Canarelli v. The Eighth Judicial Dist. Court of the State, 82299

Docket Nº82299
Citation138 Nev.Adv.Op. 12
Case DateMarch 24, 2022
CourtSupreme Court of Nevada

138 Nev.Adv.Op. 12

SCOTT CANARELLI, BENEFICIARY OF THE SCOTT LYLE GRAVES CANARELLI IRREVOCABLE TRUST DATED FEBRUARY 24, 1998, Petitioner,
v.

THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF 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.

No. 82299

Supreme Court of Nevada

March 24, 2022


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. Polsenberg 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

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

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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."[1] 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.

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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 judge's 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 judge's 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., Ill 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 of Judge Sturman's...

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