dissenting:
I join in Justice Steffen’s dissent, but file this separate dissent because I think more has to be said about Justice Rose’s authoring1 an opinion in which he decides a controversy relating to his own eligibility to sit in this case. I address the propriety of a supreme court justice’s deciding matters relating to his or her own qualifications, with particular reference to the manner in which this point is argued by Justice Rose in his majority opinion and in his concurrence to the majority opinion.
Justice Rose is correct in identifying the “threshold issue” as being whether Ms. Snyder had “actual or constructive notice of Justice Rose’s ownership of a restaurant/bar in Las Vegas prior to our decision in this case and is thereby precluded from now asserting this motion pursuant to NRAP 35.” The thrust of Justice Rose’s argument on this threshold issue is that it is too late for Ms. Snyder to raise the question of the Justice’s bias because her former attorney knew about Justice'Rose’s tavern when this case was first decided.
Under PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (1995), the majority agrees, if Snyder did not know that Rose was a tavern owner when the present case was decided against her, she is entitled to have her disqualification motion decided by the court, rather than having it rejected for technical reasons. Justice Rose argues against Ms. Snyder’s position in two ways. First, he says that everyone knew that he owned the Sidelines Bar in Las Vegas and that the “public at large” had “constructive notice” about “Justice Rose’s restaurant/bar ownership.” Not content to rely entirely on the supposed com*589mon knowledge about his business interests (the argument being that Ms. Snyder must have known Justice Rose was a bar owner because she is part of the “public at large”), Justice Rose relies secondarily on his contention that Ms. Snyder’s former attorney, Mr. McKenna, supposedly admitted to Justice Rose’s campaign manager, Clark Santini, that he knew “that Justice Rose owned a bar in Las Vegas.” Therefore, claims Justice Rose, Ms. Snyder “waived any disqualification claim by not asserting it sooner” and “her motion to disqualify [is] insufficient as a matter of law.”
Ms. Snyder, of course, denies knowing about Justice Rose’s bar interests until after the time that he cast his deciding vote in her case. Justice Rose’s decision to deny Ms. Snyder’s motion to disqualify him appears to rest primarily2 on whether Justice Rose’s campaign manager is telling the truth when he claims that Mr. McKenna told him that he knew Justice Rose owned a bar at the time he was deciding this bar-liability case. I suggest that some jurist other than Justice Rose ought to be deciding these fact-intensive issues.
Even if we were to accept Justice Rose’s fact-finding that Ms. Snyder’s former attorney knew that Justice Rose was a bar owner at the time Justice Rose decided this case against her, another critical legal issue remains, namely, whether Ms. Snyder’s former attorney’s knowledge, uncommunicated to Ms. Snyder, should be an absolute bar to Ms. Snyder’s challenging Justice Rose’s bias at this juncture. My own opinion is that it should not be. Justice Steffen’s opinion is that it should not be. The third, deciding judge of this issue should be some impartial jurist, and not Justice Rose.
Reverting to argument ad hominem, Justice Rose characterizes my objection to his participation in the decision to deny Ms. Snyder’s challenge as being “hypocritical.” Justice Rose offers two bases for branding me as a hypocrite, namely that I should have raised the issue at the time that he was voting in favor of bar interests and, further, that in another case I did the “very same thing” that he is now doing.
Putting aside the unseemliness of a supreme court justice, in published judicial opinion, calling his colleague a hypocrite, I answer his charges as follows: (1) I was under no duty to challenge Justice Rose’s decision to cast the deciding vote in either this case or the Hindgardner case; (2) I have not sat in *590judgment of my own qualifications, as claimed by Justice Rose; and, even if Justice Rose’s charge were true, this would not justify his being the deciding vote in denying Ms. Snyder’s challenge of his impartiality in cases involving bars and taverns.
Justice Rose remarks that when he cast the deciding vote in this case, I did not, at our decision conference, make “a whimper of any concern.” The reason that I did not whimper is that I have been unable to predict whether Justice Rose is going to disqualify himself in bar and casino cases. To his credit, I must say that in most bar and casino cases Justice Rose does disqualify himself. Once in while, however, unpredictably, he will sit on one of these cases. (For example: Trump v. District Court, 109 Nev. 687, 857 P.2d 740 (1993)). I know of nothing in the Code of Judicial Conduct that would require me to monitor Justice Rose’s decisions to sit or not to sit in any given case.
With regard to Justice Rose’s charge that I did the same, unacceptable thing that he is doing, I would first say that if I had sat in judgment of a challenge of my own qualifications, it would have been wrong for me to do so. The fact of the matter is that I did not3; but, if I had done so, this certainly would not provide justification for Justice Rose’s doing so.
Because I disagree with his insistence upon sitting in judgment on this motion to disqualify him, Justice Rose calls me a hypocrite and imputes bad motives to me for filing this dissent. I am saddened that Justice Rose would make an embarrassing spectacle out of what seems to me to be a matter that is almost beyond dispute, namely that a supreme court justice should not be passing judgment on factual and legal issues that bear on his own eligibility to sit in a case.
The majority opinion in its present form was presented to me by Justice Rose, accompanied by the explanatory legend “From the Chambers of Rose, J.,” as were several previous drafts of the majority opinion. I complain in this dissent that Justice Rose should not be participating in an opinion (much less authoring an opinion) in which he makes such factual findings as “Snyder and her attorney had actual knowledge of Judge Rose’s restaurant/ bar ownership well prior to our decision in November, 1994” and such legal conclusions as that Justice Rose’s bar ownership “did not create a direct, ongoing pecuniary interest such that would disqualify him from participation in this case.” These are hotly-disputed fact issues and legal issues that should be presented to an impartial tribunal rather than being decided by Justice Rose.
I would note that Justice Rose’s majority opinion now appears on its face to have been authored by Justice Young; but this, of course, is impossible because the majority opinion is merely an almost-identical variant of an opinion first circulated by Justice Rose on December 13, 1995, accompanied by a memorandum in which Justice Rose states: “I circulate this draft denying the motion filed by the appellant.” I object to Justice Rose’s writing an opinion deciding conflicting factual and legal issues relating to his own qualifications, even as ghost-writer for Justice Young.
I reject out of hand and without discussion Justice Rose’s contention that Ms. Snyder must have known about his bar ownership at the time this case was decided against her because the “public at large” knew that he was a bar-owner.
Justice Rose claims that in the Whitehead case I did the same thing that he is now trying to do — to pass judgment on my own qualifications. This is not true. When a challenge to my qualifications was filed in the Whitehead case, I immediately withdrew, and the motion was submitted to and decided by the remaining members of the court (Justice Shearing, Senior Justice Zenoff and District Judge Guy). I will not take the time to recount the tortured history in Whitehead of the challenges that had “been improperly tendered ... for a serial, fourth time.” Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 380, 422, 873 P.2d 946, 972 (1994). The majority recognizes that my participation in the various Whitehead opinions did not touch on my own qualifications to sit but, at most, after the motions had been decided by the other three members of the court, to rule that, based on the court’s prior ruling on the “legal insufficiency” of the motions to disqualify, the “Commission was not entitled to a hearing” on the already-decided motions. (Majority Opinion at 8). If this is the “same thing” as Justice Rose’s ruling that his campaign manager’s statements are true and ruling that he had no pecuniary interest in this case, this still would not justify Justice Rose’s ruling to reject Ms. Snyder’s challenge to his qualifications to decide her case.