Advance Opinion Summary (4-16-16)
By Joe Tommasino
These summaries are provided by attorney Joe Tommasino and published by the Clark County Bar Association (CCBA). All rights reserved. To request permissions to reprint, contact CCBA at (702) 387-6011.
Nevada Supreme Court
To be awarded custody of a minor child, a nonparent must either “bring or intervene in a custody suit” and present evidence to overcome the parental preference. A court must have jurisdiction over a party before it can enter judgment affecting that party. If a court awards custody to a nonparent that neither brought nor intervened in the custody action, the parties’ due-process rights may be violated. Here, because the grandparents neither brought nor intervened in the custody suit, the district court failed to notify the parents that it was considering the grandparents for custody, and the district court did not make the requisite findings to overcome the parental preference, the district court abused its discretion. Micone v. Micone, 132 Nev. Adv. Op. No. 14, ___ P.3d ___ (March 3, 2016).
(1) In Hallmark v. Eldridge, 124 Nev. 492, 189 P.3d 646 (2008), the Supreme Court of Nevada held that a biomechanical expert’s testimony must have sufficient foundation to be admissible under NRS 50.275; (2) because the court did not hold that a biomechanical expert’s testimony must underlie all evidence of the alleged injury-causing accident, the district court’s order granting a motion in limine was erroneous as a matter of law; and (3) following eight alleged violations of the district court’s pretrial order prohibiting a low-impact defense and violations of two additional pretrial orders, the district court struck an answer, but the case-ending sanction order failed to satisfy the requirements of BMW v. Roth, 127 Nev. 122, 252 P.3d 649 (2011). Nothing in Hallmark mandates that supporting testimony from a certified biomechanical engineer or other expert must be offered before a defendant will be allowed to present a low-impact defense. Rather, Hallmark stands for the well-established proposition that expert testimony, biomechanical or otherwise, must have a sufficient foundation to be admitted. Causation issues, including the circumstances and severity of an accident and whether it proximately caused alleged injuries, are factual issues that are proper for juries to weigh and determine. Separately, the court held that a medical doctor may offer an opinion regarding causation so long as there is sufficient foundation for the conclusion. Rish v. Simao, 132 Nev. Adv. Op. No. 17, ___ P.3d ___ (March 17, 2016).
(1) An applicant for intervention as a matter of right under NRCP 24(a) must show that its interest is not adequately represented by existing parties, and when an applicant for intervention and an existing party have the same ultimate objective, a presumption of adequacy of representation arises; and (2) a district court’s ruling on permissive intervention under NRCP 24(b) is wholly discretionary, and even though there is a common question of law or fact, or the requirements of NRCP 24(b) are otherwise satisfied, the court may refuse to allow intervention. Regarding intervention as a matter of right, the use of different legal arguments and litigation strategies is not per se inadequate representation. Regarding permissive intervention, the ability to submit briefs on determinative issues as amicus curiae can be an adequate alternative. Hairr v. First Jud. Dist. Ct., 132 Nev. Adv. Op. No. 16, ___ P.3d ___ (March 10, 2016).
NRS 433A.310(5) requires a district court to transmit an involuntary-admission order to the central repository at the time the order is entered; the district court is not required to wait 30 days for the order to become final under NRS 433A.310(1)(13). Thus, although the petitioner here was unconditionally released 12 days after the district court’s involuntary-admission order, NRS 433A.310(5) required the district court to transmit the order to the central repository. Vu v. Second Jud. Dist. Ct., 132 Nev. Adv. Op. No. 21, ___ P.3d ___ (March 31, 2016).
(1) In every instance, the power to adopt regulations to carry out a particular function is limited by the terms of the grant of authority pursuant to which the function was assigned; and (2) here, mandamus relief was not proper to compel the Division of Parole and Probation to accept an application for a change in probation discharge status under a set of regulations adopted pursuant to a statute that sunsetted in 2008. In 2005, the Nevada Legislature enacted Section 16 of Senate Bill 445 as a three-year experiment to determine whether allowing “individuals who were dishonorably discharged [from probation] because of nonpayment of restitution, or nonpayment of their supervisory fees,” to apply for a change in their discharge status to “honorable,” as long as they made a good effort to pay restitution, would help make victims whole again, and pay down the large amount of outstanding restitution. Here, “the district court erred in granting . . . mandamus relief because the law does not require the Division to accept applications. Section 16 and NAC 213.720 et seq. are no longer valid law because Section 16, the statutory authority upon which the regulations were premised, sunsetted in 2008.” State, Dep’t of Pub. Safety v. Coley, 132 Nev. Adv. Op. No. 13, ___ P.3d ___ (March 3, 2016).
Right to counsel
The sixth-amendment right to counsel attaches at an initial appearance before a magistrate, even if “formal” charges are not yet filed. Under the Sixth Amendment, the right to counsel attaches when a prosecution is commenced. “Commencement” is tied to “the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” One example of the initiation of judicial proceedings is an initial appearance before a magistrate. An “initial appearance” is a hearing at which a magistrate informs the defendant of the charge and various rights in further proceedings and determines the conditions for pretrial release. Separately, the court found that the district court committed clear error in rejecting the defendant’s objection under Batson v. Kentucky, 476 U.S. 79 (1986), to the state’s use of a peremptory challenge to remove an African American from the venire. McCarty v. State, 132 Nev. Adv. Op. No. 20, ___ P.3d ___ (March 31, 2016).
Termination of parental rights
Neither the U.S. Constitution nor the Constitution of the State of Nevada guarantees the right to jury trial in a termination-of-parental-rights proceeding. Most states specifically prohibit a jury trial in this context by precedent, statute, local court rule, or common practice. Moreover, several jurisdictions rely on the fact that no jury-trial right existed for such proceedings at common law. In re Parental Rights as to M.F., 132 Nev. Adv. Op. No. 19, ___ P.3d ___ (March 31, 2016).
(1) If an employee seeks unemployment benefits because of incarceration caused by criminal charges that were subsequently dropped or because of an inability to afford bail or pay a fine, and the employee dutifully notifies the employer, there is no disqualifying “misconduct”; (2) however, an employee who is terminated for missing work due to incarceration after being convicted of a crime is not eligible for unemployment benefits. The court interpreted the plain language of NRS 612.385 and narrowly construed State, Employment Security Department v. Evans, 111 Nev. 1118, 901 P.2d 156 (1995). The court noted that “[i]n effect, the employee who commits a crime has chosen to become unavailable for work.” State, Emp’t. Sec. Div. v. Murphy, 132 Nev. Adv. Op. No. 18, ___ P.3d ___ (March 31, 2016).
Nevada Court of Appeals
(1) Pursuant to NRS 108.222(2), a contractor must be duly licensed to have an enforceable mechanic’s lien for work performed; (2) NRS 624.320 precludes an unlicensed contractor from bringing or maintaining an action for the collection of compensation on a contract for which a license is required; and (3) here, genuine issues of material fact remain regarding whether specific residential work required a license and the contract was completed in a workmanlike manner. Separately, the court explained that claim preclusion and issue preclusion can apply in the administrative context when an administrative agency acts in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an opportunity to litigate. Tom v. Innovative Home Systems, 132 Nev. Adv. Op. No. 15, ___ P.3d ___ (March 10, 2016).
(1) Pursuant to NRS 612.385, a terminated employee is ineligible to receive unemployment-compensation benefits if the employer terminated the employee for “misconduct” connected with the employee’s work; and (2) in this particular case, an employee’s failure to maintain a certification required by the employer constituted “misconduct.” Academic failure after a good-faith effort would not be willful misconduct, but where the employee accepted a position knowing doctoral studies were required, refusing to pursue those studies without good reason would constitute an “intentional and substantial disregard” inimical to the employer’s interest and would be willful misconduct. Goodwin v. Jones, 132 Nev. Adv. Op. No. 12, ___ P.3d ___ (March 3, 2016).
Details for each opinion can now be found on the “Advance Opinions” page published by the Supreme Court of Nevada at http://supreme.nvcourts.gov/Supreme/Decisions/Advance_Opinions/.
Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).