                                                      129 Nev., Advance Opinion 1 te
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                LUCIAETTA MARIE IVEY,                                  No. 59297
                Petitioner,
                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF                               FILED
                CLARK; AND THE HONORABLE
                JENNIFER P. TOGLIATTI, DISTRICT
                JUDGE,
                Respondents,
                   and
                PHILLIP DENNIS IVEY, JR.,
                Real Party in Interest.



                            Original petition for a writ of mandamus or prohibition
                challenging a district court order denying a request to recuse a district
                court judge in a family law action.
                            Petition denied.

                Pecos Law Group and Bruce I. Shapiro and Shann D. Winesett,
                Henderson,
                for Petitioner.

                Chesnoff & Schonfeld and David Z. Chesnoff and Richard A. Schonfeld,
                Las Vegas,
                for Real Party in Interest.



                BEFORE THE COURT EN BANC.




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                                                OPINION

                By the Court, GIBBONS, J.:
                            The case underlying this original writ petition involves post-
                divorce-decree proceedings between real party in interest Phillip Dennis
                Ivey, Jr., and petitioner Luciaetta Marie Ivey. More than a year after
                Luciaetta's and Phillip's divorce, Luciaetta filed a "Motion For An Order
                To Show Cause Why Defendant Should Not Be Held In Contempt Of
                Court, To Reopen Discovery, And For Attorney's Fees; And For Related
                Relief' (motion to reopen discovery). Luciaetta then filed a motion to
                disqualify Judge William Gonzalez from hearing the motion to reopen
                discovery. In Luciaetta's motion to disqualify, Luciaetta asserted that
                Judge Gonzalez's recusal was required under the Due Process Clause of
                the United States Constitution and under Nevada law. Luciaetta claimed
                that Judge Gonzalez hearing the motion would create an appearance of
                impropriety because Phillip and others connected to the Ivey divorce
                contributed to Judge Gonzalez's reelection campaign. After a hearing,
                respondent Judge Jennifer P. Togliatti denied Luciaetta's motion to
                disqualify Judge Gonzalez, and Judge Gonzalez went on to preside over
                Luciaetta's motion to reopen discovery. As a result, Luciaetta petitioned
                this court for a writ of mandamus or prohibition vacating Judge Togliatti's
                order and disqualifying Judge Gonzalez from hearing the motion to reopen
                discovery. Because we conclude that the failure to disqualify Judge
                Gonzalez did not violate Luciaetta's due process rights or Nevada law, we
                deny Luciaetta's petition.


                                  FACTS AND PROCEDURAL HISTORY
                            After seven years of marriage, Phillip and Luciaetta filed a
                joint petition for divorce. During the divorce proceedings, attorney David
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                Chesnoff represented Phillip. Phillip also hired attorney John Spilotro to
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                represent Luciaetta and paid Spilotro a flat fee of $10,000. On December
                29, 2009, Judge Gonzalez entered a divorce decree ending the marriage.
                           According to the divorce decree, Luciaetta and Phillip entered
                into a Marital Settlement Agreement that outlined the distribution of the
                community property and Phillip's and Luciaetta's obligations following the
                divorce. Under the Marital Settlement Agreement, Phillip was to pay
                Luciaetta $180,000 per month as alimony from the income that he
                received from his interest in Tiltware, LLC, an Internet poker company.
                The Marital Settlement Agreement stated that Phillip's obligation to pay
                alimony would end if he ever stopped receiving income from Tiltware. The
                Marital Settlement Agreement also contained a provision that
                acknowledged that Philip and Luciaetta received the advice of
                independent counsel in connection with the terms of the agreement.
                            After the entry of Phillip's and Luciaetta's divorce decree,
                Judge Gonzalez successfully ran for reelection as a judge for the family
                division of the district court in Clark County. During Judge Gonzalez's
                campaign for reelection, he received a total of $71,240 in cash donations
                and a total of $14,216.65 for in-kind contributions. Phillip and others
                connected to the Iveys' divorce contributed to these totals for Judge
                Gonzalez's campaign. In February 2010, Chesnoff donated $1,000 in cash
                to Judge Gonzalez and a few months later made an in-kind contribution of
                $3,543.54 by holding a fundraiser. In April 2010, Chesnoffs wife
                contributed $2,500 in cash, while Chesnoffs law partner donated $1,000 in
                cash. Spilotro's law firm contributed $500 in cash to Judge Gonzalez
                during the month of April as well. Finally, Phillip donated $5,000 in cash
                to Judge Gonzalez's campaign on April 17, 2010.
                            The cash contributions from all of these individuals amounted
                to $10,000 and were approximately 14 percent of the total cash
SUPREME COURT   contributions to Judge Gonzalez's campaign. Chesnoffs in-kind donation
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                equaled 25 percent of the total in-kind contributions to Judge Gonzalez's
                campaign. Phillip's $5,000 donation was the largest amount contributed
                by any individual person, but two political action committees donated
                $5,000 as well. Phillip's contribution amounted to 7 percent of the total
                cash contributions to Judge Gonzalez's campaign.
                            In May 2011, a dispute arose over Phillip's monthly alimony
                payments. Following the dispute, Luciaetta filed a motion to reopen
                discovery. Judge Gonzalez was assigned to hear Luciaetta's motion.
                            Prior to the hearing, Luciaetta filed an affidavit requesting
                that Judge Gonzalez recuse himself from hearing the motion to reopen
                discovery because the campaign contributions created an appearance of
                impropriety. In response, Judge Gonzalez filed an affidavit acknowledging
                the campaign contributions, but noting that under Nevada law, the receipt
                of campaign donations alone does not serve as grounds for disqualification.
                Judge Gonzalez also stated in the affidavit that he met with Phillip only
                one time at an event several months after he entered the Iveys' divorce
                decree and that he never discussed the divorce with Phillip or his attorney
                outside of court.
                             Luciaetta then filed a motion to disqualify Judge Gonzalez
                from hearing her motion to reopen discovery based on the Due Process
                Clause of the United States Constitution and Nevada law. Judge Togliatti
                held a hearing on Luciaetta's motion to disqualify and subsequently
                denied the motion. Judge Togliatti determined that based on both federal
                and Nevada law, the campaign contributions did not rise to such a level as
                to create an appearance of impropriety requiring Judge Gonzalez's
                recusal.
                             Luciaetta now petitions this court for writ relief, requesting
                that this court vacate the order denying the motion to disqualify Judge
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                because Judge Gonzalez hearing the motion to reopen discovery violated
                due process and Nevada law. 1


                                                DISCUSSION
                Standard of review
                            Luciaetta has petitioned this court for a writ of mandamus or
                prohibition. "[A] petition for a writ of mandamus is the appropriate
                vehicle to seek disqualification of a judge." Towbin Dodge, LLC v. Dist.
                Ct., 121 Nev. 251, 254-55, 112 P.3d 1063, 1066 (2005). Mandamus is
                available "to compel the performance of an act which the law especially
                enjoins as a duty resulting from an office, trust or station," NRS 34.160,
                or to control an arbitrary or capricious exercise of discretion.
                International Game Tech. v. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556,
                558 (2008). Generally, this court will not issue a writ of mandamus when
                a petitioner has "a plain, speedy and adequate remedy in the ordinary
                course of law." NRS 34.170. No such legal remedy exists here.
                Accordingly, we exercise our discretion to determine whether Judge

                      1 Phillip asserts that Luciaetta's writ petition is moot because
                Luciaetta did not seek a stay of the district court proceedings and the
                matter has now reached its conclusion. We disagree. This court
                determines only actual, live controversies and will not render opinions on
                issues that cannot affect the outcome of a case.          University Sys. v.
                Nevadans for Sound Gov't, 120 Nev. 712, 720, 100 P.3d 179, 186 (2004).
                As a result, a case may become moot by the occurrence of subsequent
                events that eliminate any actual controversy. Id. After filing the writ
                petition, Luciaetta did not seek a stay of the post-divorce proceedings with
                the district court or this court. Thus, Judge Gonzalez continued to preside
                over the underlying proceedings and ultimately denied Luciaetta's motion
                to reopen discovery. While Judge Gonzalez already denied Luciaetta's
                motion, we conclude that an actual controversy still exists because, if
                rendered in violation of Luciaetta's due process rights, that decision could
                be void. As a result, Luciaetta's writ petition is not moot.

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Gonzalez should have been disqualified from hearing and ruling on
Luciaetta's motion.

Judge Gonzalez hearing Luciaetta's motion to reopen discovery did not
violate Luciaetta's due process rights
            Luciaetta argues that the United States Supreme Court's
decision in Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009),
requires Judge Gonzalez's recusal under the Due Process Clause. We
disagree.
            The Due Process Clause guarantees the right to a fair trial
before a fair tribunal. Id. at 876 (citing In re Murchison, 349 U.S. 133, 136
(1955)). Determining whether a judge's recusal is compelled by the Due
Process Clause does not require proof of actual bias; instead, a court must
objectively determine whether the probability of actual bias is too high to
ensure the protection of a party's due process rights. Id. at 883-84 (citing
Withrow v. Larkin, 421 U.S. 35, 47 (1975)). When an individual
with a personal interest in a specific case "ha[s] a significant and
disproportionate influence" in putting a judge on the case by contributing
funds to the judge's campaign while the case is pending, the United States
Supreme Court has concluded that the risk of actual bias is great. Id. at
884. In such a situation, a court must examine the size of the contribution
in comparison to the total campaign contribution amount, the total sum
spent during the election, and the effect that the contribution may have
had on the election's outcome. Id. A court must also review the timing of
the campaign contributions in relation to the judge's election and the
status of the contributor's case. Id. at 886. Thus, determining whether
the risk of actual bias violates a party's due process rights must be done
on a case-by-case basis. See id. at 884-86.
            The Caperton decision addressed whether the Due Process
Clause required a West Virginia Supreme Court justice's recusal when

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                substantial third-party expenditures had been made supporting the
                justice's election by a party to a case pending before the court. Id. at 872.
                In concluding that the justice's failure to disqualify himself violated due
                process, the United States Supreme Court noted that while not every
                contribution by a litigant or attorney creates such a high risk of actual
                bias requiring recusal, the Caperton circumstances were an "exceptional
                case." Id. at 884. The party in Caperton contributed $3,000,000 to a
                committee advocating the justice's election in place of an incumbent
                justice, 300 percent more than the justice's own campaign committee spent
                on the election and $1,000,000 more than the total amount spent by both
                candidates' campaign committees combined. Id. The Court also noted
                that the timing of the contributions was critical, as they were made prior
                to the party's appeal of the district court judgment, when it was
                reasonably foreseeable that the case would be before the newly elected
                justice. Id. at 886. Thus, the Court determined that the timing of the
                contributions, along with the disproportionate influence that the donations
                had in placing the justice on the case, created such a high risk of actual
                bias that the justice's failure to disqualify himself violated due process. Id.
                at 886-87.
                             We conclude that the donations by Phillip and others
                connected to the Ivey divorce do not rise to the "exceptional" level of the
                campaign contribution at issue in Caperton. See id. at 884. First, the
                donations at issue are much smaller than the $3,000,000 contribution in
                Caperton. Phillip's $5,000 donation amounted to 7 percent of Judge
                Gonzalez's total campaign contributions. Phillip's donation combined with
                the others' contributions amounted to $10,000 and constituted 14 percent
                of the total cash contributions to Judge Gonzalez's campaign. The in-kind
                donation of Phillip's attorney equaled 25 percent of the total in-kind
SUPREME COURT   contributions to Judge Gonzalez's campaign. We recognize that these
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                    donations are greater than the contributions of other individuals to Judge
                    Gonzalez's campaign. However, these amounts do not reach the
                    extraordinary level of the sum at issue in Caperton. See id.
                                Second, the timing of these contributions is less suspicious
                    than the timing of the Caperton donations. Phillip and the others
                    contributed to Judge Gonzalez's campaign only after the conclusion of the
                    divorce. Luciaetta points out that the contributions occurred prior to the
                    expiration of the six-month time limit in NRCP 60(b). Despite the
                    contributions occurring within this six-month period, and although post-
                    decree motions are not uncommon in divorce proceedings, the particular
                    facts of this appeal do not demonstrate such a high risk of bias that due
                    process required Judge Gonzalez's recusal. Phillip and Luciaetta filed a
                    joint petition for divorce, which indicated that Phillip and Luciaetta had
                    executed a Marital Settlement Agreement that divided their community
                    property and set forth their obligations post-divorce. Luciaetta was
                    represented by counsel during the negotiation of the Marital Settlement
                    Agreement and throughout the divorce proceedings. Although Luciaetta
                    notes that Phillip was paying for her representation during the divorce,
                    Luciaetta signed the Marital Settlement Agreement, which specifically
                    states that both Phillip and Luciaetta recognize that they had the
                    opportunity to receive the independent advice of counsel. Furthermore,
                    Luciaetta did not bring her motion to reopen discovery until June 6, 2011,
                    more than a year after the divorce decree was entered and the
                    contributions were made. As a result, Judge Togliatti did not abuse her
                    discretion by finding that Judge Gonzalez hearing Luciaetta's motion to
                    reopen discovery would not violate Luciaetta's due process rights.




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             c'M#
Judge Gonzalez hearing Luciaetta's motion to reopen discovery did not
violate Nevada law
            Luciaetta argues that if Judge Gonzalez's disqualification is
not required under the Due Process Clause, the district court should have
disqualified Judge Gonzalez under more stringent Nevada law—NRS
1.230 and the Nevada Code of Judicial Conduct (NCJC). We disagree.
            In Nevada, "a judge has a general duty to sit, unless a judicial
canon, statute, or rule requires the judge's disqualification."   Millen v.
Dist. Ct., 122 Nev. 1245, 1253, 148 P.3d 694, 700 (2006). NRS 1.230
prohibits a judge from presiding over any matter when actual or implied
bias exists on the part of the judge. The relevant provisions of NCJC Rule
2.11(A) provide:
            A judge shall disqualify himself or herself in any
            proceeding in which the judge's impartiality might
            reasonably be questioned, including but not
            limited to the following circumstances:
                   (1) The judge has a personal bias or
            prejudice concerning a party or a party's lawyer,
            or personal knowledge of facts that are in dispute
            in the proceeding.
                   (2) The judge knows that the judge. . . is:


                        (c) a person who has more than a de
            minimis interest that could be substantially
            affected by the proceeding. . . .
                  (3) The judge knows that he or she . . . has
            an economic interest in the subject matter in
            controversy or in a party to the proceeding.
NCJC defines "[die minimis" as "an insignificant interest that could not
raise a reasonable question regarding the judge's impartiality." NCJC
Terminology (2011). This court has recognized "that a contribution to a
presiding judge by a party or an attorney does not ordinarily constitute
grounds for disqualification."   Las Vegas Downtown Redev. v. Dist. Ct.,

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                116 Nev. 640, 644, 5 P.3d 1059, 1062 (2000) (ordering judge who recused
                himself to hear case). 2
                             We conclude that the campaign contributions at issue here
                were not significant enough to "raise a reasonable question" as to Judge
                Gonzalez's impartiality. The individual contributions of Phillip and the
                others ranged from $500 to $5,000. These amounts are within the
                statutory limits for campaign contributions. See NRS 294A.100 (stating
                that a person shall not contribute more than $5,000 to a candidate within
                a certain time). Furthermore, the contributions occurred after Phillip and
                Luciaetta filed the joint petition for divorce and Judge Gonzalez entered
                the divorce decree. Thus, the campaign contributions are not exceptional.
                See Las Vegas Downtown Redev., 116 Nev. at 645, 5 P.3d at 1062 (stating
                that contributions ranging from $150 to $2,000 to a district court judge's
                campaign were not extraordinary and did not require the judge's
                disqualification). Without more, the campaign contributions are
                insufficient to demonstrate that actual or implied bias existed on the part
                of Judge Gonzalez. Campaign contributions made within statutory limits
                cannot constitute grounds for disqualification of a judge under Nevada
                law. See In re Petition to Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d
                1271, 1275 (1988) (explaining that "intolerable results" would occur if
                litigants could disqualify a judge because an attorney for the opposing



                      2After filing her writ petition, Luciaetta later filed a motion to
                supplement her petition with a memorandum from the American Bar
                Association (ABA) on potential changes to the provisions of the ABA Model
                Code concerning judicial disqualification. We granted Luciaetta's motion
                and allowed her to file the ABA memorandum as a supplemental
                appendix. Having reviewed the supplemental appendix, we conclude that
                it does not affect our analysis of Nevada law and judicial disqualification.

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party donated to the judge's campaign). 3 Therefore, Judge Togliatti did
not abuse her discretion by finding that Nevada law does not require
Judge Gonzalez's disqualification.


                               CONCLUSION
              We conclude that Judge Gonzalez was not disqualified from
presiding over Luciaetta's motion based on the contributions made to
Judge Gonzalez's campaign because doing so violated neither Luciaetta's
due process rights nor Nevada law. Accordingly, we deny Luciaetta's writ
petition.



                                                                    J.
                                     Gibbons



I respectfully concur:




      3 The  Nevada Constitution specifically requires the election of
district court judges. Nev. Const. art. 6, § 5. Furthermore, the citizens of
Nevada defeated a recent ballot initiative to change the selection process
for judges from election to appointment. See Nevada Ballot Questions
2010, Nevada Secretary of State, Question No. 1; Nevada Secretary of
State, 2010 Official Statewide General Election Results, available at
http ://www . nvsos . gov/soselectionp age s/re sult s/201 OStatewide General/
ElectionSummary.aspx. Campaign contributions are necessarily a part of
judicial elections.



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                HARDESTY, J., with whom PICKERING, C.J., and PARRAGUIRRE and
                DOUGLAS, JJ., agree, concurring:
                            I concur that the petition should be denied for the reasons
                expressed by the majority. I write separately, however, to address our
                concurring colleague's criticism of the Nevada Code of Judicial Conduct's
                (NCJC) current campaign contribution rules. Although the concurrence
                voices concerns about the rules, it offers no solutions and fails to engage
                the administrative docket process, as this court did in 2009, to solicit
                comments from the judiciary, the bar, and the public to consider potential
                amendments. See Nevada Rules on the Administrative Docket (NRAD)
                3.2, 7.
                            In 2009, this court initiated a thorough review of the NCJC,
                which included a study of the Code's campaign finance rules and due
                process considerations in light of the United States Supreme Court's
                decision in Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009). A
                committee appointed by this court, comprised of members of Nevada's
                judiciary, the bar, and professors from the William S. Boyd School of Law,
                filed a supplement to its final report on August 13, 2009, recommending
                two bright-line rules for judicial disqualification because of campaign
                contributions that substantially deviated from campaign contribution
                provisions contained in Nevada's campaign finance statutes. See In the
                Matter of the Amendment of the Nevada Code of Judicial Conduct, ADKT
                No. 427 (Supplement to Final Report, August 13, 2009). The first
                proposed rule change would have required disqualification by a judge who
                received financial support "within the previous 6 years from a party, or a
                party's affiliate[] . . . , or a party's lawyer or the law firm of a party's
                lawyer in an aggregate amount that exceeds $50,000." Id. The second

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                suggestion would have required disqualification if the judge "received
                aggregate campaign support exceeding 5 [percent] of the judge's total
                financial [support] within the previous 6 years from a party, or a party's
                affiliated entities. . . , or a party's lawyer or the law firm of a party's
                lawyer," and required disqualification if the support "create [d] a
                reasonable question as to the judge's impartiality." Id.
                            Following extensive public comment, all justices, including our
                concurring colleague, voted to adopt the Revised Nevada Code of Judicial
                Conduct without inclusion of either of the committee's recommended
                amendments to the judicial campaign finance rules. See In the Matter of
                the Amendment of the Nevada Code of Judicial Conduct, ADKT No. 427
                (Order, December 17, 2009). The Nevada Constitution gives our citizens
                the right to elect their judges and justices. Informed exercise of this right
                requires campaigns, which in turn require campaign finances. As this
                court learned in 2009 when it engaged in the administrative docket
                process, there are no easy answers when one weighs the duty of a judge to
                sit on a case against a party's due process right to an impartial
                adjudication in a state that has chosen to elect its judges. But the due
                process considerations are, at this juncture, limited by the exceptional
                circumstances discussed in Caperton. While individual cases may require
                disqualification because of unique campaign-based relationships, Caperton
                did not compel per se rules that are stricter than statutory campaign
                limits. As our concurring colleague concedes, this case is substantially
                different from Caperton as all of the campaign contributions to Judge
                Gonzalez at issue here were within statutory limits and made after this
                court entered its order amending the NCJC without the committee's
                recommended changes. Under these circumstances, it would be

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                unreasonable to conclude that Judge Togliatti abused her discretion by
                finding that Nevada law does not require Judge Gonzalez's
                disqualification.


                                                                              J.
                                                  Hardesty


                We concur:

                                          ,   C.J.
                Pickering
                 iomk,




                Parraguirre


                                              J
                Douglas




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                SAITTA, J., concurring:
                            Though I agree with the majority's ultimate conclusion, I write
                separately in order to voice my concerns with the current judicial
                campaign contribution rules. The error asserted in this case clearly does
                not rise to a level that violates either party's due process right to a fair
                trial before a fair tribunal. Further, as discussed by the majority, the
                contributions made to Judge Gonzalez's reelection campaign were all
                within the statutory limit. Therefore, under our current codical scheme,
                recusal or disqualification was not specifically required. However, I find it
                necessary to voice my concerns regarding the potential that the
                circumstances in this matter lend an air of impropriety to the proceedings.
                            It is arguably the most significant responsibility of a judge to
                "act at all times in a manner that promotes public confidence in the
                independence, integrity, and impartiality of the judiciary and [to] avoid
                impropriety and the appearance of impropriety." NCJC R. 1.2. The
                comments to this rule recognize that impropriety and appearances of
                impropriety, or "[c]onduct that compromises or appears to compromise the
                independence, integrity, and impartiality of a judge," diminish the public's
                confidence in the judiciary. Id. cmt. 3. The test for an appearance of
                impropriety is "whether the conduct would create in reasonable minds a
                perception that the judge violated [the Nevada] Code [of Judicial Conduct]
                or engaged in other conduct that reflects adversely on the judge's honesty,
                impartiality, temperament, or fitness to serve as a judge." Id. cmt. 5.
                Perhaps the most significant challenge to the judiciary's independence and
                impartiality is the increase in the volume and amount of campaign
                contributions.



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                            Generally, "a contribution to a presiding judge by a party or an
                attorney does not. . . constitute grounds for disqualification."   Las Vegas
                Downtown Redev. v. Dist. Ct., 116 Nev. 640, 644, 5 P.3d 1059, 1062 (2000).
                Thus, it appears that a judge's duty to sit is not overcome by campaign
                contributions within the statutory limit. See id. Presently, NRS
                294A.100(1) imposes a $10,000 aggregate limit on individuals making
                campaign contributions. Consequently, a judge must constantly balance
                the duty to sit, Millen v. Dist. Ct., 122 Nev. 1245, 1253, 148 P.3d 694, 699
                (2006), with the duty to "respect and honor the judicial office as a public
                trust and strive to maintain and enhance confidence in the legal system."
                NCJC preamble. I propose that the judge's duty to sit "should not be
                construed to suggest that judges should refuse to disqualify themselves in
                apt circumstances or that close cases should routinely be resolved against
                disqualification. On the contrary, close questions should ordinarily be
                resolved in favor of disqualification in order to preserve public confidence
                in the judicial system." Jeffrey W. Stempel, Chief William's Ghost: The
                Problematic Persistence of the Duty to Sit, 57 Buff. L. Rev. 813, 957-58
                (2009).
                            As my concurring colleagues point out, this court, following an
                administrative process including public hearings and participation by
                leading scholars, adopted the Revised Nevada Judicial Code. At that time,
                we chose not to adopt bright-line rules to guide judges in making the
                difficult decision to recuse themselves following substantial campaign
                contributions. Although I joined my colleagues in adopting the revisions
                to the code, the instant case reveals that it is perhaps time to revisit the
                current rules and their application to real cases in controversy. In our
                current political landscape, we must be cognizant of the potential

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appearance of impropriety arising from the type of campaign contributions
made in this case—numerous contributions within the statutory limit
made by a group of individuals who all have interests in a single case.
Ongoing judicial review, indeed our core function, commands that we
reconsider prior decisions in light of the case presented.
            Here, Phillip, his attorney, his attorney's spouse, and his
attorney's law partner contributed a total of $9,500. Luciaetta's attorney
also contributed $500. In total, these contributions made up only 14
percent of the total cash donations to Judge Gonzalez's reelection
campaign. Phillip's attorney also made a $3,543.54 in-kind contribution
by holding a fundraiser. This amount constituted 25 percent of the total
in-kind contributions made to Judge Gonzalez's reelection campaign.
Although the monetary value of these contributions are not so significant
that they rise to the level described in Caperton v. A. T. Massey Coal Co.,
556 U.S. 868 (2009), the fact that so many individuals associated with the
Iveys' divorce contributed to Judge Gonzalez's campaign lends a definite
air of impropriety, especially in light of the fact that it was possible that
future matters related to the divorce would come before him.
            The divorce decree specifically approves of the marital
settlement agreement, which contained specific provisions relating to
Luciaetta's alimony. Significantly, alimony would only continue so long as
Phillip was receiving income from Tiltware, LLC. Thus, it is clear that the
district court could at some point be called on to redefine the parties'
rights under the marital settlement agreement if Phillip stopped receiving
income from his company, which, in fact, is what happened. Therefore,
although the divorce decree was final, the district court maintained
jurisdiction to modify any previous adjudication of Phillip and Luciaetta's



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property rights. See NRS 125.150(7). Further, under Nevada's one
family, one judge rule, the same judge must preside over any matters
involving the same family. NRS 3.025(3).
            A significant portion of the majority opinion focuses on
Caperton, the United States Supreme Court's most recent and expansive
decision regarding due process and judicial campaign contributions.             I
agree with the majority in its determination that Luciaetta's right to a fair
trial before a fair tribunal was not violated by the various contributions
made to Judge Gonzalez's reelection campaign. And I reiterate that under
the current contribution rules, Judge Gonzalez did nothing wrong.
However, as noted in Caperton, ensuring that the parties' due process
rights are upheld is only the "constitutional floor," and individual states
are free to set more rigorous standards on judicial disqualification based
on campaign contributions. 556 U.S. at 889 (emphasis added) (quoting
Bracy v. Gramley, 520 U.S. 899, 904 (1997)). Thus, it is the individual
state's responsibility to take further action to ensure that the public's
confidence in the integrity of the judiciary is strong. "The citizen's respect
for judgments depends. . . upon the issuing court's absolute probity.
Judicial integrity is, in consequence, a state interest of the highest order."
Republican Party of Minn. v. White, 536 U.S. 765, 793 (2002) (Kennedy,
J., concurring).
             Following Caperton, a number of states have adopted new
disqualification rules. Several states have promulgated new rules or
comments that either cite to Caperton or to the specific factors relied upon
in the decision. See, e.g., Ark. Code of Jud. Conduct R. 2.11 cmt. 4A
(LexisNexis 2012); Ga. Code of Jud. Conduct Canon 3E(1)(d) (LexisNexis
2012); N.M. R. Ann. R. 21-211 cmt. 6 & 7 (2012); Tenn. Sup. Ct. R. 10, R.



                                      4
of Jud. Conduct 2.11 cmt. 7 (LexisNexis 2012); Wash. Code of Jud.
Conduct R. 2.11(D) (West 2011).
            Prior to Caperton, the American Bar Association amended the
Model Code of Judicial Conduct regarding campaign contributions as
grounds for judicial disqualification as follows:
            A judge shall disqualify himself or herself in any
            proceeding in which the judge's impartiality might
            reasonably be questioned, including but not
            limited to the following circumstances:


            (4) The judge knows or learns by means of a timely
                motion that a party, a party's lawyer, or the
                law firm of a party's lawyer has within the
                previous [insert number] year [s] made
                aggregate contributions to the judge's
                campaign in an amount that is greater than
                $ [insert amount] for an individual or $ [insert
                amount] for an entity [is reasonable and
                appropriate for an individual or an entity].
Model Code of Jud. Conduct R. 2.11(A) (2011). In adopting this provision,
Arizona set the time period at four years and the contribution level at the
maximum campaign contribution allowed in the state. Ariz. Sup. Ct. R.
81, Code of Jud. Conduct R. 2.11(A)(4) (West 2010). Utah set its threshold
at a much lower level: three years and $50. Utah Code of Jud. Conduct R.
2.11(A)(4) (LexisNexis 2012).
            Other states like Alabama, California, and New York have
adopted explicit statutes or rules that require a judge's recusal if the party
or attorney appearing before the judge has contributed a certain dollar
amount and did so within a specific period of time before or after the
judge's election. Ala. Code § 12-24-2(c) (LexisNexis 2005); Cal. Civ. Proc.
Code § 170.1(a)(9)(A) (West Supp. 2012); N.Y. Ct. R. § 151.1(B) (McKinney



                                       5
                2012). The New York rule also imposes a collective contribution cap,
                which limits the amount of contributions that a law firm, individual
                lawyer, and individual clients can contribute as a group. N.Y. Ct. R. §
                151.1 (B)(2) (McKinney 2012).
                            As stated above, it is not my wish to insinuate that Judge
                Gonzalez or Judge Togliatti have acted improperly in their review of
                Luciaetta's motion to disqualify Judge Gonzalez. As our Code of Judicial
                Conduct stands today, there is no bright-line test to apply to judicial
                contributions. Rule 2.11 of the Nevada Code of Judicial Conduct lacks any
                iteration of the rules described above. This lack of definition fails to
                provide a concrete rubric against which to analyze such contributions.
                            Here, Phillip contributed the single largest contribution by an
                individual and, in addition to his individual contribution, his attorney, his
                attorney's wife, and his attorney's law partner all contributed somewhat
                substantial amounts of money to Judge Gonzalez's campaign. Further,
                although these contributions came after the divorce decree, it was entirely
                foreseeable that Phillip and Luciaetta would have to appear before Judge
                Gonzalez in future matters relating to alimony payments. These
                circumstances create an appearance of impropriety that the judiciary
                should strive to avoid. By adopting some variation of the judicial
                contribution rules promulgated in other jurisdictions, this court could lend
                clarity not only to judges and justices, who rely on contributions to fund
                their campaigns, but also to the citizens who rely on the integrity and
                impartiality of the judiciary.




                                                    Saitta
SUPREME COURT
       OF
    NEVADA

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