# Petition for Writ of Certiorari — Buckwalter v. County of Clark > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0610%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 529 U.S. 1019 ## Text a Supreme Court, 0.8 (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 PUES A IINGD FREES AED sock ccicvecscscevessecceecss SEE MT SUC UMEDE (05-20 gh cd Zante Wy seers ous CES CERT CERT tn Bam ie a6 55 0) Paes s% divs in ved ebadcnewsvess Pcs SE TAGs EPEAT 5 sab 8 oda eve Ue cdeeedaan os 8 SS EA ee nee eye oer ee Sr ee ene oer Prey oer CONSTITUTIONAL PROVISION INVOLVED....... PRA IEE © WOE BERS GAR iirc ccna cewece’e dp sceacees 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..... Eo tidak ice kuyovvduecoseesasViroredanes’ nN 10 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- > 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. eee ee AS ee ee 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 ; 3 4 L q i ~ 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 s [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0610%3A1. Public record. Not legal advice.