Ivey v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark

299 P.3d 354, 129 Nev. 154, 129 Nev. Adv. Rep. 16, 2013 WL 1278191, 2013 Nev. LEXIS 20

• Court: Nevada Supreme Court
• Decided: March 28, 2013
• Docket: No. 59297
• Status: Published

Opinions

OPINION

By the Court,

Gibbons, J.:

The case underlying this original writ petition involves post-divorce-decree proceedings between real party in interest Phillip Dennis Ivey, Jr., and petitioner Luciaetta Marie Ivey. More than a year after Luciaetta’s and Phillip’s divorce, Luciaetta filed a “Motion For An Order To Show Cause Why Defendant Should Not Be Held In Contempt Of Court, To Reopen Discovery, And For Attorney’s Fees; And For Related Relief” (motion to reopen discovery). Luciaetta then filed a motion to disqualify Judge William Gonzalez from hearing the motion to reopen discovery. In Luci-aetta’s motion to disqualify, Luciaetta asserted that Judge Gonzalez’s recusal was required under the Due Process Clause of the United States Constitution and under Nevada law. Luciaetta claimed that Judge Gonzalez hearing the motion would create an appearance of impropriety because Phillip and others connected to the Ivey divorce contributed to Judge Gonzalez’s reelection campaign. After a hearing, respondent Judge Jennifer P. Togliatti denied Luciaetta’s motion to disqualify Judge Gonzalez, and Judge Gonzalez went on to preside over Luciaetta’s motion to reopen discovery. As a result, Luciaetta petitioned this court for a writ of mandamus or prohibition vacating Judge Togliatti’s order and disqualifying Judge Gonzalez from hearing the motion to reopen discovery. Because we conclude that the failure to disqualify Judge Gonzalez did not violate Luciaetta’s due process rights or Nevada law, we deny Luciaetta’s petition.

FACTS AND PROCEDURAL HISTORY

After seven years of marriage, Phillip and Luciaetta filed a joint petition for divorce. During the divorce proceedings, attorney David Chesnoff represented Phillip. Phillip also hired attorney John Spilotro to represent Luciaetta and paid Spilotro a flat fee of $10,000. On December 29, 2009, Judge Gonzalez entered a divorce decree ending the marriage.

According to the divorce decree, Luciaetta and Phillip entered into a Marital Settlement Agreement that outlined the distribution of the community property and Phillip’s and Luciaetta’s obligations following the divorce. Under the Marital Settlement Agreement, Phillip was to pay Luciaetta $180,000 per month as alimony from the income that he received from his interest in Tiltware, LLC, an Internet poker company. The Marital Settlement Agreement stated that Phillip’s obligation to pay alimony would end if he ever stopped receiving income from Tiltware. The Marital Settlement Agreement also contained a provision that acknowledged that Phillip and Luciaetta received the advice of independent counsel in connection with the terms of the agreement.

After the entry of Phillip’s and Luciaetta’s divorce decree, Judge Gonzalez successfully ran for reelection as a judge for the family division of the district court in Clark County. During Judge Gonzalez’s campaign for reelection, he received a total of $71,240 in cash donations and a total of $14,216.65 for in-kind contributions. Phillip and others connected to the Iveys’ divorce contributed to these totals for Judge Gonzalez’s campaign. In February 2010, Chesnoff donated $1,000 in cash to Judge Gonzalez and a few months later made an in-kind contribution of $3,543.54 by holding a fundraiser. In April 2010, Chesnoff’s wife contributed $2,500 in cash, while Chesnoff’s law partner donated $1,000 in cash. Spi-lotro’s law firm contributed $500 in cash to Judge Gonzalez during the month of April as well. Finally, Phillip donated $5,000 in cash to Judge Gonzalez’s campaign on April 17, 2010.

The cash contributions from all of these individuals amounted to $10,000 and were approximately 14 percent of the total cash contributions to Judge Gonzalez’s campaign. Chesnoff’s in-kind donation equaled 25 percent of the total in-kind contributions to Judge Gonzalez’s campaign. Phillip’s $5,000 donation was the largest amount contributed by any individual person, but two political action committees donated $5,000 as well. Phillip’s contribution amounted to 7 percent of the total cash contributions to Judge Gonzalez’s campaign.

In May 2011, a dispute arose over Phillip’s monthly alimony payments. Following the dispute, Luciaetta filed a motion to reopen discovery. Judge Gonzalez was assigned to hear Luciaetta’s motion.

Prior to the hearing, Luciaetta filed an affidavit requesting that Judge Gonzalez recuse himself from hearing the motion to reopen discovery because the campaign contributions created an appearance of impropriety. In response, Judge Gonzalez filed an affidavit acknowledging the campaign contributions, but noting that under Nevada law, the receipt of campaign donations alone does not serve as grounds for disqualification. Judge Gonzalez also stated in the affidavit that he met with Phillip only one time at an event several months after he entered the Iveys’ divorce decree and that he never discussed the divorce with Phillip or his attorney outside of court.

Luciaetta then filed a motion to disqualify Judge Gonzalez from hearing her motion to reopen discovery based on the Due Process Clause of the United States Constitution and Nevada law. Judge Togliatti held a hearing on Luciaetta’s motion to disqualify and subsequently denied the motion. Judge Togliatti determined that based on both federal and Nevada law, the campaign contributions did not rise to such a level as to create an appearance of impropriety requiring Judge Gonzalez’s recusal.

Luciaetta now petitions this court for writ relief, requesting that this court vacate the order denying the motion to disqualify Judge Gonzalez and order that the case be assigned to a different department because Judge Gonzalez hearing the motion to reopen discovery violated due process and Nevada law.¹

DISCUSSION

Standard of review

Luciaetta has petitioned this court for a writ of mandamus or prohibition. “[A] petition for a writ of mandamus is the appropriate vehicle to seek disqualification of a judge.” Towbin Dodge, LLC v. Dist. Ct., 121 Nev. 251, 254-55, 112 P.3d 1063, 1066 (2005). Mandamus is available “to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station,” NRS 34.160, or to control an arbitrary or capricious exercise of discretion. International Game Tech. v. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). Generally, this court will not issue a writ of mandamus when a petitioner has “a plain, speedy and adequate remedy in the ordinary course of law.” NRS 34.170. No such legal remedy exists here. Accordingly, we exercise our discretion to determine whether Judge Gonzalez should have been disqualified from hearing and ruling on Lu-ciaetta’s motion.

Judge Gonzalez hearing Luciaetta’s motion to reopen discovery did not violate Luciaetta’s due process rights

Luciaetta argues that the United States Supreme Court’s decision in Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009), requires Judge Gonzalez’s recusal under the Due Process Clause. We disagree.

The Due Process Clause guarantees the right to a fair trial before a fair tribunal. Id. at 876 (citing In re Murchison, 349 U.S. 133, 136 (1955)). Determining whether a judge’s recusal is compelled by the Due Process Clause does not require proof of actual bias; instead, a court must objectively determine whether the probability of actual bias is too high to ensure the protection of a party’s due process rights. Id. at 883-84 (citing Withrow v. Larkin, 421 U.S. 35, 47 (1975)). When an individual with a personal interest in a specific case “ha[s] a significant and disproportionate influence” in putting a judge on the case by contributing funds to the judge’s campaign while the case is pending, the United States Supreme Court has concluded that the risk of actual bias is great. Id. at 884. In such a situation, a court must examine the size of the contribution in comparison to the total campaign contribution amount, the total sum spent during the election, and the effect that the contribution may have had on the election’s outcome. Id. A court must also review the timing of the campaign contributions in relation to the judge’s election and the status of the contributor’s case. Id. at 886. Thus, determining whether the risk of actual bias violates a party’s due process rights must be done on a case-by-case basis. See id. at 884-86.

The Caperton decision addressed whether the Due Process Clause required a West Virginia Supreme Court justice’s recusal when substantial third-party expenditures had been made supporting the justice’s election by a party to a case pending before the court. Id. at 872. In concluding that the justice’s failure to disqualify himself violated due process, the United States Supreme Court noted that while not every contribution by a litigant or attorney creates such a high risk of actual bias requiring recusal, the Caperton circumstances were an “exceptional case.” Id. at 884. The party in Caperton contributed $3,000,000 to a committee advocating the justice’s election in place of an incumbent justice, 300 percent more than the justice’s own campaign committee spent on the election and $1,000,000 more than the total amount spent by both candidates’ campaign committees combined. Id. The Court also noted that the timing of the contributions was critical, as they were made prior to the party’s appeal of the district court judgment, when it was reasonably foreseeable that the case would be before the newly elected justice. Id. at 886. Thus, the Court determined that the timing of the contributions, along with the disproportionate influence that the donations had in placing the justice on the case, created such a high risk of actual bias that the justice’s failure to disqualify himself violated due process. Id. at 886-87.

We conclude that the donations by Phillip and others connected to the Ivey divorce do not rise to the “exceptional” level of the campaign contribution at issue in Caperton. See id. at 884. First, the donations at issue are much smaller than the $3,000,000 contribution in Caperton. Phillip’s $5,000 donation amounted to 7 percent of Judge Gonzalez’s total campaign contributions. Phillip’s donation combined with the others’ contributions amounted to $10,000 and constituted 14 percent of the total cash contributions to Judge Gonzalez’s campaign. The in-kind donation of Phillip’s attorney equaled 25 percent of the total in-kind contributions to Judge Gonzalez’s campaign. We recognize that these donations are greater than the contributions of other individuals to Judge Gonzalez’s campaign. However, these amounts do not reach the extraordinary level of the sum at issue in Caperton. See id.

Second, the timing of these contributions is less suspicious than the timing of the Caperton donations. Phillip and the others contributed to Judge Gonzalez’s campaign only after the conclusion of the divorce. Luciaetta points out that the contributions occurred prior to the expiration of the six-month time limit in NRCP 60(b). Despite the contributions occurring within this six-month period, and although post-decree motions are not uncommon in divorce proceedings, the particular facts of this appeal do not demonstrate such a high risk of bias that due process required Judge Gonzalez’s recusal. Phillip and Luciaetta filed a joint petition for divorce, which indicated that Phillip and Luciaetta had executed a Marital Settlement Agreement that divided their community property and set forth their obligations post-divorce. Luciaetta was represented by counsel during the negotiation of the Marital Settlement Agreement and throughout the divorce proceedings. Although Luciaetta notes that Phillip was paying for her representation during the divorce, Luciaetta signed the Marital Settlement Agreement, which specifically states that both Phillip and Luciaetta recognize that they had the opportunity to receive the independent advice of counsel. Furthermore, Luciaetta did not bring her motion to reopen discovery until June 6, 2011, more than a year after the divorce decree was entered and the contributions were made. As a result, Judge Togliatti did not abuse her discretion by finding that Judge Gonzalez hearing Luciaetta’s motion to reopen discovery would not violate Luciaetta’s due process rights.

Judge Gonzalez hearing Luciaetta’s motion to reopen discovery did not violate Nevada law

Luciaetta argues that if Judge Gonzalez’s disqualification is not required under the Due Process Clause, the district court should have disqualified Judge Gonzalez under more stringent Nevada law—NRS 1.230 and the Nevada Code of Judicial Conduct (NCJC). We disagree.

In Nevada, “a judge has a general duty to sit, unless a judicial canon, statute, or rule requires the judge’s disqualification.” Millen v. Dist. Ct., 122 Nev. 1245, 1253, 148 P.3d 694, 700 (2006). NRS 1.230 prohibits a judge from presiding over any matter when actual or implied bias exists on the part of the judge. The relevant provisions of NCJC Rule 2.11(A) provide:

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:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge . . .is:

[[Image here]]

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding ....

(3) The judge knows that he or she . . . has an economic interest in the subject matter in controversy or in a party to the proceeding.

NCJC defines “[d]e minimis” as “an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality.” NCJC Terminology (2011). This court has recognized “that a contribution to a presiding judge by a party or an attorney does not ordinarily constitute grounds for disqualification.” Las Vegas Downtown Redev. v. Dist. Ct., 116 Nev. 640, 644, 5 P.3d 1059, 1062 (2000) (ordering judge who recused himself to hear case).²

We conclude that the campaign contributions at issue here were not significant enough to “raise a reasonable question” as to Judge Gonzalez’s impartiality. The individual contributions of Phillip and the others ranged from $500 to $5,000. These amounts are within the statutory limits for campaign contributions. See NRS 294A.100 (stating that a person shall not contribute more than $5,000 to a candidate within a certain time). Furthermore, the contributions occurred after Phillip and Luciaetta filed the joint petition for divorce and Judge Gonzalez entered the divorce decree. Thus, the campaign contributions are not exceptional. See Las Vegas Downtown Redev., 116 Nev. at 645, 5 P.3d at 1062 (stating that contributions ranging from $150 to $2,000 to a district court judge’s campaign were not extraordinary and did not require the judge’s disqualification). Without more, the campaign contributions are insufficient to demonstrate that actual or implied bias existed on the part of Judge Gonzalez. Campaign contributions made within statutory limits cannot constitute grounds for disqualification of a judge under Nevada law. See In re Petition to Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988) (explaining that “intolerable results” would occur if litigants could disqualify a judge because an attorney for the opposing party donated to the judge’s campaign).³ Therefore, Judge Togliatti did not abuse her discretion by finding that Nevada law does not require Judge Gonzalez’s disqualification.

CONCLUSION

We conclude that Judge Gonzalez was not disqualified from presiding over Luciaetta’s motion based on the contributions made to Judge Gonzalez’s campaign because doing so violated neither Luciaetta’s due process rights nor Nevada law. Accordingly, we deny Luciaetta’s writ petition.

Cherry, J., concurs.

1 Phillip asserts that Luciaetta’s writ petition is moot because Luciaetta did not seek a stay of the district court proceedings and the matter has now reached its conclusion. We disagree. This court determines only actual, live controversies and will not render opinions on issues that cannot affect the outcome of a case. University Sys. v. Nevadans for Sound Gov’t, 120 Nev. 712, 720, 100 P.3d 179, 186 (2004). As a result, a case may become moot by the occurrence of subsequent events that eliminate any actual controversy. Id. After filing the writ petition, Luciaetta did not seek a stay of the post-divorce proceedings with the district court or this court. Thus, Judge Gonzalez continued to preside over the underlying proceedings and ultimately denied Luci-aetta’s motion to reopen discovery. While Judge Gonzalez already denied Luciaetta’s motion, we conclude that an actual controversy still exists because, if rendered in violation of Luciaetta’s due process rights, that decision could be void. As a result, Luciaetta’s writ petition is not moot.

2 After filing her writ petition, Luciaetta later filed a motion to supplement her petition with a memorandum from the American Bar Association (ABA) on potential changes to the provisions of the ABA Model Code concerning judicial disqualification. We granted Luciaetta’s motion and allowed her to file the ABA memorandum as a supplemental appendix. Having reviewed the supplemental appendix, we conclude that it does not affect our analysis of Nevada law and judicial disqualification.

3 The Nevada Constitution specifically requires the election of district court judges. Nev. Const. art. 6, § 5. Furthermore, the citizens of Nevada defeated a recent ballot initiative to change the selection process for judges from election to appointment. See Nevada Ballot Questions 2010, Nevada Secretary of State, Question No. 1; Nevada Secretary of State, 2010 Official Statewide General Election Results, available at http://www.nvsos.gov/soselectionpages/ results/2010StatewideGeneral/ElectionSummary.aspx. Campaign contributions are necessarily a part of judicial elections.