Petition for Writ of Certiorari — Buckwalter v. County of Clark
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(i) FILED
IN THE
Supreme Court of the United States
OCTOBER TERM, 1999
te aR a
BRIANT BUCKWALTER, JOHN R. REESE and TOWER ENTERPRISES,
Petitioners,
omens, ome
COUNTY OF CLARK, A POLITICAL SUBDIVISION OF THE STATE OF
NEVADA, on relation of LAS VEGAS CONVENTION AND VISITORS
AUTHORITY,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NEVADA
PETITION FOR A WRIT OF CERTIORARI
LAURA WIGHTMAN FITZSIMMONS
Counsel of Record
704 South 9th Street
Las Vegas, Nevada 89101
(702) 733-8877
Counsel for Petitioners
i
QUESTIONS PRESENTED
1. Whether the Fourteenth Amendment’s Due Process
Clause can permit a decision of a State Supreme Court to
stand when a justice of that Court had prejudged the sole
basis upon which a nine million dollar condemnation judg-
ment was reversed by advising informally members of the
legislature that the Supreme Court would “not have a prob-
lem” with a statutory amendment designed to “overrule” the
court’s prior judicial definition of fair market value in emi-
nent domain cases and thereafter authored an opinion holding,
as a matter of first impression in the court, that it was not a
violation of the separation of powers doctrine for the legis-
lature to re-define the judicial definition of fair market value
to the detriment of landowners in state eminent domain
actions.
2. Whether the nationwide system of justice governed by
the Fourteenth Amendment’s Due Process Clause can permit
a State Supreme Court to vacate a nine million dollar judg-
ment upon jury verdict in an eminent domain action when two
of the four members of the court, particularly the author of
the opinion, have manifested, »ublicly and repeatedly, expres-
sions of extreme bias against counsel who represent the
landowners on a contingent fee basis, including untruthful
accusations that counsel unlawfully supported their opponents
in hotly contested judicial races, had “stalked” the Justice
who authored the opinion, and had provided the press with
information revealing the author of the opinion to have been
under criminal investigation for obstruction of justice fol-
lowing police interceptions of conversations which he held
with targets of a drug investigation.
LIST OF PARTIES
The parties before the Nevada Supreme Court, whose judg-
ment is sought to be reviewed, were Briant Buckwalter, John
R. Reese, Tower Enterprises, a Nevada partnership comprised
of Briant Buckwalter, Ray Buckwalter and John R. Reese,
Clark County, Nevada, a political subdivision of the State of
Nevada and the Las Vegas Convention and Visitors Authority,
a political subdivision of the State of Nevada.
Originally, other parties who held trust deeds on the
property were named by the County as defendants in the
condemnation case. Those parties were California Federal
Savings and Loan Corporation, a California corporation,
profit sharing plan of Roy R. Valentine, D.D.S., K.W. Houn-
sell, K.W. Hounsell, Inc. a profit sharing trust, profit sharing
plan of Edgar F. Muncsh, D.D.S., Ralph Engh and Christine
Engh. Prior to trial all defendants holding trust deeds in the
property were dismissed.
Rule 29.1 Listing
California Federal Savings and Loan Corporation, a defen-
dant dismissed in the trial court and not a party on appeal,
became California Federal Bank in 1989 whose parent com-
pany was Cal Fed Bancorp, a publicly traded company which
sold to First Nationwide Bank in 1997. None of these cor-
porations was a party before the Court whose judgment is
sought to be reviewed.
ili
TABLE OF CONTENTS
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CONSTITUTIONAL PROVISION INVOLVED.......
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REASONS WHY THE WRIT SHOULD ISSUE.......
A.
The Determination Below was Made in
Violation of the Rights of the Petitioners
to an Impartial Tribunal Because the Justice
who Authored the Opinion had Prejudged
the Determining Issue and had an Interest
in the Outcome of the Case..................
Two of the Members of the Four Judge
Tribunal Below, Particularly the Author of
the Opinion, Harbored Extreme and
Repeatedly Articulated Prejudice Stemming
from an Extrajudicial Political Source
Against Counsel for Petitioners Which
Denied Petitioners Their Right to an
Adjudication Before an Unbiased Court.....
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APPENDIX
Opinion Below From Which Review Is Sought,
Rose, C.J., Young, J., Shearing, J.; with Maupin,
J., concurring, filed April 9, 1999................ la
Order Denying Petition For Rehearing,
Rose, C.J., Maupin, J., Shearing, J.; with Young,
J., concurring, filed October 1, 1999............. 15a
Opinion Denying Motion To Disqualify Justice Rose,
Young, J., Shearing, C.J., and Sullivan, D.J.;
with Springer, J., and Maupin, J., dissenting,
SEDGE RO Wa RUE boc bis dacccckuccnsaiastbades 20a
Order Denying Motion To Disqualify Justice Young,
Shearing, C.J., Rose, J., Maupin, J., filed
FORE As RIE ahh kas AA ca teed eetaaipearwenecuas 4la
Affidavit Of Richard Edward Flamm, dated
PAGE TP TOOT. 5 vincdvas ta dibiscaecirkchei ek 44a
TABLE OF AUTHORITIES
Cases PAGE
Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813
Bf ME EE SPOT POG PEER hae wee IN aa 10, 15
Ainsworth v. Combined Ins. Co. of America, 105
Nev. 237, 774 P.2d 1003 (1989) cert denied
Ma PO I odo a WG Rapa ORR oaks 16
Board of Directors v. Morledge, 332 S.W. 2d 822,
BAF Sa Osa Ss des Paeh bck vole eo cdncecnk 13
City of Elko v. Zillich, 100 Nev. 366, 370, 683
FMS UE MO os cvhocagnceck ce ery Ca 3
City of Las Vegas v. Hecht, 113 Nev. 632, 940
PM DAT CASPER ik caha tec decke cele 8, 16
City of Las Vegas v. Hecht, 113 Nev. 644, 940 P.2d
BLS p23 NR Do iy Whe Detain are 8, 16, 17
Ceounty of Clark v. Buckwalter, 115 Nev. ___, 974
Wo TAR NOUOR Foi xi benuek cob catibacd ce
Del Papa v. Board of Regents, 114 Nev. 388, 956
Wie FAURE Sock cci dese ecko arith 17
Hogan v. Warden, 112 Nev. 553, 916 P.2d 805 (1996)
cert denied 519 U.S. 944 (1996).................. 16
In Re Murchison, 349 U.S. 133, 136 (1955) ........ 9,10, 14
Liteky v. United States, 510 U.S. 540 (1994) .......... 19
Martin v. Beck, 112 Nev. 595, 915 P.2d 898 (1996) ... 16
Matter of Dunleavy, 104 Nev. 784, 769 P.2d 1271
CS WON caid sh axadavieicyar caeleccekeik shone 16
Milchem Inc. v. District Court, 84 Nev. 541, 445
Pee BOG CA ek. dbkbeecas¥edikaeeidinnriicas 13
Monogahela Navigation Co. v. United States, 148
Ce SEM CRE Fob 40k ceniees ceehdeusircisis sues 4
Nevius v. Warden, 114 Nev. 664, 960 P.2d 805 (1998)
cert denied 119 S.Ct. 878, 142 L.Ed 778
C1999) 6 icciieivedsic NEA een ee tis 16,17
O’Brien v. State Bar of Nevada, 114 Nev. 71, 952
Pd OS2 (AO iis dooi nko hhtns eins en es 17, 18
People for the Ethical Treatment of Animals (PETA)
v. Berosini, 111 Nev. 431, 894 P.2d 337
CSUDD) vics cbunsh inaakenrersi eee aan 15, 16, 17, 19
Preston v. Rappold, 178 N.E. 2d 787 (Oh. 1961)...... 13
Seaboard Air Line Ry. Co. v. United States, 261
CF B.. FOP CRD ik kane ckcces checscesive tomas 12
Snyder v. Viani, 112 Nev. 568, 916 P.2d 170 (1996)
cert denied 519 U.S. 963 (1996).................. 16
State Dept of Transp. v. Barsy, 113 Nev. 709, 941
P28 SOP CIS B I is kocbshvicatcvuc een 16
State of Nevada v. Campbell, 80 Nev. 23,32, 388
P26 TSS, TH 1° Fae ee kicks ¢ednkgsdkid ceaiteens 13
Taylor v. Hayes, 418 U.S. 488 (1974).................. 18
Tumey v. State of Ohio, 273 U.S. 510, 532 (1927)..... 9
Ungar v. Sarafite, 376 U.S. 575 (1964)................ 19
Valladares v. Second Judicial Dist. Ct., 112 Nev.
79, FEO PZE Bre air ccc kccbinknec chakesaSeuas 16
Virginia & Truckee R.R. Co. v. Henry, 8 Nev. 165,
Bec gt ts 2, FARA nr® Sey mney hare ah gy ae eres 13
Ward v. Village of Monroeville, 409 U.S. 57, 60
CEP Cad ctv chves crsar shin cieksk ios ine aR 11
Wheeler v. State Dep’t of Transportation, 105 Nev.
457, 238, 773 B28 728 (ISOM) oven 6 3; 2
Whitacre Inv. Co. v. State Dept. of Transportation,
113 Nev. 1101, 946 P.2d 191 (1997).............. ‘7
Withrow v. Larkin, 421 U.S. 35, 47 (1975) ............ 14,18
Constitutional Provisions, Statutes and Rules
Pe aA nk diva Lo died Bhcer cok iak ohou sadiknve 2
es LAR erg pep Aab TS ap fk HER 2 ata aa ree 5,8
PRN UMEID: 66505 Searwse va ak de bc 0hneh es vwUN ded ce 17
POE PN 650 bond 555.5 505 v3 iis be oe ch is bai cbanhciccess 14
PURO MAE ak bshs fi wdc 5 6054 vad ca bsSRk Mews da tke cs 14
ee haem eel Arg PRE Pe Bah SI gtr Aine ety ral a SI De 12
RS May I ID og do bo ire ds s Geto e ds hadcacedi cons 10
OF am MS GU as SOR Soy, a eae ke passim
Sa 5
Other Authorities
Ayres and Bulow, The Donation Booth: Mandating
Donor Anonymity to Disrupt the Market for
Political Influence, 50 Stan. L. Rev. 653 (1998) . 9
Vill
PAGE
Banner, Disqualifying Elected Judges from Cases
Involving Campaign Contributions, 40 Stan.
Fg Mahe MN ERIE 62s cb vd oho hank Rend kee baruen es 9
Flamm. Richard E., Judicial Disqualification:
Recusal and Disqualification of Judges, 1996... 7,8
Goldwater, Disqualification cf Justices of the
Supreme Court of Nevada, 6 Apr. Nevada
eo ee BES. Rene Ne eee ARE Cerone Pape erly 16
Levien and Fatka, Cleaning up Judicial Elections:
Examining the First Amendment Limitations
on Judicial Campaign Regulation, 2 Mich L.
re, ee Ae eee sd ey per yeeiye rpm 9
Note, Attorney Contributions to Judicial Campaigns,
20 otetes &: ROS BE (Ae av cocenkekike dances 9
Note, Judicial Elections Have No Winners, 20
Sesto 1. RAV SOF CAG) ovis ks nkcsaikccviavesses 9
Note, Popular Justice: State Judicial Elections and
Procedural Due Process, 31 Harv. C.R.C.L. L.
Raw. SEL CRIS) oo kien eisai hess 9
Note, Safeguarding the Litigant’s Constitutional
Right to a Fair and Impartial Forum: a Due
Process Approach to Improprieties Arising
from Campaign Contributions from Lawyers,
BG Riek: 4... OV. Sas CUO csccias scree 10
IN THE
Supreme Court of the United States
OCTOBER TERM, 1999
No. 99-
<< <p
BRIANT BUCKWALTER, JOHN R. REESE
and TOWER ENTERPRISES,
Petitioners,
a |
COUNTY OF CLARK, A POLITICAL SUBDIVISION OF THE
STATE OF NEVADA, on relation of LAS VEGAS CONVENTION
AND VISITORS AUTHORITY,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF NEVADA
o> >
PETITION FOR A WRIT OF CERTIORARI
Petitioners Briant Buckwalter, John Reese and Tower
Enterprises respectfully petition for a writ of certiorari to
review the judgment of the Nevada Supreme Court in this
case.
I. OPINIONS BELOW
The Nevada Supreme Court’s order denying the motion to
disqualify Justice Young is unpublished. Appendix (App.)
4la. The Nevada Supreme Court’s decision denying the
motion to disqualify Justice Rose is reported as Whitacre Inv.
Co. v. State Dept. of Transportation, 113 Nev. 1101, 946 P.2d
191 (1997). App. 21a. The opinion of the Nevada Supreme
Court reversing the judgment upon jury verdict in favor of
petitioners is reported as County of Clark v. Buckwalter, 115
Nev. , 974 P.2d 1162 (1999). App. la. The order of the
Nevada Supreme Court denying the petition for rehearing is
unpublished. App. 15a.
II. JURISDICTION
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257. The Nevada Supreme Court filed its initial opinion on
April 9, 1999. App. la. The order denying the timely filed
petition for rehearing was entered on October 1, 1999.
App.I5a.
Ili. CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States Constitu-
tion provides, in pertinent part:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law.
U.S. Const. am. XIV.
IV. STATEMENT OF THE CASE
The Las Vegas Convention and Visitors Authority, through
Clark County, Nevada, filed a complaint in eminent domain to
take extremely valuable land owned by petitioners for expan-
sion of the Las Vegas Convention Center. After a trial before
a jury, a judgment was entered requiring the County to pay
petitioners nine million dollars for the property taken from
them. The judgment was paid to the petitioners and part of the
judgment proceeds were received by counsel for the peti-
tioners pursuant to a contingent fee contract.
The County appealed. The primary contention on appeal
was a Challenge to a determination made by the trial judge,
upon separation of powers grounds, to instruct the jury that
the fair market value of the property for which petitioners
were entitled to compensation was the “highest price” for
which the property would sell in an open market transaction.
The instruction given by the trial court was taken directly
from prior decisions by the Nevada Supreme Court in City of
Elko v. Zillich, 100 Nev. 366, 370, 683 P.2d 5 (1984)
and Wheeler v. State Dep't of Transportation, 105 Nev. eit
218, 773 P.2d 728 (1989) (the definition of ‘highest price’ “is
the standard to be used in Nevada and every appraiser testi-
fying in these cases should use this standard in valuing real
property”).
After the court decided Wheeler, various government agen-
cies supported a bill in the state legislature to modify the def-
inition of fair market value by “reversing” the decision of the
Nevada Supreme Court in Wheeler, supra. Under the bill.
landowners would no longer be entitled to compensation for
their property at the judicially defined “highest” fair market
value, but would instead be entitled to compensation at the
“most probable” market value. The condemnors who testified
in favor of the bill believed the legislative modification of the
fair market definition would save the government acquisition
costs in the condemnation of private property.
In the course of the hearings on the bill, members of the
Senate Judiciary Committee expressed concern as to whether
it was a proper function of the legislature to “diminish the
constitutional meaning of ‘just compensation’ which had been
defined by the Nevada Supreme Court over the years.” In
On page 385 of the record on appeal before the Nevada Supreme
Court, which contains the minutes of A.B. 80 before the Senate Judiciary
Committee on April 23, 1993, the following is found:
(footnote continued)
response two members of the committee stated they had con-
ferred with Chief Justice Rose on that point, and Chief Justice
Rose had informed them that the Nevada Supreme Court “did
not have a problem” with the legislature changing the court’s
definition of fair market value. Chief Justice Rose “assured”
the senators informally that they should “feel free” to change
the judicial definition of fair market value if they believed
the change would result in “a better definition in the opinion
of the legislature.” After the assurances of Chief Justice Rose
were communicated by the two individual senators to the
whole committee, concerns expressed earlier about the sep-
aration of powers issue were muted and the bill passed.
Prior to trial, the petitioners filed a motion requesting the
trial judge to employ the judicial, rather than the iegislative
definition of fair market value. The petitioners argued that the
determination of compensation in condemnation proceedings
is a judicial, not a legislative function. The landowners relied
upon Monogahela Navigation Co. v. United States, 148 U.S.
312 (1893), in which this Court held that under the Consti-
tution, the determination of the rules and measure by which
Senator James advised “just compensation” has been defined
by the Courts over the years. He was concerned that a change
from “highest price” to “most probable price” would diminish
the meaning of “just compensation.” Senator James quoted from
Mr. Gezelin’s memoranda,, a passage taken from an 1800s Nevada
Supreme Court case: No legislature can diminish by one jot
the rotund expression of the constitution of just compensation.
Senator Adler stated he had conferred with Chief Justice Rose
regarding this question, and that Justice Rose stated the Supreme
Court does not have a problem with adding or changing the defi-
nition. The Court likes to keep their opinions intact, but the justices
stated the legislature should feel free to implement something
believed to be better. Senator Adler further advised the court was
not adverse to changing or adding to the definition of market value,
as long as it was a better definition in the opinion of the legislature.
Senator Smith advised that Chief Justice Rose had similarly assured
him.
compeusation for property taken by government is made does
not rest with the public which takes the property through the
legislature, but with the judiciary. Clark County’s opposition
to the landowners’ request referred to the assurances provided
by Chief Justice Rose to the legislature on this point and
requested the trial judge “show deference to the Nevada State
Legislature as did Chief Justice Rose.” Nonetheless, the trial
judge determined the judicial definition of fair market value
would apply to the proceedings. Accordingly, appraisers for
both sides testified using the “highest price” standard and the
jury instruction defined “fair market value” as it had been
defined judicially by the Nevada Supreme Court.
The jury returned a verdict of nine million dollars. The
landowners were paid by the County, and in turn paid their
counsel pursuant to a contingent fee agreement. The County
appealed the judgment to the Nevada Supreme Court, pro-
viding the court with its first opportunity to decide formally
whether the legislative definition of fair market value would
supercede the court's own definition. At the initial stages of
the appeal, and in compliance with the applicable rule con-
cerning motions to disqualify justices of the supreme court,
NRAP 35, the landowners filed separate motions to disqual-
ify Justice Rose? and Justice Young. Both motions were pred-
icated expressly upon the guarantee of due process contained
in the Fourteenth Amendment to the United States Constitu-
tion.
Petitioners sought to disqualify Justice Rose from partici-
pating in the appeal because he had prejudged the main issue
on appeal by assuring members of the legislature that the
court would “not have a problem” if the legislature changed
the definition of fair market value and advised the legislature
that its members should “feel free” to come up with a defi-
nition they felt was “better.”
‘ Court members rotate terms as Chief Justice. Nev. Const. art. VI
§ 3. Justice Rose served as Chief Justice from January, 1992 to Jan-
uary,1994 and has served as Chief Justice since January of this year.
The disqualification of Justice Rose was also sought
because he held a strong personal bias against counsel for the
landowners’. The record below contains many public expres-
sions which manifest this bias, including accusations made by
Justice Rose to the press that counsel for the petitioners was
part of an “orchestrated effort” to “soften him up for his re-
election” by providing to the press information that Las Vegas
police had intercepted conversations between Justice Rose
and third parties involved in drug offenses. The following
year, Justice Rose told the press he had “a fear of being
stalked the rest of his life” by three people, including coun-
sel for the petitioners.
Following his re-election in a very difficult and expensive
campaign in which his ownership of a bar and casino became
an issue, Justice Rose accused counsel for the petitioners of
having disclosed a letter written by the manager his bar solic-
iting campaign contributions from other bar owners.‘
Clark County did not file an opposition to petitioners’
motion to disqualify Justice Rose. Justice Rose filed a 38
page opposition, including an affidavit in which Justice Rose
set forth information he had received from undisclosed
sources in support of his public accusations against counsel.
The opposition by Justice Rose contained a detailed account
of various acts which he believed counsel for petitioners had
committed against him politically. Justice Rose complained,
in detail, about counsel’s support for his opponent in his
recent bid for re-election and described counsel’s significant
3
Counsel of record in this Court represented petitioners at trial
and on appeal. Kermitt Waters was co-counsel in the state court pro-
ceedings. Both counsel received substantial fees from the judgment
which was vacated by Chief Justice Rose under a contingent fee contract
with petitioners. This fee arrangement was a matter of record in the state
proceedings.
4
Each of these accusations by Justice Rose against counsel, and
many others, are contained in press accounts, press releases and other
written statements by Justice Rose which were attached to petitioners’
motion to disqualify him.
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Pe ee eee ee, ee eee ae
financial support for the opponent of Justice Young in a later
election as being part of a larger effort by political foes of
both Justice Young and Justice Rose to unseat them.
Thereafter, Justice Rose filed a supplemental opposition to
the motion to disqualify him, in which he referred to himself
and counsel for petitioners as the “real parties in interest”. In
response, counsel lodged with the court a reply which included
an affidavit supporting the disqualification of Justice Rose
from Richard E. Flamm, an expert on judicial ethics who
authored Judicial Disqualification: Recusal and Disqualifi-
cation of Judges, 1996. App. 44a.
By separate motion, the petitioners sought the disqualifi-
cation of Justice Young from the consideration of their appeal
because counsel of record for petitioners in this Court, as well
as her co-counsel in petitioners’ the state court proceedings,
had provided substantial campaign contributions to his oppo-
nent in his 1996 re-election campaign. The motion set forth
that during an election function, a supporter of Justice Young
asked his opponent whether, if he were elected, he would
disqualify himself from this case on appeal because of the
contributions he received from counsel for these petitioners.
Justice Young followed up on the question by commenting
that it “appeared” that counsel below had exceeded the legal
limit on campaign contributions to his opponent. Clark County
did not oppose the motion to disqualify Justice Young, and
Justice Young filed no response.
In an unpublished order, three justices, including Justice
Rose, denied petitioners’ motion to disqualify Justice Young.
App. 42a. In a published opinion, authored by Justice Young,
with dissents by two justices, the court denied petitioners’
motion to disqualify Justice Rose. App. 21a. Whitacre Inv.
Co. v. State Dept. of Transportation, 113 Nev. 1101, 946 P.2d
191 (1997)°. The court thereafter reversed the judgment in
Petitioners’ reply to Justice Rose’s supplemental response to the
motion to disqualify was lodged with the court, but found by the court to
IEEE EE
favor of petitioners in an opinion authored by Justice Rose.
App. la. County of Clark v. Buckwalter, 115 Nev. ___, 974
P.2d 1162 (1999).
V. REASONS WHY THE WRIT SHOULD ISSUE
Petitioners recognize that the facts of this case and the
effects of political contributions and other unfortunate com-
ponents of state judicial elections are unseemly both generally
be procedurally improper under NRAP 35, and ordered returned unfiled.
App. 23a-24a. As was noted in the dissent, petitioners sought to file their
reply after the court permitted Justice Rose to file his supplemental
response to the motion in which Justice Rose characterized counsel for
the petitioners as also being a “real party in interest” in the case. This
characterization was indeed accurate, because both petitioners and their
counsel had a substantial financial interest in the proceedings. App. 28a.
The dissent to the denial of the motion to disqualify Justice Rose relied
in part upon the contents of the reply which was lodged, but ordered
returned unfiled. That reply included an affidavit by Richard E. Flamm,
an expert on judicial ethics who authored the treatise Judicial Disqual-
ification: Recusal and Disqualification of Judges. Mr. Flamm noted that
the Court had relied upon parts of his book in denying motion to dis-
qualify Justices Rose and Young in an eminent domain case in which
counsel represented former United States Senator Hecht. City of Las
Vegas v. Hecht, 113 Nev. 632, 940 P.2d 127 (1997); City of Las Vegas v.
Hecht, 113 Nev. 644, 940 P.2d 134 (1977). Prior to writing his affidavit,
Mr. Flamm reviewed the motion, the opposition and supplement filed by
Justice Rose, and relevant Nevada cases. Based upon his review of the
specific documents filed in this case, Mr. Flamm concluded that Justice
Rose’s expressed animus towards counsel mandated his disqualification
from this case. App. 45a. One basis for this conclusion was the fact that
counsel had a substantial pecuniary interest in the outcome of the case
sufficient to implicate due process. App. 46a-47a. Another was that the
series of statements made by Justice Rose “show quite conclusively that
Justice Rose believes Ms. FitzSimmons was part of a conspiracy to
destroy his career.” App. 50a.
Mr. Flamm noted that in the Hecht case, counsel had sought an evi-
dentiary hearing to dispute allegations against her made by Justice Rose.
The court summarily denied the request and adopted assertions made by
Justice Rose, and contested by counsel, in denying the motion to dis-
qualify. App. 48a-49a.
FO eee ee eer
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3
4
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9
and particularly to the members of this Court. Yet this is an
area in which this Court’s intervention is uniquely appropri-
ate and its protections are necessary. In states such as Nevada
where all judges, including members of the State’s supreme
court, must seek and hold office in contested elections, it is
not surprising to find a reluctance on the part of the courts to
determine that judges are subject to disqualification because
of political relationships—either favorable or hostile—with
parties and counsel who appear before them. This Court is the
forum in which the nationwide guarantee of due process can
and should be invoked to remedy the problem and determine
the constitutional limitations defining circumstances evident
in state judicial politics which would “offer a possible temp-
tation to the average man as a judge. . . not to hold the bal-
ance nice, clear and true. . .” Tumey v. State of Ohio, 273
U.S. 510, 532 (1927).
This Court has stated “our System of justice has always
endeavored to prevent even the probability of unfairness”.
In Re Murchison, 349 U.S. 133, 136 (1955). Yet none of its
opinions concerning the disqualification of judges under the
due process clause has considered the effects of hard fought
judicial campaigns, including campaign contributions and
support for unsuccessful judicial challengers, on litigant’s due
process rights to unbiased adjudicators in State courts.°®
The importance of this issue is demonstrated by the extent to
which commentators have increasingly drawn attention to the due process
concerns and apparent impropriety arising from monetary and political
Support given by lawyers to the campaigns of judges before whom they
appear. Ayres and Bulow, The Donation Booth: Mandating Donor
Anonymity to Disrupt the Market for Political Influence, 50 Stan. L. Rev.
653 (1998); Levien and Fatka, Cleaning up Judicial Elections: Exam-
ining the First Amendment Limitations on Judicial Campaign Regulation.
2 Mich L. & Pol’y Rev. 81 (1997); Note, Popular Justice: State Judicial
Elections and Procedural Due Process, 31 Harv. C.R.C.L. L. Rev. 187
(1996); Note, Attorney Contributions to Judicial Campaigns, 20 Hofstra
L. Rev. 217 (1991); Note, Judicial Elections Have No Winners, 20 Stet-
son L. Rev. 309 (1990); Banner, Disqualifying Elected Judges from Cases
Involving Campaign Contributions, 40 Stan. L. Rev. 449 (1988); Note,
10
This Court should grant a writ of certiorari to review the
decision of the Nevada Supreme Court on the issue of dis-
qualification because it presents an important question of fed-
eral law. This case provides a timely and fitting opportunity
for this Court to provide guidance to state courts in their
determinations of mounting challenges to the participation of
judges in proceedings in which their impartiality is objec-
tively suspect. The decision below was a product of a biased
tribunal and due process requires it to be vacated. Sup. Ct.
Rule 10(b,c).
A. The Determination Below was Made in Violation of
the Rights of the Petitioners to an Impartial Tribunai
Because the Justice who Authored the Opinion had
Prejudged the Determining Issue and had an Interest
in the Outcome of the Case.
This Court has recognized that the most basic protection of
due process is an impartial tribunal. Jn re Murchison, 349
U.S. 133, 136 (1955).
In Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986),
this Court vacated a civil judgment by the Alabama Supreme
Court because the justice who authored the court’s opin-
ion should have been disqualified from the case. This
Court began by noting most matters relating to judicial
disqualification do not rise to a constitutional level and are
best left to legislative discretion, and that general allegations
of judicial bias and prejudice will often be insufficient to
require disqualification on constitutional grounds. Due pro-
cess becomes implicated, and disqualification is then man-
dated, only when specific facts indicating bias are presented
“which would offer a possible temptation to the average. . .
judge to. . . lead him not to hold the balance nice, clear and
true.” Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 822
Safeguarding the Litigant’s Constitutional Right to a Fair and Impartial
Forum: a Due Process Approach to Improprieties Arising from Campaign
Contributions from Lawyers, 86 Mich. L. Rev. 382 (1987).
iceman iil
1]
(1986), quoting Ward v. Village of Monroeville, 409 U.S. 57,
60 (1972).
Justice Rose should have been disqualified from this case
because he clearly prejudged the dispositive issue before he
authored the opinion vacating petitioners’ judgment. In its
order denying the motion to disqualify, the majority quoted
from the minutes of the committee considering the legislative
re-definition of ‘fair market value’ in condemnation cases and
then from Justice Rose’s rendition of the events. According to
Justice Rose, he was called by several state legislators who
informed him the legislature would hold hearings to “see if a
better definition of ‘fair market value’ could be achieved.”
Justice Rose acknowledged informing the legislators that they
had the power to redefine the term, and he did not think any-
one would be offended. According to Justice Rose he “gave
no advice to the legislators and did not defer to them, other
than to acknowledge that they had the power to redefine ‘fair
market value.’ ” App. 25a.
In denying petitioners’ motion to disqualify Justice Rose,
the majority held that the conversations between Justice Rose
and the legislators did not constitute an advisory opinion
(prohibited by the state constitution) and did not indicate the
prejudgment of any issue in this case: “Justice Rose simply
indicated that the legislature had the power to redefine the
definition of ‘value’ and he did not think the court would be
offended.” App. 25a. Whether the legislature had the power
to act as Justice Rose had opined it could was the primary
issue on appeal. Nonetheless, Justice Rose was permitted to
Participate in the appeal below and author the opinion which
reversed petitioners’ judgment of nine million dollars. In that
opinion, Justice Rose held that:
The county argues that the district court committed
reversible error by giving the jury an erroneous instruc-
tion on the definition of fair market value. Specifically,
the county contends that jury instruction no 12 was erro-
neous because the “highest price” standard, which the
12
district court adopted from Wheeler v. State, Department
of Transp., 105 Nev. 217, 773 P.2d 728 (1989), had been
specifically disapproved by the legislature in 1993 when
it amended NRS 37.009. We agree. Moreover, to the
extent that NRS 37.009(6) contradicts Wheeler, we
explicitly overrule Wheeler on this issue.
In 1993, the legislature amended NRS 37.009 man-
dating that the “most probable price” standard be used to
define fair market value in condemnation actions. . . .
This amendment was intended to supersede this court's
decision in Wheeler and prohibit the use of the “highest
price” standard to define fair market value in condem-
nation actions. See id.
In the case at bar, the district court blatantly ignored
this legislative directive be adopting the “highest price”
definition in Wheeler because it found that the 1993
amendment to NRS 37.009 was an unconstitutional exer-
cise of the legislature’s authority. The district court erred
in making this finding.
NRS 37.009 is constitutional. App. S5a-6a.
Thus, the opinion which Justice Rose authored was con-
sistent with his earlier statements to the legislators acknowl-
edging their power to change the judicial standard under
which compensation to landowners had been set judicially.
Justice Rose’s opinion in both instances was not supported in
law.’ In any event, it is clear that prior to rendering his deci-
' The County admitted on appeal that “[i]t does indeed appear to
be the law that the determination of the amount of compensation to which
the landowner is entitled is exclusively a judicial function”. Appellant's
Reply Brief, page 7. This admission by the County was in direct conflict
with the opinion expressed by Justice Rose to the legislators as well as
his opinion in this case, but was necessary under the clear uniform body
of law holding the ascertainment of the amount of compensation is a judi-
cial function which cannot be abridged by the legislature. Seaboard Air
Line Ry. Co. v. United States, 261 U.S. 299 (1923). The amount of com-
pensation to which a landowner is entitled in a condemnation action had
been held by the Nevada Supreme Court, in all prior opinions, to be an
13
sion in this case Justice Rose was firmly committed to a posi-
tion on this issue. Having assured members of the legislature
that they should “feel free” to redefine “fair market value”
exclusively judicial function and one which “no legislature can diminish
by one jot”. State of Nevada v. Campbell, 80 Nev. 23,32, 388 P.2d 733,
737-738 (1964); Virginia & Truckee R.R. Co. v. Henry, 8 Nev. 165, 171-
172 (1873).
In Milchem Inc. V. District Court, 84 Nev. 541, 445 P.2d 148 (1968),
the court considered state statutes permitting the private condemnation
of unimproved land for mining purposes. The statutes provided for the
payment to the landowner of the value of the land, exclusive of the value
of the minerals. The court determined the act of the State legislature to
be unconstitutional. In so doing, the court relied upon Board of Directors
v. Morledge, 332 S.W. 2d 822, 829 (Ark.1960). There, the court held
invalid a legislative act which diminished the compensation to which
landowners are entitled in condemnation cases from the compensation
previously set by the judiciary.
Another court that cited Morledge, supra. was the Supreme Court of
Ohio. In Preston v. Rappold, 178 N.E. 2d 787 (Oh. 1961), that court con-
sidered a statute that required juries in condemnation actions to find and
ASSESS Separate verdicts upon each claim for compensation and damages.
The court declined to invalidate the statute because it was merely pro-
cedural in nature. In so doing the court stated:
It is universally conceded that the amount of compensation to be
paid an owner for the land which has been taken from him by exer-
cise of the power of eminent domain is a judicial question and can-
not be decided by the legislature.
While the legislature has been held to possess a limited right to
provide for certain criteria to be used in the determination of the
compensation, it has become settled that the ultimate power to
determine such question lies with the judiciary. 178 N.E. 2d 790.
The legislative history of the amendment confirms that the sole pur-
pose of the bill was to decrease the amount of just compensation awarded
to landowners in jury trials. In his opinion below, Justice Rose acknowl-
edged that motive and further acknowledged that petitioners and other
landowners will receive lesser compensation under the “most probable
price” definition. The result is then logically and legally inescapable. The
amendment of the definition of “fair market value” by the legislature did
not concern procedure or any other matter properly within the legislative
realm in condemnation cases. Instead, the sole purpose and effect of the
amendment went right to the core of the judicial function in condemna-
tion cases—the determination of the amount of just compensation.
14
and that the court “does not have a problem” with their doing
so, it would have been extremely difficult for Justice Rose to
not follow through with his assurances on behalf of the court
on this issue and hold as he did below. This Court has held
that the consideration of whether due process requires the
disqualification of a judge depends upon circumstances and
relationships between the judge and the facts of the case. /n
Re Murchison, 349 U.S. 133 (1955). There, this Court held if
a judge has a personal interest (including a non-pecuniary
interest) in the outcome of a case because he has previously
committed himself to a position, due process requires
disqualification.*
An analysis of the issue must consider each particular sit-
uation “under a realistic appraisal of psychological tendencies
and human weakness” to determine whether there is “such a
risk of actual bias or prejudgment” that the participation of
the adjudicator “must be forbidden if the guarantee of due
process is to be adequately implemented.” Withrow v. Larkin,
421 U.S.35, 47 (1975).
B. Two of the Members of the Four Judge Tribunal
Below, Particularly the Author of the Opinion, Har-
bored Extreme and Repeatedly Articulated Prejudice
Stemming from an Extrajudicial Political Source
Against Counsel for Petitioners Which Denied Peti-
tioners Their Right to an Adjudication Before an
Unbiased Court.
The Nevada Supreme Court’s denial of petitioners’ dis-
qualification motions, as well as all of its recent decisions on
disqualification issues, is in direct conflict with the principles
which underlie this Court’s decisions holding that due process
requires an impartial tribunal.
8
The salaries and pensions of the Justices of the Supreme Court
are determined by the legislature. NRS 2.050, NRS 2.060.
Ne eee te ec a et GEES Skate, Tee eh TT eee ee TOR eee Se ee ree
15
In only one case has the Nevada Supreme Court disquali-
fied a participant in one of its proceedings. In People for the
Ethical Treatment of Animals vy. Berosini, 111 Nev. 431, 894
P.2d 337 (1995), a judgment against an anime; rights orga-
nization was reversed on appeal. Following that decision the
respondent moved for reconsideration alleging that a district
court judge who sat on the appeal by designation and partic-
ipated in the decision should have been disqualified because
the judge sat on the advisory board of an animal foundation
devoted to pet care and sterilization.
The court granted reconsideration and disqualified the
judge from the case. The Court held that the Nevada Code of
Judicial Conduct provides substantive grounds for disquali-
fication. Significantly, the court also held that the test as to
whether a judge’s impartiality might reasonably be questioned
is an impartial one, and ignores the judge’s own view of his
impartiality. In determining whether a judge can objectively
be deemed impartial, “this court will exercise its independent
judgment of the undisputed facts.” P.E.T.A.. 11] Nev. at, 894
P.2d at 435-436. Under that standard, the Court held:
Nonetheless, we conclude that we must grant the
motion to disqualify Judge Lehman to avoid even the
appearance of impropriety and to promote public confi-
dence in the integrity of the judicial process. We con-
clude that a reasonable person, knowing all the facts,
would harbor reasonable doubts about Judge Lehman’s
impartiality. . .
Having concluded we must grant the motion to dis-
qualify Judge Lehman, we further conclude that we must
grant rehearing and withdraw our prior opinion in this
matter. Although Judge Lehman’s vote in this case could
be considered mere surplusage because three other jus-
tices of this court signed the opinion, we conclude that
the role that collegiality plays in appellate decisions
mandates full reconsideration of this matter. See Aetna
Life Insurance Co. v. Lavoie, 475 U.S. 813. 829-31, 831-
16
33 (1986) (Brennan, J., concurring, and Blackmun and
Marshall, JJ. concurring) Further it would be inconsis-
tent with the goals of the NCJC to require certain stan-
dards of behavior from the judiciary in the interest of
avoiding the appearance of impropriety but then allow a
judge’s ruling to stand when those standards have been
violated.
P.E.T.A., 111 Nev. at 437, 894 P.2d at 438.
In one isolated instance the court adopted the objective
standard of review and disqualified a judge because of his
non-judicial membership in a charity which was sympathetic
to domestic animals to avoid the appearance of impropriety
and to promote public confidence in the judiciary. P.E.T.A.,
supra. Otherwise the court has consistently failed to protect
the rights of litigants—both civil and criminal—to an impar-
tial tribunal. The court has refused in all instances to dis-
qualify judges either because they are politically beholden to
a party or lawyer or because they believe a party or lawyer to
be antagonistic to their political careers.°
In each case in which litigants before the Nevada Supreme Court
have claimed bias from judicial election activity, the court has refused
disqualification. Nevius v. Warden, 114 Nev. 664, 960 P.2d 805 (1998)
cert denied 119 S.Ct. 878, 142 L.Ed 778 (1999); State Dept of Transp. v.
Barsy, 113 Nev. 709, 941 P.2d 969 (1997); City of Las Vegas v. Hecht,
113 Nev. 632, 940 P.2d 127 (1997); City of Las Vegas v. Hecht, 113 Nev.
644, 940 P.2d 134 (1997); Hogan v. Warden, 112 Nev. 553, 916 P.2d 805
(1996) cert denied 519 U.S. 944 (1996) (O’Connor and Ginsburg JJ., dis-
senting); Martin v. Beck, 112 Nev. 595, 915 P.2d 898 (1996); Snyder v.
Viani, 112 Nev. 568, 916 P.2d 170 (1996) cert denied 519 U.S. 963
(1996); Valladares v. Second Judicial Dist. Ct., 112 Nev. 79, 910 P.2d 256
(1996); Ainsworth v. Combined Ins. Co. of America, 105 Nev. 237, 774
P.2d 1003 (1989) cert denied 493 U.S. 958 (1989); Matter of Dunleavy,
104 Nev. 784, 769 P.2d 1271 (1988). The lengths to which the Nevada
Supreme Court has gone in denying disqualification of its members were
described by a Nevada federal bankruptcy judge in an article in the
state’s bar journal. Goldwater, Disqualification of Justices of the Supreme
Court of Nevada, 6 Apr. Nevada Lawyer 26 (1998).
17
In denying petitioners motion to disqualify Justice Rose,
the majority ignored its holding in P.-E.T.A., supra. Rather
than employing an objective standard on undisputed facts, the
court adopted Justice Rose’s allegations and rejected those of
counsel.'® The court did so by simply adopting its holding in
its prior decision in City of Las Vegas v. Hecht, 113 Nev 644,
940 P.2d 134 (1997), in which the court’s statement of facts
adopted many of Justice Rose’s allegations against counsel
which she had denied and upon which she had unsuccessfully
sought an evidentiary hearing. App. 22a. In petitioners’
motion to disqualify Justice Rose, counsel again unsuccess-
fully asserted a due Process entitlement to a hearing before
unchallenged justices, as provided by state statute. NRS
1.225(4).
It is clear in this case that Justice Rose believed counsel for
the petitioners to be a political threat, both to himself and to
Justice Young. The record reveals the challenged justices’
preoccupation concerning the funding of both their own and
their opponent’s judicial campaigns. Repeated references to
counsel’s campaign contributions to Justice Young’s opponent
have been made by Justice Rose in reported cases in which
counsel was not a party. Nevius v. Warden, 114 Nev. 664, 960
P.2d 805 (1998), cert. denied 119 S. Ct. 878, 142 L.Ed 2d 778
(1999); Del Papa v. Board of Regents, 114 Ney. 388, 956 P.2d
770 (1998).
Justices Rose and Young focused upon counsel’s donations
to Justice Young’s Opponent in their dissent in O’Brien vy.
State Bar of Nevada, 114 Nev. 71, 952 P.2d 952 (1998).
There, an unsuccessful applicant for a State Bar appointment
to the Nevada Judicial Selection Commission petitioned the
court to vacate the appointment of counsel of record for the
petitioners here to the Commission. One of the members of
the Board of Governors of the State Bar was Justice Young’s
'0 It was clear to Justice Maupin, who dissented from the denial of
Petitioners’ motion to disqualify Justice Rose, “from [his] own review of
the record” that Justice Rose should be disqualified. App. 39a-4(a.
18
opponent to whom counsel had given the campaign contri-
butions which were the subject of the petitioners’ motion to
disqualify Justice Young from this case. The majority held
that the campaign contribution did not preclude the donee
from participating in a non-judicial appointment of counsel.
In their dissent, Justices Young and Rose stated that the donee
board member had received contributions from counsel for the
petitioners which were so large that they created an appear-
ance of impropriety. They concluded that Justice Young’s for-
mer opponent should have been disqualified from voting on
counsel's appointment. The justices noted that raising money
for judicial campaigns is an integral part of the election pro-
cess and judicial candidates “are thankful for all contributions
made by lawyers, large or small. However, there does come a
point when the amount of money contributed creates an
appearance of impropriety, especially when the judge is rul-
ing or voting on an issue critical to the lawyer contributor.”
O’Brien v. State Bar, 114 Nev 71, 79, 952 P.2d 952, 957-958
(1998).
Both Justices Rose and Young recognized that substantial
contributions to judicial campaigns can warrant disqualifi-
cation when the beneficiary of the contributions was an oppo-
nent of Justice Young’s and when the result would be
disadvantageous to counsel of record in this case. Yet in peti-
tioners case there was no acknowledgment by the majority
that substantial contributions to a judge’s opponent give rise
to a due process violation when the judge determines a case
in which the contributor to the opponent has a substantial
financial interest. The temptation for a judge to punish a per-
ceived political adversary is equally as probable as is the
temptation to reward a political supporter. '' Both give rise to
1 See; Withrow v. Larkin, 421 U.S. 35, 47 (1975) (probability of
actual bias too high to be constitutionally permissible if adjudicator has
been target of personal criticism by party). In the context of contempt
proceedings, this Court has placed due process limitations upon a judge's
power to punish contemptuous behavior to which the adjudicator has
been subjected. Taylor v. Hayes, 418 U.S. 488 (1974); Mayberry v. Penn-
EEE
19
legitimate concerns of bias and prejudice which are objec-
tively predictable and both stem from an extra-judicial source.
Liteky v. United States, 510 U.S. 540 (1994) (in a statutory
disqualification case, most common basis for disqualification
for favorable or unfavorable Predisposition will be found if
source of opinion is extrajudicial source).
The common issue in both disqualification motions filed by
petitioners was that their counsel had provided substantial
assistance to each justice’s political adversaries. Petitioners’
motion to disqualify Justice Rose contained additional facts
establishing extreme animus of extrajudicial origin. In his
Opposition to the disqualification motion, Justice Rose
repeated allegations, including allegations from unrevealed
sources, against counsel which were untrue, and were adopted
by the court without a hearing. Having previously recognized
“the role that collegiality plays in appellate decisions”
P.E.T.A., 111 Nev. at 437, 894 P2q at 438, the majority
aligned itself with Justice Rose and against petitioners, both
in denying their motion to disqualify him and in joining in his
opinion vacating the substantial judgment they had obtained
from a jury. A consideration of the facts and circumstances
Sylvania, 400 U.S. 455 (1971); Ungar v. Sarafite, 376 U.S. 575 (1964).
To the extent that the contempt Cases may be relevant to the issue here.
it should be noted Justice Rose’s accusations against counsel to the press
and in his opposition to the motion to disqualify him in this case were in
large part directly refuted by counsel for the petitioners in her sworn affi-
davit. Rather than holding an evidentiary hearing to resolve the conflicts
between Justice Rose’s claims and those of counsel, the majority adopted
the assertions of Justice Rose. All events claimed by Justice Rose which
evidenced his belief he had been personally abused and criticized by
counsel were in a political, not a judicial, forum. This distinction was
acknowledged by Justice Rose in his affidavit below in which he stated
“I have always considered Laura FitzSimmons an excellent attorney and
advocate before the Nevada Supreme Court. Despite the fact that she has
actively sought to find and support people to defeat me and has engaged
in other personal attacks on me, I have never let her actions bias or prej-
udice my adjudication of the merits of any case in which she has par-
ticipated.”
20
present here, and the direct, personal involvement of Justice
Rose in the events below, mandates a conclusion that peti-
tioners’ rights to due process were violated. Jn Re Murchison,
supra.
VI. CONCLUSION
While this case may present a situation in which judicial
animus against perceived political enemies is extreme, the
effect of state judicial politics upon the due process rights of
parties who appear before judges is a growing problem the
nature of which inhibits the ability of state courts to respond
in a manner which “must satisfy the appearance of justice”.
Offut v. United States, 328 U.S. 11, 14 (1954). This Court
should grant the petition and take this opportunity to define
the constitutional standards applicable nationwide under
which litigants will be more likely to obtain fair decisions
from unbiased courts.
Respectfully submitted,
LAURA WIGHTMAN FITZSIMMONS
Counsel of Record
704 South 9th Street
Las Vegas, Nevada 89101
(702) 733-8877
Counsel for Petitioners
APPENDIX
la
SUPREME COURT OF NEVADA
No. 29477
April 9, 1999
Rehearing Denied Oct. 1, 1999
COUNTY OF CLARK, A Political Subdivision of the State of
Nevada, On Relation of Las Vegas Convention and Visitors
Authority,
Appellant,
—_vV.—
Briant BUCKWALTER; John R. Reese; California Federal Sav-
ings and Loan Association A California Corporation; Tower
Enterprises, A Partnership; Profit Sharing Plan of Roy R.
Valentine, D.D.S., A Professional Corporation; K.W. Houn-
sell; K.W. Hounsell, Inc., A Profit Sharing Trust; Profit
Sharing Plan of Edgar F. Muncsh, D.D.S., A Professional
Corporation; Ralph W. Engh and Christine J. Engh, Husband
and Wife,
Respondents.
In a condemnation action, the District Court, Clark County,
Don P. Chairez, J., entered judgment on jury’s award of
$9,090,000 to landowners. County appealed. The Supreme
Court, Rose, C.J., held that the trial court’s error was not
harmless in instructing jury to apply “highest price” standard
2a
rather than “most probable price” standard when determining
fair market value of condemned property.
Reversed and remanded for new trial.
Maupin, J., concurred in the result and filed an opinion.
DICKERSON, DICKERSON, CONSUL & POCKER
and LUKE PUSCHNIG, Las Vegas; Stewart
L. Bell, District Attorney, and Dale E.
Haley, Deputy District Attorney, Clark
County, for appellant.
LAW OFFICES OF KERMIT L. WATERS, AND
LAURA WIGHTMAN FITZSIMMONS, Las
Vegas, for respondents.
OPINION
ROSE, C.J.
Appellant Clark County (the “county”), acting on behalf of
the Las Vegas Convention Authority, filed a condemnation
action seeking two parcels of property located across from the
Las Vegas Convention Center (the “property”). The property
was owned by Briant Buckwalter, John R. Reese, and several
others (the “landowners’”’).
Prior to trial, the landowners filed a motion to define fair
market value as the “highest price” the property would bring
on the open market. The district court granted this motion,
instructing the jury to award the “highest price,” despite the
fact that the legislature in amending NRS 37.009 had defined
fair market value as the “most probable” price.
After an eight-day trial, a jury found that just compensation
for the property was $9,000,000.00. The county appeals, in
; Se gs tiem ana ata iat ads
PP ee Le gS aren: LE ee 2 a Oe PED ste le
3a
Part, because it alleges that the district court committed
reversible error by giving the jury the “highest price” instruc-
tion. We agree, and for the reasons set forth below, we reverse
the district court’s judgment and order and remand for a new
trial.
FACTS
In the early 1980's, the landowners formed a partnership
and purchased the property, which consisted of two parcels
near the Las Vegas Convention Center. Although the property
housed apartment buildings, it was zoned for commercial use,
to include retail, food and beverage, or gaming facilities.
In September 1993, the county adopted a resolution of
“need and necessity” announcing its intention to condemn the
property for expansion of the Las Vegas Convention Center.
After a period of unsuccessful negotiations concerning the
fair market value of the property, in April 1994, the county
filed a condemnation action against the landowners in Clark
County district court. Approximately one month later, the
county gained the right of immediate occupancy of the pron-
erty. After rejecting the landowners’ offer of judgment of
$4,850,000.00, the parties prepared for trial.
Prior to trial, the district court held several hearings on the
parties’ motions in limine, including the landowners’ motion
to define fair market value. In this motion, the landowners
argued that the fair market value of the property should be
defined as the “highest price” the property would bring on the
open market. The landowners further argued that the legis-
lature’s enactment of NRS 37.009, defining fair market value
as the “most probable price,” was unconstitutional as a vio-
lation of the separation of powers because the legislature had
no authority to deflate just compensation. In contrast, the
county argued that fair market value should be defined as the
“most probable price” the Property would bring on an open
market pursuant to NRS 37.009. The district court granted the
4a
landowners’ motion, adopting the “highest price” definition
of fair market value.
On April 8, 1996, the matter proceeded to trial. Each party
presented experts who testified on the market value of
the property. The landowners’ experts testified that the “high-
est price” of the property was between $9,017,000.00 and
$9,769,000.00, while the county’s expert testified that the
“most probable price” of the property was $4,560,000.000.
After an eight-day trial, the jury determined by special ver-
dict that the just compensation for the property was
$9,000,000.00 as of April 26, 1994, and $9,769,00.00 as of
April 8, 1996. The district court then concluded that April 26,
1994, was the appropriate valuation date and awarded the
landowners $9,000,000.00.
On May 13, 1996, the county filed a motion for a new trial.
In a post-trial hearing following the denial of the county’s
motion for a new trial, the district court stated that the “high-
est price” definition of fair market value was “the one legal
issue that we [the county] really ha[d] in arguing before. . .
the Nevada Supreme Court.” Thereafter, the county filed this
timely appeal.
DISCUSSION
The county argues that the district court committed
reversible error by giving the jury an erroneous instruction on
the definition of fair market value.' Specifically, the county
The county further argues that reversal is warranted because the
district court erroneously: (1) required testimony on two different val-
uation dates; (2) admitted into evidence the landowners’ “highest and
best use” of the property;(3) permitted the landowners to reopen their
case-in-chief; (4) excluded evidence regarding the landowners’ opinions
of the property’s value; (5) excluded evidence regarding the 1984 and
1988 purchase prices of the property; and (6) refused to allow the county
to present rebuttal evidence. Having reviewed the record and having had
the benefit of oral argument of counsel, we conclude that the county’s
arguments lack merit because although errors were committed by the dis-
trict court, these errors were harmless as they did not affect the sub-
stantial rights of the parties. See NRCP 61.
eae err ve ere ra
Sa
contends that jury instruction no. 122 was erroneous because
the “highest price” standard, which the district court adopted
from Wheeler v. State, Department of Transp., 105 Nev. 217,
773 P.2d 728 (1989), had been specifically disapproved by the
legislature in 1993 when it amended NRS 37.009. We agree.
Moreover, to the extent that NRS 37.009(6) contradicts
Wheeler, we explicitly overrule Wheeler on this issue.
In 1993, the legislature amended NRS 37.009 mandating
that the “most probable price” standard* be used to define
fair market value in condemnation actions. See NRS
37.009(6); Hearing on A.B. 80 Before the Assembly Comm.
on Judiciary, 67th Leg. (Nev., Mar. 29, 1993). This amend-
ment was intended to supersede this court’s decision in
Wheeler and prohibit the use of the “highest price” standard
to define fair market value in condemnation actions. See id.
In the case at bar, the district court blatantly ignored this
legislative directive by adopting the “highest price” definition
>
. The district court gave the following jury instruction defining
market value:
The fair market value of property is the highest price on the date
of valuation that would be agreed to by a seller who is willing to
sell, but who is under no Particular or urgent necessity for so
doing, and who is not obligated to sell, and a buyer who is
ready, willing, and able to buy, but who is under no particular
necessity for so doing, each dealing with the other with full
knowledge of all the uses and purposes for which the property
is reasonably adaptable and available.
(emphasis added).
. NRS 37.009(6) provides, in relevant part, that:
“Value” means the most probable price which a property would
bring in a competitive and open market under the conditions of
a fair sale, without the price being affected by undue stimulus.
whereby the sale is consummated on a specified date and the
litle to the property is passed from the seller to the buyer. ...
(emphasis added).
The “most probable price” standard was adopted from the fed-
eral definition of fair market value in condemnation actions. See 12
C.F.R. § 34.42 (1998).
6a
in Wheeler because it found that the 1993 amendment to NRS
37.009 was an unconstitutional exercise of the legislature’s
authority. The district court erred in making this finding.
NRS 37.009 is constitutional.
This court has held that the right to just compensation for
private property is a right guaranteed by the United States and
Nevada Constitutions that cannot be impaired by statute.
Alper v. Clark County, 93 Nev. 569, 571 P.2d 810 (1977).
Moreover, this court has held that the determination of just
compensation is exclusively a judicial function. Clark County
v. Alper, 100 Nev. 382, 394, 685 P.2d 943, 951 (1984). These
holdings, however, de not support the proposition that the
legislature lacks authority to make laws in the area of eminent
domain. Indeed, the legislature, as the law- making body of
the state of Nevada, has such authority provided it acts within
constitutional limits. See Galloway v. Truesdell, 83 Nev. 13,
422 P.2d 237 (1967). We see nothing unconstitutional in
requiring that landowners receive the “most probable price”
as just compensation for their land. Accordingly, we conclude
that NRS 37.009 is a constitutional exercise of the legisla-
ture’s authority, and that the district court erred in concluding
otherwise.
The district court’s error was not harmless.
The landowners argue the district court’s erroneous instruc-
tion was harmless error because the “highest price” as set
forth in Wheeler and the “most probable” price pursuant to
NRS 37.009 are synonymous. We disagree. We conclude that
these two terms have different meanings, and that the district
court committed reversible error by giving the “highest price”
instruction because it likely affected the jury’s verdict. See
Horvath v. Burt, 98 Nev. 186, 643 P.2d 1229 (1982) (reversal
is warranted where a different result might have been
obtained in the absence of the erroneous instruction).
First, there is a clear distinction in the plain meaning of the
terms “most probable” and “highest” price. “Probable” price
is defined as the price “likely to occur or be; that can reason-
ably but not certainly be expected.” Webster’s New World
Ta
Dictionary 1072 (3d ed.1988). The “highest” price is defined
as “greater in size, amount, degree, power or intensity etc.
than usual.” Id. at 636. These definitions are far from syn-
onymous. A hypothetical exemplifies this difference: one per-
SOn appraises a piece of land at $1000.00, while five others
value the land at $800.00. Based on these appraisals, the high-
est price of the land is not the same as the most probable price
because the highest appraisal is $200.00 more than the “most
probable” or likely appraisal value of $800.00. Thus, the plain
meaning of “most probable” and “highest” supports the
Proposition that these terms are different.
Second, even if this difference were somehow ambiguous,
this court has held that it will presume a substantial change in
the law when a statute is amended to change a definition
previously used. See Clark County v. State, Equal Rights
Comm’n, 107 Nev. 489, 491, 813 P.2d 1006, 1007 (1991),
With regard to NRS 37.009, the legislature amended this
Statute to change the definition of fair market value from
“highest price” to the “most probable price.” Because a
Statute was amended to change a definition previously used,
this court will presume a substantial change. Accordingly, the
“most probable” price is a substantia] change from the “high-
est price,” and thus the terms are not synonymous.
Third, in the case at bar, there was a manifest practical dif-
ference between the “most probable” price and “highest
price” because the incorporation of the “highest price” stan-
dard resulted in a vast $5,000,000.00 disparity in the value
of the property. The landowners’ experts testified that the
“highest price” of the land was between $9,017,000.00 and
$9,769,000.00, based in part on their evaluation of the “high-
est and best use” of the land as a hotel casino. In contrast, the
county’s expert testified that the “most probable price” of the
land was $4,560,000.00, based in part on his evaluation of the
land’s “most probable” use as a retail/restaurant facility.
Moreover, the county’s expert testified that it was not prob-
able that a casino would be built on the land based on the
small size of the parcel and an economic feasibility analysis
8a
that suggested the parcel was ill-suited for a casino. Using the
“highest price” instruction probably cost the taxpayers more
than $5,000,000.00 in this case because the landowners’ val-
uation was based on a casino being built on the property, a
scenario that was not probable. Thus, because of the
$5,000,000.00 disparity in valuation of the property resulting,
in part, from the use of the “highest price” instead of the
“most probable price” standard, we conclude that the terms
are not synonymous.
Fourth, the district court itself noted a manifest practical
difference between the “highest price” and “most probable
price” when it stated on the record that the “highest price”
jury instruction affected the jury’s verdict. Moreover, the dis-
trict court noted its own error when it stated on the record that
the county had a valid issue to argue before this court, and if
the district court had this case to try again, it would have
allowed the “most probable price” instruction in a split ver-
dict format. Thus, even the district court recognized a dis-
tinction between the two instructions and the fact that the
terms were not synonymous.
Finally, the legislative history of NRS 37.009 supports our
conclusion that the “highest price” and the “most probable
price” are not synonymous. The legislature’s rationale for
eradicating the use of the “highest price” standard was to
prevent misuse and abuse that occurred when:
attorneys for condemnees, and their specially selected
expert witnesses, . . . used the phrase ‘highest price’ to
encourage jurors to speculate in terms of the highest
price conceivable, however improbable. The resultant
findings of value [by speculating juries were] out of
touch with the existing market and reality.
Hearing on A.B. 80 Before the Assembly Comm. on Judi-
ciary, 67th Leg. at Ex. E (Nev., Jan. 29, 1993) (emphasis
added).
In the case at bar, the landowners misused and abused
the “highest price” instruction in their closing argument to
9a
justify the five million-dollar difference in value when they
argued:
Ladies and gentlemen, what I’d like to talk to you about,
if I could for a second, is when you look at Mr. Morse’s
appraisal [Clark County’s expert] you are going to find,
among other things, that he didn’t use this highest price
definition as the court has told you. And I told you in the
opening statement that it would be the highest price. He
used the most probable price.
Now, ladies and gentlemen, you don’t need to be a rocket
Scientist to know that those two words have a different
meaning, most probable and highest. And he says, “Oh,
they’re the same thing to me.” Do you believe that? I
don’t believe that.
It’s more probable that somebody would have $100 to
pay for a piece of property than it would be for some-
body for [sic] have $1,000.00. There would be more peo-
ple that could do that. And so that’s their way [Appellant
Clark County] of coming down to this $5 million. That’s
one of their ways of doing it by using the term “most
probable.”
(emphasis added). In other words, the landowners used the
distinction in meaning between the “highest price” and the
“most probable price” standard to justify the $5,000,000.00
difference in the appraisals of the land and advocate for the
higher price.° Ironically, the landowners’ closing argument
exemplifies the exact type of misuse and abuse of the Wheeler
instruction that the legislature was trying to eradicate by
changing the law.
’ We note that at the district court level the landowners argued
that the two standards, “highest price” and “most probable price,” were
very different. On appeal, however, the landowners argue that the two
Standards are synonymous. This court, however, has often said that a
party cannot change positions from that asserted before the district court.
See Powers v. Powers, 105 Nev. 514, 516, 779 P.2d 91, 92 (1989)
Tupper v. Kroc, 88 Nev. 146, 151, 494 P.2d 1275, 1278 (1972).
10a
In sum, we conclude that the county was entitled to have
the jury properly instructed on NRS 37.009—that the fair
market value of the property was the “most probable price.”
See Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271
(1983) (a party is entitled to have the jury instructed on the
law applicable to each claim). Therefore, the district court
erred in giving the “highest price” instruction to the jury
because this instruction was contrary to NRS 37.009. The dis-
trict court’s error warrants reversal because the erroneous
instruction likely yielded a different, inflated verdict that
would likely not have been awarded had the most probable
price instruction been used.
Accordingly, we reverse the district court’s judgment and
order and remand this case for a new trial where the “most
probable price” instruction is given, as required by law.°
YOUNG and SHEARING, JJ., concur.
MAUPIN, J., concurring.
I concur in the majority’s result, albeit for alternate reasons.
Respondent’s contention that NRS 37.009 is unconstitu-
tional lacks merit. The state legislature is within its authority
to enact legislation and to amend or repeal its statutory law
unless the legislative action is specifically precluded by con-
stitutional limitations. Moreover, “statutes are to be construed
in favor of the legislative power.” Galloway v. Truesdell, 83
Nev. 13, 20, 422 P.2d 237, 242 (1967) (citing In the Matter of
Platz, 60 Nev. 296, 108 P.2d 858 (1940)). As the Nevada Con-
stitution does not preclude this legislation, the presumption of
legislative authority prevails. Here, the legislation simply
provides a reasonable definition of the scope of recovery in
* This matter was submitted for decision prior to expansion of the
court from five to seven justices on January 4, 1999; only those justices
remaining on the court who previously heard this matter participated in
the decision.
a ge ake ae a Rae SB ei
a ee a ee Te
lla
condemnation actions. Although it may be argued that the leg-
islature’s statement of public policy on these issues should be
revisited, that policy is rationally based for the purposes of
constitutional analysis. Any contention with this legislative
policy should be addressed to the legislature.
Thus, I agree with the majority that the trial court was
wrong in its conclusion that NRS 37.009 is unconstitutional.
I depart from the majority in its conclusion that NRS 37.009
effects a legislative repealer of Wheeler v. State, Department
of Transportation, 105 Nev. 2] 7, 773 P.2d 728 (1989).
Although the enactment of NRS 37.009 was intended to do
just that, the language chosen by the legislature does not
effect this purpose. The statute mimics the Wheeler holding,
only changing the term “highest price” to “most probable
price.” Contrary to the majority, I conclude that the terms are
synonymous.’ Thus, the jury should have been given two
Appellant’s own expert witness/appraiser testified that the value
of the property would be the same under either the “most probable price”
standard or the “highest price” standard. During trial, the following
exchange occurred between the County’s lawyer, Dale Haley (“Haley”),
and the County’s appraiser, Tim Morse (“Morse”’):
HALEY: Could you also give your definition of fair market
value. . .?
MORSE: Yes. Market value definition. . . . That is—it’s the
most probable price which a Property would bring in an open
and competitive market under all conditions to a fair sale with-
out the price being affected by undue stimulus whereby the sale
is consummated on a specific date and the title to the property
is passed from the seller to buyer under the following condi-
tions: That the buyer and seller are acting prudently and know!1-
edgeably, that the buyer and seller are typically motivated, that
the buyer and seller are wel] informed.
Also, that there’s a reasonable period of time to allow the prop-
erty for exposure to the open market, and that payment is made
in U.S. Dollars in cash. Or other precisely related terms similar
to cash, and that the sale price represented the normal consid-
eration for the property and there are no special or creative type
financing or other concessions that would be granted in the
price.
(footnote continued)
12a
instructions on fair market value, one containing the statutory
language, and a second defining most probable price as the
“highest price” on the date of valuation that would be agreed
to by a willing seller and a motivated buyer under normal
market conditions. Here, the instruction given by the trial
court would have, in my view, been appropriate if accompa-
nied by the statutory language.
I take this position because the industry, that is persons in
the business of appraising real estate, do not seem to regard
the terms “highest price” and “most probable price” as com-
prising anything other than a distinction without a difference.
See note 1. This was certainly the case with regard to the
appraiser’s testimony in Wheeler, and with regard to the
county’s appraiser below.
The problem at trial was created by the failure to instruct
on the statute and, later, the forensic approach taken during
closing argument with regard to the instruction’s definition of
fair market value by counsel for the landowners. Counsel did
argue that it would not take a “rocket scientist” to tell the
manifest difference between the terms used in the statute and
the terms used in the instruction. Given the trial court’s
incomplete definition of fair market value, counsel’s rhetoric
comparing that definition with the testimony of the county’s
expert was not improper. Had the jury been properly
instructed, the argument would have been in conflict with the
legal doctrine presented to the jury.
HALEY: Have you ever heard the term highest price used in
relation to fair market value definition? Have you ever heard of
that being used?
MORSE: Yes.
HALEY: Does it make any difference whether you use most
probable price or highest price in your analysis?
MORSE: No. It makes no differences in my opinion.
HALEY: Does the most probable price result in the highest
price?
MORSE: Yes, it does.
HALEY: That's how the market operates; is that correct?
MORSE: Yes, it does.
Sell ha tangcteinaielst See pcan eke ee acd Comms oe ct ce Ree oem
13a
Here, the landowners successfully fought for an instruction
defining fair market value that did not include the Statutory
language and then attempted to draw a distinction between
“highest price” and “most probable price.” This Strategy,
which is at odds with the views stated in this separate opin-
used the statutory language in forming his opinion, although
being of the further opinion that the two terms were synony-
mous.
The trial court’s adoption of the landowners’ position with
regard to fair market value enabled the landowners to empioy
the above Strategy. However, the “rocket Scientist” argument
improperly expanded upon the “highest price” instruction that
was given. Had the landowners’ closing argument been
premised on the assumption that the terms “highest” and
“most probable” were Synonymous, the failure to instruct on
the statute would arguably have been harmless error. Thus, it
was the instruction and the arguments made in connection
with the instruction that form the need for a second trial
below.
While counsel’s final argument demonstrates an attempt to
draw a distinction between the “highest price” and “most
probable price” in this context, the appraisal industry does not
draw such a distinction. If juries are instructed as I suggest,
and if jury arguments are kept consistent with the instructions,
just compensation to all Parties will be realized. For example,
on re-trial, the county will certainly be free to argue that the
most probable price for the Subject property based upon its
highest and best use should not include speculative casino
development.’
l4a
The trial court’s ruling on this issue, which facilitated the
tactical approach of counsel during closing argument, com-
pels reversal. See Horvath v. Burt, 98 Nev. 186, 643 P.2d
1229 (1982) (reversal is warranted where different result
might have been obtained in the absence of the erroneous
instruction).’
3
With regard to the other assignment of errors mentioned in note
1 of the majority opinion, I do have some individual comments. First,
under no circumstances should the jury have been required to find
two sets of damage figures based upon two different valuation dates.
This case went to trial within the two-year period provided under NRS
37.120. While the trial court clearly erred in this regard, this error was
harmless. Second, while exclusion of the evidence of the original pur-
chase price paid by the landowners may have been within the court’s dis-
cretion, this was certainly a close call under these circumstances. Its
probative value as to a current valuation would easily have been dealt
with on cross-examination of the experts. Third, the exclusion of the
landowners’ views on valuation stated in correspondence between
counsel was certainly proper because the letters were part and parcel of
settlement negotiations.
15a
IN THE SUPREME COURT OF THE STATE OF NEVADA
No. 29477
Filed October 1, 1999
COUNTY OF CLARK, A POLITICAL SUBDIVISION OF THE
STATE OF NEVADA, ON RELATION OF LAS VEGAS CONVEN-
TION AND VISITORS AUTHORITY,
Appellant,
—vs.—
BRIANT BUCKWALTER: JOHN R. REESE; CALIFORNIA FED-
ERAL SAVINGS AND LOAN ASSOCIATION, A CALIFORNIA
CORPORATION: TOWER ENTERPRISES, A PARTNERSHIP:
PROFIT SHARING PLAN OF ROY R. VALENTINE, D.D.S.,
A PROFESSIONAL CORPORATION: K.W. HOUNSELL; K.W.
HOUNSELL, INC., A PROFIT SHARING TRUST: PROFIT
SHARING PLAN OF EDGAR F. MUNCSH, D.D.S., A PROFEs-
SIONAL CORPORATION; RALPH W. ENGH AND CHRISTINE J.
ENGH, HUSBAND AND WIFE,
Respondents.
ORDER DENYING PETITION FOR REHEARING
We reject respondents’ contention that the Court enacted a
standard of compensation based upon “most probable” use. It
is perfectly permissible for any party to a condemnation
action to argue probability of use of the parcel being taken
through eminent domain. The jury was properly instructed in
l6a
that regard below and that the “highest and best” use must be
reasonable, probable, legal and financially feasible. However,
valuations must reflect “the most probable price” based upon
factors affecting market value including the taken parcel’s
“highest and best” use. Issues concerning highest and best use
and the most probable price are fact based and, thus, are to be
left for determination by a jury or a court sitting without a
jury.
In our opinion in this case, we did not intend to imply that
the landowner’s evidence at trial was insufficient as a matter
of law to support a valuation based upon casino development.
The use to which the real property can be put is relevant if it
addresses the factors set forth in the definition of “highest and
best use.” These evidentiary determinations should be made
by the district court,
The Petition is DENIED.
ROSE Py et
Rose
MAUPIN eet
Maupin
SHEARING Reet *
Shearing
cc: Hon. Mark R. Denton, District Judge
Clark County District Attorney
Dickerson, Dickerson, Consul & Pocker
Law Office of Kermitt L. Waters
Clark County Clerk
17a
YOUNG, J., concurring:
I agree that a rehearing of the appeal is not warranted. |
write separately, however, to comment upon petitioners’ fla-
grant disregard of NRAP 40.
NRAP 40(c)(1) provides that “[mJatters presented in the
briefs and oral arguments may not be reargued in the petition
for rehearing... .” Despite this explicit mandate, peti-
tioners raise numerous contentions in the petition for rehear-
ing that have already been briefed, Orally argued, and
carefully considered by this court.
Specifically, petitioners reargue the issues of whether the
legislature had authority to amend NRS 37.009 and whether
Chief Justice Rose should have been disqualified because
he had allegedly prejudged the key issue in this case. In
requesting that this court revisit issues already decided. peti-
tioners cause the expenditure of valuable and limited judicial
resources without justification. This waste of the taxpayers’
dollars is unacceptable. I refuse to sit idly by without com-
ment while petitioners violate NRAP 40 in such blatant dis-
regard of this court’s underlying policy of judicial economy.
NRAP 40(c)(1) further provides that rehearing is warranted
when this court has misapprehended a material issue of law or
fact. Petitioners ignore the materiality requirement set forth
in this subsection. The petition for rehearing is riddled with
bare-boned assertions that this court misapprehended law and
fact, without reference to how these misapprehensions are
material. With reckless accusations and an irresponsible
bandying about of disparaging terms, petitioners’ arguments
lack the substance necessary to establish their case.
This fact is revealed through several examples. First, peti-
tioners allege that one of their €xpert’s valuation of the land
was $8,265,895.00, rather than $9,000,000.00. Second, peti-
tioners imply that 12 C.ER. § 34.42 is not used in federal con-
demnation actions. Third, petitioners assert that this court’s
Citation to Galloway v. Truesdell, 83 Ney. 13, 422 P.2d 237
(1967), was “far too cavalier.”
18a
In alleging these misapprehensions of fact and law without
reference to their materiality, petitioners again disregard
NRAP 40(c). Moreover, these allegations of misapprehension
of facts and law are unfounded, as our review of the record
revealed expert testimony that the land’s value was over
$9,000,000.00, based in part on its use as a casino.
Likewise, petitioners’ intimation that 12 C.F.R. § 34.42 isa
federal lending statute not used in condemnation cases is false.
In point of fact, the majority of federal courts use the “most
probable” price standard in condemnation actions, as set forth
in 12 C.F.R. § 34.42. See Hearing on A.B. 80 Before the
Assembly Comm. on Judiciary, 67th Leg. (Nev., Mar. 29,
1993). Counsel for petitioners should be aware of this practice,
as she works extensively in the area of condemnation law.
Finally, our use of Galloway was not cavalier. it has not
been overruled and stands for the proposition for which it was
cited; to wit, that the legislature can make laws provided they
are constitutional.
Furthermore, it is improper to misrepresent relevant facts
or law to this court in a petition for rehearing, or any court
document for that matter, even if the misrepresentation is
inadvertent. I believe petitioners have made misrepresenta-
tions by distorting the record. The petition is replete with
such distortions. For example, petitioners deem Chief Justice
Rose a “consultant to the legislature” and accuses him of
“prejudg[ing] the main issue” when, in fact, this court has
already concluded to the contrary—that Chief Justice Rose
held no bias in this case. See Whitacre Inv. Co. v. State, Dep’t
Transp., 113 Nev. 1101, 946 P.2d 191 (1997).
Petitioners conclude by claiming that this court created “an
issue that was non-existent” by referencing whether the
casino use was probable. Petitioners cite the county’s brief in
support of this argument. Indeed, it is true that the county
argued in its brief that the land’s use was not in dispute. How-
ever, petitioners’ counsel conspicuously neglects to acknowl-
edge that she herself raised this “non-existent” issue in her
brief and orally argued that
19a
the hot issue at trial [was] whether or not this—And this
is a major point of contention—the property could have
been developed into a small casino. The State consis-
tently said 3.5 acres was too small.
In light of these remarks, it baffles this writer how petition-
ers’ counsel, with candor and a Straight face, could venture to
argue that Chief Justice Rose “mysteriously created an issue
that was non-existent.”
In sum, I note that it is improper to use a petition for
rehearing as a vehicle to personally attack the court or any of
its members. In bringing forth this petition, I believe peti-
tioners violated NRAP 40 at the taxpayers’ expense. I would
deny rehearing on this basis alone, and thus, I concur in this
court’s decision to deny rehearing.
YOUNG ak?
Young
OO
20a
SUPREME COURT OF NEVADA
Nos. 29401, 29477, 29549
October 1, 1997
WHITACRE INVESTMENT COMPANY,
a General Partnership,
Appellant,
—_—V—
The STATE of Nevada, on Relation of
Its DEPARTMENT OF TRANSPORTATION,
Respondent.
COUNTY OF CLARK, a Political Subdivision of the State
of Nevada, on relation of LAS VEGAS CONVENTION AND
VISITORS AUTHORITY,
Appellant,
—_—_V—
Briant BUCKWALTER; John R. Reese; California Federal Sav-
ings and Loan Association, a California Corporation; Tower
Enterprises, a partnership; Profit Sharing Plan of Roy R.
Valentine, D.D.S., a professional corporation; K.W. Hounsell;
K.W. Hounsell, Inc., a Profit Sharing Trust; Profit Sharing
Plan of Edgar F. Muncsh, D.D.S., a professional corporation;
Ralph W. Engh and Christine J. Engh, husband and wife,
Respondents.
a + iste atte ne iia ” at
” o Caprte, “ a es a a nad i ta ew sh % is
PSII LP eT i St a ot a
2la
C.B.M., Ltp., A Nevada limited partnership,
Appellant,
—_—V—
The STATE of Nevada, on relation of
its DEPARTMENT OF TRANSPORTATION,
Respondent.
In appeals of condemnation cases, party filed motions to
disqualify Supreme Court Justice. The Supreme Court, Young,
J., held that: (1) arguments and charges in serial documents
expanding on claim that Justice should be disqualified
because of alleged animus toward movants’ attorney were
procedurally improper and would not be entertained, and
(2) Justice’s conversations with state legislators concerning
Statutory definition of term “value” to be used in condemna-
tion cases did not constitute advisory opinion or prejudgment
of any issue so as to require his disqualification.
Motions to disqualify denied.
Springer, J., filed a dissenting opinion.
Maupin, J., filed a dissenting opinion.
LAW OFFICES OF KERMITT L. WATERS, Las
Vegas; Laura Wightman FitzSimmons, Las
Vegas, for Whitacre Investment Company,
Buckwalter, Reese, California Federal Sav-
ings and Loan Association, Tower Enter-
prises, Profit Sharing Plan of Valentine,
Hounsell, K.W. Hounsell, Inc., Profit Shar-
ing Plan of Munsch, Engh, and C.B.M..,
Ltd.
ee
22a
FRANKIE SUE DEL PAPA, Attorney General, and
John E. Lambert and Leslie A. Nielsen,
Deputy Attorneys General, Carson City,
for State of Nevada, Department of Trans-
portation.
STEWART L. BELL, District Attorney, and Dale E.
Haley, Deputy District Attorney, Clark
County; Dickerson, Dickerson, Consul &
Pocker and Luke Puschnig, Las Vegas, for
County of Clark, Las Vegas Convention
and Visitors Authority.
OPINION
YOUNG, Justice:
The issue of whether Justice Robert Rose is disqualified
because of animus toward Laura FitzSimmons, a party's attor-
ney, was presented and decided in the recent case of Las
Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 644, 940
P.2d 134 (1997). Laura FitzSimmons is one of the attorneys
for appellant Whitacre Investment Company, respondents
Buckwalter, et al., and appellant C.B.M., Ltd. (collectively
“movants”), and they again assert that Justice Rose is dis-
qualified because of animus toward their attorney. We elect to
follow our holding in Hecht, and reject the motion to dis-
qualify based on animus toward movants’ attorney.
On July 17, 1997, movants filed identical motions in each
of these appeals seeking leave to file supplements in support
of their motions to disqualify Justice Rose. On August 22,
1997, the clerk of this court received, but did not file, iden-
tical supplementary documents entitled: “Real Party Laura
FitzSimmons’ Reply to Justice Rose’s Supplemental Response
to the Motion to Disqualify Him.” The additional arguments
and charges presented in these documents expand upon the
23a
claim that Justice Rose is disqualified because of animus
toward movants’ attorney.
NRAP 35(d) provides that a challenged justice may tender
a response in writing to a motion for disqualification. The
rule, however, does not permit the filing of a reply to the
response tendered by a challenged justice. To the contrary,
NRAP 35(d) specifically directs that “[sJerial motions or
charges, whether entitled as Separate challenges, or as sup-
plements, or entitled in any other way, must not be filed, and
will not be entertained.” (Emphasis added.) The rationale
behind NRAP 35(d) was stated in Ainsworth v. Combined Ins.
Co., 105 Nev. 237, 242-43 n. 2, 774 P.2d 1003, 1008 n. 2.
cert. denied, 493 U.S. 958, 110 S.Ct. 376, 107 L.Ed.2d 36]
(1989), where this court observed:
[SJound judicial policy underlies the absence of any pro-
visions in our rules permitting the filing of replies to
Oppositions to motions and petitions without express
leave of the court. See NRAP 27; NRAP 40. No litigant
has an unqualified right to inundate a court with motions,
supplements, errata, responses, exhibits and replies
belatedly asserting arguments that it previously failed to
raise. Nor do litigants have unfettered license to utilize
such methods to manipulate judicial proceedings and
unreasonably delay a final resolution of litigation.
We hold that the arguments and charges in the serial doc-
uments of July 17, 1997, and August 22, 1997, are procedu-
rally improper and “will not be entertained.” NRAP 35(d).
Moreover, we conclude that these documents constitute
belated and procedurally improper attempts: (1) to challenge
this court’s decision in Las Vegas Downtown Redev. Agency
v. Hecht, 113 Nev. 644, 940 P.2d 134 (1997); (2) to assert
arguments that movants Previously failed to raise: (3) to
abuse the appellate processes of this court; (4) to obfuscate
the issues; and (5) to delay the final resolution of these mat-
ters. This court simply cannot afford to further dissipate its
limited resources on these disqualification matters. Accord-
24a
ingly, we deny the motions of July 17, 1997, and we decline
to entertain the arguments in that document and the document
received by the clerk of this court on August 22, 1997. The
clerk of this court shall return the documents unfiled.
The second ground cited by the movants is that Justice
Rose should be disqualified because in 1993 he allegedly
gave an advisory opinion to legislators when they were con-
sidering an amendment to NRS 37.009, the section that
defines the term “value” to be used in eminent domain cases.
We consider that issue in this opinion.
FACTS
Movants assert that Justice Rose is disqualified from par-
ticipating in these condemnation cases because of conversa-
tions he had with two legislators during the 1993 legislative
session concerning the definition of the term “value” as con-
tained in NRS 37.009. This definition is used to determine the
compensation to be paid to the person or entities whose prop-
erty is taken through eminent domain proceedings. One state
senator indicated that he had talked to then Chief Justice Rose
about redefining the term “fair market value.”
Senator Adler stated he had conferred with Chief Justice
Rose regarding this question, and that Justice Rose stated
the Supreme Court does not have a problem with adding
to or changing the definition. The court likes to keep
their opinions intact, but the justices stated the legisla-
ture should feel free to implement something believed to
be better. Senator Adler further advised the court was not
adverse to changing or adding to the definition of mar-
ket value, as long as it was a better definition in the
opinion of the legislature.
Senator Smith advised that Chief Justice Rose had
similarly assured him.
25a
Justice Rose has explained these telephone conversations in
his response filed in Opposition to the motions to disqualify
him.
In the winter-spring of 1993, several State legislators
called to tell me that the Legislature would be holding
hearings to see if a better definition to the term “fair
market value” could be achieved. They hoped the Court
would not be offended since we had approved the defi-
nition in an opinion. I told the legislators that they had
the power to redefine the term, and I did not think any-
one would be offended. I recall no conversation of what
the new definition would be. | did state that the Court
may well be called upon to review the legal sufficiency
of any new definition. It appeared that the lawyer-
legislators who called were merely extending a courtesy
to the Court and its then Chief Justice. I gave no advice
to the legislators and did not defer to them, other than to
acknowledge that they had the power to redefine “ fair
market value.”
DISCUSSION
Movants allege that Justice Rose prejudged an issue before
the court and gave an advisory opinion concerning NRS
37.009, the definition of the term “value” to be used in con-
demnation cases. Even if we assume that NRS 37.009 plays a
role in these cases, we find nothing in the records to support
this allegation of disqualification made by movants. Justice
Rose simply acknowledged that the legislature had the power
to redefine the definition of “value,” and he did not think the
court would be offended. Justice Rose gave no indication
about what he thought the definition of “value” should be and
also stated that the court may well be called upon to review
the legal sufficiency of any new definition. While advisory
opinions by this court are prohibited by the Nevada Consti-
tution, this was neither an advisory opinion nor the prejudg-
26a
ing of any issue in these cases. See Nev. Const. art. 6, § 4;
City of No. Las Vegas v. Cluff, 85 Nev. 200, 452 P.2d 461
(1969). We see nothing more in these two conversations than
what Justice Rose has stated, that the lawyer-legislators were
merely extending a courtesy to the court and its then Chief
Justice and that he responded in an appropriate, non-
committal manner.
CONCLUSION
The issue of Justice Rose’s disqualification because of ani-
mus toward attorney Laura FitzSimmons was decided against
the movants’ position in our recent Hecht decision, and this
prior ruling disposes of the first ground urged for Justice
Rose’s disqualification in these cases. We also conclude that
Justice Rose did not give an advisory opinion or prejudge an
issue in these cases when he discussed the general subject of
redefining the statutory definition of value. Accordingly, the
movants’ motions to disqualify Justice Rose are denied.’
SHEARING, C.J., and Papez, D.J., concur.”
In reaching this result, we have not considered the assertion of
Justice Rose that Justice Charles Springer should not participate in decid-
ing this motion to disqualify.
The Honorable Dan L. Papez, Judge of the Seventh Judicial Dis-
trict Court, was designated by the Governor to sit in place of the Hon-
orable Robert E. Rose, Justice. Nev. Const. art. 6, § 4.
27a
SPRINGER, Justice, dissenting':
Condemnees have presented to the court documents which,
if given due credit, would not under any circumstances allow
for Justice Rose’s continued Participation in deciding these
consolidated cases. Refusing to deal with the merits of the
documents themselves, the court has simply “returned” the
documents “unfiled” to condemnees’ counsel.
There is no valid excuse for the court’s actions, but the
excuse offered by the court for returning the documents is that
the documents are “serial” and thus contrary to NRAP 35(d).
“Serial” simply means appearing in successive parts; so that
if the condemnees had offered a new, “successive” motion,
such a new motion might be described as being serial. This is
not the case however. The documents returned as being
“serial” merely respond to charges that became a part of these
present proceedings by virtue of Justice Rose’s actions,
namely, Justice Rose’s filing of his “Supplemental Response”
to condemnees’ motion to disqualify him. Condemnees
cannot be expected to sit by and let Justice Rose’s “supple-
mental” response stand unchallenged. If Justice Rose’s “sup-
plemental” response is not successive or serial, then certainly
condemnees’ reply to Justice Rose is not successive or serial.
Plainly and simply, it is not fair for the court to consider
Justice Rose’s supplemental document and to return the
' Movants’ counsel claim that this motion has become moot by
reason of the Governor’s designations of Judge Dan L. Papez, issued on
June 5, 1997. The Governor’s designations (on file in all three of the cap-
tioned cases) recite that “Justice Robert E. Rose has voluntarily dis-
qualified himself to sit as a Justice of the Supreme Court of Nevada” in
these cases and that Judge Papez was designated to sit in Justice Rose’s
place. On the face of this document, it would appear that the motion to
disqualify is moot; however, given that the court’s request to the Gov-
ernor was for a designation only “to assist the court in deciding the dis-
qualification motions,” it is clear that Justice Rose disqualified himself
only from matters relating to the disqualification motions and, notwith-
Standing the language in the Governor’s designation, has not disqualified
himself in these cases.
28a
condemnees’ reply to that document to the condemnees,
“unfiled.”
Justice Rose is clearly disqualified to sit in these condem-
nation actions by reason of his admitted and openly-expressed
bias against Laura FitzSimmons, who is not only one of the
lawyers for the condemnees but is herself a financially inter-
ested party.
Justice Rose has filed a Response and a Supplemental
Response in which he maintains that his bias is against
Ms. FitzSimmons alone and not against any of the named con-
demnees. Ms. FitzSimmons has lodged with the court a Reply
to the Rose documents in which she establishes her position
as an interested party in this lawsuit, thus having the right as
a party, to have Justice Rose removed from these cases. Ms.
FitzSimmons’ position is firmly documented and supported by
authorities; and there is absolutely no question that Ms.
FitzSimmons’ financial interest in the outcome of these cases
entitles her to have Justice Rose removed from the cases. The
only way in which Chief Justice Shearing, Justice Young and
Judge Papez could possibly rule in favor of Justice Rose
under these circumstances would be for them to accept Justice
Rose’s opposition documents and at the same time refuse to
file Ms. FitzSimmons’ Reply. Incredibly, the three mentioned
jurists have done just this and have taken the position that
although Justice Rose has the right to “ tender a response
in writing to [the] motion for disqualification,” they will
not “permit the filing of a reply to the response tendered by
a challenged justice.” in other words, they will listen to
what Justice Rose has to say, but they will not listen to what
Ms. FitzSimmons has to say. Even though they realize that the
FitzSimmons document dictates the granting of condemnees’
motion to disqualify Justice Rose, they “decline to entertain
the arguments in that document.”
Chief Justice Shearing, Justice Young and Judge Papez,
after carefully considering the documents presented by Justice
Rose, rule that Ms. FitzSimmons’ opposing arguments “obfus-
cate the issues” and “delay the final resolution of these mat-
29a
ters” —insufficient reason, I think, for refusing to consider
materials which they know would require them to grant the
motion to disqualify rather than to deny it. Rather than give
formal recognition to facts that they are already aware of
informally, the three jurists of the majority have ordered the
clerk to “return the [FitzSimmons’] documents unfiled.”
Chief Justice Shearing, Justice Young and Judge Papez are
all on notice of the thrust of Ms. FitzSimmons’ position
(namely, that she is a party and that the law requires that
Justice Rose be disqualified by reason of his expressed
bias against her) and know that if the documents were not
returned unfiled they would be compelled to grant the
motions to disqualify Justice Rose. The only way that these
three could avoid the clear necessity for disqualifying Justice
Rose was to do what they did and to “return the documents
unfiled.”
I will argue in this dissent that even though the mentioned
majority of the court has decided not to consider the dispos-
itive arguments offered by Ms. FitzSimmons, the moving
documents that the court is willing to consider still demand
the disqualification of Justice Rose because Justice Rose’s
expressed bias toward Ms. FitzSimmons, as an attorney, is
“extreme” and because Justice Rose has made impermissible
public comments on the fundamental issue that is before the
court in these condemnation proceedings. The arguments
which I present in this dissent do not, however, have nearly
the persuasive value as do the lengths to which Justice Young
(who himself was subject to removal proceedings in these
cases, only to be ruled qualified by his colleague, Justice
Rose) and Justice Rose have gone to in order to keep Justice
Rose in these cases. This speaks for itself. That the majority
justices would go so far as to refuse to consider the con-
demnees’ absolute refutation of the arguments made by Jus-
tice Rose in his Supplemental Response should convince any
reader that there is something amiss in this whole proceeding.
The cloud of Justice Rose’s continuing to act as a judge in
these cases should not be allowed to contaminate these cases
and to create questions about the integrity of this court.
30a
The majority’s excuse for sending the condemnees’ papers
back to them is that they are required to do so by NRAP
35(d). This, to my mind, is pretense; but even if their reliance
on NRAP 35(d) could be seen as being supportable, basic
fairness would require that the condemnees in these cases
be heard and that the court not rely entirely upon the
unanswered documents of Justice Rose. Issues of funda-
mental fairness aside, it is clear that NRAP 35(d) does not
justify their actions. As pointed out in the majority opinion,
NRAP 35(d) prohibits the filing of “serial motions or
charges.” Ms. FitzSimmons presents no serial “motions or
charges” in these cases. All Ms. FitzSimmons was trying to
do was to respond to Justice Rose’s arguments. Justice Rose
presented to the court two laborious Responses, arguing that
his bias against Ms. FitzSirmmons, as an attorney, was not so
“extreme” as to require his disqualification. The documents
now returned to Ms. FitzSimmons merely point out that
Justice Rose’s bias does not have to be “extreme” if in
addition to being an attorney she is a principal and finan-
cially interested in the outcome. There is nothing “serial”
about Ms. FitzSimmons’ natural response to Justice Rose’s
arguments; and I can see no conceivable reason for the .. 1: s
present decision to silence Ms. FitzSimmons and to return her
papers unfiled.
Having stated as my primary disagreement with the order
denying condemnees’ motion to disqualify Justice Rose the
arbitrary decision by Chief Justice Shearing, Justice Young
and Judge Papez to silence the condemnees’ attempts to
oppose the arguments that Justice Rose makes on his own
behalf, I will proceed now to discuss the issues that were con-
sidered by the majority, namely, the effect of Justice Rose’s
making public comments on the ultimate issue to be decided
in these cases and Justice Rose’s “extreme” bias against
Ms. FitzSimmons.
3la
JUSTICE ROSE’S PUBLIC COMMENT
ON PENDING CASES
AS appears in the majority opinion, Justice Rose discussed
the ultimate issue in these appeals, namely, that of “redefin-
ing the term ‘fair market val ue.’ ” He discussed this subject
in some manner with “several” legislators. The majority tells
us of at least two, Senator Adler and Senator Smith. Canon
3B(9) of the Nevada Code of Judicial Conduct prohibits
judges from making public comments on pending or impend-
ing proceedings. As stated in the majority opinion, certain
legislators “conferred with Chief Justice Rose regarding
this question.” I do not believe that such conferences are
permitted by Canon 3B(9).
There are two versions of Justice Rose’s conference with
legislators. As appears from the majority opinion, the
condemnees claim that “Justice Rose prejudged an issue
before the court and Save an advisory opinion concerning
. . . the definition of the term ‘value’ to be used in con-
demnation cases.” Justice Rose, on the other hand, tells us
that the mentioned conference was comprised of a series of
telephone calls from various legislators who were merely
“extending a courtesy” to Justice Rose as chief justice and
discussing forthcoming plans of the legislature “to see if a
better definition to the term ‘fair market value’ could be
achieved.” Justice Rose does not “recall” a specific “con-
versatior of what the new definition would be.”
The conflict in positions between the challenged justice and
the condemnees is precisely the type of conflict that Canon
3B(9) was designed to prevent. The Canon tells judges not to
“make any public” comment that might be expected to impair
the fairness of the pending case. (My emphasis.) If Justice
Rose had declined to make any comment on matters that he
knew were pending before this court, he would not have faced
this controversy. The majority resolves the controversy sim-
ply by accepting the position of their colleague, Justice Rose,
and by rejecting the position of the condemnees. This is not
fe
32a
a fair way to treat litigants—deciding controversies of this
kind in favor of one of their fellow court-members without
any further exploration of the condemnees’ position. Further,
it does not matter to me whether Justice Rose’s conference
with legislators took place in the manner that he describes it
or whether it took the form claimed by the condemnees—in
either event, Justice Rose is guilty of making public com-
ments on pending litigation. To my way of thinking, such a
conference impairs the fairness, or at least the appearance of
fairness, in these cases. Justice Rose should disqualify him-
self. Based on the application of Canon 3B(9), I dissent to the
order denying the motion to disqualify Justice Rose.
JUSTICE ROSE’S BIAS TOWARD
ATTORNEY FITZSIMMONS
Condemnees’ motion to disqualify Justice Rose is also
based on Justice Rose’s biased attitude toward one of their
attorneys, Laura FitzSimmons The majority states that it will
“elect to follow our holding in Las Vegas Downtown Redev.
Agency v. Hecht, 113 Nev. 632, 940 P.2d 127 (1997)”.
In Hecht, a motion similar to the one in these cases was
filed, in which the bias of Justice Rose against attorney
FitzSimmons was raised. It is not claimed by the majority that
the Hecht case is res judicata or that the condemnees in these
cases, different parties entirely from those in the Hecht case,
are precluded from raising the issue here. It is my belief that
the circumstances surrounding Justice Rose’s statements and
treatment of Ms. FitzSimmons undeniably call for Justice
Rose’s removal from these cases.
My dissent is based in large part upon the documents
filed by Justice Rose in Whitacre on February 4, 1997, and
in Buckwalter and C.B.M. on February 7, 1997, entitled
“Response of Justice Rose to Motion to Disqualify Him and
Request that Justice Springer Not Participate in Deciding the
Motion to Disqualify.” In the mentioned Response, Justice
Rose accuses condemnees’ counsel, Laura FitzSimmons, of
33a
being part of an ongoing conspiracy against Justice Rose,
Which he calls a “Gunderson/Whitehead/Springer/Steffen
coalition.” The Rose Response is comprised of a long bill of
personal complaints by Justice Rose against Ms. FitzSimmons
and against the mentioned conspiratorial coalition, including
charges that Ms. FitzSimmons was part of a plan to make
public sealed criminal charges that had been issued by a
Las Vegas Metropolitan Police officer against Justice Rose.
and that, had it not been for Ms. FitzSimmons and her co-
conspirators, these charges would have been kept from the
public eye and remained “sealed” by order of the district
court in Las Vegas.
Ms. FitzSimmons denies that she is part of any such con-
spiracy; but it is obvious from Justice Rose’s document that
he earnestly believes that Ms. FitzSimmons is conspiring to
destroy him. In my judgment, these beliefs and the other
charges which Justice Rose makes against Ms. FitzSimmons
create a strong appearance of bias on the part of Justice Rose
and lead to the almost inescapable inference that it is impos-
sible for Justice Rose to sit in impartial judgment in these
cases while Ms. FitzSimmons is acting as counsel.
Justice Rose resists his disqualification by Claiming that
although, under Canon 3E of the Code of Judicial Conduct,
“a judge can be disqualified for animus toward an attorney,”
Justice Rose does not consider his “animus” to be suffi-
ciently virulent and “extreme” to warrant his disqualifica-
tion. Any reader of Justice Rose’s Response will come to
the unhesitating conclusion that Justice Rose’s bias against
Ms. FitzSimmons is indeed extreme and that there is virtually
no possibility that a judge who feels the way that Justice Rose
feels about Ms. FitzSimmons could possibly sit in fair
judgment in these cases.
In the mentioned Response, Justice Rose makes two argu-
ments. The first is that deference should be given to his own
“opinion as to bias” and that although his past “remarks”
about Ms. FitzSimmons may have been derogatory and hate-
ful, he has an excuse, namely, “Justice Rose’s remarks were
34a
made in response to statements or actions of Laura Fitz-
Simmons” and were, for this reason, “not evidence of any
disqualifying bias.”
With regard to Justice Rose’s argument that retaliatory
remarks made “in response” to attorney FitzSimmons’
“attacks” on him do not count, I must say that I have never
heard such an argument before. Justice Rose tells us that
because the things he has said about Ms. FitzSimmons? were
in retaliation for and “in response” to the bad things that he
claims Ms. FitzSimmons had done and said about him, his
“remarks” cannot be admitted as “evidence of any disquali-
fying bias.” Although this is a very interesting position for
Justice Rose to take, I fail to see any merit to his claim that he
was merely acting in retaliation for past grievances. Frankly,
I cannot understand his claim that his acting “in response” to
perceived indignities does not constitute “evidence of any dis-
qualifying bias.” As I see it, Justice Rose’s claim that his
retaliatory “remarks” do not count because he was provoked
into making them is just more evidence that he is truly and
“extremely”? biased against Ms. FitzSimmons.
Attorney FitzSimmons’ response to the charges made by
Justice Rose in his Response is put this way: “Since Justice
Rose continues to express his opinion that I am part of
a ‘coalition’* that is intent upon harming him politically, a
>
. In the motions to disqualify Justice Rose, Ms. FitzSimmons sets
out an array of derogatory statements that Justice Rose has made in pub-
lic against her over the past several years. I find no need in this opinion
to catalogue these statements and merely note that Justice Rose does not
deny making these remarks. His position is one of confession and avoid-
ance—‘“Justice Rose’s remarks were in response to the statements or
actions of Laura FitzSimmons” and, therefore, “are not evidence of dis-
qualifying bias.”
: See Richard E. Flamm, Judicial Disqualification 124 (1966).
’ According to Justice Rose’s Response there is a “coalition” com-
prised of movants’ attorney, Laura FitzSimmons, former Chief Justice
E.M. Gunderson, former Chief Justice Thomas Steffen, former Judge
Jerry Whitehead and, the undersigned, Justice Charles Springer. Accord-
ing to Justice Rose, “based on what [he] considered reliable information,”
35a
reasonable person would certainly question whether Justice
Rose would hold the balance nice, clear and true.”
It is worthwhile to examine some of the public charges that
Justice Rose has levied against Ms. FitzSimmons. | might
understand Justice Rose’s position better if Ms. FitzSimmons
had, as Justice Rose claims, actually slandered Justice Rose
or had intentionally provoked him or taunted him. It would
then be much easier to understand Justice Rose’s extravagant
attack and the statements that he has made about her. For
example, in his Response, Justice Rose itemizes a number of
“legal and political actions taken by FitzSimmons against Jus-
tice Rose,” including an “independent civil action by FitzSim-
mons” against Justice Rose. Still, among the many “actions”
by Ms. FitzSimmons complained of by Justice Rose I find no
untoward or unfair conduct of any kind on the part of Ms.
FitzSimmons; nevertheless, it is understandable, to a limited
degree, why Justice Rose (if he believed all of the “reliable
sources” referred to in his Response) got so angry at attorney
FitzSimmons and why, as he puts it, he “has not appreciated
these attacks or her conduct.”
the members of the named conspiracy have been conspiring against him
in the form of “legal and political action.”
, While admitting that he has not “appreciated” all of the things
that he claims have been done to him by Ms. FitzSimmons and despite
the tone of ire and displeasure that runs throughout his Response, Justice
Rose writes in his Response that he “had always considered {him]self to
be a good friend of Laura FitzSimmons.” Ms. FitzSimmons’ sworn
response to this is as follows:
I do know that I have never considered Justice Rose to be a
friend. Indeed the only conversation of a personal nature that
I recall having with Justice Rose was a fund raiser that I hosted
for him in Carson City during his first campaign. The guests
left, and Justice Rose and I were sitting outside. He was com-
plaining about how strenuous the campaign had been. I told him
that I thought it would be hard to campaign for a judgeship, and
later resist the temptation, as a judge, to reward friends and pun-
ish enemies. Justice Rose looked me in the eye and replied that
he was not one to resist temptation, and he was looking forward
to pay backs. I was uncomfortable with that Statement at the
36a
I believe the key to judging Justice Rose’s bias or lack of it
in these cases is his assertion that his “responsive statements”
were “precipitated” (provoked) by “attacks against him”
that became known to him based upon undisclosed “reliable
information made available to him.” The information avail-
able which Justice Rose claims to have gotten from unnamed
sources might have disclosed to Justice Rose some con-
duct which he deemed to be inappropriate on the part of
Ms. FitzSimmons; but there is certainly nothing in the record
that would support such a conclusion.
It is apparent from Justice Rose’s Response that the
perceived “attacks” by Ms. FitzSimmons that “precipitated”
Justice Rose’s “responsive statements” against Ms. Fitz-
Simmons are centered on what Justice Rose describes as
Ms. FitzSimmons’ filing of a “civil complaint to require
the Eighth Judicial District Court in Clark County to make
public certain wiretapped conversations of Justice Rose sur-
rounding the criminal investigation of Michael and Rhonda
Mushkin” and Justice Rose. Justice Rose attaches to his
Response a copy of Ms. FitzSimmons’ “civil complaint,”
which is a “Petition to Unseal Wiretap Information.” This
document discloses that a district judge had, in a secret pro-
ceeding entitled “DR# 92-0919-1101,” ordered that certain
police files relating to Justice Rose, Michael Mushkin and
Rhonda Mushkin be sealed and withdrawn from public view.
I will not speculate about what political forces might have
been exerted to bring about the unheard-of action of a district
judge’s ordering that certain police files be “sealed,” nor
will I speculate on why the district court did not grant
Ms. FitzSimmons’ motion to “unseal” these public records;
but I will say that there does not appear to be anything unto-
ward or provocative about Ms. FitzSimmons’ motion to
unseal, which, she advises the court, was made for the pur-
pose of “preparing various documents for filing” and was
based on the Nevada Public Records Act (NRS 239.010).
time it was made, and later events have only increased my
concern.
37a
What is untoward and what should provoke any citizen is the
fact that Ms. FitzSimmons’ request for inspection of public
documents was not granted, especially when the Las Vegas
Metropolitan Police and the district attorney of Clark County
consented to the “unsealing” of these public documents.
In her Reply, Ms. FitzSimmons explains that the purpose
for her filing the mentioned Petition was to obtain documents
in support of a complaint to the Nevada Commission on Judi-
cial Discipline, pursuant to what she believed to be her ethi-
cal obligation, and not, as Justice Rose has asserted, to “make
public those conversations.” Attorney FitzSimmons tells us
that the discipline complaint was held by the Commission, the
executive director of which Justice Rose has described as one
of his “closest friends,” until] this court decided Hogan vy.
Warden, 112 Nev. 553, 916 P.2d 805 (1996). Thereafter, the
complaint was dismissed by the Commission, which justified
the dismissal entirely upon that Opinion, in which Justice
Rose sat in judgment of issues relating to his own alleged
misconduct. .
Part of the information contained in the sealed documents
referred to above became public despite the court order seal-
ing it; and the source of Justice Rose’s displeasure with Ms.
FitzSimmons appears to be that he blames her for trying to
make public documents public, documents described by Jus-
tice Rose in his Response as being wiretapped conversations
in which “I [Rose] was a party concerning the criminal inves-
tigation into the activities of Michael and Rhonda Mushkin.
Michael Mushkin was indicted after a lengthy investigation,
and I had one or more conversations with Rhonda that were
intercepted by wiretapped surveillance. These wiretaps were
transcribed for the state’s Prosecution of Michael Mushkin but
were subsequently sealed by the Court.”
It is understandable that Justice Rose would have been con-
cerned about these wiretaps’ becoming public knowledge and
especially concerned when, for the first time, it appeared in
the newspapers that Justice Rose was the subject of a sworn
criminal complaint charging him with obstruction of public
38a
justice and seeking his arrest. Even though the district attor-
ney refused to prosecute the criminal complaint and Attorney
General Del Papa also “declined to prosecute” the criminal
complaint, if Justice Rose believed that this embarrassing
public disclosure was brought about by the “intentional
actions” of Ms. FitzSimmons and her “coalition,” then it does
explain why he feels the way that he does about her and
explains why he was moved to make “responsive statements”
about Ms. FitzSimmons. What it does not explain, however,
is how, given the kind of “animus” against Ms. FitzSimmons
that is demonstrated by Justice Rose in his Response, he can
be expected to act fairly and impartially in these cases.
Justice Rose’s public comments on the dispositive issue in
these cases and his “extreme” animus toward counsel demand
that he be disqualified from sitting in these cases.
CONCLUSION
The decision to deny the motion to disqualify Justice Rose
is additionally clouded by the fact that the deciding vote is
cast by Justice Young, who, himself, was challenged for bias
in these cases. The way that the challenges against Justice
Young and Justice Rose have been resolved in these cases is
simply that Justice Rose casts the deciding vote that Justice
Young is not biased; and now Justice Young casts the decid-
ing vote ruling that Justice Rose is not biased. This procedure
is tainted and unfair on its face, remindful of the time when
Justice Young and Justice Rose decided a case in which they
had been previously disqualified. Whitehead v. Comm’n on
Jud. Discipline, 920 P.2d 491 (1996).°®
¥ In arguing at such length that Justice Rose’s bias against Ms.
FitzSimmons, as an attorney, is “extreme” and therefore sufficient to
disqualify him, I do not want to leave the impression that I believe that
“extreme” bias is necessary in these cases. Ms. FitzSimmons is an inter-
ested party in these cases and, as such, it is not necessary to establish
“extreme” bias against her. As I have argued above, if this court were to
39a
MAUPIN, Justice, dissenting:
I agree that the conversation between members of the legis-
lature and Justice Rose do not provide sufficient grounds for
have given due consideration to the supplemental motion and support-
ing documents, as it properly should, the court would have been hard
pressed, in good conscience, to deny the motion to disqualify Justice
Rose and thereby permit Justice Rose to continue to sit in these cases.
By failing to consider the condemnees’ supplemental motion, the
majority is ignoring a dispositive point raised by the condemnees,
namely, that Ms. FitzSimmons is not only attorney for condemnees, she
is, herself, indisputably, a real party in interest.
In Hecht and in these cases, the court rules in favor of Justice Rose
(who calls himself a “real party in interest”) on the ground that Justice
Rose’s frequently-expressed bias and ill-will toward Ms. FitzSimmons
was not So excessive as to be extreme bias. The rule of “extreme bias,”
has, of course, no application to Ms. FitzSimmons as a real party in inter-
est, and one who is subject to losing large sums of money if Justice
Rose’s admitted bias against her is allowed to come into play. (Justice
Rose states in his “Supplemental Response” that “[a]s a practical matter,
the real parties in interest are Justice Rose and attorney Laura FitzSim-
mons. . . .”) This being the case, the majority in these cases acted mis-
takenly in holding that disqualification was not mandated except where
the bias could be shown to have been “extreme.”
It is not fair for this court to have decided the present motion without
considering the matters which were called to the court’s attention in the
suppiemental motion that it has refused to consider and returned to the
movants. In addition to calling attention to the fact of Ms. FitzSimmons’
being, like Justice Rose, a real party in interest, the supplemental motion
raised a number of other critical matters that should have been considered
by the court. For example, contained in the moving papers is an opinion,
in affivevit form, expressed by Richard Edward Flamm, the leading
authority on judicial disqualifications. an opinion which “mandate[s]”
Justice Rose’s disqualification. Mr. Flamm is the author of Judicial Dis-
qualification: Recusal and Disqualification of Judges, a nationwide trea-
tise published by Little, Brown and Company in 1996. The treatise
examines in detail the Principles which have been espoused by the
nation’s courts in deciding judicial disqualification motions and appeals.
This court relied (incorrectly) on two sections of Mr. Flamm’s treatise in
its Opinion denying the motion to disqualify Justice Rose in Hecht.
After a careful review of Hecht and of all the pertinent documents in
the present case, “as well as a host of cases on point,” Mr. Flamm
expressed, under oath, the following professional opinions:
(footnote continued)
40a
his disqualification. However, in most other respects, I can-
not subscribe to either the majority or the dissent in these
matters. Based upon my own review of the record, and with-
out conceding that PETA v. Berosini, 110 Nev. 78, 867 P.2d
1121 (1994), is a correct application of the doctrine sur-
rounding disqualification of judicial officers, I would grant
the instant disqualification motion.
I have formed the opinion that Justice Rose’s expressed animus
towards Ms. FitzSimmons does indeed mandate his disqualification from
this case. . . . I do not believe that this general proposition (that a
judges’s bias against an attorney must be “extreme”) justifies Justice
Rose continuing to sit in cases in which Ms. FitzSimmons represents a
party on a contingent fee basis. . . . In her moving papers Ms. FitzSim-
mons attested (and Justice Rose did not deny) that she has a pecuniary
interest in the outcome of these proceedings, . . . In my opinion, a real
party who possesses a substantial interest in the outcome of a proceed-
ing has a due process right not to have that case decided by a court whose
membership includes a judge whose impartiality might reasonably be
questioned. For this court to decide this matter without having considered
the vital matters presented in the supplemental motion is completely
without justification.
4la
IN THE SUPREME COURT OF THE STATE OF NEVADA
Filed July i5, 1997
No. 24976
LIA ARNOLD ROBERTS REVOCABLE FAMILY TRUST,
AURELLIA ARNOLD ROBERTS, TRUSTEE,
Appellant,
—vs.—
COUNTY OF CLARK, A POLITICAL SUBDIVISION
OF THE STATE OF NEVADA,
Respondent.
No. 29401
WHITACRE INVESTMENT COMPANY,
A GENERAL PARTNERSHIP,
Appellant,
—vVsS.—
THE STATE OF NEVADA, ON RELATION OF
ITS DEPARTMENT OF TRANSPORTATION,
Respondent,
42a
No. 29477
COUNTY OF CLARK, A POLITICAL SUBDIVISION OF THE
STATE OF NEVADA, ON RELATION OF LAS VEGAS CONVEN-
TION AND VISITORS AUTHORITY,
Appellant,
of nee
BRIANT BUCKWALTER; JOHN R. REESE; CALIFORNIA FED-
ERAL SAVINGS AND LOAN ASSOCIATION, A CALIFORNIA
CORPORATION; TOWER ENTERPRISES, A PARTNERSHIP;
PROFIT SHARING PLAN OF ROY R. VALENTINE, D.D.S.,
A PROFESSIONAL CORPORATION; K.W. HOUNSELL;
K.W. HOUNSELL, INC., A PROFIT SHARING TRUST; PROFIT
SHARING PLAN OF EDGAR F. MUNCSH, D.D.S., A PROFES-
SIONAL CORPORATION; RALPH W. ENGH AND CHRISTINE J.
ENGH, HUSBAND AND WIFE,
Respondents.
No. 29549
C.B.M., Ltp., A NEVADA LIMITED PARTNERSHIP,
Appellant,
V5
THE STATE OF NEVADA, ON RELATION OF
ITS DEPARTMENT OF TRANSPORTATION,
Respondent.
43a
ORDER DENYING MOTIONS
TO DISQUALIFY JUSTICE YOUNG
Appellant Roberts Revocable Family Trust; appellant
Whitacre Investment Company; respondents Buckwalter, et
al.; and appellant C.B.M.., Ltd. (collectively “movants”) assert
that Justice Young has shown express or implied bias against
Kermitt Waters because: (1) Waters donated heavily to Justice
Young’s opponent in Justice Young’s 1996 re-election cam-
paign and comments Justice Young made about Waters’ dona-
tions, and (2) the Attorney’s office represents the State in
these cases and the Attorney General endorsed and publicly
supported Justice Young in the previous election. These same
arguments were made and rejected in Las Vegas Downtown
Redev. Agency v. Hecht, 113 Nev. dtm (ey Op.
No. 70, June 3, 1997), and State, Dep’t of Transp. v. Barsy,
Lis Nev... . B94 — (Adv. Op. No. 76, June 17, 1997),
and those decisions are dispositive of these grounds for dis-
qualification.
Accordingly, the motions to disqualify Justice Young filed
in these cases are hereby denied.
It is so ORDERED. !
SHEARING ee oe f
Shearing
ROSE me
Rose
MAUPIN ee 3
Maupin
? The Honorable Cliff Young, Justice, did nol participate in the
decision of these motions
44a
IN THE SUPREME COURT OF THE STATE OF NEVADA
Case No. 29447
COUNTY OF CLARK, et al.,
Appellants,
ae V'§
BRIAN BUCKWALTER, et al.,
Respondent.
AFFIDAVIT OF RICHARD EDWARD FLAMM
Richard Edward Flamm, being first duly sworn, swears
under penalty of perjury as follows:
1. I am an attorney-at-law duly licensed to practice before
the state courts of New Jersey, New York and California.
I have also been admitted to practice before the D.N.J.,
S.D.N.Y., N.D. Cal., and C.D. Cal.; as well as the Fifth, Sixth,
Ninth and Federal Circuit Courts of Appeal. I am not a party
to this matter and have no interest in its outcome.
2. In my private practice I concentrate exclusively on mat-
ters of judicial and legal ethics. | frequently lecture on these
topics and have authored a number of articles on judicial dis-
qualification, attorney disqualification, and related topics.
“
3. I am also the author of Judicial Disqualification:
Recusal and Disqualification of Judges, a nationwide treatise
45a
which was published by Little, Brown and Company of
Boston in 1996. That treatise examines in detail the principles
which have been espoused by the nation’s courts in deciding
judicial disqualification motions and appeals. This Court
relied on two sections of my book in denying the motion to
disqualify Justice Rose in the Hecht Case.
4. I have filed briefs or expert certifications in dozens of
attorney and judicial disqualification proceedings. I have both
sought and opposed motions for disqualification. Because of
my legal and academic work in this field, I am very interested
and concerned about the development of the law of judicial
disqualification.
5. Laura Wightman FitzSimmons has requested that I pro-
vide the Court with my opinion as to whether Justice Rose’s
disqualification is warranted in this case because of his ani-
mus toward her. In order to be in a position to form an opin-
ion on this question, I have reviewed a number of documents,
including the motion to disqualify Justice Rose filed by Ms.
FitzSimmons in the Hecht case, the response of Justice Rose
to that motion, Ms. FitzSimmons’ response to that of Justice
Rose, the order of this Court denying Ms. FitzSimmons’
motion to disqualify Justice Rose in Hecht, and the Supple-
mental Response of Justice Rose to the motion to disqualify
him in this case. I have also reviewed relevant Nevada cases
and provisions of the Nevada Code of Judicial Conduct.
6. After reviewing the above-referenced materials, as well
as a host of cases on point, I have formed the opinion that
Justice Rose’s expressed animus towards Ms. FitzSimmons
does indeed mandate his disqualification from this case.
7. The Hecht opinion cited my treatise for the proposition
that “[t]o warrant judicial disqualification—much less other.
more drastic sanctions—the judge’s bias toward the attorney
ordinarily must be extreme. . .”. This is an accurate quota-
tion; however, I do not believe this general proposition
justifies Justice Rose continuing to sit in cases in which
“Ms. FitzSimmons represents a party on a contingent fee basis.
46a
8. The primary reason why courts do not routinely dis-
qualify judges on the basis of their expressions of ill-feelings
towards attorneys is that such animus does not necessarily
translate into bias for or against a party that would result in an
unfair trial. Because bias against an attorney does not nec-
essarily imply bias against a party, many courts have held or
implied that, for a judge’s animus towards an attorney to war-
rant disqualification, the bias must be “extreme” enough for
the Court to believe that it is likely to be transferred to a party
that attorney represents.
9. The holdings in most (if not all) of these cases presume,
however, that the attorney who is the subject of the judge’s
alleged animus is not also a party—1i.e., that he or she has no
personal or pecuniary stake in the outcome of the case (other
than reputational interest which all attorneys have in pre-
vailing). In such cases, there is usually little reason to believe
that a judge, even if biased against the attorney, would reach
a decision adverse to the interests of the attorney’s client.
Consequently the judge’s animus, even if conceded, does not
provide a compelling ground for disqualification.
10. Where, however, the involved attorney is not only an
attorney, by also a party or real party in interest in the case,
the usual reasons for declining to order disqualification on the
basis of a judge’s bias against an attorney do not apply.
Indeed, in situations where the attorney for the moving party
has a substantial pecuniary interest in the case, there would
appear to be no reason—in logic or law—for a court to treat
a judge’s demonstrated animus towards that attorney any dif-
ferently than it would his animus towards any other party.
11. In her moving papers Ms. FitzSimmons attested (and
Justice Rose did not deny) that she has a pecuniary interest in
the outcome of these proceedings, in the form of a substantial
contingent fee. Indeed, in his recently filed supplemental
response in this case, Justice Rose has deemed Ms. FitzSim-
mons to be a real party in interest to these proceedings.
12. In my opinion, a real party who possesses a substantial
interest in the outcome of a proceeding has a due process
47a
right not to have that case decided by a court whose mem-
bership includes a judge whose impartiality might reasonably
be questioned.
13. Hecht also cites my treatise for the proposition that
“[s]ituations in which judges have manifested such extreme
bias toward an attorney [as to warrant disqualification] are
exceedingly rare.”
14. It is true that disqualification motions based on animus
toward counsel have been granted only sparingly. However,
this may well be explained by the fact that most of the
reported disqualification motions of this type were based
upon the challenged judge’s intra judicial comments about an
attorney’s in-court conduct.
15. In most of the reported cases dealing with disqualifi-
cation motions of this type, the motions were based upon a
judge’s expression of irritation or frustration with the moving
attorney’s litigation tactics or in-court conduct; or his ques-
tioning of whether the attorney was providing the client with
adequate representation. They were not cases like this, in
which the motion for disqualification was based upon com-
ments a judge made in an extrajudicial forum, in which he
speculated about an attorney’s extrajudicial conduct.
16. The fact that Justice Rose’s animus towards Ms.
FitzSimmons had both an extrajudicial source and extraju-
dicial expression distinguishes this motion from the vast
majority of cases in which disqualification motions based on
a judge’s animus towards an attorney were denied on the
grounds that the animus alleged was not sufficiently
“extreme”. In fact, I cannot recall having ever reviewed a
case in which a motion based on analogous extrajudicial com-
ments was denied on the grounds that the judge’s animus
towards the attorney was not “extreme”.
17. The Hecht order also cited my treatise for the propo-
sition that “a party or his attorney should not be permitted to
cause the disqualification of a judge by virtue of his or her
own intentional actions.” Like the Hecht court’s other Cita-
48a
tions to my book, this proposition is correct as a general prin-
ciple. However, its invocation in the context of the facts of
this case, and indeed in Hecht, is not only misplaced, but
inexplicable.
18. According to the moving papers, Justice Rose has
accused Ms. FitzSimmons of (1) being part of an “orches-
trated effort” to leak confidential wiretaps about his alleged
criminal misconduct; (2) being one of a group of people who
had “promised” potential opponents of Justice Rose’s “up to
$100,000.00 in campaign contributions” and “all the deroga-
tory information they could get about me;” and (3) being
somehow responsible for a motion to disqualify him filed in
a case in which Ms. FitzSimmons swears she had no role.
19. It is true that, if Ms. FitzSimmons had done these
things, Justice Rose might be able to defend against the dis-
qualification motion by invoking the rule that “a party or his
attorney should not be permitted to cause the disqualification
of a judge by virtue of his or her own intentional actions.”
20. As I read the relevant papers, however, while Justice
Rose alleged that Ms. FitzSimmons induced him to make the
comments which manifest his animus towards her, there has
been no evidentiary showing to that effect. Ms. FitzSimmons
has denied each of the allegations of Justice Rose under oath,
as well as the assertion that she did anything to entrap Justice
Rose into uttering disqualifying statements.
21. A claim that an attorney has manufactured the grounds
for the judge’s disqualification is in the nature of an affir-
mative defense to an otherwise valid disqualification motion.
In order to prevail upon such a “defense”, it must either be
obvious that the attorney created the basis for the disqualli-
fication motion, or competent proof that such is the case must
be adduced.
22. Here there is no proof that Ms FitzSimmons took the
actions Justice Rose has accused her of. Moreover, the Hecht
court ignered Ms. FitzSimmons’ request for an evidentiary
hearing on this matter.
49a
23. In my opinion, in light of Ms. FitzSimmons’ sworn
statement and the absence of any competent evidence to the
contrary, there is simply no basis upon which the Hecht court
could have properly concluded that she “created” the grounds
for Justice Rose’s disqualification. Therefore, while a party
should not be permitted to cause the disqualification of a
judge by virtue of her own intentional actions, there has been
no showing that this is what has happened here.
24. I note, parenthetically, that many jurisdictions do not
permit judges who have been challenged by a disqualification
motion to controvert the facts alleged in support of the
motion. The fact that the Hecht majority appears to have
given more weight to Justice Rose’s allegations, based upon
information he claimed to have obtained from undisclosed
informants, than to the sworn statements of Ms. FitzSimmons,
based upon her personal knowledge may go a long way to
explaining why this is so.
25. The Hecht majority correctly noted that “[i]n a state
with a relatively small number of attorneys disqualifying
judges because an attorney before them had participated in
the process of or had opposed a judge or justice would subject
many judges and justices to disqualification.” However, the
majority appears to have leaped from this accurate premise to
the conclusion that Justice Rose’s comments did not warrant
disqualification in that case because he “was in a difficult
campaign for re-election” at the time he made those com-
ments and Ms. FitzSimmons “was actively opposing him.”
26. The majority is right that the fact that an attorney has
actively opposed a judge’s election, standing alone, has tra-
ditionally been deemed to provide an insufficient factual pred-
icate for judicial disqualification. However, the reason this is
So is that it is generally presumed that the mere fact that an
attorney has opposed a judge’s election will not cause the
judge to harbor such ill-feelings against the attorney as to
affect his ability to be impartial in cases in which that attor-
ney subsequently appears.
50a
27. Where the allegation of judicial bias is not based upon
mere speculation that the judge might harbor animus towards
the attorney who supported his adversary, but upon comments
made by the judge which manifest that he does indeed
mistrust and resent the attorney, such a presumption must
give way.
28. In Hecht, as well as here, the motion to disqualify
Justice Rose was not based upon the mere fact that Ms.
FitzSimmons opposed his election, nor upon her unsupported
speculation that Justice Rose might have become biased
against her as a result. The motion was based, rather, on a
series of comments Justice Rose made which show quite con-
clusively that Justice Rose believes Ms. FitzSimmons was
part of a conspiracy to destroy his career.
29. In denying the disqualification motion in Hecht, the
majority expressly relied on Justice Rose's stated belief that
he can be fair towards Ms. FitzSimmons'’ clients, regardless
of his feelings towards her. By deferring to Justice Rose's
subjective opinion of his ability to be unbiased, the Hechr
court applied an incorrect standard for determining whether
his impartiality “might reasonably be questioned.”
30. Like other similar provisions, Canon 3(E) of the
Nevada Code of Judicial Conduct does not specify the stand-
point from which the question of whether a “judge's impar-
tiality might reasonably be questioned” is to be determined
(i.e., from that of the litigant, the judge or a reasonable
observer).
31. However, the great weight of case law interpreting the
Code and an analogous federal statute, 28 U.S.C. § 455(a),
makes it clear that the question of whether the judge's
“impartiality might reasonably be questioned” is not to be
determined from the subjective perspective of the challenged
judge himself. In fact, because a judge may be convinced of
his own impartiality, yet still act in a manner which would
cause a reasonable person to question his impartiality, it is
generally agreed that the judge's subjective view as to his
ability to be impartial is irrelevant.
ee
Sla
32. The Hecht order stated that Justice Rose’s subjective
Perception of his ability to be fair was “reinforced” by the
fact that Ms. FitzSimmons’ clients won most of the cases in
which Justice Rose “sat as a justice since her allegations of
bias.” However, most of the cases in which Justice Rose voted
in favor of Ms. FitzSimmons clients were criminal cases, and,
I am informed, none of the cases in which Justice Rose voted
in favor of Ms. FitzSimmons’ clients were cases in which she
Was to receive a contingency fee. Thus, in none of those cases
did Ms. FitzSimmons have a substantial pecuniary interest.
Because that is so, Justice Rose’s voting record on prior cases
involving Ms. FitzSimmons’ other clients would not provide
a reasonable person with an accurate barometer of whether he
will be able to be impartial in this case Or in other cases in
which she has an interest.
33. The Hecht order also denied the motion on “implied
waiver” grounds. Once again the Court erred. As I noted in
my treatise, the “primary purpose of the implied waiver rule
. ts to nullify the rewards of ‘sand-bagging’ through
employment of dilatory tactics, and to prevent parties from
disqualifying judges after first determining their views as to
the merits.” These types of concerns are not present in situ-
ations where, as here, the disqualification motion was made
in a timely fashion, and before the challenged judge’s views
on the merits could be gleaned.!
34. The fact is, moreover, that shortly after Justice Rose
made one of his offending comments, Ms. FitzSimmons wrote
him a letter in which she requested (Justice Rose says
“demanded”) that he step down from all cases involving her
clients. That letter shows that Ms FitzSimmons was not
I understand that an additional basis for the disqualification of
Justice Rose—that he has expressed to the legislature his views on the mer-
its Of one of the issues present in this appeal—is present here. Since that
basis was not present in Hecht, and since this affidavit is being supplied in
Support of a document filed in response to Justice Rose’s recent supplement
arguing that Heche controls the disposition of the disqualification motion in
this case, the scope of this affidavit is being limited to the disqualification
issues Common to this case and Hechr.
52a
attempting to “sandbag” the Court through the “employment
of dilatory tactics,” nor to wait and see how Justice Rose
would rule on this case before seeking relief.
35. There are a number of practical reasons why an attor-
ney might file a disqualification motion in one case but not do
so in another.
36. For one thing, the right to seek judicial disqualification
typically belongs to the client, not the attorney; and while one
client may be willing to risk incurring the wrath of the chal-
lenged judge by seeking this type of relief, another may not.
Because this is so, for this Court to hold that an attorney's
decision not to seek disqualification for one client in one case
automatically waives a different client’s right to seek dis-
qualification in another case would deprive the second of a
right that many courts have held to be “fundamental.”
37. Likewise, an attorney may conclude that a judge’s
disqualification is necessary to protect the client’s interests
in one case, but not in another. For example, because
Ms. FitzSimmons neither could nor would have any pecuniary
interest in the outcome of a divorce case, she would have no
reason to believe that Justice Rose’s animus towards her
would manifest in an adverse decision against one of her
divorce clients.
38. The Hecht order conceded that, in finding that
Ms. FitzSimmons impliedly waived her client’s right to
seek disqualification in that case, it relied on two cases which
were distinguishable on the grounds that they concerned
untimely motions to disqualify judges in particular cases,
rather than counsel’s putative failure to seek to disqualify the
judge in prior cases in which she represented other clients.
Nevertheless, the majority opined that “the reasoning of those
cases appears equally applicable to FitzSimmons’ attempt to
disqualify Justice Rose in only some of the cases where she
has appeared as counsel for a party.”
39. I beg to differ. In the process of compiling Judicial
Disqualification 1 reviewed over 3,000 state and federal
53a
disqualification cases. I do not recall ever having come across
a single case in which any other Court ever held that a client's
right to seek a judge’s disqualification in one case could be
impliedly waived by its attorney's decision not to seek such
relief for a different party in a prior case.
40. In researching my second treatise (on conflicts of inter-
est and attorney disqualification) I did come across one case
in which an attorney sought to resist disqualification on the
grounds that the moving party had not moved to disqualify
him in a prior case involving that party in which the attorney
had appeared. Ullrich vy. Hearst Corp., 809 F. Supp. 229
(S.D.N.Y. 1992). In Ullrich, however, the Court summarily
disposed of the attorney's implied waiver argument.
41. In my opinion, the reasons for rejecting an “implied
waiver” defense in this case are much more compelling than
they were in Ullrich. For one thing, while an attorney is
rarely disqualified by a court sua sponte, the Code of Judicial
Conduct is self-enforcing on the part of the judge.
42. The Code exists, moreover, not merely to vindicate the
interests of a party or an attorney, but to preserve the public's
confidence in the integrity of the judicial system. Because this
is so, I am of the opinion that an attorney can neither confer
upon a judge the right to violate a Canon of the Code of Judi-
cial Conduct, nor agree to waive such a violation.
43. The Hecht majority’s final reason for not disqualify-
ing Justice Rose on the basis of his animus towards Ms.
FitzSimmons was that, if it permitted her to seek Justice
Rose's disqualification every time she represented a party
before this Court or “associated to represent a party,” she
“would have a potent weapon that would permit [her] to dis-
qualify one justice of the court in any case.”
44. This argument has some superficial appeal. However, in
my opinion, it does not hold up under analysis. For one thing,
the possibility that Justice Rose might have to disqualify
himself from participating in multiple cases involving Ms.
Fitzsimmons’ clients is hardly novel. Judges routinely recuse
54a
themselves from cases involvifiz else felatives, former part
ners and others with whom they ae imimaely aequainied
45. Since judges routinely Misqualify themeelves from
cases involving those with whi) (hey are perceived ty have
a close relationship, there wo] Appeal 18 he ne HOunA Pennnn
for holding that judges are iHune 10 Aisqualifieation when
the opposite is perceived.
46. It is true that, when 4 judge indicates that he will
recuse himself from all case4 in whieh a particular attorney
appears as counsel of record, the theoretical possibility exists
that the attorney could be retained asa stratagem in order to
force the ouster of an unwahted judge, However, it would
appear that few courts have declined to disqualify themselves
on this basis.
47. One reason why this i$ 0 iS that, in situations where a
court is truly concerned abot the possibility that an attorney
or firm has been retained as @ Ploy for the purpose of effect-
ing the disqualification of ¢ J¥éZ¢, the court may solve the
problem by disqualifying the A“9Fmey —# need not disqualify
the judge.
RICHARD EDWED FL AMM
ICM AKI FAW AKI FL AMM
SUBSCRIBED and SWORN tc
before me this 19th day of Adige, 1997
STACEY SILVERBERG.
NOTARY PUBLIC
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.