Nevius v. Warden
| Decision Date | 24 June 1998 |
| Docket Number | Nos. 29027,29028,s. 29027 |
| Citation | 960 P.2d 805,114 Nev. 664 |
| Parties | Thomas NEVIUS, Petitioner, v. WARDEN, Nevada State Prison, E.K. McDaniel; and Attorney General of Nevada, Frankie Sue Del Papa, Respondents. Thomas NEVIUS, Appellant, v. WARDEN, Nevada State Prison, Respondent. |
| Court | Nevada Supreme Court |
In November 1982, over fifteen years ago, a jury convicted Thomas Nevius of murder in the first degree. He was sentenced to receive the death penalty. This court affirmed his conviction and sentence on direct appeal. See Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985). In August 1996, Nevius filed in this court an original petition for a writ of habeas corpus (Docket No. 29027), and an appeal from an order of the district court denying his petition for post-conviction relief (Docket No. 29028). Because of the similarity of the facts and issues involved, this court consolidated these matters for disposition.
On October 9, 1996, this court entered an order dismissing the appeal and denying the habeas petition. Nevius timely petitioned this court for rehearing and for leave to present oral argument. That petition remains pending and unresolved in this court.
Thereafter, Nevius moved this court to disqualify Justice Cliff Young from participating in the decision of these matters. On August 28, 1997, this court issued an opinion denying the motion. See Nevius v. Warden, 113 Nev. 1085, 944 P.2d 858 (1997) (Adv.Opn.121). On September 15, 1997, the clerk of this court received, but did not file, Nevius' instant motion seeking rehearing and reconsideration of the decision of August 28, 1997, denying the motion to disqualify Justice Young. 1
Nevius asserts that the opinion of August 28, 1997, "contains material mistakes as to the facts and law and it would be in the interest of the justice for the court to reconsider its decision." Specifically, Nevius again argues that Attorney General Frankie Sue Del Papa's public endorsement of Justice Young during Justice Young's most recent re-election campaign creates an appearance of impropriety which would cause a reasonable person to entertain doubt as to Justice Young's impartiality in this matter. Further, Nevius again argues that he is entitled to discovery of the circumstances surrounding the attorney general's endorsement.
The opinion rejecting Nevius' motion to disqualify specifically relied on the reasoning set forth in State, Dep't of Transp. v. Barsy, 113 Nev. 709, 941 P.2d 969 (1997). Barsy rejected a similar contention and quoted at length from Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003, cert. denied, 493 U.S. 958, 110 S.Ct. 376, 107 L.Ed.2d 361 (1989). Ainsworth, in turn, concluded that an attorney's associations with a justice's campaign did not constitute legally competent grounds for disqualification under this state's statutes, rules of judicial conduct, or under the Due Process Clause of the United States Constitution. Ainsworth further held that where no legally competent grounds supporting a reasonable inference of bias existed, "summary dismissal" of the challenge was warranted and no evidentiary hearing or discovery was required. Ainsworth, 105 Nev. at 270, 774 P.2d at 1026. See also In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988) (). 2 This court's decisions in Barsy and Ainsworth set forth more than adequate grounds for rejecting Nevius' request for disqualification and discovery.
In the instant motion, Nevius improperly reasserts and reargues matters previously considered and rejected by the court. Nevius has not pointed to any material matter of law or fact that was overlooked or misapprehended in the court's prior opinion; nor has he demonstrated that rehearing and reconsideration will promote substantial justice.
Accordingly, we deny the motion for rehearing and reconsideration and specifically reaffirm in its entirety the prior opinion of this court denying the motion to disqualify Justice Young.
BREEN 3 and HOYT 4, District Judges, and MAUPIN, J., concur.
This is a motion for rehearing and reconsideration of our August 28, 1997, decision concluding that Justice Young was not disqualified from sitting on the motion to rehear this case. Our August 1997 decision did not revisit the merits of the case which had already been disposed of by an October 9, 1996 order dismissing appellant's appeal and petition for writ of habeas corpus. The dissent acknowledges these facts, but then proceeds to reconsider previously resolved issues which were not raised by the appellant's rehearing/reconsideration motion presently before this court.
The only rationale for Justice Springer's decision to revisit previously resolved and unraised issues is apparently his desire to take yet another shot at two of his perceived enemies--Justice Young and the Nevada Attorney General--both of whom opposed the action taken by Justice Springer (along with a departed member of this court) against the Nevada Judicial Discipline Commission.
Justice Springer demonstrated none of the high-minded conflict of interest principles stated in his dissent when he determined that even though an attorney and her law partner's aggregate election campaign contribution to a judge was over $100,000, this fact was insufficient to disqualify that judge from participation in the contested selection of the attorney to a State Bar committee. See O'Brien v. State Bar, 114 Nev. 71, 952 P.2d 952 (1998). The attorney involved in the O'Brien case is the former law clerk and personal friend of Justice Springer. Justice Springer has consistently refused to disqualify himself from participation in motions to disqualify me filed by this attorney, even though his close relationship with this attorney is well known, as is his animus toward me. See Whitacre Inv. Co. v. State, Dep't Transp., 113 Nev. 1101, 946 P.2d 191 (1997).
Justice Springer claims in his dissent that only a mere $10,000 contribution was involved in the O'Brien case. That is simply not true. When the contributions of the attorney whose election was challenged, Laura Fitzsimmons, are added to those made by her husband and those made by or arranged by her law partner, we have close to $100,000 in contributions that were involved. Fitzsimmons and her husband are listed as each contributing $10,000 in Judge Steve Jones' 1996 Campaign Disclosure Forms filed with the Nevada Secretary of State. Kermitt Waters admitted to making large additional contributions in a motion to disqualify Justice Young filed on December 16, 1996, in the Whitacre case. In that motion, Waters stated as follows: Whitacre Inv. Co. v. State, Dep't Transp., 113 Nev. 1101, 946 P.2d 191 (Appellant's Motion to Disqualify Justice C. Clifton Young at 4, December 16, 1996). By their own admission, Laura Fitzsimmons and Kermitt Waters, with their spouses and through corporations they controlled, admit to contributing at least $95,000 to Justice Young's opponent in 1996.
When this appeal from the denial of a writ of habeas corpus and post-conviction relief was disposed of in October of 1996, the issue of the improper preemption of prospective black jurors was carefully considered and rejected by a unanimous court. After analyzing the claim, this court, including Justice Springer, rejected the appellant's racial assertion as being "not credible." Now, Justice Springer's opinion has shifted 180 degrees and he finds that those very same allegations present a compelling claim for summary reversal.
The only thing that has changed since our October 1996 resolution of this issue on the merits is that a motion to disqualify Justice Young has been denied; the disqualification motion challenged Justice Young's participation in the rehearing of this case for the reason that the Attorney General had supported Justice Young in his re-election campaign. It is indeed alarming that Justice Springer is willing to abandon his decision in a death penalty case simply to continue his one-sided campaign of enmity against the Attorney General and a justice on this court.
The reason Justice Springer and the rest of this court found Nevius' allegations of racism in jury selection to be "incredible" is because they were raised many years after the racially repugnant statements were allegedly made, the prosecutor had no recollection of making any such statements and stated that he would not make such statements, and the state and federal district courts, in addition to the federal court of appeals all found that the peremptory challenges were exercised for a race neutral reason.
The prosecutor denied that he "racially stacked a jury" and, up until now, Justice Springer agreed that the evidence did not support such claims. Justice Springer's new-found conviction that a black man is being executed because of the verdict of a "stacked jury" represents yet another effort in his quest to vilify his perceived long-standing enemies.
Regrettably, Justice Springer's latest attacks do nothing more than discredit himself and our beleaguered judicial system.
The issue presently before the court is, as pointed out in the...
To continue reading
Request your trial
-
Nevius v. McDaniel
...any consideration of his case. That motion was denied, Nevius v. Warden, 113 Nev. 1085, 944 P.2d 858 (1997), rehearing denied, 114 Nev. 664, 960 P.2d 805 (1998), cert. denied, 525 U.S. 1108 (1999). These rulings are not challenged in Nevius's present habeas 3. Nevius's claim of cruel and un......