Morrow v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark
Morrow v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark
Opinion of the Court
OPINION
At issue in this petition for extraordinary writ relief is the procedure for determining the timeliness of a peremptory challenge of a district judge under Supreme Court Rule (SCR) 48.1. Initially, we must determine whether the time in which to file a peremptory challenge begins to run before a party’s first appearance, and whether the time period is capable of expiring before the first appearance. We then must determine the method for computing the time period for bringing a peremptory challenge. By its plain language, SCR 48.1(3)(a) requires that a peremptory challenge must be filed within ten days of notice of a hearing before a judicial officer. Neither SCR 48.1 specifically, nor the SCR generally, states whether the computation of ten days includes or excludes intermediate nonjudicial days. We conclude that the time to file a peremptory challenge begins to run upon proper notice of a hearing and may expire regardless of whether a party has appeared in the action. But because we also conclude that SCR 48.1(3)(a)’s ten-day
FACTS AND PROCEDURAL HISTORY
On April 18, 2012, real party in interest Kourtney Morrow filed a complaint for divorce from petitioner Craig Morrow and a contemporaneous motion for child custody in the Eighth Judicial District Court. The motion sought temporary child custody and a hearing was set for May 18, 2012, to be heard by the Honorable Robert Teuton. On April 20, 2012, Kourtney properly served Craig with the summons, complaint, and motion. Thereafter, on May 4, 2012, Craig, through counsel, made his first appearance and filed a peremptory challenge against Judge Teuton. On May 8, 2012, the clerk of the court reassigned the matter to the Honorable Cynthia Dianne Steel. On May 11, 2012, Judge Steel rejected the peremptory challenge and transferred the matter back to Judge Teuton, ruling that the time to file a peremptory challenge had expired on April 30, 2012, ten calendar days after Kourtney served Craig with the summons, complaint, and motion. Craig then filed the instant writ petition.
DISCUSSION
This writ petition involves an issue of first impression concerning computing the allowable time for filing a peremptory challenge. Extraordinary writ petitions are the appropriate means to challenge district court decisions concerning peremptory challenges. State Engineer v. Truckee-Carson Irrig., 116 Nev. 1024, 1029, 13 P.3d 395, 398 (2000). “A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station 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) (citations omitted); see also NRS 34.160. A writ of prohibition is available to arrest the proceedings of a district court exercising its judicial functions, when such proceedings are in excess of the district court’s jurisdiction. NRS 34.320. Writ relief may be warranted when important issues of law need clarification. See International Game Tech. v. Dist. Ct., 122 Nev. 132, 142, 127 P.3d 1088, 1096 (2006). As there is potential for the district courts to inconsistently apply SCR 48.1(3)(a), we elect to exercise our discretion to entertain the merits of this writ petition and to clarify this issue of law.
Peremptory challenge rule
As a matter of right, each side in a district court civil action is entitled to change the judge assigned to the case, before any hear
‘ ‘Statutory interpretation is a question of law that we review de novo, even in the context of a writ petition.” International Game Tech., 124 Nev. at 198, 179 P.3d at 559. When a rule is clear on its face, we will not look beyond the rule’s plain language. See Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 579-80, 97 P.3d 1132, 1135 (2004).
The plain language of SCR 48.1(3)(a) provides only ten days to file a peremptory challenge, and in the face of that plain language, we cannot come to another construction.
NRCP 6 controls the computation of time for SCR 48.1(3)
SCR 48.1(3)(a) specifies that a peremptory challenge must be filed within ten days after notice of a hearing date. The district court counted ten calendar days in determining that the challenge was untimely. SCR 4 states that “[i]f any day on which an act required to be done by anyone by these rules falls on a nonjudicial day, the act may be performed on the next succeeding judicial day.” SCR 4 does not discuss the computation of time, but merely addresses the treatment of days when the deadline to act falls on a nonjudicial day. By contrast, NRCP 6(a) expressly sets forth a method for “computing” time in a subsection titled “Computation” in a rule titled “Time.”
When two rules apply, they are to be harmonized and read so as to provide effect to both whenever possible. Albios v. Horizon Communities, Inc., 122 Nev. 409, 418, 132 P.3d 1022, 1028 (2006). Read together, SCR 4 and NRCP 6 do not conflict, as SCR 4 simply states that all acts required to be performed by the SCR in any relevant court may be performed on the next judicial day if the day to act is a nonjudicial day.
Having determined that the time for filing a peremptory challenge begins to run upon notice of the hearing, regardless of whether an appearance has been made, and that NRCP 6(a) applies in determining the timeliness of a peremptory challenge under SCR 48.1, we conclude that with the excluded intermediate weekends, Craig’s peremptory challenge was timely filed on the tenth day, May 4, 2012. Thus, Judge Steel erred in rejecting the peremptory challenge and returning the matter to Judge Teuton.
CONCLUSION
We grant the petition and direct the clerk of this court to issue a writ of mandamus directing the district court to vacate its order rejecting as untimely petitioner’s peremptory challenge and instruct the district court clerk to reassign the case to a judge other than Judge Teuton.
Although some jurisdictions specifically provide that the time to file a peremptory challenge only begins to run after an appearance, see, e.g., Cal. Civ. Proc. Code § 170.6(a)(2) (West Supp. 2013) (stating that any challenge to an assigned judge must be made within 15 days after notice of the all-purpose assignment, or, as to a party who has not yet appeared in the action, within 15 days after that party’s first appearance), SCR 48.1(3) contains no such provision concerning appearances.
NRCP 6(a) states, in pertinent part, that “[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and nonjudicial days shall be excluded in the computation [of time].”
Many of the provisions of the SCR concern appellate procedure or bar matters and have no applicability to actions in the district court. Insofar as Kourt-ney contends that SCR 4 is a timing rule that trumps NRCP 6(a) on the basis that they conflict and that SCR 4 is more specific to SCR 48.1, we disagree. Even if we found a conflict between SCR 4 and NRCP 6(a), we would conclude that the 2005 amendment to NRCP 6(a), extending the procedure for computing time excluding intermediate nonjudicial days to time periods less than 11 days is more specific to the time period prescribed by SCR 48.1(3), which is a time period of less than 11 days in a district court civil action. To
NRCP 6 has been applied to other rules not covered by the express language of NRCP 6. See, e.g., FMR 1(4) (applying NRCP 6 to the Foreclosure Mediation Rules); c/. NAR 4(d) (adopting the same rules for calculation of time as the NRCP, which is NRCP 6, for the Nevada Arbitration Rules).
We deny the alternative request for a writ of prohibition.
Reference
- Full Case Name
- CRAIG MORROW v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK and THE HONORABLE CYNTHIA DIANNE STEEL, District Judge, and KOURTNEY MORROW, Real Party in Interest
- Cited By
- 11 cases
- Status
- Published