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

In Cunningham Charter Corp. v. Learjet, Inc., the 7th Circuit Court of Appeals joins the 11^th circuit in resolving a jurisdictional question posed by the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453, and 1711-1715. That Act creates federal diversity jurisdiction over certain class actions in which at least one member of the class is a citizen of a different state from any defendant (that is, in which diversity may not be complete). 

The Court held that where a class action has been transferred to federal court under the Act, but class certification is denied, the federal court retains jurisdiction. While the Act applies “to any class action [within the Act’s scope] before or after the entry of a class certification order,” the use of the term “a class certification order” rather than “the class certification order ” indicates the provisions refers only to timing, and does not create a requirement that the class be certified to retain federal jurisdiction.

Authored by Judge Richard Posner, the opinion ends what he called the potential for "ping-pong" between the federal and state courts.   The Court “vindicate[d] the general principle that jurisdiction once properly invoked is not lost by developments after a suit is filed, such as a change in

the state of which a party is a citizen that destroys diversity.”

 The 9^th Circuit has not yet ruled on the issue. In unpublished decisions, the Southern and Central Districts of California have ruled that jurisdiction under CAFA never existed if class certification is denied.  

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In Landreth v. Malik,  the Nevada Supreme Court held that the family courts do not have jurisdiction to hear disputes over property ownership between unmarried couples. Here, the dispute involved a claim that the funds used to purchase and renovate a home in Nevada were joint funds of a couple who had cohabited, but never married. The Court’s ruling was based on the jurisdictional grant set forth in NRS 3.223, which does not include an action of the type here.

The statute is pretty straight forward.    I do question the use of the word “meretricious” to describe the relationship between the parties, however. That word is commonly used to describe an unlawful sexual relationship.   Meanings do change though, so perhaps this is an example.

Also, the impact of this decision on those who register as domestic partners,  remains to be seen. SB 283 expressly provided that termination of such a domestic partner relationship would follow the requirements of NRS Chapter 125, which would fall within family court jurisdiction. However, domestic partners can terminate outside of Chapter 125 if the parties meet certain qualifications. One such requirement is the lack of community property, the determination of which lack could, of course, be precisely the issue to be decided . . .

Decided December 24, 2009. Douglas authored the opinion, with Parraguirre, Cherry, and Pickering concurring.

Hardesty dissented, with Saitta and Gibbons concurring.

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If you are thinking of applying for any judicial vacancies, take note of election printing deadlines. Otherwise, you could end up with an appointment that ends after a few months, with no way to get on the ballot for election.

In Lueck v. Teuton, announced Nov. 12, 2009, the Nevada Supreme Court found that a judicial appointment ends after the generally election most immediately following an appointment. The Court first ruled that Lueck, who had raised the issue as a private citizen when a judge was appointed to a term that extended past the next general election date due to the passage of the deadline for ballot inclusion, lacked standing to bring a Petition for writ of quo warranto to remove the judge from office. The Legislature has not given such standing to private citizens.   However, the Court exercised its supervisory powers to rule on the issue of the vacancy. Noting that until Nev. Const. art. 6, § 20(1) and (2) provide for the appoint to last until “the first Monday of January following the next general election,” the court determined that “next general election” meant the very next one, regardless of ballot printing deadlines

Opinion by Cherry. Gibbons concurred as to the finding of a lack of standing, but dissented, concluding that an appointment should end only when the vacancy could be filled with a valid election. 

‘lueck v. teuton’ ‘judicial appointment’

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Tuesday’s other opinion from the Ninth Circuit also involved the unusual service offered by the Portland police.  However, in U.S. v. Ankeny , the Ninth Circuit refused to suppress, despite a far more outrageous example of the Portland police department crossing a line. 

While Mr. Washington, see previous post, was treated with courtesy throughout the time during which he was being unlawfully seized, Ankeny, the defendant here, physically suffered at the hands of a gang of officers executing a valid search warrant.   Even though the police stormed the house, essentially performed a no-knock without authorization, causes thousands of dollars in damage, and caused 1^st and 2d burns on the defendant, near whom a flash bang device thrown by police exploded, the evidence was no suppressed because a failure to obtain a “no-knock” component to an otherwise valid warrant cannot justify suppression under Hudson v. Michigan, 126 S.Ct. 2159 (2006), and because the arguably unreasonable nature of the search did not actually  lead to discovery of the evidence.

Judge Reinhardt dissented, arguing that the suppression was warranted by “the extreme use of excessive force,” which rendered the search unreasonable. Reinhardt felt that facts showed “a lack of professionalism and disdain for the rights of individuals on the part of some law enforcement officers” unlikely to be cured by the threat of a § 1983 action.  Reinhardt fears the majority ruling creates a blanket exception to the exclusionary rule whenever the officers have a valid warrant.

Reinhardt’s description of the conduct as unprofessional is an understament.  Electric Lawyer notes the facts of the case are truly shocking, with which I agree.  Indeed,  with the enthusiastic text message of officers gloating over the property damage and the  injuries suffered by the defendant, and declaring a “good time had by all,” the Portland police come off sounding like teenagers enthusing over the latest violent video game.

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YEsterday, in Bowles v. Russell, the U.S. Supreme Court, in a 5-4 decision authored by Thomas, held to its longstanding rule that deadlines to perfect appeals are jurisdictional. 

The district court had given an extension of the deadline to file an appeal of a denial of a petition for habeas. The rules permit a 14 day extension, but the deadline for filing in the district court’s order granting an extension was for 17 days. The habeas petitioner filed his appeal on the 16^th day. The 6^th Circuit dismissed the appeal and the Supreme’s affirmed.

Such a decision is not generally controversial, as the rule is, indeed, a long-honored one. Moreover, the time limitations are set by statute, 28 U.S.C. 2107, as well as by court rule. FRAP 4. A statutory deadline has jurisdictional significance.

However, Souter’s dissent points out the Court’s recent attempts to clarify mandatory and nonmandatory jurisdictional requirements.   Only last year, the Court had held—unanimously—that a statutory time limitation has jurisdictional significance only if Congress designates the limitation as jurisdictional. Arbaugh v.Y & H Corp., 546 U.S. 500, 520 (2006). Souter states:

In ruling that Bowles cannot depend on the word of a District Court Judge, the Court demonstrates that no one may depend on the recent, repeated, and unanimous statements of all participating Justices of this Court.

Souter also notes the irony that the recent decisions are “jettisoned in a ruling for which the leading justification is stare decisis."  Souter argues that a nonmandatory jurisdictional requirement would allow the Court to give equitable relief in”bait and switch” situations like that presented here.

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