Smith v. Eighth Judicial Dist. Court In and For County of Clark

Decision Date08 October 1991
Docket NumberNo. 21939,21939
Citation818 P.2d 849,107 Nev. 674
PartiesA. 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.
CourtNevada Supreme Court

Lionel Sawyer & Collins, Las Vegas, for petitioners.

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



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.


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 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 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 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. 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 for "judge shopping" or the facilitation of dilatory tactics. Id. at 206, 719 P.2d at 798. The privilege must be exercised with dispatch or permanently forfeited. Id.

A corollary policy behind the requirement is "that such challenges be presented before contested proceedings have commenced." Jeaness v. District Court, 97 Nev. 218, 219, 626 P.2d 272, 274 (1981) (emphasis in original text). Failure to file within the time strictures of the rule results in waiver of the right to make a peremptory challenge. Id. at 220, 626 P.2d at 274. In other words, a party should not be permitted to disqualify a judge through a peremptory challenge "simply because he has made previous unfavorable rulings." Carr-Bricken v. First Interstate Bank, 105 Nev. 570, 573, 779 P.2d 967, 969 (1989) (ruling that a counterclaim does not revive the opportunity for a peremptory challenge under SCR 48.1).

After weighing the policy considerations underlying SCR 48.1, we have concluded that application of the rule to the peculiar facts and circumstances of the instant matter was proper. See Jeaness, 97 Nev. at 219, 626 P.2d at 274. This court has applied a standard of review based upon reasonableness in resolving challenges to judges, focusing that standard on the perspective afforded by the limitations and policies of the statute or rule of court invoked to accomplish disqualification. For example, in a case involving timeliness of affidavits filed to demonstrate actual bias or prejudice, this court upheld a challenge to a district court judge to whom the matter had been reassigned and who had yet to hear a contested matter in the case. See Tarsey v. Dunes Hotel, 75 Nev. 364, 366-67, 343 P.2d 910, 911 (1959); NRS 1.230. In Tarsey, this court held that pretrial rulings by one judge would not prevent a party from asserting the right to disqualify another judge to whom the matter is thereafter assigned for trial. The Tarsey court noted that "it would be immaterial whether or not prior to such assignment a contested matter had been heard in the action before a different judge." Tarsey, 75 Nev. at 367, 343 P.2d at 911. We see no basis for distinguishing the situation in Tarsey from that presented here. 2 SCR 48.1 provides an accommodation between litigants and the court for preventing the abuse of judicial resources and promoting the concept of fairness. In order to prevent abuse, the rule's limitations are strict. Moreover, litigants benefit from only a brief period in which they may legitimately file a peremptory challenge to a judge.

Under the case law of this court, litigants may not file such a challenge once a district court judge has heard a contested matter. See Carr-Bricken, 105 Nev. at 573, 779 P.2d at 969. One opportunity to accomplish a change of judges is permitted by the rule. 3 Here, an exercise of the privilege of peremptory challenge is not proscribed by the policy behind the rule as Judge Sobel has not yet heard a contested matter in the underlying action. 4 Moreover, First Western's motion was filed within two days of petitioners' motion for a new trial. Respondents' motion was therefore timely filed and not foreclosed as a matter of law. 5

For the reasons specified above, we conclude that petitioners' position lacks merit. Under the circumstances of this case, the ends of justice do not warrant issuance of the extraordinary writ petitioners seek from this court. See Hickey v. District Court, 105 Nev. 729, 734, 782 P.2d 1336, 1339 (1989); Bowler v. District Court, 68 Nev. 445, 454, 234 P.2d 593, 599 (1951).

ROSE, STEFFEN and YOUNG, JJ., and McGEE 6 and BREEN 7, District Judges, concur.

1 Rule SCR 48.1, prior to 1991 amendment, states in pertinent part:

1. In any civil action pending in a district court, which has not been appealed from a lower court, each side is entitled, as a matter of right, to one change of judge by peremptory challenge. Each action or proceeding, whether single or consolidated, shall be treated as having only two sides. A party wishing to exercise his right to change of judge shall file a...

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