last two years.
The most recent came in January when the appellate court overturned Jones’ ruling in favor of the late Nevada rancher Wayne Hage. The court strongly admonished Jones for abusing his power and exhibiting personal bias against U.S. land managers enforcing livestock grazing regulations. Circuit Judge Susan Graber noted in that 3-0 decision that directing reassignment of a case is warranted “only in rare and extraordinary circumstances, such as when the district court has exhibited personal bias or when reassignment is advisable to maintain the appearance of justice.”
Shortly after that ruling, the 68-year-old ex-bankruptcy judge from Las Vegas appointed by President George W. Bush in 2003 announced he was moving to senior status, which greatly reduces his caseload.
Other high-profile rulings overturned in recent years include his rejection of same-sex marriage in Nevada, his dismissal of a lawsuit against state officials accused of violating federal voting laws and his refusal in 2012 to pull “None of These Candidates” off Nevada’s ballots.
In the Burning Man case, The Associated Press first reported on the Nov. 29, 2013, hearing when Jones said that under the agreement the county was waiving its right to enforce state laws, including its ability to keep children from being exposed to people “running around nude on the desert.”
“You give them (Burning Man organizers) virtually a veto authority over what the sheriff is doing,” Jones said.
Both sides said Jones misunderstood.
“We didn’t give up any right to enforce any law,” insisted Brent Kolvet, a lawyer representing the county.
Annette Hurst, a lawyer for Burning Man’s owner, Black Rock City LLC, concurred.
Later, the judge said Kolvet was insulting his intelligence and described one of Hurst’s arguments as “mealy-mouthed.” Twice while mocking their positions, he said, “The record will reflect I’m laughing.”
He refused Hurst’s first request to speak. “No. Just take careful notes,” Jones said.
Later, she asked again.
“I’m going to suggest, ma’am, you go back to law school,” Jones said. “Sit down.”
When Hurst said she was trying to complete a sentence, Jones told his clerk: “Call security.”
“For the last time, sit down,” Jones said.
Hurst sat and a U.S. marshal arrived seconds later, but the hearing continued.