April 2010 Archives

Law Day

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The Nevada Supreme Court is hosting Nevada Law Day 2010 today at 10 a.m.  Details are available here.

Scotusblog provides the relevant docs:

Title: Schwarzenegger v. Entertainment Merchants Association
Docket: 08-1448
Issues: (1) Whether the First Amendment permit any limits on offensive content in violent video games sold to minors; and (2) whether a state regulation for displaying offensive, harmful images to children is invalid if it fails to satisfy the exacting "strict scrutiny" standard of review.

Title: Ortiz v. Jordan
Docket09-737
Issue: May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?

Title: Hogan v. Kaltag Tribal Council
Docket: 09-960
Issue: Whether the hundreds of Indian tribes throughout the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a nonmember and then to compel the State to give full faith and credit to the decrees entered in those proceedings.

Via Scotusblog:

In United States v. Stevens, the Court affirmed the lower court decision in an opinion by Chief Justice Roberts.  The vote was 8-1, with Justice Alito dissenting.  The Court strikes down as substantially overbroad the federal law making it a crime to depict animal cruelty in commercial expression.

In Jerman v. Carlisle, the Court  reverses and remands the lower court decision, with Justice Sotomayor writing for the majority.   On a 7-2 vote, the Court holds that in defending against a violation of the Fair Debt Collection Practices Act, one may not use the defense that it was simply an error or mistake.  The opinion is here.

In Perdue v. Kenny A., the Court reverses and remands the lower court.   Justice Alito writes for the Court. Justice Breyer dissents in part, joined by Justices Stevens, Ginsburg, and Sotomayor.  The Court rules that the calculation of an attorney's fee may be increased if the lawyer has provided a superior performance but only in "extraordinary circumstances."  The opinion is here.

In Conkright v. Frommert, the Court reverses and remands the lower court, in an opinion by Chief Justice Roberts.  The vote is 5-3, with Justice Sotomayor taking no part.  Justice Breyer dissents, joined by Justices Stevens and Ginsburg.   The Court rules that the federal district court should have deferred to the ERISA plan administrator's interpretation of the plan's terms.  The opinion is here.

Pardons Board Agenda Posted

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The Pardons Board meets on Tuesday, April 27th.  The agenda is available here.
In Posas v. Horton, the Nevada Supreme Court clarifies when a district court should give a jury instruction on a sudden-emergency in a car collission case.

Oral argument calendar: April 15

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In re Challenge to the Candidacy of Amber Lynn Candelaria,
Docket No. 55714
Las Vegas - 9:30 a.m. - Full court (Justice Gibbons has voluntarily recused himself)

Amber Lynn Candelaria is appealing from a district court order to remove her name from the primary election ballot as a candidate for justice of the peace in Las Vegas Township.  NRS 4.010(2)(a) requires candidates for justice of the peace in areas with higher populations to be licensed attorneys for at least five years before election or appointment. Candelaria was admitted to the Nevada bar in October 2006.  In January 2010, Candelaria filed her declaration of candidacy for justice of the peace.  Bernard Brownislaw Zadrowski, who is running for the same justice court seat, challenged Candelaria's eligibility through the Clark County District Attorney's Office.  The district court concluded that Candelaria did not meet the candidacy requirements.  ISSUES:  Is NRS 4.010(2)(a) ambiguous?   Is NRS 4.010(2)(a) constitutional? 

Briefing is available at the Court's website.  In a footnote to the scheduling order the Court asks DA David Roger to inform the Court by 5 p.m. on 4/14/2010 an affidavit or declaration under oath specifying all actual times required for the preparation, printing and circulation of ballots relating to this matter.

Oral argument calendar: April 14

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Vega (Bernardo) v. State of Nevada,
Docket No. 53752
Las Vegas
- 11:30 a.m. - Justices Hardesty, Douglas, and Pickering

Bernardo Vega is appealing his convictions by a jury of three counts of sexual assault with a minor under the age of fourteen and two counts of open and gross lewdness.  Vega's convictions arose out of several incidences involving his step-daughter in Clark County.  ISSUES:  Did sufficient evidence support Vega's convictions on three counts of sexual assault with a minor under the age of fourteen?  Did the district court abuse its discretion by admitting expert testimony in violation of the Confrontation Clause?  Did the district court abuse its discretion by admitting testimony regarding the victim's attempted suicides? 

Cobb (Delbert) v. State of Nevada,
Docket No. 50346
Las Vegas
- 10:30 a.m. - Justices Hardesty, Douglas, and Pickering

This case arises out of a series of shootings that occurred in Clark County between November 4 and December 16, 1999.  Cobb pleaded guilty to attempted murder for two of the incidents.  Cobb was found not guilty of a murder that occurred on December 16, 1999, however, the jury convicted him of attempted murder and first-degree murder for the shooting of a father (who later died) and son on November 13, 1999.  Cobb was also convicted of conspiracy.  Cobb now appeals.  ISSUES:  Did the district court abuse its discretion in admitting hearsay testimony, evidence of prior bad acts, and the preliminary hearing testimony of an unavailable witness?  Did the district court abuse its discretion in refusing to sever the various charges for trial?  Did the State violate Batson v. Kentucky when it used peremptory challenges to strike two minority jurors?  Is Cobb entitled to a new trial because the jury was not selected from a fair cross-section of the community? 

Oral argument calendar: April 6

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Strickland (Linda) v. Waymire (Edward)

           Las Vegas - 10:00 a.m. - Full Court

Personhood Nevada v. Bristol (Emmily)

           Las Vegas - 11:30. a.m. - Full Court

Strickland v. Waymire,

Docket Nos. 55290/55551

Las Vegas - 10:00 a.m. - Full Court

This appeal challenges a district court order granting summary judgment in a case involving the interpretation and application of Article 2, Section 9 of the Nevada Constitution.  The case began when three residents of Boulder City, Nevada--Edward Waymire, Christine Milburn, and Robert Draney (collectively, Waymire)--submitted petitions to the Secretary of State seeking to recall Linda Strickland and Travis Chandler from the Boulder City Council. The Secretary of State deemed the petitions insufficient under Article 2, Section 9 of the Nevada Constitution because they did not contain signatures from at least 25 percent of the voters who actually voted in the election in which Strickland and Chandler were elected.  Waymire filed a complaint against the Secretary of State and the Clark County Registrar of Voters seeking a declaration that Article 2, Section 9 is unconstitutional on equal protection grounds, as interpreted by the Secretary of State, and asking the district court to order that the Secretary of State validate the signatures of all registered voters who signed the recall petitions.  The district court granted summary judgment in Waymire's favor, relying in part on S.B. 156, which became effective while the matter was pending.  S.B. 156 amended NRS 306.040 to permit recall petitions to be signed by "any registered voter" in the municipality represented by the public officer.  Strickland moved for a stay in the district court, which was denied.  This court granted appellant Linda Strickland's request for a stay pending appeal.  On appeal, appellants contend that the district court erred by granting summary judgment because Article 2, Section 9 permits recall petition signatures from only those registered voters who "actually voted" in the election in which the challenged public official was elected.  They also assert that Article 2, Section 9 properly limits who may sign a recall petition and that it comports with constitutional equal protection principles.  According to Travis Chandler, S.B. 156 was unconstitutionally enacted because it unilaterally, without giving Nevada voters the final say, interprets a disputed constitutional provision through statutory amendment.  ISSUE:  Did the district court err when it granted summary judgment in favor of Waymire?  

Personhood Nevada v. Bristol (Emmily),

Docket No. 55429

Las Vegas - 11:30. a.m. - Full Court

This appeal involves whether the Personhood Nevada initiative should appear on the November 2010 general election ballot.  After Personhood Nevada filed a ballot initiative with the Secretary of State, Emmily Bristol, Mindy Hsu, and Dr. William Ramos filed a complaint in the First Judicial District Court, seeking declaratory and injunctive relief to prevent Personhood Nevada's initiative from being placed on the ballot for the November 2010 general election.  The district court determined that the ballot initiative failed to comply with the single subject rule set forth in NRS 295.009 and contained a misleading and insufficient description of effect, and thus the court enjoined the Secretary of State from placing it on the ballot.  In its ruling, the district court found that the initiative is complex and broad; the language is overly general and vague; the initiative fails to inform voters of Personhood Nevada's purported purpose for the bill, namely to affect abortion and the rights of fertilized eggs, embryos, and fetuses; and the initiative fails to inform voters of its material consequences. Personhood Nevada appealed.  ISSUES:  Did the district court err when it determined that the initiative violated the single-subject rule and contained an inadequate description of effect and thus enjoined the Secretary of State from placing Personhood Nevada's initiative on the ballot?

Oral argument calendar: April 5

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Sherman (Donald) v. State of Nevada (Death Penalty),

Docket No. 50653

Las Vegas - 10:00 a.m. - Full Court

In this case, Donald Sherman is appealing the denial of his second post-conviction petition for a writ of habeas corpus.  Sherman was convicted of first-degree murder, burglary, and robbery for beating his estranged girlfriend's father to death with a hammer in Clark County.   The Supreme Court affirmed Sherman's conviction and death sentence on direct appeal.  Sherman then filed his first post-conviction petition for a writ of habeas corpus in district court, as well as a supplemental petition.  Both were denied by the district court and the Supreme Court upheld the decision.  Sherman then filed this second post-conviction petition, which the district court also denied based on procedural rules.  The denial of that petition is the subject of this appeal.  ISSUES: Did the district court err in determining that Sherman's claim under McConnell v. State was procedurally barred because Sherman failed to demonstrate prejudice? Did Sherman's claim pursuant to Brady v. Maryland provide good cause sufficient to overcome the procedural default? 

Hoffman (Stuart) v. Spring Valley Hospital,

Docket No. 52813

Las Vegas - 11:30 a.m. - Full Court

This appeal arises from a dispute between Spring Valley Hospital and Medical Center and Dr. Stuart Hoffman.  Spring Valley suspended Dr. Hoffman's medical privileges and submitted a report about Hoffman to the National Practitioner Data Bank pursuant to the Health Care Quality Improvement Act.  Hoffman disputed the report and filed suit in district court against Spring Valley alleging breach of contract, breach of implied covenant of good faith and fair dealing, rescission, defamation per se, and declaratory relief.  Spring Valley filed an answer to Hoffman's complaint and moved for summary judgment, which the district court granted, concluding that federal law preempted Hoffman's state law claims.  ISSUES:  Did the district court's order granting summary judgment operate as a dismissal under NRCP 12(b)(5)?  Did the district court err by dismissing Hoffman's claim on the ground that the Health Care Quality Improvement Act preempted his state law claims?   

Harris (Linda) v. Asayama (Miyoko),

Docket No. 51388

Las Vegas - 1:30 p.m. - Full Court

This appeal involves procedural issues of first impression regarding the dismissal of a tort action stemming from a motor vehicle accident for failing to timely hold a case conference within NRCP 16.1(e)(1)'s 180-day period.  Linda Marie Harris was injured when her car collided with a vehicle driven by Miyoko Asayama.  Harris filed a district court complaint, which she served on Asayama on March 2, 2007.  Harris allegedly gave Asayama an open-ended extension of time to answer and Asayama filed an answer on June 14, 2007.  On August 6, 2007, Harris filed a request for exemption from arbitration, which the Alternative Dispute Resolution Commissioner granted on August 24, 2007.  Harris subsequently held an early case conference on December 26, 2007, after noticing the conference two days earlier, on December 24.  Asayama did not attend the December 26 conference, however, as she had informed Harris on December 24 that the notice of the conference was inadequate and that her counsel was scheduled to be off on December 26.  Harris subsequently filed an individual case conference report on January 22, 2008.  In the meantime, Asayama filed a motion to dismiss the lawsuit because Harris failed to hold an NRCP 16.1(b)(1) case conference within the 180-day period set forth in NRCP 16.1(e)(1). The district court granted the motion to dismiss because a case conference was not held in a timely manner and there were no compelling and extraordinary circumstances warranting an extension.  ISSUES:  Was Harris's complaint deemed to be in the court-annexed arbitration program from the moment of filing until it was exempted from the program?  When does NRCP 16.1(e)(1)'s 180-day period for holding a case conference start to run for cases that are not eligible for automatic exemption from the court-annexed arbitration program?  Did the district court abuse its discretion by granting Asayama's motion to dismiss the complaint, without prejudice, under NRCP 16.1(e)(1) for failing to timely hold a case conference? 

Moon (Joon) v. McDonald Carano Wilson LLP,

Docket No. 51124

Las Vegas - 2:00 p.m. - Full Court

This appeal involves procedural issues of first impression regarding the dismissal of a professional negligence and breach of contract lawsuit against a Nevada law firm for failing to timely file a case conference report within the 240-day period set forth in NRCP 16.1(e)(2).  On November 3, 2006, Joon S. Moon and Patterson Laboratories, Inc., (collectively, Moon) filed a district court complaint against McDonald Carano & Wilson, LLP, and its attorneys William A.S. McGrath and John J. Laxague (collectively, MCW). Moon served the complaint on December 29, 2006, and MCW filed an answer in January 2007.  On March 29, 2007, the arbitration commissioner exempted the case from arbitration.  On November 6, 2007, MCW filed a motion to dismiss under NRCP 16.1(e)(1) and (2), claiming that Moon failed to hold a case conference within the applicable 180-day period and/or file a joint case conference report within the applicable 240-day period.  Moon opposed the motion to dismiss, claiming that an early case conference was held on April 18, 2007, and that the case conference report was not due until November 26, 2007.  Moon filed his case conference report on November 21, 2007.  The district court entered an order dismissing the case after determining that the case was never submitted, ordered, accepted, or remanded into the court-annexed arbitration program and that there was no automatic suspension of the Nevada Rules of Civil Procedure.  ISSUES:  Was Moon's complaint deemed to be in the court-annexed arbitration program from the moment of filing until it was exempted from the program? When does NRCP 16.1(e)(2)'s 240-day period for filing a case conference report start to run for cases that are not eligible for automatic exemption from the court-annexed arbitration program? Did the district court abuse its discretion in dismissing Moon's complaint, without prejudice, under NRCP 16.1(e)(2) for failing to timely hold a case conference? Did Moon fail to hold a case conference so that NRCP 16.1(e)(1) provides an alternative basis for affirming the district court's order?