JoNell: September 2009 Archives

US Supreme Court grants cert. in 10 cases

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Docket: 08-1470
Title: Berghuis, Warden v. Thompkins
Issue: Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.

Docket: 08-1402
Title: Berghuis, Warden v. Smith
Issue: Whether the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply "clearly established Federal law" under 28 U.S.C. § 2254 when it rejected a state prisoner's Sixth Amendment fair cross-section claim and whether the Sixth Circuit erred in applying the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires).

  • Opinion below (6th Circuit)
  • Petition for certiorari
  • Brief in opposition
  • Petitioner's reply
  • Brief amici curiae of Connecticut, and Six Other States

    Docket: 08-1521
    Title: McDonald, et al.  v. City of Chicago
    Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

    Docket: 08-1569
    Title: United States v. O'Brien and Burgess
    Issue: Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

    Docket: 08-1301
    Title: Carr v. United States
    Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant's underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act's enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA's enactment.

    Docket: 08-974
    Title: Lewis et al. v. City of Chicago
    Issue: When 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?

    Docket: 08-1322
    Title: Astrue v. Ratliff
    Issue: Whether an "award of fees and other expenses" under the Equal Access to Justice Act, 28 U.S.C. 2412(d), is payable to the "prevailing party" rather than to the prevailing party's attorney, and therefore is subject to an offset for a pre-existing debt owed by the prevailing party to the United States.

    Docket: 08-1498 ; 09-89
    Title: Holder, Attorney General v. Humanitarian Law Project ; Humanitarian Law Project v. Holder
    Issue: Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of "any *** service, *** training, [or] expert advice or assistance," to a designated foreign terrorist organization, is unconstitutionally vague; Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of "expert advice or assistance" "derived from scientific [or] technical ... knowledge" and "personnel" are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.



    Docket: 08-1529 ; 08-1547
    Title: Migliaccio, et al. v. Castaneda et al. ; Henneford v. Castaneda et al.
    Issue: Does 42 U.S.C. § 233(a) make the Federal Tort Claims Act the exclusive remedy for claims arising from medical care and related functions provided by Public Health Service personnel, thus barring Bivens actions?

    Docket: 08-1555
    Title: Samantar v. Bashe Abdi Yousuf, et al.
    Issue: . Whether a foreign state's immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual's former capacity as an official acting on behalf of a foreign state.

    US Supreme Court holds conference today

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    The US Supreme Court is holding a conference today in which it will consider cert. petitions in a large number of cases.  Scotusblog previews several petitions which have a reasonable chance of being granted:

    Petitions to Watch I -

    Petitions to Watch II -

    Petitions to Watch III -

    Petitions to Watch IV -

    Petitions to Watch V

    It's over 150 pages and I'm way too busy to summarize - so here you go:  Summary of 2009 Legislation

    Oral argument calendar: Oct. 5

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    Tiffany B. v. Slay (Ronald)

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

    Rico-Arreola (Oscar) v. State

                Las Vegas - 10:30 a.m. - Full court

    Madison Equities v. Hamika (Jerry)

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


    Tiffany B. v. Slay (Ronald),

    Docket No. 50419

    Tiffany B. filed a lawsuit against polygraph examiner Ronald Slay, alleging negligence and various intentional torts.  During an earlier divorce and child custody case between Tiffany and her ex-husband, Malakai K., Tiffany alleged that her minor daughter, G.B., reported sexual abuse by Malakai.  Because Malakai had passed a prior polygraph examination regarding similar allegations by G.B., the district court judge asked Tiffany to take a polygraph examination to assess her credibility in making the allegations.  Slay was appointed to administer Tiffany's polygraph examination.  Slay accepted the appointment but did not disclose that he had administered Malakai's prior polygraph examination.  Slay determined that Tiffany's answers during her polygraph examination were deceptive.  As a result of her failed examination and a psychological assessment relying in part on the results of the examination, Tiffany lost physical custody of G.B. for more than a year.  After G.B. continued to report abuse by Malakai, further assessments and polygraph examinations (administered by examiners other than Slay) were completed and Tiffany was eventually awarded sole custody of G.B.  In the lawsuit against Slay, Tiffany claimed that Slay's prior examination of Malakai disqualified Slay from examining her, even if he had disclosed the conflict.  Tiffany also contended that Slay's examination of her was negligent and that providing her results to a third party after the family court proceeding without her permission violated NRS 648.197.  Slay moved to dismiss Tiffany's lawsuit on the basis that he is entitled to absolute quasi-judicial immunity.  The district court granted Slay's motion, and Tiffany now appeals the dismissal of her lawsuit.  ISSUES: Is a polygraph examiner entitled to absolute quasi-judicial immunity?  Does quasi-judicial immunity apply in instances of intentional torts?  (Disclaimer:  This synopsis is intended to provide only general information about this case before the Nevada Supreme Court.  It is not intended to be all inclusive or reflect all positions of the parties.)

    Rico-Arreola (Oscar) v. State,

    Docket No. 49512

    Oscar Rico-Arreola was convicted by a Clark County jury of sexual assault of a child under the age of 14.  The district court sentenced Rico-Arreola to life in prison with the possibility of parole after 20 years.  During jury selection, the State exercised peremptory challenges with respect to two African-American jurors.  Rico-Arreola made a challenge under Batson v. Kentucky, arguing that the State engaged in discrimination in dismissing the two jurors.  The State responded that it excused the jurors because they were social workers and social workers were often not as favorable to the State in criminal cases.  Rico-Arreola is now appealing his conviction to the Supreme Court.  ISSUES:  Did the State violate the law established in the U.S. Supreme Court case of Batson v. Kentucky when it dismissed the prospective jurors?  (Disclaimer:  This synopsis is intended to provide only general information about this case before the Nevada Supreme Court.  It is not intended to be all inclusive or reflect all positions of the parties.)

    Madison Equities v. Hamika (Jerry),

    Docket No. 50316

    This case involves a dispute over a lease extension for a convenience store at a shopping center in Clark County, specifically whether Madison Equities had a duty to respond to Jerry Hamika's premature notice to extend the lease. 

    NACJ Social Tonight

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    The NACJ fall social is tonight.
    THURSDAY, September 24, 2009
    5:00 p.m. - 7:00 p.m.
    at the Brass Lounge - located on Fremont and Las Vegas Blvd.

    NACJ will be celebrating its 20th anniversary and will be honoring the founding members of NACJ.

    Members eat and drink free.  Non-members should join.

    Nevada Supreme Court issues 4 opinions

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    Attn: attorneys practicing criminal law - read this opinion!  It's a civil case but deals with criminal law issues.

    In Flamingo Paradise Gaming v. Att'y General the Court considers a facial challenge to the constitutionality of Nevada's Clean Indoor Act.  The Court finds that the district court correctly ruled that under a facial challenge the statute is constitutional for civil enforcement but unconstitutionally vague for criminal enforcement.  "A statute containing a criminal penalty is facially vague when vagueness permeates the test of the statute, while a statute that involves only civil penalties is only facually vague if it is void in all its applications.

    In Zana v. State, the Court considers whether testimony regarding prior bad acts is admissible when the resulting court proceedings were sealed or expunged.  The Court concludes that the district court may permit testimony that is confined to a witness's personal experiences so long as the witness does not rely on the previously sealed or expunged court proceedings and does not testify that such proceedings took place.  The Court next considers whether there was jury misconduct and concludes that the alleged misconduct did not prejudice the verdict.  During a weekend break in deliberations, a juror had engaged in an internet search for a particular pornographic website that was mentioned during the trial, but the juror was unable to locate the website.  He told the other jurors about his failed attempt at investigation.  The Court also considers whether the district court erred in denying a motion to sever lewdness courts from child pornography counts, and concludes that the district court did not abuse its discretion by denying the motion because evidence presented for each count was admissible for the other counts.

    Argentena Consol. Mining Co. Jolley Urga - The Court concludes that absent an enforceable charging lien or the client's request or consent to the district court's adjudication of a retaining lien, the district court is without jurisdiction to adjudicate an attorney-client fee dispute in the underlying action.  It further concludes that when the client asserts legal malpractice as a defense against the attorney's claim for fees, it is particularly inappropriate to summarily adjudicate the fee dispute in the underlying action.  It instructs that when the district court lacks jurisdiction to adjudicate the fee dispute or the client objects to the court's adjudication of the dispute based on its legal malpractice claim against the attorney, the attorney seeking to recover fees should file a separate action to do so.

    In re Estate of Miller - This appeal presents three narrow but previously undecided issues concerning offer of judgment practice under NRCP 68 and NRS 17.115.  Reversing, we hold that (1) a judgment obtained on or after appeal can qualify as a "more favorable judgment" for purposes of the fee-shifting provisions of NRCP 68 and NRS 17.115, (2) appellate fees are recoverable, and (3) an unrepresented party who serves an offer of judgment may recover fees later paid to a lawyer hired to prosecute or defend the case.  



    Interesting unpublished decisions

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    In an unpublished Order of Reversal and Remand in Monroe v. State, the Nevada Supreme Court finds that a the district court erred in refusing to conduct an evidentiary hearing on a suppression motion.  The five page order includes a nice summary of the law concerning automobile searches made pursuant to an investigatory stop.

    In an unpublished Order Denying Petition in Bacon v. State, the Nevada Supreme Court finds that the proper person petitioner has filed numerous, arguably frivolous documents and finds that there has been a waste of judicial resources.  The Court cautions Bacon that he may forfeit all deductions of time earned as a prisoner.

    McNight v. The Public Restroom Co. is a civil appeal in which the Court finds that in lacks jurisdiction.  The order is not interesting, but I like the name of the case.

    In an unpublished Order of Reversal and Remand in Brunsen v. State, the Nevada Supreme Court finds that the district court erred in failing to conduct an evidentiary hearing on the defendant's presentence motion to withdraw his guilty plea and in failing to appoint conflict-free counsel for that hearing.

    The Department of Justice has released its 2008 Crime in the United States report.

    The report notes that Nevada had a 15% decrease in homicides from 2007 (192) to 2008 (163).  The per capita rate dropped from 7.5 per 100,000 residents in 2007 to 6.3 in 2008, but remains above the national average of 5.4.  Violent crime as a whole dropped from 750 crimes per 100,000 residents in 2007 to 724 in 2008.  This reflects a 3.5 percent decline, but is still well above the national average of 454.

    The report shows that the great majority of crimes in Nevada are in metropolitan areas.  Of Nevada's 163 homicides in 2008, 151 were in metropolitan areas, 3 were in cities outside of metropolitan areas and 9 were in nonmetropolitan counties.

    Of Nevada's 163 murders, 93 were committed with firearms, 27 with knives, 35 with other weapons and 8 with hands, fists, feet, etc.

    A detailed chart showing arrests by crime per state is also available.

    The report has a large number of other tables and reports. 

    US Supreme Court criminal cases preview

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    Alvarez v. Smith - Whether local law enforcement agencies may seize and retain custody indefinitely of personal property without judicial or administrative review of the lawfulness of the continued detention of the property. Argument scheduled for 10/14/09

    Beard v. Kindler.  Under the adequate-state-ground doctrine, does a state procedural rule like Pennsylvania's fugitive waiver rule preclude federal habeas corpus review even though the state procedural rule is discretionary?Argument scheduled for 11/2/09.

    Black v. United States - Whether the "honest services" clause of 18 U.S.C. § 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.

    Bloate v. United States -  Whether time granted at the request of a defendant to prepare pretrial motions qualifies as "delay resulting from other proceedings concerning the defendant" and is thus excludable from the time within which trial must commence under the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq. Argument scheduled for 10/6/09.

    Briscoe v. Virginia - If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

    Florida v. Powell - Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?  

    Graham v. Florida - Whether the Eighth Amendment's ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of non-homicide.Argument scheduled for 11/9/09

    Hemi Group v. New York City - Whether city government meets the Racketeer Influenced and Corrupt Organizations Act standing requirement that a plaintiff be directly injured in its "business or property" by alleging non commercial injury resulting from non payment of taxes by non litigant third parties. Argument scheduled for 11/3/09

    Johnson v. United States - Whether under the federal Armed Career Criminal Act a prior state conviction for battery is in all cases a "violent felony," even when the state held that offense does not have as an element the use or threatened use of physical force.  Argument scheduled for 10/6/09  

    Maryland v. Shatzer - Whether Edwards v. Arizona (1981), 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. Argument scheduled for 10/5/09 

    McDaniel v. Brown - Nevada case - Whether, on federal habeas review, the evidence underlying the defendant's conviction for sexual assault was clearly insufficient under Jackson v. Virginia (1979).  Argument taken off calendar.

    Padilla v. Kentucky - Does the Sixth Amendment's guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea? Argument scheduled for 10/13/09  

    Pottawattamie County v. McGhee - Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant's "substantive due process" rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.  Argument scheduled for 11/4/09

    Smith v. Spisak - Did the Sixth Circuit contravene AEDPA by improperly extending Mills v. Maryland [re: mitigation jury instructions in a capital case]? Argument scheduled for 10/13/09

    Sullivan v. Florida - Does imposition of a life without parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?  Argument scheduled for 11/9/09

    United States v. Comstock - Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

    United States v. Stevens - Is 18 U.S.C. 48, on depictions of animal cruelty, facially invalid under the Free Speech Clause of the First Amendment? Argument scheduled for 10/6/09

    Weyhrauch v. United States - Whether, to convict a state official for depriving the public of its right to the defendant's honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. Sec. 1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.

    Wood v. Allen - Whether the state court's conclusion-that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel-was based on an unreasonable determination of the facts and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision.  Argument scheduled for 11/4/09

    Nevada Supreme Court issues 3 opinions

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    Sonia F. v. Dist. Ct. - The Court finds that Nevada's rape shield law, NRS 50.090, applies only to criminal proceedings and not civil cases.  The district court, however, may limit discovery of an alleged victim's sexual history in a civil case under NRCP 26

    Bower v. Harrah's Laughlin - These consolidated appeals involve civil claims by hotel guests against Harrah's casino in Laughlin as the result of a brawl between the Hell's Angels and Mongols.  The appeals concern the issue preclusion doctrine under Nevada and federal law, rehearing of a summary judgment motion, intervening causes, and awards of attorney fees.


    Dobron v. Bunch - This appeals concerns whether a guarantor of a loan may be held liable for attorney fees incurred by a lender in defending a usury action brought by borrowers.

    The Court's last published opinion in a criminal case was issued on July 30, 2009.


    This and That

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    The Senate Judiciary Committee approved the nomination of Daniel Bogden for Nevada's U.S. Attorney position.

    Las Vegas Municipal Court George Assad has issued a letter of apology, pursuant to an order in June 2008 by the Nevada Supreme Court, to a woman who was detained until her boyfriend showed up in court to take of his unpaid traffic tickets.

    The Ninth Circuit issued an opinion today in US v. Juvenile Male, in which it finds that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders.


    In an unpublished order, Smith v. State, the Nevada Supreme Court finds that the district court abused its discretion in failing to appoint counsel to represent a petitioner for his post-conviction petition for a writ of habeas corpus.  This is a recurring problem in the Eighth Judicial District as Clark County judges seldom appoint counsel for post-conviction proceedings.  In contrast, counsel is routinely appointed in Washoe County and the rural counties.

    Oral argument calendar: Sept. 10 & 11

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    September 10, 2009, Oral Arguments

    Certain Underwriters at Lloyds v. St. Paul Mercury Ins. Co.

                Carson City - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons

    Michael Hohl Valucar v. Coachmen R.V. Co.

                Carson City - 10:30 a.m. - Justices Cherry, Saitta, and Gibbons

    Nevada Land and Resource Company v. Prize Energy Solutions

                Carson City - 11:30 a.m. - Justices Cherry, Saitta, and Gibbons

    Hudler v. Anderson, Real Estate Division Administrator

                Carson City - 1:30 p.m. - Justices Cherry, Saitta, and Gibbons

    Glenbrook Club v. Match Point Properties

                Carson City - 2:00 p.m. - Justices Hardesty, Cherry, and Saitta

    A synopsis of each of these cases is available here.

    September 11, 2009, Oral Arguments

    Bodden (Karen) v. State

                Sparks High School - 9:50 a.m. - Justices Cherry, Saitta, and Gibbons

    In 2008, Bodden was convicted by a Douglas County jury of first-degree murder with the use of a deadly weapon for the 2006 shooting death of her husband, Rob, and was sentenced to 20 years to life in prison.  Bodden filed a motion for a new trial in district court, claiming her home was searched through a faulty search warrant and evidence obtained should have been suppressed.  She also contended that testimony involving DNA should not have been allowed.  The district court denied her motion.  Bodden is appealing both her conviction and the denial of her motion for new trial.  ISSUES:  Did the district court err in failing to suppress evidence obtained as a result of search warrants executed at Bodden's residence?  Did the district court err in admitting testimony regarding the DNA profile of certain hair samples?  Did the State present sufficient evidence to support the jury's verdict?

    IGT v. Wild Game NG, LLC (doing business as The Siena Hotel Spa and Casino)

                Sparks High School - 11:20 a.m. - Justices Cherry, Saitta, and Gibbons

    A synopsis of IGT is available here.


    Scotusblog summarizes this morning's argument in Citizens United v. Federal Election Commission here.  This is the second argument in the case.  The Court is again in recess until the first Monday in October.

    This and That

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    The Nevada Supreme will return another $2.5 million to the State General Fund.

    Justice Saitta has been chosen for a fellowship as one of 40 emerging state leaders.

    The Indigent Defense Commission will meet today from 10 to 2 at the Nevada Supreme Court chambers in Las Vegas and Carson City.

    On Friday, the Nevada Supreme Court denied OJ Simpson's motion for bail pending appeal.

    Chris Owens will now be the Assistant District Attorney for the Criminal Division.  Former ADA Christopher Lalli will rejoin the Major Violators Unit.

    Scotusblog previews a Nevada case that will be heard by the United States Supreme Court this fall: McDaniel v. Brown.

    In a couple of weeks there will be another shuffling of cases among some of the criminal judges in the 8th Judicial District.  Judges Bell and Silver will now handle criminal and civil cases.  Judge Mosley will be assigned fewer criminal cases and will now handle all misdemeanor appeals and foreclosure mediation appeals.  Some criminal cases will also be transferred from Judge Hardcastle.  Notices should be sent approximately one week prior to any court dates.

    Oral argument audio recordings available

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    Audio recordings are available for this week's oral arguments before the Nevada Supreme Court.

    8th JD E-Filing

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    Eighth Judicial District Court Chief Judge T. Arthur Ritchie, Jr. has issued an administrative order detailing the Court's decision to require mandatory electronic filing beginning on February 1, 2010.

    On February 1, 2010 the Eighth Judicial District Court will require mandatory electronic filing for all civil and criminal documents filed in the court (EJDC Administrative Order 09-12).

    Prepare now with E-Filing Training (1 CLE)

    What will the training cover?

    • Preparing and Planning for E-Filing before Feb. 1, 2010
    • Electronic service of documents.
    • EJDC Rules on E-Filing.
    • Best Practices for Success.

      Morning and afternoon training sessions will be held from 11:30 a.m.-12:30 p.m. and 3:30p.m.-4:30 p.m. on the following dates:

      • September 11th, 2009
      • September 25th, 2009
      • October 9th, 2009
      • October 23rd, 2009
      • November 13th, 2009

      Training sessions will be held in the Jury Services Lounge located on the 3rd floor at the Regional Justice Center (200 Lewis Ave.).  Space is limited to 50 participants per session.  Sign up now by calling (702) 671-4528.

      About this Archive

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

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