Taylor v. Brill , 2022 NV 81 ( 2022 )

138 Nev., Advance Opinion g I
IN THE SUPREME COURT OF THE STATE OF NEVADA
KIMBERLY D. TAYLOR, AN No. 83847
INDIVIDUAL,
Appellant,
vs.
KEITH BRILL, M.D., FACOG, FACS,
AN INDIVIDUAL; AND WOMEN'S
FILE
HEALTH ASSOCIATES OF
SOUTHERN NEVADA-MARTIN, PLLC,
A NEVADA PROFESSIONAL LIMITED
LIABILITY COMPANY, C IEF DERRY CLERK
Respondents.
Motion for disqualification of a supreme court justice in an
appeal from a judgment on a jury verdict in a medical malpractice action.
Motion denied.
Breeden & Associates, PLLC, and Adam J. Breeden, Henderson,
for Appellant.
McBride Hall and Robert C. McBride and Heather S. Hall, Las Vegas,
for Respondents.
BEFORE THE SUPREME COURT, EN BANC.'
'The Honorable Douglas W. Herndon, Justice, did not participate in
the decision of this motion. And, the Honorable Abbi Silver having retired,
this matter was decided by a five-justice court.
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OPINION
By the Court, HARDESTY, J.:
Nevada Code of Judicial Conduct 2.11(A)(6)(d) requires judges
to disqualify themselves from cases where they "previously presided as a
judge over the matter in another court." Here, we consider whether a
former district judge, now a supreme court justice, who was assigned a case
in district court but never heard or decided any matters in that case before
it was reassigned, "presided" over that case such that the justice must be
disqualified from hearing the case on appeal. We conclude that
disqualification is not required under these facts, as the justice did not
preside over the case in district court, and therefore deny the motion to
disqualify.
BACKGROUND
Following briefing in this appeal, Justice Douglas Herndon filed
a notice of voluntary disclosure informing the parties that he had inherited
the underlying matter on September 8, 2020, while serving as a district
judge and that he had retained it until he left the bench on December 31,
2020. His disclosure stated that the matter never appeared on his calendar
and that he had no knowledge about the case before the instant appeal. He
explained that he had no bias or prejudice as to any of the parties or issues
and concluded there was no basis for disqualification.
Now, appellant Kimberly D. Taylor moves to disqualify Justice
Herndon, contending that NCJC 2.11(A)(6)(d) is a mechanical rule that
requires disqualification whenever a judge previously presided over a
matter. Taylor points to the mandatory nature of the rule in asserting that
it contains no exceptions and does not require an inquiry into the judge's
involvement in the case. Justice Herndon responds that he saw no
documents and performed no work on the case in district court and "had no
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knowledge at all of the [case's] existence." He therefore asserts that his
impartiality could not reasonably be questioned, that the rule does not
require disqualification, and that he has a general duty to hear and decide
cases where disqualification is not required. Respondents Keith Brill and
Women's Health Associates of Southern Nevada-Martin, PLLC (collectively,
Brill) also oppose the disqualification motion. Brill's counsel asserts that
he was counsel of record in the district court proceedings and that Justice
Herndon did not hear or decide any matters while the case was assigned to
him. Brill argues that because Justice Herndon took no action in the case,
he does not need to disqualify himself.
DISCUSSION
NCJC 2.11(A)(6)(d) provides as follows: "A judge shall
disqualify himself or herself in any proceeding in which the judge's
impartiality might reasonably be questioned, including but not limited to
the following circumstances: . . . [t]he judge.. . previously presided as a
judge over the matter in another court." Our code of judicial conduct is
based on the American Bar Association's (ABA) model code. See In re Nev.
Code of Judicial Conduct, ADKT No. 427 (Order) (Nev. Dec. 17, 2009)
(recognizing that Nevada adopted the ABA's revised Model Code of Judicial
Conduct). Using the comments to Model Rule 2.11(A)(6)(d) as a starting
point, we observe that they do not discuss the judicial activity encompassed
by the phrase "previously presided as a judge over" so as to clarify when the
rule would require disqualification. See generally Model Code of Judicial
Conduct 2.11, cmts. Indeed, Taylor and Brill do not point to, and we did not
find, many decisions where courts have considered the meaning of
"preside [sl" in the context of this rule, despite its wide adoption. See
Charles Gardner Geyh et at, Judicial Conduct and Ethics § 4.14[1] at 4-57
(6th ed. 2020) (noting that Model Rule 2.11(A)(6)(d) is "relatively clear" and
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therefore has not been a "litigation-breeded I"); Dana Ann Remus, Just
Conduct: Regulating Bench-Bar Relationships, 30 Yale L. & Pol. Rev. 123,
138-39 n.74 (2011) (listing 18 states aside from Nevada that adopted the
2007 ABA Model Code).
Those courts that have adopted this rule and addressed the
issue, however, have recognized that a judge's mere administrative contact
with a case is not enough to trigger the rule's mandatory disqualification
requirement. For example, the Ohio Supreme Court concluded that a
challenged appellate judge did not "preside[ ]" over a matter where he, while
tasked with overseeing case assignments in the trial court, only signed an
order transferring the case from one department to another. In re
Disqualification of Tucker, 193 N.E.3d 593, 594 (Ohio 2022). The court thus
rejected the appellant's argument that Ohio's equivalent rule to NCJC
2.11(A)(6)(d) mandated disqualification under those facts. Id. An
Oklahoma appellate court similarly rejected an argument that this rule
required disqualification of a judge sitting on an appeal from a parental
rights termination order where the judge previously had limited
involvement in the appellant's criminal case. In re L.M., 276 P.3d 1088,
1108 (Okla. Civ. App. 2012) (describing the judge's involvement in the
criminal case as "accepting [the appellant's] waiver of preliminary hearing,
his stipulation to the State's application to revoke, and sentencing [him]
pursuant to a negotiated plea agreement").
These authorities demonstrate an understanding that a judge
does not "preside ll" over a matter, as that term is used in the
disqualification rule, merely because a case was administratively assigned
to a judge. Rather, to preside over a matter within the meaning of the
disqualification rule, the judge must have exercised some control or
authority over the matter in the lower court. And here, it is undisputed
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that the parties filed no motions in the case while it was assigned to Justice
Herndon in district court and he neither decided'any matters nor heard any
argument. Thus, he exercised no control or authority over the matter in
district court. IfJustice Herndon participates in this matter as an appellate
justice, he will not be reviewing his own decisions on appeal, as he made
none while the case was assigned to him in district court. Thus, while
Justice Herndon technically was assigned to the case in district court, the
relevant facts demonstrate that he took no action in it during the period of
his assignment and so did not "preside[ ]" over it in such a way that NCJC
2.11(A)(6)(d) mandates his disqualification.
CONCLUSION
NCJC 2.11(A)(6)(d) requires disqualification where a judge's
"impartiality might reasonably be questioned" because the judge
"previously presided as a judge over the matter in another court." As he did
not "preside[ 1" over this matter in the district court within the meaning of
the disqualification rule, the rule does not require Justice Herndon's
disqualification. We therefore deny Taylor's motion.
Hardesty
We concur:
C.J. ..4441.4.0
Par aguirre Stiglich
Cadish Pickering
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