Ham v. EIGHTH JUDICIAL DIST. COURT, ETC.

566 P.2d 420, 93 Nev. 409, 1977 Nev. LEXIS 581
CourtNevada Supreme Court
DecidedJuly 15, 1977
Docket9536
StatusPublished
Cited by26 cases

This text of 566 P.2d 420 (Ham v. EIGHTH JUDICIAL DIST. COURT, ETC.) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ham v. EIGHTH JUDICIAL DIST. COURT, ETC., 566 P.2d 420, 93 Nev. 409, 1977 Nev. LEXIS 581 (Neb. 1977).

Opinions

[410]*410OPINION

By the Court,

Manoukian, J.:

This is an original proceeding wherein Petitioner requests this Court to issue a writ of prohibition, which if granted, would preclude the Honorable Llewellyn A. Young, District Judge, from disqualifying himself as presiding Judge relative to these actions.

Two questions are presented for our determination in this extraordinary proceeding. (1) Whether a writ of prohibition is the proper remedy; (2) Whether a district court judge can voluntarily disqualify himself from participation in or consideration of proceedings pending before him, absent a judicially-warranted reason or justification for such a recusal. We answer the first issue in the affirmative and, upon these facts, the latter in the negative.

On October 15, 1973, being advised that all of the judges then sitting in the Eighth Judicial District had voluntarily [411]*411recused themselves, this Court assigned Respondent, the Honorable Llewellyn A. Young, from the Sixth Judicial District, to preside on two consolidated civil actions in that district. Petitioner and Doris Ham Shupe are adversaries in that litigation. Since that time, the Respondent haS presided over these consolidated proceedings for a period well in excess of three years and in doing so has heard and decided a number of contested motions including cross-motions for summary judgment February 16, 1977, which were decided in favor of Petitioner and against Ms. Shupe.

When Respondent ruled on the above motions, he set several remaining motions for hearing and decision commencing February 22, 1977, prior to the scheduled commencement of the jury trial February 28, 1977, and ordered that immediately thereafter, a stipulated-to, pre-trial conference would be held February 22, 1977, to and including February 26, 1977. On the morning of February 22, 1977, and prior to the hearing on the motions, the attorney for Ms. Shupe requested that counsel for both parties meet in chambers with Respondent, During this meeting, counsel for Ms. Shupe stated that his client believed Judge Young to be biased and prejudiced against her and further suggested that the jurist should voluntarily disqualify himself from further proceedings.

In response to these allegations of bias and prejudice, Respondent informed counsel that he entertained no such bias or prejudice for or against either party, stating additionally that during the course of the proceedings, he had ruled in favor of and against both parties. Notwithstanding this, the Judge agreed to disqualify himself and allow the parties fifteen days within which to agree upon a judge to whom the case would be reassigned.

The next day, February 23, 1977, in furtherance of the disqualification request, proceedings were conducted before Respondent with counsel for both parties present. During that proceeding, the previous day’s in-chambers discussion was substantially reiterated and made of record, and a proposed order of disqualification was presented to the Judge for signature by counsel for Ms. Shupe. Counsel for Petitioner objected to the reassignment contending that such a voluntary recusal, following as it did an untimely suggestion of bias and prejudice, was improper where it was expressly denied that bias or prejudice was the reason for the volunteered withdrawal. The formal written order of disqualification was not signed, and it is from the oral order of February 22, 1977, therefore, upon which Petitioner has based this application for extraordinary relief.

[412]*4121. Whether a writ of prohibition is the proper remedy?

Preliminarily, this Court is asked to decide whether or not a writ of prohibition is the proper procedure with which to resolve a question concerning the propriety of a trial judge’s voluntary disqualification. It is clear that a writ of prohibition must issue when there is an act to be “arrested” which is “without or in excess of the jurisdiction” of the trial judge under NRS 34.320,1 Culinary Workers v. District Court, 66 Nev. 166, 207 P.2d 990 (1949); Seaborn v. District Court, 55 Nev. 206, 29 P.2d 500 (1934), and “where there is not a plain, speedy and adequate remedy in the ordinary course of law” pursuant to NRS 34.330.2 Heilig v. Christensen, 91 Nev. 120, 532 P.2d 267 (1975).

Since the voluntary order of disqualification of a judge is not an appealable order in the “ordinary course of law”, NRAP 3A(b), see Clack v. Jones, 62 Nev. 72, 140 P.2d 580 (1943), Petitioner is, therefore, without a “plain, speedy and adequate remedy at law.” The unavailability of a valid legal basis for review satisfies one of the requirements for the issuance of a writ. The question of whether Respondent’s action in this case exceeded the jurisdiction of the court below, to fulfill the second prerequisite for issuance is, in actuality, the substantive issue raised by this petition, that of whether the recusal here, albeit voluntary, was proper. A resolution of this issue then will necessarily be dispositive of the question of “excess of jurisdiction”, and we turn now to consider it.

2. Whether a district court judge can voluntarily disqualify himself from participation in or consideration of proceedings pending before him absent a judicially-warranted reason or justification for such a recusal?

Petitioner contends that there does not exist that power inherent in the position which enables a trial judge, without exceeding his jurisdiction, to voluntarily recuse himself not only [413]*413at his discretion, at any time, but further without stating any reasons therefor. Looking beyond NRS 1.230(3)3 standing as the sole statutory authority for a disqualification, sua sponte, “upon the ground of actual or implied bias”, Ms. Shupe has directed this Court’s attention to District Court Rule 26,4 a rule restricting the involvement of any other judge into a case without written authority from the then-presiding judge, as it or its similar predecessors have been construed by State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948), and Weeks v. Weeks, 75 Nev. 411, 345 P.2d 228 (1959).

The issue we are being asked to resolve is, as we perceive it, more precisely stated, whether a judge may disqualify himself after he has ruled on litigated matters where it is not shown and where the judge denies that he is biased or prejudiced, following an untimely and informal claim of such bias or prejudice being made against him.

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Bluebook (online)
566 P.2d 420, 93 Nev. 409, 1977 Nev. LEXIS 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ham-v-eighth-judicial-dist-court-etc-nev-1977.