Nevada Supreme Court: November 2009 Archives

Nevada Supreme Court issues opinion

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John v. Douglas County School District - The Court, sitting en banc, issues an opinion authored by Justice Gibbons, which holds that Nevada's anti-SLAPP statute applies to a plaintiff's federal causes of action and finds that the district court properly dismissed the plaintiff's lawsuit under the anti-SLAPP statute.

Oral argument calendar: Dec. 2

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Wednesday, December 2, 2009 - Carson City, Full Court

Hamilton (Tamir) v. State of Nevada (Death Penalty)

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

In this case, Tamir Hamilton is appealing his conviction by a Washoe County jury of sexual assault and first-degree murder, and his sentence of death.  The charges arose from the rape and murder of a 16-year-old girl in her home in Sparks.  During jury selection, the prosecution used peremptory challenges to remove the only two African Americans on the jury panel.  Hamilton objected and argued that the removal of the two jurors violated Batson v. Kentucky.  The district court denied Hamilton's objection, concluding that the State articulated race-neutral reasons for exercising the challenges.  At his trial, Hamilton presented an insanity defense.  ISSUES:  Did the district court err in denying Hamilton's claims pursuant to Batson v. Kentucky?  Did the district court properly rule on evidentiary issues related to Hamilton's insanity defense and properly instruct the jury on insanity? 

Washoe Medical Center v. Vanderford (Betty)

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

This case arises out of serious permanent injuries that a child suffered after a series of visits to the emergency room of Renown Medical Center in Reno.  Betty Vanderford took her son to Renown's emergency room on three different occasions.  Each time, a different doctor saw the child and either referred him to a different doctor or prescribed antibiotics.  After the child collapsed, he was rushed to the emergency room a fourth time and was diagnosed with meningitis.  The child suffered brain damage, blindness, and severe impairment of his motor skills.  Vanderford sued Renown and the doctors for medical malpractice.  The district court granted partial summary judgment to Vanderford, determining that Renown owed the child a duty to provide competent medical care that could not be delegated to independent contractor doctors, and Renown is therefore liable for the acts of the doctors.  Renown is now appealing the district court's decision.  ISSUES:  Did Renown owe a nondelegable legal duty to provide competent emergency medical care to Vanderford's son? 

State of Nevada v. Castaneda (Marty)

            Carson City - 1:30 p.m. - Full court


This is an appeal of a district court ruling that Nevada's indecent exposure statute is unconstitutional.  After being observed in front of the Clark County jail lifting his shirt, rubbing his chest, and pulling down his pants to expose his buttocks and genitals, Marty Castaneda was charged with two counts of indecent exposure.  Castaneda sought dismissal of the charges, arguing that the indecent exposure statute, NRS 201.220, is unconstitutionally vague and overbroad.  The district court granted the motion and the State has appealed that decision.  ISSUE:  Was the district court correct in concluding that NRS 201.220 is vague and overbroad? 

Oral argument calendar: Dec. 1

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Tuesday, December 1st, 2009 Carson City - Full Court
Monday, 23 November 2009 08:17

Dozier (Scott) v. State of Nevada (Death Penalty)

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

In this appeal, Scott Dozier is challenging his conviction by a Clark County jury of first-degree murder and robbery, both with the use of a deadly weapon, and his sentence of death.  The charges arose from the shooting death and taking of money from a man in Clark County.  During his trial, the district court denied Dozier's requests to give certain jury instructions, such as an instruction on the elements of voluntary manslaughter.  Dozier has appealed his conviction and has raised numerous issues in the Supreme Court.  ISSUES:  Did the district court err in instructing the jury during the guilt and penalty phases of the trial?  Did the State commit prosecutorial misconduct? 

Posas (Emilia) v. Horton (Nicole)

            Carson City - 1:30 p.m. - Full court

ISSUES:  Did the district court err in giving a jury instruction regarding a "sudden emergency"?  Should the district court have granted the motion to set aside the judgment? 

FACTS:  This case arises out of a traffic collision.  Emilia Posas was driving in Las Vegas, when a woman with a stroller started to cross the street in front of her.  Posas stopped suddenly to avoid hitting the pedestrian.  Nicole Horton, who was driving directly behind Posas, rear-ended Posas's car.  Both vehicles sustained major damage and Posas was transported to a local hospital by ambulance.  Posas brought a tort claim against Horton.  At trial, the jury was instructed regarding when a person "confronted with a sudden emergency" will not be guilty of negligence.  The jury returned a verdict in favor of Horton.  After judgment was entered in Horton's favor, Posas made a motion to set aside the judgment based on Horton's expert witness admitting in a different trial that he sometimes lies under oath.  Posas has appealed the judgment and the order denying the motion to set aside the judgment. 

Nevada Division of Insurance v. Payroll Solutions Group

            Carson City - 2:00 p.m. - Full court

This case involves whether the Nevada Division of Insurance may regulate the activities of Payroll Solutions Group.  Payroll is an employee leasing company, which is a company that contracts with client employers to provide administrative services (such as submitting tax documents and providing health care benefits) while the client employer retains operational control over employees (such as hiring and firing).  The Division of Insurance sought to regulate Payroll for operating a multiple employee welfare arrangement (MEWA), because MEWAs are subject to regulation under the state's insurance code.  Payroll argued that it is the "employer" of the leased employees and its employee benefit plan should be considered a single employer plan, subject to regulation exclusively under the Employee Retirement Income Security Act and not subject to state regulation.  After an administrative hearing on the matter, the Division found that Payroll was not the employer of the leased employees and was therefore operating a MEWA without a certificate of authority.  The Division imposed fines of over $1 million.  Payroll petitioned for judicial review in the district court in Clark County, which reversed the decision of the Division, finding that Payroll was indeed the "employer" of the leased employees.  The Division is appealing the district court's decision.  ISSUES:  Is Payroll the "employer" of the leased employees? 

The Nevada Supreme Court has issued the Annual Report of the Nevada Judiciary, Fiscal Year 2009.  The statistics on caseloads are interesting.

The Nevada Supreme Court has amended NRAP 30(f).  The new rule is effective January 1, 2010 and now provides for the filing of an electronic copy or a cd-rom of the appendix:

(f) Number of Copies to Be Filed and Served.

(1) Paper Copies.  One paper copy of the appendix filed with the clerk, and one copy shall be served on counsel for each party separately represented, unless the court orders otherwise.

(2) Electronic Copies.  A party represented by counsel must submit every appendix on a CD-ROM, and serve a CD-Rom version on all opposing counsel, in addition to filing the required number of paper copies, unless the appendix has been electronically filed in the Nevada Supreme Court or counsel certifies that submitting a CD-ROM version of the appendix would constitute extreme hardship.  A party not represented by counsel who has been granted permission to file documents in proper person under NRAP 46(b) is encouraged, but not required, to submit and serve a CD-Rom version of the appendix, in addition to filing the required number of paper copies.


The Nevada Supreme Court issued three opinions today, including one interesting opinion and another opinion which results in the removal of a Family Court judge from the bench.

In Lueck v. Teuton, the Nevada Supreme Court concludes that Family Court Judge Robert Teuton's temporary term expired on the first Monday in January, 2009.  He was appointed by the governor to fill a vacancy in August, 2008.  The Court finds that the seat should have been placed on the November, 2008 ballot and rejected the argument that he is allowed to serve under the appointment until the next general election (November, 2010) in which strict compliance with all election deadlines could be met.  The Court also finds that Robert Lueck lacked standing to bring the challenge, but nonetheless addressed the merits of the issue presented under the Court's supervisory responsibilities over the judicial branch.  The Governor will now be asked to fill the vacant position.

In Glover v. District Court, the Court, in an en banc 4-2-1 decision, denies a petition for a writ of prohibition which sought to prohibit a second trial following a mistrial.  The majority (Justices Pickering, Gibbons, Parraguirre and Douglas) find that there was manifest necessity for a mistrial based upon defense counsel's action of referring to facts that were not in evidence.  Specifically, the State obtained a statement from the defendant after his arrest, but the State did not introduce the statement at trial.  Defense counsel referred to the statement during opening statements, cross-examination of a detective, and closing argument.  He argued that the jurors should ask themselves why the State would not let them see or hear what the defendant said to the police and, following the State's objection which had been sustained, that the tape would be devastating to the State's case.  The district court declined to issue a curative instruction and instead declared a mistrial.    The majority finds that defense counsel was wrong to mention the tape of the defendant's statement and that the district court acted within its discretion in granting the mistrial.

Although the State prevails in this case, there is language from the majority opinion that is useful to the defense bar.  For example, "prosecutor" can easily be substituted for "defense lawyer" in the following:  "For a defense lawyer to make statements to the jury that are not and cannot '"be supported by proof is, if it relates to significant elements of the case, professional misconduct . . . and fundamentally unfair.'"  Washington, 434 U.S. at 513 n.32 (quoting United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J. concurring)).  Such misconduct "unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal[ ] [and] create[s] a risk, . . . not present in the individual juror bias situation that the entire panel may be tainted.'  Id. at 512."  Additional favorable language is found throughout the opinion.  The opinion also addresses prior consistent statements and negative inferences based upon the failure to produce evidence.

Chief Justice Hardesty and Justice Saitta concurred in part and dissented in part.  They concluded that the district court abused its discretion in granting the mistrial as a curative instruction would have been a sufficient remedy.  Justice Cherry dissented.  He concluded that the defense attorney did not commit misconduct.

There is a statement in the majority opinion which is incorrect.  In footnote 5, the Court states "[T]his court has never differentiated between the state and federal constitutional protection against double jeopardy, and the parties do not suggest a basis for doing so in this case."  In Wilson v. State, 170 P.3d 975 (2007), the Nevada Supreme Court refused to follow the analysis adopted by the US Supreme Court, in United States v. DiFrancesco, 449 U.S. 117, 138-39 (1980), for the federal constitutional guarantee as it concerns an increase of a sentence following remand for a new sentencing hearing.  It found that Article 1, Section 8(1) of the Nevada Constitution provides a more protections than those afforded under the federal constitution and concluded that a defendant's sentence may not be increased on remand.  

Finally, in Ogawa v. Ogawa, the Court addresses an international child custody dispute and other divorce issues. 





Oral argument calendar: November 13

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Xtreme Faith Academy v. Landry (Robin)

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

Xtreme Faith Academy v. Landry (Robin)

Docket No. 52044

This is an appeal and cross-appeal from district court judgments involving a boarding school in White Pine County.  Xtreme Faith Academy, d.b.a. Abundant Life Academy (ALA), operated an unlicensed boarding school.  Robin Landry was the rural manager of the Division of Child Protective Services (CPS) of the State of Nevada.  After receiving a complaint from a parent who had pulled her child from ALA alleging neglect and abuse, CPS began an investigation into the care ALA provided for its students.  In May 2005, following the conclusion of its investigation, CPS removed all 33 students from ALA's facility.  After a hearing, the district court found that reasonable cause did not exist for the removal of the children.  Subsequently, ALA filed a complaint for damages against CPS claiming bad faith, abuse of process, malicious prosecution, intentional interference with contractual relations, kidnapping, and negligence.  CPS filed a motion for summary judgment seeking the dismissal of ALA's claims, and a motion seeking immunity for Landry.  The district court denied immunity for Landry and dismissed all of ALA's causes of action except for abuse of process.  After a trial, a jury awarded money damages in favor of ALA.   However, the district court capped the damages award at $50,000 pursuant to NRS 41.035.  ALA is appealing the district court's order capping damages.  After the trial CPS filed a motion for judgment as a matter of law or, alternatively, for a new trial.  The district court denied CPS's motion.  CPS is appealing the denial of its motion for new trial.  ISSUES:  Did the district court improperly conclude that CPS and Landry were not entitled to immunity pursuant to NRS 41.032?  Did the district court improperly apply the damages cap contained in NRS 41.035?   Did the district court err in denying CPS's and Landry's motion for summary judgment and motion for judgment as a matter of law or, in the alternative, for new trial? 

Oral argument calendar: November 12

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Thiede (Cody) v. State of Nevada

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

Docket No. 50164

In this case, Cody Thiede is appealing his jury conviction in Lincoln County for one count each of sexual assault of a child under 14 years of age, lewdness with a child under 14 years of age, and first-degree kidnapping.  The charges were based on two incidents involving a single victim, S.C.  During the trial, the district judge questioned a nurse regarding the physical examination of the victim and also questioned a sheriff's deputy about conflicting testimony regarding locks on the victim's bedroom door.  Thiede argues that this questioning by the judge improperly elicited testimony that favored the State's case.  Thiede also argues that the prosecutor committed misconduct by, among other actions, commenting on Thiede's exercising his right to remain silent and commenting on the victim's demeanor.  ISSUES:  Was the trial judge biased?  Did the prosecutor engage in misconduct warranting reversal of the judgment of conviction?

Thiede (Cody) v. State of Nevada

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

Docket No. 50603

In this case, Cody Thiede is appealing his conviction by a jury in Lincoln County for two counts of lewdness with a child under 14 years of age.  The charges were based on three incidents involving a single victim, J.J.  Thiede argues that the prosecutor committed misconduct by vouching for the victim's veracity, inflaming the jurors' passions, and referring to facts not in evidence.  ISSUES:  Did the prosecutor engage in misconduct warranting reversal of the judgment of conviction? 

Madsen (Patrick) v. State of Nevada

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

Docket No. 51270

In this case, Patrick Madsen is appealing his conviction in Lincoln County on two counts each of sexual assault of a child under 14 years of age and lewdness with a child under 14 years of age.  At the sentencing hearing, a letter from the victim's mother was provided to the court and counsel stating that Madsen should receive the maximum sentence for several reasons, including that he gave the victim a sexually transmitted disease.  Madsen asked the district court to set aside the verdict and for a new trial, arguing that the prosecution withheld the letter, but that motion was denied.  Madsen now appeals his conviction and the denial of his motion for new trial.  ISSUES:   Did the district court err in denying appellant's motion to dismiss the lewdness counts because the lewdness charges were redundant and duplicative in relation to the sexual assault charges?  Did the district court err in denying appellant's motion to set aside the verdict and for new trial? 

The Nevada Supreme Court provides a live webcast of its oral arguments.  The link appears on the Court's home page shortly before arguments begin.  Audio recordings of arguments are generally available a few hours after the argument.

About this Archive

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

Nevada Supreme Court: October 2009 is the previous archive.

Nevada Supreme Court: December 2009 is the next archive.

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