Whitehead v. Nevada Com'n on Judicial Discipline, No. 24598

Docket NºNo. 24598
Citation110 Nev. 380, 873 P.2d 946
Case DateApril 22, 1994
CourtSupreme Court of Nevada

Page 946

873 P.2d 946
110 Nev. 380
In re Petition for a Writ of Prohibition or in the
Alternative for a Writ of Mandamus.
The Honorable Jerry Carr WHITEHEAD, Petitioner,
v.
NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
No. 24598.
Supreme Court of Nevada.
April 22, 1994.

Page 949

Ohlson & Springgate, Hamilton & Lynch, Reno, Gentile, Porter & Kelesis, Laura Wightman FitzSimmons, Las Vegas, for petitioner.

Frankie Sue Del Papa, Atty. Gen., Brooke Nielsen, Deputy Atty. Gen., Carson City, Donald J. Campbell, las Vegas, for respondent.

OPINION

ZENOFF, Senior Justice: *

I.

PREFACE

This is the second formal interlocutory opinion issued by this court in this proceeding. By way of candor, we note that despite this opinion's being formally authored by Senior Justice Zenoff, the opinion represents the combined efforts of Senior Justice Zenoff, Justices Steffen and Springer and several members of the court's staff. Our purpose is three-fold: (1) to resolve three of the more than thirty motions and other formal requests for relief that have been filed in this proceeding since its inception; (2) to clarify for the benefit of Judge Jerry Carr Whitehead, the Commission, and the public the basic issues that have been presented in this matter and the course that this court will pursue in resolving those issues, and (3) to disabuse the Commission of certain misconceptions regarding the proceedings before this court and this court's decision to intervene in the Commission proceedings regarding Judge Whitehead.

II.

PRELIMINARY PROCEDURAL MATTERS

A. The Commission's motion to file document in excess of ten pages.

On March 8, 1994, the Nevada Commission on Judicial Discipline moved this court in accordance with this court's rules of appellate procedure 1 for permission to file a document

Page 950

in excess of ten pages which is entitled: "Respondent Judicial Discipline Commission's Petition for Rehearing or in the Alternative Motion for Amendment of Opinion" (hereinafter "Petition/Motion"). The Commission asserted that, although it had "endeavored to restrict the Petition/Motion to the ten page limit," it had been "unable to do so in light of the complex factual and legal matters which [it] believes must be addressed in the Petition/Motion." For reasons more fully discussed below, we conclude that the Commission's Petition/Motion constitutes a procedurally improper, successive application for rehearing or reconsideration which fails to direct this court's attention to any germane, legal or factual matter previously overlooked or misapprehended by this court. Nonetheless, we have concluded that the Petition/Motion should be made a part of the historical record of this proceeding. Accordingly, we direct the Clerk of this Court to file that document.

B. The Commission's motion to strike Judge Whitehead's Answer.

On March 16, 1994, this court entered an order noting that, although it appeared that several aspects of the Commission's Petition/Motion were not in compliance with the rules of this court, it nonetheless appeared appropriate to require counsel for Judge Whitehead to tender an answer to the Petition/Motion. Pursuant to that order, Judge Whitehead lodged an Answer to the Petition/Motion with the court on March 24, 1994.

On April 6, 1994, the Commission filed a motion to strike the answer. The Commission argues that the answer does not address the matters raised in the Commission's Petition/Motion and injects irrelevant matters into this proceeding. Judge Whitehead has opposed the motion. Contrary to the Commission's contention, we have concluded that Judge Whitehead's answer presents well-supported, relevant and persuasive legal argument respecting the insufficiency and immateriality of the Commission's Petition/Motion. Moreover, to whatever extent the answer may contain facts and argument that this court considers irrelevant to the matters properly at issue herein, this court will disregard them. Accordingly, we deny the Commission's motion to strike, and we direct the Clerk of this Court to file the answer tendered by Judge Whitehead on March 24, 1994.

III.

THE COMMISSION'S PETITION FOR REHEARING OR IN THE

ALTERNATIVE MOTION FOR AMENDMENT OF OPINION.

As noted, on March 8, 1994, Attorney General Frankie Sue Del Papa, together with her Chief Deputy Brooke Nielsen and her Special Deputy Attorney General/Special Counsel Donald J. Campbell, lodged with the Clerk of this Court a document entitled: "Respondent Judicial Discipline Commission's Petition for Rehearing or in the Alternative Motion for the Amendment of Opinion." 2 The Petition/Motion asserts that our initial interlocutory opinion in these proceedings was inaccurate in various particulars; however, no suggestion is offered that the dispositive result reached by this court should be altered. See Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 128, 869 P.2d 795 (1994), to which we refer herein as "Whitehead I." 3 Ordinarily, in matters in which less public controversy has been generated, petitions for rehearing that do not seek to change the result of our rulings, and

Page 951

that are otherwise defective in multiple respects, as in the instant case, typically result in an order of summary denial. Nevertheless, once again, out of respect for the Nevada Commission on Judicial Discipline, we will more fully explicate the basis for denying the improperly presented Petition/Motion now before us.

A. The Petition/Motion seeks to assign full responsibility to the Commission for improper conduct to which Whitehead I makes reference.

Among the unusual aspects of the Petition/Motion is the fact that the document is signed not only by the Commission's counsel but also by each of the Commission members (Judge Whitehead's judges). In light of this court's statements in Whitehead I suggesting that the Commission's counsel may have incorrectly counselled the Commissioners, we can understand why the Commission's counsel and the Commissioners might now wish to attempt to underscore that the matters in the Petition/Motion are not merely the arguments of counsel, but have been tendered with the approval of the Commissioners. Nonetheless, we disapprove of the practice, and we hereby instruct the Commission's counsel and all Nevada attorneys that it should not be utilized again. 4

The Petition/Motion attributes a wide range of beliefs, thought processes, knowledge and convictions collectively to all of the Commission's members. As an example, by personally signing the Petition/Motion, the Commission members endorse statements taking full responsibility upon themselves for the improper conduct to which Whitehead I makes reference. We cannot, however, accept that the Commission's counsel have no responsibility because they were "just following orders." The record establishes that most, if not all, documents contumaciously withheld from this court, to the derogation of Judge Whitehead's rights, were in fact in the custody of the Commission's counsel rather than Commission members. It is also incontestable that inasmuch as the Commission's counsel have provided legal counsel to the Commission, they had an obligation to research the law diligently and to advise the Commission and this court accurately. The assertion, therefore, cannot be accepted that the Commission members are solely responsible for violations of the Constitutional principles and court rules engaged in by the Commission's counsel in the Commissioners' names; and, so, no correction of our opinion in Whitehead I is warranted. 5

B. The Commission's Petition/Motion is improperly successive in nature.

Following this court's order of October 4, 1993, which required the Commission to produce documents for our "in camera " inspection, the Commission filed a motion on October 12, 1993, for reconsideration; but, as Whitehead I points out, the Commission's counsel made absolutely no effort to achieve an accelerated consideration of this motion for reconsideration. 6

It was the Commission's motion for reconsideration of October 12, 1993, that was denied by this court's Whitehead I Opinion. The current Petition/Motion seeks a rehearing of Whitehead I, which in turn denied the prior Motion for Reconsideration; therefore, the current Petition/Motion is successive in nature. As Judge Whitehead's counsel note, it has been the law of Nevada for 125 years that a party will not be allowed to file successive

Page 952

petitions for rehearing. See Trench v. Strong, 4 Nev. 87, 589 (1868) ("it would be mischievous in the extreme to sanction the practice of filing a second petition for rehearing in any cause whatever, ... except to correct a palpable error and grievous wrong"). "A second application for rehearing of a cause by the same party, after his petition for rehearing has been denied, will not be entertained." Brandon v. West, 29 Nev. 135, 142, 88 P. 140, 141 (1906). The obvious reason for this rule is that successive motions for rehearing "tend to unduly prolong litigation." Id. at 141, 88 P. at 140; see also State v. Butner, 67 Nev. 436, 438 n. 2, 220 P.2d 631, 632 (1950), cert. denied, 340 U.S. 913, 71 S.Ct. 285, 95 L.Ed. 660 (1951); Ward v. Pittsburg Silver Peak, 39 Nev. 80, 103, 154 P. 74 (1915).

C. The Petition/Motion is not authorized by NRAP 40.

As Judge Whitehead's counsel point out, the office of a valid petition for rehearing is described in NRAP 40(c), which provides as follows:

(c) Scope of application; When Rehearing Considered.

(1) Matters presented in the briefs and oral arguments may not be reargued in the petition for rehearing, and no point may be raised for the first time on rehearing.

(2) The court may consider rehearing in the following circumstances:

(i) When it appears that the court has overlooked or misapprehended a material matter in the record or otherwise, or

(ii) In such other circumstances as will promote substantial justice.

(Emphasis added.)

The present Petition/Motion...

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28 practice notes
  • Whitehead v. Nevada Com'n on Judicial Discipline, No. 24598
    • United States
    • Nevada Supreme Court of Nevada
    • July 26, 1994
    ...bound to "report regularly to the Attorney General concerning the status of [this] case." See Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, ----, 873 P.2d 946, 954 The Dissent also brands as "mere speculation" the Majority's concern that the Attorney General's office could present c......
  • Whitehead v. Nevada Com'n on Judicial Discipline, No. 24598
    • United States
    • Nevada Supreme Court of Nevada
    • February 24, 1995
    ...after preliminary investigation, dismiss the matter or order a hearing to be held before it"). Instead, as described in Whitehead II, 110 Nev. 380, 873 P.2d 946 (1994), Judge Stringfield was subjected to the will of the Commission administered in secret and without reference to its own D. C......
  • Whitehead v. Nevada Com'n on Judicial Discipline, No. 24598
    • United States
    • Nevada Supreme Court of Nevada
    • July 5, 1996
    ...v. Nevada Comm'n on Jud. Discipline, 110 Nev. 128, 906 P.2d 230 (1994) (Whitehead I ); Whitehead v. Nevada Comm'n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994) (Whitehead II); Whitehead v. Nevada Comm'n on Jud. Discipline, 110 Nev. 874, 878 P.2d 913 (1994) (Whitehead III); Whitehead......
  • Lagstein v. Lloyd's, No. 07-16094.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 10, 2010
    ...869 P.2d 795 (1994), amended by 110 Nev. 128, 906 P.2d 230 (1994) (“ Whitehead I ”); Whitehead v. Nev. Comm'n on Judicial Discipline, 110 Nev. 380, 873 P.2d 946 (1994) (“ Whitehead II ”); Whitehead v. Nev. Comm'n on Judicial Discipline, 110 Nev. 874, 878 P.2d 913 (1994) (“ Whitehead III ”);......
  • Request a trial to view additional results
27 cases
  • Whitehead v. Nevada Com'n on Judicial Discipline, No. 24598
    • United States
    • Nevada Supreme Court of Nevada
    • July 26, 1994
    ...bound to "report regularly to the Attorney General concerning the status of [this] case." See Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, ----, 873 P.2d 946, 954 The Dissent also brands as "mere speculation" the Majority's concern that the Attorney General's office could present c......
  • Whitehead v. Nevada Com'n on Judicial Discipline, No. 24598
    • United States
    • Nevada Supreme Court of Nevada
    • February 24, 1995
    ...after preliminary investigation, dismiss the matter or order a hearing to be held before it"). Instead, as described in Whitehead II, 110 Nev. 380, 873 P.2d 946 (1994), Judge Stringfield was subjected to the will of the Commission administered in secret and without reference to its own D. C......
  • Whitehead v. Nevada Com'n on Judicial Discipline, No. 24598
    • United States
    • Nevada Supreme Court of Nevada
    • July 5, 1996
    ...v. Nevada Comm'n on Jud. Discipline, 110 Nev. 128, 906 P.2d 230 (1994) (Whitehead I ); Whitehead v. Nevada Comm'n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994) (Whitehead II); Whitehead v. Nevada Comm'n on Jud. Discipline, 110 Nev. 874, 878 P.2d 913 (1994) (Whitehead III); Whitehead......
  • Lagstein v. Lloyd's, No. 07-16094.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 10, 2010
    ...869 P.2d 795 (1994), amended by 110 Nev. 128, 906 P.2d 230 (1994) (“ Whitehead I ”); Whitehead v. Nev. Comm'n on Judicial Discipline, 110 Nev. 380, 873 P.2d 946 (1994) (“ Whitehead II ”); Whitehead v. Nev. Comm'n on Judicial Discipline, 110 Nev. 874, 878 P.2d 913 (1994) (“ Whitehead III ”);......
  • Request a trial to view additional results

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