Ham v. Eighth Judicial Dist. Court, In and For Clark County, 9536

• Citation: 93 Nev. 409,566 P.2d 420
• Decision Date: 15 July 1977
• Docket Number: No. 9536,9536
• Parties: A. W. HAM, Jr., Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, and the Honorable Llewellyn A. Young, Assigned Judge of the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, Respondents.
• Court: Supreme Court of Nevada

Page 420

566 P.2d 420

93 Nev. 409

A. W. HAM, Jr., Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, and the Honorable Llewellyn A Young, Assigned Judge of the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, Respondents.

No. 9536.

Supreme Court of Nevada.

July 15, 1977.

Dickerson, Miles & Pico, Las Vegas, for petitioner.

Lionel, Sawyer & Collins, Las Vegas, for respondents.

OPINION

MANOUKIAN, Justice:

This is an original proceeding wherein Petitioner requests this Court to issue a writ of prohibition, which if granted, would preclude the Honorable Llewellyn A. Young, District Judge, from disqualifying himself as presiding Judge relative to these actions.

Two questions are presented for our determination in this extraordinary proceeding. (1) Whether a writ of prohibition is the proper remedy; (2) Whether a district court judge can voluntarily disqualify himself from participation in or consideration of proceedings pending before him, absent a judicially-warranted reason or justification for such a recusal. We answer the first issue in the affirmative and, upon these facts, the latter in the negative.

On October 15, 1973, being advised that all of the judges then sitting in the Eighth Judicial District had voluntarily recused themselves, this Court assigned Respondent, the Honorable Llewellyn A. Young, from the Sixth Judicial District, to preside on two consolidated civil actions in that district. Petitioner and Doris Ham Shupe are adversaries in that litigation. Since that time, the Respondent has presided over these consolidated proceedings for a period well in excess of three years and in doing so has heard and decided a number of contested motions including cross-motions for summary judgment February 16, 1977, which were decided in favor of Petitioner and against Ms. Shupe.

When Respondent ruled on the above motions, he set several remaining motions for hearing and decision commencing February 22, 1977, prior to the scheduled commencement of the jury trial February 28, 1977, and ordered that immediately thereafter, a stipulated-to, pre-trial conference would be held February 22, 1977, to and including February 26, 1977. On the morning of February 22, 1977, and prior to the hearing on the motions, the attorney for Ms. Shupe requested that counsel for both parties meet in chambers with Respondent. During this meeting, counsel for Ms. Shupe stated that his client believed Judge Young to be biased and prejudiced against her and further suggested that the jurist should voluntarily disqualify himself from further proceedings.

In response to these allegations of bias and prejudice, Respondent informed counsel that he entertained no such bias or prejudice for or against either party, stating additionally that during the course of the proceedings, he had ruled in favor of and against both parties. Notwithstanding this, the Judge agreed to disqualify himself and allow the parties fifteen days within which to agree upon a judge to whom the case would be reassigned.

The next day, February 23, 1977, in furtherance of the disqualification request, proceedings were conducted before Respondent with counsel for both parties present. During that proceeding, the previous day's in-chambers discussion was substantially reiterated and made of record, and a proposed order of disqualification was presented to the Judge for signature by counsel for Ms Shupe. Counsel for Petitioner objected to the reassignment contending that such a voluntary recusal, following as it did an untimely suggestion of bias and prejudice, was improper where it was expressly denied that bias or prejudice was the reason for the volunteered withdrawal. The formal written order of disqualification was not signed, and it is from the oral order of February 22, 1977, therefore, upon which Petitioner has based this application for extraordinary relief.

1. Whether a writ of prohibition is the proper remedy?

Preliminarily, this Court is asked to decide whether or not a writ of prohibition is the proper procedure with which to resolve a question concerning the propriety of a trial judge's voluntary disqualification. It is clear that a writ of prohibition must issue when there is an act to be "arrested" which is "without or in excess of the jurisdiction" of the trial judge under NRS 34.320 ¹, Culinary Workers v. District Court, 66 Nev. 166, 207 P.2d 990 (1949); Seaborn v. District Court, 55 Nev. 206, 29 P.2d 500 (1934), and "where there is not a plain, speedy and adequate remedy in the ordinary course of law" pursuant to NRS 34.330 ². Heilig v. Christensen, 91 Nev. 120, 532 P.2d 267 (1975).

Since the voluntary order of disqualification of a judge is not an appealable order in the "ordinary course of law", NRAP 3A(b), see Clack v. Jones, 62 Nev. 72, 140 P.2d 580 (1943), Petitioner is, therefore, without a "plain, speedy and adequate remedy at law." The unavailability of a valid legal basis for review satisfies one of the requirements for the issuance of a writ. The question of whether Respondent's action in this case exceeded the jurisdiction of the court below, to fulfill the second prerequisite for issuance is, in actuality, the substantive issue raised by this petition, that of whether the recusal here, albeit voluntary, was proper. A resolution of this issue then will necessarily be dispositive of the question of "excess of jurisdiction", and we turn now to consider it.

2. Whether a district court judge can voluntarily disqualify himself from participation in or consideration of proceedings pending before him absent a judicially-warranted reason or justification for such a recusal?

Petitioner contends that there does not exist that power inherent in the position which enables a trial judge, without exceeding his jurisdiction, to voluntarily recuse himself not only at his discretion, at any time, but further without stating any reasons therefor. Looking beyond NRS 1.230(3) ³ standing as the sole statutory authority for a disqualification, sua sponte, "upon the ground of actual or implied bias", Ms. Shupe has directed this Court's attention to District Court Rule 26 ⁴, a rule restricting the involvement of any other judge into a case without written authority from the then-presiding judge, as it or its similar predecessors have been construed by State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948), and Weeks v. Weeks, 75 Nev. 411, 345 P.2d 228 (1959).

The issue we are being asked to resolve is, as we perceive it, more precisely stated, whether a judge may disqualify himself after he has ruled on litigated matters where it is not shown and where the judge denies that he is biased or prejudiced, following an untimely and informal claim of such bias or prejudice being made against him. Since the issue at hand is more specifically that of disqualification voluntarily effected by a district judge, we are constrained to separate the above-mentioned contention, founded as it is on District Court Rule 26, as being inapplicable to a case of voluntary recusal.

While it is true, under Blackwell and Weeks, a trial judge may reassign a case without being required to state the reasons therefor, it does not a fortiori follow that a trial judge can disqualify himself without there being some limit on this discretion. Our reading of NRS 1.230(3) impresses us as requiring some basis for the disqualification.

Here, no explanation of the nature of the claimed bias or prejudice was given and, as such, stands unsubstantiated. Indeed, the trial judge expressly denied that he entertained any bias or prejudice when he offered to voluntarily disqualify himself. There seems to be no other explanation for the judge's voluntary disqualification other than that such a course was suggested to him attendant to a claim of bias. While we are entirely mindful that the direction of NRS 1.230(3) is not mandatory in setting forth "actual or implied bias" as a ground for a volunteered recusal, we cannot expand this permissiveness to allow disqualification on any grounds whatsoever.

In Zuniga v. Superior Court, 77 Ariz. 222, 269 P.2d 720 (1954), the court affirmed the voluntary disqualification of a trial judge stating:

. . . (W)e hold that a judge may on his own motion, if he acts timely, recuse himself even though the reason given might not be sufficient to form a basis of legal disqualification.

Id. 269 P.2d at 721.

The general rule is set forth in 48 C.J.S. Judges § 93, (1947), as follows:

It is the duty of a judge, however, to exercise the judicial functions only conferred on him by law, and he has no right to disqualify himself in the absence of a valid reason.

See Conkling v. Crosby, 29 Ariz. 60, 239 P. 506 (1925).

In State v. Allen, 246 Ind. 366, 206 N.E.2d 139 (1965), the court stated:

A judge has a discretion to disqualify himself as a judge in a case if he feels he cannot properly hear the case because his integrity has been impugned or false charges have been made against him, and he has a mandatory duty to disqualify himself if he is prejudiced, interested, or related to any of the parties in litigation. (Emphasis added.)

Id. 206 N.E.2d at 142.

We recognize that, apart from NRS 1.230(3), there may exist a number of circumstances over and above those which simply go to bias or prejudice toward a party which could allow, indeed require, disqualification. For instance, were there any suggestion of impropriety or action giving the appearance of impropriety in any given case, as contemplated by Supreme Court Rule 209 ⁵, then in effect, it seems clear that recusal would be a necessary step to alleviate or obviate such an appearance.

We choose to adopt a more practical construction of NRS 1.230(3), one which allows the voluntary disqualification of a judge not for any reason, but for only those reasons which reasonably appear to be judicially warranted. However, we find...