JoNell: May 2009 Archives

Next week (June 1-5)

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The US Supreme Court is nearing the end of its term and still has several important decisions to be issued.  I'll be out of town for most of next week and will be unable to post to Harmful Error.  Scotusblog always has the latest news on Supreme Court decisions and orders.  Opinions are announced at 10 a.m. east coast time, or 7:00 a.m. pacific time.

Upcoming Oral Arguments - The June 1st and 2nd arguments are en banc and will be held in Carson City

Abuelhawa v. United States - In a unanimous decision authored by Justice Souter, the Court holds that using a cellphone to make a drug purchase when the crime would be only a misdemeanor does not "facilitate" a felony distribution crime.

Haywood v. Drown - in a 5-4 decision authored by Justice Stevens, the Court holds that it is unconstitutional for a state to bar all damage lawsuits brought under a federal civil rights law against prison officers or guards.  New York had allowed only a claim against the state itself in a special claims court.

Montejo v. Louisiana - In a 5-4 decision authored by Justice Scalia, the Court overrules Michigan v. Jackson concerning the rights of a criminal suspect in police custody after the appointment of counsel.

The facts:  Montejo was charged with first degree murder and the court ordered the appointment of counsel during a 72-hour hearing.  Later that day, the police read Montejo his rights under Miranda v. Arizona and he agreed to go along on a trip to locate the murder weapon.  During the trip he wrote an inculpatory letter of apology to the victim's widow.  After returning from the trip, he met his court appointed attorney for the first time.  Counsel objected to admission of the letter at trial, but it was admitted and Montejo was convicted.

The Court holds that stare decisis does not preclude reconsideration of Michigan v. Jackson.  The Court finds that Edwards v. Arizona provides enough protection for suspects who want to invoke their Miranda rights and that Jackson is not necessary to protect a defendant's rights.  The Court holds that a defendant has the right to waive his Sixth Amendment rights and that counsel need not be present or consulted when a client elects to waive those rights by speaking with the police after counsel has been appointed.  "Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance."  The Court acknowledges that Miranda and Edwards guarantee Fifth Amendment rights, not Sixth Amendment rights, and apply only if the suspect is in custody, but find that Sixth Amendment rights for suspects not in custody are unnecessary because "when a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering."

As for Nevada, the Court has cited to Michigan v. Jackson in two opinions but has not indicated whether it found the rule established in Jackson to be sound. The Court could hold that the protections provided for by Jackson should be recognized by our state constitution.

I initially thought that the quick fix here is for counsel to consult with the client and invoke the right to counsel at the first court appearance for all interrogations and interactions with the police or other state agents.  Such action should guarantee that the client receives the assistance of counsel at every stage of the proceedings, including questioning by police officers.  After a long, and good, discussion with Chip Siegel, I'm not sure that my initially thought on a remedy was correct.  It may be that the client will have to invoke the right to counsel at the time of the interrogation and that a blanket waiver during the first court appearance will not be sufficient, although it probably wouldn't hurt either.  Advice to the client is therefore critical in making sure that he is not interrogated by officers following the appointment of counsel.  I'll keep an eye our for analysis by others following this issue.

The United States Supreme Court has denied certiorari in Nevada v. Harte.  The case presented a challenge by the State to the Nevada Supreme Court's decision in McConnell v. State.

The Court granted certiorari in one case this morning:  Merck & Co. v. Reynolds presents the issue of whether under the "inquiry notice" standard applicable to federal securities claims, the statute of limitations does not begin to run until an investor receives evidence of scienter.

In Hannon v. State, the Court reverses a conviction, entered pursuant to a plea of nolo contendere, of one count of possession of a controlled substance.  The Court finds that an "emergency" search of a home was unlawful because there was no objectively reasonable basis to believe that the two occupants or any undisclosed third party may have been in danger inside. The opinion brings Nevada case law into conformity with the decision of the United States Supreme Court in Brigham City v. Stuart, 547 U.S. 398, 404 (2006).

Hannon involves a call to an apartment based upon a 911 call of a neighbor concerning a domestic disturbance.  Both the adult male and the female stated that they were okay and refused permission for the police officers to enter the apartment.  Officers stated that they pushed their way into the apartment to protect the safety of the occupants and then saw pot and paraphernalia once they were inside.  The district court denied the suppression motion, even though the police officer admitted that he did not have any evidence that another occupant may have been inside who needed emergency assistance, but "just had suspicions."  The Nevada Supreme Court reversed.  The officer's subjective motivations are irrelevant.  An objective standard applies.  Under the facts here, there was no objectively reasonable basis to believe that a third party was injured inside.

The US Supreme Court granted certiorari in four cases this morning.  Scotusblog provides links to the petitions, oppositions, replies, amici briefs and opinions below.

Beard v. Kindler - Is a state procedural rule automatically "inadequate" under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory?

Black, et al.  v. United States - Whether the "honest services" clause of 18 U.S.C. ยง 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants "reasonably contemplated identifiable economic harm," and if the defendants' reversal claim is preserved for review after they objected to the government's request for a special verdict.

Lewis, et al. v. City of Chicago - Where an employer adopts an employment practice that discriminates against African Americans in violation of Title VII's disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer's use of the discriminatory practice?

Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al.
Whether the Sarbanes-Oxley Act is consistent with separation-of-powers principles - as the Public Company Accounting Oversight Board  is overseen by the Securities and Exchange Commission, which is in turn overseen by the President - or contrary to the Appointments Clause of the Constitution,  as the PCAOB members are appointed by the SEC.

No action taken in Nevada v. Harte

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The Washoe County DA's Office has filed a petition for certiorari with the US Supreme Court in Nevada v. Harte.  The case presents a challenge to the Nevada Supreme Court's ruling in McConnell v. State, which held that the State may not obtain aggravating circumstances for burglary, robbery and other underlying felonies if the defendant is found guilty only under a felony-murder theory.  The US Supreme Court listed the case on its conference agenda for last Friday, May 14, but no decision was made on the petition.  It is again listed for conference this Friday.  This may be an indication that the Court is interested in the issue.  It's likely that the order from Friday's conference will be released next Monday.

Scotusblog provides copies of the cert. petition, brief in opposition and opinion below.

Via Scotusblog:

Ashcroft, et al., v. Iqbal:  in a 5-4 decision, the Supreme Court on Monday threw out a claim that two top Bush Administration officials adopted a specific policy of racial and ethnic discrimination in a roundup and detention of hundreds of men of Arab  descent following the terrorist attacks of Sept. 11, 2001.  The Court held that the lawsuit did not cite specific enough factual grounds for a claim of intentional bias by former Attorney General John D. Ashcroft and then-and-current FBI director Robert Mueller.  The Court did not, however, declare legal immunity for Ashcroft, Mueller, or other lower-ranking officials who allegedly carried out discriminatory policies sent down from the top.  Rather, the Court addressed only the requirements that had to be made in the initial lawsuit to show that the selection of those to be rounded up were the result of race, religious or national origin bias, in order to survive a motion to dismiss.  The case was remanded to the 2nd Circuit for a decision on whether the plaintiffs could amend their lawsuit.

AT&T Corp. v. Hulteen:  The Court rule in a 7-2 decision, that federal law does not require an employer to set current pension benefits at a level that will make up for a denial of work credit for maternity leave for pregnant workers, when such a denial  was not illegal at the time it ook place.  Neither the law that pre-dated the case nor a new law on job bias made it illegal for a company to decline to upgrade benefits to account for past employment actions that were legal at the time.  The denial was not a form of discrimination based on sex under the law as it existed prior to Congress's passage of the Pregnancy Discrimination Act in 1978.  Failing to make up for the past denial, it concluded, was a legitimate choice to make in a pension system that was not intentionally discriminatory.

The US Supreme Court issued four opinions today:

Flores-Figueroa v. United States - The decision below, which held for the United States, is reversed and remanded in a 9-0 opinion by Justice Breyer, available here.  Justice Scalia filed an opinion concurring in part and in the judgment, joined by Justice Thomas, and Justice Alito filed an opinion concurring in part and in the judgment. 18 USC 1028A(a)(1) forbids "aggravated identity theft" and imposes a mandatory consecutive two-year prison term for a person convicted of certain predicate crimes.  The statute requires that the government establish that the defendant "knowingly  . . . uses, without lawful authority, a means of identification of another person."  The defendant gave his employer counterfeit Social Security and alien registration cards contaning his name but other people's identification numbers and was charged under the statute.  He moved for acquittal on a claimt hat the government could not prove that he knew the documents' numbers were assigned to other people. The government argued, and the federal district court and Eighth Circuit agreed, that the word "knowingly" did not apply to "of another person."  The Supreme Court unanimously reversed and held that under 1028 the government must show that the defendant knew that the means of identification at issue belonging to another person.  As a matter or ordinary English grammar, "knowingly" is naturally read as applying to all the subsequently listed elements of the crime.  Where a transitive verb has an objects, listerns in most context assume that an adverb, such as knowingly, thad modifies the verb tells the listener how the subject performed the entire action, including the object. 

Carlsbad Technology, Inc. v. HIF Bio, Inc.  The decision below, which held for HIF Bio, is reversed and remanded in a 9-0 opinion by Justice Thomas, available here. Justice Stevens and Justice Scalia filed concurring opinions. Justice Breyer filed a concurring opinion, joined by Justice Souter.  The Court holds that a federal district court's order remanding a case to state court after declining to exercise supplemental jurisdiction over state-law claims is not a remand for lack of subject-matter jurisdiction.  Appellate review of the order is therefore not barred by 28 USC 1447.

Arthur Andersen LLP, et al. v. Carlisle, et al.  The decision below, which held for the company owners, is reversed and remanded in a 6-3 opinion by Justice Scalia, available here. Justice Souter filed a dissenting opinion, joined by Chief Justice Roberts and Justice Stevens.  The opinion addresses stays of actions involving arbitration and appeals from orders denying stay motions.

Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Company v. United States   The decision below, which held for the United States, is reversed and remanded in an 8-1 opinion by Justice Stevens available here. Justice Ginsburg filed a dissenting opinion. - The opinion addresses liability of an arranger for contamination under CERCLA.

With thanks to scotusblog for the links and early info.

The US Supreme Court granted certiorari in four cases today:

Sullivan v. Florida - constitutionality of life prison terms without a chance for parole for juveniles who commit crimes other than murder in their teen years.

Graham v. Florida - same

Hemi Group LLC v. City of New York - Whether a city government meets the RICO standing requirement that a plaintiff be directly injured in its "business or property" by alleging non-commercial injury from non payment of taxes by non-litigating third parties.

Shady Grove Orthopedic Ass'n v. Allstate Insurance - Can a state legislature prohibit federal courts from using the class action device for state law claims?

Scotusblog provides links to the petitions, briefs in opposition and replies.

This Week

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Monday, May 4 - 10:30 a.m. - Nevada Supreme Court hears oral arguments in Rodriquez v. State, Bowers v. Harrah's Laughlin, In re: Parental Rights as to Germany and Wyman v. State.

Monday, May 4 - US Supreme Court order and opinion release day

Tuesday, May 5 - 10:00 a.m. - Nevada Supreme Court hears oral argument in Fierle v. Perez, Middleton v. State and Bielar v. Washoe Health Systems

Wednesday, May 6 - Nevada Bar Admissions Ceremony

Wednesday, May 6 - NACJ Board Meeting, noon at the Federal Public Defender's Office

Thursday, May 7 - Nevada Supreme Court opinion release day

Thursday, May 7 - 10:00 a.m. - Nevada Supreme Court oral arguments in King v. State and Ortega v. State (Elko)

Friday, May 8 - 10:00 a.m. - Nevada Supreme Court orala rguments in Harness v. State and Bennette v. State (Elko)

48291 Rodriguez (Pedro) vs. State (Death Penalty-Pc)
May 04 (9:30 AM)
Carson City

Full Court

Rodriguez was originally convicted in Washoe County of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon. In an earlier appeal of his conviction, this court invalidated one aggravating circumstance (home invasion) but upheld Rodriguez's death sentence after reweighing the aggravating and mitigating circumstances. Rodriguez thereafter filed a post-conviction petition for a writ of habeas corpus in the district court, the denial of which is the subject of this appeal. ISSUES: Should Rodriguez's death sentence be reversed based on claims that (1) the aggravating circumstances are invalid, (2) the assistance of trial or appellate counsel was ineffective, and (3) jury instructions were improper?

49350 State, Dep't Of Motor Vehicles vs. Junge
May 04 (10:30 AM) -

Carson City

Full Court

After respondent Junge obtained and renewed for several years a personalized license plate "HOE" (shorthand for "Tahoe" according to Junge) the DMV recalled the license plate because DMV's Special Plate Committee determined, after consulting the Urban Dictionary, that the plate carried a meaning that was inappropriate and offensive. An administrative law judge upheld DMV's decision, and Junge petitioned for judicial review. The district court reversed the administrative law judge's decision, and DMV has appealed that decision. The ACLU has filed an amicus brief opposing DMV's position. ISSUE: Do DMV regulations regarding personalized plates violate the First Amendment?

50218 Wyman (Catherine) vs. State
May 04 (12:30 PM)

Carson City

Full Court

This is an appeal of a Washoe County jury verdict convicting Wyman of second-degree murder. Wyman made a request in the district court for a certificate of materiality to obtain evidence from outside of Nevada (specifically, from California) regarding the mental health history of the State's key witness, Wyman's adult daughter. The district court denied the request. ISSUE: Did the district court err in denying Wyman's request for a certificate of materiality with respect to the out-of-state documentary evidence?

50298 Bower vs. Harrah's Laughlin C/W 49783
May 04 (1:00 PM)

Carson City

Full Court

These consolidated appeals arise from a fight and shooting between two biker gangs that occurred at Harrah's Laughlin. Appellants allege they were not part of the fight but were injured as a result of the fight. The district court granted summary judgment in favor of Harrah's based on the issues arising from the fight and shooting having been resolved in two prior court cases over the same incident. Appellants were not parties to the prior court cases, but discovery for their cases was consolidated with those two cases. ISSUES: Did the district court err in granting summary judgment in favor of Harrah's? Did the district court err in awarding attorney fees and costs to Harrah's?

52055 In Re: Parental Rights As To Germany
May 04 (2:30 PM)

Carson City

Full Court

In connection with an adoption plan, a biological mother, who is a member of the Cherokee Nation Tribe, relinquished her parental rights to the child at issue in this matter. Later, the adoption agency petitioned to terminate the parental rights of any putative father. The Cherokee Nation Tribe moved to intervene to invalidate and dismiss the proceedings, arguing that the case should be transferred to the tribal court because the district court did not have subject matter jurisdiction and the mother did not have standing to object to the transfer. The district court's denial of that motion is the subject of this appeal. ISSUE: Did the district court have subject matter jurisdiction, pursuant to the Indian Child Welfare Act, to relinquish the parental rights of any putative father?


49602 Fierle vs. Perez
May 05 (9:00 AM)

Carson City

Full Court

After Fierle suffered chemical burns from a chemotherapy treatment, she and her husband brought a medical tort action. The district court dismissed the complaint based on the couple's failure to submit a medical expert's affidavit along with the complaint, which is required by NRS 41A.071. The district court also denied the couple's motion for relief from the judgment. ISSUE: Did the district court err in dismissing the complaint and in denying the motion for relief from judgment?

50457 Middleton (David) vs. State (Death Penalty-Pc)
May 05 (9:30 AM)

Middleton was previously convicted of two counts of first-degree murder, two counts of first-degree kidnapping, one count of grand larceny, one count of fraudulent use of a credit card, and two counts of ex-felon in possession of a firearm. He was sentenced to death. In an appeal of his judgment of conviction, Middleton's judgment and sentence were upheld. Middleton filed a post-conviction petition for a writ of habeas corpus in the Washoe County district court, the denial of which is the subject of this appeal. ISSUES: Did the district court err in dismissing several claims in the petition without conducting an evidentiary hearing? Were trial and appellate counsel ineffective? Is reversal of Middleton's death sentence required by McConnell v. State?

50859 Bielar vs. Washoe Health Systems, Inc.

May 05 (10:30 AM)

Carson City

Full Court

Bielar, who did not have health insurance or qualify for public assistance, was in an automobile accident. Bielar ultimately received a $1.3 million settlement from an insurance company. While the hospital placed a lien on the settlement, the insurer paid Bielar directly. Bielar paid the hospital in full but filed a suit in district court asserting that she was entitled to a 30 percent reduction in her bills pursuant to NRS 439B.260, which provides for the reduction of hospital bills under certain circumstances, including when the patient does not have health insurance or qualify for public assistance. The hospital moved for summary judgment on the basis that Bielar lacked standing to pursue the claim for reduction in the bill and the district court granted the hospital's motion. ISSUE: Did the district court err in finding that Bielar lacked standing and granting summary judgment to the hospital?

50065 KING (DAVID) vs. STATE
May 07 (9:00 AM)

Elko High School
Justices Cherry, Saitta, and Gibbons

This is an appeal from an Elko County district court order denying a motion for new trial based on newly discovered evidence. King was convicted of first-degree murder by means of child abuse for the death of his infant son. The motion for a new trial was based on evidence that surfaced after trial indicating the infant victim may have vomited near the time of his death, leading a forensic expert to suggest that a cause of death could not be determined and that the victim could have died of natural causes.

51971 Ortega (Jose) vs. State
May 07 (9:30 AM)

Elko High School
Justices Cherry, Saitta, and Gibbons

This is an appeal of Ortega's conviction in Elko County of principal to trafficking in a controlled substance (methamphetamine) and possession of a controlled substance (cocaine). Ortega is also appealing an Elko County district court order denying a motion for new trial. Ortega was arrested after being stopped by a Nevada Highway Patrol trooper and warned to slow down and dim his headlights. During the stop, Ortega consented to a search of his vehicle where the NHP trooper discovered cocaine. After arresting the occupants of the car, the NHP trooper opened an airbag compartment with a screwdriver and discovered the methamphetamine. ISSUES: Did the use of a screwdriver to open the airbag compartment exceed the scope of the consent to search given by Ortega? Should Ortega have been convicted of being a principal to trafficking despite the jurors' belief that he did not know what drug was involved?

From the Nevada Supreme Court:

In celebration of the bicentennial of Abraham Lincoln's birth in 1809, the Nevada Judiciary and the State Bar of Nevada have scheduled a series of forums and town hall meetings across Nevada for Law Day.

The American Bar Association has set "A Legacy of Liberty" as the theme for this year's Law Day.

Law Day officially falls on May 1, but the number of scheduled events makes it necessary to hold the activities both before and after that date.

"Celebrating Lincoln's legacy requires more than one day," said Nevada Supreme Court Justice Nancy Saitta, who chairs the court's Judicial Public Information Committee.  "This year, in particular, we should have Law Month."

As part of the celebration, the Supreme Court will present its first annual Legacy of Justice award to a member of the judiciary whose contributions have promoted progress and excellence in the court system.  The award will be presented May 1 at noon on the north steps of the Regional Justice Center in downtown Las Vegas.

Judges and attorneys will conduct programs with students at three Las Vegas schools and at town hall meetings in Carson City and Reno.

The Carson City town hall meeting will be in the courtroom at the Nevada Supreme Court and include Justices Nancy Saitta, Mark Gibbons and Michael Cherry plus Nevada Attorney General Catherine Cortez Masto.  The hour-long session will be streamed live over the Court's website,

"Lincoln's legacy began with his skills as a lawyer, but he became the president who united a nation and fought for justice during a fragile and turbulent time," said Chief Justice James W. Hardesty.  "As we struggle through another turbulent time, Lincoln's commitment to liberty and justice can once again inspire us."

"I encourage everyone to focus on Lincoln's 'Legacy of Liberty' not only on Law Day, but throughout the year," Chief Justice Hardesty said.

Justice Saitta said the judiciary and the State Bar of Nevada decided to take programs to the schools because "it is important for our young people to realize the affect Abraham Lincoln had on our nation and our constitutional democracy."

"We are excited for this opportunity to provide programs on such a rich and resonant Law Day theme - A Legacy of Liberty," Justice Saitta said.


April 30, 1:30 p.m. - Supreme Court courtroom, Carson City - Town Hall Meeting with Justices Nancy Saitta, Mark Gibbons and Michael Cherry, and Attorney General Catherine Cortez Masto (webcast on the Supreme Court website,

May 1, Noon - "Legacy of Justice" award presented by the Nevada Supreme Court on the north steps of the Regional Justice Center.  Justices Nancy Saitta, Michael Douglas, and Kristina Pickering will be joined by members of the state and federal judiciary.

  • May 1 - Law Day programs in Clark County at West Prep, Legacy High School, Las Vegas High School, Western High School, Clark High School, and Advanced Technology Academy.  Judges and attorneys will be conducting sessions.
  • May 13 - Washoe County Bar Association luncheon - Legacy in Liberty Award presented by Chief Justice James W. Hardesty
  • May 14 - Clark County Bar Association luncheon.  Liberty Bell Award presentation.
  • May 18 - Law Day program in Washoe County at Wooster High School.
Via Sentencing Law & Policy, a California appellate court has found a sentence of life without the possibility of parole for a juvenile, who was 14 years old at the time of his offense of kidnapping for ransom, to be unconstitutional.  The opinion is available here.

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

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