CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, Appellant, v. JACOB CHIC HECHT, as Trustee of JACOB CHIC HECHT Revocable Living Trust, CECELIA HECHT APPELBAUM, JUAN DEL PRADO dba WORLD MERCHANTS IMPORTERS, LAWYERS TITLE OF LAS VEGAS, INC., NEVADA STATE BANK, CITY OF LAS VEGAS, a Municipal Corporation, Clark County, MARTIN D. HECHT, as Trustee Under the MARTIN D. HECHT Revocable Living Trust Dated September 5, 1989, DONALD HECHT, JACOB HECHT, KEVIN MURPHY dba MICHAEL MENS FASHION, CECELIA APPELBAUM, Trustee in Trust Under the APPELBAUM Family Trust, Dated October 20, 1989, Respondents
City of Las Vegas Downtown Redevelopment Agency v. Hecht
Shearing, C. J., Rose, J., and Sullivan, D. J.
CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, Appellant, v. JACOB CHIC HECHT, as Trustee of JACOB CHIC HECHT Revocable Living Trust, CECELIA HECHT APPELBAUM, JUAN DEL PRADO dba WORLD MERCHANTS IMPORTERS, LAWYERS TITLE OF LAS VEGAS, INC., NEVADA STATE BANK, CITY OF LAS VEGAS, a Municipal Corporation, Clark County, MARTIN D. HECHT, as Trustee Under the MARTIN D. HECHT Revocable Living Trust Dated September 5, 1989, DONALD HECHT, JACOB HECHT, KEVIN MURPHY dba MICHAEL MENS FASHION, CECELIA APPELBAUM, Trustee in Trust Under the APPELBAUM Family Trust, Dated October 20, 1989, Respondents.
CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, Appellant, v. JACOB CHIC HECHT, as Trustee of JACOB CHIC HECHT Revocable Living Trust, CECELIA HECHT APPELBAUM, JUAN DEL PRADO dba WORLD MERCHANTS IMPORTERS, LAWYERS TITLE OF LAS VEGAS, INC., NEVADA STATE BANK, CITY OF LAS VEGAS, a Municipal Corporation, Clark County, MARTIN D. HECHT, as Trustee Under the MARTIN D. HECHT Revocable Living Trust Dated September 5, 1989, DONALD HECHT, JACOB HECHT, KEVIN MURPHY dba MICHAEL MENS FASHION, CECELIA APPELBAUM, Trustee in Trust Under the APPELBAUM Family Trust, Dated October 20, 1989, Respondents.
No. 27942
June 3, 1997
940 P.2d 127
Bradford Jerbic, City Attorney, Las Vegas; Beckley, Singleton, Jemison & List and Daniel F. Polsenberg, Las Vegas; McDonough, Holland & Allen and Mark A. Wasser, Sacramento, California, for Appellant.
Kermitt L. Waters and Laura Wightman FitzSimmons, Las Vegas, for Respondents.
Chet Adams, City Attorney, Sparks; Shauna M. Hughes, City Attorney, Henderson; Richard C. Maurer, City Attorney, North Las Vegas; Noel S. Waters, District Attorney, Carson City, for Amicus Curiae City Redevelopment Agencies.
Lionel Sawyer & Collins, Las Vegas, for Amicus Curiae The Fremont Street Experience.
The Honorable Jerry V. Sullivan, Judge of the Sixth Judicial District Court, was designated by the Governor to sit in place of The Honorable A. William Maupin, Justice. Nev. Const, art. 6, § 4.
OPINION
Per Curiam:
FACTS
Respondents Jacob Chic Hecht, as Trustee of the Jacob Chic Hecht Revocable Living Trust; Martin D. Hecht, as Trustee under the Martin D. Hecht Revocable Living Trust dated September 5, 1989; Cecelia Appelbaum, Trustee in Trust, under the Appelbaum Family Trust dated October 10, 1989; Cecelia Hecht Appelbaum; Donald Hecht; and Jacob Hecht (collectively "Hecht") filed a motion to disqualify Justice Cliff Young from hearing the merits of the underlying appeal based on the grounds of actual bias, implied bias, and/or appearance of impropriety. Respondents base their argument on the fact that Justice Young allegedly harbored a bias against their counsel, Kermitt Waters.
Justice Young and his opponent in the last Nevada Supreme Court election, Judge Steve Jones, were present at an October 9, 1996 Washoe County Bar Association luncheon to answer questions about the upcoming election. Judge Jones was asked whether he would, if he won the election, recuse himself from an appeal pending in the Nevada Supreme Court in which Waters was representing a party who had been awarded $9,000,000 at trial; at that time, Waters had donated $27,882, personally and through his wholly owned corporation, to Jones' campaign. After Judge Jones answered the question, Justice Young stated:
Regarding the contributions, whether Judge Jones should disqualify himself, it is a matter of Judge Jones to decide from the standpoint of his own conscience. I think that the law limits individuals to $10,000 and corporations to $20,000. It would appear that perhaps Mr. Waters has exceeded to some extent those contributions. As far as other services, I know that recently Mr. Waters has made available two large billboards [for Jones] on top of his office which I presume has not at this time been known to my opponent.
Hecht argues that this statement amounted to an accusation that Waters had committed a crime and, as such, was evidence of Justice Young's actual or implied bias toward Waters; therefore, Hecht argues that Justice Young should be disqualified from hearing the merits in the underlying appeal.
Hecht also argues that Justice Young should be disqualified from hearing the underlying appeal because the law firm of Lionel Sawyer & Collins represents The Fremont Street Experience, an amicus curiae to this appeal, and Justice Young's son-in-law is a partner in that firm.
We conclude that Hecht's arguments lack merit, and we deny Hecht's motion to disqualify Justice Young.
DISCUSSION
This court has consistently held that the attitude of a judge toward the attorney for a party is largely irrelevant. Prior to our adoption of the Code of Judicial Conduct (the Code) in 1992, we considered Ainsworth v. Combined Ins. Co., 105 Nev. 237, 259, 774 P.2d 1003, 1019 (1989), in which we had affirmed a punitive damage award of $6,000,000. A petition for rehearing and a motion to disqualify former Chief Justice Elmer Gunderson were filed based upon Gunderson's participation in the previous decisions in the case. We held that "[gjenerally, an allegation of bias in favor of or against counsel for a litigant states an insufficient ground for disqualification because it is not indicative of extrajudicial bias against the party." Id. at 259, 774 P.2d at 1019; see also In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988). The purpose for such a policy was that:
In a small state such as Nevada, with a concomitantly limited bar membership, it is inevitable that frequent interactions will occur between the members of the bar and the judiciary. Thus, allegations of bias based upon a judge's associations with counsel for a litigant pose a particularly onerous potential for impeding the dispensation of justice.
Dunleavy, 104 Nev. at 790-91, 769 P.2d at 1275. Furthermore, we stated that if a litigant could successfully challenge a judge based upon allegations of bias against counsel for the litigant, "it 'would bid fair to decimate the bench' and lawyers, once in a controversy with a judge, 'would have a license under which the judge would serve at their will.' " Id. at 790, 769 P.2d at 1275 (quoting Davis v. Board of School Com'rs of Mobile County, 517 F.2d 1044, 1050 (5th Cir. 1975)). This policy still applies, and we continue to believe that to permit a justice or judge to be disqualified on the basis of bias for or against a litigant's counsel in cases in which there is anything but an extreme showing of bias would permit manipulation of the court and significantly impede the judicial process and the administration of justice.
The 1992 adoption of the Code did not vitiate these prior statements of the law concerning jurist disqualification. Canon 2 states the general principle that "[a] judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." However, Canon 3(E) of the Code specifically guides the judiciary in matters of disqualification. While Canon 3(E)(1)(a) states that a judge can be disqualified for animus toward an attorney, situations where such a disqualification has been found are exceedingly rare, and non-existent in Nevada. Richard E. Flamm, Judicial Disqualification § 4.4.4, at 124 (1996). "[T]o warrant judicial disqualification — much less other, more drastic sanctions — the judge's bias toward the attorney ordinarily must be extreme. Situations in which judges have manifested such extreme bias toward an attorney are exceedingly rare." Id.
In recent cases decided after the adoption of Canon 3(E)(1)(a), notwithstanding the Canon's expansive language, we have reaffirmed the policy that a judge's bias toward an attorney is largely irrelevant. In Valladares v. District Court, 112 Nev. 79, 910 P.2d 256 (1996), Judge Connie Steinheimer was campaigning for election to the bench and sent out two campaign letters very critical of then District Judge Lew Carnahan. The letters made disparaging remarks about Carnahan's ethics, honesty, and competency. Steinheimer won the election, and Carnahan appeared as the attorney for a party before Judge Steinheimer. He requested that she recuse herself from the case, Steinheimer refused, and Carnahan petitioned this court for a writ. In deciding the case, this court stated: "Judge Steinheimer does not possess an actual or apparent bias against Carnahan and therefore need not recuse herself." Id. at 84, 910 P.2d at 260.
Additionally, in Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996), the prosecutor represented the judge up to the day the prosecutor was to begin prosecuting Sonner in a death penalty case. While this court gives death penalty cases very careful scrutiny, we held that even though the prosecutor had represented the judge in an unrelated matter up to the time he began his prosecutorial duties in the murder case, there was no reason to conclude that the attorney-client relationship between the judge and the prosecutor in any way affected the judge's ability to be fair and impartial. In the Sonner case, substantial weight was given to Judge Wagner's opinion that he could be fair and impartial.
The facts presented in the case at bar do not rise to anything near the level warranting Justice Young's disqualification. The comments made by Justice Young were off-the-cuff remarks made during an election campaign; and they were not nearly as serious as those made in Ainsworth and Valladares, in which the judges made egregious remarks about counsel for a party, or the situation presented in Sonner. Justice Young's comments were based upon the information he had received and merely suggested that Waters may have engaged in impropriety. When an attorney enters the fray in a contested judicial election, he or she should anticipate that comments may be made about his or her activities by one side or the other. This is part of Nevada's judicial election process. Justice Young's remarks do not show evidence of a bias toward Waters that would mandate Justice Young's disqualification in this matter.
Additionally, we note that PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (1995), a case cited by Hecht, is inapplicable. PETA dealt with a judge's connection to a group whose activity was similar to that of a party and not with the relationship of the judge and an attorney for one of the parties. To the extent that PETA is inconsistent with this decision, we modify PETA accordingly.
We also conclude that Justice Young is not disqualified from hearing this appeal on the ground that his son-in-law is a partner in the Lionel Sawyer & Collins firm, which represents The Fremont Street Experience, an amicus curiae to this appeal. Canon 3(E)(1)(c) of the Code states:
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: . . . the judge knows that . the judge's . . . child wherever residing, . . . has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.
However, The Fremont Street Experience is not a party to this litigation, and Justice Young's daughter has no direct economic interest in the subject matter in controversy or any other "more than de minimis" interest that could be substantially affected.
Additionally, Canon 3(E)(1)(d) states:
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: . a person within the third degree of relationship to [the judge], or the spouse of such a person . is acting as a lawyer in the proceeding.
However, we have stated previously that representing an amicus curiae is not the equivalent of representing a "litigant" in an appeal. Ainsworth v. Combined Ins. Co., 105 Nev. 237, 266, 774 P.2d 1003, 1023 (1989). As such, it is clear that representing an amicus curiae is not the equivalent of "acting as a lawyer in the proceeding" pursuant to Canon 3(E)(1)(d), and Hecht's claim must fail. Even if we were to consider the representation of an amicus curiae a function undertaken "in the proceeding," the commentary to Canon 3(E)(1)(d) makes it clear that the attorney at issue must be actually involved in the representation of the amicus curiae, and not just affiliated with the law firm that is providing the representation. Hecht presented no evidence that Justice Young's son-in-law was actually representing The Fremont Street Experience, and therefore, Hecht's claim must fail.
CONCLUSION
Before a justice or judge can be disqualified because of animus toward a party's attorney, egregious facts must be shown. When reviewing the statement or conduct of a justice or judge made in a campaign setting, reasonable latitude must be given in recognition of the realities of the election process. This is particularly true if the attorney has inserted himself or herself into the contest.
Justice Young's remarks about Waters' donations certainly do not show any disqualifying animus toward Waters. Furthermore, Justice Young is not disqualified by virtue of the fact that his son-in-law is a partner in the law firm that represents an amicus curiae in this appeal. Therefore, Hecht's motion to disqualify Justice Young in this matter is denied.
Shearing, C. J., Rose, J., and Sullivan, D. J.
In Ainsworth, former Justice Gunderson openly ridiculed Combined's attorney in court, referred to him in a motion as a "loser" or "losing lawyer" approximately 130 times, and admitted to entering the case with a preconceived negative impression of Combined's counsel. Additionally, Ainsworth's attorney had acted as the campaign manager for former Justice Gunderson in one of his campaigns for the Nevada Supreme Court and had represented former Justice Gunderson's wife in a previous unrelated venture. Ainsworth v. Combined, 105 Nev. 237, 256-68, 774 P.2d 1003, 1017-25 (1989). In spite of these facts, we denied the motion to disqualify and the petition for rehearing.
PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (1995), has been cited for the proposition that a judge should disqualify himself or herself whenever an appearance of impropriety might arise. However, we conclude that the specific disqualification provisions of Canon 3(E), and subsequent case law applying these provisions, should control over the broader statement of Canon 2.
The Honorable Cliff Young, Justice, did not participate in the decision of this matter.