THOMAS NEVIUS, Petitioner, v. WARDEN, NEVADA STATE PRISON, E.K. MCDANIEL; and ATTORNEY GENERAL OF NEVADA, FRANKIE SUE DEL PAPA, Respondents; THOMAS NEVIUS, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent
Nevius v. Warden, Nevada State Prison
Springer, J., dissented.
THOMAS NEVIUS, Petitioner, v. WARDEN, NEVADA STATE PRISON, E.K. MCDANIEL; and ATTORNEY GENERAL OF NEVADA, FRANKIE SUE DEL PAPA, Respondents. THOMAS NEVIUS, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.
THOMAS NEVIUS, Petitioner, v. WARDEN, NEVADA STATE PRISON, E.K. MCDANIEL; and ATTORNEY GENERAL OF NEVADA, FRANKIE SUE DEL PAPA, Respondents. THOMAS NEVIUS, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.
No. 29027
No. 29028
August 28, 1997
944 P.2d 858
Springer, J., dissented.
Terri Steik Roeser, Zephyr Cove; Michael Pescetta, Assistant Federal Public Defender, Las Vegas, for Petitioner and Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Clark County, for Respondents.
OPINION
Per Curiam:
Petitioner/appellant Thomas Nevius claims that Justice Cliff Young is disqualified in these cases because: (1) the Attorney General, whose office represents the State, endorsed and publicly supported Justice Young in his successful 1996 re-election campaign, and (2) Justice Young stated that he upheld the death penalty seventy-six times while on the Court. The first ground for disqualification was made and rejected in State, Dep't of Transp. v. Barsy, 113 Nev. 709, 941 P.2d 969 (1997), and that decision is dispositive of this ground for disqualification.
During the 1996 election, Justice Young's opponent attacked him for dissenting in a death penalty case. In response, Justice Young stated that he favored the death penalty in the appropriate case and pointed out that he had voted to uphold the death penalty seventy-six times. Nevius contends that Justice Young has an extra-judicial interest in keeping this tally as high as possible. We disagree.
Justice Young was simply responding to an assertion, based on one case, that he was soft on the death penalty and demonstrating to the electorate that the allegation against him was distorted. We have previously stated that reasonable latitude must be given a judge or justice to permit him or her to run an election campaign and respond to criticism. See Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 644, 940 P.2d 134 (1997). Nevius concedes that a general philosophical orientation, or a belief in a particular controversial legal position, is not normally a ground for disqualification. See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820-21 (1986); U.S. v. Cooley, 1 F.3d985 (10th Cir. 1993). Citing Justice Young's record in upholding the death penalty was nothing more than showing that he will enforce Nevada law in an area very important to Nevada voters, and this does not constitute a disqualifying bias or the appearance thereof.
Accordingly, the motion to disqualify Justice Young is denied.
Rose and Maupin, JJ., concur.
The Honorable Miriam Shearing, Chief Justice, voluntarily recused herself from participation in the decision of this appeal.
The Honorable Cliff Young, Justice, did not participate in the decision of this matter.