Opinion
No. ADKT 403.
December 22, 2006.
BEFORE NANCY A. BECKER, MARK GIBBONS, JAMES W. HARDESTY, A. WILLIAM MAUPIN, MICHAEL L. DOUGLAS, RON D. PARRAGUIRRE.
ORDER AMENDING THE COMMENTARY TO CANON 3E(1) OF THE NEVADA CODE OF JUDICIAL CONDUCT
WHEREAS, on November 16, 2006, the Honorable Robert E. Rose, Chief Justice of the Nevada Supreme Court, filed a petition on this court's administrative docket to consider proposed amendments to the Nevada Supreme Court Rules and the Nevada Code of Judicial Conduct; and
WHEREAS, a public hearing was held on December 5, 2006, to consider the merits of the proposed amendments; and
WHEREAS, this court has reviewed Chief Justice Rose's proposed amendment to the Commentary to Canon 3E(1) regarding a judge's obligation to disqualify himself or herself from a proceeding in which the judge's impartiality might reasonably be questioned and has determined that amendment of the Commentary is warranted in order to provide guidance to judges when deciding whether a disclosure is required when former law clerks appear before the judge; accordingly,
IT IS HEREBY ORDERED that the Commentary to Canon 3E(1) of the Nevada Code of Judicial Conduct shall be amended and shall read as set forth in Exhibit A.
IT IS FURTHER ORDERED that this amendment to the Nevada Code of Judicial Conduct shall be effective February 1, 2007. The clerk of this court shall cause a notice of entry of this order to be published in the official publication of the State Bar of Nevada. Publication of this order shall be accomplished by the clerk disseminating copies of this order to all subscribers of the advance sheets of the Nevada Reports and all persons and agencies listed in NRS 2.345, and to the executive director of the State Bar of Nevada. The certificate of the clerk of this court as to the accomplishment of the above-described publication of notice of entry and dissemination of this order shall be conclusive evidence of the adoption and publication of the foregoing rule amendment.
EXHIBIT A AMENDMENTS TO THE COMMENTARY TO CANON 3E(1) OF THE NEVADA CODE OF JUDICIAL CONDUCT CANON 3 A judge shall perform the duties of judicial office impartially and diligently. * * *E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
Commentary Canon 3E(1)
Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared unless the disqualification was waived by the parties after disclosure by the judge.
A judge has a duty to sit. Ham v. District Court, 93 Nev. 409, 415, 566 P.2d 420, 424 (1977). Whether a judge's impartiality might reasonably be questioned, and the opinion of the judge as to his or her ability to be impartial, is determined pursuant to Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 644, 940 P.2d 134 (1997).
The mere receipt of a campaign contribution from a witness, litigant or lawyer involved with a proceeding is not grounds for disqualification.
A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.
A party or the party's lawyer might reasonably consider another attorney's recent service to the judge as a former law clerk to be a relationship relevant to the question of disqualification. When a former law clerk personally appears before the judge within 3 years of employment with the judge or the court, the judge shall disclose the relationship on the record. Any opposing party may then ask the judge to disqualify himself or herself based on that relationship. Due to the personal nature of the relationship, if the former law clerk is a member of a law firm or other organization, no disclosure is necessary when another member of that firm or organization appears before the judge.
By decisional law, the rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.