Hogan v. Warden, Ely State Prison

• Decision Date: 03 May 1996
• Docket Number: No. 23193,23193
• Citation: 916 P.2d 805,112 Nev. 553
• Parties: Michael Ray HOGAN, Appellant, v. WARDEN, ELY STATE PRISON, Respondent.
• Court: Nevada Supreme Court

Page 805

916 P.2d 805

112 Nev. 553

Michael Ray HOGAN, Appellant, v. WARDEN, ELY STATE PRISON, Respondent.

No. 23193.

Supreme Court of Nevada.

May 3, 1996.

[112 Nev. 554] Michael Pescetta, Nevada Appellate and Postconviction Project, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General and Robert E. Wieland, Deputy Attorney General, Carson City, for Respondent.

OPINION

SHEARING, Justice:

FACTS

On September 29, 1993, we issued an opinion in Hogan v. Warden, 109 Nev. 952, 860 P.2d 710 (1993), in which we affirmed the district court's order dismissing Hogan's post-conviction petition for a writ of habeas corpus. In our opinion, we concluded that the two aggravating circumstances on which Hogan's death penalty is based are constitutionally valid. On October 18, 1993, Hogan filed a petition for rehearing. On October 27, 1993, this court filed an order substituting attorney Michael Pescetta, then Executive Director of the Nevada Appellate and Postconviction Project, as Hogan's counsel.

On December 7, 1993, Hogan filed a motion for Justice Rose's disqualification. In his motion, Hogan asserted that because Justice Rose was investigated in 1993 after he spoke to the Clark County District Attorney about a pending criminal matter, he should be disqualified from Hogan's appeal, which was pending in this court during the same time frame. On December 10, 1993, attorney Cal J. Potter III, then President of the Postconviction Project's Board of Directors, filed a notice of withdrawal of the motion for disqualification. Subsequently, on December 23, 1993, this court filed an order denying the request to withdraw the motion and noting that neither attorney Potter nor the Postconviction Project was counsel of record for Hogan.

On February 18, 1994, we denied Hogan's disqualification motion; in our order, we determined that Hogan's motion stated no legally cognizable ground warranting disqualification. On the same day (February 18, 1994), Hogan filed with this court a motion for leave to file a motion under seal. With this motion for leave, he submitted a "Motion for Disclosure of Grounds for Disqualification," which this court received. According to this motion, attorney Thomas Pitaro, then Vice President of the Postconviction Project's Board of Directors, represented Justice Rose when Justice Rose was investigated regarding his conversation with the District Attorney. Hogan maintains that attorney Pitaro also participated in the Postconviction Board's decision to withdraw Hogan's disqualification motion. According to Hogan, the fact that Pitaro represented Justice Rose and participated in making decisions about Hogan's case gives rise to a conflict, notwithstanding this court's conclusion that the disqualification motion could not be withdrawn.

On May 9, 1994, Hogan filed, through Pescetta, a motion for an order requiring the disclosure of informal judicial discipline proceedings. In this motion, Hogan seeks an order from this court directing disclosure by each justice and each judge before whom his case was previously pending of "any informal discipline, any informal arrangement to avoid discipline, or any other similar action of the Commission on Judicial Discipline, when the Commission was represented by the Attorney General or any other state prosecutor, to which the judicial officer was a party at the time [Hogan's] case was also pending." According to Hogan, this court's opinion in Whitehead v. Nevada Commission on Judicial Discipline, 110 Nev. 380, 873 P.2d 946 (1994), reveals that in the past, the Attorney General administered "secret" disciplinary arrangements to some judges. Hogan maintains that if any judge involved in his proceedings was concurrently subject to such "secret" disciplinary proceedings, the judge would be disqualified under the Nevada Code of Judicial Conduct ("NCJC").

DISCUSSION

Motion for Disclosure of Grounds for Disqualification

In his motion, Hogan asks this court to take whatever action is necessary to ensure complete disclosure of information relating to the disqualification issue. We conclude, however, that Hogan's motion must be denied. ¹

First, because Hogan's motion follows an earlier motion, it constitutes a serial disqualification motion. NRAP 35(d) provides that "[s]erial motions or charges, whether entitled as separate challenges, or as supplements, or entitled in any other way, must not be filed, and will not be entertained." See also Whitehead v. Comm. on Jud. Discipline, 110 Nev. 380, 429, 873 P.2d 946, 977 (1994) (recognizing that NRAP 35(d) precludes this court's consideration of serial disqualification motions). Therefore, Hogan's motion is procedurally deficient under NRAP 35(d). Additionally to the extent that Hogan's motion is a supplement to his original disqualification motion, it became moot when, on February 18, 1994, we denied the original motion. See generally NCAA v. University of Nevada, 97 Nev. 56, 624 P.2d 10 (1981).

Finally, even considering the merits of Hogan's motion, we conclude that it sets forth no basis for disqualification. ² This court has previously rejected a similar disqualification claim. In Ainsworth v. Combined Insurance Co., 105 Nev. 237, 774 P.2d 1003, cert. denied, 493 U.S. 958, 110 S.Ct. 376, 107 L.Ed.2d 361 (1989), after this court had rendered its decision, the insurer filed a motion to disqualify former Justice Gunderson. The motion was based, in part, on the ground that the attorney who had signed an amicus brief (Laura Wightman FitzSimmons) had simultaneously represented former Justice Gunderson in another matter.

This court concluded that this alleged ground did not warrant disqualification. With regard to former Justice Gunderson's simultaneous representation by attorney FitzSimmons, who had signed an amicus brief in the appeal, this court determined that FitzSimmons' involvement in the case was "extremely limited and [could not] reasonably support any inference of impropriety." Id. at 265, 774 P.2d at 1023. In addition, this court noted that FitzSimmons did not author the amicus brief, but merely signed it. Id.

Here, Hogan contends that attorney Pitaro repeatedly requested Pescetta to withdraw the disqualification motion and later moved the Postconviction Board's Executive Committee to withdraw the disqualification motion. According to Hogan, Pitaro did not vote on whether to file the notice of withdrawal but that Pitaro proposed a number of editing changes to the draft motion. Hogan does not allege that Pitaro was representing Justice Rose when the Postconviction Board's decision to withdraw the disqualification motion was made. Hogan's disqualification claim is therefore weaker than that presented in Ainsworth, and we conclude that Hogan has not raised a viable disqualification claim. ³

Motion for Order Requiring Disclosure of Informal Judicial Discipline Proceedings

NCJC Canon 3, Section E provides, in part, as follows:

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge[ ] of disputed evidentiary facts concerning the proceeding[.]

The Due Process Clause also prohibits a judge with a direct interest in a case from participating in its resolution. The Supreme Court has explained that an interest is disqualifying under the due process clause if it " 'would offer a possible temptation to the average ... judge ... not to hold the balance nice, clear and true.' " In re Murchison 349 U.S. 133, 135, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927)).

In several recent opinions, it was suggested that the Nevada Commission on Judicial Discipline had, in the past, acted outside the scope of its governing rules and the Nevada Constitution when investigating and disciplining judges. See, e.g., Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994); Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 874, 879-80, 878 P.2d 913, 917 (1994). The Whitehead court mentioned "secret 'arbitration,' secret 'mediation' and secret 'probation.' " 110 Nev. at 416, 873 P.2d at 969. Additionally, the Whitehead court discussed the case of "Judge D___," who was placed on informal "probation" under the supervision of the Attorney General's office without a probable cause hearing first being held. Id. at 418-19, 873 P.2d at 970-71.

Although we recognize that, depending on the factual circumstances presented, a judicial disciplinary arrangement with the Attorney General's involvement could raise an appearance of impropriety under NCJC Canon 3E, see, e.g., In Interest of McFall, 533 Pa. 24, 617 A.2d 707 (1992), we conclude that Hogan's motion must be denied. We emphasize at the outset that Hogan has not filed a disqualification motion and has instead filed a motion for the disclosure of information. Therefore, we do not analyze whether any particular set of facts would warrant judicial disqualification. Nevertheless, several policy considerations relating to judicial disqualification are relevant to our evaluation of Hogan's motion.

To begin, the primary policy behind the Code of Judicial Conduct is to promote public confidence in the judiciary. See H.R.Rep. No. 1453, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355. Public confidence is not fostered by motions such as Hogan's; such motions serve only to raise, without any factual basis, possible doubts about the impartiality of Nevada's judiciary. Subjecting judges to informational quests regarding their qualifications to sit on certain matters erodes the public's regard for the judiciary's integrity and directly contravenes the foundation on which the Code of Judicial Conduct rests. ⁴

The NCJC recognizes the tension...