Smith v. Eighth Judicial Dist. Court In and For County of Clark, No. 21939

Docket NºNo. 21939
Citation818 P.2d 849, 107 Nev. 674
Case DateOctober 08, 1991
CourtSupreme Court of Nevada

Page 849

818 P.2d 849
107 Nev. 674
A. Jay SMITH and Ernst and Whinney, Petitioners,
v.
The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada,
In and For The COUNTY OF CLARK, and The Honorable
Jeffrey D. Sobel, District Judge, Respondents,
and
First Western Savings Association, a Nevada corporation;
First Western Financial Corporation, a Delaware
corporation, Real Parties in Interest.
No. 21939.
Supreme Court of Nevada.
Oct. 8, 1991.

Page 850

Lionel Sawyer & Collins, Las Vegas, for petitioners.

Miles, Pico & Mitchell, Las Vegas, and Severson & Werson, San Francisco, Cal., for real parties in interest.

[107 Nev. 675] OPINION

PER CURIAM:

This original petition for writ of mandamus or prohibition challenges an order of the respondent district court, Jeffrey D. Sobel, Judge, denying petitioners' motion to strike a peremptory challenge directed against the same judge as successor to litigation presided over by Judge Sobel's predecessor in office.

Facts

This proceeding is part of a continuing conflict between petitioners and the real parties in interest. The original complaint filed in 1984 pleaded allegations of breach of contract and fraud. A ten-day trial resulted in a $4,516,565.22 judgment against petitioners and in favor of First Western Savings Association and First Western Financial Corporation (hereinafter "First Western"), plaintiffs below and the real parties in interest in these original proceedings.

The presiding judge throughout the trial was Judge John F. Mendoza. The original judgment, entered on August 24, 1990, prompted petitioners to appeal to this court. We dismissed the appeal on grounds that the amount of attorney's fees

Page 851

had not yet been determined, and that consequently, the judgment previously entered was not a final judgment. A final judgment was entered by Judge Mendoza on January 3, 1991, one day before he officially left the bench after waging an unsuccessful reelection campaign against his challenger, then attorney Jeffrey D. Sobel.

Judge Sobel took over Judge Mendoza's Department V of the respondent court on January 8, 1991. After Judge Mendoza entered the final judgment, petitioners filed a motion for a new trial. First Western then filed a peremptory challenge under SCR 48.1 1 to disqualify Judge Sobel. Petitioners countered with a motion to strike the peremptory challenge. Following a hearing, Judge Sobel denied the motion. The district court judge determined that the policy considerations underlying an SCR [107 Nev. 676] 48.1 challenge were applicable to the situation before him, thus warranting judicial accession to the peremptory challenge.

Respondents support the district court's ruling with their subjective perception that "Judge Sobel might have difficulty impartially determining whether Judge Mendoza properly conducted the trial of this action and entered an appropriate judgment" in view of a hard-fought judicial reelection campaign. On the other hand, indulging and continuing the speculation, the good judge [107 Nev. 677] could, if this petition were granted, extend an added, perhaps subconscious effort to avoid an attitude of unfairness toward his predecessor's rulings.

Legal Discussion

Prohibition is a proper remedy to restrain a district judge from exercising a judicial function without or in excess of its jurisdiction. See NRS 34.320; NRS 34.330. Mandamus is a proper remedy to compel performance of a judicial act when there is no plain, speedy, and adequate remedy at law in order to compel the performance of an act which the law requires as a duty resulting from office. See NRS 34.160; NRS 34.170. However, the issuance of a writ of mandamus or prohibition is purely discretionary with this court. See Hickey v. District Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989) (mandamus and prohibition); State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 361, 662 P.2d 1338, 1339 (1983) (mandamus); Bowler v.

Page 852

District Court, 68 Nev. 445, 453-54, 234 P.2d 593, 598 (1951) (prohibition).

We note at the threshold that the peremptory challenge at issue does not fall within the literal language of SCR 48.1. The provisions of the rule as written do not accommodate the filing of such challenges where, as here, trial has occurred, final judgment has been entered, and a newly elected successor judge has been scheduled to hear a contested motion for a new trial. Therefore, a strict and literal application of SCR 48.1, would compel the conclusion that First Western's motion was not timely filed.

Peremptory challenges are mechanisms designed "to insure a fair tribunal by allowing a party to disqualify a judge thought to be unfair or biased." Jahnke v. Moore, 112 Idaho 944, 737 P.2d 465, 467 (App.1987). A movant may be said to properly take advantage of a peremptory challenge when the litigant "is concerned that the judge may be biased or unfair for some real or imagined reason." Id.

Because of the ease with which a peremptory challenge to a judge operates, the danger exists that "the device will be abused--with all the delay and waste of judicial resources that such abuse entails." Nevada Pay TV v. District Court, 102 Nev. 203, 205, 719 P.2d 797, 798 (1986). The strict time limitations contained in the rule are therefore designed to prevent its use as a device...

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1120 practice notes
  • Kirkpatrick v. Dist. Ct., No. 37593.
    • United States
    • Nevada Supreme Court of Nevada
    • March 14, 2003
    ...status. 4. NRS 34.160. 5. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). 6. Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 7. See Binegar v. District Court, 112 Nev. 544, 548, 915 P.2d 889, 892 (1996). 8. SierraDawn contends that because ......
  • Kirkpatrick v. Dist. Ct., No. 37593.
    • United States
    • Nevada Supreme Court of Nevada
    • April 11, 2002
    ...Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (citation omitted). 7. NRS 34.170. 8. Smith v. District Court, 107 Nev. 674, 818 P.2d 849 9. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); see also Elley v. Stephens, 104 Nev. 413, 416, 760......
  • Thomas v. Eighth Judicial Dist. Court of State, No. 69074.
    • United States
    • Nevada Supreme Court of Nevada
    • September 14, 2017
    ...petition The decision to consider a writ of mandamus lies within the sole discretion of this court. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). "A writ of mandamus is available to compel the performance of an act that the law requires ... or to control......
  • International Game Tech. v. Dist. Court, No. 43882.
    • United States
    • Nevada Supreme Court of Nevada
    • February 9, 2006
    ...Stores, and Ritz Camera, but those entities are not parties to these writ proceedings. 18. NRS 34.160; see also Smith v. District Court, 107 Nev. 674, 818 P.2d 849 19. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). 20. See Desert Fireplaces Plus, Inc. v. Dist. Ct., ......
  • Request a trial to view additional results
1117 cases
  • Kirkpatrick v. Dist. Ct., No. 37593.
    • United States
    • Nevada Supreme Court of Nevada
    • March 14, 2003
    ...status. 4. NRS 34.160. 5. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). 6. Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 7. See Binegar v. District Court, 112 Nev. 544, 548, 915 P.2d 889, 892 (1996). 8. SierraDawn contends that because ......
  • Kirkpatrick v. Dist. Ct., No. 37593.
    • United States
    • Nevada Supreme Court of Nevada
    • April 11, 2002
    ...Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (citation omitted). 7. NRS 34.170. 8. Smith v. District Court, 107 Nev. 674, 818 P.2d 849 9. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); see also Elley v. Stephens, 104 Nev. 413, 416, 760......
  • Thomas v. Eighth Judicial Dist. Court of State, No. 69074.
    • United States
    • Nevada Supreme Court of Nevada
    • September 14, 2017
    ...petition The decision to consider a writ of mandamus lies within the sole discretion of this court. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). "A writ of mandamus is available to compel the performance of an act that the law requires ... or to control......
  • International Game Tech. v. Dist. Court, No. 43882.
    • United States
    • Nevada Supreme Court of Nevada
    • February 9, 2006
    ...Stores, and Ritz Camera, but those entities are not parties to these writ proceedings. 18. NRS 34.160; see also Smith v. District Court, 107 Nev. 674, 818 P.2d 849 19. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). 20. See Desert Fireplaces Plus, Inc. v. Dist. Ct., ......
  • Request a trial to view additional results

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