IN THE SUPREME COURT OF THE STATE OF NEVADA
LAS VEGAS SANDS CORP., A NEVADA No. 69802
CORPORATION; SANDS CHINA LTD.,
A CAYMAN ISLANDS CORPORATION;
SHELDON G. ADELSON, IN HIS
INDIVIDUAL AND REPRESENTATIVE FILED
CAPACITY; AND VENETIAN MACAU
LTD., A MACAU CORPORATION,
MAY 1 1 2016
Petitioners, 1 1+ • C:• f. IN
N
ME•UR1
vs.
Cl.
°et AO
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
DAVID B. BARKER, DISTRICT JUDGE,
Respondents,
and
STEVEN C. JACOBS,
Real Party in Interest.
ORDER DENYING PETITION
This is an original petition for a writ of prohibition or
mandamus challenging district court orders denying motions to disqualify
Judge Elizabeth Gonzalez. Eighth Judicial District Court, Clark County;
David B. Barker, Judge.
FACTS
Real party in interest Steven Jacobs filed a complaint in the
underlying matter against petitioners Las Vegas Sands Corp. (LVSC),
Sheldon Adelson (Adelson), and their codefendants arising out of Jacobs'
termination as CEO of Sands' Macau operations. LVSC filed a motion to
disqualify Judge Gonzalez based on her decision not to recuse herself from
ruling on the validity of objections raised by LVSC regarding media-
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related deposition questions posed to Patrick Dumont, Sheldon Adelson's
son-in-law and an LVSC officer. Chief District Judge David Barker issued
an order denying LVSC's motion. Thereafter, LVSC filed a motion for
withdrawal and reconsideration of Judge Barker's order denying its
motion to disqualify Judge Gonzalez. Judge Barker also denied this
motion.
LVSC timely filed the instant petition requesting that this
court issue a writ of mandamus (1) clarifying that parties seeking
disqualification under the Nevada Code of Judicial Conduct (NCJC) and
NRS 1.230 are entitled to full briefing and the opportunity to present
evidence at an open hearing; and (2) directing Judge Barker to vacate his
January 29 and February 17, 2016, orders and issue an order
disqualifying Judge Gonzalez from continuing to preside over the
underlying matter. Additionally, at oral argument before this court, LVSC
argued that Judge Gonzalez should be disqualified under NCJC Rule 2.10.
For the reasons stated below, we do not perceive an abuse of discretion in
this matter and deny the petitioner's request for extraordinary relief.
The underlying matter was randomly assigned to Judge
Gonzalez in 2010. In September 2015, Jacobs filed an amended complaint
against LVSC, Sands China Ltd., Venetian Macau Ltd., and Adelson
alleging various contract, defamation, and wrongful termination claims.
The underlying matter has been heavily covered in the media. Notably,
media coverage intensified in 2015 when the Las Vegas Review-Journal
(Review-Journal) was purchased under public speculation that Adelson
was connected to the transaction and that the purchase was related to the
underlying matter.
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In November 2015, Judge Gonzalez observed and approached
a Review-Journal reporter in her courtroom. Upon inquiry, the reporter
informed Judge Gonzalez that his boss instructed him to attend the
hearing. In December 2015, the Review-Journal published an article
indicating that reporters at the newspaper had previously been instructed
to spend two weeks monitoring all activity of three Clark County judges,
including Judge Gonzalez.
In January 2016, Time Magazine (Time) contacted Judge
Gonzalez for an interview in which she answered questions about her
background, matters relating to the public nature of the underlying
matter, and the history of reporters from the Review-Journal attending
proceedings before her. During the interview, Judge Gonzalez described
her November interaction with the Review-Journal reporter. The related
article was published on January 7, 2016.
Thereafter, Judge Gonzalez held a hearing regarding various
motions wherein she addressed LVSC's relevancy objections to deposition
questions posed to Dumont. LVSC objected to questions pertaining to
Dumont's contact with the mediafl because they were not relevant to
Jacobs' defamation claims. LVSC requested that Judge Gonzalez recuse
herself due to her personal interest in the media's coverage of the
underlying matter. Judge Gonzalez refused to recuse herself and
instituted a review process for objections made to media-related questions.
Questions regarding media coverage of the litigation generally were to be
directed to the discovery commissioner and another district judge, while
any questions regarding Jacobs specifically would be directed to Judge
Gonzalez.
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The following day, LVSC filed a motion to disqualify Judge
Gonzalez. Therein, LVSC argued that, because Judge Gonzalez
participated in the interview with Time, approached the Review-Journal
reporter in her courtroom, and proposed a method for resolving objections
regarding media-related questions, Judge Gonzalez should have recused
herself on the matter under NCJC Rules 1.2 and 2.11. Additionally, LVSC
argued that disqualification was warranted under NRS 1.230 and that its
motion to disqualify was proper under NRS 1.235. LVSC did not refer to
or cite NCJC Rule 2.10, which specifically addresses judicial statements
on pending and impending cases. In response, Judge Gonzalez filed a
declaration addressing LVSC's arguments. Therein, Judge Gonzalez
stated that she had no bias or prejudice toward LVSC or any of its officers.
Judge Barker issued an order denying LVSC's motion to
disqualify Judge Gonzalez. Judge Barker concluded that LVSC "fail[ed] to
establish sufficient factual grounds warranting disqualification," and
"[LVSC's] omission of any reference to disqualification under NCJC 2.10
serves as its acknowledgment that Judge Gonzalez's media comments are
not judicial statements on this pending case."
LVSC later filed a motion for withdrawal and reconsideration
of Judge Barker's order denying its motion to disqualify Judge Gonzalez,
arguing that the order was premature because NRS 1.235 requires that
the district court hold a hearing before ruling on the motion to disqualify.
Once again, LVSC did not refer to NCJC Rule 2.10. Judge Gonzalez filed
an additional declaration in which she addressed the arguments raised in
LVSC's motion for withdrawal and reconsideration.
On February 17, 2016, Judge Barker issued an order denying
LVSC's motion for withdrawal and reconsideration. Judge Barker
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referred to River° v. River°, 125 Nev. 410, 438-39, 216 P.3d 213, 233
(2009), and concluded that LVSC was not entitled to a hearing on its
motion to disqualify because it failed to establish legally cognizable
grounds to support an inference of bias.
DISCUSSION
LVSC has the burden of demonstrating that this court's
intervention to provide extraordinary relief is warranted. Pan v. Eighth
Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). This
court has previously recognized "that a petition for a writ of mandamus is
the appropriate vehicle to seek disqualification of a judge." Towbin Dodge,
LLC v. Eighth Judicial Dist. Court, 121 Nev. 251, 254-55, 112 P.3d 1063,
1066 (2005). Nonetheless, whether a writ of mandamus will be considered
"is within this court's discretion." Libby v. Eighth Judicial Dist. Court,
130 Nev., Adv. Op. 39, 325 P.3d 1276, 1278 (2014). This court may
address writ petitions when they "raise important issues of law in need of
clarification, involving significant public policy concerns, of which this
court's review would promote sound judicial economy." Int? Game Tech.,
Inc. v. Second Judicial Dist. Court, 122 Nev. 132, 142-43, 127 P.3d 1088,
1096 (2006). Therefore, we will address LVSC's petition because it is the
appropriate vehicle to seek disqualification of a judge and because its
resolution will promote judicial economy. Because our discretionary
intervention is warranted we must now determine whether the district
court properly applied this court's precedent in denying LVSC's motion to
disqualify Judge Gonzalez and LVSC's motion for withdrawal and
reconsideration.
Generally, this court reviews a district court decision to deny a
motion to disqualify for an abuse of discretion. Ivey v. Eighth Judicial
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Dist. Court, 129 Nev., Adv. Op. 16, 299 P.3d 354, 359 (2013). This court
gives substantial weight to a judge's determination that she may not
voluntarily recuse herself and will not overturn such a decision absent a
clear abuse of discretion. Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d
1296, 1299 (1988), disavowed on other grounds by Halverson v. Hardcastle,
123 Nev. 245, 266, 163 P.3d 428, 443 (2007). However, "[wile review
questions of law, including questions of constitutional interpretation and
statutory construction, de novo." Lawrence v. Clark Cty., 127 Nev. 390,
393, 254 P.3d 606, 608 (2011).
LVSC failed to properly raise the argument that Judge Gonzalez should be
disqualified pursuant to NCJC Rule 2.10
During oral argument before this court, counsel for LVSC
stated that it had previously argued to the district court that Judge
Gonzalez's participation in the Time interview and contact with the
Review-Journal reporter constituted a violation of NCJC Rule 2.10. We
disagree.
Generally, a point not raised in the district court "is deemed to
have been waived and will not be considered on appeal." See Old Aztec
Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).
Additionally, this court need not consider claims that are not cogently
argued or supported by relevant authority. See Edwards v. Emperor's
Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006).
We conclude that the record is devoid of specific reference to
NCJC Rule 2.10. Accordingly, LVSC failed to properly raise this
argument before the district court. We therefore decline to address it.
While LVSC referred to the NCJC Rules 1.2 and 2.11 and the NCJC
generally to support its contention that Judge Gonzalez should be
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disqualified, it failed to argue to the district court that Judge Gonzalez's
conduct warranted disqualification under NCJC Rule 2.10. Judge Barker
noted as much in his order denying LVSC's motion to disqualify Judge
Gonzalez. Thus, we decline to address this argument on appeal.
Judge Barker did not abuse his discretion in denying LVSC's motion to
disqualify Judge Gonzalez and LVSC's motion for withdrawal and
reconsideration
LVSC argues that Judge Barker abused his discretion by
denying its motion to disqualify Judge Gonzalez and by summarily
denying its motion without providing LVSC with an open hearing and
additional briefing on the matter. We disagree.
Judges have a "duty to preside in the absence of some
statute, rule of court, ethical standard, or other compelling reason to the
contrary." Goldman, 104 Nev. at 649, 764 P.2d at 1299 (internal quotation
marks omitted). Further, "[a] judge is presumed to be impartial, and the
party asserting the challenge carries the burden of establishing sufficient
factual grounds warranting disqualification." Rippo v. State, 113 Nev.
1239, 1248, 946 P.2d 1017, 1023 (1997). "Disqualification must be based
on facts, rather than mere speculation." Id.
We find nothing in the record to support the assertion that
Judge Barker abused hisS discretion in denying LVSC's motion to
disqualify Judge Gonzalez. Judge Barker thoroughly reviewed Judge
Gonzalez's declarations and LVSC's argument that Judge Gonzalez's
conduct created a reasonable perception that she was not impartial.
Accordingly, Judge Barker correctly concluded that LVSC "fail[ed] to
establish sufficient factual grounds warranting disqualification." We
conclude that Judge Barker did not abuse his discretion in denying
LVSC's motion to disqualify Judge Gonzalez.
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Additionally, we conclude that Judge Barker correctly
dismissed LVSC's motion to disqualify Judge Gonzalez without an
evidentiary hearing pursuant to NRS 1.235. NRS 1.235 outlines the
procedure for disqualifying judges. According to the statute, after a party
files an affidavit alleging bias and the judge files an answer, "Mlle
question of the judge's disqualification must thereupon be heard and
determined by another judge agreed upon by the parties" or a judge
appointed by other means. NRS 1.235(5)(b). It is well-founded in Nevada
that, where a disqualification challenge fails to allege legally cognizable
grounds supporting an inference of bias or prejudice, summary dismissal
of the challenge is appropriate and a hearing on the matter is
unnecessary. See Hogan v. Warden, 112 Nev. 553, 560, 916 P.2d 805, 809
(1996); see also Ainsworth v. Combined Ins. Co. of Am., 105 Nev. 237, 270
774 P.2d 1003, 1026 (1989), abrogated on other grounds by Powers v.
United Servs. Auto. Ass'n, 114 Nev. 690, 962 P.2d 596 (1998); In re Petition
to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1274 (1988)). Thus,
Judge Barker correctly applied this court's precedent in concluding that,
because LVSC failed to establish legally cognizable grounds for Judge
Gonzalez's disqualification, summary dismissal of LVSC's motion to
disqualify Judge Gonzalez was appropriate. Therefore, we conclude that
Judge Barker did not err in denying LVSC's motion for withdrawal and
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reconsideration.'
Accordingly, we
ORDER the petition DENIED. 2
Ac,t
Hardesty
J.
seit irk"
Dougll
11,--- J.
Saitt
Gibbons
cc: Hon. David B. Barker, District Judge
Alan M. Dershowitz
Kemp, Jones & Coulthard, LLP
Holland & Hart LLP/Las Vegas
Morris Law Group
Pisanelli Bice, PLLC
Eighth District Court Clerk
1 We have considered the petitioners' remaining arguments and
conclude that they are without merit.
2 The Honorables Ron D. Parraguirre, Chief Justice, and Kristina
Pickering and Michael A. Cherry, Justices, did not participate in the
decision of this matter.
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