CANARELLI v. DIST. CT. (CANARELLI) , 2022 NV 12 ( 2022 )

138 Nev., Advance Opinion 12-
IN THE SUPREME COURT OF THE STATE OF NEVADA
SCOTT CANARELLI, BENEFICIARY No. 82299
OF THE SCOTT LYLE GRAVES
CANARELLI IRREVOCABLE TRUST
DATED FEBRUARY 24, 1998,
Petitioner,
--- PILED
vs.
MAR 2 4 2022
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF BY
IEF DEPUTY CLERK
CLARK; AND THE HONORABLE
LINDA MARIE BELL,
Respondents,
and
LAWRENCE D. CANARELLI; HEIDI
CANARELLI; AND FRANK MARTIN,
SPECIAL ADMINISTRATOR FOR THE
ESTATE OF EDWARD C. LUBBERS,
FORMER TRUSTEES,
Real Parties in Interest.
Original petition for a writ of mandamus or, alternatively,
prohibition challenging the disqualification of a judge.
Petition granted.
Lewis Roca Rothgerber Christie LLP and Daniel F. PoIsenberg and
Abraham G. Smith, Las Vegas; Solomon Dwiggins & Freer, Ltd., and Dana
A. Dwiggins and Craig D. Friedel, Las Vegas,
for Petitioner.
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Campbell & Williams and J. Colby Williams, Philip R. Erwin, and Donald
J. Campbell, Las Vegas,
for Real Parties in Interest.
Hayes Wakayama and Liane K. Wakayama, Las Vegas,
for Real Party in Interest Frank Martin, Special Administrator for the
Estate of Edward C. Lubbers.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, SILVER, J.:
In this writ proceeding, petitioner asks us to reinstate to a case
a district court judge who was disqualified because her impartiality could
reasonably be questioned after she reviewed notes, produced in discovery,
that we later determined were privileged. See Canarelli v. Eighth Judicial
Dist. Court (Canarelli I), 136 Nev. 247, 464 P.3d 114 (2020). Because the
alleged questionable impartiality does not arise from an extrajudicial
source, we determine that the disqualification standard set forth in Kirksey
v. State, 112 Nev. 980, 923 P.2d 1102 (1996), controls. Applying that
standard, and reviewing the record here, we conclude that there is no
evidence that Judge Gloria J. Sturman formed an opinion demonstrating
deep-seated favoritism or antagonism against either party. Therefore, we
conclude that the district court erred by disqualifying Judge Sturman.
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FACTS AND PROCEDURAL HISTORY
Petitioner Scott Canarelli is the beneficiary of the Scott Lyle
Graves Canarelli Irrevocable Trust. Scott's parents, real parties in interest
Lawrence and Heidi Canarelli, conveyed minority interests in their
business entities to Scott, which Scott contributed to the Trust. They also
made discretionary payments from the Trust to Scott. Lawrence and Heidi,
along with their attorney, real party in interest Edward Lubbers, served as
trustees (collectively, the former trustees). Lubbers became the sole trustee
in 2013 after Lawrence and Heidi resigned. Lubbers thereafter entered into
an agreement to sell the Trust's ownership in Lawrence and Heidi's
business entities. After learning of the purchase agreement, Scott filed a
petition to compel Lubbers to provide an inventory and accounting for the
Trust and all information related to the purchase agreement. Lubbers
retained counsel and kept notes reflecting his preparations for, and
communications with, those attorneys. In early 2018, Lubbers passed away
before Scott could obtain Lubbers deposition.
During discovery, the former trustees inadvertently disclosed
documents containing Lubbers' notes. They attempted to claw back the
documents, arguing that Lubbers' notes were privileged. Scott moved for a
determination of privilege, and the discovery commissioner found that
portions of the notes were protected by attorney-client privilege and the
work product doctrine, but other portions were discoverable. Scott and the
former trustees objected to the commissioner's findings, and Judge Sturman
conducted a hearing and proceeded to review Lubbers' notes in order to rule
on the parties' objections. Judge Sturman generally adopted the discovery
commissioner's recommendation, thereby allowing Scott to retain portions
of Lubbers' notes. The former trustees obtained a stay and pursued writ
relief, which we granted after concluding that Lubbers' notes were
3
privileged and undiscoverable. Canarelli I, 136 Nev. at 248, 464 P.3d at
117.
After we decided Canarelli I, the former trustees moved to
disqualify Judge Sturman, challenging her ability to remain impartial after
reviewing the privileged notes. The matter came before the chief judge.
Judge Sturman filed an answer denying any bias or prejudice and asserting
that her review of Lubbers notes had not created any personal knowledge
of the facts that would warrant disqualification under the canons of judicial
ethics. The chief judge granted the disqualification motion, citing Nevada
Code of Judicial Conduct (NCJC) Rule 2.11(A) and concluding Judge
Sturman's impartiality may be reasonably questioned based on her review
of Lubbers' notes. This writ petition followed.
DISCUSSION
We exercise our discretion to entertain the writ petition
"A writ of mandamus is available to compel the performance of
an act which the law . . . [requires] as a duty resulting from an office, trust
or station, or to control a manifest abuse or an arbitrary or capricious
exercise of discretion."' Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36,
39, 175 P.3d 906, 907-08 (2008) (internal quotation marks and footnote
omitted) (alterations in original). Mandamus is an extraordinary remedy,
available only when there is no "plain, speedy and adequate remedy in the
ordinary course of law." NRS 34.170; see also Cote H., 124 Nev. at 39, 175
P.3d at 908.
'Scott alternatively seeks a writ of prohibition. In light of Scott's
requested relief, we consider his petition as one for a writ of mandamus.
4
1".• =
The decision to entertain a petition for a writ of mandamus is
within our sole discretion. Smith v. Eighth Judicial Dist. Court, 107 Nev.
674, 677, 818 P.2d 849, 851 (1991). "Because an appeal is ordinarily an
adequate remedy, this court generally declines to consider writ petitions
challenging interlocutory district court orders." Helfstein v. Eighth Judicial
Dist. Court, 131 Nev. 909, 912, 362 P.3d 91, 94 (2015). However, when a
writ petition presents an opportunity to clarify an important issue of law
and doing so serves judicial economy, we may elect to consider the petition.
Id. Similarly, writ relief may be appropriate where the petition presents a
matter of first impression and considerations of judicial economy support
its review. Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court, 132 Nev.
544, 547, 376 P.3d 167, 170 (2016).
Scott's writ petition raises a legal issue of first impression with
statewide importance—the disqualification standard where the alleged bias
originates from the judge's performance of her judicial duties rather than
from an extrajudicial source. Additionally, clarifying the judicial
disqualification standard serves judicial economy by providing guidance for
future disqualification matters. We therefore elect to consider the writ
petition.
Kirksey v. State governs where the alleged bias arises from the judge's
performance of her judicial duties
"[A] judge has a general duty to sit, unless a judicial canon,
statute, or rule requires the judges disqualification." Millen v. Eighth
Judicial Dist. Court, 122 Nev. 1245, 1253, 148 P.3d 694, 700 (2006); see also
NCJC Rule 2.7 ("A judge shall hear and decide matters assigned to the
judge, except when disqualification is required by Rule 2.11 or other law.").
Judges are presumed to be unbiased, Millen, 122 Nev. at 1254, 148 P.3d at
701, and a judges decision not to recuse herself will not be overturned
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absent a clear abuse of discretion. Rivero v. Rivero, 125 Nev. 410, 439, 216
P.3d 213, 233 (2009), overruled in part on other grounds by Romano v.
Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980 (2022); PETA v. Bobby Berosini,
Ltd., 111 Nev. 431, 437, 894 P.2d 337, 341 (1995), overruled on other
grounds by Towbin Dodge, LLC v. Eighth Judicial Dist. Court, 121 Nev.
251, 260-61, 112 P.3d 1063, 1069-70 (2005). But determining the proper
disqualification standard is a question of law that we review de novo. See
Cannizzaro v. First Judicial Dist. Court, 136 Nev. 315, 317, 466 P.3d 529,
531 (2020) (addressing attorney disqualification and explaining that this
court reviews de novo the interpretation of the rules governing the
appropriate standard for disqualification).
Scott argues that the district court erred by applying NCJC
Rule 2.11(A) because Kirksey v. State, 112 Nev. 980, 923 P.2d 1102 (1996),
provides the proper disqualification standard. He contends Judge Sturman
did not exhibit the favoritism or antagonism required by Kirksey to warrant
disqualification. We agree.
Generally, "what a judge learns in his official capacity does not
result in disqualification," so a party alleging judicial bias "must show that
the judge learned prejudicial information from an extrajudicial source."
Kirksey, 112 Nev. at 1007, 923 P.2d at 1119 (internal quotation marks
omitted); see also Whitehead v. Nev. Comm'n on Judicial Discipline, 110
Nev. 380, 428 n.45, 873 P.2d 946, 976 n.45 (1994) (noting "the rule that a
disqualifying bias must stem from an extrajudicial source and result in an
opinion on the merits on some basis other than what the judge learned from
participation in the case). An extrajudicial source of bias is predicated on
"something other than rulings, opinions formed, or statements made by the
judge during the course of trial." 48A C.J.S. Judges § 252 (2014).
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Considering that principle, we held in Kirksey that where the alleged bias
does not stem from an extrajudicial source, the party seeking
disqualification must show the judge formed an opinion based on the facts
introduced during the proceedings and that this "opinion displays 'a deep-
seated favoritism or antagonism that would make fair judgment
impossible. 112 Nev. at 1007, 923 P.2d at 1119 (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)).
In this case, the source of alleged bias comes from Judge
Sturman's review of privileged notes. Judge Sturman reviewed those notes
to resolve the parties' discovery dispute—a pretrial matter that was a core
function ofJudge Sturman's job as a judge and that she had a duty to decide,
and one that she could not have reasonably decided without reviewing those
notes herself.2 Although Judge Sturman acted in her official capacity, the
former trustees urge us to apply NCJC Rule 2.1I(A) in lieu of the general
rule we established in Kirksey. NCJC Rule 2.11(A)(1) requires a judge to
recuse herself "in any proceeding in which the judges 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 has personal knowledge of facts that are in
dispute in the proceeding." The remaining circumstances described in
NCJC Rule 2.11(A)(2)-(6) concern bias arising from an extrajudicial source.
See NCJC Rule 2.11(A)(2) (when someone closely related to the judge is
involved in the proceeding); NCJC Rule 2.11(A)(3) (when the judge or the
judges fiduciary or close family member "has an economic interest in" the
2Judge Sturman averred that she was not biased or prejudiced
against any party or attorney, and the former trustees do not contest this
assertion.
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case); NCJC Rule 2.11(A)(5) (when the judge made an extrajudicial public
statement "that commits or appears to commit the judge to reach a
particular result"); NCJC Rule 2.11(A)(6) (when the judge was
substantively involved in the matter before becoming the presiding judge
on that case). Because the situations described in NCJC Rule 2.11(A)(2)-(6)
concern extrajudicial sources of potential bias, we interpret NCJC Rule
2.11(A)(1) to concern extrajudicial bias as well. See Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) ("A
legal instrument typically contains many interrelated parts that make up
the whole. The entirety of the document thus provides the context for each
of its parts.").
We also turn to Liteky v. United States, where the United States
Supreme Court considered a similar issue. In that case, the Court applied
the extrajudicial source doctrine to a federal statute that, like NCJC Rule
2.11(A), requires recusal "whenever 'impartiality might reasonably be
questioned.'" 510 U.S. 540, 548, 554 (1994) (quoting 28 U.S.C. § 455(a)).
The Court explained that "opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or
of prior proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible." Id. at 555. Because our standard in
Kirksey is derived from Liteky, and in that case the Court concluded that
the extrajudicial source doctrine applied to a federal statute that is similar
to NCJC Rule 2.11(A), we see no reason to deviate from this line of
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reasoning.3 Liteky, 510 U.S. at 553; Kirksey, 112 Nev. at 1007, 923 P.2d at
1119.
Maintaining confidence in the judiciary's independence and
impartiality is important, but we cannot hold that NCJC Rule 2.11(A)
requires disqualification for every situation in which a judge is exposed to
prejudicial evidence while ruling on evidentiary disputes. To do so would
encroach on a judges duty to preside over his or her assigned cases. Judges
deciding motions in limine or motions to suppress often must review
extremely prejudicial evidence to determine whether that evidence is
admissible. For example, a judge ruling on a motion to suppress an
involuntary confession must review the defendant's confession and the
underlying circumstances under which the defendant confessed. See, e.g.,
Passam,a v. State, 103 Nev. 212, 215-16, 735 P.2d 321, 323-24 (1987)
(reviewing the transcript of the defendant's confession to conclude that the
defendant's confession was involuntary). Broadly applying NCJC Rule
2.11(A) under such circumstances would open the door for a motion to
recuse every time any judge or justice reviews inadmissible evidence as part
of their judicial duties, simply because the party seeking to exclude the
evidence could later assert the evidence is so prejudicial that reviewing it
3A1though the Liteky concurrence opined that "a nearly dispositive
extrajudicial source factor was unnecessary because "district and appellate
judges possess the wisdom and good sense to distinguish substantial from
insufficient allegations," 510 U.S. at 565 (Kennedy, J., concurring), we
decline to adopt that position or deviate from the Liteky majority, as under
the dissent's lower standard, a party's subjective assertion—that the
evidence to be admitted or excluded is such that merely reviewing it creates
an appearance of bias—is sufficient to implicate NCJC Rule 2.11(A) and
require recusal even when the judge avers that he or she can remain
impartial.
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necessarily raises the appearance of impartiality. See City of Las Vegas
Downtown Redev. Agency v. Hecht, 113 Nev. 644, 649, 940 P.2d 134, 138
(1997) ("A lawyer should not be permitted to create a situation involving a
judge and then claim that the judge should be disqualified because of the
events the attorney created."). Moreover, abiding by the former trustees'
proposed solution of having other judges determine such matters would
hinder judicial efficiency, as judges would be forced to intervene in each
other's cases whenever a party asserts that the inadmissible evidence might
cause the presiding judge to exude bias. Inste.ad, we follow our long
tradition of expecting judges, including every one of our limited jurisdiction
judges in the State of Nevada, to disregard improper, inadmissible, or
impalpable evidence and base their findings and decisions on only
admissible evidence. State, Dep't of Highways v. Campbell, 80 Nev. 23, 33,
388 P.2d 733, 738 (1964) ("[W]here inadmissible evidence has been received
by the court, sitting without a jury, and there is other substantial evidence
upon which the court based its findings, the court will be presumed to have
disregarded the improper evidence."); see also Randell v. State, 109 Nev. 5,
7-8, 846 P.2d 278, 280 (1993) (explaining that, when sentencing, judges are
able to listen to the victim impact statements without undue influence
because "Wudges spend much of their professional lives separating the
wheat from the chafr (internal quotation marks omitted)). Therefore, we
conclude that what a judge learns during the course of performing judicial
duties generally does not warrant disqualification unless the judge forms
an opinion that "displays 'a deep-seated favoritism or antagonism that
would make fair judgment impossible."' Kirksey, 112 Nev. at 1007, 923 P.2d
at 1119 (quoting Liteky, 510 U.S. at 555).
10
Accordingly, because nothing in the record indicates that the
question of partiality comes from an extrajudicial source, we do not apply
NCJC Rule 2.11(A). Instead, because Judge Sturman gained knowledge of
the alleged prejudicial facts while acting in her official capacity, Kirksey
governs here. Applying that standard, Judge Sturman averred she was not
biased or prejudiced, and nothing in the record shows she formed an opinion
displaying deep-seated bias that would warrant disqualification under
Kirksey. We therefore conclude that the district court abused its discretion
by applying the NCJC Rule 2.11(A) standard to disqualify Judge Sturman.4
CONCLUSION
When the alleged bias or question of partiality arises from a
judges exercise of her duties, the party seeking the judges disqualification
must show that the judge has formed an opinion displaying deep-seated
favoritism or antagonism toward the party that would prevent fair
judgment. Kirksey, 112 Nev. at 1007, 923 13.2d at 1119. Because the record
does not show that Judge Sturman's review of Lubbers notes created such
bias or prejudice against the former trustees, we conclude that the district
court abused its discretion by.disqualifying Judge Sturman.5 Accordingly,
4Scottalso argues the district court abused its discretion by failing to
address whether the former trustees waived their argument regarding
attorney-client privilege. We need not reach this issue in light of our
decision.
50ur disposition moots the pending motion for leave to submit
privileged material for in camera review. Accordingly, we deny real parties
in interest's motion.
11
we grant the petition for writ relief and direct the clerk of this court to issue
a writ of mandamus instructing the chief judge to reinstate Judge Sturman
as the presiding judge in the underlying rnatter.
Silver
We concur:
C.J.
Parraguirre
Hardesty
,411.Ltbaug
Stiglich
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CADISH, J., with whom PICKERING and HERNDON, JJ., agree,
dissenting:
I believe the majority applies an incorrect standard to the
disqualification motion in this case, and I therefore dissent. The majority
holds that NCJC Rule 2.11(A)'s objective standard does not even apply to a
disqualification challenge where the source of the alleged judicial bias is not
extrajudicial, and instead, adopts a significantly higher standard for
disqualification in such circumstances. I3ecause no textual basis for these
distinctions exists in the applicable rule, and the majority's disqualification
standard undermines public confidence in the integrity of the judiciary, I
cannot agree.
The Nevada Code of Judicial Conduct provides, in pertinent
part, that a judge must
disqualify himself or herself in any proceeding in
which the judges 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.
NCJC Rule 2.11(A) (emphasis added). We have previously recognized that
Rule 2.11(A) adopts an objective approach to judicial disqualification, PETA
v. Bobby Berosini, Ltd., 111 Nev. 431, 436, 894 P.2d 337, 340 (1995) (per
curiam) (noting that "the test for whether a judges impartiality might
reasonably be questioned is objective; whether a judge is actually impartial
is not material"), overruled in part on other grounds by Towbin Dodge, LLC
v. Eighth Judicial Dist. Court, 121 Nev. 251, 260-61, 112 P.3d 1063, 1069-
70 (2005), and accordingly, reflects the Code of Judicial Conduct's "primary
policy . . . to promote public confidence in the judiciary, Millen v. Eighth
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Judicial Dist. Court, 122 Nev. 1245, 1255, 148 P.3d 694, 701 (2006) (quoting
Hogan v. Warden, 112 Nev. 553, 558, 916 1).2d 805, 808 (1996)).
Nevertheless, the majority all but ignores this standard and our
caselaw applying it. See, e.g., Ybarra v. State, 127 Nev. 47, 51-52, 247 P.3d
269, 272-73 (2011) (applying an objective standard for disqualification of
whether a "person [would] reasonably.. . . doube the judges "impartiality").
Instead, it concludes that when the source of alleged bias comes from the
judges performance of her duties in the case, disqualification requires a
showing of "a deep-seated favoritism or antagonism that would make fair
judgment impossible." Majority at 7 (quoting Kirksey v. State, 112 Nev. 980,
1007, 923 P.2d 1102, 1119 (1996) (per curiam)). The majority's conclusion
imposes a much higher standard for disqualification than the objective
standard of whether a "judges impartiality might reasonably be
questioned" based on her "personal knowledge," "personal bias," or personal
"prejudice concerning a party or a party's lawyer," as set forth in Rule
2.11(A)(1). While Rule 2.11(A) requires disqualification even for the
appearance of partiality, the majority's standard requires not just actual
partiality but what amounts to extreme "favoritism" or "antagonism" that
renders "fair judgment impossible." Majority at 10 (emphasis added)
(internal quotation marks omitted) (quoting Kirksey, 112 Nev. at 1007, 923
P.2d at 1119). While such circumstances likely occur rarely, those
circumstances that the majority's standard does not capture still threaten
to undermine "public confidence in [the judiciary's] independence,
impartiality, integrity, and competence." See NCJC Preamble.
The majority's standard also lacks textual support. The
majority attempts to write its standard into Rule 2.11(A) solely because
other "situations described in [Rule 2.11(A)] concern extrajudicial sources
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of potential bias." Majority at 8. There is no reason, and certainly no basis
in the text of the Code of Judicial Conduct, to simply toss out the objective
standard because the source of the judges alleged partiality arose from her
duties as a judge. Contrary to the majority's reasoning, Rule 2.11(A) focuses
on the extent to which the judges "impartiality might reasonably be
questioned," not on the source of the bias, as dispositive to the need for
disqualification. I cannot agree that a "personal bias or prejudice
concerning a party or a party's lawyee does not warrant disqualification if
it developed from information learned during the course of the judges
duties but does warrant disqualification if the same information came from
an extrajudicial source. Yet the majority's standard produces such a result.
Further, the circumstances which compel disqualification, and
on which the majority rely to conclude that Rule 2.11(A) concerns only
extrajudicial sources, are not exhaustive. NCJC Rule 2.11(A) (requiring
disqualification "in any proceeding in which the judges impartiality might
reasonably be questioned, including but not limited to the provided
circumstances (emphasis added)). The comment suggests the same: "Under
this Rule, a judge is disqualified whenever the judges impartiality might
reasonably be questioned, regardless of whether any of the specific
provisions of paragraphs (A)(1) through (6) apply." NCJC Rule 2.11 cmt. 1.
Because the text does not distinguish between the sources of bias, I cannot
agree with the majority's decision to treat disqualification differently
depending on where the source of bias developed.
The majority's reliance on our decision in Kirksey v. State, 112
Nev. 980, 923 P.2d 1102 (1996), is misplaced. There, we applied the U.S.
Supreme Court's standard in Liteky v. United States, 510 U.S. 540 (1994),
to govern disqualification under NRS 1.230, rather than Rule 2.11(A), based
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on the judges acquisition of allegedly "prejudicial information" from the
current proceedings. See Kirksey, 112 Nev. at 1005-07, 923 P.2d at 1118-
19. We stated that the Liteky standard applied to the disqualification
challenge because the source of the alleged bias was not extrajudicial. Id.
at 1007, 923 P.2d at 1119. However, our application of Liteky arose under
NRS 1.230, which does not contain Rule 2.11(A)'s objective standard. See
id. at 1005, 923 P.2d at 1118. Instead, it provides for disqualification if "the
judge entertains actual bias or prejudice," or if "implied bias exists based
on the judges relationship to the parties. See id. (emphasis added) (quoting
NRS 1.230(1)-(2)). Moreover, the petitioner there argued that the judge was
actually biased, not that his impartiality could reasonably be questioned
under an objective standard, and accordingly, we held only that the Liteky
standard applied to such allegations of actual bias under NRS 1.230,
without citation or reference to Rule 2.11(A). We then concluded that the
petitioner had failed to show that the information established actual bias or
"a deep-seated favoritism or antagonism that would make fair judgment
1In deeming the source of bias relevant to disqualification under NRS
1.230, we relied on our decision in Goldman v. Bryan, 104 Nev. 644, 764
P.2d 1296 (1988), overruled in part on other grounds by Halverson v.
Hardcastle, 123 Nev. 245, 265, 163 P.3d 428, 442-43 (2007). See Kirksey,
112 Nev. at 1007, 923 P.2d at 1119. In Goldman, we addressed an
allegation of actual bias and noted the "general rule that knowledge
acquired in a judges "official capacity does not result in disqualification."
104 Nev. at 653, 764 P.2d at 1301. But we did not meaningfully discuss
Rule 2.11(A) as it then existed, and our conclusion that the appellant failed
to establish "a reasonable inference of bias stemming from an extrajudicial
source did not foreclose disqualification based on information acquired
during official court proceedings. See id. at 652-53, 764 P.2d at 1301-02; cf.
Allum v. Valley Bank of Nev., 112 Nev. 591, 593-94, 915 P.2d 895, 897 (1996)
("We have specifically held that a judge is not disqualified merely because
of his or her judicial rulings." (emphasis added)).
4
impossible." Id, at 1007, 923 P.2d at 1119 (quoting Liteky, 510 U.S. at 555).
Thus, Kirksey did not address whether or how this standard applies to Rule
2.11(A), and therefore, it does not govern our decision here.
The majority's reliance on Liteky here is similarly flawed
because Rule 2.11(A)s objective standard allows consideration of the source
of the bias as relevant to disqualification and does not have the same
jurisprudential development on which Liteky's creation of a heightened
standard relied. Liteky considered whether the extrajudicial-source
doctrine, which had developed from and applied to a specific federal
disqualification provision of 28 U.S.C. § 144 related to bias or prejudice
(requiring disqualification of a judge who harbors "personal bias or
prejudice against a party), also applied to the newly created "'catchall'
recusal provisioe of 28 U.S.C. § 455(a) (requiring disqualification "in any
proceeding in which [a judge's] impartiality might reasonably be
questionecr). Liteky, 510 U.S. at 541, 544, 548.
The Court reasoned that the extrajudicial-source doctrine in the
context of § 144s "bias or prejudice standard reflected an attempt to
delineate between "a favorable or unfavorable disposition or opinion that is
somehow wrongful or inappropriate, either because it is undeserved, or
because it rests upon knowledge that the subject ought not to possess, . . . or
because it is excessive in degree." Id. at 550 (emphasis omitted). Similarly,
the court reasoned that "partiality," as contained in § 455(a), "does not refer
to all favoritism, but only to such as is, for some reason, wrongful or
inappropriate." Id. at 552. Accordingly, the court concluded that the
extrajudicial-source doctrine of the bias-or-prejudice standard of § 144
applied to the objective standard of § 455(a). Id. at 554.
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Nevertheless, the Court recognized that the source of a judge's
bias or prejudice neither necessarily gives rise to disqualifying bias nor
"necessarily precludes [disqualifying] bias." Id. at 554-55 (describing "the
existence of a significant (and often determinative) 'extrajudicial source as
a "factoe (emphasis omitted)). Similarly, the objective standard in Rule
2.11(A) impliedly allows consideration of the source of the bias to determine
whether a person might reasonably question the judge's impartiality.
Notwithstanding that the U.S. Supreme Court viewed the
extrajudicial-source doctrine as only a factor, it then held, with no citation
to authority, that "opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings . . . do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible." Liteky, 510 U.S. at 555. The Court
appeared to justify its holding on the belief that "as a practical matter," the
sort of wrongful or inappropriate "predispositions" that warrant
disqualification "rarely" develop "during the course of' judicial proceedings.
Id. at 551, 554. While the observation may be true, that fact alone does not
justify a heightened standard for disqualification. As Justice Kennedy
noted in his concurrence, the Court's rule for intrajudicial and extrajudicial
sources of bias did not derive from the text of the federal statute. Id. at 558(Kennedy, J., concurring in the judgment only). Similarly, as I note above,
Rule 2.11(A) does not delineate between the sources of bias and does not
contain the majority's standard for disqualification based on intrajudicial
sources of bias. Instead, the text of Rule 2.11 focuses on "the appearance of
partiality." See id. at 563 (Kennedy, J., concurring); see also PETA, 111
Nev. at 436, 894 P.2d at 340. The majority's emphasis on the source of the
6
bias or prejudice "distracts from the central inquiry of whether the judge
harbors partiality or displays an appearance of partiality. See Liteky, 510
U.S. at 558 (Kennedy, J., concurring).
Moreover, the majority says, as a reason to treat the source of
bias as dispositive for the standard applied to the disqualification motion,
that it "see [s] no reason to deviate from Liteky's creation of such a rule.
Majority at 8. Aside from Liteky's lack of textual basis, its rule derives from
the belief that a heightened standard is necessary to identify only those
sources that give rise to "wrongful or inappropriate partiality as sufficient
to trigger disqualification. See Liteky, 510 U.S. at 552-55. But as noted
above, an objective standard, as Rule 2.11(A) contains, permits
consideration of the source of bias, as well as the degree to which the source
creates "reasonable doubts about [the judges] impartiality," PETA, 111
Nev. at 438, 894 P.2d at 341, as relevant factors to whether the judge
harbors or appears to harbor partiality, "without resore to a heightened
standard, see Liteky, 510 U.S. at 565 (Kennedy, J., concurring).
The majority also believes that the Kirksey standard preserves
judicial efficiency" because the objective standard would impede a judges
ability to decide "motions in limine or motions to suppress." Majority at 9-
10. While I agree with the Majority that Rule 2.11(A) does not warrant
disqualification "for every situation in which a judge is exposed to
prejudicial evidence while ruling on evidentiary disputes," Majority at 9, I
do not share its concern that the objective standard yields such results or
subjects judges to such challenges. In most circumstances, the judge's
performance of her duties, such as ruling on common motions, would not
cause a reasonable person to question the judges impartiality. Judges are
charged regularly with reviewing evidence ultimately found inadmissible,
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and they are deemed capable of ignoring that evidence in ruling on a case's
merits. Thus, I agree with Justice Kennedy's comments in his Liteky
concurrence:
Although the source of an alleged disqualification
may be relevant in determining whether there is a
reasonable appearance of impartiality, that
determination can be explained in a
straightforward manner without resort to a nearly
dispositive extrajudicial source factor. . . . [D]istrict
and appellate judges possess the wisdom and good
sense to distinguish substantial from insufficient
allegations and that our rules, as so interpreted,
are sufficient to correct the occasional departure.
510 U.S. at 565 (Kennedy, J., concurring). I believe Judge Sturman acted
appropriately in carrying out her duties to review the documents in question
to evaluate whether they were privileged. Indeed, the district court here
did not abuse its discretion when it found substantial evidence to support
that Judge Sturman did not harbor any personal bias or prejudice because
of her review of the privileged documents.
However, as noted above, Rule 2.11 directs the district court to
consider both actual and ostensible partiality. See NCJC Rule 2.11(A).
Turning to the district court's decision to disqualify Judge Sturman here,
the court found "no evidence that Judge Sturman ha[d] formed an opinion
that would make fair judgment impossible but expressed concern that
Judge Sturman's review of notes later deemed privileged—which "spoke
directly on the merits of Mr. Canarelli's petitione and "contained Mr.
Lubbers's personal assessment of the risk faced by the Former Trustees"—
would cause a reasonable person to question her impartiality "as the
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ultimate trier of fact." l cannot find that the court abused its discretion in
so holding. I therefore dissent.
4'•
J.
Cadish
We concur:
PideAr , J.
Pickering
Herndon
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