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P u b l i c L a w ye r s Nevada Supreme Court Cases S e c t i o n

to apply. Winter 2013 - 14 Moon v. McDonald, Carano & Wilson, L.L.P. , Khan v. Bakhsh, 129 Nev. Brett Kandt, 129 Nev. Adv. Op. No. 56 Adv. Op. No. 57 (August 1, C h a i r (August 1, 2013) – The Court 2013) – The Court reverses a affirms a district court judg- district court judgment after ment dismissing appellants' a bench trial in a contract complaint in a legal malprac- and tort action and remands tice action, ruling that 1) un- with instructions. At trial, der NRS 11.207(1), the stat- the district court excluded ute of limitations for a legal under the statute of frauds malpractice claim commences certain evidence the Khans on the date the plaintiff dis- presented of an allegedly covers, or through due dili- written, but lost or destroyed, gence should have discov- agreement to purchase a cer- ered, the material facts that tain restaurant and land constitute the cause of action; from Bakhsh. The Court 2) the statutory limitation rules that 1) the district period for a claim of legal court erred in that the stat- malpractice involving the ute of frauds does not apply representation of a client to a writing that is subse- during litigation does not quently lost or destroyed, and commence until the underly- oral evidence is admissible to ing litigation is concluded prove the existence and Inside this issue: [citing Hewitt v. Allen, 118 terms of that lost or de- Nev. 216, 221, 43 P.3d 345, stroyed writing; 2) the dis- 348 (2002)]; and 3) an attor- Nevada Supreme 1 trict court further erred when Court Cases ney's alleged negligence in it improperly excluded evi- representing a creditor in the dence concerning whether a 9th Circuit Court 13 of Appeals Cases non-adversarial parts of a prior agreement was induced bankruptcy proceeding does by fraud or modified by a not constitute litigation mal- U.S. Supreme 14 subsequent agreement be- Court Cases practice causing the so-called cause the parol evidence rule Hewitt litigation tolling rule Winter 2013-14 Page 2

Nevada Supreme Court Cases does not preclude such evidence; and 3) be- substantially outweigh their probative cause actual damages were ascertainable value; 2) Holmes was not deprived of a fair and the liquidated damages provision oper- trial by the admission into evidence of a ated as a penalty, the district court erred coconspirator's out-of-court statement that by awarding liquidated damages. Holmes "went off' and "just started shoot- ing" since an abuse of discretion amount- State v. Greene, 129 Nev. Adv. Op. No. 58 ing to plain error does not appear in the (August 1, 2013) – The Court reverses a record; and 3) Holmes was not deprived of district court order granting respondent's a fair trial by the admission into evidence untimely and successive fifth post- of unwarned statements that Holmes conviction petition for a writ of habeas cor- made to the Nevada detectives who inter- pus after a hearing at which the district viewed him in California before his arrest, court determined that respondent Greene since the interrogation was not custodial received ineffective assistance of counsel at and the district correctly found that the his resentencing hearing and directed statement was voluntary. Greene's counsel to draft the order grant- ing the petition but refused to provide an Bradford v. Eighth Jud. Dist. Ct., 129 explanation for its decision. The Court re- Nev. Adv. Op. No. 60 (August 29, 2013) – iterates that when the district court directs The Court denies a writ petition challeng- a prevailing party to draft an order resolv- ing a district court order dismissing a di- ing a post-conviction petition for a writ of vorce complaint, ruling that petitioner habeas corpus, it must provide sufficient Geanie Bradford’s failure to timely appeal direction regarding the basis for its deci- the order precludes writ relief, since the sion to enable the prevailing party to draft validity of the parties' marriage was an the order; and rules that the district court issue capable of review on appeal and an erroneously determined that Greene estab- appeal would have been an adequate legal lished good cause sufficient to excuse the remedy. procedural bars to a consideration of his petition on the merits. State of Nevada v. Tatalovich, 129 Nev. Adv. Op. No. 61 (September 19, Holmes v. State, 129 Nev. Adv. Op. No. 59 2013) – The Court affirms a district court (August 22, 2013) – The Court affirms a order granting a petition for judicial re- jury conviction of first-degree murder and view of a Private Investigator's Licensing robbery, both with the use of a deadly Board decision, ruling that investigative weapon, ruling that 1) Holmes was not de- work undertaken for the purpose of devel- prived of a fair trial by the admission into oping and giving expert opinion testimony evidence of inflammatory rap lyrics he in a Nevada civil court case does not re- wrote while in jail in California that de- quire a Nevada private investigator's li- scribe details that mirrored the crimes cense. charged, since the district court did not abuse its discretion in determining that the Loeb v. First Jud. Dist. Ct., 129 Nev. risk they carried of unfair prejudice did not Adv. Op. No. 62 (September 19, 2013) – Page 3 The Public Lawyer

Nevada Supreme Court Cases

The Court denies a writ petition challeng- torney fees and costs in a case regarding a ing a district court order denying a motion dispute over unpaid HOA property assess- to serve individual defendants by publica- ments, the Court affirms in part, reverses tion. The Court rules that a party resid- in part and remands, ruling that while the ing outside of the United States whose for- district court was correct in determining eign address is known may not be served that most of McKnight's claims were sub- by publication pursuant to NRCP 4(e)(1)(i) ject to NRS 38.310 and should have been and (iii), but must be served under the submitted to a form of alternative dispute terms of the Hague Convention on Service resolution before being brought in district Abroad of Judicial and Extrajudicial Docu- court, the district court erred to the extent ments in Civil or Commercial Matters in that it dismissed McKnight's claim for qui- one of the following manners: 1) "through et title because that claim was not subject the central authority of the receiving to NRS 38.310. The Court reverses the dis- country," 2) "through diplomatic or consu- missal of McKnight's quiet title claim and lar agents that the receiving country con- the district court's order denying the mo- siders nonobjectionable." or 3) "by any tion to set aside the trustee's sale. method permitted by the internal law of the receiving country" [citing Dahya v. Nev. Pub. Emps. Ret. Bd. v. Smith, 129 Second Judicial Dist. Court, 117 Nev. 208, Nev. Adv. Op. No. 65 (October 3, 2013) – 212, 19 P.3d 239, 242 (2001)]. The Court reverses a district court order granting declaratory and other relief as to Vanguard Piping v. Eighth Jud. Dist. certain statutes governing the Public Em- Ct., 129 Nev. Adv. Op. No. 63 (September ployees' Retirement System in a case in- 19, 2013) – The Court denies a writ peti- volving interpretation of retirement eligi- tion challenging a district court order com- bility under NRS 286.541(2). The Court pelling disclosure of insurance policies. rules that the district court erred in its in- The Court rules that NRCP 16.1(a)(1)(D), terpretation of the controlling statute and which requires disclosure of any insurance in reviewing the PERS Board's decision de agreement that may be liable to pay a por- novo, rather than deferentially. Under tion of a judgment, compels disclosure of PERS interpretation of the statute, a mem- all insurance agreements, regardless of ber who goes from one PERS-eligible job to whether the policy limits exceed the another without a break in service and re- amount of potential liability or whether tiring from PERS may not thereafter retire the policies provide secondary coverage. and receive benefits from PERS, until the member effectively retires from his or her Adept Mgmt. v. McKnight Family, new PERS-eligible job. The district court L.L.P., 129 Nev. Adv. Op. No. 64 (October had disagreed and ruled that 1) NRS 3, 2013) – On consolidated appeals from a 286.541(2) determines retirement benefit district court order dismissing a complaint dates, not retirement eligibility; 2) PERS pursuant to NRS 38.310 and from a post- should have allowed respondent Douglas judgment order denying a motion for at- Smith to retire and receive benefits from Winter 2013-14 Page 4

Nevada Supreme Court Cases

PERS based on his prior public service, rect dealings with the buyer to ensure the even after he was sworn in as a district completion of the transaction, but court judge, another PERS-eligible posi- that ,while the district court properly tion; and 3) under NRS 286.190(3)(a), awarded incidental and consequential PERS could and should have equitably ex- damages, it abused its discretion in cused Judge Smith's noncompliance with awarding attorney fees and that portion of NRS 286.541, and allowed him to reverse the judgment is reversed. his eventual election to transfer from PERS to the Judicial Retirement System St. Mary v. Damon, 129 Nev. Adv. Op. (JRS), despite NRS 1A.280(6), which No. 68 (October 3, 2013) – The Court re- makes such an election irrevocable. verses a district court order determining custody of a minor child in a same sex re- In re Discipline of Serota, 129 Nev. Adv. lationship, ruling that 1) the district court Op. No. 66 (October 3, 2013) – In a review erred in relying on a previous order that of a Southern Nevada Disciplinary Board recognized Damon as the child's legal hearing panel's recommendation that an mother and granted her the right to be attorney be disbarred from the practice of added as a mother to the child's birth cer- law and related petitions, the Court rules tificate to conclude that St. Mary was a that clear and convincing evidence support- mere surrogate, and abused its discretion ed the panel's findings that Serota failed to in refusing to uphold the parties' co- safekeep his client's property, a violation of parenting agreement or consider whether RPC 1.15, that he engaged in misconduct, St. Mary was a parent entitled to any cus- a violation of RPC 8.4, and that the egre- todial rights; 2) the Nevada Parentage Act giousness of misappropriating $319,000 in does not preclude St. Mary and Damon client funds warrants disbarment. from both being legal mothers of the child; and 3) the district court erred in deeming Newmar Corp. v. McCrary, 129 Nev. the co-parenting agreement unenforceable Adv. Op. No. 67 (October 3, 2013) – On con- under NRS 126.045, since the agreement's solidated appeals from a district court plain language indicated that it was not a judgment in a revocation of acceptance and surrogacy arrangement within the scope breach of warranty action and from a of that statute, and the agreement aligns postjudgment order awarding attorney with Nevada's policy of encouraging par- fees, the Court affirms in part and reverses ents to enter into parenting agreements in part, ruling that the purchaser of a mo- that resolve matters pertaining to their tor home may revoke acceptance and recov- child's best interest. er the purchase price from the motor home's manufacturer under the Uniform Markowitz v. Saxon Special Servicing, Commercial Code where, as here, privity 129 Nev. Adv. Op. No. 69 (October 3, exists between the manufacturer and the 2013) – The Court affirms a district court buyer because the manufacturer interject- order denying a petition for judicial review ed itself into the sales process and had di- in a Foreclosure Mediation Program mat- Page 5 The Public Lawyer

Nevada Supreme Court Cases ter. The Court rules that, because the me- tio for their failure to comply with NRS diation rule requiring an appraisal or bro- 11.258. ker's price opinion that is no more than 60 days old at the time of the mediation is Wells Fargo Bank, N.A. v. O'Brien, 129 based on the principle that a current ap- Nev. Adv. Op. No. 71 (October 3, 2013) – praisal or broker's price opinion is intend- The Court dismisses an appeal from a dis- ed to facilitate good-faith mediation nego- trict court order granting a petition for ju- tiations, the rule's content-based provision dicial review of a foreclosure mediation, governing the appraisal's age is directory awarding sanctions, and remanding the rather than mandatory, and thus, sub- matter to the Foreclosure Mediation Pro- stantial compliance with the 60-day provi- gram for further mediation. The Court sion satisfies the mediation rule. rules that an order remanding for further mediation generally is not final and there- In re CityCenter Constr. & Lien Litig., fore not appealable [NRAP 3A(b)(1)]. 129 Nev. Adv. Op. No. 70 (October 3, 2013) – The Court grants a writ petition N. Lake Tahoe Fire v. Washoe Cnty. challenging a district court order denying Comm'rs, 129 Nev. Adv. Op. No. 72 petitioner's motion to dismiss real parties (October 3, 2013) – The Court affirms a dis- in interest's third- and fourth-party com- trict court order denying a writ petition plaints in a construction defect action. seeking payment under NRS Chapter 474 The Court rules that 1) Century's and in a matter arising from the Washoe Coun- PCS's initial causes of action brought ac- ty Commissioners' decision to withhold col- tions that were within the scope of NRS lected property taxes from the North Lake 11.2565(1)'s definition of an action involv- Tahoe Fire Protection District. The Court ing nonresidential construction; 2) be- adopts the factors set forth in Baker v. cause their pleadings identified Converse's Carr [369 U.S. 186, 217 (1962)] and con- professional engineering services [NRS cluding that because respondents were 625.050(1)(a)], their pleadings were within their authority to withhold distribu- against a design professional [NRS tions, and because the manner in which 11.2565(2)(b)], thereby subjecting them to they did so was discretionary, the political NRS 11.258's attorney affidavit and ex- question doctrine precludes judicial review. pert report requirements; 3) Otak Nevada, L.L.C. v. Eighth Judicial District Court In re Steven Daniel P., 129 Nev. Adv. Op. [127 Nev. , 260 P.3d 408 (2011)] correctly No. 73 (October 3, 2013) – The Court re- construed NRS 11.259(1) as requiring the verses a district court juvenile division or- dismissal of an amended pleading—not an der dismissing a delinquency petition and entire action—that followed an initial referring the juvenile for informal supervi- pleading that was filed without adhering sion and remands for further action. The to NRS 11.258; and 4) the district court Court rules that 1) NRS 62C.230(1)(a) must dismiss the amended pleadings grants the juvenile court authority to dis- against Converse as they were void ab ini- miss a petition and refer a juvenile for in- Winter 2013-14 Page 6

Nevada Supreme Court Cases formal supervision only when the require- sion itself in that they would have pre- ments of NRS 62C.200 have been met, in- cluded the judgment from being rendered. cluding the requirement that the district attorney give written approval for place- Stilwell v. City of N. Las Vegas and ment of the juvenile under informal super- City of Boulder City, 129 Nev. Adv. Op. vision where the acts alleged in the peti- No. 76 (October 31, 2013) – The Court dis- tion would be a felony or gross misdemean- misses consolidated appeals from district or if committed by an adult; and 2) the ju- court orders denying motions for attorney venile court is limited by the provisions of fees and costs arising from Stilwell’s con- NRS Title 5 when exercising its authority victions in municipals courts of riding a to carry out its duties in overseeing juve- motorcycle without wearing proper head- nile justice matters. gear in violation of NRS 486.231. After Stilwell appealed his convictions to the Paley v. Second Jud. Dist. Ct., 129 Nev. district court for trial anew as provided by Adv. Op. No. 74 (October 3, 2013) – The NRS 5.073(1) and NRS 266.595, the prose- Court denies a writ petition challenging a cution dismissed them with prejudice and juvenile court order holding petitioner in refunded the fines and costs Stilwell had direct contempt of court based on a positive paid to exonerate bail and appeal his con- drug test; the respondent district court victions. The district court subsequently judge vacated the contempt order while the denied Stilwell’s motion for attorney fees writ petition was pending. The Court rules and court costs pursuant to NRS 176.115, that an exception to the mootness doctrine ruling that the municipal court convic- allowing judicial review when the contest- tions provided prima facie evidence of ed issue is likely to arise again but will probable cause and malice was not inde- evade review does not apply because it is pendently claimed. The Court rules that clear that a positive drug test alone will pursuant to NEV. CONST. art. 6, § 6 the dis- not support a finding of direct contempt trict court's appellate jurisdiction is final under NRS 22.010. and the Court lacks jurisdiction.

Trujillo v. State, 129 Nev. Adv. Op. No. Blanco v. Blanco, 129 Nev. Adv. Op. No. 75 (October 10, 2013) – The Court affirms a 78 (October 31, 2013) – The Court revers- district court order denying a petition for a es a divorce decree entered by default in writ of coram nobis, ruling that the com- the district court in which a wife repre- mon-law writ of coram nobis is available in senting herself failed to comply with sev- Nevada only for petitioners who are no eral of the husband's discovery requests longer in custody on the judgment being and the district court entered a default di- challenged and only to address errors of vorce decree against her as a sanction. fact outside the record that were not The Court rules that 1) it is not permissi- known to the court entering the judgment, ble to resolve child custody and child sup- could not have been raised earlier, and af- port claims by default as a sanction for fect the validity and regularity of the deci- discovery violations because the child's Page 7 The Public Lawyer

Nevada Supreme Court Cases best interest is paramount and compels a ception to its warrant requirement than decision on the merits; 2) as for the divi- the Fourth Amendment does; 2) the consti- sion of community property and debt, the tutional protection in the federal automo- court must make an equal disposition as bile-exception caselaw lies in the require- required by statute; 3) regarding all other ment of probable cause to believe the vehi- claims, the court may enter a default, but cle contains contraband or evidence of a only after a thorough evaluation and ex- crime and the car's inherent mobility, not press findings of whether less severe sanc- the peripheral factors identified in State v. tions are appropriate; and 4) because the Harnisch (Harnisch II) [114 Nev. 225, 954 district court did not make any express P.2d 1180 (1998)] and related caselaw; 3) findings as to appropriateness of less se- exigency is not a separate requirement of vere sanctions before entering the default, the automobile exception to the constitu- the default divorce decree is reversed and tional warrant requirement; and 4) the remanded for further proceedings. drug detection dog's alert gave the officers probable cause to search Lloyd's car, which Wynn v. Baldonado, 129 Nev. Adv. Op. was parked in a public place and readily No. 79 (October 31, 2013) – The Court re- mobile (reversing the district court's order verses a district court order granting a and remanding for further proceedings). petition for judicial review of the Nevada Labor Commissioner's decision regarding Civil Rights for Seniors v. AOC, 129 a tip-pooling policy and whether an ad- Nev. Adv. Op. No. 80 (October 31, 2013) – ministrative agency can grant class action The Court affirms a district court order certification, ruling that 1) NRS 608.160 denying a petition for a writ of mandamus allows employers to require employees to seeking to compel the Administrative Of- pool their tips with other employees of a fice of the Courts to disclose records under different rank; and 2) the district court Nevada's Public Records Act related to Ne- erred in failing to defer to the Labor Com- vada's Foreclosure Mediation Program, rul- missioner's interpretation of NAC 607.200 ing that the district court properly rejected in declining class certification in the mat- access to the requested information based ter. on the confidentiality provisions set forth in the Foreclosure Mediation Rules prom- State v. Lloyd, 129 Nev. Adv. Op. No. 77 ulgated by the Court. (October 31, 2013) – The Court reverses a district court order granting a motion to LVMPD v. Yeghiazarian, 129 Nev. Adv. suppress evidence in a drug possession Op. No. 81 (November 7, 2013) – The Court and trafficking case that originated when affirms a district court judgment in a Lloyd ran a red light; during the subse- wrongful death action arising from a traffic quent stop, a drug detection dog’s alert led collision involving a police patrol car, and to a warrantless automobile search. The vacates in part a post-judgment order Court rules that 1) the Nevada constitu- awarding attorney fees and costs, ruling tion compels no different automobile ex- that 1) the district court did not abuse its Winter 2013-14 Page 8

Nevada Supreme Court Cases discretion by excluding evidence of the de- nished funds belonged to them alone (a ceased's blood alcohol content (BAC) to judgment creditor may garnish only a show his comparative negligence, since ad- debtor's funds that are held in a joint mission requires additional evidence sug- bank account, not the funds in the account gesting intoxication from either a percipi- owned solely by the nondebtor). ent witness or an expert who can testify regarding that person's commensurate lev- State, Dep't of Taxation v. Masco el of impairment; 2) the district court did Builder, 129 Nev. Adv. Op. No. 83 not abuse its discretion in allowing an ex- (November 7, 2013) – The Court affirms a pert to testify based in part on a determi- district court post-judgment order award- nation that the proposed testimony was the ing pre- and post-judgment interest in a product of reliable methodology under tax case arising from a refund of overpaid Hallmark v. Eldridge [124 Nev. 492, 498, taxes, ruling that 1) the taxpayer is not 189 P.3d 646, 650 (2008)]; 3) the district required to affirmatively request interest court correctly applied comparative negli- in its initial refund claim; and 2) the De- gence and calculated damages under NRS partment of Taxation may not withhold 41.035; 4) the district court did not abuse interest on tax refunds when it has failed its discretion in awarding attorney fees to timely make a determination under that included charges for nonattorney staff; NRS 372.665 as to whether any overpay- and 5) the award of attorney fees and costs ment has been made intentionally or by is vacated in part and remanded for fur- reason of carelessness. ther analysis of the claims pursuant to the factors set forth in Brunzell v. Golden Gate Elizondo v. Hood Mach., Inc., 129 Nev. National Bank [85 Nev. 345, 349, 455 P.2d Adv. Op. No. 84 (November 7, 2013) – The 31, 33 (1969)]. Court reverses a district court order deny- ing a petition for judicial review in a work- Brooksby v. Nev. State Bank, 129 Nev. ers' compensation matter, ruling that 1) Adv. Op. No. 82 (November 7, 2013) – The the appeals officer's conclusory order in Court reverses a district court order deny- the matter lacked findings of fact and con- ing a petition for a hearing concerning the clusions of law, failed to meet the statuto- return of bank account funds under NRS ry requirements of NRS 233B.125, and 21.120 (third-party claims on writs of gar- was procedurally deficient; and 2) the ap- nishment in aid of execution) and NRS peals officer erred by applying the doc- 31.070 (third-party claims), and remands trines of issue and claim preclusion to bar for an evidentiary hearing. In post- Elizondo's request to reopen his industrial judgment proceedings below, a judgment injury claim under NRS 616C.390. creditor garnished the funds in bank ac- counts held by the judgment debtor jointly Humphries v. Eighth Jud. Dist. Ct., with her nondebtor children; the district 129 Nev. Adv. Op. No. 85 (November 7, court summarily denied a timely petition 2013) – The Court grants a writ petition from the children asserting that the gar- challenging a district court order requir- Page 9 The Public Lawyer

Nevada Supreme Court Cases ing the plaintiffs in a premises liability derlying the writ petition; 2) NRS 40.459 action to join the plaintiffs' assailant as a (1)(c) only applies prospectively and the defendant, on the grounds that the assail- limitations in the statute apply to sales, ant was a party necessary to the litiga- pursuant to either judicial foreclosures or tion. The Court rules that the assailant trustee's sales, occurring on or after the was not a necessary party under NRCP 19 effective date of the statute; and 3) in cas- because the district court can afford com- es where application of NRS 40.459(1)(c) plete relief to the parties, the defendant is would not have a retroactive effect, it ap- able to implead the assailant as a third plies to any transfer of the right to obtain party under NRCP 14, and creating a per a deficiency judgment, regardless of when se joinder requirement would unfairly bur- the right was transferred. den plaintiffs. PERS v. Reno Newspapers, 129 Nev. Otak Nev., L.L.C. v. Eighth Jud. Dist. Adv. Op. No. 88 (November 14, 2013) – Ct., 129 Nev. Adv. Op. No. 86 (November The Court affirms in part and vacates in 7, 2013) – The Court grants a writ petition part a district court order granting a peti- challenging a district court order declining tion for a writ of mandamus to compel to dismiss a third-party complaint, ruling public access to government records aris- that 1) NRS 17.245(1)(b) bars all claims ing from the Reno Gazette-Journal’s (RGJ) that seek contribution and/or equitable request for the names of all individuals indemnity when the settlement is deter- who are collecting pensions, the names of mined to be in good faith; and 2) the con- their government employers, their sala- tractor's remaining third-party claims in ries, their hire and retirement dates, and this matter are "de facto" contribution the amounts of their pension payments, as claims barred by NRS 17.245(1)(b). part of an investigation concerning gov- ernment expenditures and the public cost Sandpointe Apts. v. Eighth Jud. Dist. of retired government employee pensions. Ct., 129 Nev. Adv. Op. No. 87 (November The Court rules that NRS 286.110(3) pro- 14, 2013) – The Court denies a writ peti- tects only the individuals' files maintained tion challenging a district court order by PERS and the district court correctly denying a motion for partial summary interpreted that statute's scope of confi- judgment and granting a countermotion dentiality and did not abuse its discretion for partial summary judgment in a defi- in ordering PERS to provide the requested ciency and breach of guarantee action, rul- information to the extent that it is main- ing that 1) NRS 40.459(1)(c), a statute tained in a medium separate from individ- limiting the amount of judgments in in- uals' files, but vacates the district court's stances where a right to obtain a judg- order to the extent that the district court ment against the debtor, guarantor, or ordered PERS to create new documents or surety has been transferred from one per- customized reports by searching for and son to another, would have an improper compiling information from individuals' retroactive effect if applied to the facts un- files or other records. Winter 2013-14 Page 10

Nevada Supreme Court Cases

Clancy v. State, 129 Nev. Adv. Op. No. Clay v. Eighth Jud. Dist. Ct., 129 Nev. 89 (November 27, 2013) – The Court af- Adv. Op. No. 91 (November 27, 2013) – firms a jury conviction of leaving the scene The Court grants a writ petition challeng- of an accident, ruling that 1) NRS ing a juvenile court order unsealing and 484E.010 is not unconstitutionally vague releasing petitioner's sealed juvenile court or ambiguous; 2) actual physical contact records for use in a criminal prosecution between two vehicles is not required for a in which petitioner stands charged with person to be involved in an accident under two counts of first-degree murder and as- the statute; 3) the State is required to sociated offenses for which he faces the prove that the driver had actual or con- death penalty. The Court rules that 1) structive knowledge that he had been in- neither NRS 62H.170(3) nor NRS volved in an accident; and 4) in this in- 62H.170(2)(c) allow the State to inspect a stance, sufficient evidence was presented person's sealed juvenile records for use to support the jury's finding that appel- against the person in subsequent criminal lant knew or should have known that he proceedings; and 2) the juvenile court was involved in an accident before leaving therefore manifestly abused its discretion the scene. by unsealing and releasing petitioner's records. Perez v. State, 129 Nev. Adv. Op. No. 90 (November 27, 2013) – The Court affirms In re Estate of Bethurem, 129 Nev. Adv. a jury conviction of six counts of lewdness Op. No. 92 (November 27, 2013) – The with a child under 14 years of age and two Court reverses a district court order inval- counts of sexual assault of a minor under idating a will as the product of the benefi- 14 years of age in an appeal concerning ciary's undue influence (and directing dis- the admissibility of expert testimony re- tribution of property according to a former lated to sex offender grooming behavior will), ruling that 1) a rebuttable presump- and the effect that behavior has on a child tion of undue influence is raised if the tes- victim. The Court rules that 1) whether tator and the beneficiary shared a fiduci- expert testimony on grooming behavior is ary relationship, but undue influence may admissible in a case involving sexual con- also be proved without raising this pre- duct with a child must be determined on a sumption; 2) in the absence of the pre- case-by-case basis, considering the re- sumption, a will contestant bears the bur- quirements that govern the admissibility den of proving undue influence by a pre- of expert testimony; 2) considering those ponderance of the evidence; and 3) the re- requirements, the district court did not spondent-will contestants failed to meet abuse its discretion in admitting the ex- this burden of proof. pert testimony in this case; 3) the expert's testimony did not improperly vouch for Aspen Fin. Servs. v. Eighth Jud. Dist. the complaining witness's testimony; and Ct., 129 Nev. Adv. Op. No. 93 (November 4) the State's pretrial notice was suffi- 27, 2013) – The Court denies a writ peti- cient. tion challenging a district court order Page 11 The Public Lawyer

Nevada Supreme Court Cases quashing a subpoena, ruling that 1) the Court’s decision in Carrigan v. Comm'n on motion to quash the subpoena properly Ethics, 126 Nev. _, 236 P.3d 616 (2010), asserted the news shield privilege under that the First Amendment overbreadth NRS 49.275; 2) assertion of the privilege doctrine invalidated the conflict-of- may be raised, as it was here, by a report- interest recusal provision in Nevada's er's attorney in a motion to quash a sub- Ethics in Government Law, NRS Chapter poena, without the need to file a support- 281A. On remand, the Court affirms, rul- ing affidavit, so long as the motion demon- ing that the conflict-of-interest recusal strates that the information sought by the provision in NRS 281A.420(2)(c) 1) is not subpoena is facially protected by the stat- unconstitutionally vague in violation of ute; and 3) petitioners have failed to over- the Due Process Clauses of the Fifth and come the privilege. Fourteenth Amendments, since NRS 281A.420(8)(e), which requires recusal for Watters v. State, 129 Nev. Adv. Op. No. relationships "substantially similar" to 94 (November 27, 2013) – The Court re- four enumerated ones, can be clearly con- verses a jury conviction of possession of a strued in reference to the enumerated re- stolen vehicle, grand larceny of a vehicle, lationships; and 2) does not unconstitu- and failure to stop on the signal of a police tionally burden the First Amendment officer, ruling that 1) the State's use of a freedom-of-association rights shared by PowerPoint during opening statement Nevada's elected officials and their sup- that includes a slide of the defendant's porters, since any burden is scant when booking photo with the word "GUILTY" compared to the state's important interest superimposed across it constitutes im- in avoiding conflicts of interest and self- proper advocacy and undermines the pre- dealing by public officials entrusted with sumption of innocence essential to a fair making decisions affecting citizens. trial; and 2) a presumption-of-innocence error is of constitutional dimension and Cnty. of Clark v. LB Props., Inc., 129 the State failed to prove, beyond a reason- Nev. Adv. Op. No. 96 (December 12, 2013) able doubt, that the error did not contrib- – The Court reverses a district court order ute to the verdict obtained (citing Chap- setting aside the Nevada Tax Commis- man v. California, 386 U.S. 18, 24 (1967)). sion's decision upholding the County As- sessor's assessment of a remainder parcel Carrigan v. Nev. Comm'n on Ethics, for tax abatement purposes, ruling that 129 Nev. Adv. Op. No. 95 (November 27, the record supports the conclusion that 2013) – Remanded from the U.S. Supreme the Assessor's method did not lead to une- Court, Nev. Comm'n on Ethics v. Carri- qual taxation but rather appears likely led gan, 564 U.S. _, 131 S. Ct. 2343 (2011), to more equitable taxation than the meth- which held that Sparks City Councilman od set forth in NAC 361.61038, appears to Carrigan's vote on the Lazy 8 hotel/casino be the method generally used prior to the project did not constitute protected regulation's enactment and in harmony speech, and reversed the Nevada Supreme with NRS 361.4722(2)(a)(1), and since the Winter 2013-14 Page 12

Nevada Supreme Court Cases

Assessor's method does not conflict with existing statute or practice, it does not vio- 2014 NEVADA GOVERNMENT CIVIL late the Constitution. ATTORNEYS CONFERENCE Harveys Resort – South Lake Tahoe, NV In re Aboud Inter Vivos Trust, 129 Nev. May 7-9, 2014 Adv. Op. No. 97 (December 19, 2013) – The Court affirms in part and reverses in The Nevada Advisory Council for Prose- part a district court judgment in trust ac- cuting Attorneys and the State Bar of Ne- tion concerning trust property that was vada Public Lawyers Section will co- transferred from the trust to a limited sponsor the 2014 Nevada Government partnership for consideration and by con- Civil Attorneys Conference, scheduled for sent of all of the trust beneficiaries, and May 7-9 at Harveys Resort at South Lake subsequently transferred the property to a Tahoe, NV. This conference is an annual third-party business. The Court rules forum for networking and education on that 1) because in rem jurisdiction only the critical issues facing government coun- extends to property and the disputed as- sel representing state, municipal, county sets were no longer trust property after or other public entities. The conference they were transferred to the limited part- will feature 10 hours of CLE presentations nership, NRS 164.010(1) and NRS (including ethics and substance abuse), 164.015(6) did not confer jurisdiction upon and the Public Lawyers Section annual the district court to enter a constructive meeting on May 8th. trust on those assets and a personal mone- tary judgment against the former trustee Attendees may register directly through and third-party company; and 2) because the Nevada Advisory Council for Prosecut- the claims against the former trustee ing Attorneys at www.nvpac.nv.gov. arose from alleged breaches of fiduciary duties to the limited partnership and not REGISTRATION DEADLINE IS APRIL to the trust, the district court erred by en- 18, 2014. tering a personal judgment against the Attendees are responsible for making former trustee in a trust accounting ac- their lodging reservations; contact Har- tion. veys Resort at 1-800-455-4770 prior to ______April 7st and use group code S05NCG4 for the conference room rate of $69/night plus tax.

For further information, please contact Brett Kandt, Public Lawyers Section

Chair, at (775)688-1966 or [email protected].

Page 13 The Public Lawyer

Ninth Circuit Court of Appeals Cases

Crowley v. Bannister, _ F.3d _, No. 12- supervisor may be liable only if (1) he or she is personally involved in the constitu- 15804 (9th Cir. 2013) - A panel affirms in part and vacated in part the district tional deprivation, or (2) there is ‘a suffi- court’s summary judgment in a 42 U.S.C. cient causal connection between the su- § 1983 action brought by a Nevada state pervisor’s wrongful conduct and the con- prisoner alleging deliberate indifference to stitutional violation.’” The panel remands his medical needs in the administration of with instructions to comply with Rule 4 his medication. The panel affirms the dis- (m) with respect to Dr. Sussman and to allow plaintiff leave to amend his second trict court’s grant of summary judgment in favor of defendant Dr. Bannister since amended complaint. plaintiff failed to submit evidence raising Hagen v. City of Eugene, _ F.3d _, No. a genuine issue of material fact that his 12-35492 (9th Cir. 2013) – A panel reverses injury could have been avoided had Dr. the district court’s denial of defendants’ Bannister implemented a policy allowing motion for judgment as a matter of law, for the administration of three pill calls following a jury trial, in a 42 U.S.C. § 1983 per day. The panel affirms the district action in which plaintiff alleged that de- court’s grant of summary judgment in fa- fendants violated his First Amendment vor of defendants Warden Neven and rights when they removed him from his nurses Grisham, Diliddo, and Balao- position with the Eugene Police Depart- Cledera because Crowley expressly waived ment’s K-9 team in retaliation for his re- his appeal against them in his reply brief. peatedly airing concerns about work- The panel vacates the clerk’s entry of related safety issues to his supervisors. judgment in favor of defendant Dr. Suss- The panel held that defendants were enti- man, holding that, because the record did tled to judgment as a matter of law, con- not reflect that the district court provided cluding that the evidence presented to the the required Rule 4(m) notice prior to the jury did not reasonably permit the conclu- clerk’s entry of judgment in favor of Dr. sion that plaintiff established a First Sussman, plaintiff was precluded from at- Amendment retaliation claim, since he tempting to show good cause or excusable had “an official duty to report his safety neglect for his failure to serve Dr. Suss- concerns and thus spoke as a public em- man in a timely manner. The panel also ployee when he repeatedly complained vacates the district court’s decision deny- within the chain of command about work- ing plaintiff’s request for leave to amend related safety issues” rather than as a his second amended complaint to name private citizen entitled to First Amend- additional defendants and to discover ment protection. whether any delays on their part in providing medical treatment caused or ex- Omnipoint Communications, Inc. v. acerbated his Lithium toxicity. The opin- City of Huntington Beach,_ F.3d _, No. ion contains helpful analysis on superviso- 10-56877 (9th Cir. 2013) – Reversing the ry liability for actions of subordinates: “[a] district court’s judgment, a panel held Winter 2013-14 Page 14

United States Supreme Court Cases that the Telecommunications Act of 1996 Stanton v. Sims, 571 U.S. _, 12-1217 did not preempt the City of Huntington (November 4, 2013) – Through a unani- Beach’s decision to require a company to mous per curiam opinion, the Court sum- obtain voter approval before constructing marily reversed a Ninth Circuit decision a mobile telephone antenna on city-owned that had denied qualified immunity to po- park property. The panel held that 47 lice officer Stanton, who injured respond- U.S.C. § 332(c)(7)(A) functions to preserve ent Sims (when he kicked open a gate that local land use authorities’ legislative and struck Sims in her yard) while in hot pur- adjudicative authority subject to certain suit of a misdemeanor suspect. Sims sued substantive and procedural limitations. Stanton under 42 U.S.C. §1983, claiming that he violated her constitutional rights ______by searching her home without a warrant, PUBLIC LAWYER COMPLIANCE and the district court granted Stanton WITH RPC 6.1 summary judgment, finding that his ac- Recently all Nevada lawyers received an tions were justified in light of the need to annual dues invoice from the State Bar of pursue the suspect and, alternatively, that Nevada, which included a form for the he was qualifiedly immune because no mandatory reporting of pro bono activities clearly established law put him on notice as required by RPC 6.1. that his actions were unconstitution- al. The Ninth Circuit reversed, holding It is crucial that the reporting under RPC that Stanton’s warrantless entry was un- 6.1 accurately reflect the contributions of constitutional because there was no imme- public lawyers to improving access to jus- diate danger and because the suspect com- tice for all Nevadans. mitted only a minor offense (disobeying a police officer). The court also denied Stan- Please note that towards the bottom of the ton qualified immunity, relying on Welsh form there is a section to report hours of v. Wisconsin, 466 U.S. 740 (1984), and service “of activities improving the law United States v. Johnson, 256 F.3d 895 or law related education.” There is also (9th Cir. 2001) (en banc) (per curiam), as a section to report hours of “legal ser- clearly establishing that the hot-pursuit vices to organizations that address doctrine does not apply to the pursuit of a the needs of persons of limited suspect for a minor offense. Through a per means.” curiam opinion, the Court reversed and held that Stanton was entitled to qualified If you have any questions about compli- immunity, ruling that neither Welsh nor ance with RPC 6.1 or activities that may Johnson clearly established that Stanton’s fall within the scope of the Rule, contact conduct violated Sims’ Fourth Amend- Brett Kandt, Public Lawyers Section ment rights and that the Ninth Circuit Chair, at (775)688-1966 or read those decisions “far too broad- [email protected]. ly” (although the Court expressed no view on the underlying constitutional issue). Page 15 The Public Lawyer

United States Supreme Court Cases

Burt v. Titlow, 571 U.S. _, No.12-414 er v. Harris, 401 U.S. 37 (1971). The (November 5, 2013) – The Court unani- Court ruled that the Younger doctrine ap- mously reversed a Sixth Circuit decision plies in only three circumstances: 1) it that had granted habeas relief based on bars federal intrusion into ongoing state defense counsel’s purported ineffective- criminal prosecutions; 2) certain civil en- ness in advising rejection of a plea offer, forcement proceedings warrant absten- ruling that the Sixth Circuit failed to ap- tion; and 3) federal courts should not in- ply the “doubly deferential” standard of terfere with pending “civil proceedings in- review when it refused to credit the state volving certain court orders . . . uniquely court’s reasonable factual finding and as- in furtherance of the state courts’ ability sumed that counsel was ineffective where to perform their judicial functions.” The the record was silent. Court held that the Eighth Circuit erred in affirming the federal district court’s de- Atlantic Marine Constr. Co. v. U.S. cision to abstain in this case, arising from District Court for the Western District a ruling from the Iowa Utilities Board of Texas, 571 U.S. _, No. 12-929 that Sprint had to pay certain intercarrier (December 9, 2013) – The Court in a unan- access fees; Sprint subsequently filed suit imous opinion specifies the procedure that against the Board in federal district court is available for a defendant in a civil case seeking declaratory and injunctive relief who seeks to enforce a forum-selection on the basis of federal preemption, while clause, ruling that such a clause is not en- also appealing the Board’s ruling in state forceable under 28 U.S.C. §1406(a) or court. FRCP 12(b)(3), which allow dismissal when venue is “wrong” or “improper” un- Kansas v. Cheever, 571 U.S. _, No. 12- der the federal venue laws. Rather, such 609 (December 11, 2013) – The Court a clause is enforceable under 28 U.S.C. unanimously held that the Fifth Amend- §1404(a), which authorizes district courts ment’s self-incrimination clause does not to transfer civil actions to other districts, prohibit the government “from introducing and when a defendant requests a transfer evidence from a court-ordered mental under §1404(a) based upon a forum- evaluation of a criminal defendant to re- selection clause, a district court should but the defendant’s presentation of expert transfer the case “unless extraordinary testimony in support of a defense of volun- circumstances unrelated to the conven- tary intoxication.” The Court concluded ience of the parties clearly disfavor a that “[w]hen a defendant presents evi- transfer.” dence through a psychological expert who has examined him, the government like- Sprint Communications, Inc. v. Ja- wise is permitted to use the only effective cobs, 571 U.S. _, No. 12-815 (December means of challenging that evidence: testi- 11, 2013) – The Court in a unanimous mony from an expert who has also exam- opinion sets out the circumstances when a ined him.” federal court should abstain under Young-