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
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
June 24, 1998
960 P.2d 805
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:
In November 1982, over fifteen years ago, a jury convicted Thomas Nevius of murder in the first degree. He was sentenced to receive the death penalty. This court affirmed his conviction and sentence on direct appeal. See Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985). In August 1996, Nevius filed in this court an original petition for a writ of habeas corpus (Docket No. 29027), and an appeal from an order of the district court denying his petition for post-conviction relief (Docket No. 29028). Because of the similarity of the facts and issues involved, this court consolidated these matters for disposition.
On October 9, 1996, this court entered an order dismissing the appeal and denying the habeas petition. Nevius timely petitioned this court for rehearing and for leave to present oral argument. That petition remains pending and unresolved in this court.
Thereafter, Nevius moved this court to disqualify Justice Cliff Young from participating in the decision of these matters. On August 28, 1997, this court issued an opinion denying the motion. See Nevius v. Warden, 113 Nev. 1085, 944 P.2d 858 (1997). On September 15, 1997, the clerk of this court received, but did not file, Nevius' instant motion seeking rehearing and reconsideration of the decision of August 28, 1997, denying the motion to disqualify Justice Young .
Nevius asserts that the opinion of August 28, 1997, "contains material mistakes as to the facts and law and it would be in the interest of the justice for the court to reconsider its decision." Specifically, Nevius again argues that Attorney General Frankie Sue Del Papa's public endorsement of Justice Young during Justice Young's most recent re-election campaign creates an appearance of impropriety which would cause a reasonable person to entertain doubt as to Justice Young's impartiality in this matter. Further, Nevius again argues that he is entitled to discovery of the circumstances surrounding the attorney general's endorsement.
The opinion rejecting Nevius' motion to disqualify specifically relied on the reasoning set forth in State, Dep't of Transp. v. Barsy, 113 Nev. 709, 941 P.2d 969 (1997). Barsy rejected a similar contention and quoted at length from Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003, cert. denied, 493 U.S. 958 (1989). Ainsworth, in turn, concluded that an attorney's associations with a justice's campaign did not constitute legally competent grounds for disqualification under this state's statutes, rules of judicial conduct, or under the Due Process Clause of the United States Constitution. Ainsworth further held that where no legally competent grounds supporting a reasonable inference of bias existed, "summary dismissal" of the challenge was warranted and no evidentiary hearing or discovery was required. Ainsworth, 105 Nev. at 270, 774 P.2d at 1026; see also In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988) (where motion to disqualify justice stated no legally cognizable ground for disqualification, the motion was wholly insufficient as a matter of law to warrant a formal hearing). This court's decisions in Barsy and Ainsworth set forth more than adequate grounds for rejecting Nevius' request for disqualification and discovery.
In the instant motion, Nevius improperly reasserts and rear-gues matters previously considered and rejected by the court. Nevius has not pointed to any material matter of law or fact that was overlooked or misapprehended in the court's prior opinion; nor has he demonstrated that rehearing and reconsideration will promote substantial justice.
Accordingly, we deny the motion for rehearing and reconsideration and specifically reaffirm in its entirety the prior opinion of this court denying the motion to disqualify Justice Young. ,
NRAP 35(d) provides in material part: "Serial motions or charges, whether entitled as separate challenges, or as supplements, or entitled in any other way, must not be filed, and will not be entertained." (Emphasis added.) Concerned that the instant motion might not comply with NRAP 35, the clerk of this court declined to file the motion and, instead, submitted it to the court for a determination of whether it should be filed. Although we entertain serious doubt about the motion's compliance with NRAP 35, in the interest of finally resolving this disqualification matter, we direct the clerk of this court to file the motion.
In Dunleavy, this court also observed that if an attorney's contribution to a judge's campaign could constitute a reasonable ground for disqualification upon a challenge made after the judge had ruled on the merits of a matter before the court, "the conduct of judicial business in the courts of this state would be severely and intolerably obstructed." Id. at 790, 769 P.2d at 1275. We reiterate that Justice Young ruled on the merits of these matters on October 9, 1996.
The Honorable Peter I. Breen, Judge of the Second Judicial District Court, was designated by the Governor to sit in the place of Justice Shearing, for the purposes of deciding this motion only.
The Honorable Merlyn H. Hoyt, Judge of the Seventh Judicial District Court, was designated by the Governor to sit in the place of Justice Cliff Young, for the purposes of deciding this motion only.