JoNell: March 2010 Archives

The US Supreme Court issued one opinion today.  In a unanimous decision, authored by Justice Thomas, the Court holds in United Student Aid Funds v. Espinosa that a bankruptcy court order, which discharged a student loan debt without a showing of undue hardship, was not void under Rule 60(b)(4) and was not void based on the debtor's failure to serve the creditor because the creditor had actual notice of the plan and failed to object.

Yesterday, the Court granted certiorari in four cases.  Scotusblog provides details and links to relevant docs:

Title: Connick v. Thompson
Docket: 09-571
Issue: (1) Does imposing liability for failing to train a prosecutor on a district attorney's office for a single Brady violation contravene rigorous culpability and causation standards? (2) Does imposing failure-to-train liability on a district attorney's office for a single Brady violation undermine prosecutors' absolute immunity?

Title: Belleque v. Moore
Docket: 09-658
Issues: (1) Whether the Fulminante standard -- that the erroneous admission of a coerced confession at the trial is not harmless -- applies when a collateral challenge is based on a defense attorney's decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, is it "clearly established Federal law" for purposes of 28 U.S.C. § 2254(d)(1).

Title: Kasten v. Saint-Gobain Performance Plastics Corp.
Docket: 09-834
Issue: Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?

Title: Flores-Villar v. United States
Docket: 09-5801
Issue: Whether the Court's decision in Nguyen v. Immigration and Naturalization Service (2001) permits gender discrimination that has no biological basis?



Slow week

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It's been a slow week for both the US Supreme Court and Nevada Supreme Court.  Opinions are expected from the US Supreme Court next Tuesday.  I have no ability to predict when opinions will issue from the Nevada Supreme Court.  Since December, there has been only one opinion in a criminal case from the Nevada Supreme Court and that opinion involved the publication of a previously unpublished order. 

The US Supreme Court has a new website and a new URL:

Rule changes for US Supreme Court

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Changes are effective February 16, 2010:  Revisions to Rules
Cromer v. Wilson - "Appellant Aaron Cromer received a jury verdict of $4,530,785.50 as a result of injuries he sustained in a car crash caused by respondent William Wilson.  On appeal, Aaron and his wife Felicia Cromer raise several issues, only one of which merits detailed consideration.  The Cromers contend that the district court should have granted summary judgment on the issue of liability because NRS 41.133 allows a judgment of conviction to conclusively establish civil liability for a crime and should have precluded Wilson from arguing comparative fault pursuant to NRS 41.141.

            We conclude that the conclusive presumption of NRS 41.133 applies to liability but does not abrogate the law regarding comparative negligence or damages.  The district court should have granted the summary judgment motion as to liability and held a trial as to damages only; at such a trial, the defense could have introduced evidence of comparative fault, if any, to reduce the damages award.  In this case, the district court allowed the trial to proceed as to liability and damages.  The jury found Wilson liable and awarded damages.  Although the district court utilized the incorrect procedure, the appropriate outcome was reached.  Therefore, we affirm the judgment of the district court.  See, e.g., Sanchez v. Wal-Mart Stores, 125 Nev. ___, ___ n.2, 221 P.3d 1276, 1280 n.2 (2009) (noting that this court will affirm a district court's order if the district court reached the correct result, even for the wrong reason)."

US Supreme Court issues 2 opinions

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Via Scotusblog, the US Supreme Court issued opinions in 2 cases today.

The first opinion is  Milavetz, Gallop & Milavetz, P.A. v. United States.  Justice Sotomayor writes for the Court, joined in full by six Justices and in part by Justices Scalia and Thomas.  Justice Scalia concurs in part and concurs in the judgment, joined by Thomas.  The Court holds that attorneys who provide bankruptcy assistance are debt-relief agencies under the bankruptcy abuse law.  The opinion is here.

The second opinion is in Bloate v. United States, reversing and remanding the lower court decision on a 7-2 vote.  Justice Thomas writes for the Court.  Justice Ginsburg joins the opinion but files a separate concurrence.  Justice Alito dissents, joined by Justice Breyer.  The time granted to prepare pretrial motions is not automatically excluded from the 70-day limit under the Speedy Trial Act of 1974.  The opinion is here.

via Scotusblog,

The Court has granted cert. in three cases,  NASA v. Nelson (09-320), Snyder v. Phillips (09-751), and Bruesewitz v. Wyeth (09-152). 

Title: Bruesewitz v. Wyeth
Docket: 09-152
Issue: Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 -- which expressly preempts certain design defect claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning" -- preempts all vaccine design defect claims, regardless whether the vaccine's side effects were unavoidable.

Title: Snyder v. Phelps
Docket: 09-751
Issue: (1) Whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress, under the Supreme Court's First Amendment precedents, applies to a case involving two private persons regarding a private matter; (2) whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly; and (3) whether an individual attending a family member's funeral constitutes a "captive audience" who is entitled to state protection from unwanted communication.

Title: National Aeronautics and Space Administration v. Nelson
Docket: 09-530
Issues: Whether the government violates a federal contract employee's constitutional right to informational privacy by (1) asking in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year and/or (2) asking the employee's designated references for any adverse information that may have a bearing on the employee's suitability for employment at a federal facility -- when the employee's and reference's responses are used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. § 552a.

Oral argument calendar: March 9

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San Juan (Elias) v. PSC Industrial Outsourcing,
Docket No. 50033
Carson City - 10:00 a.m. - Chief Justice Parraguirre and Justices Douglas and Pickering

This is a personal injury and workers' compensation case that arose from an explosion at DTI's plant that killed one employee and injured others.  The explosion occurred when inflammable gases from aerosol cans ignited.  DTI was hired by PSC Industrial Outsourcing to decant the aerosol cans.  The employees received workers' compensation benefits for their injuries even though DTI failed to make workers' compensation contributions.  In addition, the employees sued DTI, PSC, and others for their injuries.  The plaintiff argued that PSC owed the employees a duty that could not be delegated to anyone else because PSC contracted with DTI for the performance of inherently dangerous work.  PSC moved for summary judgment and the district court granted the motion.  ISSUES:  Did PSC owe the employees a duty that could not be delegated?  Does the general rule that workers' compensation benefits are the exclusive remedy for workplace injuries apply when DTI was not insured under the workers' compensation system? 

Gonski (Donald) v. District Court (PN II, Inc.),
Docket No. 53414
Carson City - 10:30 a.m. - Justices Hardesty, Douglas, and Pickering

This writ proceeding arises from a district court order compelling arbitration in a constructional defect matter in Washoe County.  Donald and Linda Gonski filed a lawsuit against the builder of their home, PN II, Inc., alleging constructional defects in the home.  The builder asked the district court to compel the parties to resolve their dispute through binding arbitration, which the builder argued is required by the home purchase agreement.  The Gonskis argued that, because the purchase agreement purported to incorporate a second arbitration clause pertaining to defects, but also referred to a statutory dispute resolution process, the purchase contract was unclear and confusing as to whether defect disputes must be arbitrated.  The Gonskis also argued that the purchase agreement failed to provide adequate notice that, by agreeing to arbitrate, important rights were being forfeited.  The district court granted the builder's request to compel the parties to participate in arbitration.  The Gonskis then filed this petition with the Nevada Supreme Court challenging the district court's order.  ISSUES:  Is arbitration of the Gonskis' case required by the parties' agreement? 

Docket No. 52510

Carson City - 11:30 a.m. - Justices Hardesty, Douglas, and Pickering

Randy Gamwell is appealing his conviction by a jury in Washoe County for burglary and first-degree kidnapping.  Before trial, a psychiatrist retained by Gamwell's counsel contacted the victim regarding an evaluation of Gamwell.  The prosecutor advised the victim not to speak to the psychiatrist.  Gamwell requested that the charges against him be dismissed because the prosecutor's advice violated Gamwell's right to interview witnesses.  The district court denied the request.  During closing argument, the prosecutor told the jury that the presumption of innocence no longer applied and referred to Gamwell's decision not to testify in his own defense.  After the jury returned its verdict, Gamwell moved for a judgment of acquittal on the kidnapping charge because it appeared that the jury based its verdict on the victim having suffered substantial bodily harm, although no jury instructions addressed that issue.  The district court also denied this motion.  ISSUES: Should the district court have granted the motion to dismiss because of the prosecutor's advice to the victim?  Did the State engage in prosecutorial misconduct during closing argument warranting reversal?  Should the district court have granted the motion for judgment of acquittal? 

Saylor v. Arcotta - "In this appeal, we clarify the applicable limitations periods for equitable indemnity and contribution claims.  In doing so, we conclude that claims for equitable indemnity are subject to the limitations period prescribed by NRS 11.190(2)(c), while claims for contribution are subject to the limitations period prescribed by NRS 17.285.  Because no judgment has been entered in the case at hand, and thus the applicable statutes of limitations have not yet begun to run, we reverse the district court's summary judgment as to appellants' third-party complaint for indemnity and contribution."

Schwartz v. Schwartz -   "We conclude that the district court abused its discretion in failing to conduct a full and proper analysis of whether lump-sum alimony was appropriate in this case and hold that a district court should assess not only age disparity as set forth in Daniel v. Baker, 106 Nev. 412, 794 P.2d 345 (1990), but should also assess whether the life expectancy of the payor makes the award illusory."

Coast to Coast Demo v. Real Equity Pursuit - "This is an appeal from a judgment entered by confession.  The appellants, who are the judgment debtors, acknowledged the debt but challenge the confession on statutory grounds and as unconscionable.  We affirm."


Ritter v. State - (Elko) - insufficient evidence to support the conviction of trafficking in a controlled substance.  It appears that the defendant was arrested on an outstanding warrant and was transported to the jail in a police car.  The next day, officers found a bag of methamphetamine in the police car, under the front seat.  The Court finds insufficient evidence after finding that there was no proof of actual possession, no proof of constructive possession, and abandonment. 

Bowser v. State - (Las Vegas) - reversal of a conviction for first-degree murder and other offenses based upon a bailiff's shotgun demonstration to the jury.  The bailiff did not inform the court or counsel for either party that the jury wanted a demonstration of a shotgun.  At the jury's request, the bailiff pumped the gun and fired it as fast as he could.  The bailiff later performed a similar presentation in the courtroom.  The Court found juror misconduct based upon the bailiff's actions and found the defendant was prejudiced. The Court rejects the defendant's claim that admission of statements to the police following invocation of Miranda rights warranted reversal.  At the time of his arrest he stated "you guys got me.  I'm going to make you work for it.  I'll see what my attorney can do for me."  The Court finds that the defendant did not unequivocally invoke his right to counsel.

Schuster v. State - (Las Vegas) - reversal of a conviction for second degree murder and other offenses based upon the district court's failure to give an instruction on involuntary manslaughter.

In a fourth case, Rudolpho v. State, the Court finds that a defendant should not have been convicted of both grand larceny and possession of stolen property.  The Court vacates the conviction for possession of stolen property but otherwise affirms the conviction.

US Supreme Court issues 3 opinions

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Via Scotusblog:

In Johnson v. United States, the Court rules 7-2 that a "violent felony" under federal law requires the use of physical violence, thereby reversing and remanding the lower court.  Justice Scalia writes for the majority, while Justice Alito dissents, joined by Justice Thomas.  The full opinion in pdf format is here.

The case concerns a sentencing enhancement under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates 18 USC 922(g) and has three previous convictions for "a violent felony."  The government claimed that the defendant's misdemeanor conviction for simply battery qualified under the statute because the defendant had previously been convicted of another battery, so this misdemeanor offense was a felony under Florida law.  Florida defined battery as occuring when a person either "actually and intentionally touches or strikes another person against his will" or "intentionally causes bodily harm to another person."  The Court found there was nothing in the record permitting the trial court to find that the defendant's conviction rested upon "striking" or "intentionally causing bodily harm" elements of the offense.  The language of the statute that permitted a conviction for "actually and intentionally touching" another, does not constitute the use of "physical force" under 18 USC 924(e)(1).  The interpretation of "physical force" is a matter of federal law, not state law, so it does not matter that the Florida Supreme Court has found that a battery is a violent offense.  The federal statute does not define "force" - the Court finds that it means the application of strength, power and violence.  The force must be capable of causing physical pain or injury to another person.

In Reed Elsevier v. Muchnick, on a 5-3 vote, the Court reverses and remands, ruling that a copyright must be registered before one may file an infringement claim, but the failure of a copyright holder to have a registration does not restrict a federal court's power to decide infringement claims involving works that are not registered.  Justice Thomas delivers the majority opinion; Justice Ginsburg concurs in part and concurs in the judgment, joined by Justices Stevens and Breyer.  Justice Sotomayor took no part in the decision.  The full opinion is here

In Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service, the Court reverses in part, limiting the right of the holder of a franchise to sue after the franchise agreement is terminated.  Justice Alito writes the unanimous opinion of the Court, which is here.

The state budget was the primary focus of the special legislative session, but there were a few bills that impact the courts.  Specifically, AB 2, which passed the Assembly and Senate and is awaiting the Governor's signature, would allow Counties, including County Clerks and District Attorneys, to deviate from the typical five day work week if doing so is fiscally neutral or results in a cost savings.  This might suggest that Counties could decide the courts should operate on a 4-day work week.  AB 6, which also passed the Assembly and Senate and is awaiting the Governor's signature, addresses several bugetary matters that impact the courts, criminal justice agencies and the prisons.  Of particular interest:

The budget of the Attorney General's Office will be reduced $1,391,545 in 2009-10 and $781,837 in 2010-11.

Earnings are earmarked from the Department of Corrections based upon charging the Offenders' Store for rent, charging the Offenders' Store for the rent of gymnasiums and for 50% of the costs of officer salaries for visitation posts, charging inmates a one-time energy surcharge on the purchase of electronic devices, cancelling the Choices contract, a reduction of medical payments to the Medicare rates, and a reduction of debt-service costs for the Women's prison.

The bill would hold vacant 12 positions at Lake's Crossing.

The bill requires the closing of Summit View Youth Correctional Center and the elimination of 49 positions at the facility.

SB 3, which passed the Senate and Assembly and is awaiting signature by the Governor, establishes a 4-day workweek for "the offices of all state officers, departments, boards, commissions and agencies" unless granted and exemption.  The bill provides that the Supreme Court shall determine exemptions from the requirements of this section for offices within the Judicial Branch of State Government.  The bill also provides that newly hired classified employees in the state system  shall be subject to a pay plan that does not include any special or other adjustments to the base rates set forth in the pay plan.  Under the bill, corrections officers must be scheduled to work not less than 3 consecutive 12-hour shifts and not less than 7 12-hour shifts during each 14-day pay period. 








The US Supreme Court granted certiorari in one case today: Michigan v. Bryant.  Scotusblog provides links to the lower court opinion, petition for cert. and opposition:

Issue: Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were "made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?

This Week at the US Supreme Court

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Via Scotusblog:

The Court is expected to release orders today at 10 a.m. and is expected to release opinions tomorrow.  The following cases are also scheduled for oral argument (Health Care Service Corp. v. Pollitt (09-38), which was originally scheduled for oral argument on Wednesday, has been removed from the hearing list because the case was privately settled).

Monday, March 1:

  • Berghuis v. Thompkins (08-1470) -- Miranda, police persuasion of an individual in custody
  • Holland v. Florida (09-5327) -- extended time to file habeas plea due to defense lawyer's negligence in capital case
  • Skilling v. United States (08-1394) -- constitutionality and scope of "honest services" fraud law; effect of pre-trial publicity

Tuesday, March 2:

  • McDonald v. City of Chicago (08-1521) -- incorporation of Second Amendment against the states
  • Hui v. Castaneda (08-1529; 08-1547) -- "Bivens actions" against doctors and nurses in federal medical facilities over flaws in medical care claimed to violate patients' constitutional rights

Wednesday, March 3:

The Justices will hold a private conference on Friday.

Pyramid Lake Paiute Tribe v. Hugh Ricci, State Engineer,
Docket No. 51603
Carson City - 10:00 a.m. - Full court

This appeal arises from a dispute over water rights in Washoe County.  In 1980, Nevada Land and Resource Co., LLC (NLRC), received permits to appropriate groundwater from the Dodge Flat Hydrologic Basin for a mining and milling project. In 2000, NLRC applied to change the permit to use the groundwater to service a power generating plant.  The Pyramid Lake Paiute Tribe contested the applications on several grounds.  After the State Engineer granted the applications, the Tribe petitioned the district court for review of the ruling. The district court denied the petition, and the Tribe now appeals to the Supreme Court.  ISSUE: Does substantial evidence support the State Engineer's findings in granting the applications? 

In re: Nevada State Engineer Ruling No. 5823,
Docket No. 52963
Carson City - 10:30 a.m. - Full court

This case involves 27 consolidated groundwater applications for the Dayton Valley Hydrographic Basin in Lyon County.  The Pyramid Lake Paiute Tribe opposed the applications, contending that the groundwater use would ultimately decrease flow into the Pyramid Lake and adversely affect the Tribe's interests.  In Ruling No. 5823, the State Engineer granted all 27 applications.  The Tribe filed a petition for judicial review in the district court in Churchill County.  The Tribe was joined in the petition by Churchill County, which has surface rights in the Carson River that may be affected by changes to the Dayton Valley Hydrographic Basin.  The district court dismissed the petition for lack of subject matter jurisdiction, concluding that jurisdiction for review of a State Engineer's ruling is determined by the location of the applicant's water rights, which in this case is Lyon County.  The Tribe and Churchill County have appealed the district court's denial of their petition to the Supreme Court.  ISSUES:  Did the district court err in concluding that it did not have subject matter jurisdiction to hear the petition for review?  Should the district court have transferred the petition to Lyon County rather than dismiss it? 

Vanisi (Siaosi) v. State of Nevada (Death Penalty),

Docket No. 50607

Carson City - 10:00 a.m. - Full court

This is Siaosi Vanisi's appeal from a district court order denying his post-conviction petition for a writ of habeas corpus in a death penalty case.  Vanisi was convicted by a Washoe County jury of first-degree murder, robbery with the use of a deadly weapon, two counts of robbery with a firearm, and grand larceny, for the 1998 murder of a UNR Police sergeant, and the subsequent theft of a car and robbery of two stores.  Vanisi previously appealed his convictions and death sentence, which were affirmed by the Nevada Supreme Court in 2001.  Vanisi then filed a petition for a writ of habeas corpus in the district court, arguing that his conviction was invalid for numerous reasons.  The district court denied the habeas corpus petition and Vanisi has appealed that decision to the Supreme Court.  ISSUES:  Does the jury's consideration of an invalid aggravating circumstance warrant a new penalty hearing?  Was Vanisi's trial counsel ineffective?  Was Vanisi's counsel for his appeal ineffective?  Did the district court err in finding Vanisi competent to proceed with his post-conviction petition? 

Mack (Darren) v. State of Nevada,

Docket No. 51143

Carson City - 10:30 a.m. - Full court (Justice Hardesty voluntarily recused himself from participation in this matter)

Darren Mack is appealing his convictions of first-degree murder and attempted murder with the use of a deadly weapon.  Mack pleaded guilty to first-degree murder for the killing of his estranged wife.  Mack also pleaded guilty to the shooting of the Washoe County Family Court Judge who was presiding over the couple's divorce, pursuant to North Carolina v. Alford, in which a defendant pleads guilty without actually admitting guilt.  Before he was sentenced, Mack requested that he be allowed to withdraw his guilty pleas, claiming that he did not fully understand the nature and consequences of the pleas.  This request was denied.  Mack was then sentenced to 20 years to life for first-degree murder, and 96 to 240 months for attempted murder, and a consecutive sentence of 96 to 240 months for the use of a deadly weapon.  ISSUES:  Should an understanding of lesser-included offenses be factored into determining whether a defendant's guilty plea is knowing and voluntary?  Should Nevada follow Rule 11 of the Federal Rules of Criminal Procedure, which governs pleas in federal courts?  

Reno Newspapers, Inc. v. Governor Jim Gibbons,

Docket No. 53360

Carson City - 11:30 a.m. - Full court

This appeal arises from a dispute between Governor Jim Gibbons and the Reno Gazette-Journal (RGJ) over a request by the newspaper for some of the Governor's e-mails.  In 2008, the RGJ made a public records request for e-mails between Governor Gibbons and 10 people over a six-month time period.  In the event that the Governor objected to the request, the RGJ asked that it alternatively be provided with a log indicating, for each e-mail, the sender, all recipients, the message date, and the basis on which access was being denied.  The Governor denied the request, claiming that the requested e-mails were either privileged or not considered public records.  The RGJ filed a petition for a writ of mandamus in the district court, seeking access to the e-mails or the alternative log.  After a hearing and a review of the e-mails by the judge, the district court granted the writ as to six e-mails, and denied the writ as to the remaining e-mails.  The RGJ is now appealing the district court's decision.   ISSUES:  What is a public record for purposes of the Nevada Public Records Act?  Should the district court have ordered the Governor to produce the requested log rather than personally reviewing the e-mails and determining which e-mails should be provided?