NV Supreme Court Summaries (10-25-12)

The NSC 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.

Constitutional Law: NRS 293.805's prohibition against providing compensation to voter registration canvassers based upon the total number of voters a canvasser registers does not violate the First Amendment to the United States Constitution. The restrictions in NRS 293.805 place a minimal burden on First Amendment rights. The statute only prohibits payment of those who register voters based upon the number of voters one registers and the number of voters one registers for a particular political party. Nevada's interest in protecting the integrity of its election process and preventing voter-registration fraud, when viewed in relation to this minimal burden, is sufficiently weighty to justify NRS 293.805's restrictions. Further, NRS 293.805 is not unconstitutionally vague. Busefink v. State, 128 Nev. Adv. Op. No. 49, ___ P.3d ___ (October 4, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1666-busefink-v-state

Coroner’s Inquests: (1) The Clark County, Nevada, Code of Ordinances provisions establishing and setting forth inquest procedures for officer-involved deaths do not implicate due-process rights; (2) to the extent that the code provisions pertaining to inquest proceedings regarding officer-involved deaths require that the presiding officer be a justice of the peace, these provisions unconstitutionally intrude upon the Legislature's exclusive constitutional authority to determine the jurisdiction of justices of the peace. With respect to the first issue, the Court found that the inquest process constitutes an investigatory, rather than an adjudicatory, proceeding. As a result, due-process protections are not triggered. With respect to the second issue, “the Nevada Constitution expressly provides that only the Legislature has the authority to determine, by law, the jurisdictional limits of the justices of the peace,” and the Clark County Board of County Commissioners unconstitutionally impinged on the Legislature's constitutionally delegated authority. Because, in the case of officer-involved deaths, the code makes no provision for anyone except a justice of the peace to serve as presiding officer, the offending provision cannot be severed. Therefore, the Court declared that the entire inquest scheme regarding officer-involved deaths had to be struck down. Hernandez v. Bennett-Haron, 128 Nev. Adv. Op. No. 54, ___ P.3d ___ (October 25, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1692-hernandez-v-bennett-haron-

Criminal Law: A juvenile detained for delinquency in a state facility is NOT a “prisoner” for purposes of NRS 200.481(2)(f), Nevada's felony battery-by-a-prisoner statute. NRS 200.481(2)(f) prohibits battery “by a prisoner who is in lawful custody or confinement.” For NRS 200.481(2)(f) to apply, the alleged batterer must have been “in custody for criminal conduct,” and his confinement must have occurred “in [the] criminal context.” As with civil protective custody, the Legislature has specified that juvenile-justice proceedings are “not criminal in nature.” State v. Javier C., 128 Nev. Adv. Op. No. 50, ___ P.3d ___ (October 4, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1667-state-v-javier-c-


Criminal Law: NRS 212.093(1) does not prohibit county jail inmates from possessing cell phones. RS 212.093(1) prohibits prisoners, including county jail inmates, from possessing “any key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, hook or any other tool or item adapted, designed or commonly used for the purpose of escaping” from custody. Each item specified in NRS 212.093(1) is ordinarily understood, as it concerns jail settings, to either forcibly manipulate the confines of a jail cell or to physically exit from a jail cell. In stark contrast to the items enumerated in NRS 212.093(1), it would be virtually impossible to use a cell phone to forcibly break out of, or physically flee from, a jail cell. Sheriff v. Andrews, 128 Nev. Adv. Op. No. 51, ___ P.3d ___ (October 4, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1668-sheriff-v-andrews-

Lifetime Supervision: When resolving a petition for release from a special sentence of lifetime supervision under NRS 176.0931(3), the district court has discretion to determine whether a petitioner has met the statutory requirements but lacks discretion to deny a petition for release from lifetime supervision if that court finds the statutory requirements were met. When a person is convicted of a sexual offense, the district court is required to include a special sentence of lifetime supervision as part of the defendant's sentence. This special sentence begins after any period of probation, term of imprisonment, or period of release on parole. The person sentenced to lifetime supervision can petition the district court for release from lifetime supervision, however, if the person satisfies three requirements. First, the petitioner must have complied with Nevada's statutory requirements governing registration of sex offenders. Second, the petitioner must not have “been convicted of an offense that poses a threat to the safety or well-being of others for an interval of at least 10 consecutive years after the person's last conviction or release from incarceration, whichever occurs later.” Third, the petitioner must not be “likely to pose a threat to the safety of others, as determined by a person professionally qualified to conduct psychosexual evaluations, if released from lifetime supervision.” If the petitioner meets the requirements set forth in NRS 176.0931(3), the district court “shall grant [the] petition” for release from lifetime supervision. The use of the word “shall” in the statute divests the district court of judicial discretion. Because the Legislature can define punishments, it is within the Legislature's power to limit punishments also. Therefore, when the Legislature imposes mandatory language limiting the extent of a punishment, the district court must comply with that mandate. The Nevada Supreme Court noted that “[i]n reaching its decision with regard to a petition for release from lifetime supervision, . . . the district court must make factual findings in the record to support its ultimate conclusions with regard to each of the statutory requirements.” Goudge v. State, 128 Nev. Adv. Op. No. 52, ___ P.3d ___ (October 25, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1690-goudge-v-state-

Mechanics’ Liens: (1) Equitable subrogation does not apply against mechanics' lien claimants; (2) subordination agreements purporting to subordinate mechanics' liens prospectively are not enforceable, but mechanic's lien claimants may waive their statutorily protected rights when the precise requirements of NRS 108.2457 are met. Regarding the first issue, the Court indicated that “[t]he Legislature has spoken and has created a specific statutory scheme whereby a mechanic's lien is afforded priority over a subsequent lien, mortgage, or encumbrance in order to safeguard payment for work and materials provided for construction or improvements on land.” Therefore, the plain and unambiguous language of NRS 108.225 precludes application of the doctrine of equitable subrogation, as it unequivocally places mechanic's lien claimants in an unassailable priority position. Regarding the second issue, the Court found that “[t]he legislative history behind the enactments of NRS 108.2453 and NRS 108.2457 illuminates the Legislature's intent that prospective waivers of mechanics' liens are unenforceable.” Thus, to the extent that subordination provisions are prospective, NRS 108.2453 and NRS 108.2457 prohibit the enforcement of those subordination provisions. However, non-prospective subordination agreements may be enforceable, as neither NRS 108.2453 nor NRS 108.2457 completely prohibit waiver of or impairment to the right to a mechanic's lien after it arises. Therefore, non-prospective subordination agreements may be enforced as long as they meet the requirements of NRS 108.2457. In Re: Fontainebleau Las Vegas Holdings, 128 Nev. Adv. Op. No. 53, ___ P.3d ___ (October 25, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1691-in-re-fontainebleau-las-vegas-holdings