Hogan v. Warden

916 P.2d 805, 112 Nev. 553, 1996 Nev. LEXIS 71

• Court: Nevada Supreme Court
• Decided: May 3, 1996
• Docket: 23193
• Status: Published

Opinions

OPINION

By the Court,

Shearing, J.:

FACTS

On September 29, 1993, we issued an opinion in Hogan v. Warden, 109 Nev. 952, 860 P.2d 710 (1993), in which we affirmed the district court’s order dismissing Hogan’s post-conviction petition for a writ of habeas corpus. In our opinion, we concluded that the two aggravating circumstances on which Hogan’s death penalty is based are constitutionally valid. On October 18, 1993, Hogan filed a petition for rehearing. On October 27, 1993, this court filed an order substituting attorney Michael Pescetta, then Executive Director of the Nevada Appellate and Postconviction Project, as Hogan’s counsel.

On December 7, 1993, Hogan filed a motion for Justice Rose’s disqualification. In his motion, Hogan asserted that because Justice Rose was investigated in 1993 after he spoke to the Clark County District Attorney about a pending criminal matter, he should be disqualified from Hogan’s appeal, which was pending in this court during the same time frame. On December 10, 1993, attorney Cal J. Potter III, then President of the Postconviction Project’s Board of Directors, filed a notice of withdrawal of the motion for disqualification. Subsequently, on December 23, 1993, this court filed an order denying the request to withdraw the motion and noting that neither attorney Potter nor the Postconviction Project was counsel of record for Hogan.

On February 18, 1994, we denied Hogan’s disqualification motion; in our order, we determined that Hogan’s motion stated no legally cognizable ground warranting disqualification. On the same day (February 18, 1994), Hogan filed with this court a motion for leave to file a motion under seal. With this motion for leave, he submitted a “Motion for Disclosure of Grounds for Disqualification,” which this court received. According to this motion, attorney Thomas Pitaro, then Vice President of the Postconviction Project’s Board of Directors, represented Justice Rose when Justice Rose was investigated regarding his conversation with the District Attorney. Hogan maintains that attorney Pitaro also participated in the Postconviction Board’s decision to withdraw Hogan’s disqualification motion. According to Hogan, the fact that Pitaro represented Justice Rose and participated in making decisions about Hogan’s case gives rise to a conflict, notwithstanding this court’s conclusion that the disqualification motion could not be withdrawn.

On May 9, 1994, Hogan filed, through Pescetta, a motion for an order requiring the disclosure of informal judicial discipline proceedings. In this motion, Hogan seeks an order from this court directing disclosure by each justice and each judge before whom his case was previously pending of “any informal discipline, any informal arrangement to avoid discipline, or any other similar action of the Commission on Judicial Discipline, when the Commission was represented by the Attorney General or any other state prosecutor, to which the judicial officer was a party at the time [Hogan’s] case was also pending.” According to Hogan, this court’s opinion in Whitehead v. Nevada Commission on Judicial Discipline, 110 Nev. 380, 873 P.2d 946 (1994), reveals that in the past, the Attorney General administered “secret” disciplinary arrangements to some judges. Hogan maintains that if any judge involved in his proceedings was concurrently subject to such “secret” disciplinary proceedings, the judge would be disqualified under the Nevada Code of Judicial Conduct (“NCJC”).

DISCUSSION

Motion for Disclosure of Grounds for Disqualification

In his motion, Hogan asks this court to take whatever action is necessary to ensure complete disclosure of information relating to the disqualification issue. We conclude, however, that Hogan’s motion must be denied.¹

First, because Hogan’s motion follows an earlier motion, it constitutes a serial disqualification motion. NRAP 35(d) provides that “[s]erial motions or charges, whether entitled as separate challenges, or as supplements, or entitled in any other way, must not be filed, and will not be entertained.” See also Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 380, 429, 873 P.2d 946, 977 (1994) (recognizing that NRAP 35(d) precludes this court’s consideration of serial disqualification motions). Therefore, Hogan’s motion is procedurally deficient under NRAP 35(d). Additionally, to the extent that Hogan’s motion is a supplement to his original disqualification motion, it became moot when, on February 18, 1994, we denied the original motion. See generally NCAA v. University of Nevada, 97 Nev. 56, 624 P.2d 10 (1981).

Finally, even considering the merits of Hogan’s motion, we conclude that it sets forth no basis for disqualification.² This court has previously rejected a similar disqualification claim. In Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003, cert. denied, 493 U.S. 958 (1989), after this court had rendered its decision, the insurer filed a motion to disqualify former Justice Gunderson. The motion was based, in part, on the ground that the attorney who had signed an amicus brief (Laura Wightman FitzSimmons) had simultaneously represented former Justice Gunderson in another matter.

This court concluded that this alleged ground did not warrant disqualification. With regard to former Justice Gunderson’s simultaneous representation by attorney FitzSimmons, who had signed an amicus brief in the appeal, this court determined that FitzSimmons’ involvement in the case was “extremely limited and [could not] reasonably support any inference of impropriety.” Id. at 265, 774 P.2d at 1023. In addition, this court noted that FitzSimmons did not author the amicus brief, but merely signed it. Id.

Here, Hogan contends that attorney Pitaro repeatedly requested Pescetta to withdraw the disqualification motion and later moved the Postconviction Board’s Executive Committee to withdraw the disqualification motion. According to Hogan, Pitaro did not vote on whether to file the notice of withdrawal but that Pitaro proposed a number of editing changes to the draft motion. Hogan does not allege that Pitaro was representing Justice Rose when the Postconviction Board’s decision to withdraw the disqualification motion was made. Hogan’s disqualification claim is therefore weaker than that presented in Ainsworth, and we conclude that Hogan has not raised a viable disqualification claim.³

Motion for Order Requiring Disclosure of Informal Judicial Discipline Proceedings

NCJC Canon 3, Section E provides, in part, as follows:

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledgef] of disputed evidentiary facts concerning the proceeding[.]

The Due Process Clause also prohibits a judge with a direct interest in a case from participating in its resolution. The Supreme Court has explained that an interest is disqualifying under the Due Process Clause if it ‘“would offer a possible temptation to the average . . . judge . . . not to hold the balance nice, clear and true.’” In Re Murchison, 349 U.S. 133, 136 (1955) (quoting Turney v. Ohio, 273 U.S. 510, 532 (1927)).

In several recent opinions, it was suggested that the Nevada Commission on Judicial Discipline had, in the past, acted outside the scope of its governing rules and the Nevada Constitution when investigating and disciplining judges. See, e.g., Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994); Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 874, 879-80, 878 P.2d 913, 917 (1994). The Whitehead court mentioned “secret ‘arbitration,’ secret ‘mediation’ and secret ‘probation.’” 110 Nev. at 416, 873 P.2d at 969. Additionally, the Whitehead court discussed the case of “Judge D.,” who was placed on informal “probation” under the supervision of the Attorney General’s office without a probable cause hearing first being held. Id. at 418-19, 873 P.2d at 970-71.

Although we recognize that, depending on the factual circumstances presented, a judicial disciplinary arrangement with the Attorney General’s involvement could raise an appearance of impropriety under NCJC Canon 3E, see, e.g., In Interest of McFall, 617 A.2d 707 (Pa. 1992), we conclude that Hogan’s motion must be denied. We emphasize at the outset that Hogan has not filed a disqualification motion and has instead filed a motion for the disclosure of information. Therefore, we do not analyze whether any particular set of facts would warrant judicial disqualification. Nevertheless, several policy considerations relating to judicial disqualification are relevant to our evaluation of Hogan’s motion.

To begin, the primary policy behind the Code of Judicial Conduct is to promote public confidence in the judiciary. See H.R. Rep. No. 1453, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355. Public confidence is not fostered by motions such as Hogan’s; such motions serve only to raise, without any factual basis, possible doubts about the impartiality of Nevada’s judiciary. Subjecting judges to informational quests regarding their qualifications to sit on certain matters erodes the public’s regard for the judiciary’s integrity and directly contravenes the foundation on which the Code of Judicial Conduct rests.⁴

The NCJC recognizes the tension between legitimate disqualification claims and judicial maneuvering: its preamble provides that “the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.” Similarly, NRAP 35 attempts to thwart attorney abuses by, inter alia, precluding serial disqualification motions.

Here, Hogan has filed, through attorney Pescetta, three motions relating to judicial disqualification. Although we certainly recognize that Hogan is entitled to a fair tribunal, Hogan’s multiple motions give us cause for concern that he seeks to delay and manipulate his post-conviction proceedings.

In addition, we have repeatedly held that “a judge or justice 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), quoted in In re Petition to Recall Dunleavy, 104 Nev. 784, 788, 769 P.2d 1271, 1273 (1988).⁵ This rule promotes public confidence in the judiciary and encourages efficiency and finality in litigation. If a party fails to allege sufficient facts, summary dismissal of the motion has been deemed appropriate. See, e.g., PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 437, 894 P.2d 337, 341 (1995); Ainsworth v. Combined Ins. Co., 105 Nev. 237, 270, 774 P.2d 1003, 1026, cert. denied, 493 U.S. 958 (1989); Dunleavy, 104 Nev. at 789, 769 P.2d at 1273-74.

Here, although Hogan’s motion is not a disqualification motion and instead seeks information regarding potential grounds for disqualification, the policy that judges are presumed unbiased applies with equal force. With regard to judicial disqualification, the party has the burden of setting forth sufficient facts that demonstrate bias or the appearance thereof; this standard would be set on end if a party could simply file a motion requesting judges to reveal potentially disqualifying circumstances.⁶ A party cannot simply end-run the burden of production by seeking information from the court. Nevada law makes no provision for the discovery of potentially disqualifying facts from judicial sources. If parties are permitted to seek “discovery” from courts before which they appear, and to indirectly suggest that an appearance of partiality may exist, then the standard that judges are presumed not to be biased would be substantially eroded, especially where, as here, a matter has been finally resolved on the merits.

In line with this view, we have previously concluded that a potential death penalty recipient has no right to voir dire a three-judge sentencing panel to discover how the judges were selected. Paine v. State, 110 Nev. 609, 877 P.2d 1025 (1994). In Paine, we recognized that

[a] judge is required by the Code of Judicial Conduct to “respect and comply with the law and [to] act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2(A). Moreover, NRS 47.250(9), (10) and (16) specify, respectively, as disputable presumptions: “[t]hat official duty has been regularly performed;” “[t]hat a court or judge, acting as such, whether in this state or any other state or country, was acting in the lawful exercise of his jurisdiction;” and “[t]hat the law has been obeyed.”

Id. at 618, 877 P.2d at 1030. Here, as in Paine, we must assume, unless Hogan independently sets forth specific facts showing otherwise, that the judges involved in his various proceedings complied with the law and were impartial.

Finally, the Nevada Constitution provides for confidentiality of judicial discipline commission proceedings: “The supreme court shall make appropriate rules for . . . [t]he confidentiality of all proceedings before the commission, except a decision to censure, retire or remove a justice or judge.” Nev. Const. art. 6, § 21(5)(a). Rule 5(1) of the Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline states that “[a]ll proceedings must be confidential until there has been a determination of probable cause and a filing of formal statement of charges.” Rule 5(2) explains that “ ‘[confidentiality’ encompasses all proceedings of the commission and all information and materials, written, recorded or oral, received or developed by the commission in the course of its work and relating to alleged misconduct or disability of a judge.” Further, Rule 6 provides that “[a]ny person who breaches the confidentiality of judicial disciplinary proceedings is subject to being found guilty of contempt of the supreme court. In addition, members of the commission who are judges are subject to disciplinary proceedings before the commission for violation of this rule . . . .” We conclude that a judge’s constitutional right to confidentiality must not be jeopardized by speculation or innuendo.

As explained throughout this opinion, we decline to speculate whether any particular informal discipline scenario would require disqualification. Hogan has set forth no facts suggesting that any judge involved in his proceedings was subject to the Attorney General’s supervision, nor are we aware of any such facts. Therefore, we refuse to take the extraordinary measures that Hogan requests. Hogan is not entitled to a judicial fishing expedition. We must presume, in accordance with our prior case law, the NCJC, and sound public policy, that the judges involved in Hogan’s proceedings complied with the applicable law and conducted themselves in a manner consistent with the canons and policies of the NCJC. Consequently, we deny Hogan’s motion for an order requiring the disclosure of informal judicial discipline proceedings.

Finally, we have considered Hogan’s petition for rehearing, and we conclude that the issues raised lack merit. Accordingly, we deny the petition. NRAP 40(c).

Young and Rose, JJ., concur.

1 As Hogan has not demonstrated good cause for filing a sealed motion, we deny his motion for leave to file under seal. Despite Hogan’s failure to comply with NRAP 35, we direct the clerk of this court to file the motion.

2 Pescetta recognizes that with regard to the attempt to withdraw Hogan’s disqualification motion, this court correctly determined that Hogan was not represented by either attorney Potter or the Postconviction Project. Presumably, then, Pescetta also recognizes that Hogan was not represented by attorney Pitaro. Nevertheless, Pescetta inexplicably suggests that because Pitaro was involved in the Postconviction Project and formerly represented Justice Rose in an unrelated matter, Justice Rose should be disqualified.

3 The dissenting justice protests that Hogan has been denied information from the attorney general and the district attorney and has been denied access to court files relating to the investigation of Justice Rose.. He maintains that this court should direct that the district court’s order sealing the files be vacated and that all of the information requested by Hogan’s counsel be furnished to him. He also opines that Hogan should be permitted to bring a supplemental disqualification motion after receiving the relevant information. The basis for the dissenting justice’s position escapes us. First, NRAP 35(d) precludes serial disqualification motions. In addition, Hogan’s original motion for disqualification explained that he was unable to obtain relevant information from the “primary sources of information.” Even so, the dissenting justice signed the order denying Hogan’s motion, in which we explained that Hogan had failed to set forth a factual basis supporting the motion.

4 We note that even if Hogan were to show that a judge involved in his proceedings was subject to an informal disciplinary arrangement, the policy of fostering public confidence in the judiciary could, depending on the facts, make retroactive relief problematic. The United States Supreme Court has concluded that in some post-judgment and post-appeal cases, retroactive relief is required. See, e.g., Aetna Life Ins. v. Lavoie, 475 U.S. 813 (1986). In Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988), the Supreme Court concluded that

in determining whether a judgment should be vacated for a violation of [28 U.S.C.] § 455(a) [the federal statute which contains the same disqualification language as NCJC Canon 3E], it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.

If any judge were deemed disqualified on the basis of the Attorney General’s involvement in informal discipline arrangements, this could open the door for every criminal defendant who appeared before the judge during the relevant time period. (The Attorney General is at least a nominal party in most criminal appeals filed in Nevada.) The state’s efforts in the former proceedings would be invalidated, and countless new proceedings could be required in a system that is already severely backlogged.

Further, such proceedings could (again, depending on the facts) potentially undermine the public’s confidence in the judiciary. See Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415 (Fed. Cir.), cert. denied, 490 U.S. 1047 (1989) (concluding that fundamental fairness precluded vacation of judge’s orders rendered over six-year period because there was little risk of injustice in other cases, public’s confidence in integrity of judicial system was less likely undermined if rulings were adhered to than if vacated years later on grounds other than merits, and party bringing motion knew about disqualifying facts but remained silent).

5 See also United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993), cert. denied, ...... U.S. ......, 115 S. Ct. 2250 (1995) (concluding that “[rjumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters” do not ordinarily satisfy the requirements for disqualification); Franks v. Nimmo, 796 F.2d 1230, 1235 (9th Cir. 1986) (concluding that “ ‘[sjection 455(a) must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice’”) (quoting United States v. Hines, 696 F.2d 722, 729 (10th Cir. 1982)); Austin v. State, 528 N.E.2d 792, 794 (Ind. Ct. App. 1988) (ruling that in absence of circumstances suggesting otherwise, it should be assumed that judge would have disqualified himself or herself if any reasonable question of impartiality existed).

6 We note that while a case is pending, the judge or judges presiding over the case are encouraged by the NCJC to reveal potentially disqualifying information: “A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” NCJC Canon 3E, Commentary.