Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

The Court’s final published decision of 2009, Nika v. State, affirmed the dismissal of a petition for post conviction relief based upon the jury instruction that did not separately define the terms “willfulness,” “deliberation,” and “premeditation” Nika was convicted of murder in 1994. Years later, the Court ruled in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), that such an instruction was improper, as the three terms are distinct elements of the mens rea required for the relevant category of first-degree, and applied that rule prospectively. Here, addressing  a claim that the failure to challenge the instruction in 1994 had been ineffective assistance, the Court affirmed a prior determination that the Byford ruling represented a change in the law, rather than a clarification in existing law. Accordingly, it was not ineffective assistance of counsel for Nika’s counsel to fail to challenge the instruction.  

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While I was enjoying Christmas with all three of our kids (plus my daughter’s boyfriend, who might as well be one of our kids, since he’s been around since she was in 10^th grade), the Nevada Supreme Court issued five published opinions:

In Nellis Motors v. State, DMV, the Court determined that the required evidentiary standard for administratively revoking emission-inspector and emission-station licenses is by a preponderance of the evidence, upholding the revocation here.

In Sheriff v. Burcham, the Court determined that the appropriate standard for finding a driver to have been “under the influence” for purposes of the offence of felony driving under the influence (DUI) pursuant to NRS 484.3795(1)(a) and (b) remains “impaired to a degree which renders the driver incapable of driving safely,”  even though the Nevada legislature had amended the statute since the Court last set froth the standard. The Court also determined that expert testimony was not necessary to explain to a grand jury the concept of retrograde extrapolation based on evidence that a second blood-alcohol concentration test, was lower than the first test and was the below the 0.08 standard.

In In re Lerner, the Court publicly reprimanded  Heavy Hitter Greg Lerner for contributing to the unlicensed practice of law by an attorney licensed in Arizona, but not Nevada.   The attorney in question worked in Lerner’s office, serving Nevada clients; no harm to the clients was alleged. Seems Lerner received three private reprimands for the same conduct, so the Court hopes a public admonishment will serve to curb the conduct.

In Howell v. State Engineer, the Court upheld the denial of a writ of mandamus requested after the state engineer refused to adjudicate water rights. The Court found the state engineer has no authority to make such an adjudication, as NRS 533.024(2) requires a court of competent jurisdiction to make such adjudication.

In Settelmeyer & Sons v. Smith & Harmer, the Court addressed a number of issues related to recovery of attorneys fees for representation of a corporation in a separate receivership and dissolution actions. The Court determined that such attorneys fees may be recovered in an actions separate from the receivership claims process, but the court in the separate action must obtain permission of the receivership action to levy on receivership funds.   The Court also determined that a law firm may not recover attorneys fees for representation of itself.

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The Nevada Supreme Court issued only one published opinion yesterday, reversing a murder conviction because of doubts about the defendant's competency.

In Olivares v. State, the Nevada Supreme Court reversed the defendant’s conviction for murder, finding the District Court abused its discretion by failing to conduct a hearing on whether further competency proceedings under NRS 178.415 were necessary. Here, the defendant’s competency had been questioned from the commencement of the case, and he had spent nearly half of the preceding three years in a mental health facility. Additionally, while six months before trial, two mental health professionals had opined that he was competent to stand, they also acknowledged that he persisted in the delusion that his defense counsel was in collusion with the prosecution. Additionally, defense counsel stated that defendant did not appear to understand plea negotiations, or the favorable plea agreement that had been offered to him.  In these circumstances, further inquiry should have been made.

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 Two published opinions today, one involving the tort of conversion, and the other addressing the Wynn tip distribution dispute:  

In Winchell v. Schiff, , the Nevada Supreme Court held that damages for conversion of inventory may include not only the value of the converted property itself, but also resulting damages, such as the value of a lost business.  In this case, the plaintiff’s stored inventory went missing.   The loss of the inventory led to the demise of the business.  The Court upheld the jury’s award that included damages for the lost business, as well as the value of the property itself.

In Baldonado v. Wynn Las Vegas, Wynn ran the table in the tip distribution dispute. The Nevada Supreme Court, sitting en banc, held

(1) NRS 608.160, which prohibits employers from taking employee tips, does not create a  private cause of action to enforce its terms. The statute requires the Nevada Labor Commissioner to administratively resolve disputes arising under the statute and creates an adequate administrative remedy, , precluding a finding that the legislature intended to create a private cause of action.

(2) Employees who allege that the statute’s terms were violated by an employment policy do not have standing to seek declaratory relief to that effect, as, again, the statute creates an adequate remedy.

(3) A unilateral change to an employment policy does not give rise to a viable breach of contract claim absent an actual employment contract. The dealers were at-will employees, and therefore, the employer had the right to prospectively change the terms of the employment.

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Sorry for the delay . . .

In Cox v. Dist. Ct., the Nevada Supreme Court held that a judicial sale to a bona fide purchaser is not immune from appellate reversal when the court conducting the sale had not jurisdiction to do so. Here, the court that conducted the sale had not jurisdiction due to the expiration of the five year rule, and therefore, the appellate reversal of the sale stands.

In   M.C. Multi-Family Dev. v. Crestdale Assocs., the Nevada Supreme Court adopted California’s  definition of “property rights” and the Restatement (Second) of Torts rule defining conversion of “intangible personal property,” and expressly rejected the notion that personal property must be tangible in order to give rise to a conversion claim.  At issue was whether a contractor’s license could be converted through unauthorized use of the license.  The Court held that a license can be converted, even though unauthorized use by one party does not prevent use by the lawful owner.

The Court determined that “a property right exists when (1) there is an interest capable of precise definition, (2) the interest is capable of exclusive possession or control, and (3) the putative owner has established a legitimate claim to exclusivity.” The Court also adopted Restatement (Second) of Torts § 242, which states, “[w]here there is conversion of a document in which intangible rights are merged, the damages include the value of such rights.” 

Because the District court had directed a verdict in favor of the defendant, finding that a license could not be converted, the cause was remanded.  

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Today’s Nevada Supreme Court opinions included two civil and two criminal cases.

I discuss the criminal cases here, and the civil cases in the next post.

In Knipes v. State, the Nevada Supreme Court held that, in criminal trials, hearings to determine the admissibility of juror questions should be conducted on the record. However,  failure to properly administerr such hearings is reviewable under a harmless error standard. In the Knipes trial, the hearings were not on the record, but since the juror questions asked did not result in any prejudicial testimony, the error was harmless.

In Davidson v. State, the Nevada Supreme Court held that a judge cannot change a jury’s verdict from not guilty to guilty for a criminal charge based on a purported clerical error after the jury has been discharged. 

Yeah,  okay, this one tempts me to say “duh.” 

But hey, it is slightly more complicated than that. I mean, they’d convicted the guy of burglary and battery, so why not robbery, too?  And besides, ten of the twelve jurors were still around and, even though they’d previously agreed in open court that the verdict as read was accurate, after the prosecutor spoke to them, they all agreed that they really meant to convict the guy on another charge too.

And yes, now I am giggling.

Apparently we have a 9^th Circuit case to blame for this one -- United States v. Stauffer, 922 F. 2d 508 (9th Cir. 1990). But in that case, all the court did was switch the specific extortion case upon which the jury had convicted from one to the other. In other words, no additional conviction added.

The Court also ruled that where one of the underlying convictions for the “small habitual criminal” statute is actually a misdemeanor, sentencing the defendant as an habitual offender was plain error.

Long, long ago, I was a staff attorney at an appellate court, drafting opinions for criminal cases. Those were the days.... 

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In  LVCVA v. Secretary of State, the Nevada Supreme Court upheld the Secretary of State’s decision that three ballot initiatives involving taxes could not be presented to voters in November.  The petitions were defective because the persons who collected signatures did not comply with the requirements of state law.  Under NRS 295.0575, the circulators were to include sworn statements regarding the number of signatures witnesses and that each person signing the petition was given the opportunity to read the full text of the proposed ballot measure. The Court rejected the constitutional challenge to the statutory requirements, noting that the U.S.> Supreme Court has upheld similar language.

As someone who came to Vegas after Colorado’s economy was crippled by similar tax “reform” laws, I heartily applaud a decision that wards off similar ruin here for a time.

However, I am sure the person who paid the professional signature gatherers for such shoddy work is justifiably furious.

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The Court ruled on the term limits cases, just before primary voting began:

In Child v. Lomax, the Court upheld the term limits provision in the Nevada Constitution. The Court also ruled that legislators voted into office at the same time as the initiative took office the day following the election, and the service that began then does not factor into the 12 year term limit. The ruling allows Barbara Buckley to remain on the ballot this year. The decision was unanimous.

In Miller v. Burk,  consolidated with Sisolak v. Lomax,  the Court decided that state and local officials who were elected in 1996 and commenced a term in 1997, and thereafter retained the office through reelection, are barred by the Constitution limit on terms of office from seeking the same position in this year’s election.  This decision, too, was unanimous.

The ruling means that Bruce Woodbury,  the one Republican in the country for whom I would have seriously have considered voting, will not be on the ballot in November. 

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Yesterday, the Supreme Court heard the term limits arguments yesterday.  

Today, the court ordered the three cases it had previously consolidated deconsolidated. See Order Deconsolidating Docket No. 51802 from Docket Nos. 51768 and 51798. Child v. Lomax – the case attacking Barbara Buckley’s candidacy, has been severed from Sisolak v. Lomax, the attack on Woodbury’s candidacy, and Miller v. Burk the AG’s case attacking various candidacies.

This could indicate a different outcome for the legislators who served in 1996 than for other "public officials."

Meanwhile, here are some of the news reports on yesterday's arguments.

The R-J -  Term Limits Case: Challenge Gets Rash Of Queries

The Nevada Appeal: Nevada term limits: court deliberates, candidates wait.

If you’d like to judge the tenor of the justices’ questions yourself, click here  to listen to or download the audio files.

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The Supreme Court \will webcast  Monday's term limit cases arguments.  The docket is below.  Click onthe case names for briefs.

Monday, July 14, 2008

10:00 AM Docket:

Miller v. Burk (51768)

Sisolak v. Lomax (51798)

Child v. Lomax (51802)

1:30 PM Docket:

Plimpton v. State (51944)

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In Douglas v. State,  an inmate acting pro se succeeded in persuading the Court that the Parole Board violated a statutory duty by requiring him to obtain Psych Panel certification, pursuant to NRS 213.1214, on an offense not enumerated in that statute.

NRS 213.1214 provides that A prisoner seeking parole on certain offenses, primarily sex offenses, must obtain certification that “that the prisoner was under observation while confined in an institution of the Department of Corrections and does not represent a high risk to reoffend based upon a currently accepted standard of assessment.”

Douglas had once obtained the necessary certification when paroled for his past sex offense, and was recertified following his return to prison after his parole was revoked due to a burglary charge. But when up for parole on that burglary charge he was required to obtain recertification again, and was this time denied.

Writing for the majority, Justice Cherry reasoned rejected the argument that any previous conviction on a sexual offense could justify the requirement of Psych Panel certification, even where the offense for which parole is being considered is not a sexual offense.  The legislature had apparently wrestled with and decided against expanding the offenses for which such certification was required because of the attendant expense. Thus, reasoned the court, it was unlikely that the legislature would require infinite re-certifications for previous sex offense.

The Court clarified that its previous ruling in Stockmeier v. Psychological Review Panel,122 Nev. 534, 135 P.3d 807 (2006), which allowed a recertification process where a prisoner had been convicted of multiple sexual offenses, applied where the current parole consideration involved a sex offense.

Justice Maupin dissented.

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The first of the Court’s two published opinions issued on June 5, 2008 involved proof that good fences don’t necessarily make good neighbors.

The Nevada Supreme court declined to extend Nevada’s law of easements in Brooks v. Bonnet. Brooks owned a lot next to one owned by the Bonnets. The lots had originally had been part of a larger parcel, the deed to which had included an easement in favor of the City of Reno for a public road.  When the parcel was divided into the smaller lots, the easement continued in those deeds. E City apparently never built the road, but Brooks obtained an encroachment permit to build a driveway over the easement. The permit provided that the driveway served both lots.

The Bonnets bought their lot in 2001, and built a fence over the driveway, blocking access to Brooks’s lot. The Bonnets also successfully applied for the City to abandon its easement and for the e encroachment permit revoked. Brooks claimed he had an easement under three theories: express, by virtue of the public road easement; implied by necessity, and a residual easement. 

The Court rejected the express easement, as the public road easement was not in favor of Brooks. Nor did he have an implied easement by necessity, as the driveway, while perhaps more convenient, was not the only access to his lot.

The Court declined to adopt the theory of residual easement, which holds that “a private easement arises in a public highway following its vacation or abandonment from the mere fact that the landowner’s property abuts the former public way.”  The Court noted that this theory would violate NRS 278.480, which provides that abandonment of a easement by a city results in reversion of the easement to the “abutting property owners in the approximate proportion that the property was dedicated by the abutting property owners or their predecessors in interest.” Additionally, NRS 408.523(3) provides that an abandoned easement for a public highway is simply destroyed.

The city’s abandonment of the easement meant the easement reverted to the Bonnets.

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In Brooks v. State, the Nevada Supreme Court today reversed convictions for robbery with the use of a deadly weapon and conspiracy to commit robbery. The Court found that Brooks was entitled to have the jury instructed that, to find that an unarmed offender “used” a weapon for purposes of the sentence enhancement for use of a weapon, the unarmed offender had to have knowledge of the use of the deadly weapon by another principal.  

Additionally, Brooks was entitled to have the jury instructed that, absent an agreement to cooperate in achieving a criminal purpose, mere knowledge of, acquiescence in, or approval of that purpose does not establish conspiracy.

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Somehow, I neglected to point out that the Nevada Supreme Court had denied Judge Halverson's petition for writ of prohibition, in which she had requested the disciplinary proceedings against her be dismissed. 

See Order Denying Petition for Writ of Mandamus or Prohibition for the Court's decision.

Aside from allowing the proceedings against Halverson to continue, the Court's decision also holds that  the Commission had been misreading NRS 1.4663 and 1.4667.  The Commission understood those statutes to allow the filing of formal charges only when the investigation was completed.   The court held that charges could be supplemented if additional investigation yielded additional evidence.

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The Nevada Supreme Court issued four rulings today, all in civil matters:

Trust fund babies may find reason to rejoice in the Court’s decision in, In re Orpheus Trust although the heirs of those trust fund babies may be less pleased.  NRS 164.795 allows a special trustee to adjust amounts of trust income and principal distributed to a trust income beneficiary. The question the Court had to decide is whether the special trustee can may such adjustments with respect to principal and income accrued before the special trustee’s appointment.  The Court  concluded that, at a minimum, a special trustee may adjust between principal and income accrued in the year immediately preceding the special trustee’s appointment.  The Court reasoned that the adjustment power granted by the statute is corrective, and so long as “so long as the trustees are bound by the standards of the Uniform Prudent Investor Act, the terms of the trust require distribution of income to an income beneficiary, and a special trustee determines that an adjustment is necessary, the special trustee may adjust between principal and income accrued in the preceding year.”

The Orpheus Trust is a successor to John Paul Getty Family Trust. The plaintiff in the action was contingent beneficiary (one of four) who objected to an increased distribution to the current beneficiary – his own dad.  The trust had earned 14.77 % on its assets for the year, but dad’s distribution had been only 2.59 %. The adjustment gave him another 1.20%.  It’s probably more than it sounds.

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This case also provides a good lesson of something to check when your client has been sued – if the plaintiff is a business entity, has it filed it fictitious name certificate?

In Loomis v. Whitehead, a per curiam decision, the Nevada Supreme Court overturned the dismissal of a suit brought by individual members of a partnership that had failed to file an assumed or fictitious name certificate. 

NRS 602.070 bars suits by  persons who fail to file such certificates, where the suit arises from a contract made under the fictitious name.  However, the court held that the statute does not partners from bringing such an action, provided the contract was not made under the fictitious name. Here, the partners conducted a cattle business under the assumed name, but had contracted for care f the cattle without reference to the partnership name. When the cattle died of neglect, they sued the party charged with care of the cattle, who had not been misled into thinking he dealt with a partnership. Justice Hardesty dissented, arguing the statute unambiguously prohibited suits by uncertificated entities, where the suit arises from the business conducted under the fictitious name. 

Both sides make excellent points. From a purely statutory construction perspective, Hardesty’s view is easier to justify.  The suit undoubtedly arose from the partnership business, as the loss of the cattle was to that business.

However, as the saying goes, bad facts can lead to bad law.  Or, at least courts to stretch construction principles when the law as written would lead to an unjust result.  Who would want to allow a person who (allegedly) agrees to feed a herd of cattle, but instead, allows them to starve to death, to escape claims of negligence and breach of contract merely because the owner of the cattle didn’t file a fictitious name registration with county clerk? As the majority points out, the statute’s intent was to insure that people know with whom they deal. It was never intended to provide a technical escape route to evade the consequences of breach.

This decision was announced February 28, 2008.

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In Nevada Classified Sch. Emp. Ass'n v. Quaglia  the Nevada Supreme court held that a corporation’s bylaw is void to the extent that it is inconsistent with the corporation’s articles of incorporation; any amendment to the bylaws adopted using the procedures set forth in the invalid bylaw’s voting procedure is also invalid. 

This issue was a matter of first impression here, but this has long been the rule elsewhere.

These issues arose in the context of the Nevada Classified School Employees Association (NCSEA). The Articles of Incorporation of the NCSEA require the voting power of all members to be equal, but a bylaw placed a cap on the number of delegates a chapter could have.   The cap on the delegates resulted in the Washoe county chapter having a delegate to member ratio of 1 to 132, while other chapters had a ratio of 1 to 23. This disproportionate representation became critical when a resolution to require a supermajority of chapter member votes to allow the chapter to disassociate was approved despite the unanimous opposition of the Washoe County Chapter delegates. The Chapter voted to disassociate, but the approval was by simple, rather than super majority vote.

The NCSEA sought a preliminary injunction to prevent disassociation. The district court denied relief, noting that the supermajority requirement, adopted through the disproportionate representation, was “likely invalid.” The Supreme Court agreed, bringing Nevada’s corporate law up to date.

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In Hooks v. State, the Nevada Supreme Court reversed Hooks’ drug convictions and habitual offender adjudication, finding that he had not received an adequate advisement of the risks of self representation.  For more than thirty years, it has been the rule that a defendant must be “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Feretta v. California, 422 U.S. 806, 835 (1975). 

Here, while Hooks was advised by the Justice Court that self representation was foolish, and that he would not get special treatment or library access, the District Court did little more than inquire as to whether Hooks had discussed his decision with standby counsel. The District Court made no findings of a knowing, voluntary or intelligent waiver of the right to counsel, and the record as a whole did not establish such an informed waiver.

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Or at, least can’t have design defects covered by NRS Chapter 40.

 In Pankopf v. Peterson, the Nevada Supreme Court held that Chapter 40 provisions governing the litigation of design defects do not apply to blueprints for a residence never constructed. The Pankopfs had engaged the services of Peterson, an architect, who provided blueprints for a new residence. The construction was never finished.  In a suit claiming breach of oral contract, negligence and incompetence, and professional negligence,  the Pankopfs alleged that deficiencies in the blueprints prevented the completion of construction.  

The district court dismissed for failure to comply with Chapter 40 requirements.  The Court reversed, holding “[g]iven that the residence in this case has not been completed, it cannot constitute a “new residence” for the purposes of NRS Chapter 40.”

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InCote H. v. Dist. Ct., the Nevada Supreme Court held that NRS 201.230(1), which defines the offense of lewdness with a minor under the age of 14, can be used to adjudicate as delinquent a minor who is also under the age of 14. The court rejected the claim that the statute cannot be so used because minors under the age of 14 are members of the class protected by the statute.  Here, where Cote is apparently a minor between the ages of 8 and 14, he can be adjudicated delinquent for fondling a 4-year-old child, provided that there is clear proof that he knew the wrongfulness of the act when he committed it, as required by NRS 194.010.

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In Dancer v. Golden Coin, Ltd. the Nevada Supreme Court held that the Nevada Wage and Hour Law (NWHL) is not preempted by Federal Fair Labor Standards Act (FLSA), as the latter specifically states that higher state minimum wage laws will prevail over the FLSA requirements.  The Court further found that the district court erred in denying a motion to substitute the class representative because, having erroneously determined the federal law applied, it applied the federal statute of limitations as well as the federal class action procedural rule requiring class members to opt in. However, NRCP 23 uses an opt out method for class determination. Accordingly, the claims of proposed new class representative were not time barred.

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The Court issued one published opinion on January 17, 2008.

In Lioce v. Cohen, a case that included four consolidated appeals, the Nevada Supreme Court reheard the matter en banc. Having done so, the Court vacated the 0rio opinion, published as Lioce v. Cohen, 122 Nev. ___, 149 P.3d 916 (2006),and issued a new opinion.  The Court reached substantially the same conclusion as the prior opinion, save that it declined to impose monetary sanctions on defense counsel and his clients.

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On January 17, 2008, the Nevada Supreme Court ordered the Nevada Commission on Judicial Discipline to answer the Petition for Writ of Prohibition filed by Judge Elizabeth Halverson within 30 days. The Court noted that the Commission had actually filed its formal charges against Judge Halverson within a few days of the Petition.

Click here for the Court’s Order.

Click here for Judge Halverson’s Emergency Petition for Writ of Prohibition or Mandamus.

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For those interested, here are the links to the Supreme Court's postings in the Kucinich matter:

Emergency Petition for Writ of Prohibition 

Kucinich's Opposition to Emergency Petition 

Order Granting Petition for Writs of Prohibtion and Mandamus 

Order Scheduling Oral Argument 

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