Summary
The Supreme Court of Nevada addresses several interlocutory procedural matters in a proceeding involving Judge Jerry Carr Whitehead and the Nevada Commission on Judicial Discipline. The court denies or rejects the Commission's efforts to obtain rehearing or amendment of an earlier opinion, discusses successive rehearing petitions and the scope of NRAP 40, and examines the Commission's compliance with court orders concerning document production and confidentiality.
Topics
Practice areas
Questions Presented
- Whether the Commission's petition for rehearing or alternative motion to amend was a procedurally proper and non-successive request under NRAP 40.
- Whether a Commission action must be memorialized in a formal written interlocutory order before it may be challenged under ARJD 40(7) or by an extraordinary writ.
- Whether the Commission's motion to disqualify two justices required a formal hearing under NRS 1.225(4) and applicable disqualification rules.
- Whether the Commission's motion to strike Whitehead's answer should be granted.
- Whether the court's in camera inspection order should be amended or withdrawn based on attorney-client privilege or work-product protection.
Holdings
- The Commission's Petition/Motion was an improper successive application for rehearing that did not identify a material matter overlooked or misapprehended by the court, did not seek alteration of the prior dispositive result, and improperly attempted to reargue decided matters and raise new arguments.
- A formal document labeled an interlocutory order is not a prerequisite to this court's review of Commission action under ARJD 40(7) or to the court's authority to issue an extraordinary writ. The Commission's vote to proceed to a probable-cause hearing and the notice memorializing that decision constituted sufficient written indicia of reviewable action.
- The Commission was not entitled to a formal hearing on its motion to disqualify two justices because the motion was untimely, procedurally deficient, and failed to allege legally cognizable grounds supporting a reasonable inference of bias or prejudice or a direct, personal, substantial pecuniary interest.
- The Commission's motion to strike Whitehead's answer was denied because the answer presented relevant, supported, and persuasive legal argument concerning the insufficiency and immateriality of the Petition/Motion.
- No correction or amendment of the prior in camera inspection order was warranted. The Commission's objections were successive and moot after compliance, and the court's limited inspection sought to determine the scope of investigative activity rather than obtain protected attorney mental impressions or legal theories.
Key quotations
“A second application for rehearing of a cause by the same party, after his petition for rehearing has been denied, will not be entertained.” (at 952)
“Under our long established practice, rehearings are not granted to review matters that are of no practical consequence.” (at 953)
“This court will recognize a document for what it is, rather than the name assigned to it.” (at 963)
“the statutory provisions and mechanisms providing for a judge's disqualification are not activated, and summary dismissal of the challenge is appropriate, where the challenge fails to allege legally cognizable grounds supporting a reasonable inference of bias or prejudice.” (at 977)
Factual background
The Commission investigated complaints concerning Judge Whitehead and voted to proceed to a probable-cause hearing. It served Whitehead with a notice requiring a written response and later resisted this court's orders requiring production of investigative materials for in camera inspection. The Commission ultimately complied with the production order but sought rehearing and amendment of Whitehead I, disputing the court's characterization of its conduct, its counsel's role, and the court's jurisdiction to intervene.
Procedural history
In Whitehead I, the court held that it could entertain extraordinary-writ challenges to Commission actions allegedly taken without or in excess of jurisdiction, ordered production of documents for in camera inspection, and required compliance with its orders. The Commission filed a successive petition for rehearing or alternative motion to amend, and Whitehead filed an answer. The court granted leave to file the overlength document, denied the motion to strike the answer, and denied the Petition/Motion as procedurally improper and lacking any material matter warranting rehearing.