People for Ethical Treatment of Animals v. Bobby Berosini, Ltd., No. 21580

Docket NºNo. 21580
Citation111 Nev. 431, 894 P.2d 337
Case DateApril 14, 1995
CourtSupreme Court of Nevada

Page 337

894 P.2d 337
111 Nev. 431, 23 Media L. Rep. 1988
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, aka PETA, a
Delaware non-profit corporation; Performing Animal Welfare
Society, aka PAWS, a California non-profit corporation;
Jeanne Roush, Ottavio Gesmundo, and Pat Derby, Appellants,
v.
BOBBY BEROSINI, LTD., a Nevada corporation, and Bohumil
Berousek, aka Bobby Berosini, individually, Respondents.
No. 21580.
Supreme Court of Nevada.
April 14, 1995.

Page 338

Hale Lane, Peek, Dennison & Howard and Robert D. Martin, Las Vegas, for appellant Gesmundo.

Hirschkop & Associates, Alexandria, VA, for appellants PETA, Roush and Gesmundo.

Watkiss & Saperstein, Salt Lake City, UT, for appellants PETA and Roush.

Anderson, Pearl, Hardesty, Lyle, Murphy & Stone, Reno, for appellants PAWS and Derby.

Gewerter & Bohn, Las Vegas; Thomas Pitaro, Las Vegas; Lemons, Grundy & Eisenberg, Reno, for respondents.

Susan Quig-Terry, Las Vegas, for Amici Curiae Humane Society of the United States, et. al.

[111 Nev. 433] OPINION

PER CURIAM:

The above-entitled matter was first docketed in this court in October of 1990. On March 5, 1992, this court scheduled oral argument for April 21, 1992. On April 15, 1992, six days before oral argument, this court filed an executive order by the Governor designating Judge Jack Lehman to sit in place of then-Chief Justice John Mowbray. On April 21, 1992, oral argument was heard with Judge Lehman participating.

On January 27, 1994, this court issued an opinion in this matter, signed by three justices of this court and Judge Lehman. 1 PETA v. Bobby Berosini, Ltd., 110 Nev. 78, 867 P.2d 1121 (1994). This court reversed a money judgment, following a jury verdict, against appellants for libel and invasion of privacy regarding the videotaping of respondent Berosini striking his performing orangutans with a rod. Respondents have petitioned this court for rehearing. Respondents have also moved this court to disqualify Judge Lehman and to vacate our prior opinion. 2

The basis for the motion to disqualify Judge Lehman is his association with the

Page 339

Animal Foundation of Nevada (AFN), and its alleged association with appellants. Judge Lehman did not disclose this affiliation to the parties prior to his participation in, or during the pendency of, this matter. Berosini did not learn of Judge Lehman's affiliation with AFN until after our opinion in this matter was issued.

[111 Nev. 434] In 1993, while this case was under submission, Judge Lehman was a member of the six-person Advisory Board of AFN. 3 AFN's primary activity is running a spay and neuter clinic. AFN's "Statement of Philosophy and Purpose" reads in part:

The Animal Foundation's only purpose is to educate the public, making them aware of the millions of animals born homeless and unwanted.

Although we recognize a degree of merit in the animal rights movement, we feel working within the needs and sentiments of the community yield far greater participation and progress. Without exception, the pet over-population is the main concern of the Animal Foundation and the Las Vegas community.

In two years, the clinic sterilized over 15,000 dogs and cats. AFN also operates a "low-cost" vaccination clinic and a pet adoption center. AFN visits classrooms to talk to kids about their pets and how to be a good pet owner. AFN further publishes brochures about pet care which it displays in a literature rack in the lobby of the foundation's building. Next to the AFN literature on the rack is a PETA brochure entitled "PETA Guidelines for the Sale or Give-Away of Your Companion Animal."

AFN also has a five person Board of Trustees. In 1993, one of those trustees was Jamie Greenspun-Gale. Greenspun-Gale was involved in the events leading to this litigation; however, she was not a party or a witness. Nevertheless, testimony at trial indicated that Greenspun-Gale, a Las Vegas Sun columnist, was "very active in animal affairs and animal welfare" and was a member of PETA. Testimony also indicated that, after PETA received the videotape of Berosini striking his orangutans, a PETA employee called Greenspun-Gale to suggest that Greenspun-Gale expose Berosini's actions in the media. Further, there was testimony that Greenspun-Gale had Eileen Price (an active contributor to PETA and PAWS), Pat Derby (the head of PAWS and an appellant in this matter), and Jeanne Roush (PETA's chief investigator and an appellant in this matter) over to her house for dinner prior to an August 1989 meeting of animal rights activists about Berosini. Finally, Greenspun-Gale told the president of the Humane Society that there was no need for the Humane Society to investigate Berosini on animal abuse charges because "everything was under control." AFN also had ties to Linda Levine, originally a defendant in this action. Levine is a member of PETA and has appeared [111 Nev. 435] on TV on behalf of PETA. Levine is also a member of AFN and has appeared on TV on its behalf. 4

Therefore, at the time this matter was under consideration, Judge Lehman was a member of the advisory board to a foundation that has utilized a defendant in this action as its representative and which had a fairly active animal rights activist as a trustee. Judge Lehman has filed an affidavit in this court stating that he has only attended nine or ten Advisory Board meetings in the entire time he has been on the board. Judge Lehman did not know, and had never met, Greenspun-Gale until meeting her at one of the Advisory Board meetings in approximately August of 1992. Since then, Judge Lehman believes that he and Greenspun-Gale have both been at meetings together only two or three times. PETA, PAWS, and the instant litigation have never been discussed at these board meetings. Judge Lehman has never seen PETA literature at AFN or engaged in fund raising activities for AFN. Judge Lehman further states that he believes that the goals of AFN and PETA are substantially different. Judge Lehman "[i]n good faith, and all honesty ... has

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never thought of a possible conflict with this case because of membership on said Advisory Board." Even in retrospect, Judge Lehman does not think that there was a conflict.

Berosini contends that Judge Lehman should be disqualified as a matter of due process, pursuant to NRS 1.225, and pursuant to the Nevada Code of Judicial Conduct (NCJC). Because we conclude that there is the appearance of impropriety under the NCJC, we do not reach Berosini's other grounds for relief.

As a preliminary matter, we hold that the NCJC is not merely a conduct guide to judges, a violation of which is punishable by discipline. The NCJC also...

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11 practice notes
  • Rippo v. State, No. 28865
    • United States
    • Nevada Supreme Court of Nevada
    • October 1, 1997
    ...Nev. 644, 649, 764 P.2d 1296, 1299 (1988)). Disqualification must be based on facts, rather than mere speculation. PETA v. Bobby Berosini, 111 Nev. 431, 437, 894 P.2d 337, 341 (1995); see also United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993) ("Rumor, speculation, beliefs, conclusion......
  • Flowers v. Carville, No. CV-S-99-1629-PMP LRL.
    • United States
    • U.S. District Court — District of Nevada
    • August 24, 2000
    ...for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 110 Nev. 78, 867 P.2d 1121, 1125, n. 4 (1994) (citation omitted), withdrawn, 111 Nev. 431, 894 P.2d 337 (1995). When claims for invasion of privacy false light, are based on the same factual allegations as those of a simultaneous......
  • Ybarra v. State , No. 52167.
    • United States
    • Nevada Supreme Court of Nevada
    • March 3, 2011
    ...Conduct (NCJC) Canon 3E. We disagree. The NCJC “provides substantive grounds for judicial disqualification.” PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 435, 894 P.2d 337, 340 (1995), overruled on other grounds by Towbin Dodge, LLC v. Dist. Ct., 121 Nev. 251, 112 P.3d 1063 (2005). Two provi......
  • Canarelli v. Eighth Judicial Dist. Court of Nev., 82299
    • United States
    • Nevada Supreme Court of Nevada
    • March 24, 2022
    ...(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., 111 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.3......
  • Request a trial to view additional results
10 cases
  • Rippo v. State, No. 28865
    • United States
    • Nevada Supreme Court of Nevada
    • October 1, 1997
    ...Nev. 644, 649, 764 P.2d 1296, 1299 (1988)). Disqualification must be based on facts, rather than mere speculation. PETA v. Bobby Berosini, 111 Nev. 431, 437, 894 P.2d 337, 341 (1995); see also United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993) ("Rumor, speculation, beliefs, conclusion......
  • Flowers v. Carville, No. CV-S-99-1629-PMP LRL.
    • United States
    • U.S. District Court — District of Nevada
    • August 24, 2000
    ...for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 110 Nev. 78, 867 P.2d 1121, 1125, n. 4 (1994) (citation omitted), withdrawn, 111 Nev. 431, 894 P.2d 337 (1995). When claims for invasion of privacy false light, are based on the same factual allegations as those of a simultaneous......
  • Ybarra v. State , No. 52167.
    • United States
    • Nevada Supreme Court of Nevada
    • March 3, 2011
    ...Conduct (NCJC) Canon 3E. We disagree. The NCJC “provides substantive grounds for judicial disqualification.” PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 435, 894 P.2d 337, 340 (1995), overruled on other grounds by Towbin Dodge, LLC v. Dist. Ct., 121 Nev. 251, 112 P.3d 1063 (2005). Two provi......
  • Canarelli v. Eighth Judicial Dist. Court of Nev., 82299
    • United States
    • Nevada Supreme Court of Nevada
    • March 24, 2022
    ...(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., 111 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.3......
  • Request a trial to view additional results

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