“Conflict-Based Recusal as Good Cause” – The New Standard for Extending Time to Serve the Nevada Attorney General in Petitions for Judicial Review

1. Introduction

In Lombardo v. Nevada Commission on Ethics, No. 88093 (Nev. Sup. Ct. June 18 2025), the Supreme Court of Nevada confronted a procedural impasse created when the Office of the Attorney General (“OAG”) disqualified itself from representing the Nevada Commission on Ethics (“Commission”) due to a conflict of interest with then-Sheriff-turned-Governor Joseph M. Lombardo.

The appeal arose after the district court dismissed Lombardo’s timely petition for judicial review because it was not served on the OAG within the 45-day period mandated by NRS 233B.130. Lombardo argued that service on a recused Attorney General would be futile and that—if service was strictly required—good cause existed to extend the deadline. The Nevada Supreme Court agreed, reversing the dismissal and, in doing so, articulated a new, more nuanced “good-cause” framework when the Attorney General has formally recused for a conflict.

The decision will reverberate across Nevada administrative law, clarifying the interplay between the jurisdictional service requirement of NRS 233B.130(2)(c)(1) and the discretionary extension provision of NRS 233B.130(5) where the OAG’s conflict renders service functionally pointless.

2. Summary of the Judgment

• The Court reversed the district court’s dismissal of Lombardo’s petition and remanded for proceedings on the merits.
• It reaffirmed that service on the OAG is “mandatory and jurisdictional”, but emphasized that the 45-day time limit is not jurisdictional because NRS 233B.130(5) expressly allows extensions for good cause.
• The Court held that a formal conflict-based recusal by the OAG constitutes “good cause” to extend the time for service, especially when:
  • the petitioner reasonably believed service was unnecessary or futile,
  • the petitioner acted diligently once the issue was raised,
  • no party suffered prejudice, and
  • dismissal would thwart the policy favoring decisions on the merits.
• The Court criticised the district court for issuing “conclusory” orders that masked legal error and failed to apply recognized good-cause factors.

3. Analysis

3.1 Precedents Cited and Their Influence

• Heat & Frost Insulators & Allied Workers Local 16 v. Labor Commissioner, 134 Nev. 1 (2018)
  Established that service on the OAG is jurisdictional but remanded for a good-cause determination—laying the groundwork followed here.
• Spar Business Services, Inc. v. Olson, 135 Nev. 296 (2019)
  Confirmed that the 45-day service window is extendable and stressed de novo review of statutory interpretation; cited for the dichotomy between jurisdictional service and non-jurisdictional timing.
• Scrimer v. Eighth Judicial District Court, 116 Nev. 507 (2000) & Domino v. Gaughan, 103 Nev. 582 (1987)
  Provided multi-factor good-cause tests (reasonable belief, diligence, lack of prejudice, merits preference) adopted by the Court.
• Dornbach v. Tenth Judicial District Court, 130 Nev. 305 (2014) & Dougan v. Gustaveson, 108 Nev. 517 (1992)
  Emphasized futility and public-policy considerations when evaluating procedural defaults.
• Department of Corrections v. DeRosa, 136 Nev. 339 (2020)
  Characterized petitions for judicial review as a continuation of administrative proceedings rather than a “new” case, undermining the Commission’s separation argument.

These precedents collectively guided the Court to treat “good cause” as a flexible, equity-based standard rather than a rigid checklist—opening the door for conflict-based recusal to satisfy the requirement.

3.2 The Court’s Legal Reasoning

1. Statutory Interpretation
   The Court applied plain-meaning analysis to NRS 233B.130, differentiating between:
   • subsection 2(c)(1) (mandatory service on OAG), and
   • subsection 5 (extendable 45-day period).
   The presence of the extension clause proved the deadline is not jurisdictional, even though the act of service ultimately is.
2. Futility and Reasonableness
   The Court reasoned that when the OAG formally declares a conflict of interest under NRS 228.110(1)(b)(2), it is no longer the agency’s “legal adviser.” Therefore, service offers no practical value and a party’s decision to withhold service is “reasonable.”
3. Good-Cause Factors Applied
   • Reason for Delay: Conflict-based futility justified delay.
   • Diligence: Lombardo served the OAG the day after the omission was raised.
   • Prejudice: None shown; the Commission already had counsel, and OAG never appeared.
   • Public Policy: Nevada favors decisions on the merits, not technical dismissals.
4. Abuse of Discretion Review
   The district court’s “conclusory” orders failed to apply these factors, constituting reversible abuse of discretion.

3.3 Potential Impact of the Judgment

This ruling will have broad ramifications in Nevada administrative and appellate practice:

• Conflict-Recusal Doctrine Formalized: For the first time, a recusal under NRS 228.110 becomes explicit statutory “good cause.”
• Guidance for Practitioners: Attorneys can safely rely on formal conflict letters from the OAG without fearing jurisdictional dismissal, provided diligence is shown once the necessity of service becomes clear.
• Administrative Agencies: Agencies that retain outside counsel must notify litigants clearly; otherwise, they risk later “futility” arguments succeeding on appeal.
• Judicial Economy: The decision discourages sandbagging—where agencies wait past 45 days to raise service defects—by highlighting lack of prejudice and the merits-bias of courts.
• Legislative Clarification: The ruling may prompt lawmakers to revisit NRS 233B.130, adding explicit language about waived or excused service when the OAG is conflicted out.

4. Complex Concepts Simplified

• Jurisdictional Requirement: A procedural rule that, if not ultimately satisfied, deprives the court of power to hear the case.
• Good Cause: A flexible, fact-based justification; not a rigid formula. Think of it as showing a “fair, sensible reason.”
• Recusal: When a person or office steps aside due to a conflict of interest—here, the Attorney General could not oppose the soon-to-be Governor.
• Petition for Judicial Review: The statutory method for asking a court to review an administrative agency’s final decision—akin to an “appeal” from the agency.
• Conflict of Interest: A situation where loyalty to two clients (the Commission and the Governor) would be incompatible under professional-ethics rules.

5. Conclusion

Lombardo v. Nevada Commission on Ethics clarifies that while service of a petition for judicial review on the Attorney General remains mandatory, the deadline for such service is elastic when genuine conflicts render service pointless. The Court’s disciplined application of precedent, coupled with a pragmatic view of “good cause,” sets a precedent that will likely govern future administrative-law litigation in Nevada. Lawyers now have a roadmap: document the conflict, act diligently, and lean on the merits. Courts, in turn, must articulate their reasoning when rejecting good-cause arguments, lest they mask legal error behind conclusory orders.

By elevating “conflict-based recusal” to a recognized form of good cause, the decision balances procedural rigor with equitable flexibility—ensuring that technical pitfalls do not eclipse substantive justice.