Before the Court en banc. Opinion by Justice Gibbons.
In this original petition for a writ of mandamus or prohibition, the Court considered whether the district court’s failure to order recusal of a family court judge in connection with certain campaign contributions by parties and attorneys involved in the action violated the petitioners due process rights or Nevada law. Petitioner Luciaetta Ivey and her then spouse, Phil Ivey, filed a joint petition for divorce in the Eighth Judicial District; the case was assigned to Judge William Gonzalez. The parties entered into a marital settlement agreement that set forth, among other things, the monthly alimony payment to Luciaetta. After entry of the divorce decree, Judge Gonzalez successfully ran for re-election. During the campaign for reelection, the Phil, his attorney, his attorney’s wife, and his attorney’s law partner and Luciaetta’s law firm made various cash donations exceeding $10,000 and in-kind contributions to Judge Gonzalez’s campaign. The total cash contributions represented approximately 14% of all contributions to the campaign; the in-kind contributions totaled 25% of all in-kind contributions; Phil’s cash contribution alone equaled 7% of all cash contributions. After the election, a dispute arose over the monthly alimony payments and Judge Gonzalez was assigned to hear Luciaetta’s motion to reopen discovery. Luciaetta sought Judge Gonzalez’s recusal from the new proceeding arguing that the campaign contributions created an appearance of impropriety that resulted in a denial of Due Process and violated Nevada law. Relying on Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009), the Court held that denial of the motion to disqualify did not violate Luciaetta’s due process rights because the size of the contributions at issue, compared to the total sum spent during the campaign, and the effect that contribution may have had on the election’s outcome, did not rise to a level “where the probability of actual bias is too high to ensure the protection of” Luciaetta’s rights. The Court concluded that the amount of donations by the spouse and attorney’s did not rise to the “exceptional” level that existed in Caperton, nor was the timing suspicious because the contributions were made after the entry of the divorce decree. Luciaetta also argued that Judge Gonzalez’s disqualification was required under NRS 1.230 and the Rule 2.11 of the Nevada Code of Judicial Conduct (NCJC) (now the Revised Nevada Code of Judicial Conduct). Because the contributions made were within the statutory limits for campaign contributions and the timing of the contributions was not suspicious, the Court rejected Luciaetta’s argument. In a concurring opinion, Justice Hardesty (joined by Chief Justice Pickering, and Justices Parraguirre and Douglas) wrote to address criticism of the NCJC. Justice Hardesty noted that the Nevada Supreme Court initiated a thorough review of the NCJC in 2009 which included a study on campaign finance rules in light of the Caperton decision. Despite public comments, the Court voted to adopt the RNCJC without inclusion of the committee’s recommendations on this issue. In a second concurring opinion, Justice Saitta wrote separately to voice concerns with the current judicial campaign contribution rules. Writ petition denied. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).
