September 20, 2007 Nevada Supreme Court Decisions
On Thursday, September 20, 2007, the Nevada Supreme Court issued six published opinions:
In Nanopierce Tech. v. Depository Trust, the Nevada Supreme Court held that Congress did not make “clear and manifest” any intent to occupy the legislative field of clearing and settling securities transactions. However, the Court, found that the appellants claims, based on allegations that respondents concealed flaws in a Commission-approved national system for clearing and settling securities transactions, frustrates Congress’s objectives with respect to the clearing and settling regulatory scheme and renders adherence to both that regulatory scheme and state law impossible. Accordingly the claims are preempted. Justices Hardesty and Douglas concurred in part, but dissented, arguing that there was no preemption as to certain misrepresentation claims regarding compliance with buying broker’s notification.
In Westpark Owners' Ass'n v. Dist. Ct., the Nevada Supreme Court adopted a definition of ‘new residence” for purposes of Chapter 40, under which a “residence is “new” when it is a product of original construction that has been unoccupied as a dwelling from the completion of its construction until the point of sale.” Here, 108 condominium units had been leased as apartments for 7 years prior to their sale as condominiums, and accordingly, did not qualify as “new residences.” Accordingly, Chapter 40 claims relating to the construction of the residences may not proceed. However to the extent the claims relate to defects resulting from alterations or repairs made by Westpark prior to sale, the claims may proceed.
In Clark County Dist. Att'y v. Dist. Ct., the Nevada Supreme Court clarified that NRS 432B.550 creates only a preference for family placement of foster children, not a presumption, and that placement must always be guided by the interests of the child. Here, because the district court treated the statute as creating a presumption, the matter was remanded for reconsideration based upon bet interests of the child.
In Nay v. State , the Nevada Supreme Court held that a defendant may not be found guilty of first-degree felony murder if the intent to commit the predicate enumerated felony arises after the conduct resulting in death. Thus, “robbery does not support felony murder where the evidence shows that the accused kills a person and only later forms the intent to rob that person.” Here, the defendant beat his roommate to death, and thereafter, took the roommate’s property. He claimed he acted in self-defense, and decided only after the death to take the property. The failure to properly instruct the jury required reversal of the first degree murder conviction, but was harmless as to the robbery conviction.
In Caballero v. Dist. Ct., the Nevada Supreme Court held that where an indigent litigant requires an interpreter to understand the proceedings, a justice court has both express and inherent power allow a volunteer interpreter, and when a volunteer interpreter is not available, to appoint a state-registered interpreter and to determine any compensation.
In Witherow v. State, Bd. Of Parole Comm’rs, the Nevada Supreme Court held that parole hearings are quasi-judicial, and therefore, not subject to open meeting law requirements.
