Jury Trials Start Again in Second Judicial District Court

March/April 2021Vol. 43, No. 2 The

OFFICIAL PUBLICATION OF THE WASHOE COUNTY BAR ASSOCIATION

Jury Trials Start Again in Second Judicial District Court

n September 2020, traditional approach for six months into conducting jury trials the pandemic, the in this district, with SecondI Judicial District minor modifications, Court resumed in-person was used in the fall and criminal jury trials. is anticipated to continue Although there wasn’t any being used while known increased exposure COVID-19 is a concern. to the virus for anyone The Court’s protocols, involved, after three trials procedures, and goals the Courthouse was again are to maximize distance shutdown due to the rise and minimize contact in local infections. This between individuals, and left the legal community to minimize the length wondering, when will jury of time participants trials start again? The are physically in the answer to that question for courthouse. To this end, months has laid more with courtrooms are outfitted the COVID-19 virus than Courtroom 4 with plexiglass and with the Court. new enhanced sound systems. Zoom On March 16, 2020, the Second committees to plan for the resumption technology is being utilized within Judicial District Court closed its doors of in-person jury trials2 and the Court the courthouse to allow for public to in-person proceedings due to the adopted protocols for resuming jury observation and allow prospective jurors COVID-19 pandemic.1 It quickly trials.3 in alternative locations to view and hear became clear that COVID-19 was here The Bench decided the cases with all appropriate public proceedings. to stay, and in May 2020, Chief Judge the highest priority to be heard are To minimize COVID-19 exposure Freeman appointed civil and criminal criminal jury trials where the accused is to potential jurors, jury selection begins bar members to Resumption of Jury in custody and has invoked his/her right before the first juror arrives at the Trial Committees. The Bench sought to a speedy trial. With that in mind, courthouse. The process starts with the recommendations on how and if civil Trial Flights (TFs) have been created Jury Commissioner randomly selecting and criminal jury trials could be safely and criteria adopted to determine the potential jurors who have been qualified resumed in the Second Judicial District order in which cases will be tried.4 to be summoned to serve as a juror. Court. In July, the Committees provided After exploring many alternative The Jury Commissioner then sends all thorough reports to the Bench. Based sites, the two largest courtrooms jurors a letter regarding safety protocols on those reports, the Chief appointed in the 75 Court Street Courthouse the Court has implemented and a a working group of judges, court were chosen to be the location for administrators, and members of the bar conducting in-person jury trials. The Continued on page 5

`` RANDOM CONVERSATIONS APPELLATE FAMILY LAW LAW LIBRARY/ MEDIATION JUDICIAL COURTS/ THOUGHTS ON DISCOVERY BRIEFS PRO BONO REFLECTIONS PEOPLE PG 2 PG 3 PG 6 PG 8 PG 10 PG 12 14 PG 15 Random Thoughts

Chandeni Sendall President

A Return to Normalcy

ith the FDA’s Emergency Use and Drug Administration and the impact a mandate might WAuthorization in late 2020 (FDA) grants full approval. have on company culture and of two COVID-19 vaccines, return to Though that number might go employee morale (67 percent). pre-pandemic life and the practice of up as time goes on – 43 percent The concern was also widely law appears to be in sight. However, haven’t written off the idea of captured in verbatim responses, experts note that a return to normalcy a mandate completely – 48 many of which noted that a will require widespread vaccination. A percent have already decided mandate would be perceived as critical question for employers is whether that they will not require an infringement of basic civil to require COVID-19 vaccinations for employees to be vaccinated. liberties. workers. Given the potential legal Mandate aside, most The law firm of Littler Mendelson and administrative issues at employers do plan to encourage recently conducted an employer play – for instance, exemptions employees to get the vaccine. survey addressing this very issue.1 The or accommodations for Nearly 90 percent said they Executive Summary of those findings is employees with religious would provide information included below and addresses employers’ objections, pregnant or to employees (e.g., how to key concerns, plans and strategies related lactating workers, and those get vaccinated, the benefits to COVID-19 vaccination among their with disabilities that may of doing so) and nearly 40 workforce.2 prevent them from getting percent said they would offer For employers, the new vaccinated – it’s unsurprising vaccine administration at their year has brought an urgent that 64 percent of respondents facility to increase convenience question to the fore: Should expressed concern around – even though this may be we mandate COVID-19 legal liability (if employees easier said than done. A third vaccinations for our workforce? experience an adverse reaction said they would offer paid time The sentiment gathered to the vaccine) and that off for employees to receive the from more than 1,800 in-house 57 percent questioned the vaccine and/or recover from lawyers, HR professionals and effectiveness of a mandate any side effects. C-suite executives across the given the number of potential Of course, without a country who responded to exemptions. mandate, there will inevitably our survey boils down to two But perhaps more be a split in the workforce words: “Probably not.” surprising is that these issues between those who have Less than 1 percent were not even employers’ top received the vaccine and those currently mandate vaccination concerns. Those were reserved who have not. Thus, nearly for all employees, and only for cultural quandaries, like 75 percent of respondents 6 percent say they plan to pushback from employees who have some level of concern once vaccinations are readily refuse to get the vaccine or available and/or the U.S. Food oppose it generally (79 percent) Continued on page 9

JENNA GARCIA, EDITOR PRESIDENT CHANDENI SENDALL The GINA MACLELLAN, MANAGING EDITOR SECRETARY RYAN LEARY ANNUAL SUBSCRIPTION RATE FOR NON-MEMBERS OF WCBA: $36 TREASURER THERESE SHANKS SERGEANT-AT-ARMS JENNA GARCIA THE WRIT IS THE OFFICIAL PUBLICATION OF THE WASHOE COUNTY BAR ASSOCIATION WCBA, P.O. BOX 1548, RENO NV 89505 EXECUTIVE DIRECTOR GINA MACLELLAN TEL: 775-786-4494 FAX: 775-324-6116 ARTICLES APPEARING IN THE WRIT EXPRESS THE VIEWS OF THE AUTHORS AND NOT NECESSARILY THOSE OF THE WCBA. FOR ADVERTISING CALL THE WRIT AT 775-786- WWW.WCBAR.ORG E-MAIL: GINA @WCBAR.ORG 4494. WCBA RESERVES THE RIGHT TO ACCEPT OR DENY ANY ADVERTISING.

2 March/April 2021, Vol. 43, No. 2 CONVERSATIONS ON DISCOVERY By Wesley M. Ayres, Discovery Commissioner

ourts expect parties to Zitting then sued APCO and the its interrogatories and explain its provide all information project owner for breach of contract, reasoning for not disclosing its other Cand documents that are foreclosure of a mechanics’ lien, and defenses. The court therefore precluded reasonably available to them in making various other claims. APCO raised APCO from providing evidence in disclosures under NRCP 16.1. Similarly, various affirmative defenses in its support of those other defenses. The parties must provide all information answer, including that Zitting failed court subsequently entered a judgment and documents in response to written to meet conditions precedent and that in favor of Zitting under NRCP 54(b), discovery requests in accordance with the project owner never paid APCO and APCO appealed that decision. See the standards governing those responses to thereby compel payment under id. at 5-6, 473 P.3d at 1025. (e.g., all responsive documents within a the pay-if-paid provisions. During The Nevada Supreme Court began party’s possession, custody, or control). discovery proceedings, Zitting sent its substantive analysis by discussing If a party learns that a previous disclosure interrogatories to APCO seeking facts statutes granting subcontractors certain or discovery response is incomplete supporting APCO’s defenses. APCO’s rights—including the right to prompt or incorrect, then it must timely response mentioned the pay-if-paid payment for work, materials, or supplement its disclosure or response provisions, but failed to provide any equipment—and imposing certain under NRCP 26(e). A party that fails facts regarding the other conditions obligations on general contractors. See to do so—whether by mere neglect or as precedent it had raised as defenses. id. at 7-9, 473 P.3d at 1026-27; see the result of a desire to disclose as little Following a multi-year stay to resolve also NRS 624.624 (2019) (describing information as possible—may later be related issues, Zitting served APCO with subcontractor’s right to prompt payment precluded from using certain evidence the same interrogatories and APCO for labor, materials, and equipment); in the case under NRCP 37(c)(1). In served a similar response. Zitting also 624.628(3) (identifying conditions, the recent decision of APCO Constr., Inc. deposed two APCO witnesses under stipulations, or provisions that are void v. Zitting Bros. Constr., Inc., 136 Nev. NRCP 30(b)(6), but they did not and unenforceable if contained in Adv. Op. 64, 473 P.3d 1021 (2020), provide testimony about APCO’s other subcontract). It also clarified an earlier the Nevada Supreme Court once again conditions-precedent defenses. See id. at holding that pay-if-paid provisions are showed that it will enforce these rules 4, 473 P.3d at 1024-25. not per se void and unenforceable: when parties fail to provide information After discovery closed, Zitting moved Rather, such provisions require and documents as required. for summary judgment on its breach of a case-by-case analysis to This case arose out of a Las Vegas contract and foreclosure of mechanics’ determine whether they are construction project on which APCO lien claims. APCO opposed that permissible under NRS Construction, Inc. (“APCO”), served motion, raising arguments in support of 624.628(3), and we hold that as the original general contractor, and its other conditions-precedent defenses they are unenforceable if they Zitting Brothers Construction, Inc. for the first time. The district court require any subcontractor (“Zitting”), was hired as a subcontractor. permitted some additional, limited to waive or limit its rights The subcontract contained “pay-if-paid” discovery, and APCO deposed a Zitting provided under NRS 624.624-.630, provisions stating that Zitting would witness under NRCP 30(b)(6). Three relieve general contractors of be paid only upon APCO’s receipt of weeks before trial, APCO supplemented their obligations or liabilities payment from the owner of the project. its responses to Zitting’s interrogatories under NRS 624.624-.630, The subcontract also contained several to include information about its other or require subcontractors other conditions precedent to payment conditions-precedent defenses. Zitting to waive their rights to for Zitting’s work (e.g., owner’s approval moved to limit APCO’s defenses to damages or time extensions. of Zitting’s work). Zitting performed only the pay-if-paid provisions, and the The district court therefore its work while APCO was the general district court granted that motion. The erred in outright concluding contractor (and after APCO was court then granted Zitting’s motion for that pay-if-paid provisions replaced), but the project ultimately partial summary judgment, concluding are void and unenforceable failed, leaving APCO, Zitting, and other that the pay-if-paid provisions were void without considering the specific subcontractors unpaid. See id. at 2-4, and unenforceable. It also concluded contract terms and whether 473 P.3d at 1024. that APCO failed to seasonably amend

March/April 2021, Vol. 43, No. 2 33 the provisions were permitted information or witness for a motion, APCO was the “party legally liable” for under statute. hearing, or trial, “unless the failure was Zitting’s unsatisfied lien claim, and See APCO Constr., 136 Nev. Adv. Op. substantially justified or is harmless”); APCO could pursue a judgment against 64 at 9, 473 P.3d at 1027; see also Pizarro-Ortega v. Cervantes-Lopez, 133 the project owner for any deficiency Lehrer McGovern Bovis, Inc. v. Bullock Nev. 261, 265, 396 P.3d 783, 787 (2017) amounts APCO must pay to Zitting. Insulation, Inc., 124 Nev. 1102, 1117 (“[u]nder NRCP 37(c)(1), a party is See APCO Constr., 136 Nev. Adv. Op. & n.50, 197 P.3d 1032, 1042 & prohibited from “us[ing] as evidence at 64, at 14-15, 473 P.3d at 1029. The n.50 (2008) (holding that pay-if-paid trial . . . any witness or information not high court rejected the suggestion that provisions are generally unenforceable so disclosed” unless the party can show entry of judgment against APCO for as against public policy, but that such there was “substantial justification” for amounts ultimately owed by the project provisions could be enforceable in limited the failure to disclose or “unless such owner would effectively be requiring it circumstances, subject to restrictions failure is harmless”). But APCO failed to indemnify the project owner even set forth in Nevada’s Prompt Payment to provide any reasoning demonstrating though the owner never paid APCO. See Act at NRS 624.624-.626). But after justification or harmlessness, so the NRS 108.235(2) (imposing affirmative reviewing the parties’ subcontract, our lower court did not abuse its discretion duty on general contractor to indemnify high court concluded that the specific in precluding APCO from providing owner if owner paid general contractor pay-if-paid provisions under review evidence in support of its defenses for amounts that lien claimants, such were unenforceable because they limited other than the pay-if-paid provisions as subcontractors, are claiming from Zitting’s rights to prompt payment defense. See APCO Constr., 136 Nev. owner). Whatever recourse APCO under NRS 624.624(1) and limited its Adv. Op. 64 at 12, 473 P.3d at 1028. may have against the project owner, the recourse to a mechanics’ lien. See APCO The supreme court also rejected APCO’s statutes do not provide that the owner Constr., 136 Nev. Adv. Op. 64, at 9-11, argument that the district court should rather than the general contractor is 473 P.3d at 1027. have permitted the conditions-precedent liable to subcontractors for amounts The supreme court also affirmed defenses to be tried by consent under that a general contractor owes to the district court’s decision regarding NRCP 15(b). See NRCP 15(b)(2) subcontractors. See APCO Constr., 136 discovery sanctions. As noted previously, (“[w]hen an issue not raised by the Nev. Adv. Op. 64 at 15-16, 473 P.3d at supplementation under NRCP 26(e)(1) pleadings is tried by the parties’ express 1029. Accordingly, the supreme court must be timely, and a party who fails to or implied consent, it must be treated in affirmed the summary judgment in comply with that obligation generally all respects as if raised in the pleadings”). favor of Zitting. may not use the undisclosed or late- “Because APCO’s conditions-precedent disclosed information to support its defenses were raised in the pleadings Wes Ayres is the Discovery Commissioner for claims. See id. at 11, 473 P.3d at 1027- but were precluded due to its failure the Second Judicial District 28. The court observed that APCO to comply with discovery obligations, Court. His columns are online had asserted its conditions-precedent NRCP 15(b) does not apply.” See and searchable at wcbar.org. defenses in its pleadings, yet failed to APCO Constr., 136 Nev. Adv. Op. 64, at mention or provide any support for 13, 473 P.3d at 1028. those defenses—other than the pay-if- APCO’s final argument was that it paid defense—as requested in Zitting’s could not be liable to Zitting under NRS interrogatories. See id. at 11-12, 473 Chapter 108 concerning foreclosure of P.3d at 1028. Further, one of APCO’s mechanics’ liens because APCO was not NRCP 30(b)(6) witnesses testified to the owner of the property. The supreme the company’s sole reliance on the pay- court observed that the operative statute if-paid provisions. See id. at 12, 473 P.3d states that when the sale proceeds of the at 1028. APCO ultimately amended its property are insufficient to satisfy all interrogatory responses, but it did so liens, the proceeds are to be apportioned only three weeks before trial. The court accordingly to the lien claimants. See therefore concluded that APCO failed id. at 14, 473 P.3d at 1029; see also to timely supplement its interrogatories. NRS 108.239(12) (2019). It further DUES Still, APCO might have been able provides that “[e]ach party whose claim RENEWAL to use the excluded evidence if it could is not satisfied in the manner provided prove that its failure was substantially in this section is entitled to personal REMINDER justified or harmless. See id. at 12, 473 judgment for the residue against the P.3d at 1028; see also NRCP 37(c)(1) party legally liable for it if that person If you haven't paid your (if party fails to provide information or has been personally summoned or 2021 dues, this will be your identify a witness under NRCP 16.1(a) has appeared in the action.” See NRS last copy of The Writ. (1), 16.2(d) or (e), 16.205(d) or (e), 108.239(12) (2019) (emphasis added). or 26(e), it is not allowed to use that Under the circumstances presented here,

4 March/April 2021, Vol. 43, No. 2 Continued from page 1 length of time they are together in the snacks and bottled water to jurors. Courthouse. Court starts early and ends Masks must always be worn, with Supplemental questionnaire asking early each day (i.e. 7:30 A.M. to 2:10 few exceptions. Potential jurors can jurors for information regarding their P.M.), with the jury in the courtroom remove their mask only if they are current experience with, and concerns for three two-hour sessions (six hours of behind plexiglass and only while they 5 about, COVID-19. After jurors return courtroom time daily). Between each are answering a specific question. They the questionnaires, the Court holds two-hour session, the Court takes a will also be offered a clear shield to use hearings with counsel/parties where the twenty-minute break, requiring jurors to if they wish. Counsel may remove their Court decides on the parties’ stipulated remain on that floor of the courthouse, mask only when behind the plexiglass excuses of potential jurors for obvious which serves as their jury room. No podium addressing the jury during voir cause or inability to serve. After two such other persons are allowed on the floor dire, and during opening and closing hearings and on the Friday before the except in the courtroom, traditional statements. In addition, Counsel is to Monday set for in-person jury selection, jury room (used by staff), and the judge’s remain seated during questioning of the first drawing of names is conducted chambers. All other participants are witnesses to maximize the effectiveness in open court with all parties present. required to leave the floor during breaks. of the plexiglass shields surrounding This process reduces the number of Counsel for the Plaintiff and Defendant counsels’ tables. Witnesses may remove jurors arriving at the Courthouse for in- are provided with separate spaces on their mask while testifying only if they person jury selection, and allows for the different floors for their exclusive use, are behind plexiglass, remain seated, and separation of those potential jurors who along with their witnesses and family enter/leave the courtroom while wearing will begin in the courtroom from those members. a mask. who will be in alternative sites for the Throughout jury selection and the With these procedures in place, the start of the in-person selection process. trial, cleaning protocols and distancing Court maintains that it is ready, able, Upon arriving at the Courthouse, requirements are in place. Special and willing to hold in-person jury trials potential jurors are screened pursuant personnel assist in the cleaning of the as soon as it is possible to safely summons to the health protocols adopted in the plexiglass and deep cleaning of the community members to serve on the Resumption Plan. They are then ushered courthouse. While the Court is on jury and it is safe for all participants, into the courtroom, or alternative break, personnel clean the courtroom. including attorneys, parties, jurors, and locations as appropriate. The alternative Indoor air concerns are addressed by Court staff to be together for an in- potential juror locations are within the emptying the courtroom during the person jury trial. Courthouse, outfitted with technology twenty-minute breaks, opening outside Due to the downward trend of that allows for the prospective jurors doors, using HEPA air filters in the COVID-19 cases in Washoe County, the to see and hear what is happening in courtroom, and utilizing other areas in Bench has decided to restart jury trials the main courtroom. While roll call is the Courthouse to augment the existing beginning on April 5, 2021.6 The Court taken, Court staff and bailiffs in each robust Courthouse air filters. will continue to utilize the guidelines room assist the jury panel and provide New technology and Court the Court adopted in conducting the for each prospective juror to be seen and established procedures allow for “bench September 2020 in-person criminal heard by the participants and judge in conferences” to be conducted during jury trials. These guidelines were the main courtroom. trial through closed communication developed in consultation with the Juror selection is conducted utilizing devices. These devices are also utilized Washoe County Health District, the the modified Arizona method. When between counsel and between counsel Federal District of Nevada leadership on a potential juror in an alternative site and their clients without requiring the resumption of jury trials, the Governor’s is called upon to replace a potential jury to be removed from the courtroom. directives, information from the CDC, juror in the main courtroom (someone In addition, procedures are in place The standards adopted by the National excused for cause), they are escorted to to facilitate little to no contact with Council of Juvenile and Family Court the main courtroom. Once the court other participants while presenting Judges, the Bench and Administration is assured the potential juror could hear evidence at trial. Jury deliberation of the Second Judicial District Court, all the proceedings up to that point, takes place where social distancing can and in collaboration with the Bench/Bar voir dire continues. In this manner be arranged around a very long jury Jury Resumption Working Group. the panel is qualified for cause. Before table. Jurors can view evidence that has Recently, the Bench has decided the exercise of peremptory challenges, been admitted electronically on large the Court can also conduct civil trials potential jurors are removed from the monitors, and jurors are provided with while still addressing priority criminal main courtroom to an alternative site, so safety equipment to handle and view cases. Four-week Trial Stacks (TSs) have that peremptory challenges can be made any physical evidence. In addition, been developed for in-person civil jury by counsel outside the panel’s presence. under the COVID-19 safety protocols trials through 2022 and the Court has Once the trial begins, the Court no refrigerators, microwaves, or coffee adopted criteria to determine the order utilizes a structured trial schedule to pots can be used, so the Court provides minimize participants entering and exiting the facilities and minimize the Continued on page 7

March/April 2021, Vol. 43, No. 2 55 APPELLATE BRIEFS By Debbie Leonard, Leonard Law P.C.

PROPOSAL TO GIVE THE COURT OF APPEALS ORIGINAL JURISDICTION OVER WATER RIGHTS DISPUTES GETS SWIFTLY ABANDONED

he Nevada Legislature had to decide issues of first impression or 533.450(10). not completed its first day cases that have wide-ranging statewide However, many water cases involve of the 2021 session when impact. important questions of law and present a proposalT to dramatically alter the Like the Supreme Court, the Court issues of first impression. Oversight jurisdiction of the Court of Appeals was of Appeals has original jurisdiction to of the State’s scarce water resources is quickly scrapped. The bill, introduced issue writs of mandamus, prohibition, governed by a unique combination of as Senate Joint Resolution 1, proposed certiorari, habeas corpus and “all writs common law, statutes and regulations to amend the Nevada Constitution necessary or proper to the complete with which most general jurisdiction to give the Court of Appeals original exercise of their appellate jurisdiction.” district judges are unfamiliar. The result jurisdiction over certain cases relating to Nev. Const. art. 6, § 4. But as with has been wide variation among district water. The idea was to make the Court appeals, only limited types of writ judges in how water cases are handled. of Appeals a de facto specialty court with petitions get assigned to the Court of On appeal, all water cases are decided expertise in the highly technical and Appeals. See NRAP 17(b)(13). The by the Supreme Court, as specified in somewhat arcane field of water disputes. Court of Appeals does not have original NRAP 17(a)(8). The Supreme Court Although the bill draft was initially jurisdiction over cases that must be must often wade through case law that sought by Nevada’s chief water regulator, brought in district court in the first dates back to Nevada’s statehood, often the request to the Senate Judiciary instance. SJR 1 sought to change that. looking to other Western states for Committee Chair that SJR 1 not be How Water Cases Work Their Way guidance in the absence of precedent. advanced also came from the Acting Through the Courts Grafted onto that common law is State Engineer. In lieu of legislative Although some water disputes are statutory authority that was first enacted action, the Acting State Engineer filed first in the district courts, most over a century ago and that continues indicated that his office was working start as administrative proceedings to develop today to deal with changing with Chief Justice Hardesty to request before the Division of Water Resources demands for, and availability of, water. that the Nevada Supreme Court appoint (“DWR”), which is headed by the State The Supreme Court’s decisions have a commission to evaluate whether a Engineer. DWR employs hydrologists, widespread consequences for water specialty court for water-related disputes hydrogeologists, engineers, and other users, municipalities and environmental might be appropriate. professionals with expertise in water groups statewide. Jurisdiction of the Court of Appeals who assist the State Engineer. Through The Short-Lived Effort to Transform As many readers know, in November its hearings section, DWR considers the Court of Appeals into a Water 2014, voters approved the creation of often dense scientific and historical Specialty Court a Court of Appeals by amendment to evidence, ultimately issuing decisions Based on its error-correction role and Article 6 of the Nevada Constitution. from which an aggrieved person may the confines of NRAP 17, the Court of The Court of Appeals hears cases seek judicial review in the district courts. Appeals has never decided a water case. through a “push down” model, in NRS 533.450(1). Yet SJR 1 proposed to give the Court which all appeals are initially filed As with other administrative of Appeals original jurisdiction “in all with the Supreme Court Clerk’s office. agencies, judicial review in a water case civil cases arising from a final order or The Supreme Court, according to the determines whether the State Engineer’s decision of the State Engineer.” This categories delineated in NRAP 17, then decision was a lawful exercise of would have bypassed the district courts assigns cases to the Court of Appeals. discretion based on substantial evidence so that the Court of Appeals could act See NRAP 17(b). in the administrative record. Since the as a water specialty court, moving the Generally, the Court of Appeals is inception of Nevada’s water statute decision-making power away from assigned only “error correction” cases, over 100 years ago, the Legislature has locally elected district judges in rural meaning that it interprets existing law to deemed “[t]he decision of the State counties to jurists who are based in the determine whether an error occurred in Engineer [to be] prima facie correct,” State’s population centers. the district court proceeding. As a result, with the party attacking such a decision Centralizing water cases in one court the Court of Appeals does not tend bearing the burden of proof. NRS with subject matter expertise is a worthy

6 March/April 2021, Vol. 43, No. 2 pursuit that deserves further exploration. ______Judge Connie Steinheimer was elected 1 Water courts exist in a few states, 2020-02, Mar. 16, 2020, Administrative Matter to her current role as a General Jurisdiction and the complexity of water conflicts of the Second Judicial District Court’s Response to District Judge in Coronavirus Disease (COVID-19) 1992, and reelected merits decision makers who are trained 2Hon. Connie J. Steinheimer, Hon. Barry L. specifically in the intricacies of the law and Breslow, Elliot A. Sattler, Esq., Hon. Lynne K. in 1996, 2002, 2008 science. Simons, Jackie Bryant, Court Administrator and 2014, and served As the Acting State Engineer correctly and Clerk of Court, Roger Doyle, Esq., Sara A. as Chief Judge from concluded, however, a constitutional Ferguson, Esq., William C. Jeanney, Esq., Orrin 2008 to 2012. Judge Johnson, Esq., Edward Lemons, Esq., Stephen amendment to place this responsibility in Steinheimer was Osborne, Esq., Jacey Prupas, Esq., Matthew named the Short Trial the hands of the Court of Appeals was not Sharp, Esq., Mark Simons, Esq., Zac Young, Commissioner in 2009, and was reappointed the appropriate course. Rather, a court- Assistant District Attorney, Marilee Cate, Esq., in 2012, 2016 and 2018. Also, she serves sanctioned commission to engage in a John Arrascada, Washoe County Public Defender, on the following court committees: Budget public process that involves stakeholders Joseph Goodnight, Esq., Evie Grosenick, Esq., Marc Picker, Alternate Public Defender, Alicia Committee, Civil Bench/Bar Committee, and water law practitioners would allow Lerud, Julie Wise, Kaili Lane, Kristen Vietti, Chair, Court Automated Enhancement for a robust idea exchange and ultimately Marci Trabert, and Thomas Adrian. Project, Filing Office Committee, Legislative 3 lead to the best solution for the State. Second Judicial District Court Plan for Resuming Committee, Specialty Courts Liaison, Statistics Jury Trials During the COVID-19 Pandemic, Oct. Debbie Leonard owns Leonard Law, PC, Committee, and as Chair of the Washoe County 12, 2020, http://www.washoecourts.com/main/ where her practice focuses on appeals before Law Library Board. Judge Steinheimer is also a Nevada’s appellate courts, the Ninth Circuit covid19response. 4AO-2020-02(D), July 24, 2020, Administrative member of the Commission on Statewide Rules Court of Appeals and administrative agencies. Matter of the Second Judicial District Court’s of Criminal Procedure Jury Instructions Work She served as the 2013- Response to Coronavirus Disease (COVID-19). Group, Access to Justice Committee and its 5 2014 Chair of the State Second Jud. Dist. Ct., Message from the subcommittee concerning efiling. Bar’s Appellate Litigation Chief Judge to Potential Jurors, https://www. Judge Steinheimer is a native Nevadan. Section and is Lead Editor washoecourts.com/otherdocs/resources/CJ%20 She has been married for 40 years with two of the Nevada Appellate Letter%208-3-20.pdf 6 daughters. She is also a lifelong member of Trinity Practice Manual, 2016 AO-2021-05, Feb. 10, 2021, Administrative Episcopal Church. Judge Steinheimer is also a and 2018 editions. She is Matter of Temporary Closing In-Person Public Access to the Second Judicial District Public Past President of Soroptimist International of also a mediator and Nevada Supreme Court Access to the Second Judicial District Court Truckee Meadows, and a current member of settlement judge. Through April 4, 2021. its International Goodwill and Understanding 7 AO-2021-05, Feb. 10, 2021, Administrative Committee that is committed to assisting JURY TRIALS Continued from page 5 Matter of Temporary Closing In-Person Public Nepalese girls and women to fight human 7 Access to the Second Judicial District Public in which cases will be tried. Access to the Second Judicial District Court trafficking and improving their educational The Court continues to explore all Through April 4, 2021. opportunities. possibilities for conducting jury trials during this challenging health crisis and is Andrea Schulewitch, Esq., M.Ed. received committed to resume in-person jury trials her law degree from the University of in Washoe County as soon as possible. In La Verne, College the courthouse, two more COVID-19 of Law in 2019 courtrooms are being built to allow for and currently in-person jury trials. In addition, the serves as a judicial Court is currently in negotiations with law clerk for the the National Judicial College about the Honorable Connie possibility of holding in-person civil jury J. Steinheimer at trials in their courtroom. the Second Judicial The Court is also prepared for and has District Court. successfully conducted several bench trials via Zoom in both the Family and General Jurisdiction Divisions. Additionally, after seeing the success of federal and state courts around the country that have conducted civil jury trials via Zoom, the Second Judicial District Court is now actively soliciting parties who would be interested in becoming the Court’s first Zoom jury trial. The parties must stipulate to conducting the trial in this manner and participants must be willing to partner with Court Administration and the Jury Pictured top left is Dept. 9, bottom left is the Commissioner’s office to work out the new Civil Litigation Courtroom and photo logistics for such a trial. above is one of the criminal courtrooms.

March/April 2021, Vol. 43, No. 2 77 FAMILY LAW By Melissa Exline, Esq. of Surratt Law Practice

IT’S ABOUT TIME TO RETIRE, DON’T YOU THINK! LINGERING QUESTIONS IN THE WAKE OF HENSON AND KILGORE

or many divorcing parties, benefits after divorce.3 Meaning, the the time the PERS members spouse is one of the largest assets for employee can argue post-divorce efforts first eligible, even if the member seeks division between them is should be taken into consideration to to keep working and accumulate more theirF retirement. This area is ripe for deviate from a strictly 50/50 time-rule credit. Is that fair? post-divorce litigation and a trap for division. Juxtapose this with a PERS member the unwary lawyer when representing PERS, and other defined benefit that has 30 years in PERS credits, clients. Indeed, it is important to plans, will not begin paying directly to a was eligible to retire at age 50 (like explore an oft overlooked nuance in participate and/or non-member spouse law enforcement and firefighters), the legal analysis related specifically to (“alternate payee” using the lingo in a is presently age 65, yet opts to keep a PERS pension division and look to Qualified Domestic Relations Order working simply to spite their ex-spouse creating better Decrees and settlement or “QDRO”) until actual retirement. from getting paid. How long does that agreements. At a minimum, parties Thus, the dilemma is thrust on the non-member spouse wait? Because should be advised regarding what the parties to work toward a system of direct the retirement date is in the control of law states, and what could happen down party-to-party payments. It might not the member spouse, the Courts have the road. be a surprise to those of us working in protected the spouse without control If the parties mandate the district the divorce arena, but this is usually over the retirement date by allowing him court decide the matter in a contested when the breakdowns take place. The or her to demand payment once eligible, hearing or divorce trial, then the former order should clearly provide either that even if the member spouse has yet to spouse is entitled to a “time rule” share of the employee or plan member spouse retire.4 The non-member spouse must the ultimate benefit received and there is shall begin paying at actual retirement file a motion requesting direct party-to- no way to truly know the amount until OR state whether and when to make party payment. actual retirement.1 Many settlement direct payments to the former spouse Aside from filing a motion, there agreements and divorce decrees fail upon eligibility for retirement (with is little guidance in Nevada law that to address when the PERS benefit is terms on tax impact of dollars earned) addresses a fair mechanism for how the actually payable to the non-pension until the plan begins taking this on after employee spouse should begin paying, member. The “when” to pay issue is actual retirement. the tax-effect of the payments, and extremely important. The Nevada Consider this factual scenario – a alterations to the payments over time. Supreme Court decided a defined former PERS eligible employee is a With a PERS (or judicial retirement) benefit pension plan should be divided working county employee and eligible pension division, there is the added using the “time rule” which mandates to retire at age 59 and she is now age 59. overlay of NRS 125.155, which states, an equal division of the portion of the However, the employee has only been in in part: pension earned during the marriage. the current job for 5 years and plans to The court may, in making a The non-employee spouse is entitled to work more to increase her PERS credits. disposition of a pension or their one-half share of this community The employee is eligible because, while retirement benefit provided property asset even if it has not yet married to a former spouse, she earned by the Public Employees’ vested. The non-employee spouse may 5 years in another job that earned PERS Retirement System or the seek direct payment from the employee credit and the employee can, technically, Judicial Retirement Plan, order spouse at the time the employee spouse retire at age 59. If the PERS member has that the benefit not be paid is first eligible for retirement (as a “time-rule” and “wait and see” Decree before the date on which the opposed to when the employee spouse that granted the former spouse one-half participating party retires. actually retires).2 With a reservation the community share of retirement, and So, while Gemma urges the district of jurisdiction, the district court can no agreement allowing the participant court to make a “time rule” division adjust such an award in the event that to keep working and pay at actual regarding a defined benefit plan, NRS the employee by “extraordinary efforts” retirement, then the former spouse is 125.155 permits a district court to increases the value of the retirement entitled to obtain direct payments at order pension payments when the

8 March/April 2021, Vol. 43, No. 2 participating party retires. The “may” snap-shot of stale data. In other words, Melissa Exline is a local of Northern Nevada, language is specific to PERS and Judicial as the total size of the pension pie grows, who graduated from Reed High School, Retirement – and we have no similar the non-member spouse’s interest with honors, and later attended the University of statutory guidance or discretionary similarly grows. This alone creates an Nevada, Reno, where she language as to other defined benefit incentive to return to court. Further, graduated in 1999 with pension plans. the case-law does not address who pays dual degrees in Philosophy With PERS, the district court has the taxes on the amount paid and how and Political Science. In discretion when determining, “how, and to fairly address this complicated issue 2002, Melissa earned her to what extent, to accommodate a non- (a person may not know his or her Juris Doctor from Golden employee spouse’s request for pension actual tax rate until after earning all Gate University, School of payments” before the first- eligibility to the dollars, offsetting this with credits, Law in San Francisco, CA, where she wrote for 5 and was an assistant editor of the law review, retire. In Kilgore v. Kilgore, 135 Nev. deductions and the like, and then filing participated in the Mock Trial Competition ___, 449 P.3d 843,847 (Adv. Opn. No. the return in the following year). Prior teams, and earned a certificate of specialization 47, October 3, 2019), the non-employee case law analyzing these retirement in Litigation. After passing the California spouse filed a motion and sought issues do not give guidance on when Bar Exam in 2002, Melissa answered the call immediate direct payments of her share or whether the non-member spouse home, returning to the Reno/Sparks and became of the PERS pension (i.e. complied with should motion again. Because the non- licensed in Nevada in 2003. Henson). The district court took evidence member spouse in Kilgore only received RANDOM THOUGHTS and had multiple hearings, ultimately a portion of what she was owed, and as continued from page 2 deciding on the amount owed to the each month goes by she is owed more, non-member spouse from the time the when does that spouse go back to “true about providing reasonable motion was made until its ruling nearly up” her judgment or obtain another on-site accommodations to 2 years later, reducing the amount owed judgment based on another motion? those who have not been or to judgment, and ordering a monthly Semi-annually? Annually? Should the refuse to get vaccinated. There payment amount on the judgment. The court merely have these on a consistent is also widespread recognition that other policies – involving Nevada Supreme Court, seemingly in “Review Hearing” status? Do we remote work, testing and more recognizing of the problematic nature wait until we know what the member – will play a crucial role in of this area of law, cautioned that “NRS spouse’s tax rate is on the dollars earned providing safe workplaces. 125.155(2)’s broad grant of discretion to attribute that tax rate to the dollars If you would like to review the Littler is not unlimited. Overriding principles paid to the non-member spouse for a COVID-19 Employer Survey Report in of equity and fairness govern a district proper “tax effect” on the earnings? 6 its entirety, it is available in pdf format on court’s exercise of discretion.” In sum, this area raises many Littler’s website at: https://www.littler. One of the inherent flaws in this questions, yet offers few answers. com/files/littler_vaccine_employer_ “figure it out later” and “use discretion” These issues can arise many years after survey_report.pdf. approach is the built-in incentive a divorce decree is first entered or a Here in Northern Nevada, employers to litigate. Further, this discretion is settlement is reached. The retirement (including private law firms and public codified in statue with PERS, but not asset value can be significant to each side entities) must also address workforce Kilgore other defined benefit plans. In , and each party’s own economic need policies and procedures associated the PERS member was able to obtain may drive the decision making. For with COVID-19 vaccination. Of a payment on the judgement much those working in family law, a starting course, with the practical and effective more favorable to his budget (i.e. $350 point is knowing this issue is out there implementation of sound policies and a month on the judgment instead of and give parties good information to procedures, the practice of law will begin the $2,455 per month calculated as make appropriate decisions. to resemble life before 2020—hopefully­­ owed each month on the pension at with fewer Zoom hearings. Stay well. first eligibility), arguing he could not ______1See Gemma v. Gemma afford to pay the full amount owed. , 105 Nev. 458, 778 ______P.2d 429 (1989); Fondi v. Fondi, 106 Nev. 1Littler Mendelson, Littler COVID -19 Vaccine The non-employee spouse received an 856, 802 P.2d 1264 (1990); Sertic v. Sertic, award for only a portion of her one- Employer Survey Report,, (Feb. 9, 2021) available 111 Nev. 1192, 901 P.2d 148 (1995). at: https://www.littler.com/publication-press/ 2 half community property share of the See Sertic, 111 Nev. 1192, 901 P.2d 148. littler-vaccine-employer-survey-report. 3 pension, but a judgment on the full See Gemma, 105 Nev. at 462-63, 778 P.2d 2Id. amount owed for the duration at issue at 431-32. before the court. 4See Henson v. Henson, 130 Nev. ___, 334 FOR SALE Looking at these issues, it is notable P.3d 933, 938 (Adv. Opn. No. 79, October Granite top conference table that as each year goes by, and more 2, 2014). 5See Kilgore v. Kilgore approx. 8'x 6', base & 10 high pension credits are earned, the non- , 135 Nev. ___, 449 P.3d 843,847 (Adv. Opn. No. 47, October back adjustable black leather chairs. member spouse gains more interest in 3, 2019). Excellent condition. $3,500. 775-527- the pension, making a prior order a mere 6Id. 7450, email: mskender@skenderlaw.

March/April 2021, Vol. 43, No. 2 99 lAW LIBRARY/ PRO BONO CORNER

EXPANDING ACCESS FOR OUR held virtually via Zoom. This format allows JANUARY 2021 COMMUNITY volunteers and participants alike to partake Elizabeth M. Bittner in the program from the comfort of their own Jonathan H. King ne of the main roles of a library is space. Please consider volunteering for LAW Adam P. McMillen to provide access, whether that is O and help the homeless and at-risk youth of Matt Morris access to materials, assistance, or meaningful our community. Contact Sarah Bates at Rost C. Olsen programming. At the Washoe County Law [email protected] or (775) 328- Michael V. N. Roth Library, we continue to strive to expand 3254, if you would like to volunteer. Brian J. Saeman access to our services, making available what Thank you to all our January and Gary R. Silverman we can virtually and remotely. With that February Lawyer in the Library volunteers! Damian D. Sinnott goal in mind, we are happy to announce this If you are not one already, please consider Tehan W. Slocum now includes a renewed partnership with becoming a Lawyer in the Library volunteer. Maximilian A. Stovall the Eddy House and our new Lexis Digital We hold Family Law and General Law Janet E. Traut Library. programs weekly and Probate Law program The Lexis Digital Library will give you the first and third Wednesday of the month FEBRUARY 2021 access 24-hours-a-day, 7-days-a-week to virtually, via Zoom. With the virtual format Elizabeth M. Bittner eBook versions of all the current Lexis and we allocate 15 minutes for each patron, Janet L. Chubb Matthew Bender titles we have in print on meaning volunteers will typically only see Nicole M. Harvey the Law Library shelves. These include such four patrons for every hour they volunteer. Kendra J. Jepsen popular titles as: the Nevada Civil Practice Please contact Sarah Bates at sarah.bates@ Kevin R. Karp Manual, California Forms of Pleading and washoecourts.us or (775) 328- 3254 if you Bronagh M. Kelly Practice Annotated, Powell on Real Property, would like to volunteer using our new virtual Jonathan H. King and more! format, or for further information regarding Colton T. Loretz Getting access to Lexis Digital Library is the Lawyer in the Library program. Jennifer A. Mayhew easy. You can sign up through our website, or Lawyer in the Library volunteers can earn Adam P. McMillen by calling or emailing the Law Library. Once 1 CLE credit for every 3 hours volunteered, Matt Morris you have an account, you can check out for up to 4 credits per year! Michael V.N. Roth materials and read them on your computer Kevin P. Ryan or through the app that is available for both John M. Samberg iOS and Android devices. If you are accessing Madelyn B. Shipman the Lexis Digital Library from home, you can Gary R. Silverman check out one eBook at a time for a seven- Tehan W. Slocum day loan period. For more information about John A. White, Jr. our new Lexis Digital Library, please visit our website: https://www.washoecourts.com/ lawlibrary/onlineresources, call us at (775) 328-3250, or send an email to: LawLibrary@ washoecourts.us. Congratulations to our newest associate, Additionally, the Law Library has Debra Stieglitz, renewed its partnership with Eddy House to give homeless and at-risk youth an graduate of the opportunity to ask our volunteer attorney's for legal advice. Unlike our Lawyer in the Regent University School of Law Library Program, the Legal Awareness Workshop (LAW) is an open discussion with topics that range from family, civil, and criminal law. The goal of this program is to give an opportunity for the youth to ask any legal questions they may have about a variety of legal topics. Topics that have been discussed in the past include: domestic violence, employment issues, squatters’ rights, pleading insanity in a case, identity Attorneys and Counselors at Law theft, Miranda Rights, bicycle laws, material Est. 1918 witness, and one of the most frequently asked questions: “Do I have to speak to the police More than a century of Nevada law practice. when the police stop to talk to me?” Like the Lawyer in the Library program, LAW is Sierra Plaza | 6100 Neil Road, Suite 500 | Reno, Nevada 89511-1159 | 775.688.3000

10 March/April 2021, Vol. 43, No. 2 We are excited to announce J. Robert Smith has joined Simons Hall Johnston as a partner in our Reno office after nine years as a partner at a regional law firm.

Rob’s dedication to his clients and experience in civil litigation will add to and complement our existing team of trial lawyers. J. Robert Smith

Rob is a trial lawyer whose practice focuses on complex commercial, business and fiduciary litigation. Mr. Smith has extensive trial and arbitration experience in both state and federal courts.

March/April 2021, Vol. 43, No. 2 1111 MEDIATION MATTERS By Margaret M. Crowley, Crowley Mediation, L.L.C.

THINK YOU'LL DO BETTER IN TRIAL THAN MEDIATION? THINK AGAIN

“A bird in the hand is worth two in the bush." Proverb

ot every mediation plaintiffs recovered an average of cremated and should live with one of produces a final resolution, $43,100 less than pre-trial settlement them. but when there is a real offers, defendants who guessed wrong After many hours of mediation, a possibilityN of settlement in a litigated were awarded an average of $1,140,000 potential compromise emerged: the 2 case, parties are faced with a decision: less at trial compared to the settlement daughters offered to allow the father take the deal or roll the dice in court. offers. This means the cost of error for to be buried in exchange for the father While there are many rationales for defendants was 10 times greater than for living out the rest of his life with one of rejecting an offer, a frequently cited plaintiffs. them. The offer was flatly refused, as the reason is, “We’ll do better at trial.” Some may argue this study was 2 sons were convinced they would prevail A study published in 2008 set out published over a decade ago and perhaps on both issues in court. No amount to answer that very question: how things have changed. The study, of discussion and reality checking accurately do attorneys and litigants however, discusses the results of 3 prior could dissuade them, so the mediation predict trial outcomes against settlement ones performed by different researchers, concluded and they proceeded to court. alternatives in adjudicated cases? 1 all of which demonstrated similar After a hearing on the matter, the judge This 2008 study was extremely findings. As such, it seems more likely issued a decision. The brothers lost on comprehensive. The authors examined that things have indeed not changed. both of the issues. Not only did the 2,054 civil cases in California, reported Another finding in the 2008 study brothers fare worse at trial, it also meant over a 38 month period. The cases warrants examination. The authors that any chance for the family to find were centered around tort, contract noted that their analysis showed the middle ground was gone. and real property disputes. They incidence of decision-making error The lessons to be learned from this involved attorneys of all kinds, from was more significantly affected by study and cases like the one described solo practitioners to large firms to “context” variables (e.g., case type and above are clear: all offers to settle are government counsel. In all of the forum) than by “actor” variables (e.g., worth a very close examination. A bird cases, some type of settlement process attorney gender and experience level). in the hand really can be worth two was used, but none resolved and they In other words, even attorneys who have in the bush. were ultimately decided by a judge, practiced for many years made mistakes ______jury or arbitrator. The study compared in case valuation. 1Let’s Not Make a Deal: An Empirical Study of the ultimate award or verdict against While the study addressed cases Decision Making in Unsuccessful Settlement the offers received during settlement involving money, the findings are equally Negotiations Randall L. Kiser, Martin A. Asher, negotiations. The focus was to test applicable to cases that do not. The and Blakeley B. McShane, Journal of Empirical the accuracy of litigants/attorneys’ study calls to mind a guardianship case Legal Studies Volume 5, Issue 3, 551–591, September 2008. predictions of their recovery at trial. The I mediated some years ago involving the 2I have changed many details of this case to results were nothing short of astounding. adult children of an aging parent. The preserve confidentiality. The study found that both plaintiffs children came to mediation disagreeing and defendants significantly erred in about 2 things: should their father be their assessments of outcomes at trial. buried or cremated; and with whom Margaret Crowley is an Plaintiffs did worse at trial 61% of the should the father reside.2 The 4 children experienced mediator, Supreme Court Settlement Judge, time, quite an astonishing number. At were equally split on these issues. The 2 EEOC Mediator, Second first glance, defendants appeared to do sons believed their father would want to JD Custody & Dependency much better, faring worse at trial 24% be buried and that he should reside in an Mediation Panels, Pro Tem of the time. The cost of defendants’ assisted living facility. The 2 daughters Family Court Master and errors, however, were huge. While believed their father would want to be mediation instructor.

12 March/April 2021, Vol. 43, No. 2 Statewide Estate Planning

ELST.a 199w0 Fair

Nevada Legal Services will be having an Estate Planning Law Fair event on Tuesday, April 13, 2021 from 10:00 am - 1:00 pm

We need attorney assistance to provide half hour Phone/Zoom advice to the clients that signed up.

For more information, or to sign up, please contact Heather Barrow (South) at [email protected] or (702) 386-0404 ext. 170 or Edith Medina (North) at [email protected] or (775) 284-3491 ext. 237

Statewide Law Fairs are conducted from 10:00 am to 1:00 pm

www.nlslaw.net

March/April 2021, Vol. 43, No. 2 1313 JUDICIAL REFLECTIONS By Honorable David Hardy, Second Judicial District Court, Dept. 15

ustice Cameron Batjer demonstrated qualified to be a barrister of law. Regrettably, Jthroughout his life the influences of her gender limited her legal options and she his youth: independent women, rural values, worked as a governess until immigrating to and civic duty. He was a loyal friend, often Canada. noted for his humility and gentle presence. While proud of his great-grandmother, While active in party politics and a fierce Justice Batjer's mother was his hero and a advocate, he was apolitical and impartial as singular influence on his life. Mary Belle a judge and a peacemaker among colleagues McVicar Batjer had already graduated during a divisive time within the Nevada from the University of Nevada and was a Supreme Court. He is remembered fondly schoolteacher in Smith Valley before her Justice Cameron M. Batjer by those who knew him, and the Nevada 1916 marriage to Justice Batjer's father. She Nevada Supreme Court: 1967-1981 judiciary is better because of his service. worked throughout Justice Batjer's life and Justice Batjer's uncle first came to was highly regarded as a teacher at several Nevada as a miner in the late 1850s. Shortly in the 1890s, worked as a cattle rancher rural schools. She even found time to serve after statehood, his grandparents emigrated and trucker delivering dry goods to mining on the school board. from Canada to join their son on 480 acres camps throughout rural Nevada. He died Justice Batjer's sister, Helene Batjer, of fertile ranch land in Smith Valley, just in the 1930s during the difficult days of the briefly taught school in Virginia City before south of Yerington. It was there, in his depression. Justice Batjer's earliest memories beginning her foreign service career in 1945. grandparents' small ranch home, that Justice of ranch life were of family, dusty roads, pre- She enjoyed positions in Berlin, Sofia, Rome, Batjer was born in 1919. Shortly after motorized farm equipment, and stubborn Athens, Belgrade, and Stockholm before birth, Justice Batjer moved with his parents horses he never learned to love. becoming the lead diplomat at the American to Shoshone, Idaho, where they lived four While the men in Batjer's family brought Consulate in Istanbul, Turkey. She was years before returning to Smith Valley to them to Nevada, a biography of Justice Batjer named officer in charge of Czechoslovakian raise Batjer in a tightknit ranching family. would be incomplete without reference to affairs in 1967, and between 1970 and 1972, Indeed, his extended family composed his the trailblazing women who inspired him she was the financial economist for the village as his parents were often absent for throughout his life. Justice Batjer was proud American Embassy in Pakistan. She ended work. His father, Robert Wilhelm Batjer, that his great-grandmother graduated from who emigrated from Germany to Nevada the University of Edinburgh in 1850 and Continued on page 16

14 March/April 2021, Vol. 43, No. 2 PEOPLE couRTS

Judge Steve Elliott passed away on David Hunter Hamilton passed away U.S. District Court January 5, 2021 in Reno, after a short peacefully at his home on January 12, District of Nevada battle with cancer. 2021 after a short battle with pancreatic United States Magistrate Judge He was 72 years cancer. William G. Cobb will be retiring on old. He will January 4, 2022, after Judge Elliott be greatly more than ten years graduated missed by of dedicated service from Stanford all who to the Court. Judge University and knew him. Cobb has diligently received his law David served as a Magistrate degree from the was born Judge in the District University of on May 31, 1942 in St. Louis, MO to of Nevada since Denver, Sturm College of Law in 1975. Oskar Friedrich Ludwig Herf and Alice September 4, 2011. Upon graduation, familiarity with Reno Langenberg Herf. Originally his last In his capacity as the District of and affection for the city brought him to name was Herf. Nevada's senior Magistrate Judge, he Reno after law school. He worked for David attended Reno High School serves as the District's representative to the the firm, Echeverria and Osborne. He and graduated from UNR and the Ninth Circuit Magistrate Judges Executive started work for the City of Sparks as the University of California at Davis in Board. He is chair of the State and Federal city prosecutor in 1977. In 1979, he was 1972. David served as a law clerk for the Judicial Council of Nevada. elected Sparks City Attorney and served late Reno Judge James Guinan, who was The Court extends its gratitude to in that role until 1996 when he was then part-time Deputy District Attorney Judge Cobb for his years of service to the elected to Department 10 of the Second in Churchill County as well as sole federal judiciary and to the community. Judicial District Court, where he served practitioner in the private practice of law To view the full press release, please visit until March 2013. in Reno. www.wcbar.org/court-news. Judge Elliott was the founding In 1987 he joined with the late A full public notice for the magistrate director of the Washoe County Domestic Vivian Lynch to form Hamilton & Lynch. judge position and an application form is Violence Task Force and served on the David was a life-long litigator, having available on the Court's website, www. Nevada Statewide Court Security Task tried over thirty jury trials and hundreds nvd.uscourts.gov. Force to improve the security for judges of bench trials. He was admitted to the LAWYER REPRESENTATIVES and the public at courthouses throughout Ninth Circuit Court of Appeals and all FOR UNITED STATES DISTRICT Nevada. state and federal courts in Nevada and COURT for the District of Nevada Judge Elliott was still serving the California. He was a member of the is accepting applications for Lawyer people of Nevada as a Senior Judge where Washoe County Bar Association and the Representatives. Lawyer Representatives he enjoyed traveling throughout the State Nevada State Bar Association. provide vital input to the Court on a working with the various judges and David is survived by his loving wife myriad of issues affecting the operations judicial staff. of almost 22 years, Windy Hamilton. of the federal courts including but not Judge Elliott is survived by his wife He leaves behind two children Courtney limited to: rule changes; development of Mendy, and his sons Ben, Derek (Cara) Hamilton of Reno and Hunter Hamilton new programs; planning of conferences; and Nick Vander Poel (Christi Quatro) of Los Angeles, CA, four step-children and the expenditure of funds from the non- and four grandchildren, plus his furry Kristina (Rodney) Rihela of Phoenix, appropriated account. A full public notice friend Rosie. AZ, Stephanie Spendlove of Colton, for Lawyer Representative is available on the CA, Anthony (Vanessa) Vassar of Vail, court’s website. Letters of interest must be AZ, and Jessica (Sean) Arthur of Reno. received by 4:00 p.m. on Friday, April 16, He is also survived by his brother Steve 2021. Questions can be directed to the Clerk of the Court at 702.464.5456. (Donna) Hamilton of Reno, nieces and nephews, four step-grandchildren, Nevada Supreme Court extended family and numerous friends. Appoints Katherine Also his beloved dog, Winston. Stocks as Director of the Administrative Office of the Courts and State Court Administrator for the Nevada Supreme Court. Please visit www.wcbar. org/court-news for full press release.

March/April 2021, Vol. 43, No. 2 1515 her career as the Diplomat in Residence at into Justice Batjer early. His childhood his mother as she taught at various schools Reed College in Portland, Oregon. friend, Mary Arentz, was the daughter of in Northern Nevada. She was one of Justice Batjer met his wife Lura Gamble U.S. Congressman Samuel Arentz and his teachers, and he considered her to be briefly during his UNR years but fell in Justice Batjer's lifelong love of country and particularly hard on him—especially during love with her when they were both teachers civic duty were born of his observations of English lessons. Eventually, he returned to in Dayton. She was also the child of Congressman Arentz. His uncle Robert Smith Valley to live with his grandmother rural Nevada pioneers. She was raised on McCall, an assemblyman from Esmeralda and uncle during high school. He loved the family ranch in Hazen and attended County who died while serving in Carson history and tolerated the sciences; and the Churchill County schools where she was City, contributed to Batjer's commitment to seeds of law were sown when he briefly recognized as an outstanding student and community. And during his frequent trips to studied commercial law. athlete. The Batjers had three daughters and Yerington, he occasionally stopped into the After graduating high school, Justice no sons. courthouse to watch District Attorney Jack Batjer enrolled at UNR. He worked at Supported and inspired by these Ross in court proceedings. a grocery store and lumberyard in Reno accomplished women, Justice Batjer enjoyed Justice Batjer's world continued to during the school years and returned to the high-level positions in state and federal expand throughout his childhood. When ranch to work every summer. The shadow governments, but he never lost the connection he passed through Carson City, he enjoyed of war hung over campus and Justice Batjer with his rural roots. Toward the end of his seeing the capitol complex that housed all knew he was destined for military service. life, Justice Batjer remembered fondly (and by name) his grammar schoolteachers and three branches of government, and he was He was declined for ROTC because of color classmates. He attended first through fifth particularly enamored by the portraits of blindness. He then received several medical grades in a small schoolhouse across the street governors hanging in the hallways. But one deferments because of the whooping cough, from his home and was one of 13 students trip in particular had a lasting impression on poor eyesight, and frailty. Justice Batjer in his class. He enjoyed school "from the Justice Batjer. In 1927, he traveled to Reno graduated with a degree in history and first day, and learning was a continuing great to celebrate the completion of the Victory minors in education and economics. He experience." Equally important to him were and Lincoln Highways. This was an "eye- was certified as a teacher when he graduated his early memories of traveling to church opening" trip for the seven-year-old from in 1941, and accepted a job teaching with his grandmother in a horse-driven Smith Valley. He walked the UNR campus elementary school in Dayton. But as Justice buggy. They attended the Methodist Church in Smith Valley—the only church in town— with his mother and described Idlewild Park Batjer extended his family's long tradition where a congregation of 20-30, most of them and the California Building with awe. He as educators, on December 7, 1941, the related, worshipped together. He continued saw the stately homes along Riverside Drive Imperial Japanese Navy Air Service attacked to value his faith throughout life, and for and knew his life would be larger than Smith Pearl Harbor and plunged the United States more than 60 years, he was a member of the Valley ranching. into World War II. First Presbyterian Church of Carson City. As Justice Batjer aged he began to see Justice Batjer enlisted in the Navy in Smith Valley was small but progressive the world beyond Smith Valley. In the sixth, February 1942. He completed the school and the desire for knowledge was embedded seventh, and eighth grades, he accompanied year as a teacher and married Lura before

16 March/April 2021, Vol. 43, No. 2 his induction in San Francisco. Initially Justice Batjer in his place. This was a busy he agreed to only because the Republicans assigned to a Seabees construction battalion time for Justice Batjer; not only was he "needed someone to carry the torch." He in the South Pacific, he endured many nights the Ormsby County District Attorney, he suffered the same loss in this election that he in a foxhole during the bombing raids in advised the Carson City Council and school suffered in 1958. Guadalcanal before receiving an officer's district, and maintained a small private Justice Batjer completed his term commission while stationed in New Zealand. practice. He was elected to his own term as Ormsby County District Attorney Unable to remain with the Seabees because without opposition in November, 1954. and returned to private practice in loose he did not have a degree in civil engineering, In 1958, at the age of 39, Justice association with Laxalt. He became active he attended Japanese language school and Batjer ran for Nevada Attorney General. in the profession, including volunteer work was later assigned to General MacArthur's (He had successfully challenged the for the state bar and American Judicature Seventh Fleet in Brisbane, Australia. His unconstitutionality of a statute that required Society. Paul Laxalt was elected governor in service continued through the duration of five years of residency before running for 1966 and Justice Batjer advised him during the war; he was released from military service office.) He ran as a Republican and his the 1967 legislative session. During this in November 1945. opponent was Roger Foley, a friend and session, the legislature increased the number Upon returning to Nevada, he was former fraternity brother. Democrats of justices on the Supreme Court from three unsure about his immediate future, so he far exceeded Republicans in statewide to five, thus creating two vacancies. When did what was familiar to him: he called the registration and Justice Batjer was horribly Governor Laxalt approached his trusted superintendent of education in Carson City underfunded. He later described his friend about an appointment to the court, and obtained a mid-year teaching position decision as "stupid." Yet four years later, Justice Batjer expressed his interest and in McGill, Nevada. In 1947, Justice Batjer in 1962, he ran for the same office. He willingness to serve. In October 1967, was hired as the football and basketball coach was then serving as chair of the Ormsby Governor Laxalt appointed him and Justice at Fernley High School, which he found County Republican Party and was escorted John Mowbray to the Nevada Supreme ironic because he was a self-described "lousy to the filing office by the chair of the state Court. athlete." While in Fernley he resolved to Republican Party. When nobody else filed Justice Batjer was opposed in his 1968 attend law school and selected the University to run as a Republican, Justice Batjer filed election by a serious candidate from Las of Utah because of its proximity to Nevada. as a candidate at 4:55 p.m. He described Vegas. Governor Laxalt publicly endorsed Justice Batjer began law school in 1948 and himself as a "most hesitant candidate" and Justice Batjer, and when criticized, responded graduated in 1950. He did well and was his decision as an "absolute stupid move" that, "[a]bsolutely nothing precludes me, selected for Order of the Coif. He passed the Utah bar exam and worked for the Utah Senate during its 1951 session. Justice Batjer was then hired to work in Washington, D.C. for newly elected Nevada Senator George "Molly" Malone. He worked closely with committees important to Nevada (Interior, Mine and Mining, and Insular Affairs) and quickly became exhausted with politics and bureaucracy. He and Lura yearned to return home to Nevada, which they did in 1952. They arrived in March so Justice Batjer could satisfy the six- month residency requirement before the bar exam. Justice Batjer again returned to his education roots by accepting a position to teach seventh and eighth grades in Carson City for the remainder of the school year. After passing the bar, Justice Batjer began working in Carson City with Frank Gregory and Dick Hanna. During this time he became friendly with Paul Laxalt, who was then serving as Ormsby County District Attorney. Justice Batjer and Laxalt remained close friends for the duration of their lives. Laxalt hired Justice Batjer as a deputy district attorney, and when Laxalt resigned in 1954 to return to a full-time law practice, the Board of County Commissioners appointed

March/April 2021, Vol. 43, No. 2 1717 either as a private citizen or as governor of Justice and Lura Batjer enjoyed their This is number 128 in a series of this state, from speaking out in important retirement years, dividing time between essays authored by Judge David election contests. What is significant to Reno and Maui. Lura died in 1997 and Hardy, Second Judicial District me is the fact there is a basic unfairness in Justice Batjer died on June 1, 2011. Many Court, Dept. 15. expecting a quiet and retiring man like colleagues mourned his death, describing Cameron Batjer to out-campaign a rugged, him as even-tempered, bright, humble, self- political in-fighter like [his opponent]." reliant, persistent, and compassionate. WCBA Elections, June 2021 With Governor Laxalt's endorsement, In 2002, Justice Batjer sat for his oral Justice Batjer was elected in 1968, re-elected history as part of the Nevada Legal Oral against a nominal opponent in 1972, and History Project, a joint effort of the Nevada Washoe County Bar Association re-elected without opposition in 1978. He Judicial Historical Society, the Ninth is looking for a social chair. This is a enjoyed the studious work of an appellate Judiciary Circuit Historical Society, and liaison position to the Board, and is judge and wrote several significant opinions. the University of Nevada Oral History responsible for planning two annual As noted by Justice Pickering upon his Program. His endearing personality and social events. The Board consists of death, Justice Batjer was a "great scholar and personal reminisces are woven throughout five members and a staff of one. jurist who understood the virtue of brevity, the transcript. The editors noted that readers The Board meets monthly at a common sense, and kindness." "will be struck by his intelligence, humility, breakfast meeting and holds an Justice Batjer was on the court during a pragmatism, and gentle humor." He was a occasional meeting as needed. Plans for time of increasing work, politically difficult "gifted storyteller" and "teacher at heart," the upcoming year are discussed at the decisions, and internal feuding among demonstrating by example the best qualities annual half-day "retreat" held during the justices. He and his colleagues were that bind us together. the summer. If you are interested, severely criticized when they reversed capital please send a letter of interest to gina@ sentences in response to jurisprudence wcbar.org by April 15, 2021. from the U.S. Supreme Court. He was publicly gracious and unwilling to speak of internal affairs, but privately he attempted to intervene in the growing division among his colleagues. He was criticized in the press for his efforts to resolve judicial ethics complaints his colleagues had filed against each other. He attempted to downplay the divisiveness, saying at one point: "There are always disagreements. You arrive at decisions by kicking cases around." At one point the press reported he might even resign if the "infighting gets any worse." This desire for cooperation informed his approach to every aspect of his work. In retirement, he reminisced that he had even been reluctant to write dissents: "You know, the supreme court is supposed to be a collegial body, where you get together and hear the arguments of the lawyers and then the position of the judges and come up with the best answer." By 1981, his friend Paul Laxalt was in the U.S. Senate and a close, personal confidante of President Reagan. Through Laxalt, President Reagan came to know Justice Batjer, who soon resigned his position on the Nevada Supreme Court in 1981 to accept a presidential appointment as chair of the U.S. Parole Commission, with concomitant duties as chair of the National Appeals Board. He relocated to Washington, D.C. and was well-regarded for his service. He again yearned for Nevada and retired after nine years because it was the "prudent thing to do" and "Washington is a town for the upward bound." He was 67 years of age.

18 March/April 2021, Vol. 43, No. 2 Events See wcbar.org/events for details and registration

MARCH APRIL 13% of attorneys who responded identified as a member of a minority WCBA CLE Webinar - Current 7 Douglas-Carson Legal Professionals demographic group. NNWLA strives to State10 of Family Court Proceedings Under meet for lunch and CLE at noon via Zoom. reduce the economic barriers preventing Pandemic Protocols, 12:00 to 1:00 pm, 1 hr. Speakers are announced on website www. aspiring lawyers from attending law CLE, free to members, $45 non-members, douglascarsonlegalprof.org. school. Through the establishment register at www.wcbar.org/events. of this scholarship this January, WCBA CLE, Webinar - State of NNWLA will support undergraduate the14 Supreme Court with Justice Hardesty, and graduate students pursuing a 12:00 to 1:00 pm, 1 hr. CLE, free to members, $45 non-members. Register at degree at the University who intend to www.wcbar.org/events. SPONSORED BY. attend law school after receiving their degree. To donate or for additional information, please go to www.nnwla. AI Powered Analytics Can Improve com/scholarship or crowdfund.unr.edu/ Your Litigation Strategy Webinar NNWLA. If you have any questions, March 31, 2021 NNWLA Announces the please contact our Scholarship Chair, 12:00 to 1:00 p.m. - Establishment of a New Annual Kendra G. Bertschy, at kbertschy@ 1 Hour CLE Credit Scholarship washoecounty.us. Free to members In response to the social injustices $45 non-members highlighted across the nation last year, NNWLA wishes to thank the the Northern Nevada Women Lawyers following individuals for their Join us for this engaging webinar Association created a scholarship generous donations to establish this as we cover how A1-driven analytics with the University of Nevada, Reno scholarship: enables you to analyze the behavior to promote equality and reduce the and history of your judge, competitive gender gap in the legal profession. The Judge Aimee Banales; Kendra counsel, prospects, clients to gain crucial Northern Nevada Women Lawyers Bertschy; Black Caucus of Washoe insights into litigation history and ruling Association is a voluntary membership County; Judge Bonnie Bulla; Craig tendencies. We'll show you how to organization committed to its mission Etem; Chief Judge Scott Freeman; Ozzie leverage Nevada state trial court data to be more efficient, more pro-active, and of the advancement of women in the and Ellen Fumo; Jenna Garcia; Justice achieve better results for your clients. legal profession, the promotion and James Hardesty; Joey Orduna You'll learn why you need litigation improvement of the administration Hastings; Katie Hoffman; Andolyn analytics to get ahead. of justice and the encouragement of Johnson; Nancyann Leeder; Ann Topics will include: a spirit of friendship and trust among Morgan; Kris Riley; Elliott Sattler; Judge • Judicial Analytics and Ruling its members. NNWLA endeavors to Connie Steinheimer; Jennifer Noble; Jeff History combat racism and the systemic abuse of Ostomel; Jocelyn Ostomel; and, Olivia • Helping Atty's to Draft the justice system. Since 1978, women Williamson. Stronger Motions, Faster have entered all facets of the Nevada • Docket Searches and legal and political community, aided Uncovering Intel on Opp by the numerous women who guided Counsel • Nevada Docket & Ruling NNWLA’s members through the years to overcome the societal obstacles put Searches & Alerts FREELANCE PARALEGAL SERVICES, before them on their path to success. Discover how you can leverage LEGAL RESEARCH & WRITING. Nevada state trial court data to be make Unfortunately, there is still work to be Decades of experience, attentive to detail, more informed decisions about resource done, since, as of 2020, the State Bar RE: motion practice, family law, appellate allocation, be more efficient, more of Nevada reported that only 35% of briefing, bankruptcy, and general litigation. proactive and achieve better results for Washoe County attorneys are women. Westlaw subscriber. Len Peters, fpsvcs@ your clients. According to those who participated sbcglobal.net, 775.560.1701 Register at www.wcbar.org/events in the State Bar of Nevada 2020 demographic survey, approximately

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