Appendix — Snyder v. Viani

Suprems Court, 0.8.

FILED

~)/96 168 Ju 3 1199

OFFICE OF THE CLERK

No. 96-

IN THE

Supreme Court of the Gnited States

October Term, 1995

SHAWNA SNYDER,

Petitioner

V.

JOSEPH VIANI,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Nevada

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

PETER CHASE NEUMANN

136 Ridge Street

P.O. Box 1170

Reno, Nevada 89504

(702) 786-3750

Attorney for Petitioner

i

TABLE OF CONTENTS

Part 1: Opinions

Page

l. November 30, 1994 Opinion ................. la

2. ge fs Rarer ee 17a

3. ey bas Be I be os oh vc OS kde os 54a

Part 2: Proceedings Before Nevada Supreme Court

4. February 1, 1995, Motion To Disqualify Justice

Rose, To Vacate The Court's Opinion, and to

Remand The Decision For Further Proceedings ... 55a

5. Exhibits which were attached to February 1,

1995, Motion to Disqualify Justice Rose, To

Vacate The Court's Opinion, and to Remand

The Decision For Further Proceedings, but were

too Voluminous to Reprint In This Appendix ... 79a

6. Affidavit of Kenneth J. McKenna, Esqg......... 80a

7. Affidavit of Shawna Snyder................. 82a

8. Response of Justice Rose To Motion To

Disqualify Him and Request That Justice

Springer Not Participate In The Motion to

0 RS Pea es rep re mrre rer orn 86a

il

TABLE OF CONTENTS CONTINUED

9. Shawna Snyder's Supplement To Motion To

Disqualify Justice Rose, To Withdraw The

Court's Opinion, And To Reargue The Appeal

On Eis REGUS gos cacs ov a aes

10. | Opposition to Motion to Disqualify Justice

Rose And To Remand The Decision For

Further Proceeding; Request For An Award Of

Fons Ant SAUDNNS ssa cccae ee acs

11. | Shawna Snyder's Reply In Support Of Motion

to Disqualify Justice Rose .................

Part 3: Pertinent Statutes

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IN THE SUPREME COURT OF THE STATE OF

NEVADA

SHAWNA SNYDER, AS THE SPECIAL

ADMINISTRATOR OF THE ESTATE OF

DANIEL PATRICK LOVETT, DECEDENT,

Appellant,

vs.

JOSEPH VIANI, INDIVIDUALLY AND

D/B/A JOE’S TAVERN; TOMMY JO

MONTOYA; TAMMY ADAMS; MINERAL

COUNTY SHERIFF’S OFFICE, A

POLITICAL SUBDIVISION; JOHN

MADRASO, JR., IN HIS OFFICIAL

CAPACITY AS SHERIFF AND

INDIVIDUALLY; JOHN LEONHARDT,

IN HIS OFFICIAL CAPACITY AS

SHERIFF AND INDIVIDUALLY,

Respondents.

No. 23726

FILED

NOV 30 1994

Janette M. Bloom

Clerk of Supreme Court

By s/s Janette M. Bloom, Chief Deputy Clerk

— 7

:

:

2a

Appeal from an order of the district court granting a

motion to dismiss. Fifth Judicial District court, Mineral

County; John P. Davis, Judge.

Affirmed.

Kenneth J. McKenna, Reno

for Appellant.

Erickson, Thorpe & Swainston;

Bradley & Drendel, Reno

for Respondents.

OPINION

By the Court, Young, J.:

FACTS

On July 12, 1990, Daniel Patrick Lovett was twenty

years and nine months old. At about 11:45 that night, he

visited Joe’s Tavern in Hawthorne, Nevada, and was served

alcoholic beverages. Lovett remained at Joe’s Tavern until

approximately 1:15 a.m. on the morning of July 13, 1990,

when he went to the E] Capitan Hotel/Casino. Lovett stayed

at the El Capitan until approximately 6:00 a.m., at which

time he got into his vehicle and began driving to Sacramento,

California. At approximately 6:30 a.m., Lovett crossed over

the center line of Highway 95 north of Schurz, Nevada, and

collided head-on with a motorhome. The motorhome’s four

3a

occupants, along with Lovett, were killed. At the time of the

accident, Lovett had a blood alcohol level of 0.187 percent.

On March 30, 1992, Shawna Snyder, the special

administrator of Lovett’s estate, brought an action for

negligence, malice and breach of contract against

respondents. In her complaint, Snyder alleged that even

though employees at Joe’s Tavern knew that Lovett was not

yet twenty-one years old and that he planned to drive to

Sacramento, they negligently and maliciously served him

alcoholic beverages. In addition, Snyder asserted that the

Sheriff's Department acted negligently and with malice in

implementing a policy that required deputies not to ask for

the identification of patrons at Joe’s Tavern. Finally, Snyder

alleged that various signs at Joe’s Tavern, stating that

alcoholic beverages would not be served to underage patrons,

established a contract between Joe’s Tavern and the public.

According to Snyder, by serving Lovett alcoholic beverages,

Joe’s tavern breached its contractual duty to refuse to sell

him such beverages. On August 27, 1992, pursuant to NRCP

12(b)(5), the district court entered an order granting

respondents’ motion to dismiss Snyder’s action.

DISCUSSION

Snyder asserts that the district court erred in

dismissing her action because it is distinguishable from prior

Nevada cases. In particular, Snyder contends that her action

involves the sale of alcohol to an underage drinker, not to an

inebriated person, and injury to the drinker, not a third party.

Snyder also argues that there is a direct nexus here between

4a

the sale of alcohol and the death of Lovett, and that this case

is not based on the violation of any criminal statutes.

In reviewing an order granting a motion to dismiss,

this court must "determine whether or not the- challenged

pleading sets forth allegations sufficient to make out the

elements of a right to relief." Edgar v. Wagner, 101 Nev.

226, 227, 699 P.2d 110, 111 (1985) (citations omitted). We

conclude that Snyder’s complaint failed to state a claim upon

which relief could be granted and that the district court

properly granted respondent’ motion to dismiss.

The issue of tavern keeper liability for alcohol-related

injuries was first addressed by this court in Hamm v. Carson

City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969). In

Hamm, we adopted the common law rule that consuming

alcoholic beverages, and not furnishing them, is the

proximate cause of third party alcohol-related injuries. In

addition, we determined that a tavern keeper’s violation of a

criminal statute prohibiting the sale of alcohol to inebriated

persons does not constitute negligence per se. Further, we

concluded that if civil liability were imposed on tavern

keepers, such liability would have to be established by

"legislative act after appropriate surveys, hearings and

investigations [.]" Id. at 101, 450 P.2d at 359.

During the next thirteen years, we followed Hamm, to

varying degrees, in five published opinions. See Yoscovitch

v. Wasson, 98 Nev. 250, 645 P2d. 975 (1982) (concluding

that proximate cause of injuries brought about by underage

drunken driver was driver’s consumption of alcohol, not

vendor’s sale of alcohol); Bell v. Alpha Tau Omega, 98 Nev.

Sa

109, 642 P.2d. 161 (1982) (ruling that violation of criminal

statute prohibiting sale of alcoholic beverages to persons

under the age of twenty-one does not constitute negligence

per se); Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 474,

633 P.2d (1981) (holding that sale of alcoholic beverages to

underage drinkers does not constitute "willful or wanton

misconduct"); Davies v. Butler, 95 Nev. 763, 602 P.2d 605

(1979) (reiterating that violation of law prohibiting provision

of liquor to inebriated persons does not constitute negligence

per se and concluding that alcohol provider's willful or

wanton misconduct may, in some situations, proximately

cause alcohol-related injuries); Mills v. Continental Parking

Corp., 86 Nev. 724, 475 P.2d 673 (1970) (ruling that parking

lot operator who returned keys to inebriated driver was not

liable for subsequent injuries to third party).

Most recently, in Hinegardner v. Marcor Resorts, 108

Nev. 1091, 844 P. 2d 800 (1992), we considered a situation

similar to that presented here. In Hinegardner, an underage

drinker, who had consumed alcoholic beverages at several

drinking establishments, drove his car on a Nevada highway

and collided with another vehicle, injuring its occupants.

One of the injured third parties filed a complaint against the

tavern keepers, alleging causes of action for negligence and

negligence per se. The district court subsequently granted the

tavern keepers’ motion to dismiss. *Id. at 1092-93, 844 P.2d

at 801.

On appeal, the injured party maintained that the

"modern trend" is to allow third party claims of negligence

and negligence per se against tavern keepers, and that this

court was an appropriate forum for a change in the law. We

6a

considered whether we should modify existing Nevada law to

recognize third parties’ claims for relief against tavern

keepers who furnish alcoholic beverages to an underage

drinker, but concluded that any "modern trend" was not

significant enough to justify the abrogation of our long line

of decisions denying negligence claims against tavern

keepers. We also reiterated that the violation of a penal

statute prohibiting the sale of alcohol to an underage person

is not negligence per se and concluded that "only legislative

mandate should create civil liability for vendors who serve

alcohol to minors." Id. at 1095-96, 844 P.2d at 803.

Based upon our prior cases, and, in particular, our

recent opinion in Hinegardner, we conclude that Snyder

failed to set forth allegations sufficient to establish a viable

claim against any of the respondents. With regard to

Snyder’s negligence claim against the tavern keeper, we have

previously adopted the common law rule exempting tavern

keepers from liability for alcohol-related injuries:

At common law, courts refused to recognize a

cause of action arising out of the sale or

furnishing of intoxicating beverages.... [T]he

common law considers the act of selling the

intoxicating beverage as too remote to serve as

the proximate cause of an injury resulting

from the negligent conduct of the purchaser of

the drink. Nevada subscribes to the common

law rule.

Id. at 1093, 844 P.2d at 802.

Ta

Our continued adherence to the bright-line common

law rule necessitates our conclusion that, as with injuries to

third parties, consumption is the proximate cause of alcohol-

related injuries to the drinker.

Furthermore, we have recognized that permitting

third-party negligence claims against commercial alcohol

vendors would require us "to answer. . . a sundry ge

multifarious questions for the flood of injured litigants that

[would] inevitably crowd the Nevada courts." Id. at 1096,

844 P2d at 804. First-party claims, like third-party claims,

would flood our courts with a multitude of questions that are

better addressed by the legislature. "Where, as here, the issue

involves many competing societal, economic, and policy

considerations, the legislative procedures and safeguards are

well equipped to the task of fashioning an appropriate

change, if any, to the settled rule.” 108 Nev. at 1096, 844

P.2d at 804. We find it noteworthy that following our

decision in Hinegardner, the 1993 Nevada legislature chose

not to enact legislation that would impose civil liability on

tavern keepers for the sale of alcoholic beverages to underage

drinkers. This choice not to extend liability supports our

decision in Hinegardner and our decision here.

Snyder’s remaining claims are also insufficient. With

regard to her negligence claim against the Sheriff's

Department and its officers, NRS 41.0336 provides that a law

enforcement agency and its officers are not liable for

negligent acts or omissions unless the victim detrimentally

relied on the agency’s or officers’ representations or the

officers affirmatively caused harm to the victim. Here,

Ra

Snyder has made no allegations that would bring her claim

of negligence within the purview of NRS 41.0226.

Further, Snyder’s allegations that respondents acted

with "malice" do not set forth any right to relief. A plurality

of this court has previously defined "malice," in the context

of our punitive damages statute (NRS 42.010), as "hatred and

ill-will and the deliberate intent to injure." Craigo v. Circus-

Circus Enterprises, 106 Nev. 1, 9, 786 P.2d 22, 26 (1990).

Here, Snyder has alleged no facts suggesting that any of the

defendants acted with ill-will or a deliberate intent to injure

Lovett.' Finally, as Snyder has not alleged facts necessary

to establish contract formation between the tavern and Lovett,

her breach of contract claim necessarily fails. We therefore

affirm the district court’s order granting respondents’ motion

to dismiss.

/s/ YOUNG, J.

Young

We concur:

' Furthermore, we have held that knowingly furnishing or selling alcohol

to an underage person, even if done more than once, does not constitute

“willful or wanton misconduct.” See Van Cleave, 97 Nev. at 416, 633 P.2d

at 1221. Contrary to Snyder's assertion that her district court action is not

based on the violation of any criminal statutes, Snyder's claim of “malice"is

grounded, in part, on respondents’ alleged “violatifon] [of] state statutes

enacted to protect minors." We have previously held that the violation of a

criminal statute regarding the sale of alcohol to a minor does not constitute

negligence per se. See Hinegardner, 108 Nev. at 1096-96, 844 P.2d at 803;

Bell v. Alpha Tau Omega, 98 Nev. 109, 642 P.2d 161 91982). Such

violation, in and of itself, certainly does not suggest "malice."

ae.

/s/ ROSE, C.J.Rose

/s/ SHEARING, J. Shearing

DISSENTING OPINION

Steffen, J., with whom Springer, J. concurs, dissenting:

For reasons detailed in my dissent in Hinegardner v.

Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992), I am

compelled to dissent in the instant case.

Unfortunately, the facts of this case are even more

egregious and tragic than those in Hinegardner. Here, the

intoxicated driver, Daniel Patrick Lovett, only twenty years of

age, was drinking alcoholic beverages from about 11:45 p.m.

until approximately 1:15 a.m. while at Joe's Tavern in

Hawthorne, Nevada. Allegedly, the tavern employees knew

that Lovett was under the lawful age for consuming alcoholic

beverages and that he planned to drive to Sacramento,

California. After leaving Joe's Tavern, Lovett went to the El

Capitan Hotel/Casino where he stayed until his departure for

Sacramento at 6:00 a.m. The intoxicated youth had no way of

knowing that he had only one-half hour of life left and that in

the process of killing himself he would also be an instrument

of doom for four innocent people who were moving rapidly

toward a rendezvous with a lethal combination of steel and

alcohol.

Lovett's death machine crossed over the center line of

Highway 95 north of Schurz, Nevada, and crashed head-on

10a

with a motorhome carrying four occupants. Lovett and his

victims were all killed at approximately 6:30 a.m. on the

morning after Lovett’s night of drinking. Tests demonstrated

that Lovett had a blood alcohol level of 0.187 percent at the

time of the collision.

Once again, the majority placed great emphasis on

economic concerns than on human life. The rationale for the

majority’s position is the old bromide that under the common

law, it is the consumption of alcoholic beverages rather than

the furnishing of such beverages that is the proximate cause

of third party alcohol-related injuries. In _Hindegardner it

was noted:

It is instructive to note the development of the

common law in its response to the growing

menage of inebriated drivers on the highways.

Justice Erickson, writing for the Supreme

Court of Colorado in Largo Corp. v. Crespin,

727 P. 2d 1098 (Colo. 1986), recounted:

The modern era of dramshop liability began in

1959, when two courts--the Seventh Circuit in

Waynick v. Chicago’s Last Department Store,

269 F. 2d 322 (7th Cir. 1959), cert. denied,

362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554

(1960), and the New Jersey Supreme Court in

Rappaport vs. Nichols, 31 N.J. 188, 156 A.2d

1 (1959)--held that a third party injured by an

intoxicated person may bring a negligence

action against the commercial vendor who

sold liquor to the intoxicated person. Both

decisions rejected the defendant’s contention

lla

that the sale or service of an alcoholic beverage

could not, as a matter of law, be the proximate

cause of injury to a third party. The Rappaport

court said: "Where a tavern keeper sells

alcoholic beverages to a person who is visibly

intoxicated or to a person he knows or should

know from the circumstances to be a minor, he

ought to recognize and foresee the unreasonable

risk of harm to others through action of the

intoxicated person or the minor." 156 A.2d at 8.

The court concluded that the danger was

"particularly evident in current times when

traveling by car to and from the tavern is no

commonplace and accidents resulting from

drinking are so frequent.” Id.

The Largo court recognized the clear

foreseeability of injury resulting from drivers

whose abilities and judgment are impaired by

intoxicants. moreover, the court described as

"outdated and ill reasoned," the old common

law rule that "the person who consumed alcohol

became a superseding cause of the injury and

broke the causal relation between the vendor's

conduct and the plaintiff's injuries." Id. at 1103.

Hingardner v. Marcor Resort, 108 Nev. 1091, 1098, 844 P.2d

800, 805 (1992) (Steffen, J., dissenting).

12a

As previously observed in Hinegarder, the majority’s

position would place them in solid dissent with the landmark

ruling of MacPherson v. Buick Motor Co., 111 N.E. 1050

(N.Y. 1916), on grounds that liability in the manufacture and

sale of products, including automobiles, would be limited to

those comparatively few instances where there was

contractual privity between the manufacturer and the

purchaser of the product. See id. at 1097, 844 P.2d at 804

(Steffen, J., dissenting). Thus the interpositioning of the

retailer between the manufacturer and the consumer who

would ultimately use and be injured by the defective product,

would generally leave the consumer without a remedy for his

or her injuries. See MacPherson, 111 N.E. at 1053-54.

Likewise, in negligent entrustment cases, the majority’s

reasoning would eliminate the cause of action on grounds that

it is the action of the party to whom the instrumentality of

harm is negligently intrusted who causes the harm rather than

the one who negligently entrusts the instrumentality to

someone unsuited to the trust.

As I observed in dissent in Hinegardner, [t]he

role of alcohol in the death and maiming of

countless numbers of men, women and

children each year is well and indisputably

attested. The shattered concourses of victims

of alcohol-related accidents have combined

with a restive and angry society to create a

responsive, solid majority of courts that have

recognized a cause of action against negligent

vendors or alcohol.

108 Nev. at 1097, 844 P.2d at 805.

RU Go6 vi

j3a

Since the majority once again spurns that opportunity

to join "the overwhelming majority of courts [that] have

abandoned the old common-law rule and allowed negligence

actions against commercial vendors of alcoholic beverages"

(Largo, 727 P.2d at 1101) by ceding the task to the

Legislature, | must again register my protest in the strongest

of terms.

Given the fact that Nevada has a singularly strong

financial dependence upon segments of the state economy

that dispense alcohol as a significant inducement to other

forms of business activity, it is both unrealistic and

irresponsible to espouse the fantasy that the Legislative

branch of government will effectively consider and adopt

dramshop legislation. Although we can hardiy fault our

legislators for shunning such an act of self-immolation, there

is no excuse for the “non-political” judicial branch of

government doing the same. I realize the unfortunate fact

that judges, including the members of this court, are elected

in this state, but that constitutes no valid excuse for this

court’s failing to respond to the clear and increasing demands

of our society to give relief to the growing number of victims

who fall prey to inebriated drivers on our highways. Despite

the apparent need to substantially finance judicial elections

with contributions from segments of our state economy that

are purveyors of alcoholic beverage “biting the hand that

feeds you" should never be a consiuaation in the judicial

process.

The "overwhelming majority of courts" have advanced

the common law to meet the conditions of our present society

because it should be clear to all that if vendors of alcoholic

}

l4a

beverages are factored into the liability equation, there will be

fewer intoxicated drivers, like Lovett, to continue the highway

carnage that truly has become such a national disgrace and

tragedy. Fewer intoxicated drivers translates into fewer

victims. Depreciating inebriated drivers results in the

veneration of human life. Placing greater value on human life

than economic advantage, lifts society to a higher plane.

Conversely, emphasizing commercial advantage over human

life and suffering degrades society and lowers the quality of its

civilization.

The majority would have us believe that there are so

many problems and nuances of problems involved in placing

negligent vendors of alcohol in the liability equation, that these

problems and the difficulties inherent in their resolution

outweigh the substantial attenuation of human misery and death

that would result from the implementation of solutions. I

suggest that the majority's fears are as unjustified as its

priorities.

Quoting again from my dissent in Hinegardner,

consider the vision and pervasive impact of the venerable Judge

Cardozo who, writing for the MacPherson court, said:

Precedents drawn from the days of travel by

stagecoach do not fit the conditions of travel to-

day. The principle that the danger must be

imminent does not change, but the things

subject to the principle do change. They are

whatever the needs of life in a developing

civilization require them to be.

15a

If the nature of a thing is such that it is

reasonably certain to place life and limb in

peril when negligently made [such as an

intoxicated human ready to operate a high

speed vehicle], it is then a thing of danger. If

to the element of danger there is added

knowledge that the thing will be used by

persons other than the purchaser, and used

without new tests, then, irrespective of

contract, the manufacturer of this thing of

danger is under a duty to make it carefully."

Hinegardner, 108 Nev. at 1097, 844 P.2d 804-05 (quoting

McPherson, 111 N.E. at 1053). Moreover, concerning the

problems that are of such paramount concern to the majority,

I refer again to my dissent in Hinegardner where, quoting

from the Colorado Supreme Court in Largo, that court

instructed:

"[A]s to the consequences of imposing such a

burden upon tavern owners, we reject Largo’s

claim that civil liability for the negligent sale

of alcohol would impose insurmountable proof

problems on tavern owners. Whatever

problems of proof exist, the plaintiff will be

confronted with the same obstacles in

reconstructing the facts, and the plaintiff, not

the defendant, will bear the burden of proving

a breach of duty."

Hinegardner, 108 Nev. at 1099, 844 P.2d at 806 (quoting

Largo, 727 P.2d at 1103).

l6a

As reflected by the positive response of an

overwhelming majority of the common law courts of this

nation, there is a compelling need for the judiciary of this

state to provide its citizens and the users of its highways with

relief from the growing menace of intoxicated drivers. We

can realistically look to no other source. This court must

recognize the fact that irresponsible and negligent vendors of

alcoholic beverages are priming people for roles as drunken

drivers who kill and maim the innocent travelers on Nevada’s

highways. Entire families are wiped out and destroyed by

this menace. This court will have only so many opportunities

to address the issues raised in the instant case. Each time we

fail to act, we assure the proliferation of needless human

death and suffering. Since, in my humble opinion, we have

far too long perpetuated a condition that cries out for

principled remedies, partial though they may be, I am again

forced to dissent from the majority’s most unfortunate act of

judicial forfeiture.

s/s STEFFEN, J.

Steffen

I concur:

s/s SPRINGER, J.

ATTEST: A FULL, TRUE AND

CORRECT COPY.

Clerk of the Supreme Court

By /s/ L. Castillo, Deputy Clerk

[Cen

17a

IN THE SUPREME COURT IN THE STATE OF

NEVADA

SHAWNA SNYDER, AS THE SPECIAL

ADMINISTRATOR OF THE ESTATE OF

DANIEL PATRICK LOVETT, DECEDENT,

Appellant,

vs.

JOSEPH VIANI, INDIVIDUALLY AND

D/B/A JOE’S TAVERN; TOMMY JO

MONTOYA; TAMMY ADAMS; MINERAL

COUNTY SHERIFF’S OFFICE, A

POLITICAL SUBDIVISION;

JOHN MADRASO, JR., IN HIS

OFFICIAL CAPACITY AS SHERIFF

AND INDIVIDUALLY; JOHN LEONHARDT,

IN HIS OFFICIAL CAPACITY AS

SHERIFF AND INDIVIDUALLY,

Respondents

ee ee Ne Nee Ne ee Ne ee ed Ne ee ed ea Sed ed Nee a Me. Se Sd

No. 23726

FILED

May 03 1996

Janette M. Bloom

Clerk of Supreme Court

By s/s J. Richard, CHIEF DEPUTY CLERK

18a

Appeal from an order of the district court granting a

motion to dismiss. Fifth Judicial District Court,

Mineral County; John P. Davis, Judge.

Motion to disqualify Justice Robert Rose

denied; motion to vacate opinion denied;

petition for rehearing denied.

Peter Chase Neumann, Reno,

for Appellant.

Erickson, Thorpe & Swainston,

Reno; Bradley, Drendel & Jeanney,

Reno,

for Respondents.

OPINION

By the Court, Young, J.:

The Nevada Supreme Court issued its opinion in this

case on November 30, 1994, upholding our prior decisions

that have refused to impose liability upon servers of alcoholic

beverages for damage caused by patrons who subsequently

use our highways absent legislation “* »>lishing such liability.

Justice Rose was part of the three-Justice majority; Chief

Justice Steffen and Justice Springer dissented.

On February 1, 1995, Shawna Snyder’s new counsel

filed a motion to disqualify Justice Rose pursuant to NRAP

35(a) on the ground that Justice Rose should not have

19a

participated in the decision because he owned a restaurant/bar

in Clark County, Nevada, and this created a conflict of

interest with the issue decided. Snyder’s motion also seeks

vacation of the issued opinion and a rehearing before "non-

disqualified judges, pursuant to NRAP 40.

When a justice has participated in a case, NRAP 35

requires that a motion to disqualify must establish that it is

timely filed and that the alleged disqualifying interest

amounts to "fraud or like illegal conduct." Snyder and her

attorney had actual and constructive knowledge of Judge

Rose’s restaurant/bar ownership well prior to our decision in

November, 1994 and Snyder waived any disqualification

claim by not asserting it sooner. Further, Snyder’s

allegations, even if true, do not amount to "fraud or like

illegal conduct" and therefore the grounds for her motion to

disqualify are insufficient as a matter of law.

We also conclude that Justice Rose’s ownership did

not create a direct, ongoing pecuniary interest such that

would disqualify him from participation in this case.

Accordingly, we deny Snyder’s motion to disqualify Justice

Rose and her petition for rehearing.

Discussion

The threshold issue is whether Snyder had, as a matter

of law, actual or constructive notice of Justice Rose’s

ownership of a restaurant/bar in Las Vegas prior to our

decision in this case and is thereby precluded from now

asserting this motion pursuant to NRAP 35. We answer this

question in the affirmative.

20a

Actual notice of interest

In addition to the substantial information that clearly

gave constructive notice to the public at large about Justice

Rose’s restaurant/bar ownership, the record establishes that

Snyder’s attorney had actual notice of Rose’s interest. In

June 1994, Snyder’s former attorney in the appeal of this

case had a conversation with Clark Santini about this very

case and Rose’s ownership of a bar. Santini, an experienced

investigator by profession, had a detailed recollection of that

conversation. '

While Snyder’s former attorney initially denied having

any knowledge of Rose’s restaurant/bar interest prior to the

decision, he did not respond to Santini’s allegations when

given the opportunity, and Snyder argued only that notice to

her former attorney is insufficient to bind her.

‘in Santini’s affidavit, he stated:

The second was a case involving a minor who was served liquor at

Joe Viani’s bar and then killed himself and others in an automobile

accident thereafter. McKenna indicated he had lost the case in

district court but had appealed it to the Nevada Supreme Court. He

indicated that he was uncertain about the Supreme Court result

and elaborated. McKenna stated that he knew Justice Steffen was

a Mormon and always voted against the bars in these types of

cases, but McKenna said he did not know how he would fare with

Justice Rose because he knew Justice Rose owned a bar in

Las Vegas. However, he gave me the impression that he

did not necessarily think Justice Rose would be biased. It

was unmistakable that Ken McKenna knew in June, 1994,

that Justice Rose owned a bar in Las Vegas.

2la

Snyder’s claiming that her attorney’s knowledge does

not bind her is directly contrary to our holding in the

Ainsworth case and in numerous additional cases we have

decided in the past decade. See, e.g., Stoecklein v. Joh-son

Electric, Inc., 109 Nev. 268, 273, 849 P.2d 305, 309 (1993):

Arteaga v. Ibarra, 109 Nev. 772, 776-77, 858 P.2d 387, 390

(1993).

Therefore, Snyder’s former attorney’s actual

knowledge of Rose’s restaurant/bar ownership is imputed to

Snyder. Since Snyder did not take any action to object to

Roses’s sitting on this case on the basis of his restaurant/bar

ownership, those grounds for disqualification have been

waived.

Constructive notice of interest

This court has established that if a party or his/her

attorney has constructive notice of a judge’s interest or

relationship before a case is decided and does not object, that

conflict or relationship will be waived. Ainsworth v.

Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003 (1989). In

that case, numerous conflicts or relationships of a former

justice who authored an opinion were cited as grounds for a

rehearing of the case, and this court stated what was

sufficient, as a matter of law, to put the insurance company,

Combined, and its attorneys on notice of an interest or

relationship.

Combined alleged that the counsel for the winning

party, Ainsworth, has assisted the former justice in a prior

campaign and was also a close personal friend. After

22a

observing that allegations of bias in favor of or against an

attorney for a litigant generally are not sufficient for

disqualification of a judge, this court observed that

Ainsworth’s attorney’s relationship with the campaign

conducted years previous was "fully disclosed in numerous

public, political advertisements and was well-known among

members of the state bar long before this appeal was ever

perfected." Id. at 261, 774 P.2d at 1020. The court

determined that Combined knew or should have known of

this political relationship and stated:

Well-reasoned authority supports a conclusion.

however, that counsel, knowing facts

assertively supportive of a motion for

reconsideration, recusal or vacatur based upon

charges of bias and impropriety, "may not lie

in wait" and raise those allegations in a

motion "only after learning the court’s ruling

on the merits."Id. at 260, 774 P.2d at 1019

(quoting Phillips v. Amoco Oil Co., 799 F.2d

1464, 1472 (11th Cir. 1986), cert. denied, 481

U.S. 1016 (1987).

Combined Insurance also claimed that the former

justice had a close association with the Nevada Trial Lawyers

Association (NTLA) and had been given an award by it the

previous year, this being grounds for disqualification because

NTLA had filed an amicus brief in the case and Ainsworth’s

attorney was prominent in the organization. However, this

court concluded that some of the attorneys representing

Combined were members of NTLA and presumably had

knowledge of the awerd at the time it was conferred. The

tek SS eats iad,

23a

court also referred to several newspaper articles about the

former justice’s award and concluded that Combined’s

counsel "knew or had reason to know of the award prior to

the issuance of this court’s decision," and that "Combined’s

failure to tender a prompt objection constitutes a waiver of its

right to raise the issue at this later date." Ainsworth, 105

Nev. at 263-64 n.17, 774 P.2d at 1022 n.17.

Combined also claimed that the former justice had an

interest in a business venture with Ainsworth’s counsel.

However, the court stated that: "[I]t is clear fr~m the record

that such a relationship was revealed in a public notice

published in Reno’s largest newspaper of general circulation

on four separate occasions." Id. at 270 n.22, 774 P.2d at

1026 n.22. After a review of all the evidence sufficient to

provide actual or constructive knowledge of the interests or

relationships of the former justice prior to the decision, this

court concluded that the former justice did not have "any

direct, ongoing pecuniary interest in the outcome of any

litigation before this court," that the factual allegations

supporting a rehearing were known or should have been

known to Combined’s counsel well before the decision, and

that no rehearing was warranted because it was not

established that the former Justice "had any direct

disqualifying interest in this litigation or that his impartiality

toward the litigants might reasonably be questioned." Id. at

269, 270, 774, P.2d at 1026.

In numerous instances of claimed conflicts of interest,

we held in Ainsworth that newspaper articles, legal notices,

or common knowledge provided actual or constructive

knowledge to the litigant’s attorney and precluded a challenge

24a

on those grounds after the issuance of the court’s opinion.

The information available to Snyder and her attorney of

Rose’s restaurant/bar ownership prior to the decision in this

case was far more extensive than any such information cited

in the Ainsworth case. Specifically, there was abundant

evidence of Rose’s restaurant/bar ownership presented

throughout Nevada in the years prior to our decision,

specifically including the following:

1. More than a decade of application filings and

hearing notices made by the Nevada Gaming Control Board

and Commission concerning Justice Rose’s ownership of a

restaurant/bar with fifteen slot machines in Las Vegas,

Nevada.

2. A decade of applications, filings, and hearing

notices before the Liquor and Gaming Control Board in Clark

County, Las Vegas, and Henderson, Nevada, concerning

Justice Rose’s ownership of a restaurant/bar and fifteen slot

machines.

3. The lisiings of the business entity that owned the

restaurant/bar in Justice Rose’s annual judicial disclosure

reports for the years he has been a justice, most of the notices

specifically describing the business as a restaurant/bar.

4. Numerous newspaper articles about Justice Rose’s

ownership of a restaurant/bar that appeared when the yearly

disclosure reports were filed and when there was any activity

taken by the Nevada Gaming Control Board or Commission

concerning Justice Rose’s ownership.

ate te aL ees

25a

5. The enormous publicity given Justice Rose’s

restaurant/bar ownership during the 1994 election. This

included an entire month of television and radio commercials

about his ownership. One radio commercial stated that

Justice Rose "moonlights as a poolroom and tavern owner"

and another made a very similar assertion. A television ad

that ran extensively before the November 8, 1994 election

stated that "Rose operates a bar and pool hall in Las Vegas"

and at the same time showed film of the tavern. Literally

hundreds of radio and television commercials were broadcast

throughout Nevada about Justice Rose’s interest just a month

prior to the decision in this case.

NRAP 35

After the Ainsworth decision, this court adopted

NRAP 35 to set forth the requirements a party must meet

when attempting to disqualify a justice. A portion of the rule

addressed the situation presented in the Ainsworth case.

In no event will the supreme court deem timely any

motion or charge seeking the disqualification or recusal of a

justice who has heard argument upon, or otherwise

considered, any contested matter in the cause, except as to

grounds based on fraud or like illegal conduct of which the

challenging party had no notice until after the contested

matter was considered.

NRAP 35(a).

The case of PETA v. Berosini, Ltd. 111 Nev. 431,

894 P.2d 33 (1995), was the first one to consider Rule 35

26a

when a justice’s disqualification was sought after an opinion

had been rendered. In Peta, a limited exception was made to

the requirement that a claim for disqualification is untimely

after the opinion has been issued unless "fraud or like illegal

conduct" is shown. The court determined that, in the interest

of justice, PETA should not be precluded if there was no way

that it could have known of the interest or association the

judge had prior to the decision. Id. at 433 n.2, 894 P.2d at

338 n.2.

We feel this is an appropriate exception to the strict

preclusion set forth in Rule 35, but it has no application in

this case. We have set forth the facts that gave Snyder both

actual and constructive knowledge of Justice Rose’s interest,

and a further exemption to Rule 35 is not warranted.

Additionally, we would recommend that future exception to

Rule 35 should be done by amendments to the rule rather

than by court decision.

No direct, ongoing interest

The facts concerning Justice Rose’s ownership of a

restaurant/bar are not in dispute. He has had this interest

prior to becoming a judge, and such ownership has been

common knowledge in Nevada. In fact, Justice Rose

participated in the case of Hinegardner v. Marcor Resorts,

108 Nev. 1091, 844 P.2d 800 (1992), that this court decided

three years ago which presented the same issue as did this

case, and no complaint about Rose’s participation was made.

It is obvious that Justice Rose had no interest in Joe

Viani’s tavern, and no lawsuits were pending that claimed

27a

liability against Rose on the theory espoused by Snyder. In

Goldman v. Bryan, 104 Nev. 644, 651, 764 P.2d 1296, 1300

(1988), we cited State v. Scarborough, 410 P.2d 732, 734

(N.M. 1966), with approval for the proposition that a judge’s

"disqualifying “interest? must be a present interest in the

outcome of the proceeding, *not some indirect, remote,

speculative, theoretical or possible interest.’" It is true that

Rose owned a restaurant/bar similar to that owned by Viani,

but it has been held many times that a judge with an interest

similar to that in litigation is not disqualified thereby. This

principle was clearly stated in City of Valdosta v. Singleton,

28 S.E. 2d 759, 763 (Ga. 1944), in which the Georgia

Supreme Court stated:

[A] judge is not disqualified merely because

of an interest in some abstract legal question

that is presently involved and which may arise

in some future litigation affecting him or his

property rights ....

See also State v. Churchwell, 195 So. 2d 599, 600-01 (Fla.

Dist. Ct. App. 1967). If this case had been decided in

Snyder’s favor, the decision would have been no economic

impact on Justice Rose.

Further, Justice Rose’s interest is not ongoing--he

entered into a written contract to sell the restaurant/bar in

July 1994, fourth months prior to the decision in this case.

At the time the opinion was issued, the sale was in escrow

awaiting only the final approval of the Nevada Gaming

Control Board and Commission. Approval was given, and

the sale was finalized in early 1995.

28a

Justice Rose has stated that he has no feelings of bias

toward or against any party in this litigation and that he

believes he has an can be impartial to all concerned. This

court has previously held that a judge’s opinion as to his or

her impartiality should be given substantial deference. In re

Petition to Reca!’ Dunleavy, 104 Nev. 784, 769 P.2d 1271

(1988). Given this deference and considering the undisputed

facts and legal authority above-cited, we conclude that Justice

Rose’s ownership, as a matter of law, does not create a

direct, ongoing pecuniary interest that would disqualify him

from participation in this case or be a violation of the Nevada

Code of Judicial Conduct.

Since Snyder’s allegations present no legally

cognizable grounds whatsoever supporting a reasonable

inference of bias or impropriety, summary dismissal of her

motion is warranted as a matter of law without any formal

hearing. Ainsworth v. Combined Ins. Co., 105 Nev. 237,

270, 774 P.2d 1003, 1026 (1989); Dunleavy, 104 Nev. at

789, 769 P.2d at 1274. This rule of law was recently

reaffirmed in Whitehead v. Comm’n on Jud. Discipline, 110

Nev. 380, 873 P.2d 946 (1994). In that case, Justices Steffen

and Springer joined in determining that a motion to

disqualify them was untimely, without merit, and insufficient

as a matter of law to warrant a formal hearing under NRS

1.225(4). Id. at 422-29, 873 P.2d at 972-77.

Finally, the Commission contended that this

court improperly refused to conduct a hearing

on the motion for _ disqualification. See

NRS 1.225(4) (hearing on a motion or charge

for disqualification shall be had before the

Reh tei Hl

29a

other justices of the supreme court). Not

every motion for disqualification,

however, rises to the level of a statutory

"charge," which automatically calls for a

formal hearing before unchallenged

justices. For example, in the case of In re

Petition to Recall Dunleavy, 104 Nev. 784,

789, 769 P.2d 1271,1274 (1988), this court

explained:

[T]he statutory provisions and

mechanisms providing for a judge’s

disqualification are not activated, and

summary dismissal of the challenge is

appropriate, where the challenge fails to allege

legally cognizable grounds supporting a

reasonable inference of bias or prejudice.

Similarly, In Ainsworth, 105 Nev. at 270-271,

774 P.2d at 1026, this court explained that

because factual allegations raised in support of

a motion to disqualify "present[ed] no legally

competent grounds supporting a reasonable

inference of bias ... the hearing before

unchallenged justices that is provided under

NRS 1.225(4) [was] inapplicable." Therefore,

in view of the legal insufficiency of the

Commission’s motion for disqualification, the

Commission was not entitled to a hearing

under NRS 1.225(4).

Id. at 428-29, 873 P.2d at 976-77.

30a

Petitioner’s other contentions

Snyder claims that this case presents a gaming issue

and thus Justice Rose is precluded from participating in this

case because of gaming Regulation No. 12. Regulation 12

requires any judge or justice holding a gaming license to

refrain from participating in gaming-related matters. The

record is uncontroverted that a gaming issue for a judge or

justice has been narrowly construed and is one that involves

the Gaming Control Board or Commission, its members or

employees, or the enforcement or interpretation of Nevada

gaming statutes.

The case before us does not involve any of these

individuals or statutes. It is a case involving a fatal accident

caused by a drunk driver whose estate Snyder now

administers and a suit against a tavern asserting that it is

responsible for the underaged drunk driver’s death because it

served him alcoholic beverages six hours before the accident.

This is a case involving a fatal accident and the service of

alcohol to a minor. It has nothing to do with gaming or the

enforcement or interpretation of Nevada’s gaming statutes.

Accordingly, we reject Snyder’s claim that Justice Rose

should not participate in this case because it involves a

gaming matter.

Snyder claims that a letter sent at the close of the

1994 election campaign by four tavern owners or operators,

one of whom worked for the bar owned by Justice Rose, to

other tavern owners seeking their support for Rose’s re-

election was improper. We disagree. The letter was on

stationery that contained the logo of the four taverns and was

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signed by each tavern owner or operator. It was not a letter

or brochure that came from the Rose campaign for re-election

or on its stationery.

The tavern owners wrote the letter in response to

numerous attacks by Rose’s election opponent based on

Rose’s bar ownership. The letter made two basic points.

First, that Justice Rose was a good justice who made sound

decisions and was attempting to reform the Nevada court

system. Second, that he understood Nevada and its

gaming/liquor industry since he had held a liquor/gaming

license for more than a decade. An appendix was attached

to the letter summarizing three cases decided by the Nevada

Supreme Court in which Rose participated. One case

concerned this court’s established legal position that dram

shop liability should be addressed by the Legislature and not

enacted by an activist court. In that summary, it stated that

Rose believed in "strong but fair DUI enforcement."

This letter was sent out by individuals who were not

part of Justice Rose’s campaign for re-election and did not

represent that they were speaking for the justice. It was an

interest group supporting a candidate and Stating the reason

for such support. The fact that a campaign manager

approved the letter for its general content did not make it part

of Justice Rose’s campaign. Further, a candidate for judicial

office has always been permitted to state his or her

background, legal record, and commitment to upholding the

law. Cf. Nevada Code of Judicial Conduct sections

SA(3)(d)(i), SA(3)(e), and SC(2). Although not called upon

to decide this issue because the statements were made by an

independent group and not by Justice Rose, it would appear

32a

that any judge or justice should be permitted to state what he

or she has done to improve the court system and the

decisions he or she has made that are part of the record. We

conclude that Snyder’s other claims are also without merit.

CONCLUSION

Snyder, through knowledge imputed to her by what

her former counsel knew, had actual knowledge of Justice

Rose’s ownership of a restaurant/bar and also constructive

notice of that interest. Pursuant to NRAP 35(a), Snyder is

precluded from raising this claim because it was not asserted

prior to this court’s opinion.

The undisputed facts also show that the Justice’s

ownership did not create a direct pecuniary interest in this

case and such ownership was in the final stages of being

sold. Accordingly, the motion to disqualify and the petition

for rehearing are denied, along with all other requests for

relief asserted by Snyder.

/s/ Young, J.

Young

We concur:

s/s Shearing, J.

Shearing

s/s Rose, J.

Rose

ROSE, J., concurring:

I concur to address the dissent, which is both

hypocritical and misleading.

The fact that I owned a bar-restaurant in Las Vegas

has been public knowledge since I joined this court seven

years ago. The business has been listed in my yearly

disclosure statement filed at the court, and I have talked

many times with Justice Steffen and Springer about the bar

and my attempts to sell it. When I voted at conference on

this case and on Hinegardner v. Marcor Resorts, 198 Nev.

1091, 844 P.2d 800 (1992), neither Justice Steffen or Justice

Springer made a whimper of any concern--as a judge is

required to do if he or she observes what he or she believes

is improper conduct by a fellow judge. See Nevada Code of

Judicial Conduct, section 3D(1). If there was an authentic

objection, it should have been voiced at that time.

Justices Steffen and Springer also express concern

with my participation in this motion to disqualify, but they

did the very same thing in the Whitehead case in which they

were extremely interested. Whitehead v. Comm’n on jud.

Discipline. 110 Nev. 380, 422-29, 873 P.2d 946, 972-77

(1994) (Whitehead II). The Attorney General filed a motion

to disqualify personal and financial interest because of a letter

written by the justices’ attorney to the Las Vegas Review-

Journal. As the majority explains, Justice Steffen and

Springer participated in the dismissal of the motion to

disqualify lodged against them, stating that not every motion

for disqualification "rises to the level of a statutory ’charge,’

34a

which automatically calls for a formal hearing before

unchallenged justices." Id. at 429, 873 P.2d at 976.

This case presents the same situation as in Whitehead

ll, but this time the motion is filed against me, and Justices

Steffen and Springer now want to change the rules. What is

good for the goose should be good for the gander.

In the dissents, Chief Justice Steffen and Justice

Springer claim that they did not vote on their own

disqualification, but one need only review pages 422-30 of

the Whitehead II decision to see that Justice Steffen and

Springer clearly considered the motion to disqualify them,

determined that they could participate and then denied the

challenge. Id. at 422-30, 873 P.2d at 972-77. The

concurrence signature of Justices Steffen and Springer appear

on page 430. The Justices’ statements that they did not vote

on their own disqualification is a reflection of the accuracy

of many of the statements in their dissents.

When a judge is charged with a disqualifying interest,

it must be established that the interest is a direct substantial

ongoing financial or personal interest, and Snyder has totally

failed to do that. A decision adverse to Viani’s tavern would

not have affected me personally or financially. At the time

of the decision, my business had been sold, and the transfer

was awaiting gaming board and commission approval. It was

also subject to the control of the United States Bankruptcy

Court. When I voted in the Viani case, there was no direct

ongoing interest for me with my bar business. The dissent

seems to acknowledge this, but states that it is possible that

I will retake the bar business if not paid the remaining sales

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35a

price. This is rank speculation, and if this remote eventuality

occurred, I would simply resell the property.

Not being able to establish a disqualifying ongoing

direct interest when the Viani case was decided, the dissent

refers back to the 1992 Hinegardner decision and claims I

improperly voted on that case. That vote is not the subject

of the motion to disqualify, and the dissent’s criticism also

lessened my insurance costs. I have always carried full high

limits insurance coverage, including a one million dollar

personal liability insurance umbrella. My insurance costs

would have remained the same with or without a Dram Shop

Act. However, this may not be true for other taverns or

casinos.

The letter written by my bar manager and three of his

bar manager/owner friends was an action taken independent

of my campaign for reelection. I wrote no part of the letter,

did not approve it in advance, and only gave three case

citations which that constituency might have approved. |

have always thought that a judge could refer to his record in

a campaign and that he was not responsible for the statements

and actions of third parties. The dissent states that this letter

was "on behalf of the campaign,” and that is simply false. It

also claims that I fulfilled a campaign promise made in this

letter in voting on the underlying case, but any promise made

in the letter by the bar owners/managers was not a promise

made by me, and I certainly did not feel bound by the letter.

I participate in the motion to disqualify me because,

as a matter of law, the motion was not timely filed and does

not establish "fraud or like illegal conduct” on my part, as is

36a

required by NRAP 35. Even before the stringent

requirements of NRAP 35 had been promulgated, Justices

Steffen and Springer decided that a motion to disqualify

former Justice Eimer Gunderson was not timely filed because

prior to the court decision information had been in the

newspapers about Gunderson’s asserted disqualifying

interests. Ainsworth v. Combined Ins. Co.,105 Nev. 237,

774 P.2d 1003 (1989). They also decided that although

Gunderson’s own attorney, Laura FitzSimmons, was an

attorney in the Ainsworth case, this was not a sufficient

outside interest to merit disqualification of Gunderson. When

you combine the Ainsworth decision with the Gunderson.

When you combine the Ainsworth decision with the

Whitehead II decision, where Justices Springer and Steffen

participated in dismissing the disqualification motion filed

against them, and with NRAP 35, it is clear that, as a matter

of law, the motion to disqualify me is not timely and is

legally insufficient. I am using the same rules and reasoning

Justices Steffen and Springer used to reject disqualification

attempts filed against them and former Justice Elmer

Gunderson.

As a final point, it certainly appears that the dissent

is motivated more by continuing animosity towards me rather

than any reasonable belief that Snyder has any chance of

taking her case to trial for the estate of a drunk driver who

killed four people. For decades the law in Nevada has been

that no such action lies because this court will not judicially

enact a Dram Shop law. In 1995, the Legislature passed a

law stating unequivocally that such actions will not lie

against a purveyor of alcoholic beverages. NRS 41.1305.

Since the law of this state is very clear that an action such as

: 37a

Snyder asserts will not be entertained by the courts, I can

only think that the dissents’ motivation is again to criticize

and embarrass me.

s/s ROSE

Rose

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38a

Steffen, C.J., joined by Springer, J., dissenting:

Respectfully, I dissent from the majority’s conclusion

that Justice Rose is qualified to sit on this case, and for that

reason would vacate the court’s opinion and grant rehearing

with another judge sitting in the place of Justice Rose.

Canon 2 of the Nevada Code of Judicial Conduct

states that "[a] judge shall avoid impropriety and the

appearance of impropriety in all of the judge’s activities."

In the Commentary to Canon 2, it notes that "[p]ublic

confidence in the judiciary is eroded by irresponsible or

improper conduct by judges....The test for appearance of

impropriety is whether the conduct would create in

reasonable minds a perception that the judge’s ability to carry

out judicial responsibilities with integrity, impartiality and

competence is impaired."

In order to demonstrate why I strongly believe Justice

Rose is disqualified to sit on the instant case, I attach hereto

as Exhibit A, a letter dated October 26, 1994, (hereafter "the

letter") which was signed by our colleague’s bar manager,

Steve McLaughin, on behalf of Justice Rose’s reelection

campaign. Justice Rose was aware of the letter and even

provided the case citations that it referenced. The letter,

which notes that Justice Rose was one of the majority of

three (thus the swing vote) in the case of Hinegardner v.

Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992)

(Hinegardner involved basically the same issue concerning

the liability of negligent vendors of alcoholic beverages as

the instant case), ends with the following portent, which

Justice Rose fulfills by voting on the instant case: "Bob’s

BRED

39a

election is a good bet--for you [the bars and commercial

alcohol vendors of the state] and the State of Nevada. This

is an important issue to each of our livelihoods."

The letter, which was signed by representatives of

four commercial purveyors of alcoholic beverages, including

Justice Rose’s Sidelines Lounge and Restaurant, was directed

to owners of similar establishments in an effort to secure

campaign contributions for Justice Rose’s reelection to this

court. In referring to the Hinegardner case, the letter notes

that:

[T]he Nevada Supreme Court upheld the

Nevada dram shop protection for bars and

casinos by a 3-2 vote, even though the person,

who later was involved in a_ serious

automobile accident, was a minor. Bob

[Rose] was in the majority. Imagine the

increased cost of insurance if all bars and

restaurants were responsible for whatever

injury _a_patron caused after leaving the

establishment.

(Emphasis added.)

I consider Justice Rose’s participation in the

Hinegardner case as inappropriate as the instant case, but his

participation was not challenged in Hinegardner. When

Hinegardner was decided by the margin of Justice Rose’s

vote, our colleague benefitted directly from avoiding the

necessity of paying for "the increased cost of insurance"

noted in the letter. He also benefitted from his later sale of

40a

the Sidelines Lounge and Restaurant because the profitability

of the business would have reflected the lower insurance

costs resulting from his vote in Hinegardner. Moreover,

since he still holds a large, secured promissory note on his

bar, there is the distinct possibility that he could reacquire

ownership of the business without the increased insurance

costs that a majority vote favoring Snyder in the instant case

could produce.

The letter strongly demonstrates that Justice Rose’s

personal interest in minimizing insurance costs to his own

business was far more than de minimis. Thus the letter’s

entreaty to "[i]magine the increased cost of insurance if all

bars and restaurants were responsible for whatever injury a

patron caused after leaving the establishment." (Emphasis

supplied.) Given the direct, substantial and personal interest

that our bar-owning colleague had, and potentially still has,

I consider it self-evident that he cannot sit on this case and

avoid the appearance of impropriety that Canon 2 indicates

he must avoid.

Moreover, I am of the opinion that the United States

Supreme Court case of Aetna Life Ins. Co. v. Lavoie, 475

U.S. 813 (1986), has direct application here. In Lavoie, the

challenged justice of the Alabama Supreme Court had

participated in deciding a case that established a rule of law

that would prove beneficial to another case in which he was

a litigant. As the Supreme Court noted, "his [the challenged

justice’s] opinion for the Alabama Supreme Court had the

clear and immediate effect of enhancing both the legal status

and the settlement value of his own case." In concluding that

the challenged justice’s participation constituted a violation

4la

of the appellant’s right to due process, the Lavoie court

vacated the judgment of the Supreme Court of Alabama.

Other parallels exist between Lavoie and the instant case, viz,

in both instances the challenged judge cast the deciding vote

and wrote the opinion in the case. Concerning this state of

affairs, the High Court wrote:

[W]e are aware of no case, and none has been

called to our attention, permitting a court’s

decision to stand when a disqualified judge

casts the deciding vote. Here Justice Embry’s

vote was decisive in the 5-to-4 decision and

he was the author of the court’s opinion.

Because of Justice Embry’s leading role in the

decision under review, we conclude that the

“appearance of justice" will best be served by

vacating the decision and remanding for

further proceedings.

Interestingly, the settlement Justice Embry received in

his own case amounted to the "tidy sum" of $30,000, which

the Court determined to be sufficient, even minus any

attorney’s fee he may have had to pay, to establish the

"substantially of his interest" in the Lavoie appeal. I suggest

that Justice Rose’s pecuniary benefit from the Hinegardner

decision and potentially from this decision could far exceed

the amount of $30,000. Given the amount of annual cost of

insurance savings, and the impact of those savings in

determining a sales price for his bar and restaurant, it is not

unlikely that the amount at stake here was substantially

greater than in Lavoie.

42a

The opinion written by Justice Rose and authored by

Justice Young on behalf of the majority, declaring himself

qualified to sit, is patently inappropriate. By his own act and

vote, he fulfills a campaign promise and continues to

minimize insurance costs to bars and casinos. Moreover, he

provides himself with the assurance that if the buyers of his

bar default on their payments to him, he will reacquire his

business without having to pay the increased insurance

premiums that were of such concern in the letter soliciting

funds for his reelection to the court.' Indeed, the

impropriety of the majority’s ruling appears compounded by

the fact that the rule of law reaffirmed by this case is in clear

opposition to that established by the overwhelming majority

of courts across the nation which recognize the need to do

something about the terrible costs in human lives that results

from the presence of intoxicated drivers on our highways.

Commercial vendors of alcoholic beverages in these other

jurisdictions have survived, but in Nevada this court

apparently places a higher value on minimizing insurance

costs to bars and casinos than it does on human life.

' Furthermore, if the buyers of our colleague's bar and restaurant do not

default in their payments, Justice Rose will continue to reap a profit from his

deciding vote in Hinegardner that provided a perceptibly more favorable

historical expense of operating factor attributable to the lower insurance rate.

be

ai Ra Ere a Coe Le RIN BE AT GS PAD IGN ERRS AS N e at epic ti ett Tt

Sd a ete) phe eee ee ace ek Tee rr eee Aaa ae. 1 NEN Si Ore

43a

For the reasons noted above, I am forced to separate

myself from the ethical standards acceptable to my colleagues

in the majority.' I therefore dissent.’ s/s Steffen, C.J.

It is unfortunate that my colleague, Justice Rose, is unable to

evaluate this dissent in an objective, forthright manner. Instead, he attacks

the dissent as “hypocritical and misleading." It is neither. My colleague's

allusion to hypocrisy has reference to Justices Steffen and Springer having

assertedly participated in determining their own disqualification in the

Whitehead case, claiming that they therefore “did the very same thing [as

Justice Rose is doing here] in the Whitehead case in which they were

extremely interested." He is wrong. In Whitehead, the actual substantive

challenges to Justice Steffen and Springer were decided only by Justice

Shearing, Sr. Justice Zenoff, and District Judge Guy in orders filed with the

court on January 31, 1994 and February 18, 1994, respectively. The latter

order denied the third challenge to the two justices. The only participation

the challenged justices were involved in regarding the issue of their

disqualification is found in Whitehead v. Comm'n on Jud. Discipline, 110 Nev.

380, 422-30, 873 P.2d 946, 972-77 (1994), where the court patiently again

explained why there was no basis for disqualification as ruled by Justice

Shearing, Sr. Justice Zenoff and District Judge Guy. Indeed, the referenced

three justices, in their order of February 18, 1994, referenced the cited case

issued the same day, and held that Justices Steffen and Springer had no

personal financial interest in the outcome of the case and that there was no

due process basis for challenging any justices’ continued participation in the

case.

Moreover, the nature of the challenge in Whitehead was entirely

different that the instant case. The “financial interest” alluded to by Justice

Rose and raised against Justices Steffen and Springer by the Attorney

General was not only expressly eliminated by a waiver of liability by the two

justices (as held in the February 18, 1994 order by the three other members

of the court), but the Commission conceded that the two justices had no

disqualifying financial interest in the outcome of the Whitehead litigation. It

is also worthy of emphasis that unlike here, neither Justice Steffen nor

Justice Springer was the “swing vote” on any aspect of the issue of

disqualification; they simply did not participate in determining the issue

concerning their qualification to sit in the Whitehead case. Finally, unlike the

instant case, Justices Steffen and Springer were not “extremely interested"

in the Whitehead case other than to see it through to an honorable conclusion

as required by their oaths of judicial office. It is apparent here that

irrespective of actual intent, Justice Rose is fulfilling the promise of the

campaign letter sent out on his behalf to raise campaign funds. Justice Rose

provided to the author of the letter the citation to the Hinegardner case, cited

in the letter as an example of how he looks out for the interests of bars and

saloons.

My colleague also advances the novel proposition that | should have

“whimpered” at his participation in Hinegardner if | entertained thoughts of

impropriety over his sitting on the court. To my knowledge, a judge is on his

honor and oath to recuse himself if there is a disqualifying bias. The

members of the court have been under no obligation, and indeed could not be

without a legion of full-time investigators, to determine whether an

unchallenged justice is sitting on a case improperly. The question now raised

with respect to Hinegardner is brought into sharp focus by the present case,

and the fact that Justice Rose gave the Hinegardner cite to one or more

persons for use in his reelection campaign.

Finally, Justice Rose indicated that the dissent is misleading because

(at least in part) | stated that the [Exhibit A] “letter was ‘on behalf of the

campaign,’ and that is simply false." | leave it to the reader to determine

whether the letter is on behalf of Justice Rose’s reelection campaign. Unless

my senses have been terribly dulled, it appears that the letter was sent for

the express and singular purpose of soliciting funds for none other than

Justice Rose in his reelection campaign, and that the letter indicates how the

prospective contributors will be rewarded by helping to reelect “Bob” to the

court. If Justice Rose can advise me on whose behalf the letter was sent

other than his own, | will be happy to consider any modification necessitated

by the facts.

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This dissent, if embarrassing to my colleague, has such an effect

only because of the facts surrounding the question of his qualification to sit.

| did not create the facts, and the reasons expressed concerning the propriety

of his qualification to sit are forthright and in no sense an exercise created

to either “criticize or embarrass" my colleague. Indeed, | truly regret the

necessity of having to write this dissent. Moreover, the fact that Justice

Rose is the "swing vote" on the matter of his own disqualification represents

a factor or condition with which he is comfortable. | am not.

Giving my colleague the benefit of all doubt as to whether he is able

to hold the balance nice, true and clear in this case, | simply return to Canon

2 of the Nevada Code of Judicial Conduct and ask the readers whether, in

their view, the facts described herein create an appearance free of

impropriety.

*| also note the possibility that the majority's decision, as per Lavoie,

could later be subject to vacation under a due process challenge stemming

from Justice Rose's clear interest in the outcome of this case. Whether

finality will therefore be achieved by the majority's ruling is more than slightly

problematical.

46a

SPORTS PUB SAL’S

SIDELINES STAGE DOOR

CASINO

Dear Colleague,

October 26, 1994

We have joined together to write this letter to you

because we feel that the information we have to give you is

of the utmost importance to our business.

This letter is to recommend Chief Justice Bob Rose

for election to a second term on the Nevada Supreme Court.

We have known Bob for years and think he has earned the

right to a second term.

First, he has proven to be an excellent Justice. He is

a tireless public servant, and his decisions have been logical

and sound. He is also fighting to reform the entire court

system to make it more efficient, accessible, and user-

friendly.

Second, Bob understands the gaming-liquor industry

because he has held a limited gaming and liquor license for

more than ten years. He well knows the benefits and

problems of these privileged licenses--the burdens of heavy

regulation and that the difference between a profit and a loss

is often a matter of a few percentage points. A summary of

a few of the major cases reflecting his sensitivity to our

industry is enclosed--please read them.

47a

What we all need to realize is how big a part of the

Supreme Court Justice Rose plays in setting of precedents

that end up making the rules that we as business people have

to live by. This includes handling of cases dealing with SIIS,

State Unemployment Taxes, State and local gaming and

liquor regulations, firing at will, liability cases that effect our

insurance, etc.-All of which effect us

We ask for your support for Justice Bob Rose this

year and hopefully a campaign contribution. If all of us gave

$100.00 to the campaign, it would probably ensure his

victory. Campaign contributions should be made out to

Nevadans for Justice Rose and sent to 631 No. Stephanie St.,

#187, Henderson, Nevada 89014.

Bob’s election is a good bet--for you and the State of

Nevada. This is an important issue to each of our

livelihoods.

Sincerely yours,

Sal’s Kurt’s Backstop BC

s/s Salvatore J. Cammarano s/s Kurt Erick

Stage Door Casino Sidelines

s/s Randy Markin s/s Steve McLaughin

48a

In Hinegardner v. Marcor Resorts, 108 Nev. 1091,

844 P.2d 800 (1992), the Nevada Supreme Court upheld the

Nevada dram shop protection for bars and casinos by a 3-2

vote, even though the person, who later was involved in a

serious automobile accident, was a minor. Bob was in the

majority. Imagine the increased cost of insurance if all bars

and restaurants were responsible for whatever injury a patron

caused after leaving the establishment.

Palmer v. Del Webb’s High Sierra, 108 Nev. 673, 838

P.2d 435 (1992), the Nevada Supreme Court held that a

worker’s injury from cigarette smoke allegedly acquired in a

casino-bar was not an occupational disease for the purposes

of SIIS benefits. If the Nevada Supreme Court had held

otherwise, the additional cost and the raise in everyone’s

premiums might have destroyed an already shaky system.

Chief Justice Rose believes in strong but fair DUI

enforcement. He also believes that a person accused of a

DUI should be in actual control of the vehicle and not just

sleeping in the car. "For the reasons stated, I believe that

Leanette Isom, sound asleep on the front seat of a vehicle

parked in a vacant lot of a closed business, was not in actual

physical control of the vehicle when arrested. Accordingly,

I dissent from the majority’s opinion." Isom v. State, 105

Nev. 391, 396, 776 P.2d 543, 547 (1989).

Sound Judgement--tough leadership--Robert E. Rose,

Nevada Supreme Court

Join us in helping this fine man get re-elected.

|

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SEES LENE a DRRE Td ater ATR Ri Beh LOLS JO icy eS A vere reget. 2S

49a

Springer, J., dissenting:

I join in Justice Steffen's dissent, but file this separate

dissent because I think more has to be said about Justice Rose's

authoring’ an opinion in which he decides a controversy

relating to his own eligibility to sit in this case. I address the

propriety of a supreme court justice's deciding matters relating

to his or her own qualifications, with particular reference to the

manner in which this point is argued by Justice Rose in his

majority opinion and in his concurrence to the majority

opinion.

piNio 5 present form was presented to me by Justice Rose,

oan by the ssalidiee legend "From the Chambers of ROSE, J.,” as

were several previous drafts of the majority opinion. | complain in this dissent

that Justice Rose should not be participating in an opinion (much less authoring

an opinion) in which he makes such factual findings as “Snyder and her attorney

had actual knowledge of Judge Rose's restaurant/bar ownership well prior to our

decision in November, 1994” and such legal conclusions as that Justice Rose's bar

ownership “did not create a direct, ongoing pecuniary interest such that would

disqualify him from participation in this case.” These are hotly-disputed fact

issues and legal issues that should be presented to an impartial tribunal rather

than being decided by Justice Rose.

| would note that Justice Rose's majority opinion now appears on its

face to have been authored by Justice Young; but this, of course, is impossible

because the majority opinion is merely an almost-identical variant of an opinion

first circulated by Justice Rose on December 13, 1995, accompanied by a

memorandum in which Justice Rose states: “I circulate this draft denying the

motion filed by the appellant.” | object to Justice Rose's writing an opinion

deciding conflicting factual and legal issues relating to his own qualifications, even

as a ghost-writer for Justice Young. (emphisis supplied)

ee

50a

Justice Rose is correct in identifying the "threshold

issue" as being whether Ms. Snyder had "actual or constructive

notice of Justice Rose's ownership of a restaurant/bar in Las

Vegas prior to our decision in this case and is thereby

precluded from now asserting this motion pursuant to NRAP

35." The thrust of Justice Rose's argument on this threshold

issue is that it is too late for Ms. Snyder to raise the question of

the Justice's bias because her former attorney knew about

Justice Rose's tavern when this case was first decided.

Under PETA v. Bobby Berosini, Ltd., 111 Nev. 615,

895 P.2d 1269 (1995), the majority agrees, if Snyder did not

know that Rose was a tavern owner when the present case was

decided against her, she is entitled to have her disqualification

motion decided by the court, rather than having it rejected for

technical reasons. Justice Rose argues against Ms. Snyder's

position in two ways. First, he says that everyone knew that he

owned the Sidelines Bar in Las Vegas and that the "public at

large" has "constructive notice" about "Justice Rose's

restaurant/bar ownership." Not content to rely entirely on the

supposed common knowledge about his business interests (the

argument being that Ms. Snyder must have known Justice Rose

was a bar owner because she is part of the "public at large"),

Justice Rose relies secondarily on his contention that Ms.

Snyder's former attorney, Mr. McKenna, supposedly admitted

to Justice Rose's campaign manager, Clark Santini, that he

knew "that Justice Rose owned a bar in Las Vegas." Therefore,

claims Justice Rose, Ms. Snyder "waived any disqualification

claim by not asserting it sooner" and "her motion to disqualify

[is] insufficient as a matter of law."

aS es ees See SO Me a

_eeeeereeorrlclh eee. ee eee ae

Sla

Ms. Snyder, of course, denies knowing about Justice

Rose’s bar interests until after the time that he cast his

deciding vote in her case. Justice Rose’s decision to deny

Ms. Snyder’s motion to disqualify him appears to rest

primarily’ on whether Justice Rose’s campaign manager is

telling the truth when he claims that Mr. McKenna told him

that he knew Justice Rose owned a bar at the time he was

deciding this bar-liability case. I suggest that some jurist

other than Justice Rose ought to be deciding these fact-

intensive issues.

Even if we were to accept Justice Rose’s fact-finding

that Ms. Snyder’s former attorney knew that Justice Rose was

a bar owner at the time Justice Rose decided this case against

her, another critical legal issue remains, namely, whether Ms.

Snyder’s former attorney’s knowledge, uncommunicated to

Ms. Snyder, should be an absolute bar to Ms. Snyder’s

challenging Justice Rose’s bias at this juncture. My own

opinion is that it should not be. Justice Steffen’s opinion is

that it should not be. The third, deciding judge of this issue

should be some impartial jurist, and not Justice Rose.

Reverting to argument ad hominem, Justice Rose

characterizes my objection to his participation in the decision

to deny Ms. Snyder’s challenge as being "hypocritical."

Justice Rose offers two bases for branding my as a hypocrite,

namely that I should have raised the issue at the time that he

*| reject out of hand and without discussion Justice Rose's contention

that Ms. Snyder must have known about his bar ownership at the time this

case was decided against her because the “public at large" knew that he was

a bar-owner.

52a

was voting in favor of bar interests and, further, that in

another case I did the "very same thing" that he is now

doing.

Putting aside the unseemliness of a supreme court

-___— justice, in published judicial opinion, calling his colleague a

hypocrite, I answer his charges as follows: (1) I was under

no duty to challenge Justice Rose’s decision to case the

deciding vote in either this case or the Hinegardner case; (2)

I have not sat in judgment of my own qualifications, as

claimed by Justice Rose; and, even if Justice Rose’s charge

were true, this would not justify his being the deciding vote

in denying Ms. Snyder’s challenge of his impartiality in cases

involving bars and taverns.

Justice Rose remarks that when he cast the deciding

vote in this case, I did not, at our decision conference, make

"a whimper of any concern." The reason that I did not

whimper is that I have been unable to predict whether Justice

Rose is going to disqualify himself in bar and casino cases.

To his credit, I must say that in most bar and casino cases

Justice Rose does disqualify himself. Once in a while,

however, unpredictably, he will sit on one of these cases.

(For example: Trump v. District Court, 109 Nev. 687, 857

P.2d 740 (1993). I know of nothing in the Code of Judicial

Conduct that would require me to monitor Justice Rose’s

decisions to sit or not to sit in any given case.

With regard to Justice Rose’s charge that I did the

same, unacceptable thing that he is doing, I would first say

that if I had sat in judgment of a challenge of my own

qualifications, it would have been wrong for me to do so.

53a

The fact of the matter is that I did not’; but, if I had done

so, this certainly would not provide justification for Justice

Rose’s doing so.

Because I disagree with his insistence upon sitting in

judgment on this motion to disqualify him, Justice Rose calls

me a hypocrite and imputes bad motives to me for filing this

dissent. I am saddened that Justice Rose would make an

embarrassing spectacle out of what seems to me to be a

matter that is almost beyond dispute, namely that a supreme

court justice should not be passing judgment on factual and

legal issues that bear on his own eligibility to sit in a case.

s/s Springer, J.

“Justice Rose claims that in the Whitehead case | did the same thing

that he is now trying to do--to pass judgment on my own qualifications. This

is not true. When a challenge to my qualifications was filed in the Whitehead

case, | immediately withdrew, and the motion was submitted to and decided

by the remaining members of the court (Justice Shearing, Senior Justice

Zenoff and District Judge Guy). | will not take the time to recount the

tortured history in Whitehead of the challenges that has “been improperly

tendered...for a serial, fourth time." Whitehead v. Comm'n on Jud. Discipline,

110 Nev. 380, 422, 873 participation in the various Whitehead opinions did

not touch on my own qualifications to sit but, at most, after the motions had

been decided by the other three members of the court, to rule that, based on

the court’s prior ruling on the “legal insufficiency" of the motions to

disqualify, the "Commission was not entitled to hearing" on the already-

decided motions. (Majority Opinion at 10). If this is the "same thing" as

Justice Rose's ruling that he had no pecuniary interest in this case, this still

would not justify Justice Rose's ruling to reject Ms. Snyder's challenge to his

qualifications to decide her case.

ee

54a

IN THE SUPREME COURT OF THE STATE OF

NEVADA

REMITTITUR

DATE: May 13, 1996

TO: Honorable Steve Bowles, Clerk

RE: SHAWNA SNYDER vs. JOSEPH VIANI, ET AL.

NO. 23726 DIST. CT. NO. 7256

Pursuant to NRAP Rule 41, enclosed is (are) the following:

___ Certified copy of Judgment and copy of Order.

_X_ Certified copy of Judgment and copy of Opinion.

____ Certified copy of Judgment and Opinion.

_X_ Receipt for Remittitur. (County Clerk please sign below

and return. Retain the attached copy for your records.)

_X_ Record on Appeal. Volumes

___ Exhibits

____ Deposition(s) of

____ Memorandum of Costs and Disbursements.

Other

cc: Hon. John P. Davis, District Judge

Peter Chase Neumann

Erickson, Thorpe & Swainston

Bradely, Drendel & Jeanney

Issued by: s/s J. Richards

Chief Deputy Supreme Court Clerk

sp

ia

5Sa

IN THE SUPREME COURT OF THE STATE OF

NEVADA

SHAWNA SNYDER, AS THE SPECIAL

ADMINISTRATRIX OF THE ESTATE OF

DANIEL PATRICK LOVETT, DECEDENT,

Appellant,

vs.

JOSEPH VIANI, INDIVIDUALLY AND

D/B/A JOE’S TAVERN; TOMMY JO

MONTOYA; TAMMY ADAMS; Et. Al.,

Respondents.

No. 23726

FILED FEB 01 1995

Janette M. Bloom

Clerk of Supreme Court

By s/s_ Janette M. Bloom

Deputy Clerk

56a

MOTION TO DISQUALIFY JUSTICE ROSE, TO

VACATE THE COURT?’S OPINION, AND TO REMAND

THE DECISION FOR FURTHER PROCEEDINGS

COMES NOW appellant, SHAWNA SNYDER, as the

Special Administratrix of the Estate of Daniel Patrick Lovett,

Decedent, acting by and through her counsel, Peter Chase

Neumann, and hereby moves the Court to enter its order:1)

disqualifying Justice Rose from further participation in these

proceedings; 2) vacating the Court’s Opinion; and, 3)

remanding this case for further proceedings before non-

disqualified judges.

This motion is made pursuant to Rules 35 and 40 of

the Nevada Rules of Appellate Provedure and is made upon

the grounds of "fraud or like illegal conduct of which the

challenging party had no notice until after the contested

matter was considered,” as is set forth more particularly

below.

Pursuant to NRAP 35(a), appellant and her counsel

tender the following in support of such motion:

¢ The Affidavit of Peter Chase Neumann, attached

hereto as Exhibit "A" and incorporated herein by this

reference;

* The Affidavit of SHAWNA SNYDER, together

with supporting exhibits, collectively attached hereto as

Exhibit "B" and incorporated herein by this reference;

57a

¢ The Affidavit of Kenneth J. McKenna, attached

hereto as Exhibit "C" and incorporated herein by this

reference; and,

* Evidence that Justice Rose was granted a waiver by

the Nevada Gaming Commission to be licensed to operate

slot machines, on the express condition that he not sit on

"gaming" cases, attached hereto as Exhibit "D" and

incorporated herein by this reference;

* A list of cases decided by this court, in which

Justice Rose has disqualified himself, attached hereto as

Exhibit "E" and incorporated herein by this reference;

* The following Memorandum of Points and

Authorities incorporated herein by this reference.

DATED this 30th day of January, 1995.

s/s Peter Chase Neumann

Peter Chase Neumann

P.O. Box 1170

Reno, Nevada 89504

(702) 786-3750

Attorney for Appellant

58a

MEMORANDUM OF POINTS AND AUTHORITIES

A MOTION FOR DISQUALIFICATION OF A

SUPREME COURT JUSTICE IS TIMELY UNDER

NRAP 35(a), THOUGH A CONTESTED MATTER

HAS BEEN DECIDED, WHERE THE

DISQUALIFICATION ARISES BY VIRTUE OF

FRAUD OR LIKE ILLEGAL CONDUCT

NRAP 35(a) provides, in relevant part, as

follows:

Any ground for disqualification or recusal of

a supreme court justice that is not raised in a

timely manner through the filing of a formal

motion or charge shall be deemed waived. In

cases or proceedings before the Supreme

Court of Nevada, motions or charges seeking

the disqualification or recusal of a justice must

not be based on any ground that the moving

party has theretofore omitted to raise formally

as soon as possible after receiving either

actual or constructive notice thereof. In no

event will the supreme court deem timely any

motion or charge seeking disqualification or

recusal of a justice who has heard argument

upon, or otherwise considered, any contested

matter in the cause, except as to grounds

based upon r_ like illegal conduct o

which the challengi noti

until after the contested matter was

considered. (Emphasis added.)

59a

THE FAILURE BY JUSTICE ROSE TO

DISCLOSE MATERIAL FACTS UNDER THE

CIRCUMSTANCES OF THIS CASE PLACES IT

SQUARELY WITHIN RULE 35, N.R.A.P.

Under established Nevada law, the failure to disclose a

material fact may be the basis for a finding of fraud. For

example, in Villalon v. Brown, 70 Nev. 456, 467, 273 P.2d

409 (1954), this Court held as follows:

The suppression of a material fact which a

party is bound in good faith to disclose is

equivalent to a false representation, since it

constitutes an indirect representation that such

fact does not exist. (Emphasis added.)

Similarly, in Epperson v. Roloff, 102 Nev.

206, 719 P.2d 799 (1986), the Court reversed

a trial court’s entry of summary judgment

upon a fraud claim. The Court held that

triable issues of fact existed as to whether the

defendants, vendors of real property, were

under a duty to disclose material facts

uniquely within their knowledge and whether

they had breached such duty by failing to

disclose such facts to purchasers of the real

property. And the Court has repeatedly

defined "extrinsic fraud" for purposes of

NRCP 60 to include "any . . . act or omission"

which procures his or her opponent’s absence.

See e.g. Colby v. Colby, 78 Nev. 150, 154,

369 P.2d 1019 (1962); emphasis supplied. Cf.

Goldstein v. Hanna, 97 Nev. 559, 635 P.2d

290 (1981) (Where there is a duty to speak,

60a

silence can raise an estoppel quite as

effectively as can words).

It will be demonstrated below that Justice Rose was

under a duty to disclose several material facts to SHAWNA

SNYDER, prior to undertaking to participate in the

consideration of her appeal. Among these were:

1. That Justice Rose had, at the time he sat on this

case, an ownership interest in a tavern that could be adversely

affected by a ruling in favor of SHAWNA SNYDER upon

her appeal.

2. That, during his recent judicial campaign, Justice

Rose had, through his employees and campaign staff, made

statements that publicly committed, or appeared to publicly

commit, him to voting adversely to the position of SHAWNA

SNYDER in her appeal.

It will be further demonstrated that Justice Rose’s

failure to disclose these facts resulted in the violation of

several Canons of the Nevada Code of Judicial Conduct.

JUSTICE ROSE’S FAILURE TO DISCLOSE THE

FACTS AND CIRCUMSTANCES THAT SHOULD

HAVE LED HIM TO DISQUALIFY OR RECUSE

HIMSELF IN SHAWNA SNYDER’S APPEAL

The Affidavit of SHAWNA SNYDER reveals the

following, -indisputable facts:

* Justice Rose was the deciding vote leading to the

Court’s Opinion filed November 30, 1994.

6la

* At the time Justice Rose participated in SHAWNA

SNYDER’s appeal, lie owned 100% of the stock of Sidelines,

Inc., a Nevada corporation which operates a tavern in

Southern Nevada.

* At the time Justice Rose participated in SHAWNA

SNYDER’s appeal, there was a sale of his shares in

Sidelines, Inc., for a purchase price of $2,650,000.00 over

and above the corporation’s existing indebtedness.

¢ During the period in which SHAWNA SNYDER’s

appeal was under submission to this Court, an employee of

Justice Rose, one Steve McLaughlin, was disseminating a

campaign letter seeking contributions to Justice Rose’s re-

election bid from others involved in the liquor industr;,.

* The dissemination of this letter was specifically

authorized by Justice Rose’s campaign staff-member, Jason

Linde.

* In such letter, Justice Rose’s bar manager made

several statements which were clearly intended to inform

fellow tavern owners that it was in their direct and substantial

financial interest to have Justice Rose voting on the Court in

cases in which the interests of the bar business were

implicated.

* More specifically, Justice Rose’s employee pointed

out that Justice Rose was the deciding vote in a prior dram

shop liability case, Hinegardner v. Marcor Resorts, 108 Nev.

1091, 844 P.2d 800 (1992), where the Court, by a 3-2

majority, refused to recognize liability of a tavern owner for

serving alcoholic beverages to a minor, who was then

involved in a serious automobile accident.

62a

* This letter portrayed Justice Rose’s involvement in

such cases as "an important issue to each of our livelihoods"

JUSTICE ROSE HAD A DIRECT AND

SUBSTANTIAL INTEREST IN SHAWNA

SNYDER’S APPEAL AND WAS

DISQUALIFIED FROM PARTICIPATING

IN THE CONSIDERATION OF HER CASE

An impartial tribunal is a fundamental component of

procedural due process. Schweiker v. McClure, 456 U.S.

188, 195 (1982); Patrick v. Miller, 953 F.2d 1240, 1245

(10th Cir. 1992). It is "absolute in the sense that it does not

depend upon the merits of a claimant’s substantive assertions

..." Carey v. Piphus, 435 U.S. 247, 266 (1978). Cf.

Soebbing v.Carpet Barn Inc., 109 Nev. 78, 847 P.2d 731

(1993) (Party’s right to notice and opportunity to be heard

does not depend upon merits of party’s case). A litigant

meets his or her burden of showing a due process violation

by establishing that a judge has a "direct and substantial

interest" in the outcome of the litigation. Ward v. Village of

Monroeville, 409 U.S. 57, 60 (1972); see also Aetna Life Ins.

v. Lavoie, 475 U.S. 813, 825-26 n. 3 (1986).

In Concrete Pipe & Prod. v. Const. Laborers Pen. Tr.,

U.S. __, 113 S.Ct. 2264 (1993), the High Court

reviewed some of its decisions concerning disqualifying

interests. The Court said:

"That officers acting in a judicial or quasi-

judicial capacity are disqualified by their

interest in the controversy to be decided is, of

course, the general rule." Tumey v. Ohio, 273

U.S. 510, 522 (1927). Before one may be

deprived of a protected interest, whether in a

63a

criminal or civil setting, see Marshall v.

Jerrico, Inc., 446 U.S. 238, 242, and n. 2

(1980), one is entitled as a matter of due

process of law to an adjudicator who is not in

a situation "which would offer a possible

temptation to the average man as a judge .. .

which might lead him not to hold the balance

nice, clear and true... .."". Ward [v. Village

of Monroeville], 409 U.S. [57] at 60 (quoting

Tumey, supra 273 U.S., at 532). Ever. an

appeal and a trial de novo will not cure a

failure to provide a neutral and detached

adjudicator. 409 U.S., at 61.

"[JJustice," indeed, "must satisfy the

appearance of justice, and this stringent rule

may sometimes bar trial [even] by judges who

have no actual bias and who would do their

very best to weigh the scales of justice equally

between contending parties." Marshall v.

Jerrico, Inc., [] 446 U.S., at 243 (citations and

internal quotation marks omitted).

Id., at__, 113 S.Ct, at 2277.

These principles of procedural due process have been

recognized and applied by this Court In re Ross, 99 Nev. 1,

656 P.2d 832 (1983). There the Court said:

The United States Supreme

Court has made it clear that

"(tlhe Due Process Clause

entitles a person to an impartial

and disinterested tribunal in

both civil and criminal cases."

A a aN a ot

64a

Marshall v. Jerrico, Inc., 446

U.S. 238, 242 (1980). It has

further said: “Not only is a

biased decision maker

constitutionally unacceptable

but ‘our system of law has

always endeavored to prevent

even the probability of

unfairness.’"" Withrow _ v.

Larkin, 421 U.S. 35, 48

(1974); Gibson v. Berryhill,

411 U.S. 564 (1973).

In Aetna Life Ins. v. Lavoie, supra, the U.S. Supreme

Court considered an argument that a state supreme court

justice had wrongfully participated in a case in which he had

a disqualifying interest. The underlying action was an

insurance bad faith case in which an Alabama jury awarded

$3.5 million in punitive damages to the plaintiff. The

judgment was affirmed in a 5-4 per curiam decision of the

Supreme Court of Alabama, which was written by Supreme

Court Justice Embry. While a motion for rehearing of the

appeal was pending, the appellant learned that Justice Embry

had filed two actions against other insurance companies in an

Alabama court, alleging bad-faith failure to pay claims and

seeking punitive damages.

The Court addressed the question of what constitutes

a disqualifying interest. In doing so, it reviewed some of its

pivotal precedents; the Lavoie Court, after briefly discussing

Tumey, supra, said:

More than 30 years ago Justice Black,

speaking for the Court, reached a similar

conclusion and recognized that under the Due

Ne Saline tine il sit ihe nh YG eae Rite hots

65a

Process Clause no judge "can be a judge in his

own case [or be] permitted to try cases where

he has an interest in the outcome." In re

Murchison, 349 U.S. 133, 136 (1955). He

went on to acknowledge that what degree or

kind of interest is sufficient to disqualify a

judge from sitting "cannot be defined with

precision." Ibid. Nonetheless, a reasonable

formulation of the issue is whether the

"situation is one "which would offer a

possible temptation to the average . . . judge

to . . . lead him not to hold the balance nice,

clear and true." Ward v. Village of

Monroeville, 409 U.S., at 60.

Lavoie, 475 U.S., at 822; see also Exxon Corp. v. Heinze, 32

F.3d 1399, 1403 (9th Cir. 1994).

Thus, while a “direct and substantial interest" (Ward

v. Village of Monroeville, 409 U.S. 57, 60 (1972)) "cannot

be defined with precision" (In re Murchison, 349 U.S. 133,

136 (1955)), it can be measured by determining whether,

under all the facts and circumstances, there would be a

“possible temptation to the average . . . judge to... . lead him

not to hold the balance nice, clear and true." Ward, 409

U.S., at 60; internal quotation marks omitted.

After reviewing all of the relevant circumstances, the

Supreme Court determined that Justice Embry’s interest in his

own bad-faith cases disqualified him from participating in the

Lavoie case. One of the factors considered by the Supreme

Court was that the Lavoie case was a final pronouncement of

Alabama’s highest court and, therefore, the decision would

have effect as legal precedent on cases in which Justice

66a

Embry had an interest.' The Court vacated and remanded the

Alabama Supreme Court’s decision.

Another instructive case is State of Cal. v. Kleppe,

431 F.Supp. 1344 (C.D. Cal. 1977). As in Lavoie, the

disqualified judge in Kleppe did not have an interest in any

of the parties directly before the Court. The judge in Kleppe

owned shares of stock in Union Oil Company. While Union

Oil was not a party to the proceedings, its fortune could have

been affected by the precedent setting effect of the decision.

This, in turn, could have affected the value of the judge’s

ownership interest. Thus, both Lavoie and Kleppe support

the proposition that a judge may have a disqualifying interest

in a case--regardless of the fact that he has no direct interest

in any of the parties before the court.

The circumstances surrounding Justice Rose’s

ownership of Sidelines tavern, particularly when viewed in

light of his campaign literature, presents a situation "’ which

would offer a possible temptation to the average . . . judge to

. . . lead him not to hold the balance nice, clear and true.’"

Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972).

During the time in which SHAWNA SNYDER’s appeal was

under submission to the Court, Justice Rose publicly

announced his intention to protect his own private interests,

as well as those of his fellow tavern owners. Indeed, he

sought to gain political campaign contributions, as well as

election votes, by asserting, in effect, that he would not "hold

the balance nice, clear and true." Id. He pledged his judicial

vote, in advance, to the causes which would further his own

interests and the parallel interests of other bar owners.

‘Note that Lavoie did not rest upon any assertion that Justice Embry had

a direct interest in the case against Aetna Life Insurance Company.

67a

It is anticipated that those who oppose SHAWNA

SNYDER’s motion will contend that Justice Rose’s interest

is not sufficiently "direct and substantial" to disqualify him

from participating in this dram shop liability case. However,

that is not what Justice Rose, through his employee Steve

McLaughlin, was telling fellow tavern owners in the

campaign letter. The clear, indeed, the urgent message was

that all Nevada tavern owners had a direct and substantial

financial interest in having Justice Rose participating in dram

shop cases. The interest was characterized as being

sufficiently direct that the very "livelihood" of Nevada tavern

owners depended upon Justice Rose’s votes in these cases.

Because Justice Rose is, himself, a tavern owner, it can

hardly now be contended on his behalf that there is an

insufficient connection between his ownership interest and his

participation in the case to warrant disqualification.

JUSTICE ROSE HAS PROMISED TO DISQUALIFY

HIMSELF FROM ALL "GAMING" CASES, AND

AND HIS OWN GAMING LICENSE TO OPERATE

SLOT MACHINES IN NEVADA SO REQUIRES

In December, 1987 the Nevada Gaming Commission

approved the application of then District Judge Robert Rose

to hold 100% ownership interest in the slot machines at the

Rainbow Too Club in Las Vegas. The Gaming Commission

issued a gaming license to Judge Rose. However, the license

was issued on the express condition that he not rule on

gaming cases. District Judge Rose, when he took office as a

judge, was granted a waiver by the Gaming Commission to

have a gaming license for slot machines at another location.

That license, too, was conditioned upon Judge Rose

disqualifying himself in all gaming cases. (See, Exhibit "D"

attached hereto).

Cn

68a

In June, 1989, Justice Rose was awarded Nevada

Gaming Commission approval to operate 15 slot machines at

the Rainbow Two liquor and gaming establishment on Sunset

Road in Henderson, Nevada. That gambling license lists

Justice Rose as the 100% owner, president and director of

Sideline, Incorporated. This is the same business for which

Steve McLaughlin, as the general manager, wrote the Rose

Campaign solicitation letter referred to above. (See Exhibit

"B," Affidavit of Shawna Snyder and supporting documents

attached hereto).

Justice Rose has disqualified himself from sitting as

a Supreme Court Justice in numerous "gaming business"

cases.’ A partial list of these cases is attached hereto as

Exhibit "E," containing the names and citations of more than

fifty cases in which Justice Rose voluntarily disqualified

himself, 22 of which are "gaming" cases.

Accordingly, it would have not been unusual or

extraordinary for Justice Rose to have disqualified himself in

the instant case of Estate of Lovett vs. Joe’s Tavern. Surely

his financial interest in gaming is no more important than his

financial interest in the liquor industry. And certainly, the

? But not all gaming cases. For example, Justice Rose failed to disqualify

himself on the case of Donald Trump vs. District Court, 109 Nev. 687, 857

P.2D 740 (1993), involving the Golden Nugget Hotel & Casino, GNLV Corp.,

Trump Taj Mahal Associates (a New Jersey general partnership doing

business as Trump Taj Mahal Casino Resort in Atlantic City, New Jersey),

and Trump Plaza Hotel & Casino (Trump Plaza) in Atlantic City. In addition,

Justice Rose sat on the case of Hinegardner v. Marcor Resorts, 108 Nev.

1091, 844 P.2d 800, casting the swing vote in favor of Marcor Resorts,

which is a gaming licensee in Nevada. It was this case that Justice Rose's

bar and casino manager, Steve McLaughlin, cited in the October 26, 1994

campaign solicitation letter attached to "Exhibit B" attached hereto.

69a

right of due process, which includes the right to a fair and

impartial tribunal, does not distinguish between the type of

financial "interest" which is disqualifying for a judge.

Indeed, it can be argued that Justice Roses’s swing vote on

the issue of dramshop liability has a potentially more direct

effect on one of his financial interests (the liquor industry)

than would a vote in a "gaming industry" case.

EVEN IF IT IS DETERMINED THAT JUSTICE

ROSE HAD NO FINANCIAL INTEREST IN THE

OUTCOME OF SHAWNA SNYDER’S APPEAL, HIS

PARTICIPATION CREATED A DISQUALIFYING

APPEARANCE OF IMPROPRIETY

As noted in the quotation from Concrete Pipe &

Prod., "[JJustice," indeed, "must satisfy the appearance of

justice." As Justice Scalia recently reminded us: "Wise

observers have long understood that the appearance of justice

is as important as its reality." J.E.B. v. Alabama ex rel. T.B..,

__ US._,___sin. 3, 114 S.Ct. 1419, 1438 n. 3 (1994)

Scalia, J., dissenting. Thus, the United States Congress has

enacted 28 U.S.C. § 455(a), which provides that a judge is

disqualified where his impartiality might reasonably be

questioned. See Liljeberg v. Health Services Acquisition

Corp., 486 U.S. 847 (1988).

Similarly, Canon 3E of the Nevada Code of Judicial

Conduct provides, in pertinent part, as follows:

CANON 3

A judge shall perform the duties of judicial office

impartially and diligently.

E. Disqualification.

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(1) A judge should disqualify himself

or herself in a proceeding in which the judge’s

impartiality might reasonably be questioned,

. .. (Emphasis added.)

The Commentary to this Canon states, in part, as

follows:

A judge should disclose on the record

information that the judge believes the parties

or their lawyers might reasonably consider

relevant to the question of disqualification,

even ii the judge believes there is no real

basis for disqualification.

The question of whether a judge’s impartiality might

reasonably be questioned calls for the application of an

objective standard. In Potashnick v. Port City Constr. Co.

609 F.2d 1101, 1111 (Sth Cir.), cert. denied, 499 U.S. 820

(1980), the Court held that the test is whether an objective,

disinterested lay observer, fully informed of the facts

underlying the grounds upon which recusal was sought,

would entertain a significant doubt about the judge’s

impartiality. In light of the facts set forth above, it is clear

that a lay observer, informed of such facts and circumstances,

would entertain a significant doubt about Justice Rose’s

impartiality in SHAWNA SNYDER’s case. See also Tyson

v. State, 622 N.E.2d 457 (Ind. 1993), where the Chief Justice

of the Supreme Court of Indiana recused himself in the

highly publicized case against Michael Tyson. The Chief

Justice’s decision resulted from a very brief, innocent

conversation which the judge’s wife had with defense

counse], Alan Dershowitz. Notwithstanding the innocuous

nature of the grounds for recusal, Chief Justice Shepard

wisely observed:

T7la

The test under Canon 3(C)(1) is whether an

objective person, knowledgeable of all the

circumstances, would have a reasonable basis

for doubting the judge’s impartiality. Cf.

Perkins v. Spivey, 911 F.2d 22 (8th Cir. 1990),

cert. denied, 499 U.S. 920, 111 S.Ct. 1309,

113 L.Ed.2d 243 (1991). The question is not

whether the judge’s impartiality is impaired in

fact, but whether there exists a reasonable

basis for questioning a judge’s impartiality. In

re_ Beard, 811 F.2d 818 (4th Cir.1987).

Concerns about public confidence in the

judicial system underlie Canon 3. See United

States _v. Hollister, 746 F.2d 420 (8th

Cir.1984). A judge has a duty to promote

public confidence in the impartiality of the

judiciary. Ind. Judicial Conduct Canon 2.

JUSTICE ROSE’S CONDUCT HAS RESULTED IN

MULTIPLE VIOLATIONS OF OTHER CANONS

CONTAINED IN THE NEVADA CODE OF

JUDICIAL CONDUCT

Canon 5A(3)(d)(i) and (ii) read as follows:

CANON 5

A judge or judicial candidate shall refrain from

inappropriate political activities.

A. All Judges and Candidates.

(3) A candidate for a judicial office:

(d) shall not:

72a

(i) make pledges or promises of conduct in office

other than the faithful and impartial performance of the duties

of the office;

(ii) make statements that commit or appear to commit

the candidate with respect to cases, controversies or issues

that are likely to come before the court... ..

(Emphasis added.)

Justice Rose violated Canon 5A(3)(d)(i) and (ii) when,

acting through his employee and with the express, prior

authorization of his campaign staff, he committed himself to

voting against dram shop liability and nearly any other legal

result that may adversely affect the liquor industry.

Canons 4A(1) and 4D(1)(a) provides as follows:

CANON 4

A judge shall so conduct the judge’s extra-judicial

activities as to minimize the risk of conflict with

judicial obligations.

A. Extra-judicial activities in general.

A judge shall conduct all of the judge’s

extra-judicial activities so that they do not:

(1) cast reasonable doubt on_the

judge’s capacity to act impartially as a judge;

D. Financial Activities.

(1) A judge shall not engage in

financial and business dealings that:

(a) may reasonably be perceived to

exploit the judge’s judicial position . . ..

73a

Justice Rose has violated these Canons. Indeed, he

has promised to continue to protect the interests of his fellow

tavern owners by capitalizing on his own conflict of interest.

Justice Rose’s conduct may clearly be perceived as an

exploitation of his judicial position to further his own

business interests.

Canon 2A provides:

CANON 2

A judge shail avoid impropriety and _ the

appearance of impropriety in all of the judge’s

activities.

A. A judge shall respect and comply with the

law and shall act at all times in a manner that

promotes public confidence in the integrity

and impartiality of the judiciary. (Emphasis

added.)

Similarly, Canon 1A provides as follows:

CANON 1

A judge shall uphold the integrity and

independence of the judiciary.

A. An independent and honorable judiciary is

indispensable to justice in our society. A

judge should participate in establishing,

maintaining and enforcing high standards of

conduct, and shall personally observe those

standards so that the integrity and

independence of the judiciary will be

74a

preserved. The provisions of this Code are to

be construed and applied to further that

objective. (Emphasis supplied.)

Justice Rose’s conduct has compromised the integrity

and independence of this Court and the Nevada judiciary, in

general. At the same time, he has damaged public

confidence in the judiciary’s impartiality. He has created the

impression, indeed he has promoted the impression, that the

discharge of his judicial duties is driven by his own private,

business interests. There is no evidence that this impression

is untrue.

JUSTICE ROSE BENEFITED SUBSTANTIALLY

FROM CAMPAIGN CONTRIBUTIONS GIVEN

BY LIQUOR LICENSEES AND VENDORS

Although gigantic multinational corporations owning

casinos and hotels are not commonly thought of as "taverns,"

a significant part of their business is the sale of liquor. In

fact, the furnishing of alcoholic beverage is an integral part

of any successful gaming business. Justice Rose freely

accepted the generosity of a number of substantial vendors of

liquor in Nevada, during and before his 1994 campaign for

the office of Supreme Court Justice. As demonstrated by

"Attachment 1" and "Attachment 2" to the Affidavit of Peter

Chase Neumann, it appears that since December, 1988

through November, 1994, Justice Rose accepted substantially

in excess of one hundred thousand dollars ($100,000) in

contributions from liquor licensees in Nevada.

While it might be argued that $106,320.00 in liquor

licensee donations represents only a fraction of Justice Rose’s

overali contributions, it is still substantial enough that

reasonable persons should not disagree that it has created at

75a

least the appearance of more than merely a passing interest

in the well being of the liquor industry on the part of Justice

Rose. Justice Rose’s January 15, 1995 Campaign

Contributions Summary (see Attachment 2 of Neumann

affidavit), lists the following contributions received:

Total of all contributions over $500.00 $282,925.00

Total of all contributions less than $500 $192,704.00

Total of all, including "in-kind" contributions $492,302.00

Accordingly, one sees that the $106,320 from

identifiable liquor vendors’, alone, is more than 21.5% of the

total. If only 10% of the "$500-or-less" donors were in the

wine and spirits industry, that would boost the $106,320

figure to $125,590 -- which would be 25.5% of Justice

Rose’s overall campaign contributions.

Accordingly, even if Justice Rose had not owned a bar

himself, his interest in the well being of the liquor industry

must be seen by the citizens of Nevada, and this Court, to be

"substantial" merely by reason of the fact that a very

substantial percentage of his campaign contributions were

derived from that industry.

Justice Rose has disqualified himself from numerous

Supreme Court cases involving the "gaming industry." (See

Exhibit "D", a list of some of these cases appearing in

* The identity of liquor vendor campaign donors who gave $500

or less to Justice Rose’s campaign are unknown, because

(perhaps unfortunately) Nevada law does not require such donors

to be identified. It is quite possible that of the $192,704 in "$500-or-

less" donations, a substantial amount thereof came from the tavern

owners who were directly solicited by Justice Rose’s campaign

manager and the bar manager of his "Sidelines" tavern business.

76a

Nevada Reports.) His failure to do so in the instant case of

Shawna Snyder v. Joe’ s Tavern, as well as Hinegardner v.

Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992), is

therefore all the more remarkable.

THE DECISION SHOULD BE VACATED AND

REMANDED IN ORDER TO PROMOTE

SUBSTANTIAL JUSTICE

NRAP 40(c)(2)(ii) provides that the Court will grant

rehearings, "[{iJn such other circumstances as will promote

substantial justice." Surely the interests of substantial justice

require that a rehearing be granted under these circumstances.

The record demonstrates, beyond dispute, that Justice Rose

cast the "swing vote" in SHAWNA SNYDER’s appeal. It

further demonstrates, beyond dispute, that Justice Rose failed

to disclose to SHAWNA SNYDER material facts which, at

worst, gave him a financial interest in the outcome of

SHAWNA SNYDER’s appeal, and, at_a minimum would

cause a reasonable person to question Justice Rose’s

impartiality. Justice Rose’s conduct also resulted in multiple

violations of several other Canons of the Nevada Code of

Judicial Conduct. Appellant requests this honorable court to

77a

vacate its decision filed November 30, 1994, and to grant a

new hearing before a court comprised of non-disqualified

judges.*

DATED this 30th day of January, 1995.

s/s Peter Chase Neumann

Peter Chase Neumann

P.O. Box 1170

Reno, NV 89504

(702)786-3750

For Shawna Snyder Lovett

* Appellant respectfully requests that Justice Rose not

participate in the deciding of her motion to disqualify him. N.R.S.

1.230(4)

78a

CERTIFICATE OF SERVICE ON OPPOSING COUNSEL

I, the undersigned employee of Peter Chase Neumann

Professional Corporation, hereby certify, pursuant to NRCP

5(b), that I caused service to be made by PERSONAL

DELIVERY this 30th day of January, 1995, upon the

following opposing counsel:

Thomas Beko, Esq.

Erickson, Thorpe, & Swainston

P.O. Box 3559

Reno, NV 89509

William C. Jeanney, Esq.

Bradley, Drendel & Jeanney

P.O. Box 1987

Reno, NV 89505

DATED: Jan. 30, 1995

s/s Peter Chase Neumann

EMPLOYEE

79a

EXHIBITS TOO VOLUMINOUS

TO REPRINT IN THIS APPENDIX

They include copies of Justice Roses’s Campaign

Contributions and Expense Reports filed on the following

dates: August 22, 1994, October 24, 1994, November 4,

1994, and January 13, 1995; A copy of a list of campaign

contributions to Justice Rose from liquor vendors in Nevada

who donated more than $501; A copy of the Memorandum

of Points and Authorities; A copy of Shawna Snyder’s

supplement to motion to disqualify Justice Rose; A copy of

the pertinent NRS statutes; A copy of the affidavit of Peter

Chase Neumann; A copy of the opposition to motion for

relief from automatic stay, filed November 9, 1994; A copy

of an offer and acceptance agreement and earnest money

receipt, dated July 11, 1994; A copy of a personal guarantee,

Exhibit B; A copy of a non-compete agreement, Exhibit C:

A copy of a preliminary title report, Exhibit D; A copy of a

Las Vegas Sun article concerning Justice Rose, Exhibit 3;

Copies of certifications, Exhibits D-1, D-2, D-3, D-4, D-5.

Also included, is a copy of a list of cases in which Justice

Rose disqualified, Exhibit E.

80a

AFFIDAVIT OF KENNETH J. McKENNA, ESO.

STATE OF NEVADA

COUNTY OF WASHOE

I, Kenneth J. McKenna, Esq., do hereby swear under

the penalty of perjury that the assertions of this affidavit are

true:

1. My name is Kenneth J. McKenna, and I reside in

Reno, Washoe County, Nevada.

2. I! have practiced law in Reno in excess of ten

years.

3. I was the attorney for the plaintiff/appellant,

SHAWNA SNYDER LOVETT in the case of Shawna Snyder

as_special administrator of the Estate of Daniel Patrick

Lovett, Decedent v. Joseph Viani, d/b/a Joe’s Tavern, et al.,

case no 23726 in the Nevada Supreme Court.

4. On November 6, 1994, I was rendered temporarily

unable to practice law, and therefore was no longer able to

represent Shawna Snyder.

5. On November 30, 1994, I filed in the Supreme

Court, a Motion to Withdraw as Counsel for Shawna Snyder

in the above-referenced case.

6. Also on November 30, 1994, I had filed a Motion

to Withdraw as Counsel, the 3-2 decision of the Nevada

La

8la

Supreme Court in the above-referenced case was filed with

the Clerk of the Court.

7. At the time I represenied Shawna Snyder in the

above-referenced case, I did not know that Justice Robert

Rose of the Nevada Supreme Court owned an interest in a

tavern, or had any interest in the liquor industry.

8. Before the Supreme Court entered its decision in

the above-referenced case, I had no discussion with my

client, Shawna Snyder, concerning the fact that Justice Rose

owned an interest in a tavern.

9. Had I known of Justice Rose’s interest in a tavern

and in the liquor industry at the time I represented Shawna

Snyder, I would have so informed her and discussed with her

the possibility of disqualifying Justice Rose from participation

in the case.

DATED this 24th day January, 1995.

s/s Kenneth J. McKenna

Subscribed and sworn before me

this 24th day January, 1995.

s/s Melissa A. Barnson

82a

AFFIDAVIT OF SHAWNA SNYDER

STATE OF NEVADA

COUNTY OF WASHOE

I, SHAWNA SNYDER LOVETT, do hereby swear

under penalty of perjury that the assertions of this affidavit

are true:

1. My name is Shawna Snyder Lovett and I am the

appellant in Nevada Supreme Court Case No. 23726.

2. An Opinion was filed by the Nevada Supreme

Court in my appeal ;on November 30, 1994.

3. In such Opinion, the Court ruled, by a 3-2

majority, to affirm the trial court’s dismissal of my claim for

damages against Joe’s Tavern, the liquor vendor which

intentionally and unlawfully served alcohol to my brother,

knowing that he was under twenty-one years of age.

4. After being unlawfully served alcohol by Joe’s

Taverns, my brother drove a vehicle while intoxicated,

crashed, and was killed along with four other victims.

5. On my appeal, Justice rose cast the deciding vote

on my appeal, in favor of the liquor vendor and against me.

6. Before the Court’s filing of the Opinion on

November 30, 1994, I did not know that Justice Rose himself

owned a tavern in Southern Nevada, and was a liquor vendor.

83a

7. Before the Court’s filing of the Opinion on

November 30, 1994, I did not know that Justice Rose had

disseminated campaign materials which either committed

him, or appeared to commit him, io voting against cases like

mine, in which legal responsibility for unlawfully selling

liquor to a minor is placed upon the liquor vendor.

8. After the filing of the Opinion on November 30,

1994, I learned that Justice Rose owns 100% of a Nevada

corporation named Sidelines, Inc., which operates a liquor

tavern at 1195 West sunset Road, Henderson, Nevada. |

learned these facts by examining a court document filed in

Sidelines, Inc.’s bankruptcy case entitled In re Sidelines Inc.,

Case No. BK-S-25100-LBR, now pending in the United

States Bankruptcy Court, District of Nevada, Southern

Division. A true copy of that document is attached to my

affidavit as Exhibit 1.

9. Since the filing of the Opinion on November 30,

1994, I have also learned that Justice Rose, on July 11, 1994,

signed an agreement, entitled "Offer and Acceptance

Agreement and Earnest Money Receipt", whereby Justice

Rose agreed to sell his stock in Sidelines, Inc., for the sum

of $2,650,000.00 over and above Sidelines, Inc.’s existing

debt. (See Exhibit 1).

10. Since the filing of the Opinion on November 30,

1994, I have also learned that Steve McLaughlin, an

employee of Justice Rose, wrote a letter to be sent to Nevada

tavern owners soliciting campaign contributions for Justice

Rose’s Supreme Court re-election campaign. This letter

specifically refers to Justice Rose’s financial interest in the

84a

liquor industry. a copy of that letter is attached hereto as

Exhibit "2".

11. Since the filing of the Opinion on November 30,

1994, I have read an article published in the Las Vegas Sun

Newspaper, in which Justice Rose’s employee, Steve

McLaughlin, is reported to have said that he had checked

with Jason Linde, of the Rose election campaign staff, before

sending out the solicitation letter, and that he (Linde) told

McLaughlin to go ahead with sending the letter. A copy of

the newspaper article entitled "Taverns Rally Around Chief

Justice," is attached hereto as Exhibit "3".

12. Had I known that foregoing facts before the

Court’s filing of its Opinion on November 30, 1994, I would

have asked my attorney to disqualify Justice Rose from

participating in my appeal.

13. Before learning of the foregoing facts, I believed

that no judge who had any personal interest in the outcome

of my case, could or would be permitted to sit in judgment

of the case.

14. My learning of the foregoing facts, which Justice

Rose failed to disclose before voting against me in my case,

has cast reasonable doubt in my mind upcn Justice Rose’s

85a

capacity to act impartially as a judge in my case, or any case

opposing the liquor industry in Nevada.

FURTHER AFFIANT SAYETH NAUGHT.

s/s Shawna Snyder Lovett

Subscribed and sworn before me

this 23rd day of January, 1995.

s/s Roxanne Polinelli

Notary Public

86a

IN THE SUPREME COURT OF THE STATE OF

NEVADA

SHAWNA SNYDER, AS THE SPECIAL

ADMINISTRATOR OF THE ESTATE OF

DANIEL PATRICK LOVETT, DECEDENT,

Appellant,

vs.

JOSEPH VIANI, INDIVIDUALLY AND

D/B/A JOE’S TAVERN; TOMMY JO

MONTOYA; TAMMY ADAMS;

MINERAL COUNTY SHERIFF’S

OFFICE, A POLITICAL SUBDIVISION;

JOHN MADRASO, JR., IN HIS

OFFICIAL CAPACITY AS SHERIFF

AND INDIVIDUALLY; JOHN

LEONHARDT, IN HIS OFFICIAL

CAPACITY AS SHERIFF AND

INDIVIDUALLY,

Respondents,

No. 23726

FILED

MAR 08 1995 JANETTE M. BLOOM,

CLERK OF SUPREME COURT

87a

P E ICE RO QO MOTION TO

J ST T JUSTICE

NOT PARTICIPATE IN THE

OT ALIFY

COMES NOW, Justice Robert E. Rose, and sets forth

his opposition to Shawna Snyder’s motion to disqualify him

in this case. In this response, Daniel Patrick Lovett will be

referred to as the drunk driver and his estate, for which

Shawna Snyder serves as administrator, as the drunk driver’s

estate.

INTR JON

The estate of a drunk driver who killed four innocent

people is attempting to establish the right to sue Joe’s Tavern

where the drunk driver had a few drinks five hours before the

accident. The five hours immediately prior to the accident

were spent by the drunk driver drinking at the E] Capitan in

Hawthorne. Neither the El Capitan nor the four innocent

victims is a party to this lawsuit.

The drunk driver’s estate has already received

$300,000 from the drunk driver’s life insurance policy; but

apparently, the estate is not satisfied with this recovery. If a

change in the law is to be made, it should not be made to

assist the felony conduct of a drunk driver, but rather, to help

the innocent victims of the crime. It is puzzling why the

advocates against drunk drivers are pushing to change Nevada

law in this case where the change will benefit the drunk

driver and his estate.

88a

Justice Rose sold the bar and corporation that owns it

on July 11, 1994, and the sale has been approved by both the

Gaming Control Board and Commission. The new owners

are presently on the premises and the escrow will close and

the sale consummated this month (March, 1995). Any

change in the law concerning the liability of bar owners will

not affect Justice Rose because he had entered a written sales

agreement last summer and will no longer be a bar owner.

The estate and its attorney had both actual and

constructive knowledge that Justice Rose owned a bar in

Southern Nevada. Attorney Ken McKenna, who represented

the estate prior to the decision of November 30, 1994, was

recently suspended from the practice of law for unethical

practices, more specifically “ambulance chasing.” He has

stated to Clark Santini that he knew of Justice Rose’s bar

ownership well prior to the court’s decision. As the affidavit

of Clark Santini clearly establishes, Santini had a discussion

with McKenna about this case in June, 1994, and about

Justice Rose owning a bar in Las Vegas.

McKenna said he did not know how he would

fare with Justice Rose because he knew Justice

Rose owned a bar in Las Vegas... . It was

unmistakable that Ken McKenna knew in

June, 1994, that Justice Rose owned a bar in

Las Vegas.

Affidavit of Clark Santini. Santini’s recollection of

the conversation is firm and detailed. The knowledge of Ken

McKenna that Justice Rose owned a bar is imputed to his

client, the drunk driver’s estate, and the motion to disqualify

89a

should have been filed prior to the court’s decision. Further,

the estate’s present attorney, Peter Neumann, not only knew

of Rose’s bar ownership prior to the decision, but was

actively calling and faxing many trial attorneys in Northern

Nevada about that fact shortly before the 1994 general

election.

In a case decided six years ago by the Nevada

Supreme Court, Peter Neumann defended former Justice

Elmer Gunderson’s participation in the court’s decision

against charges that Gunderson’s family had outside business

interests with Peter Neumann. Neumann argued that the

world was put on notice of Gunderson’s business interests

_ with Neumann by a Federal Communication Commission

filing in Washington, D.C., and a legal notice in the Reno

Gazette-Journal. See Ainsworth v. Combined Insurance Co..,

105 Nev. 237, 774 P.2d 1003 (1989). If that was sufficient

notice to apprise the public of a judge’s outside interest in a

business, then there is no question that everyone in Nevada

was on notice that Justice Rose owned a corporation that

operated a bar in Las Vegas. This notice included: (1)

liquor licenses issued annually to Justice Rose and his

corporation by Henderson and Clark County; (2) restricted

gaming license issued by Nevada to Justice Rose as

evidenced by Exhibit D of the motion to disqualify; (3)

judicial disclosure statements filed by Justice Rose indicating

his ownership of Sidelines, Inc. and the fact that it was a

lounge or sports lounge; and (4) extensive coverage regarding

Justice Rose’s bar ownership in the 1988 and 1994 general

election campaigns, including newspaper articles and radio

and television commercials concerning that fact. And, of

course, there is the actual notice of Justice Rose’s bar

90a

ownership that Ken McKenna possessed as established by the

affidavit of Clark Santini attached hereto.

In Nevada, a justice has the legal duty to sit on a case

if he or she does not feel disqualified. By the affidavit of

Justice Rose, it is obvious that he did not feel disqualified in

any way in this case. The drunk driver’s estate permitted the

Justice to discharge his legal duty by sitting on the case

without objection, the estate was dissatisfied with the result,

and now moves to disqualify the Justice by unfairly attacking

him and asserting grounds for disqualification that have no

basis in law or in fact.

After a case has been decided by the Nevada Supreme

Court, a party must show “fraud” to disqualify any justice.

No showing whatsoever of fraud has been made by_the drunk

driver’s estate. The motion to disqualify is frivolous and

clearly meant to embarrass/injure a justice of the Nevada

Supreme Court. It is hereby requested that sanctions be

imposed on the drunk driver’s estate and its attorney.

Justice Springer should not participate in the

determination of this motion to disqualify Justice Rose.

Justice Springer has shown his hostility and anger with

Justice Rose in a recent opinion concerning the Whitehead v.

The Nevada Judicial Discipline Commission case. This

included accusations by Justice Springer that the enormous

criticism Justice Springer and Justice Steffen received in the

Whitehead case was because of Justice Rose. Justice

Springer claimed that many people in high places had

orchestrated this adverse publicity and that:

NE

9la

One person who helped to convey these three

inaccurate impressions was no one less than

the chief justice of the supreme court himself,

Robert Rose.

Whitehead v. Comm’n on Jud. Discipline, 111 Nev. __

—_» __ P.2d__, ___ (Adv. Op. No. 11, February 24,

1995). Further, Justice Rose and Justice Springer have had

a number of personal clashes at the Nevada Supreme Court

during the past two years. From these confrontations have

come a healthy dislike one for the other. The facts of these

clashes and the part played by former Justice Elmer

Gunderson in these disputes will be set forth by me in a

supplemental response to be filed by Justice Rose. In

fairness to the parties and to Justice Rose, it is requested,

pursuant to NRAP 35, that Justice Springer not participate in

the decision of this motion to disqualify, and it is further

requested that an investigation be conducted by the Reno

Police Department and/or the Attorney General concerning

what appears to be the false affidavit of attorney Ken

McKenna.

DATED this 8th day of March, 1995.

s/s Robert E. Rose

92a

POINTS AND AUTHORITIES

I

IT IS THE DUTY OF A JUSTICE

OR JUDGE TO SIT ON A CASE AND TO

RESIST ATTEMPTS TO DISQUALIFY IF HE OR

SHE BELIEVES THERE IS NO BASIS FOR

DISQUALIFICATION

The Nevada Supreme Court has always insisted that

a justice or judge, as part of his or her official duty, has the

obligation to hear a case if the jurist believes he is not

disqualified to do so. This requirement of a judge has been

called the “duty to sit” doctrine and has been recognized in

Nevada for many years. See Goldman v. Bryan, 104 Nev.

644, 764 P.2d 1296 (1988). The court has also required that

any challenge against a justice or judge be supported by facts

that establish a clear and unequivocal showing of bias and

prejudice. A concise statement of these principles is set forth

in Goldman:

At the outset, we observe that “a judge has as

great an obligation not to disqualify himself,

when there is no occasion to do so, as he has

to do so in the presence of valid reasons.”

Amidon v. State, 604 P.2d 575 577 (Alaska

1979), citing In Re Union Leader Corp., 292

F.2d 381, 391 (1st Cir. 1961), cert, denied,

368 U.S. 927. Thus, this court has previously

held that a judge has “a duty to preside . . . in

the absence of some statute, rule of court,

RL RR TT

ee a

93a

ethical standard, or other compelling reason to

the contrary.” See Ham v. District Court, 93

Nev. 409, 566 P.2d 420 (1977); see also

United States v. Diorio, 451 F.2d 21, 24 (2d

Cir. 1971), cert, denied, 405 U.S. 955 (1972);

Wolfson v. Palmieri, 396 F.2d 121, 124 (2d

Cir. 1968); Rosen v. Sugarman, 357 F.2d 794,

797-98 (2d Cir. 1966). Moreover, where, as

here, a judge or justice determines that he may

not voluntarily disqualify himself, his decision

should be given "substantial weight," and

should not be overturned in the absence of a

clear abuse of discretion. See United States v.

Haldeman, 559 F.2d 31, 139 (D.C. Cir. 1976),

cert, denied, 431 U.S. 933 (1977); Amidon,

604 P.2d at 577. Further, under these

circumstances, a judge or justice is presumed

not to be biased, and the burden is on the

party asserting the challenge to establish

sufficient factual grounds warranting

disqualification. Ritter v. Bd. of Com’rs of

Adams County, Etc., 637 P.2d 940, 946

(Wash. 1981).

Id. at 649, 764 P.2d at 1299; accord In re Petition to Recall

Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988).

In the Goldman case, District Judge Goldman was

removed from office by the Commission on Judicial

Discipline and appealed that decision to the Supreme Court,

where he sought to disqualify two sitting Supreme Court

justices from hearing his case, Justices Young and Steffen.

94a

Goldman asserted that Young should be disqualified because

he had written a letter defending actions taken by the court

and Commission against Goldman and asserting that those

actions were proper. Goldman, 104 Nev. at 650, 764 P.2d at

1299-1300. The challenge to Justice Steffen was based on

the fact that he investigated the Goldman case for the court,

prepared a document entitled “Certificate in Lieu of Record”

that was the basis for the Supreme Court’s review of

Goldman’s actions, and then heard the case at the Supreme

Court level. Id. at 652, 764 P.2d at 1300-01. The court

unanimously determined that Goldman had not established

grounds for actual bias or prejudice to disqualify either

justice under NRS 1.225 or the Nevada Code of Judicial

Conduct. Id. at 651, 653, 764 P.2d at 1300, 1303.

The affidavit of Justice Rose clearly establishes that

he firmly believed he was not disqualified in any way from

sitting on the instant case and had an obligation to sit

pursuant to the “duty to sit” doctrine. His affidavit further

establishes that: (1) the drunk driver’s estate and its attorney

had actual and constructive knowledge that he owned a bar

and had an obligation to file a motion to disqualify him if

they did not want him to sit on the case; and (2) Justice

Rose’s interest in the bar had been sold on July 11, 1994,

that the bar and its operation were under the supervision of

the United States Bankruptcy Court, and that any decision in

favor of the drunk driver’s estate would have no future effect

or impact on Justice Rose.

The Nevada Supreme Court reaffirmed the principles

set forth in the Goldman decision six months later when it

decided Ainsworth v. Combined Insurance Co., 105 Nev.

95a

237, 774 P.2d 1003 (1989). In that case, the Supreme Court

had reinstated a punitive damages award of $6,000,000, and

a petition for rehearing and a motion to disqualify former

Chief Justice Elmer Gunderson were filed, based upon

Gunderson’s participation in the previous decisions in the

case. Combined asserted numerous facts that its claimed

showed actual or implied bias or the appearance of bias or

prejudice against Combined by Gunderson, including:

1. Gunderson openly ridiculed Combined’s attorney

in court, and referred to him as a “loser” or “losing lawyer”

approximately 130 times in Gunderson’s response to a motion

to disqualify. Gunderson improperly secured the confidential

records of one of Combined’s attorneys held under lock and

key at the court and publicly used it to ridicule that attorney

for failing the bar exam. See Response of E.M. Gunderson

to Purported “Motions Belatedly Filed by Respondent” filed

February 24, 1989.

2. Remarks by Gunderson at the hearing showed a

clear animus toward Combined and the entire insurance

industry. Ainsworth, 105 Nev. at 256, 774 P.2d at 1017.

3. Gunderson had considered extrajudicial, post-opinion

material. Id, at 258, 774 P.2d at 1018.

4. Gunderson admitted to entering the case with a

preconceived negative impression of Combined’s counsel. Id.

5. Peter Neumann, the attorney for Ainsworth, had

acted as the campaign manager for Gunderson in one of his

96a

campaigns for the Nevada Supreme Court. Id, at 260, 261,

268, 774 P.2d at 1020, 1025.

6. Peter Neumann and Gunderson’s wife had formed

a business venture and made an application with the Federal

Communication Commission for a license to operate a

television station in Northern Nevada. Combined asserted

they had no knowledge of Gunderson’s business interest with

Neumann and this was grounds for disqualifying Justice

Gunderson after the decision.

7. In an unrelated case, attorney Laura FitzSimmons

was representing Gunderson personally and had filed an

amicus brief on behalf of the Nevada Trial Lawyers

Association supporting Ainsworth and opposing Combined’s

position. Id, at 265, 266, 774 P.2d at 1023, 1024.

In spite of these facts, the court held that the

contentions were \wholly insufficient to establish any

disabling bias or a reasonable inference of impropriety. Id,

at 269-270, 774 P.2d at 1026. If there was no

disqualification of Gunderson because of his conduct and

family business, there cannot be any disqualification of

Justice Rose in this case.

One very interesting fact about the Ainsworth case is

that Peter Neumann, a close friend of former Justice Elmer

Gunderson, was the attorney for Ainsworth and defended

Gunderson’s right to sit against the disqualification filed by

Combined. In doing this, Neumann asserted that the business

relationship between Neumann and Gunderson was not

sufficient to disqualify Justice Gunderson, even if it

continued in existence and became a working business, and

97a

cited In Re Drexel Burnham Lambert, Inc., 861 F.2d 1307

(2d Cir. 1988), as authority to show that Gunderson should

not be disqualified:

In In Re Drexel Burnham Lambert, Inc., 861

F. 2d 1307 (2nd Cir. 1988), the United States

Court of Appeals was presented with a

petition for a writ of mandamus seeking

disqualification of Senior U.S. District Judge

Milton Pollack from presiding over certain

civil fraud actions arising from claims of

illegal insider trading. This arose from the

much publicized “Ivan Boesky Insider Trading

Scandal.”

The SEC had instituted a civil fraud action

against the brokerage house of Drexel

Burnham and Ivan Boesky, which was

assigned to Judge Pollack.

In June 1988 while the Boesky Litigation

against Drexel was in full swing, Judge

Pollack’s wife, Moselle Pollack and certain

members of her family, entered into a leverage

buyout (LBO) transaction agreement, by

which Mrs. Pollack’s family business in Texas

would be sold, and which would result in

Judge Pollack’s spouse receiving thirty million

dollars ($30 Million).

The defendant in the Boesky Litigation,

Drexel Burnham brokers, were the

underwriters of the deal by which Mrs.

98a

Pollack’s family business was to be sold in the

LBO.

Immediately, when the attorneys for defendant

Drexel Burnham Lambert learned of the $30

million dollar transaction involving Judge

Pollack’s wife, they notified Judge Pollack

and promptly brought a motion asking Judge

Pollack to recuse himself from the case.

From the refusal of Judge Pollack to recuse

himself, defendant’s attorneys brought a

petition for a writ against him, asking the

Second Circuit Court of Appeals to recuse

him. Drexel’s basis for the writ was 28

U.S.C. Sec. 455, providing that:

“(a) Any justice, judge or magistrate

of the United States shall disqualify himself in

any proceeding in which his impartiality might

reasonably be questioned.

(b) He shall also disqualify himself in

the following circumstances:

(1) Where he has a personal

bias or prejudice concerning [sic] a party, or

personal knowledge of disputed evidentiary

facts concerning the proceeding; . . .

(4) He knows that he,

individually or as a fiduciary, or his spouse or

minor child residing in his household, has a

yeu tay

99a

financial interest in the subject matter in

controversy or in a party to the proceeding, or

any other interest that could be substantially

affected by the outcome of the proceeding.”

Defendant Drexel, Burnham relied upon the

recent holding of the United States Supreme

Court in Liljeberg v. Health Services

Acquisition Corp., U.S. __, 108 S.Ct.

2194, 100 L.Ed.2d 855 (1988), holding that a

trial judge who served as a trustee of a

university that had a direct stake in the

litigation should have recused himself.

The Court of Appeals denied Drexel’s

petition for writ, holding that there was no

appearance of impropriety in Judge Pollack

trying the Ivan Boesky Litigation, since none

of Drexel’s money was being paid to Mrs.

Pollack, and Drexel was not indispensable to

Mrs. Pollack’s transaction, and there was no

nexus between the lawsuits being tried by

Judge Pollack and Mrs. Pollack’s interest in

the family business being sold and brokered

by Drexel.

As the Court of Appeals stated:

“Consequently, Judge Pollack’s

connection is too remote to mandate recusal

because Drexel has no obligation direct or

indirect to Mrs. Pollack. To adopt petitioner’s

theory would mean that any remote

100a

connection even, for example, to investors

who buy SHI bonds from Drexel would

mandate recusal. Thus, the price of avoiding

any hint of impropriety, no matter how

evanescent, would grant litigants the power to

veto the assignment of judges. In our view,

petitioners’ theory would carry a worthy

policy too far.” 861 F.2d 1307, at 1315.

The Court further stated that “where an

interest is not direct, but is remote, contingent,

or speculative, it is not the kind of interest

which reasonably brings into question a

judge’s impartiality. See In re Placid Oil Co.

802 F.2d 783, 787 (Sth Cir.), req’q denied 805

F.2d 1030 (1986). Cf. Mavis v. Commercial

Carriers, 408 F.Supp. 55 (C.D. Cal.1975)

(district court cannot be disqualified because

of ownership of stock in a non-party oil

company because of a remote subsidiary of a

corporation with which the oil company had

engaged in joint venturers was aparty (sic) in

a proceeding before it.” 861 F.2d at 1313-

1314.

Appellant Ainsworth’s Responses to Combined’s

Supplement to its Motions for Disqualification and for

Evidentiary Hearing and Request for Submission of All

Pending Matters at 6-9, 105 Nev. 237, 774 P.2d 1003 (1989)

(No. 17625).

Justice Rose wholeheartedly agrees with the points

and authorities and assertions made by Peter Neumann in the

10la

Ainsworth case that any indirect, remote, or speculative

interest in a business does not disqualify a judge or justice.

Justice Rose’s ownership of a bar that had already been sold

at the time the decision was rendered in this case is, at very

best, remote, indirect, and speculative as to this litigation.

Further, Neumann asserted in Ainsworth’s points and

authorities that Combined and the world had constructive

notice of the fact that Lupe Gunderson and Neumann were

jointly involved in a business venture by the filing of a

written application to Washington, D.C., with the Federal

Communication Commission and 4 legal notice in the Reno

Gazette-Journal. Peter Neumann zsserted that his affidavit

filed in that case established the foliowing:

In brief, this affidavit gives proof that

in 1985, the year before the Ainsworth v.

Combined jury trial, there was a short-lived

attempt by Neumann and five other Nevadans

to obtain an FCC television permit for Reno

for a newly formed corporation called

Peavine, Inc.; that one of those five persons

was Guadulupe [sic] Gunderson; that the

Peavine, Inc. began in May, 1985 and

terminated in November, 1985; that no money

changed hands; that no stock was ever issued;

that Mrs. Gunderson attended no more than

two meetings of the principals; and that

Justice Gunderson attended none, and never

discussed Peavine, Inc. with Neumann.

102a

Further, the affidavit shows, beyond a

reasonable doubt, that the Peavine, Inc.

Application to the FCC, which included both

the names of Peter Chase Neumann and

Guadalupe Gunderson, was a matter of public

record.

First, the FCC application was filed

publically [sic], in Washington, D.C. and is a

matter of public record.

Second, Peavine, Inc., through Mr. Neumann,

caused Notice of the filing of the FCC

application to be published in the Reno

Gazette Journal newspapers, during the month

of [sic] 1985.

Appellant Ainsworth’s Response to Combined’s Supplement

to its Motions for Disqualification and for Evidentiary

Hearing and Request for Submission of All Pending Matters

at 4-5, Ainsworth (No. 17625).

If filing an application in Washington, D.C., and

publishing it in the legal notices in the Reno Gazette-Journal

provide constructive knowledge of a business interest as Peter

Neumann asserted, then the many liquor and gaming licenses

issued to Justice Rose by Clark County and the State of

Nevada, the continual newspaper articles about Justice Rose’s

bar ownership, Justice Rose’s annual judicial disclosure

statements filed from 1987 to the present, and the enormous

publicity of his bar ownership in Justice Rose’s 1994

campaign for reelection clearly gave the drunk driver’s estate

and its attorneys constructive notice that Rose owned a bar in

103a

Southern Nevada. Further, the attorney for the drunk driver’s

estate had actual knowledge of the bar ownership prior to the

decision in November, 1994, as is established by the affidavit

of Clark Santini attached to these points and authorities.

I]

THE MOTION TO DISQUALIFY UTTERLY FAILS

TO ESTABLISH FRAUD OR ILLEGAL CONDUCT

AS REQUIRED BY RULE 35 OF THE NEVADA

RULES OF APPELLATE PROCEDURE

NRAP 35 specifically states that once a justice has

participated in a contested matter, he or she may be removed

only for fraud or illegal conduct.

In no event will the supreme court deem

timely any motion or charge seeking the

disqualification or recusal of a justice who has

heard argument upon, or otherwise considered,

any contested matter in the cause, except as to

grounds based on fraud or like illegal conduct

of which the challenging party had no notice

until after the contested matter was

considered.

NRAP 35(a). Justice Rose was part of the majority decision

in this Viani case that was filed on November 30, 1994, the

case having been pending in the Nevada Supreme Court for

more than one year.

104a

The affidavit of Justice Rose clearly establishes that

his ownership of a bar in Las Vegas, Nevada, was common

knowledge throughout Nevada, that the drunk driver’s estate

and its attorney had actual and/or constructive knowledge of

this fact, that he had already sold the bar and any impact of

a decision favoring the estate would have no effect on him,

and that he truly believed that he had an obligation pursuant

to Nevada law to sit on the case. There was absolutely no

fraud, deceit, or illegal conduct by Justice Rose. Therefore,

the drunk driver’s estate fails to make even a prima facia

case for disqualification of a justice after a contested matter

or decision has been rendered.

Ill

THIS IS NOT A GAMING CASE

This case involves a bar serving liquor to a minor and

the subsequent automobile accident. It has nothing to do

with legalized gaming. Yet, the drunk driver’s estate

continually asserts that this is a gaming case and has included

a list of cases claimed by the drunk driver’s estate to be

gaming related that Justice Rose did not particinate in and

also lists contributions received by Justice Rose from hotels

and casinos. Since it is obvious that this is not a gaming

case, the inclusion of this material can only be meant to

embarrass or injure Justice Rose.

But, even assuming that some sort of gaming was

involved in this case, Justice Rose had no legal obligation to

disqualify himself because he has a restricted gaming license.

105a

Even a preliminary investigation by the drunk driver’s estate

would have discovered this fact.

As a state employee, Justice Rose must receive a

waiver from the Nevada Gaming Control Board and

Commission to hold a gaming license. This is called a

Regulation 11 waiver, and Regulation 11 of the Nevada

Gaming Regulations requires all employees of the State of

Nevada to secure such a waiver in order to hold a gaming

license. Justice Rose has had such a waiver since 1987, and

it requires him not to participate in any cases that are

“gaming related.”

The term “gaming related” has been defined by the

Gaming Control Board and Commission as any case

involving the Gaming Control Board or Commission, or its

employees acting in their official capacity, or deals with the

enforcement of interpretation of gaming statutes contained in

NRS Chapters 463-466, or gaming regulations. This

requirement does not mandate that Justice Rose disqualify

himself in every case involving hotel-casinos or gaming

unless it falls within the above definition. Justice Rose

disqualifies himself from ten cases or less each year because

they are “gaming related,” out of about 1,000 decided by the

Nevada Supreme Court.

The drunk driver’s estate has completely

misinterpreted and expanded the meaning of “gaming related”

cases. Further, many cases that it claims are “gaming

related” do not even deal with a gaming issue or an

establishment where gaming is conducted, as pointed out by

the affidavit of Justice Rose, The most glaring example is

106a

the case brought by the Nevada State Employee’s Association

against the state to enforce a pay raise. Justice Rose recused

himself because his wife is a state employee and it might

appear as if he were voting on her compensation. The drunk

driver’s estate states that Justice Rose disqualified himself

because this was a gaming related case. This claim is

completely false.

IV

SANCTIONS SHOULD BE IMPOSED

Nevada law permits this court to impose sanctions on

any party or attorney who files a frivolous pleading or one

that is meant to embarrass or injure a justice or the court

itself. Rule 35(e).

In this case, the drunk driver’s estate and its attorney

have committed the following serious violations:

1. Filed what appears to be the false affidavit of

attorney Ken McKenna.

2. Made false or recklessly inaccurate statements such

as this being a gaming case or that several cases in which

Justice Rose participated were gaming related.

a Filed this motion with the purpose to

embarrass/injure Justice Rose. This is evidenced by the false

and recklessly inaccurate statements made in the motion as

well as the substantial efforts to publicize the filing of this

motion and cast Justice Rose in an unfavorable light. The

drunk driver’s estate and its attorney took great efforts to

107a

distribute its motion and made a media circus out of its

filing. The attorney for the drunk driver’s estate is also

carrying his political opposition into the legal arena. As set

forth in Justice Rose’s affidavit, Peter Neumann campaigned

actively against Justice Rose because of Justice Rose’s past

stand of refusing to enact a dram shop law by judicial

activism. He has now carried that political opposition into

the courts in his representation of the drunk driver’s estate.

4. The motion to disqualify totally fails to present

any facts that would establish fraud on the part of Justice

Rose. As was previously discussed, this is required by

NRAP 35 and the motion to disqualify is completely void of

any such showing.

CONCLUSION

Therefore, Justice Rose respectfully requests that the

motion to disqualify him in this case be denied, that Justice

Springer not participate in the decision on this motion, and

that the appropriate sanctions be imposed on the drunk

driver’s estate and its attorney.

DATED this 8th day of March, 1995.

s/s Robert E. Rose

108a

AFFIDAVIT

STATE OF NEVADA

CARSON CITY

COMES NOW, Robert E. Rose, and being duly

sworn, deposes and says:

My Bar Ownership and its Sale.

I have had an ownership interest in Sidelines, Inc.

since 1982, and this corporation has been the owner and

operator of sports bars and lounges in Las Vegas since that

time. Since 1982, Sidelines, Inc. and I have held a liquor

license from Clark County and/or Henderson that has been

renewed each year, a copy of the latest license from

Henderson, Nevada, is attached to this affidavit as Exhibit 1.

Sidelines, Inc. and I have alsc held a restricted gaming

license from the State of Nevada from that time until the

present, this being clearly evidenced by Exhibit D of the

motion to disqualify. It has-been a matter of public record

in the State of Nevada and Clark County that I have both a

liquor and gaming license and have operated a sports bar in

Las Vegas for more than the past ten years.

The bar and corporation that owns it (Sidelines, Inc.)

were sold by me on July 11, 1994, as is reflected in Exhibit

B of the motion to disqualify. The Gaming Control Board

and Commission have both approved the sale, the new

owners are on the premises and beginning to take control,

and the final saie will be consummated this month (March,

1995). Any change in the law concerning the liability of bars

109a

in Nevada will not affect me because I no longer own a bar.

Further, | protect myself against any personal liability from

the bar operation by having it run by a corporate entity and

I carry substantial liability insurance.

Extensive Public Broadcasts of Bar Ownership.

I ran fer the Nevada Supreme Court in the 1988

general election. My opponent was fellow District Court

Judge Myron Leavitt, and my ownership of a bar in Las

Vegas, through that corporation known as Sidelines, Inc., was

an issue in the campaign. I am attaching as Exhibit 2

newspaper articles concerning this race and my bar ownership

that appeared in 1988.

Ownership of a bar in Las Vegas has been mentioned

periodically from that time to the present. In fact, a recent

article about the sale of my bar in Las Vegas observed that

my bar ownership has been a continual public issue from the

1988 campaign to the present time. A copy of that article is

attached as Exhibit 3.

I ran for re-election to the Nevada Supreme Court in

the 1994 general election. District Judge Myron Leavitt

again filed against me in March, 1994. His two major

attacks against me were that I attempted to influence the

prosecution of my former law clerk on marijuana charges by

speaking to Clark County District Attorney Rex Bell and that

I owned a bar (lounge or tavern) in Las Vegas. Numerous

newspaper articles appeared about my ownership of a bar in

Nevada papers throughout the campaign. Couples of a

110a

sampling of such articles are attached as Exhibit 4, along

with the date of publication and newspaper.

In addition to newspaper coverage, Leavitt's campaign

hit hard on the fact that I owned a bar and mentioned it in

several television and radio commercials. Attached as

Exhibit 5 are the scripts from radio and television

commercials that were run extensively the last month of the

campaign (last three weeks on October and first week in

November). From my viewing and monitoring these

commercials, they ran most of the last month of the

campaign in the Reno and Las Vegas markets on a number

of radio stations and all three major television networks about

seven to ten times per day.

Since Leavitt was making such a negative issue out of

my bar ownership, my bar manager thought a positive letter

to fellow licensed liquor/gaming establishments would help

balance the negative publicity. He prepared the letter

attached as Exhibit B to the motion to disqualify me, showed

it to my campaign manager, and then distributed it to many

gaming/liquor licensees in Southern Nevada.

Shortly thereafter, Leavitt’s campaign strongly

criticized me for the letter and was able to mobilize

individuals and groups against drunk drivers. A number of

television news stories were run in Las Vegas and Reno

about a candlelight vigil that these individuals and the Leavitt

campaign conducted in front of my campaign office in Las

Vegas during the first week of November, 1994, as well as

newspaper articles about this protest. A copy of a newspaper

article is attached as Exhibit 6. Leavitt also ran a desperation

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radio ad in Reno, Carson City, and Las Vegas that strongly

criticized me for owning a bar, and the radio commercial

began by saying that drunk drivers have a special friend in

Bob Rose because he owns a tavern in Las Vegas. This false

commercial ran seven to ten times a day on many stations in

the Las Vegas and the Reno-Carson City areas. A copy of

the full text of this radio commercial is attached as Exhibit

7.

I won the November 8, 1994 general election. On

November 30, 1994, this case, Snyder v. Viani, came up for

final consideration, and no request or motion to disqualify me

had been filed. For reasons stated in this affidavit, I truly

believed that there was no reason why I should disqualify

myself from this case. Further, I believed that everyone in

the state knew I owned a bar in Las Vegas, and a motion or

request for disqualification would have been made if either

party opposed my sitting on this case.

The Viani Decision.

I believed the vote on this case would be 4-1, with

Justice Steffen dissenting. However, Justice Springer

switched his vote from his long-standing position, and I was

very surprised by this change. Justice Springer had always

insisted that any liability to ‘e imposed on a purveyor of

alcohol should be imposed b, *2e Legislature and not by this

court, and had voted this way on a number of cases. See

Hinegardner v. Marcor Resorts, 108 Nev. 1091, 844 P.2d 800

(1992); Yoscovitch v. Wasson, 98 Nev. 250, 645 P.2d 975

(1982); Bell v. Alpha Tau Omega, 98 Nev. 109, 642 P.2d

161 (1982) (decision authored by Justice Springer holding

Fe eee er ne

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that violation of criminal statute prohibiting sale of alcoholic

beverages to persons under the age of twenty-one does not

constitute negligence per se). Justice Springer’s switched

vote made the case much closer (3-2 instead of 4-1) and my

vote much more significant since only a bare majority

supported the decision.

No justice on the Supreme Court has raised the point

of whether I should be participating in this case because I

owned a bar in Clark County. Every judge has an obligation

to speak out if he believes something improper is being done

by a fellow judge. Canon 3(D)(1). All of the other justices

knew I owned a bar in Las Vegas before the opinion was

signed, yet no one expressed any concern or cautioned me

about participating in the case. This is not to criticize any of

them in any way. It is simply further evidence that I had no

conflict of interest and that none of my fellow justices

thought it would be improper for me to vote at that time.

Regarding Peter Neumann.

I have known Peter Neumann for many years. He has

practiced almost exclusively as a civil trial attorney and has

been active in the American and Nevada Trial Lawyers

Associations. In 1988 when I was running for the Nevada

Supreme Court, I met with Peter Neumann and asked for his

assistance. During our conversation, he indicated that

although his very close friendship with then Justice Elmer

Gunderson was trying at times and he found Gunderson

occasionally overbearing, he had remained a close friend and

had helped him in several of his campaigns. He specifically

indicated that he had been a campaign manger on

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Gunderson’s first campaign and had assisted him in that and

other campaigns by putting up signs and flying him in an

airplane to various political events throughout the state.

As previously explained, Exhibit B of the motion to

disqualify was sent by my bar manager to many taverns and

hotels in Southern Nevada. Peter Neumann received a copy

of this letter almost immediately. Since Elmer Gunderson’s

very close friend and attorney Laura FitzSimmons was

actively working on the Leavitt campaign, I can only assume

that the information concerning the letter was forwarded by

her and the Leavitt campaign to Neumann. I have been

informed that Laura FitzSimmons was working full time on

Leavitt’s campaign the last week of the campaign and

answering the telephone at the Leavitt headquarters.

The letter, among other things, cited my longstanding

legal position that the dram shop act or law should not be

enacted by the judicial activism of this court, but rather left

to the Legislature. The letter also stated that I believe “in

strong but fair DUI enforcement,” which is absolutely true.

Apparently, adamantly disagreeing with my legal

stand, Neumann began faxing copies of the letter and other

information to trial attorneys in Washoe County. Perhaps he

even called or faxed Ken McKenna with this information.

Peter Neumann has indicated that he will not accept

a fee for representing the drunk driver’s estate. This is a

realistic position to take because any recovery by the drunk

driver’s estate is speculative and in all probability will not

occur even if the law is changed by this court. It is doubtful

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that a jury or judge will want to compensate a drunk driver

who killed four innocent people. I am informed and believe,

and on information and belief state, that the life insurance

policy insuring the drunk driver has already paid the drunk

driver’s estate the $300,000 policy limits.

Since money is not Peter Neumann’s motive for filing

this case, I believe he is doing it for two reasons. First, he

would like to establish the dram shop law by judicial decision

rather than by legislative action. This would give the trial

attorneys yet another basis to file lawsuits against business

establishments. If the dram shop act were established for

minors by judicial activism, I cannot see how we could not

logically extend it to cover all people in the next case dealing

with an adult. The drunk driver was three months shy

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