City of Las Vegas Downtown Redevelopment Agency v. Hecht , 113 Nev. 644 ( 1997 )

OPINION

By the Court,

Young, J.:

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”) have moved to disqualify Justice Robert E. Rose based upon his alleged animosity toward their attorney, Laura FitzSimmons (“FitzSimmons”), and because this condemnation action is gaming related and Justice Rose is disqualified pursuant to Regulation 12 of the Nevada gaming regulations from participating in gaming related cases. We conclude that Hecht has not made a sufficient showing of bias to meet the burden of proof necessary to disqualify a judge or justice and that neither the subject matter of this condemnation case nor the debt owed Justice Rose by a gaming entity requires his disqualification.

FACTS

Hecht and FitzSimmons claim that Justice Rose should be disqualified from hearing this or any other case where FitzSimmons is the attorney for a party because statements made by Justice Rose show that he has an express or implied bias against her. Hecht has cited numerous instances where Justice Rose has commented on the action taken by FitzSimmons or what Justice Rose believed was action taken by FitzSimmons’ close friend, former Justice Elmer Gunderson. The first statements made by Justice Rose were in the controversial Whitehead v. Nevada Commission on Judicial Discipline case, and FitzSimmons was one of the attorneys for Whitehead. FitzSimmons delivered a letter to Justice Rose demanding he recuse himself from the case because the Attorney General had reviewed a report alleging misconduct by Justice Rose and the Attorney General agreed with the Clark County District Attorney that the complaint against Justice Rose had no merit. Justice Rose had stated that he believed former Justice Elmer Gunderson and some of the Whitehead attorneys had made public information that was the basis of the misconduct claim against Justice Rose.

Nineteen ninety-four was an election year for Justice Rose, and FitzSimmons supported his opponent and worked in the opponent’s campaign office. She also arranged a press conference where statements were made by former U.S. Attorney Bill Maddox that were detrimental to Justice Rose’s campaign. During these political campaign exchanges, Justice Rose cited FitzSimmons’ activity as evidence that she opposed his reelection. While most of the comments made by Justice Rose were factually based, a few comments were apparently based on what Justice Rose had been informed FitzSimmons was doing against him.

After Justice Rose won the 1994 election, FitzSimmons filed a lawsuit to make public any telephone conversations between Justice Rose and third parties that had previously been sealed by the district court. FitzSimmons stated that the purpose of the request was so that she could use the statements in a legal action against Justice Rose; however, FitzSimmons gave neither Justice Rose nor the other third parties to the conversations notice of the petition or hearing. When Justice Rose and the third parties became aware of the action through sources other than FitzSimmons, they opposed it; and FitzSimmons did not pursue it further.

Hecht also claims that this condemnation action is part of a project to improve downtown Las Vegas and make Fremont Street and the fronting gaming casinos more attractive to tourists. As such, Hecht claims that the case involves “gaming,” even though no gaming was or will be conducted on the condemned property. Justice Rose holds a promissory note from individuals who own a bar in which gaming is conducted and which is located fifteen miles from downtown Las Vegas. Since the note is secured by a deed of trust on the property where gaming is conducted and the stock owned by the individuals is pledged to secure payment of the note to Justice Rose, Hecht asserts that Justice Rose has a financial interest in the note’s repayment, which constitutes an interest in gaming.

Justice Rose has filed a response to the motion to disqualify stating that he has no implied or express malice toward FitzSimmons that would prevent him from sitting in a fair and impartial manner on cases where she is the attorney of record. Justice Rose also asserts that FitzSimmons has waived any disqualification claim against him. Since the inception of the alleged bias, Justice Rose avers that FitzSimmons and her clients have not consistently moved to disqualify him and that this waives any disqualification claim asserted on that basis. Specifically, Justice Rose states that FitzSimmons has been counsel of record in eighteen cases that were decided or are pending before the Nevada Supreme Court since the Whitehead case (the time which FitzSimmons claims Justice Rose’s bias against her began) and that she has filed a formal demand to disqualify him in only half of them. Of the nine cases where FitzSimmons and her client did not move to disqualify Justice Rose, Justice Rose apparently voted in favor of FitzSimmons’ clients five out of eight times, with one case still pending. Accordingly, Justice Rose asserts that any claim by FitzSimmons and her clients based on this ground has been waived because FitzSimmons has not consistently moved to disqualify Justice Rose. Further, Justice Rose cites the record of rulings in her cases as clear evidence that he is fair and impartial in cases where FitzSimmons is an attorney for a party.

DISCUSSION

The disqualification of Justice Rose

At the outset, we must place the remarks made by Justice Rose concerning FitzSimmons in context. Late 1993 and 1994 was a political year for Justice Rose since he was up for reelection in November 1994. His re-election was opposed by FitzSimmons. The controversy between Justice Rose and FitzSimmons began with the Whitehead v. Nevada Commission on Judicial Discipline case, and this extremely high profile case became as much a political as a legal matter in the state. Justice Rose’s comments were not about the substance of the Whitehead case, or any other, but about the activities of his opponents.

Admittedly, a few of Justice Rose’s comments may have been better not made; however, the political realities of the situation cannot be ignored. Justice Rose was in a difficult campaign for re-election, and FitzSimmons was actively opposing him. Reasonable latitude should be given for activities or statements made by a judge or justice in a political campaign about attorneys who are actively opposing the jurist. In a state with a relatively small number of attorneys disqualifying judges because an attorney before them had participated in the process or had opposed a judge or justice would subject many judges and justices to disqualification. We recognized this precise point in In re Petition to Recall Dunleavy, 104 Nev. 784, 790-91, 769 P.2d 1271, 1275 (1988):

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.

We believe a judge or justice should be disqualified because of his bias or animosity toward an attorney for a party only in extreme situations, and we have so held in numerous cases. Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996) (holding that the fact that the prosecuting attorney had represented the judge on an unrelated matter up until the beginning of the murder case would not disqualify judge from presiding); Valladares v. District Court, 112 Nev. 79, 910 P.2d 256 (1996) (holding that a judge is not disqualified even though the judge challenged the attorney’s ethics, honesty, and competency in prior election campaign); Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003 (1989) (holding that a justice is not disqualified for bias even though he referred to a party’s attorney as the “loser” over 100 times in a response to motions). Legal authority throughout the United States is generally in accord with our decisions. “[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.” Richard E. Flamm, Judicial Disqualification § 4.4.4, at 124 (1996).

In reviewing the statements made by Justice Rose about FitzSimmons’ activities, we find that the statements are not critical of FitzSimmons’ ability or character and have none of the vindictiveness found in the statements made in Valladares where the attorney’s ethics, honesty, and competency were challenged. To the contrary in this case, Justice Rose has always acknowledged that FitzSimmons is an excellent attorney and a very persuasive advocate. A lawyer should not be permitted to create a situation involving a judge and then claim that the judge should be disqualified because of the events the attorney created. State v. Jeffers, 661 P.2d 1105, 1128-29 (Ariz. 1983). Nor should a judge be precluded from stating that an attorney or group of attorneys oppose him in an election and the reason for said opposition. Thus, a party or his attorney should not be permitted to cause the disqualification of a judge by virtue of his or her own intentional actions. Richard E. Flamm, Judicial Disqualification § 21.4 (1996); United States v. Helmsley, 760 F. Supp. 338, 342 (S.D.N.Y. 1991) (holding that hostile attacks by a party, much less by its lawyer, are not a sufficient basis for recusal); State v. Jeffers, 661 P.2d 1105 (Ariz. 1983). FitzSimmons does not contest the fact that she was actively opposing Justice Rose and supporting his opponent.

Based upon these observations, we believe that this situation is in line with Valladares, Ainsworth, and Sonner and that any disqualification of a judge or justice because of bias against an attorney for a party should be restricted to those cases where malice is obvious and there is little question that the judge or justice can not be fair and impartial.

Hecht has cited PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (1995), and the Nevada Code of Judicial Conduct, Canon 3(E), for the proposition that a judge should disqualify himself or herself whenever an appearance of impropriety will arise. However, PETA dealt with a district judge’s association with 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. Furthermore, the holding in PETA was not followed in the later case of Snyder v. Viani, 112 Nev. 568, 916 P.2d 170, cert. denied, ...... U.S. ......, 117 S. Ct. 385 (1996), where the Court rejected the PETA standard and reverted to the prior standard of whether there was a direct, ongoing pecuniary or personal interest in determining a judge’s disqualification. To the extent that our holding today is inconsistent with PETA, we modify PETA accordingly. While the Nevada Code of Judicial Conduct does state that a judge can be disqualified for animus toward an attorney, such disqualification should be restricted to those extreme situations not presented in this case.

In reaching our conclusion today, we have given substantial weight to Justice Rose’s opinion that he can be fair and impartial in any case where FitzSimmons represents a party. Many times we have stated that a judge or justice’s opinion concerning his or her bias or prejudice should be given substantial weight. Sonner, 112 Nev. at 1335, 930 P.2d at 712 (“this court has always accorded substantial weight to a judge’s determination that he can fairly and impartially preside over a case”); see also Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 (1988). Justice Rose’s opinion is reinforced by the fact that in FitzSimmons’ cases where he has sat as a justice since her allegations of bias, FitzSimmons’ clients have won most of those appeals.

Our decision today is also in line with this court’s previous concern about the disqualification of judges and justices because of a judge’s bias against an attorney of record. In In re Petition to Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988), we stated:

To permit an allegation of bias, partially founded upon a justice’s performance of his constitutionally mandated responsibilities, to disqualify that justice from discharging those duties would nullify the court’s authority and permit manipulation of justice, as well as the court. See State v. Rome, 685 P.2d 290, 295-96 (Kan. 1984); see also Tynan v. United States, 376 F.2d 761 (D.C. Cir. 1967), cert. denied, 389 U.S. 845.

If we permitted FitzSimmons to disqualify Justice Rose every time she represented a party or associated to represent a party before the Nevada Supreme Court, she would have a potent weapon that would permit her to disqualify one justice of the court in any case. We are reluctant to extend this advantage to any party unless a clear, substantial showing of actual bias has been made establishing a judge’s or justice’s bias against a party’s attorney.

The waiver of grounds to disqualify a judge

Justice Rose has been challenged in only half the cases in which FitzSimmons has appeared as counsel since the beginning of the alleged bias by Justice Rose. Grounds for disqualifying a judge can be waived by failure to timely assert such grounds. See In re Steven O., 279 Cal. Rptr. 868 (Ct. App. 1991); In re Marriage of Fifi, 776 P.2d 1167 (Colo. Ct. App. 1989). While the above cases concern untimely motions to disqualify a judge after the judge has ruled on certain aspects of a case, the reasoning of those cases appears equally applicable to FitzSimmons’ attempt to disqualify Justice Rose in only some of the cases where she has appeared as counsel for a party. Therefore, attorneys who seek to disqualify a judge because of bias or prejudice toward counsel should do so consistently or risk having their challenges considered waived by this court.

This is not a gaming case

Hecht claims that this case presents a gaming issue and that Justice Rose is precluded from participating because of Gaming Regulation No. 12. Regulation 12 requires that any judge or justice holding a gaming license refrain from participating in gaming related matters. Our case law makes clear that a “gaming issue” for a judge or justice is to be 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.” Snyder v. Viani, 112 Nev. 568, 577, 916 P.2d 170, 175 (1996).

Justice Rose owned a restaurant/bar and the real property on which it was located, which he sold in 1995. In exchange, Justice Rose received a promissory note from the individuals who purchased the stock of the corporation that owns the real property and business. The debt is secured by a pledge of the stock and a trust deed on the real property in favor of Justice Rose. FitzSimmons claims that this debt owed by a gaming enterprise to Justice Rose provides sufficient interest in gaming to justify his disqualification.

First, we do not consider the holding of an accounts receivable from a gaming establishment to be a substantial, direct, personal, or pecuniary interest in gaming. Further, we answered Hecht’s allegation in Snyder v. Viani, 112 Nev. 568, 916 P.2d 170, cert. denied, ...... U.S. ......, 117 S. Ct. 385 (1996), where a similar claim was made against Justice Rose — that he had owned a bar/ restaurant and therefore possessed a gaming interest. The Snyder court stated 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.’ ’ ” Id. at 575, 916 P.2d at 174 (quoting Goldman v. Bryan, 104 Nev. 644, 651, 764 P.2d 1296, 1300 (1988) (quoting State v. Scarborough, 410 P.2d 732, 734 (N.M. 1966))). The Snyder court concluded that Justice Rose’s interest in the bar was not an ongoing interest because he had sold the bar prior to the decision in the case and that his consideration of the case was proper. Snyder, 112 Nev. at 575-76, 916 P.2d at 174-75. If the ownership of a bar/restaurant is insufficient to be considered an interest in gaming, holding a promissory note after the sale of the property is certainly more remote than owning the property itself.

This is a condemnation issue, not a gaming case, and Justice Rose’s account receivable from a gaming entity located fifteen miles away from the condemned property does not qualify as an interest in gaming.

CONCLUSION

Hecht has not met his burden to establish that Justice Rose is prejudiced against their attorney, FitzSimmons. We also conclude that this is not a gaming case requiring Justice Rose to recuse himself. Accordingly, Hecht’s motion to disqualify Justice Rose is denied.

Shearing, C. J., concurs.