SHAUNA SNYDER, as the Special Administrator of the Estate of DANIEL PATRICK LOVETT, Decedent, Appellant, v. JOSEPH VIANI, Individually and dba JOE'S TAVERN; TOMMY JO MONTOYA; TAMMY ADAMS; MINERAL COUNTY SHERIFF'S OFFICE, a Political Subdivision; JOHN MADRASO, JR., in His Official Capacity as Sheriff and Individually; JOHN LEONHARDT, in His Official Capacity as Sheriff and Individually, Respondents
Snyder v. Viani
Shearing, and Rose, JJ., concur.
SHAUNA SNYDER, as the Special Administrator of the Estate of DANIEL PATRICK LOVETT, Decedent, Appellant, v. JOSEPH VIANI, Individually and dba JOE’S TAVERN; TOMMY JO MONTOYA; TAMMY ADAMS; MINERAL COUNTY SHERIFF’S OFFICE, a Political Subdivision; JOHN MADRASO, JR., in His Official Capacity as Sheriff and Individually; JOHN LEONHARDT, in His Official Capacity as Sheriff and Individually, Respondents.
SHAUNA SNYDER, as the Special Administrator of the Estate of DANIEL PATRICK LOVETT, Decedent, Appellant, v. JOSEPH VIANI, Individually and dba JOE’S TAVERN; TOMMY JO MONTOYA; TAMMY ADAMS; MINERAL COUNTY SHERIFF’S OFFICE, a Political Subdivision; JOHN MADRASO, JR., in His Official Capacity as Sheriff and Individually; JOHN LEONHARDT, in His Official Capacity as Sheriff and Individually, Respondents.
No. 23726
May 3, 1996
916 P.2d 170
Peter Chase Neumann, Reno, for Appellant.
Erickson, Thorpe & Swainston, Reno; Bradley, Drendel & Jeanney, Reno, for Respondents.
OPINION
By the Court,
Young, J.:
The Nevada Supreme Court issued its opinion in this case on November 30, 1994, upholding our prior decisions that have refused to impose liability upon servers of alcoholic beverages for damage caused by patrons who subsequently use our highways absent legislation establishing such liability. Justice Robert Rose was part of the three-Justice majority; Chief Justice Steffen and Justice Springer dissented.
On February 1, 1995, Shauna Snyder's new counsel filed a motion to disqualify Justice Rose pursuant to NRAP 35(a) on the ground that Justice Rose should not have participated in the decision because he owned a restaurant/bar in Clark County, Nevada, and this created a conflict of interest with the issue decided. Snyder's motion also seeks vacation of the issued opinion and a rehearing before "non-disqualified" judges, pursuant to NRAP 40.
When a justice has participated in a case, NRAP 35 requires that a motion to disqualify must establish that it is timely filed and that the alleged disqualifying interest amounts to "fraud or like illegal conduct." Snyder and her attorney had actual and constructive knowledge of Judge Rose's restaurant/bar ownership well prior to our decision in November, 1994 and Snyder waived any disqualification claim by not asserting it sooner. Further, Snyder's allegations, even if true, do not amount to "fraud or like illegal conduct" and therefore the grounds for her motion to disqualify are insufficient as a matter of law.
We also conclude that Justice Rose's ownership did not create a direct, ongoing pecuniary interest such that would disqualify him from participation in this case. Accordingly, we deny Snyder's motion to disqualify Justice Rose and her petition for rehearing.
DISCUSSION
The threshold issue is whether Snyder had, as a matter of law, actual or constructive notice of Justice Rose's ownership of a restaurant/bar in Las Vegas prior to our decision in this case and is thereby precluded from now asserting this motion pursuant to NRAP 35. We answer this question in the affirmative.
Actual notice of interest
In addition to the substantial information that clearly gave constructive notice to the public at large about Justice Rose's restaurant/bar ownership, the record establishes that Snyder's attorney had actual notice of Rose's interest. In June 1994, Snyder's former attorney in the appeal of this case had a conversation with Clark Santini about this very case and Rose's ownership of a bar. Santini, an experienced investigator by profession, had a detailed recollection of that conversation.
While Snyder's former attorney initially denied having any knowledge of Rose's restaurant/bar interest prior to the decision, he did not respond to Santini's allegations when given the opportunity, and Snyder argued only that notice to her former attorney is insufficient to bind her.
Snyder's claiming that her attorney's knowledge does not bind her is directly contrary to our holding in the Ainsworth case and in numerous additional cases we have decided in the past decade. See, e.g., Stoecklein v. Johnson Electric, Inc., 109 Nev. 268, 273, 849 P.2d 305, 309 (1993); Arteaga v. Ibarra, 109 Nev. 772, 776-77, 858 P.2d 387, 390 (1993). Therefore, Snyder's former attorney's actual knowledge of Rose's restaurant/bar ownership is imputed to Snyder. Since Snyder did not take any action to object to Rose's sitting on this case on the basis of his restaurant/ bar ownership, those grounds for disqualification have been waived.
Constructive notice of interest
This court has established that if a party or his/her attorney has constructive notice of a judge's interest or relationship before a case is decided and does not object, that conflict or relationship will be waived. Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003 (1989). In that case, numerous conflicts or relationships of a former justice who authored an opinion were cited as grounds for a rehearing of the case, and this court stated what was sufficient, as a matter of law, to put the insurance company, Combined, and its attorneys on notice of an interest or relationship.
Combined alleged that the counsel for the winning party, Ainsworth, had assisted the former justice in a prior campaign and was also a close personal friend. After observing that allegations of bias in favor of or against an attorney for a litigant generally are not sufficient for disqualification of a judge, this court observed that Ainsworth's attorney's relationship with the campaign conducted years previous was "fully disclosed in numerous public, political advertisements and was well-known among members of the state bar long before this appeal was ever perfected." Id. at 261, 774 P.2d at 1020. The court determined that Combined knew or should have known of this political relationship and stated:
Well-reasoned authority supports a conclusion, however, that counsel, knowing facts assertively supportive of a motion for reconsideration, recusal or vacatur based upon charges of bias and impropriety, "may not lie in wait" and raise those allegations in a motion "only after learning the court's ruling on the merits."
Id. at 260, 774 P.2d at 1019 (quoting Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986), cert. denied, 481 U.S. 1016 (1987)).
Combined Insurance also claimed that the former justice had a close association with the Nevada Trial Lawyers Association (NTLA) and had been given an award by it the previous year, this being grounds for disqualification because NTLA had filed an amicus brief in the case and Ainsworth's attorney was prominent in the organization. However, this court concluded that some of the attorneys representing Combined were members of NTLA and presumably had knowledge of the award at the time it was conferred. The court also referred to several newspaper articles about the former justice's award and concluded that Combined's counsel "knew or had reason to know of the award prior to the issuance of this court's decision," and that "Combined's failure to tender a prompt objection constitutes a waiver of its right to raise the issue at this late date." Ainsworth, 105 Nev. at 263-64 n.17, 774 P.2d at 1022 n.17.
Combined also claimed that the former justice had an interest in a business venture with Ainsworth's counsel. However, the court stated that: "[I]t is clear from the record that such a relationship was revealed in a public notice published in Reno's largest newspaper of general circulation on four separate occasions." Id. at 270 n.22, 774 P.2d at 1026 n.22. After a review of all the evidence sufficient to provide actual or constructive knowledge of the interests or relationships of the former justice prior to the decision, this court concluded that the former justice did not have "any direct, ongoing pecuniary interest in the outcome of any litigation before this court," that the factual allegations supporting a rehearing were known or should have been known to Combined's counsel well before the decision, and that no rehearing was warranted because it was not established that the former justice "had any direct disqualifying interest in this litigation or that his impartiality toward the litigants might reasonably be questioned." Id. at 269, 270, 774 P.2d at 1026.
In numerous instances of claimed conflicts of interest, we held in Ainsworth that newspaper articles, legal notices, or common knowledge provided actual or constructive knowledge to the litigant's attorney and precluded a challenge on those grounds after the issuance of the court's opinion. The information available to Snyder and her attorney of Rose's restaurant/bar ownership prior to the decision in this case was far more extensive than any such information cited in the Ainsworth case. Specifically, there was abundant evidence of Rose's restaurant/bar ownership presented throughout Nevada in the years prior to our decision, specifically including the following:
1. More than a decade of application filings and hearing notices made by the Nevada Gaming Control Board and Commission concerning Justice Rose's ownership of a restaurant/bar with fifteen slot machines in Las Vegas, Nevada.
2. A decade of applications, filings, and hearing notices before the Liquor and Gaming Control Board in Clark County, Las Vegas, and Henderson, Nevada, concerning Justice Rose's ownership of a restaurant/bar and fifteen slot machines.
3. The listing of the business entity that owned the restaurant/ bar in Justice Rose's annual judicial disclosure reports for the years he has been a justice, most of the notices specifically describing the business as a restaurant/bar.
4. Numerous newspaper articles about Justice Rose's ownership of a restaurant/bar that appeared when the yearly disclosure reports were filed and when there was any activity taken by the Nevada Gaming Control Board or Commission concerning Justice Rose's ownership.
5. The enormous publicity given Justice Rose's restaurant/ bar ownership during the 1994 election. This included an entire month of television and radio commercials about his ownership. One radio commercial stated that Justice Rose "moonlights as a poolroom and tavern owner" and another made a very similar assertion. A television ad that ran extensively before the November 8, 1994 election stated that "Rose operates a bar and pool hall in Las Vegas" and at the same time showed film of the tavern. Literally hundreds of radio and television commercials were broadcast throughout Nevada about Justice Rose's interest just a month prior to the decision in this case.
NRAP 35
After the Ainsworth decision, this court adopted NRAP 35 to set forth the requirements a party must meet when attempting to disqualify a justice. A portion of the rule addressed the situation presented in the Ainsworth case.
In no event will the supreme court deem timely any motion or charge seeking the disqualification or recusal of a justice who has heard argument upon, or otherwise considered, any contested matter in the cause, except as to grounds based on fraud or like illegal conduct of which the challenging party had no notice until after the contested matter was considered.
NRAP 35(a).
The case of PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 894 P.2d 337 (1995), was the first one to consider Rule 35 when a justice's disqualification was sought after an opinion had been rendered. In PETA, a limited exception was made to the requirement that a claim for disqualification is untimely after the opinion has been issued unless "fraud or like illegal conduct" is shown. The court determined that, in the interest of justice, PETA should not be precluded if there was no way that it could have known of the interest or association the judge had prior to the decision. Id. at 433 n.2, 894 P.2d at 338 n.2.
We feel this is an appropriate exception to the strict preclusion set forth in Rule 35, but it has no application in this case. We have set forth the facts that gave Snyder both actual and constructive knowledge of Justice Rose's interest, and a further exemption to Rule 35 is not warranted. Additionally, we would recommend that future exceptions to Rule 35 should be done by amendments to the rule rather than by court decision.
No direct, ongoing interest
The facts concerning Justice Rose's ownership of a restaurant/bar are not in dispute. He has had this interest prior to becoming a judge, and such ownership has been common knowledge in Nevada. In fact, Justice Rose participated in the case of Hinegardner v. Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992), that this court decided three years ago which presented the same issue as did this case, and no complaint about Rose's participation was made.
It is obvious that Justice Rose had no interest in Joe Viani's tavern, and no lawsuits were pending that claimed liability against Rose on the theory espoused by Snyder. In Goldman v. Bryan, 104 Nev. 644, 651, 764 P.2d 1296, 1300 (1988), we cited State v. Scarborough, 410 P.2d 732, 734 (N.M. 1966), with approval for the proposition that a judge's "disqualifying 'interest' must be a present interest in the outcome of the proceeding, 'not some indirect, remote, speculative, theoretical or possible interest.'" It is true that Rose owned a restaurant/bar similar to that owned by Viani, but it has been held many times that a judge with an interest similar to that in litigation is not disqualified thereby. This principle was clearly stated in City of Valdosta v. Singleton, 28 S.E.2d 759, 763 (Ga. 1944), in which the Georgia Supreme Court stated:
[A] judge is not disqualified merely because of an interest in some abstract legal question that is presently involved and which may arise in some future litigation affecting him or his property rights .
See also State v. Churchwell, 195 So. 2d 599, 600-01 (Fla. Dist. Ct. App. 1967). If this case had been decided in Snyder's favor, the decision would have had no economic impact on Justice Rose.
Further, Justice Rose's interest is not ongoing — he entered into a written contract to sell the restaurant/bar in July 1994, four months prior to the decision in this case. At the time the opinion was issued, the sale was in escrow awaiting only the final approval of the Nevada Gaming Control Board and Commission. Approval was given, and the sale was finalized in early 1995.
Justice Rose has stated that he has no feelings of bias toward or against any party in this litigation and that he believes he has and can be impartial to all concerned. This court has previously held that a judge's opinion as to his or her impartiality should be given substantial deference. In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988). Given this deference and considering the undisputed facts and legal authority above-cited, we conclude that Justice Rose's ownership, as a matter of law, does not create a direct, ongoing pecuniary interest that would disqualify him from participation in this case or be a violation of the Nevada Code of Judicial Conduct.
Since Snyder's allegations present no legally cognizable grounds whatsoever supporting a reasonable inference of bias or impropriety, summary dismissal of her motion is warranted as a matter of law without any formal hearing. Ainsworth v. Combined Ins. Co., 105 Nev. 237, 270, 774 P.2d 1003, 1026 (1989); Dunleavy, 104 Nev. at 789, 769 P.2d at 1274. This rule of law was recently reaffirmed in Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994). In that case, Justices Steffen and Springer joined in determining that a motion to disqualify them was untimely, without merit, and insufficient as a matter of law to warrant a formal hearing under NRS 1.225(4). Id. at 422-29, 873 P.2d at 972-77.
Finally, the Commission contended that this court improperly refused to conduct a hearing on the motion for disqualification. See NRS 1.225(4) (hearing on a motion or charge for disqualification shall be had before the other justices of the supreme court). Not every motion for disqualification, however, rises to the level of a statutory "charge," which automatically calls for a formal hearing before unchallenged justices. For example, in the case of In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1274 (1988), this court explained:
[T]he statutory provisions and mechanisms providing for a judge's disqualification are not activated, and summary dismissal of the challenge is appropriate, where the challenge fails to allege legally cognizable grounds supporting a reasonable inference of bias or prejudice.
Similarly, in Ainsworth, 105 Nev. at 270-271, 774 P.2d at 1026, this court explained that because factual allegations raised in support of a motion to disqualify "present[ed] no legally competent grounds supporting a reasonable inference of bias . . . the hearing before unchallenged justices that is provided under NRS 1.225(4) [was] inapplicable." Therefore, in view of the legal insufficiency of the Commission's motion for disqualification, the Commission was not entitled to a hearing under NRS 1.225(4).
Id. at 428-29, 873 P.2d at 976-77.
Petitioner's other contentions
Snyder claims that this case presents a gaming issue and thus Justice Rose is precluded from participating in this case because of gaming Regulation No. 12. Regulation 12 requires any judge or justice holding a gaming license to refrain from participating in gaming-related matters. The record is uncontroverted that a gaming issue for a judge or justice has been narrowly construed and is one that involves the Gaming Control Board or Commission, its members or employees, or the enforcement or interpretation of Nevada gaming statutes.
The case before us does not involve any of these individuals or statutes. It is a case involving a fatal accident caused by a drunk driver whose estate Snyder now administers and a suit against a tavern asserting that it is responsible for the underaged drunk driver's death because it served him alcoholic beverages six hours before the accident. This is a case involving a fatal accident and the service of alcohol to a minor. It has nothing to do with gaming or the enforcement or interpretation of Nevada's gaming statutes. Accordingly, we reject Snyder's claim that Justice Rose should not participate in this case because it involves a gaming matter.
Snyder claims that a letter sent at the close of the 1994 election campaign by four tavern owners or operators, one of whom worked for the bar owned by Justice Rose, to other tavern owners seeking their support for Rose's re-election was improper. We disagree. The letter was on stationery that contained the logo of the four taverns and was signed by each tavern owner or operator. It was not a letter or brochure that came from the Rose campaign for re-election or on its stationery.
The tavern owners wrote the letter in response to numerous attacks by Rose's election opponent based on Rose's bar ownership. The letter made two basic points. First, that Justice Rose was a good justice who made sound decisions and was attempting to reform the Nevada court system. Second, that he understood Nevada and its gaming/liquor industry since he had held a liquor/ gaming license for more than a decade. An appendix was attached to the letter summarizing three cases decided by the Nevada Supreme Court in which Rose participated. One case concerned this court's established legal position that dram shop liability should be addressed by the Legislature and not enacted by an activist court. In that summary, it stated that Rose believed in "strong but fair DUI enforcement."
This letter was sent out by individuals who were not part of Justice Rose's campaign for re-election and did not represent that they were speaking for the justice. It was an interest group supporting a candidate and stating the reason for such support. The fact that a campaign manager approved the letter for its general content did not make it part of Justice Rose's campaign. Further, a candidate for judicial office has always been permitted to state his or her background, legal record, and commitment to upholding the law. Cf. Nevada Code of Judicial Conduct § 5A(3)(d)(i), 5A(3)(e), and 5C(2). Although not called upon to decide this issue because the statements were made by an independent group and not by Justice Rose, it would appear that any judge or justice should be permitted to state what he or she has done to improve the court system and the decisions he or she has made that are part of the record.
We conclude that Snyder's other claims are also without merit.
CONCLUSION
Snyder, through knowledge imputed to her by what her former counsel knew, had actual knowledge of Justice Rose's ownership of a restaurant/bar and also constructive notice of that interest. Pursuant to NRAP 35(a), Snyder is precluded from raising this claim because it was not asserted prior to this court's opinion.
The undisputed facts also show that the Justice's ownership did not create a direct pecuniary interest in this case and such ownership was in the final stages of being sold. Accordingly, the motion to disqualify and the petition for rehearing are denied, along with all other requests for relief asserted by Snyder.
Shearing, and Rose, JJ., concur.
In Santini's affidavit, he stated:
The second was a case involving a minor who was served liquor at Joe Viani's bar and then killed himself and others in an automobile accident thereafter. McKenna indicated he had lost the case in district court but had appealed it to the Nevada Supreme Court. He indicated that he was uncertain about the Supreme Court result and elaborated. McKenna stated that he knew Justice Steffen was a Mormon and always voted against the bars in these types of cases, but McKenna said he did not know how he would fare with Justice Rose because he knew Justice Rose owned a bar in Las Vegas. However, he gave me the impression that he did not necessarily think Justice Rose would be biased. It was unmistakable that Ken McKenna knew in June, 1994, that Justice Rose owned a bar in Las Vegas.