LESLIE MARTIN, Appellant, v. CRAIG STEPHEN BECK, GREGORY LYNN BECK and DONA-LIS WALLER as Co-Executors of the Estate of DON BECK, Deceased, Respondents
Martin v. Beck
Steffen, C. J., Young and Rose, JJ., concur.
LESLIE MARTIN, Appellant, v. CRAIG STEPHEN BECK, GREGORY LYNN BECK and DONA-LIS WALLER as Co-Executors of the Estate of DON BECK, Deceased, Respondents.
LESLIE MARTIN, Appellant, v. CRAIG STEPHEN BECK, GREGORY LYNN BECK and DONA-LIS WALLER as Co-Executors of the Estate of DON BECK, Deceased, Respondents.
No. 27205
May 3, 1996
915 P.2d 898
Kenneth J. McKenna, Reno, for Appellant.
Mortimer, Sourwine & Sioane, Ltd., Reno, for Respondents.
OPINION
By the Court,
Shearing, J.:
Appellant Leslie Martin has submitted a motion to disqualify Justice Rose from participating in her appeal. Martin's motion is based on two alleged grounds: (1) that Justice Rose has filed a perjury complaint against her counsel, Kenneth J. McKenna, with the Attorney General's Office; and (2) that Justice Rose has a personal bias against McKenna as demonstrated in Justice Rose's response to the motion to disqualify him in Snyder v. Viani, Docket No. 27326.
We first note that Martin's motion is procedurally deficient. NRAP 35(a) requires that a disqualification motion
contain the certificate of the attorney, as an officer of the court, reciting specifically under oath that the attorney has read the motion . . . and supporting documents, that they all are in the form required by this rule, that based on personal investigation the attorney believes all grounds asserted to be legally valid and all supporting factual allegations to be true, and that the motion is made in good faith and not for purposes of delay or for other improper motive.
Martin's motion includes no attorney's certificate, and this failure to comply with NRAP 35(a) is sanctionable. See NRAP 35(e). Although we could reject Martin's motion on the procedural deficiency alone, we conclude that her motion lacks substantive merit as well.
Nevada Code of Judicial Conduct ("NCJC") Canon 3E provides that "[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) the judge has a personal bias or prejudice concerning a party or a party's lawyer." The NCJC's preamble provides that it should be applied consistently with "constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances," and that it is "to be construed so as not to impinge on the essential independence of judges in making judicial decisions."
This court has previously concluded that
[i]n 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.
In re Petition to Recall Dunleavy, 104 Nev. 784, 790-91, 769 P.2d 1271, 1275 (1988). Therefore, although NCJC Canon 3 requires disqualification when a judge has a personal bias against a party's attorney, allegations of such bias must be carefully scrutinized so that the independence of Nevada's judiciary is not impeded.
In the present case, we are not convinced that McKenna has demonstrated that Justice Rose has a disqualifying personal bias against him. The Court of Appeals for the First Circuit has recognized that "[a] judge who believes misconduct has occurred has a responsibility to act. If a counsel oversteps his bounds, delay in issuing warnings or taking action may lead to matters getting further out of hand . . . ." In re Cooper, 821 F.2d 833, 843 (1st Cir. 1987). Additionally, courts have concluded that a judge's referral of an attorney to the state disciplinary board does not constitute disqualifying bias against the attorney. See, e.g., State v. Mata, 789 P.2d 1122 (Haw. 1990).
We conclude that under the circumstances presented here, Justice Rose could reasonably have determined that he had a responsibility to act and that his alleged actions regarding McKenna's possible perjury do not demonstrate a disqualifying bias against McKenna. Accordingly, appellant Martin's motion to disqualify Justice Rose is denied.
Steffen, C. J., Young and Rose, JJ., concur.
In spite of Martin's failure to comply with NRAP 35, we direct the clerk of this court to file Martin's motion to disqualify Justice Rose, which this court received on August 9, 1995.