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

The long awaited ruling on the smoking ban has been issued.   In Flamingo Paradise Gaming v.  Attorney General, the Nevada Supreme Court affirmed the Judge Herndon's ruling that struck the criminal provisions but allowed the civil enforcement provisions to stand.

The Court did note that the "NCIAA contains numerous defects that may potentially be subject to as-applied challenges."

I am a bit sad at the loss, but hardly surprised.  And of course,  we did successfully defend that portion striking the criminal penalties.

Read the opinion here,

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In McConnell v. State, the Nevada Supreme Court held that a challenge to Nevada’s lethal injection protocol may not be brought via a post-conviction petition for habeas corpus, as the issue raises a challenge to how a death sentence is carried out, rather than to the validity of the  conviction or sentence.  The Court noted, however, that a challenge to the protocol may be brought via a §1983 action.

The Court also rejected McConnell’s substantive challenges to his conviction.

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 In  MGM Mirage v. Nevada Ins. Guaranty Ass’n, The Nevada Supreme Court held that self-insured employers can seek reimbursement from the Nevada Insurance Guaranty Association (NIGA) for amounts that should have been paid by an insolvent excess insurance carrier. NIGA pays out insurance benefits to individuals and entities whose insurers have become insolvent., but not to insurers.   NIGA had argued that because self-insured employers are treated as insurers under the workers compensation laws, NIGA had no obligation to pay out funds for excess insurance that the self-insured employers would have recovered from the insolvent excess carrier.  The Court held that self-insured employers do not fall into the category of “insurer” for NIGA’s purposes, as they are not engaged in the business of insurance.

The 7-0 decision, issued June 26, 2009, was authored by Hardesty.

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In  St. James Village, Inc. v. Cunningham, the Nevada Supreme Court held that an easement can be relocated over the objection of the dominant estate owner, provided the new location reasonably preserves the value of the easement, and the original grant did not preclude relocation and did not specifically name the easement’s location..  The Court adopted § 4.8 of the Restatement (Third) of Property,  which places focus of the easement on its purpose and utility, rather than its original location.

In so holding, the Court backed off of a statement in Swenson v. Strout Realty, Inc., 85 Nev. 236, 239, 452 P.2d 972, 974 (1969) asserting that relocation of an easement without agreement of the owners of both the dominant and subservient estate, was overbroad.

In the case at hand, the deed did set forth the specific location of the easement, the easement could not be altered without the permission of the dominant estate owner.

The 6-0 opinion, issued June 25, 2009,  was authored by Hardesty, with Justice Pickering not participating

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I’ve never had a case decided so quickly before! 

Ruling less than two weeks after briefing was completed, the Supreme Court upheld Judge Barker’s decision holding that the ballot measures supported by the Culinary Union were properly kept off the ballot.

The Court’s decision, made on the briefs, agreed that the Initiative violated the single subjet rule and the referendum gave a misleading description. He Court also held that the requirements of NRS 295.009 apply to all initiatives and referenda, not just those with state wide effect.

However, the  Court did rule that in the future, a city must place properly certified measures on the ballot, and make any challenges to their validity in a court action.

See the decision here, and the briefs here.

We represented the intervenors in this action. Briefing came fast and furious, at several levels, offering an opportunity to get to know some of the folks over at Lewis & Roca, who represented the City.

All in all, a fun case.

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 Last Thursday, shortly before I was overcome by the latest uprising of whatever persistent respiratory bug refuses to leave my body, the Nevada Supreme Court issued three published opinions. 

In In re the Application of Shin, the Court determined that a pardon issued by the State Board of Pardons Commissioners does not remove the historical fact that a conviction occurred. It merely extends forgiveness, restores most civil rights, and removes most, but not all, legal consequences of a conviction.  Because the pardon extended under Nev. Const. Art 5, § 14 does not create a civil right to expunction of the conviction, NRS 213.090, which sets forth the circumstances under which expunction may occur, does not infringe upon  the constitutional pardoning power.

In  Terracon Consultants v. Mandalay Resort, the Nevada Supreme Court held that theeconomic loss doctrine applies to preclude negligence-based claims against design professionals, such as engineers and architects, who provide services in the commercial property development or improvement process, when the plaintiffs seek to recover purely economic losses.

Not content with killing his wife, Darren Mack also attempted to weasel out of the settlement reached in their divorce proceeding. But his efforts were stymied at every effort in Mack v Mack.  In this opinion, , the Court ruled that in a case involving the estate, judicial notice may be taken of the outcome of a murder trial in which the deceased stood to gain financially from the killer because of the close relationship between the murder trial and the benefits to which the deceased’s estate is entitled. The Court also ruled that an order may be entered nunc pro tunc to memorialize oral orders entered on the record. The Court further held that that nonmaterial terms could be altered to achieve the purpose of the settlement, and that an effective QDRO had issued  during Charla Mack’s lifetime through the oral ruling issued prior to her murder.  Finally, the Court held that ERISA does not preempt the Nevada slayer statute, which prevents a killer from financially benefiting from his crime. Darren was therefore required, as contemplated by the settlement agreement, to make a lump sum payment from his ERISA pension plan to Charla’s estate.

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The Nevada Supreme announced one published opinion last week. In Collins v. State, the Court held that NRS 0.060(2)’s definition of substantial bodily harm as “prolonged physical pain” is not unconstitutionally vague. The Court held that “prolonged physical pain” is easily understood as “some physical suffering or injury that lasts longer than the pain immediately resulting from the wrongful act.”

Meanwhile, kudos to the Court for doing away with the practice of putting all citations in the footnotes.  They’ve been including citations in the text since the beginning of the year, and as a reader, I appreciate it. Footnotes have their place, and the Court has not eliminated them, but I personally find an opinion much more readable when I don’t have to keep checking the end to see the details of the cited authority.

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The first batch of opinions from the Nevada Supreme Court for 2009 includes three cases focusing on changes in the state’s DUI law, with the state coming out the loser in all three. Other cases involved workers’ compensation, the multistate tobacco settlement, and statutes of limitations.

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