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The Public Lawyer The Public Lawyer Public Lawyers Nevada Supreme Court Cases Section July 2010 Bahena v. Goodyear Tire & by “not less than twenty-five Rubber Co., 126 Nev. Adv. Op. percent (25%) of the number” No. 26 (July 1, 2010) In this ap- of registered voters “who actu- peal we consider whether the dis- ally voted in the state or in the trict court abused its discretion county, district, or municipality when it struck a defendant’s an- [that the officer] represents, at swer, as to liability only, as a the election in which [the offi- discovery sanction pursuant to cer] was elected.” Nev. Const. NRCP 37(b)(2)(C) and NRCP art. 2, § 9. 37(d). We conclude that the dis- trict court did not abuse its dis- The question presented cretion by imposing non-case is whose signature counts to- concluding sanctions and by not ward the 25 percent needed to holding a full evidentiary hear- qualify a recall petition. Is it ing. We further conclude that any registered voter, as the dis- the district court exercised its trict court held? Or must the inherent equitable power and signatures come from those reg- properly applied the factors set istered voters who in fact— forth in Young v. Johnny Ribeiro “actually”—voted at the elec- tion in which the public officer Building, 106 Nev. 88, 92-93, Inside this issue: 787 P.2d 777, 780 (1990). We was elected, as the Secretary of therefore affirm the judgment of State and the Attorney General the district court. have concluded? Reasonable LAW.COM 3 policy arguments exist on both Strickland v. Waymire, 126 Nev. sides. But Article 2, Section 9’s text and relevant history con- Adv. Op. No. 25 (July 1, 2010) Ninth Circuit 7 These consolidated appeals re- vince us that the latter reading is Cases quire us to interpret Article 2, more faithful to the provision’s Section 9 of the Nevada Consti- test and the evident understand- tution, which subjects every pub- ing of the citizens who enacted Krollon- 10 lic officer in Nevada to recall by it. We therefore reverse. track.com special election upon the filing of a qualifying recall petition signed July 2010 Page 2 Nevada Supreme Court Cases Renown Health, Inc. v. Vanderford, 126 Nev. a concealed firearms permit is confidential, we Adv. Op. No. 24 (July 1, 2010) In this appeal, we conclude that the identity of the permittee of a consider whether hospitals owe an absolute non- concealed firearms permit, and any post-permit delegable duty to provide competent medical care records of investigation, suspension, or revoca- to their emergency room patients through inde- tion, are not declared explicitly to be confiden- pendent contractor doctors. Although the parties tial under NRS 202.3662 and are, therefore, settled in this matter, appellant Renown Health, public records under NRS 239.010. However, Inc., reserved its right to appeal the district court’s since post-permit records of investigation, sus- interlocutory order granting partial summary judg- pension, or revocation may contain information ment based on the imposition of a nondelegable from the application for a concealed firearms duty. A portion of the settlement remains contin- permit that is considered confidential under gent upon this appeal. We conclude that no such NRS 202.3662, we conclude that post-permit absolute duty exists under Nevada law, nor are we records of investigation of a permit holder, or at this time willing to judicially create one. Ac- suspension or revocation of a permit holder’s cordingly, we reverse the district court’s grant of permit, may be subject to redaction under NRS partial summary judgment insomuch as the district 239.010(3). court concluded that hospitals have such a non- delegable duty. We hold that Renown may be li- Ramirez v. State, 126 Nev. Adv. Op. No. 22 able for patient injuries under the ostensible (July 1, 2010) In this appeal, we consider agency doctrine that we previously recognized in whether the jury was properly instructed on the Schlotfeldt v. Charter Hospital of Las Vegas, 112 offense of second-degree felony murder by Nev. 42, 910 P.2d 271 (1996). means of child neglect or endangerment. For the reasons outlined in this opinion, we con- Reno Newspapers, Inc. v. Sheriff, 126 Nev. Adv. clude that the jury was not completely and accu- Op. No. 23 (July 1, 2010) In this appeal, we con- rately instructed as to the necessary elements of sider whether NRS 202.3662, which provides that second-degree felony murder and that the im- an application for a concealed firearms permit and proper instruction affected appellant Felicia Ra- the sheriff’s related investigation of the applicant mirez’s substantial rights. Accordingly, we re- are confidential, includes within its scope the iden- verse the district court’s judgment of conviction tity of the permittee of a concealed firearms permit and remand this matter for a new trial. and any records of suspension or revocation gener- ated after a permit is issued. Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. Adv. Op. No. 21 (June 24, 2010) This The Nevada Public Records Act considers original writ proceeding asks us to decide all records to be public documents available for whether a medical expert’s declaration under inspection unless otherwise explicitly made confi- penalty of perjury as provided in NRS 53.045 dential by statute or by a balancing of public inter- can satisfy the affidavit requirement stated in ests against privacy or law enforcement justifica- NRS 41A.071. We agree with the district court tion for nondisclosure. that it can and therefore deny writ relief. Although NRS 202.3662 is plain and un- ambiguous in its declaration that an application for Page 3 The Public Lawyer Law.com Happy Bar Day, Lawyers! Strike the Right Email Tone With 'ToneCheck' Today, July 27, is, in many states, the first day of the bar exam. Everybody and their mother Did you ever receive an email from opposing has written posts offering tips and advice to counsel and think, "Who does this S.O.B. think he those taking the test (see, e.g., Above the Law, is, talking to me this way? Call off the settlement, The Bar Professors, The Bar Exam Project it's ON now, sucker!" Meanwhile, the person you (these guys are real serious; they even give ad- now believe to be an S.O.B. of the highest order vice on how and when to pee during the thought he was just quickly wrapping things up. Bar)). Avoiding misunderstandings based on the tone of your emails has always been challenging. Some- So I'm not gonna do that. I'm no expert, and if anyone taking the bar finds him or herself times you spend three minutes on an email trying reading this blog on the way into the exam or during a lunch break, that person is probably to convey a simple thought, but the recipient pretty confident already. What I am going to do is to call upon all you lawyers to exercise reads your words as hostile, threatening, irra- your empathy muscles (assuming they haven't completely atrophied by this point): tional, happy or something else far different than If you're at a Wendy's tonight, and the you intended. Not anymore, though! woman in front of you seems to be taking forever to order, consider that she might just be involuntarily thinking about the appropriate Now, according to Lawyerist, you can cleanse parties to join in a lawsuit should she find a finger in her chili. your outgoing email of any false "tones" through See a guy sitting on a park bench, tears ToneCheck. It flags phrases and sentences that slowly streaming down his cheeks? His girlfriend didn't dump him, look hostile or angry (outside your specified he's just terrified he's going to fail. When you sit down next to him and "Tone Tolerance,") and offers substitutes. It also clap him on the shoulder, don't share your thoughts on the cruel flags lines that appear too "contented," e.g., nature of the female heart. Tell him you're sure he'd make a HELUVA overly cheerful when you are actually trying to lawyer, no matter what the Board of Law Examiners says. strike a tougher tone. If you happen to be walking or driving past the Pasadena Convention Cen- ter or the Jacob K. Javits Conven- Check out the ToneCheck demo here. tion Center (where yours truly took the exam many moons ago) around 3:30 this afternoon, give a reassur- ing smile and wave to the hordes of Calif. Court Finds 'Red Light Camera' Photos zombie-like wannabe attorneys Inadmissible shuffling down the street and/or vomiting in the bushes. Hell, swing by with a dozen donuts for the kids. By now, many readers are probably familiar with You were once them. the "red light cameras" in some states that snap a Don't get me wrong, there's no shame in being photo of you and your car as you pass through a damned glad you're not taking the test today red light. The photo along with a traffic citation is and that chapter of your life is over. But have a then sent to the registered address of the vehicle little respect for the next generation. in the photo for you to pay. According to a recent July 2010 Page 4 Law.com opinion by the Superior Court of California, underlying source of that information. The per- however, the evidence produced by these red son or persons who maintain the system did not light cameras is inadmissible.
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