December 2008 Archives

More on district court assignments

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All criminal cases:

Judges Mosley & Hardcastle

All civil cases:

Judges Bell, Smith, Walsh, Silver, Delaney

Civil, criminal and business court cases:

Judge Gonzalez

Civil and business court cases:

Judge Denton

Civil and criminal cases:

Judges Cory, Vega, Herndon, Cadish, Togliatti, Leavitt, Villani, Barker, Wall, Adair, Miley & Bixler

Civil, criminal and mental health:

Judge Glass

Civil and construction defect:

Judges Williams and Johnson

Construction defect, endoscopy pretrial, business court conflicts & settlement conferences:

Judge Earl

Yikes: district court case reassignments

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On Monday, January 5, the following changes will be implemented in district court case assignments:

All Dept. 8 (former Gates/now Smith) cases will transfer to Dept. 6 (Cadish).

All Dept. 6 (Cadish) cases will transfer to Dept. 8 (Gates/Smith).

All Dept. 7 (Bell/Bell) cases will transfer to Dept. 4 (Hardcastle).

All Dept. 15 (Loehrer/Silver) cases will transfer to Dept. 23 (vacant/Miley).

All Dept. 23 (vacant/Miley) cases will transfer to Dept. 15 (Loehrer/Silver).  Dept. 15 will be located in courtroom 10A.

Criminal cases from Dept. 3 (Herndon) will transfer to Dept. 5 (Glass).

Civil cases from Dept. 3 (Herndon) will transfer to Dept. 17 (Villani).

Criminal cases from Dept. 5 (Glass) will transfer to Dept. 17 (Villani).

All Dept. 17 (Villani) cases will transfer to Dept. 3 (Herndon).

Criminal cases from Dept. 1 (Cory) will transfer to Dept. 20 (Wall).

Criminal cases from Dept. 20 (Wall) will transfer to Dept. 1 (Cory).

Dept. 7 (Bell/Bell) and Dept. 25 (new/Delaney) will have all civil cases, which will be oppulated via random assignment from existing civil cases.  Dept. 25 will be located in courtroom 1B.

Probate cases will be heard by Judge Ritchie, Family Division Dept. H, at Family Court Courtroom 14.

Nevada Supreme Court issues opinion

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Nika v. State - In an en banc opinion authored by Justice Hardesty, with Justices Cherry and Saitta dissenting, the Court finds the following:  "The primary issue in this appeal concerns a jury instruction defining premeditation, commonly referred to as the Kazalyn instruction, and our decision in Byford v. State, which addressed specific concerns about that instruction.  Appellant Avram Nika challenges our subsequent decisions that Byford announced a new rule with prospective affect. In considering his argument, we reexamine whether our decision in Byford constituted a clarification of existing law or a change in the law respecting the meaning of the mens rea for first-degree murder.  We hold that Byford announced a change in state law that applies prospectively to murder convictions that were not final when Byford was decided.  Nika's conviction was final before Byford was decided.  Consequently, we conclude that Nika's trial and appellate counsel were not ineffective for failing to challenge the Kazalyn instruction as that instruction was a correct statement of the law at the time of his trial." 

In reaching this decision, the Court criticizes the Ninth Circuit's opinion in Polk v. Sandoval:  "The fundamental flaw, however, in Polk's analysis is the underlying assumption that Byford merely reaffirmed a distinction between 'willfulness,' 'deliberation,' and 'premeditation.'  It was based on that assumption that Polk concluded that the Kazalyn instruction was erroneous and that the instructional error violated the federal Constitution by omitting an element of the offense.  That underlying assumption ignores our jurisprudence."

The Court, however, also recognized that portions its holdings in Garner and Byford were not correct: "Despite our disagreement with the assumption underlying the decision in Polk, we acknowledge that the change effected by Byford properly applied to that case as a matter of due process.  The United States Supreme Court has indicated that for purposes of due process, the relevant consideration 'is not just whether the law changed' but also 'when the law changed.'  Thus, if the law changed to narrow the scope of a criminal statute before a defendant's conviction became final, then due process requires that the change be applied to that defendant.  In such cases, retroactivity is not at issue; rather, due process requires that the conviction be set aside if required by the change in the law. In this respect, our decision in Garner erroneously afforded Byford complete prospectivity because as a matter of due process, the change effected in Byford applies to convictions that were not yet final at the time of the change.  Polk involved such a conviction.  This case, however, does not. Because Nika's conviction was final when Byford was decided, whether the change effected in Byford applies to Nika is a matter of retroactivity analysis.  This court previously has held that Byford has no retroactive application on collateral review. We reaffirm that decision today."

Today the Ninth Circuit Court of Appeals, in an opinion authored by Justice Bybee, found a sentence of 28 years to life imprisonment, under California's three strikes law, for failure to update an annual sex offender registration to be cruel and unusual punishment under the Eighth Amendment.  The Circuit found that California's registration requirement creates a regulatory offense and the sentence imposed to be grossly disproportionate to the offense.  This is a must read opinion for anyone with a failure to register or failure to change address case in which the State is seeking habitual criminal adjudication.  The opinion is Gonzalez v. Duncan.

Interesting unpublished decisions

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The Nevada Supreme Court has made available a new batch of unpublished decisions.  They may not be cited as precedent.  A few are of interest:

Lewis v. State - the Court finds plain error based upon a jury instruction concerning the value of a vehicle.  The instruction erroneously instructed the jury to determine the value of the vehicle at the time the vehicle was taken, rather than at the time it was possessed.  The result is a reduction from a class B felony to a class C and the Court vacates an order for $5,200 in restitution.

Johnson v. State - the merits of the issues presented are not all that interesting, but it is worth noting that the defendant was convicted of three counts of second-degree murder based upon the shotgun killings of three people inside an apartment -- proof once again that the Byford instructions on first-degree murder reflect a meaningful change from the Kazalyn instructions.

Bolden v. State - the Court reverses an order of the district court dismissing a post-conviction petition for a writ of habeas corpus.  The district court had dismissed the petition because it was not served on the Attorney General and warden.  The Court finds that the defects were curable and the petition should not have been dismissed on those grounds.

Ruffin v. State - the Court reverses an order of the district court dismissing a post-conviction petition for a writ of habeas corpus.  The district court denied the petition because the defendant did not attach trial transcripts to his petition.  The Court found that there is no statute mandating that transcripts be attached and it would be unreasonable and wasteful for an indigent defendant to provide copies of transcripts that already exist in the district court and prosecutor's files.  The procedural history is interesting in that the district court dismissed without prejudice a 1996 petition on this ground, the defendant filed two additional post-conviction petitions, the second and third petitions were dismissed as untimely, but the Court reached the merits of the first petition based upon the appeal from the third order.

Valdominos v. State - the Court reverses a judgment of conviction for two counts of sexual assault after finding prosecutorial misconduct and error in refusing to give a defense proposed jury instruction on the legal effect of multiple sexual acts.  The Court finds that the prosecutor committed misconduct by making remarks which belittled or disparaged the defendant or his case and by improperly attacking the defendant's character.  Although the defense did not object at trial, the Court finds plain error in the prosecutors statement that insinuated the defendant had raped another woman and was a serial rapist.  Justice Maupin dissented -- he found that the State committed misconudct but believed the conviction was supported by overwhelming evidence.

 

Oral argument calendar: Jan. 6 & 7

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The Nevada Supreme Court will hear en banc arguments in Carson City on January 6 and 7.

Tuesday, January 6, 2009

48329 THOMAS VS. HARDWICK, M.D.
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

48609 NOGUERA (CARLOS) VS. STATE
10:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

It appears that this is a Clark County case in which the appellant is represented by the Clark County Public Defender's Office.  It appears that he was was convicted of two counts of sexual assault and was sentenced to life in prison with the possibility of parole.  I do not know the issues presented. 

48847 CHAVEZ (JAMES) VS. STATE
11:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

I have no details about this case. 

49029 NC-DSH, INC. VS. GARNER
1:30 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

49198 FUNDERBURK (SAMAJA) VS. STATE
2:00 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

It appears that the appellant is represented by John Parris and that the appellant was convicted of several counts of robbery based upon a string of convenience store robberies.  He was initially charged with dozens of kidnapping counts, but those charges were dropped at the opening of trial.  I do not know the issues presented on appeal. 

50443 SMITH (JACOB) VS. STATE
2:30 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

I have no details about this case. 

Wednesday, January 7, 2009

50251 ADAMS VS. CITY OF SPARKS C/S NOS. 49504/49682
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

49682 ADAMS VS. CITY OF SPARKS C/W NOS. 49504/50251
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

49504 ADAMS VS. CITY OF SPARKS C/W NOS. 49682/50251
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

49512 RICO-ARREOLA (OSCAR) VS. STATE
10:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

It appears that this is a sexual assault case in which the defendant is represented by the Public Defender's Office.  I do not know the issues presented on appeal. 

50989 HD SUPPLY FACILITIES VS. BYMOEN (NRAP 5)
11:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

50497 FIELDS (JOHN) VS. STATE
1:30 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

I have no details about this case. 

Nevada Supreme Court issues 5 opinions

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Sheriff v. Burcham - In a 4-3 decision, with a majority decision authored by Justice Gibbons, the Court reverses the grant of a pretrial petition for a writ of habeas corpus and dismissing a charge of driving and/or being in actual control of a vehicle while under the influence of alcohol and causing death and/or substantial bodily harm.  The Court finds that the Cotter standard still applies for determining whether a defendant is "under the influence" despite a 1995 statutory change in NRS 484.3795.  To find someone "under the influence," a fact-finder must determine that the driver was impaired "to a degree which renders him incapable of driving safely."  The Court also concludes that expert testimony regarding retrograde extrapolation is not required for grand jury proceedings.  Justices Cherry, Douglas and Saitta concurred in the Cotter standard analysis but dissented as to the Court's holding regarding expert testimony for retrograde extrapolation.

Nellis Motors v. State, DMV - evidentiary hearing standard for revoking emission-inspector licenses 

Settelmeyer v. Smith & Harmer - attorney fees and receivership funds

In re Lerner - public reprimand issued against attorney for assisting in the authorized practice of law

Howell v. State Engineer - judicial review of State Engineer decisions regarding title to water rights

From the Nevada Supreme Court:

"The Commission on Judicial Selection has received applications from 15 attorneys to fill two vacancies at the Eighth Judicial District Family Court that are the result of Family Court judges being elected in November to other positions, Chief Justice William Maupin announced.

Family Court Judge Stefany Miley was elected to a civil/criminal judgeship, replacing Judge Elizabeth Halverson on the Department 23 bench. Judge Miley will be vacating her Department F seat at Family Court.

Family Court Judge Sandra Pomrenze was elected to the newly created Department P at Family Court and will be vacating her Department E seat at Family Court.

This will be the second interview and deliberation process that will be open to the public. The Commission voted on Dec. 18, 2007 to change its rules and open the traditionally confidential processes and provide access to most application information.

The applicants, in alphabetical order, are:

Philip J. Dabney, 49, Las Vegas, attorney in private practice
William B. Gonzalez, 47, Las Vegas, Clark County Deputy Public Defender
Gregory G. Gordon, 38, Henderson, attorney in private practice
Fernando Guzman, 59, Las Vegas, attorney in private practice
Kurt K. Harris, 45, Henderson, attorney in private practice
Charles J. Hoskin, 45, Las Vegas, attorney in private practice
John Howard, Jr., 61, Las Vegas, attorney in private practice
Ronald J. Israel, 54, Las Vegas, attorney in private practice
Keith M. Lyons, Jr., 47, Las Vegas, attorney in private practice
Terrance Marren, 60, Las Vegas, Senior District Court Judge
Aurora M. Maskall, 45, Las Vegas, attorney in private practice
Michele Mercer, 46, Las Vegas, attorney in private practice
Vincent Ochoa, 56, Las Vegas, attorney in private practice
Morrisa Schechtman, 49, Las Vegas, attorney in private practice
Dawn T. Throne, 38, Las Vegas, attorney in private practice

The deadline for applications was 5 p.m. on Friday, Dec. 19, 2008.

The Commission will conduct interviews Feb. 9 and 10, 2009, in Las Vegas. Following the interviews, the Commission will submit the names of three nominees for each vacancy to Governor Jim Gibbons, who will appoint the replacements from the lists.

No time limit exists within which the Governor must make a judicial appointment. However, if appointments are not made within 30 days following submission of names by the Commission, the Governor may make no other appointments to public office."

Additional information is available at the link above.

This and That

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Justice Hardesty will become the Chief Justice in  2009.

Margaret Rudin will receive a new trial.  Duh.  Who didn't see this coming.  Apparently Chris Owens, who stated to the RJ "I think it's a joke that the taxpayers will have to fund a new trial for someone who had three attorneys."  Gotta wonder if Mr. Owens would be so openly critical of a judge who was not retiring.   And for that matter, what about the joke on the taxpayers who had to fund the trial for Bryan Crawley, who received a sentence of life without the possibility of parole following a month long trial - the same sentence he would have received had the Clark County District Attorney's Office agreed to plea the case prior to trial in lieu of seeking the death penalty.  At a time when there is serious consideration of laying-off teachers and refusing hospital services because of financial concerns, did the D.A.'s office really need to incur well over $100,000 on behalf of the taxpayers in a case which could have easily been resolved prior to trial?

The Maryland Commission on Capital Punishment has issued its Final Report to the General Assembly.  The Commission recommends abolishment of capital punishment after exploring racial disparities, jurisdictional disparities, socio-economic disparities, a comparison of costs associated with the death penalty, a comparison of the effects of prolonged court cases, the risk of innocent people being executed, and other issues.

The Death Penalty Information Center has issued its Year End Report.  The Center notes that 2008 saw a 30-year low in new death sentences for the county at 111.  There were 284 death sentences in 1999.  There were 4 exonerations in 2008 and 37 executions, 95% of which were in the South. 

 

 

This Week

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Wednesday, December 24

Nevada Supreme Court scheduled to release opinions (the last opinion was issued on November 26)

Thursday, December 25

Holiday - courts closed

Interesting unpublished decisions

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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.  SCR 123.

Parker v. State - the Court finds a violation of the Double Jeopardy Clause for convictions of both grand larceny auto and robbery.  The Court rejects the State's argument that the taking of the car keys constituted a separate offense and notes that the keys were located inside the car.  The grand larceny auto conviction is reversed.

State v. Mikayelyan - the Court affirms an order of the district court granting a post-conviction petition for a writ of habeas corpus.  It's such a rare thing for state courts to grant habeas relief that it is worth noting here.

Colato v. State - the Court finds a Lozada violation based upon trial counsel's failure to file a notice of appeal.

Martin v. State - driving with studded snow tires is sufficient by itself to provide an arresting officer with probable cause to conduct a traffic stop.  The Court finds, however, that the district court erred by denying Martin's application for deferral of judgment and treatment pursuant to recently enacted NRS 484.37941.

Pelat v. State - the Court reverses a judgment for misdemeanor battery and remands the case for further proceedings based upon the admission of bad act testimony without a limiting instruction.

Stinchfield v. State - the district court prematurely released a jury by letting the jury go after returning verdicts on the guilt phase.  The jury should have determined the defendant's sentence.  The Court finds that the district court used the appropriate remedy by selecting a new jury for the penalty hearing.  The Court rejects the defendant's argument that he was entitled to a new trial.

 

 

Courthouse open

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The Regional Justice Center was placed on lockdown this morning because of a possible security threat to a judge.  Word on the street is that a man in a wheelchair entered with a gun and was upset over an eviction matter.  I saw numerous police cars leave the area at around 10:30 a.m. and people re-entered the building, so the lockdown is over.  No word on whether the suspect was found.

Update: So apparently it was a hoax.  That's not nice.

In Chambers v. McDaniel, the Ninth Circuit reverses a conviction for first degree murder based upon the Kazlyn instruction on first degree murder.  Roger Chambers was convicted of murdering Henry Chacon after an altercation between the two men.  Chacon was stabbed 17 times.  The opinion addresses federal exhaustion at length, including the issue of whether an original petition for extraordinary relief was sufficient to exhaust the issue in state court.  The Circuit finds that because the Nevada Supreme Court did not dismiss the original petition on procedural grounds, but instead stated that it had "consider the petition on file" and concluded that its intervention "by way of extraordinary relief" was not warranted at this time, because the Court stated in a footnoted that it had considered all of the documents filed and received in the matter, and because the Court "concluded that the relief requested is not warranted," that its ruling was a ruling on the merits and therefore the issue was exhausted.

As to the merits, the Circuit noted that it decided the same jury instruction in Polk v. Sandoval, and found that like Polk, Chambers' due process rights were violated by the instruction on premeditation.  The Circuit found that the evidence on deliberation was particularly weak and that "if anything, the evidence presented at trial seems to weigh in favor of second-degree murder committed while in the throes of a heated argument."

Congrats to Linda Bell of the Federal Public Defender's Office (not for long, as she'll take the bench as a judge in January - this is a nice swan song).

This Week

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Monday, December 8

United States Supreme Court order release day.  There were no new cert. grants.

United States Supreme Court hears argument in Peake v. Sanders (veterans' benefits & statutory notice) and Pacific Bell v. linkLine Communications (antitrust).

Tuesday, December 9

United States Supreme Court hears argument in Arizona v. Johnson (frisk of a passenger in a car w/ no reason to believe the passenger committed a crime) and Cone v. Bell (state's suppression of evidence of drug use in a capital case).

Wednesday, December 10

United States Supreme Court hears argument in Ashcroft v. Iqbal (suit against former AG & FBI director re: allegations of racial and religious discrimination) and AT&T v. Hulteen (Pregnancy Discrimination Act).

Nevada Supreme Court hears oral argument in Klein v. Rapoport, Tenneson v. Foster and Clark Co. School Dist. v. Virtual Education Software

CLE - Ethics Seminar.  Federal Public Defender's Office at noon.

Thursday, December 11

Nevada Supreme Court opinion release day.

State Bar CLE on Ethics and Practice Management

Friday, December 12

NACJ Holiday Party at Tom Pitaro's house.

In Sechrest v. Ignacio, the Ninth Circuit Court of Appeals reverses death sentences based upon a 1983 conviction for two murder convictions in Washoe County.  The 41 page opinion addresses procedural default issues, law of the case, an alleged Miranda violation, and several penalty phase issues.  The Court holds that the prosecutor's repeated misstatements regarding the likelihood of Sechrest's release from prison by parole were he to be sentenced to life without the possibility of parole violated his due process right to a fair trial, and that the violation had a substantial and injurious effect on the jury's sentencing decision.  The prosecutor had made four statements indicating that Board of Pardon Commissioners could -- and likely would -- release Sechrest if the jury returned a verdict of less than death.  The Court found the misconduct to be prejudicial after noting that "a jury sitting in a capital case must be given a clear choice between the death penalty and a life sentence." 

The Court also found that while the prosecutor's misconduct alone justified its holding, testimony by a psychiatrist exacerbated the prejudicial effect of the prosecutor's remarks.  Defense counsel had retained a psychiatrist to evaluate Sechrest.  Although defense counsel decided not to call the witness, counsel gave a copy of the expert's report to the State.  The State then called the psychiatrist as a witness and elicited the fact that he had examined Sechrest at defense counsel's request.  The psychiatrist informed the jury of Sechrest's criminal history, stated that he had a callous disregard for human life, and was an incurable sociopath who, if released, would pose a danger to others, particularly to little girls.  The Ninth Circuit rejected the findings by the state district court and federal district court that the psychiatrist's testimony was cumulative and instead noted the significance of testimony presented by a mental health expert.

The Court next found that defense counsel was ineffective for three reasons.  First, defense counsel should not have allowed the prosecution to review the psychiatrist's confidential report on Sechrest's mental health.  Counsel had decided not to call the psychiatrist as a witness, but inexplicably disclosed the confidential and privileged report to the prosecution.  Without this report the prosecution would not have had access to this privileged information.  "Defense counsel had absolutely no obligation to disclose [the] confidential report to the prosecution."  Second, defense counsel should not have stipulated to the prosecutor calling the psychiatrist as a witness for the prosecution.  Further, the jury was told that the psychiatrist was hired by the defense.  The Court rejected defense counsel's explanation at an evidentiary hearing, in which he stated that he did not object because he believed the psychiatrist would provide helpful information about Sechrest's troubled background, as this was not a sound strategic decision.  The Court found the explanation to be implausible as defense counsel did not call the witness and did not pursue or argue any mitigating factors related to Sechrest's troubled background.  Third, defense counsel's preparation for Dr. Gerow's testimony fell far below an objective standard of reasonableness.  Defense counsel did not speak with the psychiatrist after agreeing to let him testify for the prosecution.  The lack of preparation was evidence from counsel's lackluster performance at trial.

Congratulations on the victory to Tiffany Murphy and Michael Pescetta of the Federal Public Defender's Office.

US Supreme Court grants cert. in 2 cases

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The United States Supreme Court granted certiorari in two new cases today.  The Court will hear the cases of al-Marri v. Pucciarelli and Gross v. FBL Financial Servicesal-Marri presents the issue of whether Congress, in passing the Authorization for Use of Military Force after September 11, authorized the indefinite military detention of a legal immigrant sezied on domestic soil whom the government alleged to have conspired with al Qaeda to carry out attacks against the United States.  Gross presents the issue of whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.  Scotusblog provides copies of the lower court opinions, petitions, oppositions, and briefs of amici curiae.

It's news to me as I don't remember any postings or requests for input from the public or bar, but on November 18, 2008, the Nevada Supreme Court entered an Order Amending Eighth Judicial District Court Rules 1.53, 1.61, 1.64, 1.65, 1.92, 1.93, 5.28 and 7.2.  The amendements are effective 30 days from the date of the order.

Rule 1.53 concerns court employee participation in employee organizations regarding terms and conditions of employment.

Rule 1.61 concerns assignment of business matters.

Rule 1.64 concerns assignment of criminal cases.

Rule 1.65 concerns assignment of and lack of peremptory challenges in constructive defect matters.

Rule 1.92 concerns actions for medical or dental malpractice.

Rule 1.93 concerns the process for the removal and discipline of a pro tempore judge pursuant to Short Trial Rule 3(c).

Rule 5.28 concerns withdrawal of an attorney in limited services ("unbundled services") contracts.

Rule 7.20 concerns the form of papers presented for filing, exhibits, documents, and legal citations.  Documents must now include counsel's fax number and e-mail address.  Exhibit numbers should be placed on an 8-1/2 x 11 inch sheet of white paper immediately preceding the exhibit for copies to be filed with the court clerk.  If a courtesy copy is delivered to chambers, all exhibits must be clearly divided by a tab. 

Oral argument calendar: Dec. 10

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47167 KLEIN VS. RAPOPORT
10:00 AM 30 min
Las Vegas Courtroom - 17th Floor
Southern Panel (Hardesty/Parraguirre/Douglas )

48559 TENNESON VS. FOSTER
10:30 AM 30 min
Las Vegas Courtroom - 17th Floor
Southern Panel (Hardesty/Parraguirre/Douglas )

50313 CLARK CO. SCHOOL DIST. VS. VIRTUAL EDUCATION SOFTWARE
11:30 AM 30 min
Las Vegas Courtroom - 17th Floor
Southern Panel (Hardesty/Parraguirre/Douglas )

Lt. Governor Krolicki indicted

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The Las Vegas Review Journal reports that a grand jury has indicted Nevada Lieutenent Governor Brian Krolicki with four felony charges: two counts of misappropriation and falsification of accounts by a public officer and two counts of misappropriation by a treasurer.  The Las Vegas Sun also reports on the indictment.

The United States Supreme Court issued one decision today.  In Hedgpeth v. Pulido, the Court issued a per curiam decision, with 3 justices dissenting as to the remand, in which it held that a conviction based on jury instructions containing more than one theory of guilt, where one theory is invalid, is to be judged under the harmless error standard.  The Ninth Circuit had found the error to be structural error.

"[A] reviewing court finding such error should ask whether the flaw in the instructions 'had a substantial and injurious effect or influence in determing the jury's verdict.'"

The Court's ruling is consistent with a recent opinion by the Nevada Supreme Court, Cortinas v. State, which addressed the same issue.

This Week

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Monday, December 1

The United States Supreme Court hears argument in Kansas v. Colorado (water rights) and 14 Penn Plaza LLC v. Pyett (wjehther collective bargaining agreements may require mandatory arbitration of civil rights claims).

The United States Supreme Court releases its order list.  Certiorari was not granted in any new cases.

The Nevada Supreme Court hears argument in V and S Railway v. White Pine County.

Tuesday, December 2

The United States Supreme Court hears argument in Entergy Corp. v. EPA (Clean Water Act) and Fitzgerald v. Barnstable School Committee (whether Title IX barred future constitutionally based gender discrimination claims against federally funded schools.

The United States Supreme Court may release one or more opinions.

The Nevada Supreme Court hears argument in Regency Towers v. Dist. Ct. and Rivera v. Philip Morris.

Wednesday, December 3

The United States Supreme Court hears argument in Philip Morris v. Williams (punitive damages and state procedural rule) and Haywood v. Drown (Supremacy Clause and jurisdiction over federal constitutional claims).

NACJ Board Meeting - noon at the Federal Public Defender's Office.

State Bar CLE - Internet for Lawyers - 9 am or 1:30 pm.

Thursday, December 4

Nevada Supreme Court opinion release day.

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