No. 59297 

FILED 

129 Nev., Advance Opinion 1 te 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

LUCIAETTA MARIE IVEY, 

Petitioner, 

vs. 

THE EIGHTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

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 postdivorce-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 

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 

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. 

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Luciaetta now petitions this court for writ relief, requesting 

that this court vacate the order denying the motion to disqualify Judge 

Gonzalez and order that the case be assigned to a different department 

4 
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 

1Phillip 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. 

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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 

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 postdecree 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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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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Gibbons 

J. 

party donated to the judge's campaign). 3Therefore, 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. 

I respectfully concur: 

3The 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. 

11 
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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2 
, C.J. 

Pickering 

iomk, 

Parraguirre 

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3 

 J 

Douglas 

unreasonable to conclude that Judge Togliatti abused her discretion by 

finding that Nevada law does not require Judge Gonzalez's 

disqualification. 

Hardesty 

We concur: 

J. 
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 

3 
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 
Saitta 

6 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A c 

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. 

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