JoNell: June 2009 Archives

MGM Mirage v. Nevada Ins. Guaranty Ass'n - self-insured employers under the Workers' Compensation Act are not barred from recovering payment from the Nevada Insurance Guaranty Assocation for their covered workers' compensation claims payable by their isolvent excess insurance carrier.

St. James Village, Inc. v. Cunningham - servient estate, unilateral relocation of easements and inconvenience of dominant estate owners. 

Reading these opinions reaffirms my desire to practice criminal law.  I'm skippping analysis of both.

Melendez-Diaz v. Massachusetts - a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence and is therefore not admissible, per Crawford v. Washington, absent the opportunity to confront and cross-examine the person who prepared the report. A State may enact a "notice-and-demand" statute which allows a state to give pretrial notice of its intention to use an affidavit and places the responsibility on the defense to object by demanding that the State produce the witness. The 5-4 opinion was authored by Justice Scalia.  Justice Kennedy filed a dissenting opinion which was joined by Chief Justice Roberts and Justices Breyer and Alito.

The opinion is consistent with existing Nevada case authority - Las Vegas v. Walsh, 121 Nev. 899, 904-06, 124 P.3d 203, 207-08 (2005) (citing in footnote 11 of the Melendez opinion).

Safford United School District #1 v. Redding - the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of a school policy, but the constitutional right was not clearly established at the time of the search so the girl cannot sue for damages.  Justice Souter authored the majority opinion.  Justice Stevens filed a partial dissent joined by Justice Ginsburg.  Justice Ginsburg filed an opinion concurring opinion and dissenting in part.  Justice Thomas concurred in part and dissented in part.

Atlantic Sounding Co. Inc. v. Townsend - concerns whether a seaman may recover punitive damages for the willful failure to pay maintenance and cure.  5-4 decision authored by Justice Thomas.  Justice Alito authored a dissenting opinion which was joined by Chief Justice Roberts and Justices Scalia and Kennedy.

Horne v. Flores; Speaker of the Arizona House of Representatives v. Flores - concerns an injunction against Arizona for failing to provide sufficient funding for non-English speaking school children.  5-4 decision authored by Justice Alito.  Justice Breyer authored the dissenting opinion which was joined by Justices Stevens, Souter and Ginsburg.


The remaining 3 decisions of the 2008--09 term will be released on Monday.

US Supreme Court issues 3 opinions

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Coeur Alaska, Inc. v. Southeast Alaska Conservation Council - Something about fill permits, slurry, the EPA and the Corps.  You're on your own for this one.  6-3 decision authored by Justice Kennedy, Justice Ginsburg filed a dissenting opinion which was joined by Justices Stevens and Souter, and Justices Breyer and Scalia filed concurring opinions.

Forest Grove School Dist. v. T.A. - The Individuals with Disabilities Education Act authorizes reimbursement for private special-education service when a public school fails to provide a "free appropriate public education" and the private school placement is appropriate, regardless of whether the child preciously received special-education services through the public school.  6-3 decision authored by Justice Stevens.  Justice Souter filed a dissenting opinion which was joined by Justices Scalia and Thomas.

Northwest Austin Municipal Utility District v. Holder - constitutional issue avoided concerning Section 5 of the Voting Rights Act, but significant expressions of doubt are voiced.  8-1 decision authored by Chief Justice Roberts.  Justice Thomas filed a partial dissent.  Scotusblog has lots of analysis on the opinion.

The court granted certiorari in 3 cases:

U.S. v. Comstock - constitutionality of a 2005 federal law giving federal officials authority to order the long-term confinement of persons considered to be sexually dangerous.

Florida v. Powell - whether Miranda warnings to a suspect in police custody must include an explicity assurance that the suspect may have a lawyer in the room during questioning.

Graham County Soil & Water v. U.S. - whether lawsuits seeking to recover misspent federal funds are barred in the information behind the lawsuits was revealed in local agency reports or audits, rather than in federal proceedings.

Scotusblog has links to the opinions of the courts below, petitions, oppositions, and amici briefs.

Yeager v. United States - A jury's acquittal of an Enron executive of securities and wire fraud charges may have erected a double jeopardy bar to his retrial on factually related insider-trading and money-laundering charges on which the jury deadlocked.  Prosecutors may not try an individual again on the "hung" counts if they had a common element with those on which the jury acquitted. 6-3 decision authored by Justice Stevens.

District Attorney's Office for Third Judicial District v. Osborne - A state prisoner has no freestanding constitutional right under the due process clause to obtain post-conviction access to forensic evidence in order to subject it to DNA testing to establish his innocence following resolution of trial and habeas proceedings. Access to DNA evidence following a final conviction is a legislative matter. 5-4 decision authored by Justice Roberts with concurrences by Alito, Kennedy and Thomas.

Gross v. FBL Financial Services Inc., - The burden of persuasion required to establish employer liability under the Age Discrimination in Employment Act is the same in cases where the employer's motives in acting against the employee are allegedly mixed as in any other ADEA action involving allegations of disparate treatment. The burden does not shift to the employer in mixed motive cases to show that it would have taken the alleged adverse action regardless of the employee's age. A 5-4 decision authored by Justice Thomas.

Travelers Indemnity Co. v. Bailey.  The terms of an injunction precluding certain lawsuits against insurers of bankrupt Johns-Manville Corp., an asbestos manufacturer, included as part of the company's 1986 bankruptcy reorganization plan, bar state-law actions brought against Manville's insurer over a decade later. The finality of the bankruptcy court's orders after direct review "generally stands in the way of challenging the enforceability of the injunction."  A 7-2 decision authored by Justice Souter.

Polar Tankers Inc v. City of Valdez-Alaska - The Court finds invalid a tax imposed by the city of Valdez on cargo ships that used its port.  A 7-2 decision.

Nijhawan v. Holder - Clarifies findings that an immigration judge must make in order for a conviction of a crime to be used as the basis for deportation.  A 9-0 decision.

Republic of Iraq v. Beaty - in a unanimous decision, authored by Justice Scalia, the Court holds that Americans do not have a right to sue the present government of Iraq for torture and other abuse that took place under the regime of Saddam Hussein.

Boyle v. United States - in a 7-2 decision, authored by Justice Alito, the Court defined the term "enterprise" for federal RICO statutes as the term applies to organizations that are not formal.  RICO does not apply to a loose group of criminal suspects who engage in crime together, but does apply to persons who work together in a "structure" - they have a purpose, relationship with each other, and they operate long enough to permit the pursuit of the group's purpose.

United States v. Denedo - in a 5-4 decision, authored by Justice Kennedy, the Court holds that a military court conviction that has become final can be challenged in appeal within the military judicial system by a former member of the service.

Caperton v. A.T. Massey Coal - in a 5-4 decision, authored by Justice Kennedy, the Court holds that it was unconstitutional for a state supreme court justice to sit on a case involving the financial interests of a major donor to the judge's election campaign.  The Court found the contributions to be extreme.  The donor had contributed $3 million to the justice, at a time when his company was appealing a $50 million judgment.  The $3 million exceeded the contributions of all other donors combined.  The Court finds that under these circumstances, the Due Process rights of the opposing parties were violated. 

United States ex rel. Eisenstein v. New York City - in a unanimous decision, authored by Justice Thomas, the Court holds that after a federal judge rules on a private individual's claim to recover misspent federal funds, in a case in which the US government does not participate, that individual has 30 days to file an appeal.


Upcoming Oral Arguments

These are the issues on the criminal cases:

Moxley - John Moxley was convicted by a Clark County jury of first-degree murder for the death of his infant son, who suffered severe brain injury as a result of violent shaking. This was Moxley's second trial and second conviction on this charge. Moxley's conviction at his first trial was reversed by the supreme court in a prior appeal. During Moxley's second trial, the district court allowed the testimony from a witness in the first trial to be read to the jury because the witness, who was in a Nevada prison, was deemed unavailable for trial. The district court also admitted evidence regarding prior instances of domestic violence by Moxley. ISSUES: Was Moxley's Sixth Amendment right to confront the witnesses against him violated when the prior testimony was read to the jury? Was it proper for the district court to allow testimony regarding prior instances of domestic violence?

Hopkins - Jentrice Hopkins is appealing her conviction for burglary and robbery with the use of a deadly weapon following the theft of clothing from a discount store. Hopkins was observed in the store removing security tags from clothes and putting the clothes in her purse and down her pants. When she and her co-defendant left the store without paying for the items, an undercover loss prevention officer who had been watching her demanded that she return the clothes. Hopkins' companion allegedly threatened the loss prevention officer with a knife. As they were leaving in a car, the companion allegedly pointed a gun at the loss prevention officer. After a three-day trial, a Clark County jury convicted Hopkins of burglary and robbery with the use of a deadly weapon. Hopkins is appealing her convictions. ISSUES: (1) whether the district court erred by giving a flight jury instruction, (2) whether the district court erred by refusing to give Hopkins' "mere presence" jury instruction, (3) whether the prosecutor misstated the burden of proof in his opening statement, (4) whether the district court erred by denying Hopkins' motion to strike her co-defendant as a witness and her motion for a continuance, (5) whether the district court erred by improperly admitting prior bad act evidence, and (6) whether sufficient evidence supported the conviction of robbery with the use of a deadly weapon.  

Thompson - After Renee Coppola parked her car at her home, two men forced her back inside her car and tried to drive off, but the car wouldn't start and Coppola was able to escape. Coppola identified Luqris Thompson in a photographic lineup as one of her assailants. Thompson originally was charged by way of a criminal complaint; after a grand jury indicted Thompson, the State moved to dismiss the criminal complaint and its motion was granted. Thompson then moved to dismiss the remaining case, arguing that the State was no longer permitted to prosecute him pursuant to Nevada law. The district court denied Thompson's motion to dismiss and a Clark County jury eventually convicted Thompson of conspiracy to commit a crime, burglary, robbery, first-degree kidnapping, and attempted grand larceny auto. Thompson is appealing his conviction. ISSUE: Should the district court have granted Thompson's motion to dismiss? 

In the news

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A prison guard at High Desert has been fired for bringing "non-intoxicant contraband" - a pillow, pillow case and air mattress - into the prison.

The prosecutors want a 3 percent cost of living increase, even though Public Defenders and other County employees are getting nothing or 1 percent, and plan to sue the County over its decision to amend a resolution that cuts the increase from 3 percent to 1 percent.  This should be interesting.

There are all kinds of questions at issue over sexual assault examinations in Washoe County.

Ramet v. State - The State may not introduce evidence of a defendant's refusal to consent to a search of his home, and the prosecutor may not comment about the refusal to consent, but the evidence is harmless under the facts of this case.

Rivera v. Philip Morris, Inc. - NRAP 5 certification re: whether Nevada law recognizes a heeding presumption in strict product liability failure-to-warn cases.

About this Archive

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

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