818 P.2d 849 (Nev. 1991), 21939, Smith v. Eighth Judicial Dist. Court In and For County of Clark

Docket Nº:21939.
Citation:818 P.2d 849, 107 Nev. 674
Party Name:A. Jay SMITH and Ernst and Whinney, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For The COUNTY OF CLARK, and The Honorable Jeffrey D. Sobel, District Judge, Respondents, and First Western Savings Association, a Nevada corporation; First Western Financial Corporation, a Delaware corporation, Real Parties in Inte
Case Date:October 08, 1991
Court:Supreme Court of Nevada
 
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Page 849

818 P.2d 849 (Nev. 1991)

107 Nev. 674

A. Jay SMITH and Ernst and Whinney, Petitioners,

v.

The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada,

In and For The COUNTY OF CLARK, and The Honorable

Jeffrey D. Sobel, District Judge, Respondents,

and

First Western Savings Association, a Nevada corporation;

First Western Financial Corporation, a Delaware

corporation, Real Parties in Interest.

No. 21939.

Supreme Court of Nevada.

October 8, 1991.

Page 850

Lionel Sawyer & Collins, Las Vegas, for petitioners.

Miles, Pico & Mitchell, Las Vegas, and Severson & Werson, San Francisco, Cal., for real parties in interest.

[107 Nev. 675] OPINION

PER CURIAM:

This original petition for writ of mandamus or prohibition challenges an order of the respondent district court, Jeffrey D. Sobel, Judge, denying petitioners' motion to strike a peremptory challenge directed against the same judge as successor to litigation presided over by Judge Sobel's predecessor in office.

Facts

This proceeding is part of a continuing conflict between petitioners and the real parties in interest. The original complaint filed in 1984 pleaded allegations of breach of contract and fraud. A ten-day trial resulted in a $4,516,565.22 judgment against petitioners and in favor of First Western Savings Association and First Western Financial Corporation (hereinafter "First Western"), plaintiffs below and the real parties in interest in these original proceedings.

The presiding judge throughout the trial was Judge John F. Mendoza. The original judgment, entered on August 24, 1990, prompted petitioners to appeal to this court. We dismissed the appeal on grounds that the amount of attorney's fees

Page 851

had not yet been determined, and that consequently, the judgment previously entered was not a final judgment. A final judgment was entered by Judge Mendoza on January 3, 1991, one day before he officially left the bench after waging an unsuccessful reelection campaign against his challenger, then attorney Jeffrey D. Sobel.

Judge Sobel took over Judge Mendoza's Department V of the respondent court on January 8, 1991. After Judge Mendoza entered the final judgment, petitioners filed a motion for a new trial. First Western then filed a peremptory challenge under SCR 48.1 1 to disqualify Judge Sobel. Petitioners countered with a motion to strike the peremptory challenge. Following a hearing, Judge Sobel denied the motion. The district court judge determined that the policy considerations underlying an SCR [107 Nev. 676] 48.1 challenge were applicable to the situation before him, thus warranting judicial accession to the peremptory challenge.

Respondents support the district court's ruling with their subjective perception that "Judge Sobel might have difficulty impartially determining whether Judge Mendoza properly conducted the trial of this action and entered an appropriate judgment" in view of a hard-fought judicial reelection campaign. On the other hand, indulging and continuing the speculation, the good judge [107 Nev. 677] could, if this petition were granted, extend an added, perhaps subconscious effort to avoid an attitude of unfairness toward his predecessor's rulings.

Legal Discussion

Prohibition is a proper remedy to restrain a district judge from exercising a judicial function without or in excess of its jurisdiction. See NRS 34.320; NRS 34.330. Mandamus is a proper remedy to compel performance of a judicial act when there is no plain, speedy, and adequate remedy at law in order to compel the performance of an act which the law requires as a duty resulting from office. See NRS 34.160; NRS 34.170. However, the issuance of a writ of mandamus or prohibition is purely discretionary with this court. See Hickey v. District Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989) (mandamus and prohibition); State ex rel. Dep't Transp. v....

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