dissenting:
Respectfully, I dissent from the majority’s conclusion that Justice Rose is qualified to sit on this case, and for that reason would vacate the court’s opinion and grant rehearing with another judge sitting in the place of Justice Rose.
Canon 2 of the Nevada Code of Judicial Conduct states that “[a] judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” In the Commentary to Canon 2, it notes that “[pjublic confidence in the judiciary is eroded by irresponsible or improper conduct by judges. . . . The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”
In order to demonstrate why I strongly believe Justice Rose is disqualified to sit on the instant case, I attach hereto as Exhibit A, a letter dated October 26, 1994, (hereafter “the letter”) which *582was signed by our colleague’s bar manager, Steve McLaughin, on behalf of Justice Rose’s reelection campaign. Justice Rose was aware of the letter and even provided the case citations that it referenced. The letter, which notes that Justice Rose was one of the majority of three (thus the swing vote) in the case of Hinegardner v. Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992) (Hinegardner involved basically the same issue concerning the liability of negligent vendors of alcoholic beverages as the instant case), ends with the following portent, which Justice Rose fulfills by voting on the instant case: “Bob’s election is a good bet — for you [the bars and commercial alcohol vendors of the state] and the State of Nevada. This is an important issue to each of our livelihoods.”
The letter, which was signed by representatives of four commercial purveyors of alcoholic beverages, including Justice Rose’s Sidelines Lounge and Restaurant, was directed to owners of similar establishments in an effort to secure campaign contributions for Justice Rose’s reelection to this court. In referring to the Hinegardner case, the letter notes that:
[T]he Nevada Supreme Court upheld the Nevada dram shop protection for bars and casinos by a 3-2 vote, even though the person, who later was involved in a serious automobile accident, was a minor. Bob [Rose] was in the majority. Imagine the increased cost of insurance if all bars and restaurants were responsible for whatever injury a patron caused after leaving the establishment.
(Emphasis added.)
I consider Justice Rose’s participation in the Hinegardner case as inappropriate as the instant case, but his participation was not challenged in Hinegardner. When Hinegardner was decided by the margin of Justice Rose’s vote, our colleague benefitted directly from avoiding the necessity of paying for “the increased cost of insurance” noted in the letter. He also benefitted from his later sale of the Sidelines Lounge and Restaurant because the profitability of the business would have reflected the lower insurance costs resulting from his vote in Hinegardner. Moreover, since he still holds a large, secured promissory note on his bar, there is the distinct possibility that he could reacquire ownership of the business without the increased insurance costs that a majority vote favoring Snyder in the instant case could produce.
The letter strongly demonstrates that Justice Rose’s personal interest in minimizing insurance costs to his own business was far more than de minimis. Thus the letter’s entreaty to “[ijmagine the increased cost of insurance if all bars and restaurants were responsible for whatever injury a patron caused after leaving the *583establishment.” (Emphasis supplied.) Given the direct, substantial and personal interest that our bar-owning colleague had, and potentially still has, I consider it self-evident that he cannot sit on this case and avoid the appearance of impropriety that Canon 2 indicates he must avoid.
Moreover, I am of the opinion that the United States Supreme Court case of Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986), has direct application here. In Lavoie, the challenged justice of the Alabama Supreme Court had participated in deciding a case that established a rule of law that would prove beneficial to another case in which he was a litigant. As the Supreme Court noted, “his [the challenged justice’s] opinion for the Alabama Supreme Court had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case.” In concluding that the challenged justice’s participation constituted a violation of the appellant’s right to due process, the Lavoie court vacated the judgment of the Supreme Court of Alabama. Other parallels exist between Lavoie and the instant case, viz, in both instances the challenged judge cast the deciding vote and wrote the opinion in the case. Concerning this state of affairs, the High Court wrote:
[W]e are aware of no case, and none has been called to our attention, permitting a court’s decision to stand when a disqualified judge casts the deciding vote. Here Justice Embry’s vote was decisive in the 5-to-4 decision and he was the author of the court’s opinion. Because of Justice Embry’s leading role in the decision under review, we conclude that the “appearance of justice” will best be served by vacating the decision and remanding for further proceedings.
Interestingly, the settlement Justice Embry received in his own case amounted to the “tidy sum” of $30,000, which the Court determined to be sufficient, even minus any attorney’s fee he may have had to pay, to establish the “substantiality of his interest” in the Lavoie appeal. I suggest that Justice Rose’s pecuniary benefit from the Hinegardner decision and potentially from this decision could far exceed the amount of $30,000. Given the amount of annual cost of insurance savings, and the impact of those savings in determining a sales price for his bar and restaurant, it is not unlikely that the amount at stake here was substantially greater than in Lavoie.
The opinion written by Justice Rose and authored by Justice Young on behalf of the majority, declaring himself qualified to sit, is patently inappropriate. By his own act and vote, he fulfills a campaign promise and continues to minimize insurance costs to *584bars and casinos. Moreover, he provides himself with the assurance that if the buyers of his bar default on their payments to him, he will reacquire his business without having to pay the increased insurance premiums that were of such concern in the letter soliciting funds for his reelection to the court.1 Indeed, the impropriety of the majority’s ruling appears compounded by the fact that the rule of law reaffirmed by this case is in clear opposition to that established by the overwhelming majority of courts across the nation which recognize the need to do something about the terrible cost in human lives that results from the presence of intoxicated drivers on our highways. Commercial vendors of alcoholic beverages in these other jurisdictions have survived, but in Nevada this court apparently places a higher value on minimizing insurance costs to bars and casinos than it does on human life.
For the reasons noted above, I am forced to separate myself from the ethical standards acceptable to my colleagues in the majority.2 I therefore dissent.3
Furthermore, if the buyers of our colleague’s bar and restaurant do not default in their payments, Justice Rose will continue to reap a profit from his deciding vote in Hinegardner that provided a perceptibly more favorable historical expense of operating factor attributable to the lower insurance rate.
It is unfortunate that my colleague, Justice Rose, is unable to evaluate this dissent in an objective, forthright manner. Instead, he attacks the dissent as “hypocritical and misleading.” It is neither.
My colleague’s allusion to hypocrisy has reference to Justices Steffen and Springer having assertedly participated in determining their own disqualification in the Whitehead case, claiming that they therefore “did the very same thing [as Justice Rose is doing here] in the Whitehead case in which they were extremely interested.” He is wrong. In Whitehead, the actual substantive challenges to Justices Steffen and Springer were decided only by Justice Shearing, Sr. Justice Zenoff, and District Judge Guy in orders filed with the court on January 31, 1994 and February 18, 1994, respectively. The latter order denied the third challenge to the two justices. The only participation the challenged justices were involved in regarding the issue of their disqualification is found in Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 380, 422-30, 873 P.2d 946, 972-77 (1994), where the court patiently again explained why there was no basis for disqualification as ruled by Justice Shearing, Sr. Justice Zenoff and District Judge Guy. Indeed, the referenced three justices, in their order of February 18, 1994, referenced the cited case issued the same day, and held that Justices Steffen and Springer had no personal financial interest in the outcome of the case and that there was no due process basis for challenging any justices’ continued participation in the case.
Moreover, the nature of the challenge in Whitehead was entirely different than the instant case. The “financial interest” alluded to by Justice Rose and raised against Justices Steffen and Springer by the Attorney General was not only expressly eliminated by a waiver of liability by the two justices (as held in the February 18, 1994 order by the three other members of the court), but the Commission conceded that the two justices had no disqualifying financial interest in the outcome of the Whitehead litigation. It is also *585worthy of emphasis that unlike here, neither Justice Steffen nor Justice Springer was the “swing vote” on any aspect of the issue of disqualification; they simply did not participate in determining the issue concerning their qualification to sit in the Whitehead case. Finally, unlike the instant case, Justices Steffen and Springer were not “extremely interested” in the Whitehead case other than to see it through to an honorable conclusion as required by their oaths of judicial office. It is apparent here that irrespective of actual intent, Justice Rose is fulfilling the promise of the campaign letter sent out on his behalf to raise campaign funds. Justice Rose provided to the author of the letter the citation to the Hinegardner case, cited in the letter as an example of how he looks out for the interests of bars and saloons.
My colleague also advances the novel proposition that I should have “whimpered” at his participation in Hinegardner if I entertained thoughts of impropriety over his sitting on the court. To my knowledge, a judge is on his honor and oath to recuse himself if there is a disqualifying bias. The members of the court have been under no obligation, and indeed could not be without a legion of full-time investigators, to determine whether an unchallenged justice is sitting on a case improperly. The question now raised with respect to Hinegardner is brought into sharp focus by the present case, and the fact that Justice Rose gave the Hinegardner cite to one or more persons for use in his reelection campaign.
Finally, Justice Rose indicates that the dissent is misleading because (at least in part) I stated that the [Exhibit A] “letter was ‘on behalf of the campaign,’ and that is simply false.” I leave it to the reader to determine whether the letter is on behalf of Justice Rose’s reelection campaign. Unless my senses have been terribly dulled, it appears that the letter was sent for the express and singular purpose of soliciting funds for none other than Justice Rose in his reelection campaign, and that the letter indicates how the prospective contributors will be rewarded by helping to reelect “Bob” to the court. If Justice Rose can advise me on whose behalf the letter was sent other than his own, I will be happy to consider any modification necessitated by the facts.
This dissent, if embarrassing to my colleague, has such an effect only because of the facts surrounding the question of his qualification to sit. I did not create the facts, and the reasons expressed concerning the propriety of his qualification to sit are forthright and in no sense an exercise created to either “criticize or embarrass” my colleague. Indeed, I truly regret the necessity of having to write this dissent. Moreover, the fact that Justice Rose is the “swing vote” on the matter of his own disqualification represents a factor or condition with which he is comfortable. I am not.
Giving my colleague the benefit of all doubt as to whether he is able to hold the balance nice, true and clear in this case, I simply return to Canon 2 of the Nevada Code of Judicial Conduct and ask the readers whether, in their view, the facts described herein create an appearance free of impropriety.
I also note the possibility that the majority’s decision, as per Lavoie, could later be subject to vacation under a due process challenge stemming from Justice Rose’s clear interest in the outcome of this case. Whether finality will therefore be achieved by the majority’s ruling is more than slightly problematical.
*586EXHIBIT A
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Dear Colleague, October 26, 1994
We have joined together to write this letter to you because we feel that the information we have to give you is of the utmost importance to our businesses.
This letter is to recommend Chief Justice Bob Rose for election to a second term on the Nevada Supreme Court. We have known Bob for years and think he has earned the right to a second term.
First, he has proven to be an excellent Justice. He is a tireless public servant, and his decisions have been logical and sound. He is also fighting to reform the entire court system to make it more efficient, accessible, and user-friendly.
Second, Bob understands the gaming-liquor industry because he has held a limited gaming and liquor license for more than ten years. He well knows the benefits and problems of these privileged licenses — the burdens of heavy regulation and that the difference between a profit and a loss is often a matter of a few percentage points. A summary of a few of the major cases reflecting his sensitivity to our industry is enclosed — please read them.
What we all need to realize is how big of a part the Supreme Court/Justice Rose plays in setting of precedents that end up making the rules that we as business people have to live by. This includes handling of cases dealing with SIIS, State Unemployment Taxes, State and local gaming and liquor regulations, firing at will, liability cases that effect our insurance, etc. — All of which effect us
We ask for your support for Justice Bob Rose this year and hopefully a campaign contribution. If all of us gave $100.00 to the campaign, it would probably ensure his victory. Campaign contributions should be make out to Nevadans for Justice Rose and sent to 631 No. Stephanie St., #187, Henderson, Nevada 89014.
Bob’s election is a good bet — for you and the State of Nevada. This is an important issue to each of our livelihoods.
Sincerely yours,
Sal's Kurt’s Backstop BC
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Salvatore J. Cammarano Kurt Erick
Stage Door Casino Sidelines
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Randy Markin Steve McLaughin
*587In Hinegardner v. Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992), the Nevada Supreme Court upheld the Nevada dram shop protection for bars and casinos by a 3-2 vote, even though the person, who later was involved in a serious automobile accident, was a minor. Bob was in the majority. Imagine the increased cost of insurance if all bars and restaurants were responsible for whatever injury a patron caused after leaving the establishment.
Palmer v. Del Webb’s High Sierra, 108 Nev. 673, 838 P.2d 435 (1992), the Nevada Supreme Court held that a worker’s injury from cigarette smoke allegedly acquired in a casino-bar was not an occupational disease for the purposes of SIIS benefits. If the Nevada Supreme Court had held otherwise, the additional cost and the raise in everyone’s premiums might have destroyed an already shaky system.
Chief Justice Rose believes in strong but fair DUI enforcement. He also believes that a person accused of a DUI should be in actual control of the vehicle and not just sleeping in the car. “For the reasons stated, I believe that Leanette Isom, sound asleep on the front seat of a vehicle parked in a vacant lot of a closed business, was not in actual physical control of the vehicle when arrested. Accordingly, I dissent from the majority’s opinion.” Isom v. State, 105 Nev. 391, 396, 776 P.2d 543, 547 (1989).
Sound Judgement — tough leadership — Robert E. Rose, Nevada Supreme Court
Join us in helping this fine man get re-elected.