Millen v. Dist. Ct., No. 46001.

Docket NºNo. 46001.
Citation148 P.3d 694
Case DateDecember 21, 2006
CourtSupreme Court of Nevada
148 P.3d 694
Nan Bell MILLEN, Petitioner,
v.
The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, and the Honorable N. Anthony Del Vecchio, District Judge, Family Court Division, Respondents, and
Richard Don Millen, Real Party in Interest.
No. 46001.
Supreme Court of Nevada.
December 21, 2006.

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COPYRIGHT MATERIAL OMITTED

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Robert W. Lueck, Las Vegas, for Petitioner.

Bruce I. Shapiro, Henderson, for Respondent Judge N. Anthony Del Vecchio.

Law Office of Dale K. Kleven and Dale K. Kleven, Las Vegas, for Real Party in Interest.

Before the Court En Banc.1

OPINION

HARDESTY, J.


In this case, we consider the propriety of using a recusal list when determining whether to assign cases to a district court judge. A judge's recusal list is a registry of persons with respect to whom the judge has some disqualifying relationship that would warrant the judge's disqualification from hearing the case. Recusal lists keep track of such disqualifications and automatically trigger a judge's recusal when a case is filed. Judges use recusal lists to streamline the case assignment process, namely to avoid having cases assigned to them when they would be disqualified from presiding under the Nevada Code of Judicial Conduct (NCJC). While we conclude that judges may use recusal lists for case assignment purposes, we also conclude that such lists must be created and maintained in a manner consistent with the objective reasons specified in the NCJC.

We also consider whether a judge's duty to sit and hear a case supersedes a client's right to select an attorney of his or her choice when that attorney appears on the assigned judge's recusal list. We conclude that, when a judge's duty to sit conflicts with

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a client's right to choose counsel, the client's right generally prevails, except when the lawyer was retained for the purpose of disqualifying the judge and obstructing management of the court's calendar.

Here, because petitioner's attorney was improperly listed on the district judge's recusal list and petitioner's attorney was not chosen in order to disqualify the assigned judge and obstruct the management of the court's calendar, the district court erred by disqualifying petitioner's attorney. Therefore, we grant the petition for a writ of mandamus.

FACTS

In September 2002, real party in interest Richard Don Millen filed a complaint for divorce against petitioner Nan Bell Millen in the Eighth Judicial District Court. Over the course of the next few years, several trial continuances were granted, and during that time, the court clerk assigned the Millen case to a number of family division judges. The reassignments resulted from the parties' filing peremptory challenges against two judges and a third judge's reassignment to juvenile matters. The divorce case also remained dormant for a period of time because Nan was prosecuted for criminal solicitation of murder after she allegedly sought to hire someone to kill Don.

Eventually, the court clerk assigned the divorce case to respondent Judge N. Anthony Del Vecchio, who scheduled the matter for trial in September 2004. The parties stipulated to continue the trial to February 2005. In January 2005, Nan entered an Alford plea2 in her criminal case and was sentenced to serve twelve months in the Clark County Detention Center. The parties again stipulated to continue the divorce trial, from February to June 2005.

During Nan's incarceration, Judge Del Vecchio allowed Nan's divorce attorney to withdraw and permitted Nan to hire a new attorney. Judge Del Vecchio then granted Nan's new attorney a continuance in order to properly prepare for trial but explained to the parties that this continuance would be the last. Trial was scheduled for September 30, 2005.

Nan was released from custody in late August 2005. On September 1, 2005, at a mandatory settlement conference conducted by Judge Del Vecchio, Nan's new divorce attorney orally moved to withdraw because he and Nan had disagreed on how to proceed with her case. Although Nan was not present, Judge Del Vecchio granted the motion.

Two weeks before trial was scheduled to commence, attorney Robert W. Lueck, a former Eighth Judicial District Court family division judge, filed a notice of appearance on Nan's behalf. Lueck also filed a motion for another continuance because he had a conflicting trial scheduled on the September 30 trial date, and he needed time to prepare for Nan's trial.

Lueck's appearance presented a complication because Lueck was on Judge Del Vecchio's recusal list.3 Although the record indicates that Judge Del Vecchio had apparently attempted to place Lueck on his recusal list as of January 1, 2005, Lueck's placement on the list was not formalized until April 2005.4 Judge Del Vecchio explains that the basis for the recusal was that in April 2005, Lueck appeared in an unrelated case pending before Judge Del Vecchio and Lueck called the judge's chambers, talked to the judge's secretary, and inquired about rescheduling a hearing. Judge Del Vecchio perceived Lueck's inquiry as a request for a favor premised on their status as former judicial colleagues on the family court bench. Because he felt compromised by Lueck's request, Judge Del Vecchio formally recused himself from that case and caused the matter to be reassigned to another judge. Lueck denies knowing that this event resulted in his placement on Judge Del Vecchio's recusal list.

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After Lueck appeared in the Millen matter, Judge Del Vecchio disqualified Lueck from representing Nan and ordered the trial to proceed as scheduled. In an oral pronouncement reflected in the district court minutes, Judge Del Vecchio noted that this case had been in progress since May 2003, that there had been numerous court appearances in the matter, and that the file had grown to encompass five volumes. Judge Del Vecchio further noted that Lueck was Nan's third attorney, as well as a "conflicted attorney," who not only appeared on the judge's recusal list, but was aware of his listing. Judge Del Vecchio also opined that Nan had retained Lueck for the purpose of either obtaining another continuance or forcing the Millen matter's reassignment to another judge. Finally, Judge Del Vecchio noted that Lueck's appearance violated the family court division's "midstream recusal policy."5

Nan now petitions this court for a writ of mandamus that would prevent Judge Del Vecchio from disqualifying Lueck to appear on her behalf. As directed, Judge Del Vecchio has filed an answer to the petition and seeks guidance concerning the propriety and use of recusal lists.

DISCUSSION

Standard for writ relief

A writ of mandamus is available to compel performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control an arbitrary or capricious exercise of discretion.6 Because mandamus is an extraordinary remedy, a writ will not issue if the petitioner has a plain, speedy and adequate remedy at law.7 A mandamus petition is appropriately used to challenge district court orders that disqualify attorneys from representing parties.8 The issuance of a writ of mandamus is purely within the discretion of this court.9

Validity of oral orders disqualifying counsel

Judge Del Vecchio disqualified Lueck from serving as Nan's counsel by an oral pronouncement contained in the clerk's minutes. Generally, a "court's oral pronouncement from the bench, the clerk's minute order, and even an unfiled written order are ineffective for any purpose."10 However, in State, Division of Child & Family Services v. District Court, we held that oral pronouncements concerning case management issues, scheduling, administrative matters, or emergencies that do not permit a party to gain an advantage are effective.11 Judge Del Vecchio's oral order to disqualify Lueck was a case management decision based upon Lueck's inclusion on the Judge's recusal list and the Judge's conclusion that Lueck's appearance was intended to secure a trial continuance. Accordingly, because Judge Del Vecchio's decision involved scheduling and administrative matters that did not allow either party to gain an advantage in the case, Judge Del Vecchio's oral pronouncement

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disqualifying Lueck is enforceable and subject to review.

Recusal lists

In her petition, Nan does not disagree with the use of recusal lists or the midstream recusal policy generally, but only with their application to her attorney in this specific case. Nan contends that Lueck was not formally notified of his placement on Judge Del Vecchio's recusal list, she did not retain Lueck for the purpose of forcing Judge Del Vecchio's recusal in favor of another judge — the practice targeted by the midstream recusal policy — and there is no valid reason why her attorney, Lueck, should be disqualified.

In his answer, Judge Del Vecchio expresses general support for the use of recusal lists, but he requests that we address two problems with recusal lists as currently used: (1) secrecy, and (2) lack of uniform standards concerning which attorneys are placed on a recusal list.

Judge Del Vecchio notes that a judge's recusal list is generally kept secret from the judge's colleagues, lawyers, and the public. He believes that this is problematic because judges should have to justify their choices, and secrecy leaves no way to verify whether a judge's choices are supported by judicial canons, rules, or statutes. This lack of verification, in turn, could undermine public confidence in the judiciary, according to Judge Del Vecchio. Judge Del Vecchio also explains that the recusal list's secrecy could lead to judicial abuses because, if the list is secret, a judge could maintain a long list of conflicted attorneys, which would yield a comparatively less demanding caseload for that judge.12 In an attempt to curb such abuses, Judge Del Vecchio states that the Eighth Judicial District...

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32 practice notes
  • Rish v. Simao, Nos. 58504
    • United States
    • Nevada Supreme Court of Nevada
    • 17 Marzo 2016
    ...judge because the district court's rulings do not suggest bias. See Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1254–55, 148 P.3d 694, 701 (2006) ( "[D]isqualification for personal bias requires an extreme showing of bias that would permit manipulation of the court and significant......
  • Canarelli v. Eighth Judicial Dist. Court of Nev., 82299
    • United States
    • Nevada Supreme Court of Nevada
    • 24 Marzo 2022
    ...a judicial canon, statute, or rule requires the judge's disqualification." Millen v. Eighth Judicial Dist. County , 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 ......
  • Canarelli v. The Eighth Judicial Dist. Court of the State, 82299
    • United States
    • Nevada Supreme Court of Nevada
    • 24 Marzo 2022
    ...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 ......
  • Liapis v. Second Judicial Dist. Court of State, No. 58649.
    • United States
    • Nevada Supreme Court of Nevada
    • 9 Agosto 2012
    ...an office, trust, or station, or to control an arbitrary or capricious exercise of discretion.” Millen v. Dist. Ct., 122 Nev. 1245, 1250, 148 P.3d 694, 698 (2006); seeNRS 34.160. The extraordinary remedy of mandamus may issue only where no plain, speedy, and adequate legal remedy exists, id......
  • Request a trial to view additional results
32 cases
  • Rish v. Simao, Nos. 58504
    • United States
    • Nevada Supreme Court of Nevada
    • 17 Marzo 2016
    ...judge because the district court's rulings do not suggest bias. See Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1254–55, 148 P.3d 694, 701 (2006) ( "[D]isqualification for personal bias requires an extreme showing of bias that would permit manipulation of the court and significant......
  • Canarelli v. Eighth Judicial Dist. Court of Nev., 82299
    • United States
    • Nevada Supreme Court of Nevada
    • 24 Marzo 2022
    ...a judicial canon, statute, or rule requires the judge's disqualification." Millen v. Eighth Judicial Dist. County , 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 ......
  • Canarelli v. The Eighth Judicial Dist. Court of the State, 82299
    • United States
    • Nevada Supreme Court of Nevada
    • 24 Marzo 2022
    ...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 ......
  • Liapis v. Second Judicial Dist. Court of State, No. 58649.
    • United States
    • Nevada Supreme Court of Nevada
    • 9 Agosto 2012
    ...an office, trust, or station, or to control an arbitrary or capricious exercise of discretion.” Millen v. Dist. Ct., 122 Nev. 1245, 1250, 148 P.3d 694, 698 (2006); seeNRS 34.160. The extraordinary remedy of mandamus may issue only where no plain, speedy, and adequate legal remedy exists, id......
  • Request a trial to view additional results

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