Nevada Supreme Court: January 2009 Archives

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

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

The Court also issued opinions in several civil cases:

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

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

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

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


Monday, February 2, 2009

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

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

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

Tuesday, February 3, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Interesting unpublished decisions

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

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

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

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

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

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

In the news

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

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

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

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



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

Fields v. State

Rico-Arreolla v. State

Smith v. State

Funderburk v. State

Chavez v. State

Noguera v. State

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

Disclosure: I am counsel for Jones.

2008 Nevada Supreme Court Statistics

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

Number of published opinions: 103

Criminal: 35

Civil: 57

Family: 1

Bar: 1

Judicial Discipline: 1

Certified question: 2

Election: 6


Affirmed or Petition Denied: 42

Reversed or Petition Granted: 38

Affirmed in part, reversed in part: 22

Other: 2


Criminal Cases:

Favorable to Defense: 13

Favorable to Prosecution: 16

Mixed: 5


Death Penalty: 4

Death sentences reversed: 1

Death sentences affirmed: 3


En Banc: 64


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

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

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

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

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

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

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

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

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

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

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

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

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

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



Hardesty, Parraguirre, Douglas - 24


Douglas, Parraguirre majority/Hardesty concurs & dissents - 1


Maupin, Cherry, Saitta - 6

Gibbons, Maupin, Cherry - 1

Gibbons, Maupin, Saitta - 1

Gibbons, Cherry, Saitta - 2


District court judge records:

Adair - affirmed - 3, affirmed in reversed - 3

Adams - reversed -2

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

Bonaventure - reversed - 2

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

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

Cory - reversed - 2

Denton - reversed - 2

Dobrescu - affirmed - 1

Earl - affirmed - 1

Elliott - affirmed - 1

Estes - affirmed - 2

Flanagan - affirmed - 1

Gamble - affirmed in part & reversed in part - 1

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

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

Griffin - affirmed - 2, reversed - 1

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

Herndon - affirmed - 3, reversed - 1

Lane - affirmed - 1

Leavitt - reversed - 2

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

Lueck - reversed - 1

Miley - affirmed in part & reversed in part - 1

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

Palikowski - affirmed - 1

Polaha - reversed - 1

Puccinelli - reversed - 1

Robison - affirmed

Saitta - reversed - 3

Steinheimer - affirmed - 4

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

Togliatti - affirmed - 3, reversed - 1

Vega - affirmed - 2, reversed - 3

Villani - affirmed - 1

Voy - affirmed - 1, reversed - 1

Wagner - affirmed - 2

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

Walsh - affirmed - 1, reversed - 1

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

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

State Bar - affirmed - 1

State Board of Equalization - reversed - 1

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

Oral argument calendar: Jan. 14 & 16

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Wednesday, January 14, 2009

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

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

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

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

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

Thursday, January 15, 2009

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

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

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

Friday, January 16, 2009

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

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

About this Archive

This page is a archive of entries in the Nevada Supreme Court category from January 2009.

Nevada Supreme Court: December 2008 is the previous archive.

Find recent content on the main index or look in the archives to find all content.

Nevada Supreme Court: January 2009: Monthly Archives

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