disqualification of a prosecutor's office rests with the sound discretion of
the district court," id. at 309, 646 P.2d at 1220, and "while mandamus lies
to enforce ministerial acts or duties and to require the exercise of
discretion, it will not serve to control the proper exercise of that discretion
or to substitute the judgment of this court for that of the lower tribunal,"
id. at 310, 646 P.2d at 1221. Accordingly, where the district court has
exercised its discretion, a writ of mandamus is available only to control an
arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp.
Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). "An
arbitrary or capricious exercise of discretion is one founded on prejudice or
preference rather than on reason, or contrary to the evidence or
established rules of law." State v. Dist. Ct. (Armstrong), 127 Nev. „
267 P.3d 777, 780 (2011) (citations omitted).
We conclude that the district court acted arbitrarily or
capriciously in granting the motion to recuse. In Collier, we held that
when exercising its discretion on whether to disqualify due to a conflict of
interest, the district court "should consider all the facts and circumstances
and determine whether the prosecutorial function could be carried out
impartially and without breach of any privileged information." 98 Nev. at
310, 646 P.2d at 1220. There is no potential breach of privileged
information in this case, so the inquiry should be whether the
prosecutorial function can be carried out impartially. This is similar to
the finding in several other states that a conflict of interest may exist if
there is a "reasonable possibility that the prosecutor's office may not
exercise its discretionary function in an evenhanded manner." State v.
Cope, 50 P.3d 513, 515 (Kan. Ct. App. 2002); see also Milsap v. Superior
Court, 82 Cal. Rptr. 2d 733, 735 (Ct. App. 1999); People v. C.V., 64 P.3d
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272, 275 (Colo. 2003); Head v. State, 560 S.E.2d 536, 537-38 (Ga. Ct. App.
2002).
In Collier, this court held that vicarious disqualification may
be required in "extreme cases where the appearance of unfairness or
impropriety is so great that the public trust and confidence in our criminal
justice system could not be maintained without such action." 98 Nev. at
310, 646 P.2d at 1221. The State is correct that the appearance-of-
impropriety standard is no longer recognized by the American Bar
Association. Liapis v. Dist. Ct., 128 Nev. „ 282 P.3d 733, 736-37
(2012); Brown v. Dist. Ct., 116 Nev. 1200, 1204 n.4, 14 P.3d 1266, 1269 n.4
(2000). However, the standard adopted by several other courts or
legislatures after rejecting the appearance-of-impropriety standard is
similar to the language used in Collier to explain what constitutes an
appearance of impropriety for public lawyers. Most of these states allow
recusal only if the conflict would render it unlikely that the defendant will
receive a fair tria1. 1 Cal. Penal Code § 1424(a)(1); Cope, 50 P.3d at 515-16;
C.V., 64 P.3d at 275. This concern is included in the test espoused in
Collier—whether the public trust and confidence in the criminal justice
system could be maintained. Thus, while we acknowledge that the
appearance-of-impropriety standard has been rejected by numerous
courts, because our definition of appearance of impropriety in Collier
comports with the standard other states now apply, we will continue to
1 Some
courts have gone further, finding that a mere appearance of
impropriety is not enough and require a showing of actual prejudice to the
defendant. Schumer v. Holtzman, 454 N.E.2d 522, 526 (N.Y. 1983);
Haywood v. State, 344 S.W.3d 454, 462-63 (Tex. Crim. App. 2011).
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determine whether the conflict of interest undermines the public trust and
confidence in the criminal justice system. 2
In this case, the district court concluded that the prosecutorial
function could not be carried out impartially, an extreme appearance of
impropriety existed since the case involves at least 27 attorneys from the
office, and screening could not cure the appearance of impropriety. We
conclude that the district court acted arbitrarily and capriciously because
the facts and circumstances do not support the district court's conclusion
that there is a conflict of interest or that there would be an appearance of
impropriety if the Clark County District Attorney's Office continued the
prosecution of this case. There has been no demonstration that the
prosecution of the defendants in this case could not be carried out
impartially because 27 deputy district attorneys may be called as
witnesses in this case. RPC 3.7(b) allows an attorney to act as an advocate
in a trial where another attorney in the law firm is likely to be called as a
witness unless precluded by RPC 1.7 or RPC 1.9. RPC 1.7 and RPC 1.9 do
not apply as there is no issue regarding past or current clients. We note
that of the numerous deputy district attorneys that were called to testify
at the evidentiary hearing on this motion, none of them had any
recollection of the court hearings they were called to testify about.
Further, we cannot discern any appearance of impropriety in this case,
and certainly none exists to the extent that it would undermine the public
2 0ther states have continued to apply the appearance of impropriety
standard while noting that the American Bar Association no longer
recognizes it. State v. Retzlaff, 490 N.W.2d 750, 752 (Wis. Ct. App. 1992);
State ex rel. Romney v. Superior Court, 891 P.2d 246, 251 (Ariz. Ct. App.
1995).
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trust and confidence in the criminal justice system. Therefore, the district
court acted arbitrarily and capriciously in exercising its discretion. 3
Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its order granting the motion to recuse.
Gibbons
J.
cc: Hon. Jessie Elizabeth Walsh, District Judge
Attorney General/Carson City
Clark County District Attorney
Gordon Silver
Robert M. Draskovich, Chtd.
William B. Terry, Chartered
Eighth District Court Clerk
3 We deny real party Steven Earl Brox's motion to enlarge the time to
file a supplemental answer to the petition.
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