# Appendix — Snyder v. Viani

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1229%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 963

## Text

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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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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Cap Ste,

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
la

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1229%3A2. Public record. Not legal advice.