Berquist v. Dist. Ct. (The Las Vegas Philharmonic) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ANNE BERQUIST, No. 84811
Petitioner, .
vs. asi a x
THE EIGHTH JUDICIAL DISTRICT f f= i}
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF NOV 16 2022
CLARK; THE HONORABLE LINDA cummpepin of
MARIE BELL; AND THE HONORABLE “CLE decouir
SUSAN JOHNSON, DISTRICT JUDGE, yh IpEPUTeeeRK
Respondents,
and
THE LAS VEGAS PHILHARMONIC;
AND JERI CRAWFORD,
Real Parties in Interest.
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
This original petition for a writ of mandamus seeks
disqualification of a district court judge in a wrongful termination matter.
Petitioner Anne Berquist filed a wrongful termination suit against her
former employer, real party in interest the Las Vegas Philharmonic (the
LVP) and its board member, real party in interest Jeri Crawford, allevine
various fraud and contract-based claims. After the case was reassigned to
Judge Susan Johnson, she conducted a hearing on the LVP and Crawford’s
joint motion to dismiss. During that hearing, Judge Johnson made
comments about her knowledge of the LVP’s existence when she was in high
school and suggesting that the LVP’s longevity in the community was
indicative of it being a “healthy organization.” Judge Johnson then granted
the motion to dismiss, in part, dismissing all but one of Berquist’s claims.
Berquist moved to disqualify Judge Johnson, arguing that her comments at
the motion to dismiss hearing indicated that she used extrajudicial
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knowledge in rendering her decision, which demonstrated bias in favor of
the LVP. Chief Judge Linda Bell denied the motion, finding that Berquist
did not establish sufficient factual or legal grounds for disqualification.
Berquist filed the instant petition, arguing that the district court applied
the wrong legal standard when ruling on her motion, and this court ordered
real parties in interest to file an answer.
A writ of mandamus “is available to compel the performance of
an act that the law requires... or to control an arbitrary or capricious
exercise of discretion.” NRS 34.160; Intl Game Tech., Inc. v. Second
Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (same).
Although “a petition for a writ of mandamus is the appropriate vehicle to
seek disqualification of a judge,” Ivey v. Eighth Judicial Dist. Court, 129
Nev. 154, 158, 299 P.3d 354, 357 (2013), “[p]etitioner[ | carr[ies] the burden
of demonstrating that extraordinary relief is warranted.” Pan v. Eighth
Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004); Smith v.
Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991)
(observing that “the issuance of a writ of mandamus...is purely
discretionary with this court’). “[A] judge ...is presumed not to be biased,
and the burden is on the party asserting the challenge to establish sufficient
factual grounds warranting disqualification.” Goldman v. Bryan, 104 Nev.
644, 649, 764 P.2d 1296, 1299 (1988), overruled in part on other grounds by
Halverson v. Hardcastle, 123 Nev. 245, 265, 163 P.3d 428, 442-43 (2007). A
judge’s decision that there are no grounds for disqualification is “given
substantial weight and [will] not be overturned in the absence of a clear
abuse of discretion.” Id. Gnternal citation omitted).
Having reviewed the petition, answer, reply, and supporting
documents, we conclude that the district court did not err by denying
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Berquist’s disqualification motion. See PETA v. Bobby Berosini, Ltd., 111
Nev. 431, 438, 394 P.2d 337, 341 (1995) (explaining that whether a judge’s
“impartiality can reasonably be questioned under an_ objective
standard ...is a question of law” this court reviews de novo), overruled on
other grounds by Towbin Dodge, LLC v. Dist. Court, 121 Nev. 251, 112 P.3d
1063 (2005). We first reject Berquist’s argument that the district court
applied an incorrect legal standard when considering her motion. See
Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992) (“[I]n
reaching a determination, the district court must apply the correct legal
standard.”). Because Judge Johnson’s alleged bias stemmed from an
extrajudicial source, the “objective reasonable person” standard set forth in
Ybarra v. State, 127 Nev. 47, 51, 247 P.2d 269, 272 (2011) applied, and the
district court’s order made clear that it was applying that standard in its
analysis.' See id. (explaining that the test for evaluating a judge’s
impartiality is “whether a reasonable person, knowing all the facts, would
harbor reasonable doubts about [the judge’s] impartiality.” (quoting PETA,
111 Nev. at 438, 394 P.2d at 341)). We further agree with the district court
that there is nothing in the record to suggest that Judge Johnson’s remarks
indicate an “improper bias or prejudice [because] they [do not] show that
[she] has closed...her mind to the presentation of all the evidence.”
Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998). We
cannot conclude that Judge Johnson’s comment about the LVP’s long-
1While we agree with Berquist that the standard pronounced in
Kirksey v. State, 121 Nev. 980, 1005-06, 923 P.2d 1102, 1118 (1996), differs
from the reasonable person standard set forth in Ybarra, 127 Nev. at 51,
247 P.2d at 272, this court recently reaffirmed that the Kirksey standard
applies when the judge “gained knowledge of... alleged prejudicial facts
while acting in her official capacity.” Canarelli v. Eighth Judicial Dist.
Court, 138 Nev., Adv. Op. 12, 506 P.3d 334, 339 (2022).
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standing presence in the Las Vegas community, without more, “would cause
an objective person reasonably to doubt [her] impartiality.” Ybarra, 127
Nev. at 52, 247 P.3d at 272; cf. Jacobson v. Manfredi by Manfredi, 100 Nev.
226, 230, 679 P.2d 251, 254 (1984) (providing that disqualification is not
warranted “merely because [the judge] knows one of the parties’). Because
Berquist failed to meet her burden of demonstrating that disqualification
was warranted, Goldman, 104 Nev. at 649, 764 P.2d at 1299, we are not
convinced that our extraordinary intervention is warranted. Accordingly,
we
ORDER the petition DENIED.?
oe aha. J.
Pieris
Ab gn8 J
Stiglich
cc: Hon. Linda Marie Bell
Hon. Susan Johnson, District Judge
Gibson Lexbury LLP
McDonald Carano LLP/Las Vegas
Jolley Urga Woodbury Holthus
Eighth District Court Clerk
2We decline to address Berquist’s argument that Judge Johnson’s
rulings on the motion to dismiss were clearly erroneous, as there is no
evidence that her ruling on the merits of that motion was influenced by her
extrajudicial knowledge of the LVP’s existence. See Whitehead v. Nev.
Comm’n on Judicial Discipline, 110 Nev. 380, 428 n.45, 873 P.2d 946, 976
n.45 (1994) (stating “the rule that a disqualifying bias must stem from an
extrajudicial source and result in an opinion on the merits”).
8The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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