JoNell: January 2009 Archives

The Administrative Office of the Courts has released its Annual Report of the Nevada Judiciary.  The 63 page report contains all kinds of interesting information.  For example,

The two judges of the Seventh Judicial District have an average case load of 367 cases per district court judge, while the 37 judges of the Eighth Judicial District have an average case load of 2,458 cases per district court judge.

The Nevada Supreme Court disposed of 2,193 cases in 2007 and 1,959 cases in 2008.  Sixty-five percent of the Court's cases are from the Eighth Judicial District Court.

The Searchlight Justice Court received of 73 criminal cases last year, the Bunkerville Justice Court received of 23 criminal cases, while the Las Vegas Justice Court received 53,193 new criminal cases (or 5,3193 per JP).

In Stromberg v. District Court, the Nevada Supreme Court, in an en banc opinion authored by Justice Cherry, grants an original petition for a writ of mandamus which challenged a district court's decision to deny the defendant's request to apply for treatment pursuant to NRS 484.37941.  The Court reaffirms its recent holding in Picetti v. State that the statute allows an offender entering a plea of guilty on or after the statute's effective date to apply for treatment.  The Court also hilds that the statute does not violate the separation-of-powers doctrine by giving district courts powers that they prosecutor claims to be reserved to the prosecutors. 

In Savage v. District Court, the Court, in an en banc opinion of two consolidated cases, grants petitions for writs of mandamus challenging district court refusals to consider applications for treatment pursuant to NRS 484.37941.  The statute does not require counties to create treatment programs, but does require district courts to oversee the procedures and conditions of probation imposed upon the offender at the time the district court's accepts the offender's application for treatment.  District court's have jurisdiction to order the Department of Parole and Probation to supervise offenders whose applications are granted under the statute.  Finally, the court finds that the statute does not violate the separation-of-powers doctrine.

The Court also issued opinions in several civil cases:

Stalk v. Mushkin - statutes of limitations on claims of intentional interference with prospective business advantage, intentional interference with contractual relations, and breach of fiduciary duty arising from an attorney-client relationship.

State, Dep't of Motor Vehicles v. Terracin -  revocation of driver's license based upon a conviction for 1st time DUI that is not really a 1st time DUI.

Attorney General v. District Court (Philip Morris) - issues concerning the adjustment of Nevada's annual payment from tobacco companies based on Nevada's enforcement of its qualifying statute must be arbitrated.

Garcia v. Scolari's Food & Drug - occupational disease & administrative proceedings & good cause. 


Monday, February 2, 2009

10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

It appears that this is a writ proceeding concerning a claim of double jeopardy premised upon a mistrial that was declared by the district court during closing arguments.

10:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

Tuesday, February 3, 2009

10:00 AM 60 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

11:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

11:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

The United States Supreme Court has granted certiorari to the Ninth Circuit in a federal habeas corpus case concerning a Nevada conviction.  The questions presented in the State's petition are:

1.  What is the standard of review for a federal habeas court for analyzing a sufficiency-of-the evidence claim under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)?

2.  Does analysis of a sufficiency-of-the-evidence claim pursuant to Jackson v. Virginia, 443 US 307, 318-19 (1979), under 28 USC 2254(d)(1) permit a federal habeas court to expland the record or consider non-record evidence to determine the reliability of testimony and evidence given at trial?

The Ninth Circuit's opinion  and the brief in opposition are available.  Paul Turner at the Federal Public Defender's Office represents Troy Brown.  The Ninth Circuit affirmed a ruling by Judge Pro that there was insufficient evidence to support a sexual assault conviction against Troy Brown for murder.  False DNA testimony was provided to the jury and the State conceded that there was insufficient evidence to sustain the conviction without the false testimony.  At issue is a statistical analysis that was submitted in the federal court proceedings that was submitted as a supplement to a claim raised in state court.

The Court also granted certiorari in Mohawk Industries v. Carpenter (whether a party may immediately appeal a discovery order to disclose materials said to be covered by the attorney-client privilege) and Maryland v. Shatzer (whether Edwards v. Arizona, which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to an interrogation that takes place nearly three years later).  Scotusblog provides links to the lower court opinions, petitions and briefs in opposition in those cases. 

US Supreme Court issues opinions

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Apparently there's a lot of consensus at the United States Supreme Court lately, as today's five opinions are all unanimous as to the judgment and there's only one concurring opinion in the group.

Van de Camp v. Goldstein - Prosecutors are absolutely immune from liability in section 1983 civil rights suits brought against prosecutorial actions that are "intimately associated with the judicial phase of the criminal process," and this includes a District Attorney's supervision, training and information-system management claims associated with providing discovery and impeachment information to a defendant in a criminal case.   Absolute immunicty may not apply when a prosecutor is not acting as "an officer of the court," but is instead engaging in investigative or administrative tasks, but discovery issues are directly connected with a trial's conduct and therefore absolute immunity applies.  Justice Breyer authored the opinion.

 Arizona v. Johnson - Terry v. Ohio -- which authorizes "stop and frisk" searches if the temporary detention is lawful (the officer reasonably suspects that the person apprehended is committing or has committed a crime) and the officer reasonably suspects that the person is armed and dangerous -- applies to passengers during a traffic stop.  Based on the "same weighty interest in officer safety," a passenger may be frisked for weapons if an officer reasonably concludes that the passenger might be armed and dangerous.  Justice Ginsburg authored the opinion.

Crawford v. Metropolitan Government of Nashville - The antiretaliation provisions of Title VII of the Civil Rights Act extend to an employee who speaks out about discrimination in response to answering questions during an employer's internal investgation, not just claims made on her own initiative.  Justice Souter authored the majority opinion.  Justice Alito authored a concurring opinion that was joined by Justice Thomas.

Kennedy v. Plan Administrators for Dupont Savings - ERISA, divorce, assignment and alienation.

US v. Eurodif - uranium and anti-dumping 

US Supreme Court issues 5 opinions

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Pearson v. Callahan - qualified immunity for police officers.  Unanimous opinion authored by Justice Alito.  The Court overrules the procedure for determining whether officers are immune from a civil rights action that was established in Saucier v. Katz.  It explains the standards following stare decisis vs. revisiting precedent.  It also finds that the Saucier procedure is often appropriate, but is no longer mandatory in all cases.  The Court also finds that the search at issue, which involved "consent once removed" and an informant, was not cleraly established as unconstitutional at the time of entry, so the officers are entitled to qualified immunity.

Fitzgerald v. Barnstable School Committee - Title IX action re: gender discrimination.  Unanimous opinion authored by Justice Alito.  The Court holds that Title IX does not preclude a 1983 civil rights action alleging unconstitutional gender discrimination in schools.

Locke v. Karass - public sector unions and non-member agency fees for litigation expenses.  Justice Breyer authored the majority opinion.  Justice Alito authored a concurring opinion which was joined by Chief Justice and Justice Scalia.  The Court holds that the First Amendment permits a local union to charge nonmembers for national litigation expenses in certain situations.

Waddington v. Sarausad - habeas relief and ambiguous jury instruction.  Justice Thomas authored the majority opinion.  Justice Souter authored a dissenting opinion which was joined by Justices Stevens and Ginsburg.  The Court holds that the Ninth Circuit erred in granting habeas relief because a Washington court's decision that a jury instruction defining accomplice liability was not ambiguous was not an objectively unreasonable decision.  The Court also finds that the Ninth Circuit erred in concluding that there was a reasonable likelihood that the prosecutor's closing argument caused the jury to apply the instruction in a way that relieved the State of its burden to prove every element beyond a reasonable doubt. 

Spears v. United States - Per curiam opinion concerning the federal sentencing guidelines and the crack/powder cocaine disparity.


On Friday the United States Supreme Court granted certiorari in six cases, three of which involve criminal law related issues:

Bobby v. Bies:  Whether the holding of a state post-conviction hearing to determine the mental capacity of a capital defendant whose death sentence was affirmed before Atkins v. Virginia (2002), which barred the execution of mentally retarded defendants, violates the Double Jeopardy clause where the issue of mental capacity has already been addressed at trial and on direct appeal.

Safford United School District #1 v. Redding: Whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing prescription strength ibuprofen on campus in violation of school policy.

Nijhawan v. Mukasey:  Whether the petitioner's conviction for mail, bank and wire fraud qualified as an aggravated felony under the immigration laws, the penalty for which is lifetime banishment from the country.

The other three cases are the following:

Forest Grove School District, Petitioner v. T. A.: Whether parents of a student who has never previously received special education services from a school district may be eligible under the Individuals with Disabilities Education Act for reimbursement of private school tuition.

Cuomo v. The Clearing House Ass'n, L.L.C.,:  Whether 12 USC § 484 and 12 CFR § 7.4000 prohibit measures taken by a state prosecutor to enforce state fair lending law against national banks by subjecting those entities to "visitorial powers."

U.S. ex rel. Eisenstein v. City of New York: Whether the 30-day time limit in Federal Rule of Appellate Procedure 4(a)(1)(A) for filing a notice of appeal, or the 60-day time limit in Rule 4(a)(1)(B), applies to a qui tam action under the False Claims Act.

Scotusblog provides links to the lower court opinions, petitions, oppositions, replies and amicus briefs.  Briefing will be expedited so the cases may be ruled upon in this term.

Nevada Governor Jim Gibbons is proposing what I consider to be the most outrageous, deficient and insulting budget I can imagine.  The 2870 page document is available here.  Many of his proposed cuts will have a direct impact upon criminal justice issues - both in the short and long terms.

The Governor proposes that state employees take the brunt of the budget cuts: by a 6% reduction in pay, elimination of merit increases and longevity pay.  State employees would also pay more for insurance benefits.  The Governor also proposes a substantial reallocation of some property tax funds from Washoe and Clark County.  If those are approved, additional cuts in county budgets could also have a significant impact on the courts, public defenders, the detention center, mental health treatment, and other programs paid for by the counties.

The Nevada Supreme Court proposed budget is at page 255 of the PDF (Courts - 1 in the document).  The proposed budget shows a drastic cut in the budge for Information Services.  The amount in 2007-08 was $628,178.  The Court's request is for $160,034, and the Governor proposes $177,023, for 2009-10.  The Court requested $20,401 for training of legal staff, the Governor proposes $10,300.  The Court requests $113,333 for funding in order to complete a case management system, which the Governor proposes to fund as a re-appropriation from funds not previously spent.  The Governor's plan to suspend merit increases results $19,616 less for 2009-10 and $55,468 less ofr 2010-11.  The longevity payments suspension would mean $18,800 less in 2009-10 and $21,150 less for 2010-11.  Cuts in the insurance subsidy to current and retirmed employees would result in a reduction of $178,850 for 2009-10 and $226,270 for 2010-11.

The Governor does not propose cuts in district court judge salaries.  Their budget is at page 264 of the PDF (Court - 10 in the document).  He proposes a reduction in the amount allocated to senior judges of $147,456 below that requested by the courts and approximately $300,000 less than the amount spent this year on senior judges.  With a whole new batch of senior judges adding to the existing roles, it will be interesting to see how this plays out.

The law school had a proposed budget of $14,365,171, but the Governor recommends a budget of $12,688,982 for 2009-10.  The budget is at page 783 of the PDF (NSHE - 89 in the document).

The State Public Defender's budget is at page 1404 of the PDF (DHHS Director's Ofc - 43 in the document).  The current budget is $2,665,016.  The Governor proposes $2,666,269 for 2009-10 and $2,700,503 for 2010-11.  These small increases reflect that the funding needed for indigent defense, especially in the rural counties, will not increase in any meaningful manner, as mandated by the Indigent Defense Commission and its performance standards.

The Governor proposes the closure of the Nevada State Prison on July 1, 2009 and notes that this will eliminate 10 medical staff positions and result in a budget reduction of approximately $1,000,000.  This is at page 2100 of the PDF (Corrections - 13).  It does not appear that additional medical positions will be added at other prisons which will take the inmates from NSP - despite the existing lawsuit and enormous concerns over prison medical care.  He proposes adding approximately 150 inmates to Ely State Prison, but allocates no new funds for them.  Instead, he claims the cost per inmate will drop from $68.25 per day to $60.75 per day.  This is nuts.  Other prisons reflect similar increases in inmate population, decreases in cost per inmate per day, and no explanation as to how this is possible other than a much lower guard per inmate ratio - which is a significant issue of public safety at many of the facilities. 

While substantial cuts are being imposed, the Governor proposes increases in the budgets of other departments.  Some of the increases are beyond puzzling.  For example, at page 144 of the PDF (Elected - 105 in the document), is the proposed budget for the Council for Prosecuting Attorneys.  The Council develops training for prosecutors, coordinates the development of policies for conducting criminal and civil litigation and coordinates proposed legislation.  Most of the funding comes from court assessments, but there is no reason that this funding could not be sent to more critical functions of state government.  The 2007-08 budget was $221,066.  The agency requested $255,200 for 2009-10, but the Governor, despite cutting many other areas, proposes a budget of $269,580.  Likewise, the Governor recommends $264,445 for 2010-11, nearly $30,000 more than the agency's proposed budge of $235,597.  I'm not opposed to DA training, but this is a function that can easily be performed in-house within the DA's existing budget during times of financial crisis.

The Nevada Supreme Court has issued a stay of discovery ordered by Judge Mosley in the capital case of State v. Curtis Bonilla.  I don't remember how to download a pdf and the order is not published on the Court's website, so here's the text:

"This is an original petition for a writ of mandamus or prohibition challenging a district court order granting the State's motion for production of discovery pursuant to NRS 174.245, including materials to be presented during the penalty phase in a death penalty case.  Petitioner requests a stay of the proceedings and requests this court to prohibit the district court from ordering pretrial discovery of petitioner's penalty phase evidence before a finding of guilt is returned.  Cause appearing, we grant a stay of the district court's order to the extent that it compels discovery of petitioner's penalty phase evidence before the jury returns a verdict on the guilt phase of the trial.

Further, we have reviewed the petition, and it appears that petitioner has set forth issues of arguable merit and may have no plain, speedy and adequate remedy in the ordinary course of the law.  Accordingly, the State, on behalf of respondents, shall have 10 days from the date of this order within which to file an answer, including authorities, against issuance of the requested writ." 


Interesting unpublished decisions

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The Nevada Supreme Court has issued several unpublished orders resolving appeals in criminal cases.  Some are of interest, though they may not be cited as precedent under SCR 123.

In Dealba v. State, the Court reverses a judgment of conviction of one count each of robbery with use, attempted murder with use, and possession of a firearm by an ex-felon.  The district court allowed a detective to testify about several statements made by Dealba's co-defendant following the co-defendant's arrest.  The trials of the two defendants were not severed.  The co-defendant did not testify, but the district court did order that Dealba's name be replaced with the word "individual" in the interrogation transcript of the co-defendant.  No limiting instruction was given.  The Court finds that it was error to fail to give the jury a limiting instruction under Richardson v. Marsh, 481 U.S. 200 (1987).  The Court rejects Dealba's argument that the use of the word "individual" as a redaction was error.  The Court finds that the error was not harmless and notes that neither of the two victims were able to identify Dealba.

In Hodson v. State, the Court affirms a judgment and rejects the defendant's First Amendment arguments concerning his conviction for one count of making a bomb threat.

In Spinks v. State, the Court affirms an order of restitution for $16,040.49, on a reckless driving and DUI conviction, based upon the victim's medical expenses relating to a pre-existing heard condition which the victim argued was exacerbated by the car accident involved in the DUI incident.  No medical or expert testimony was presented to establish causation.  The Court upheld the district court's retitution order based upon the testimony of the victim and receipts for the expenses.  This one is pretty interest and fairly controversial.  I'm surprised it's an unpublished disposition. 

In Croft v. State, the Court affirms an order of the district court denying a post-conviction petition for a writ of habeas corpus, but also finds that the district court was wrong to find that the petition was a "fugitive document" because the defendant filed the petition in proper person and his trial counsel had not filed a motion to withdraw.  "A post-conviction petition for a writ of habeas corpus is a collateral proceeding from the underlying criminal conviction, and thus, the fact that trial counsel had not withdrawn from the case when appellant filed his petition had no bearing upon the propriety of the filing of the petition in proper person."  This is a basic proposition, but the fact that it had to be explained to a seasoned judge should have warranted publication of the order as an opinion so as to provide guidance to the district courts.

Downs v. Napolitano - an inmate non-lawyer may not not receive a contingency fee for preparing a medical malpractice action.  The Court will not recognize an action for breach of contract based upon an act which violates state law. 

In the news

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I stopped doing "In the news" awhile back as it was too time consuming, but there's too much going on today to let it go.  Check out the following:

Las Vegas Review Journal publisher Sherman Frederick claims on his blog, The Complete Las Vegan (both an arrogant and a confusing name in my book) that a couple of the Nevada Supreme Court justices are feuding over the suggestion of a voluntary pay freeze:  Supreme Court brawl over pay freeze?

Yesterday Frederick's blog criticized Judge Hardcastle based upon her caseload:  Good judges, bad judges.  Be sure to check out the comments.

Ex-Judge Halverson's husband was sentenced to 3 to 10 years on his conviction for battery with a deadly weapon resulting in substantial bodily harm.



This morning the United States Supreme Court issued opinions in two criminal cases.

In Oregon v. Ice, the Court issues a 5-4 decision in which it holds that there is no constitutional violation based upon a judge's imposition of consecutive sentences based upon facts that were not found by the jury.  An Oregon statute provides that sentences for multiple crimes are to be served concurrently unless the trial judge finds that the crimes did not occur as part of the same course of conduct or resulted in separate harms.  The majority opinion is authored by Justice Ginsburg and joined by Justices Alito, Breyer, Kennedy and Stevens. Justice Scalia authored a dissenting opinion which was joined by Chief Justice Roberts and Justices Souter and Thomas. 

In Herring v. U.S., the Court issues a 5-4 decision in which it holds that evidence of a crime is not subject to the Exclusionary Rule if police obtained it while relying on erroneous information supplied by another police officer, unless the situation involves a systemic error or reckless disregard of constitutional requirements.  The majority opinion is authored by Chief Justice Roberts and joined by Justices Alito, Kennedy, Scalia and Thomas.  Justice Ginsburg authored a dissenting opinion which was joined by Justices Breyer, Souter and Stevens.  Justice Breyer filed another dissenting opinion that was joined by Justice Souter. 

Oral argument audio files are available for arguments held before the Nevada Supreme Court on January 6 and 7.  Criminal cases include:

Fields v. State

Rico-Arreolla v. State

Smith v. State

Funderburk v. State

Chavez v. State

Noguera v. State

In an unpublished decision of December 31, the Nevada Supreme Court granted a new penalty hearing in the capital case of Jones v. State.  The Court found ineffective assistance of trial counsel based upon failure to investigate mitigating evidence and failure to prepare for the penalty phase.  The Court also found extensive prosecutorial misconduct in the closing argument on the penalty phase.  The Court acknowledged that it relied upon an erroneous standard of review on direct appeal when it affirmed Jones' death sentence despite a finding of prosecutorial misconduct because of "overwhelming evidence of guilt."  "Rather than focusing on the evidence of guilt, when reviewing prosecutorial misconduct committed during a penalty hearing, the focus of the prejudice inquiry should be on the penalty proceedings and whether the misconduct 'so infected the proceedings with unfairness as to make the results a denial of due process."  Someone puzzling is the fact that the opinion with the erroneous standard was published, but the Court's acknowledgement of its use of incorrect standard is unpublished, so the erroneous standard appears to stand as valid despite its obvious flaw.  The Court affirms Jones' judgment of conviction as to issues raised concerning the guilt phase.

Disclosure: I am counsel for Jones.

This morning the United States Supreme Court issued opinions in Chambers v. United States and Jimenez v. Quarterman. 

In Chambers, the Court concludes that a state court offense of failure to report for penal confinement was not a "violent felony" under the Armed Career Criminal Act.  The federal statute defines "violent felony" in part as a crime that "involves conduct that presents a serious potential risk of physical injury to another."  The Court holds that it is the generic crime that counts, not how the crime was committed on a particular occasion.  Under this categorical approach, failure to report for prison is not a violent felony.  The opinion is authored by Justice Breyer.  Justice Alito filed an opinion concurring in the judgment which was joined by Justice Thomas.

In Jimenez, the Court addresses AEDPA's 1 year limitation under 28 USC 2244(d) in a case where a defendant is granted an out-of-time appeal by a state court.  The Court holds that where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state habeas proceedings, but before the defendant has first sought federal habeas review, his judgment is not "final" for purposes of 28 USC 2244(d)(1)(A) until the conclusion of the out-of-time direct appeal or the expiration of the time for seeking certiorari review of that appeal.  Once a state court reopens direct review of a conviction, the conviction is no longer final for 2244(d)(1)(A) purposes.  Justice Thomas authored the unanimous opinion.

2008 Nevada Supreme Court Statistics

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These are not official, they do not include unpublished dispositions, and they may not be entirely correct, but here they are:

Number of published opinions: 103

Criminal: 35

Civil: 57

Family: 1

Bar: 1

Judicial Discipline: 1

Certified question: 2

Election: 6


Affirmed or Petition Denied: 42

Reversed or Petition Granted: 38

Affirmed in part, reversed in part: 22

Other: 2


Criminal Cases:

Favorable to Defense: 13

Favorable to Prosecution: 16

Mixed: 5


Death Penalty: 4

Death sentences reversed: 1

Death sentences affirmed: 3


En Banc: 64


Gibbons, Maupin, Hardesty, Parraguirre majority/Cherry, Douglas, Saitta concur & dissent - 1

Gibbons, Maupin, Hardesty, Parraguirre, Douglas, Saitta majority/Cherry concurs - 1

Gibbons, Maupin, Hardesty, Parraguirre, Douglas, Saitta majority/Cherry concurs & dissents - 2

Gibbons, Maupin, Hardesty, Parraguirre, Cherry, Saitta majority/Douglas concurs - 1

Gibbons, Maupin, Hardesty, Parraguirre, Cherry, Saitta majority/Douglas dissents - 1

Gibbons, Maupin, Douglas, Cherry majority/Hardesty, Parraguirre, Saitta concur - 1

Gibbons, Douglas, Cherry, Saitta majority/Hardesty, Maupin, Parraguirre concur & dissent - 1

Gibbons, Hardesty, Parraguirre, Douglas, Cherry, Saitta majority/Maupin concurs & dissents - 1

Gibbons, Hardesty, Parraguirre, Douglas, Saitta majority/Maupin, Cherry concur & dissent - 1

Gibbons, Hardesty, Douglas, Cherry majority/Maupin, Parraguirre concur & dissent -1

Gibbons, Maupin, Parraguirre, Douglas, Cherry, Saitta majority/Hardesty dissents - 1

Maupin, Hardesty, Douglas, Cherry, Saitta majority/Gibbons, Parraguirre dissent - 1

Maupin, Hardestym Parraguirre, Douglas majority/Gibbons, Cherry dissent - 1

Maupin, Hardesty, Parraguirre, Saitta majority/Gibbons, Douglas, Cherry concur & dissent - 1



Hardesty, Parraguirre, Douglas - 24


Douglas, Parraguirre majority/Hardesty concurs & dissents - 1


Maupin, Cherry, Saitta - 6

Gibbons, Maupin, Cherry - 1

Gibbons, Maupin, Saitta - 1

Gibbons, Cherry, Saitta - 2


District court judge records:

Adair - affirmed - 3, affirmed in reversed - 3

Adams - reversed -2

Bell, Stew - affirmed in part & reversed in part - 1, reversed - 4

Bonaventure - reversed - 2

Breen - affirmed - 2, affirmed in part & reversed in part - 1, reversed - 1

Cherry - affirmed - 1, affirmed in part & reversed in part - 1

Cory - reversed - 2

Denton - reversed - 2

Dobrescu - affirmed - 1

Earl - affirmed - 1

Elliott - affirmed - 1

Estes - affirmed - 2

Flanagan - affirmed - 1

Gamble - affirmed in part & reversed in part - 1

Glass - affirmed in part & reversed in part - 3, reversed - 1

Gonzales - affirmed - 1, affirmed in part & reversed in part - 3, reversed - 1

Griffin - affirmed - 2, reversed - 1

Hardcastle - affirmed - 1, affirmed in part & reversed in part - 1

Herndon - affirmed - 3, reversed - 1

Lane - affirmed - 1

Leavitt - reversed - 2

Loehrer - affirmed - 1, affirmed in part & reversed in part - 2

Lueck - reversed - 1

Miley - affirmed in part & reversed in part - 1

Mosley - affirmed - 1, affirmed in part & reversed in part - 2, reversed - 1

Palikowski - affirmed - 1

Polaha - reversed - 1

Puccinelli - reversed - 1

Robison - affirmed

Saitta - reversed - 3

Steinheimer - affirmed - 4

Thompson - affirmed - 1, affirmed & reversed in part - 1

Togliatti - affirmed - 3, reversed - 1

Vega - affirmed - 2, reversed - 3

Villani - affirmed - 1

Voy - affirmed - 1, reversed - 1

Wagner - affirmed - 2

Wall - affirmed - 1, affirmed in part & reversed in part - 1

Walsh - affirmed - 1, reversed - 1

Judicial Discipline Commission - affirmed in part & reversed in part - 1

Secretary of State - affirmed - 2, affirmed in part & reversed in part - 2, reversed - 1

State Bar - affirmed - 1

State Board of Equalization - reversed - 1

More bills to watch

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Assembly Bills on file were reviewed yesterday.  Today the Senate:

SB3 - Creates the Legislative Committee on Child Welfare and Juvenile Justice. 

SB33 - Revises the provisions governing the administration of programs for the treatment of alcoholism or drug abuse for certain offenders with third offenses of driving under the influence.

SB34 - Makes certain changes concerning the use of court reporters in certain court proceedings.

SB35 - Repeals the provision that prohibits the prosecution of a person in this State for a crime after the person is convicted or acquitted of the crime in another state, territory or country.

SB45 - Revises provisions relating to certain criminal cases involving older persons and vulnerable persons.

SB51 - Revises provisions governing the subpoenaing of public utility records by a law enforcement agency.

SB60 - Revises provisions governing buildings, motor vehicles and other property that has been used in crimes involving methamphetamine or certain other substances.

SB82 - Makes various changes relating to technological crime.

SB84 - Authorizes cities to create departments of alternative sentencing.

SB85 - Revises provisions relating to the financial support of regional facilities for the detention of children.

SB93 - Excludes the judiciary from certain provisions concerning access to public records and handling of personal information.

SB100 - Revises the provisions governing the period of revocation of a driver's license upon conviction of certain offenses involving driving under the influence.



On December 31, 2008, the Nevada Supreme Court adopted amendments to the Nevada Rules of Appellate Procedure in a 116 page order.  Despite my suggestion/protest, the Court is allowing 4-to-a-page transcripts in all cases, meaning that I will get to read thousands of pages in 6-point font.  The Court won't allow me to file briefs in a 6-point font, so my only means of protest in this blog -- thus the small print for this post and this post only.  Color me cranky.  Other changes are for the most part reasonable and welcome.  The amendments shall be effective July 1, 2009 and apply to all appeals docketed in the Court on or after that date.  The Court orders the State Bar of Nevada to develop a CLE about the changes.

Bills to watch

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The legislative session starts in a few weeks.  There are a number of Assembly bills worth watching for those practicing criminal law:

AB1 - Prohibits certain demonstrations at a funeral, memorial service or ceremony.

AB17 - Revises provisions concerning persons who steal parts of streethlights and traffic-control devices.

AB33 - Revises provisions governing subsequent convictions of battery which constitute domestic violence.

AB34 - Authorizes prisoners in certain state correctional institutions or facilities to use certain electronic communication devices under certain circumstances.

AB 35 - Revises provisions governing petitions by offenders under lifetime supervision for release from lifetime supervision.

AB 36 - Revises provisions pertaining to lifetime supervision of sex offenders.

AB 38 - Provides that sex offenders who are under lifetime supervision must not have their civil rights automatically restored.

AB 45 - Requires the State Public Defender to provide defense services to indigent persons in counties without county public defender offices and to fully fund such services.  Note - this title is misleading as this bill also addresses counties with public defender offices and would impact every county in the state.  This is a biggie.

AB 46 - Makes various changes concerning the right of certain persons to purchase or possess a firearm.

AB 47 - Revises provisions relating to specialty courts.

AB49 - Authorizes a board of county commissioners, under certain circumstances, to provide a civil penalty in lieu of a criminal penalty for the violation of certain ordinances.

AB50 - Prohibits certain demonstrations at a funeral, memorial service or ceremony.

AB63 - Makes various changes to provisions regarding justice courts.

AB64 - Increases the number of judges in the Second and Eighth Judicial Districts.

AB65 - Provides for the collection and disposition of additional court fees.

AB77 - Revises provisions governing the unlawful killing or possession of wildlife.

AB81 - Makes various changes relating to the Central Repository for Nevada Records of Criminal History.

AB83 - Makes various changes concerning the reporting and investigation of allegations of child abuse and neglect.

AB85 - Revises provisions relating to sex offenders.

AB88 - Establishes a civil remedy for a person who was a victim of a sexual offense which was use to promote child pornography.

AB92 - Revises the provisions governing the benefits of a retired justice or judge.

AB93 - Revises the definition of the crime of assault.

AB99 - Makes various changes relating the security and safety of participants in the legal process.

AB104 - Revises the provisions governing the failure to appear in court for the commission of certain misdemeanor traffic offenses.

AB105 - Makes various changes concerning genetic marker testing in certain criminal defendants.




Oral argument calendar: Jan. 14 & 16

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Wednesday, January 14, 2009

10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

11:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

Thursday, January 15, 2009

10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

11:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

Friday, January 16, 2009

10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Hardesty/Cherry/Gibbons )

10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Hardesty/Cherry/Saitta )

This Week

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Monday, January 5 - Nevada Supreme Court Investiture

Tuesday, January 6 - Nevada Supreme Court hears en banc arguments & administrative hearing on ADKT 411  (at 3 pm in Carson and Las Vegas)

Wednesday, January 7 - Nevada Supreme Court hears en banc arguments

Thursday, January 8 - Nevada Supreme Court opinion release day

The United States Supreme Court will meet for a private conference on Friday and will not hear arguments this week.  Oral arguments will resume on January 12.

About this Archive

This page is a archive of recent entries written by JoNell in January 2009.

JoNell: December 2008 is the previous archive.

JoNell: February 2009 is the next archive.

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