NV Supreme Court Summaries (2-1-13)

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.

Ballot Initiatives: Given the 200-word limit for a ballot initiative's description of effect, the description cannot constitutionally be required to explain every detail or effect that an initiative may have.  A description of effect serves a limited purpose to facilitate the initiative process, and it must be a straightforward, succinct, and non-argumentative summary of what the initiative is designed to achieve and how it intends to reach those goals. In reviewing an initiative's description of effect, a district court must not apply statutory interpretation principles; instead, the district court must take a "holistic" approach. Education Init. v. Comm. to Protect Nev. Jobs, 129 Nev. Adv. Op. No. 5, ___ P.3d ___ (January 31, 2013).

http://www.nevadajudiciary.us/index.php/advancedopinions/1803-education-init-v-comm-to-protect-nev-jobs-

Choice of Law: The Nevada Supreme Court's holding in Bower v. Harrah's Laughlin, 125 Nev. 470, 482, 215 P.3d 709, 718 (2009), which broadly required Nevada courts to apply federal law in determining whether a prior federal court determination should be given preclusive effect, applies only to federal-question cases. When the federal court decides a case under its diversity jurisdiction, the United States Supreme Court's decision in Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001), governs the treatment of claim and issue preclusion.  In the instant case, New Jersey preclusion law applies under Semtek, and under New Jersey law, appellant would be precluded from relitigating her claims. Therefore, she is precluded from litigating her claims in Nevada. Garcia v. Prudential Ins. Co. of America, 129 Nev. Adv. Op. No. 3, ___ P.3d ___ (January 31, 2013).

http://www.nevadajudiciary.us/index.php/advancedopinions/1801-garcia-v-prudential-ins-co-of-america-

Constitutional Law: In Nevada Senate Bill No. 358 (S.B. 358, 72d Leg. (Nev. 2003)), the Nevada Legislature adopted amendments to Nevada law that prohibit Clark County from rezoning land in certain areas adjacent to Red Rock Canyon National Conservation Area. In response to certified questions from the Ninth Circuit, the Nevada Supreme Court held the following:

            (1) S.B. 358 violates Article 4, Section 20 of the Nevada Constitution because it is a "local or special law" that "regulat[es] county. . . business";

            (2) S.B. 358 violates Article 4, Section 21 of the Nevada Constitution because it is a local law that       falls within an enumerated category of Section 20;

            (3) S.B. 358 violates Article 4, Section 25 of the Nevada Constitution by establishing a "system of             County ... Government" that is not "uniform throughout the State"; and

            (4) S.B. 358 does not fall within an applicable exception that would make the bill valid.

The Nevada Supreme Court relied on its analytical framework from Clean Water Coalition v. The M Resort, 127 Nev. _, 255 P.3d 247 (2011). A law is local if it operates over a particular locality instead of over the whole territory of Nevada. Any statewide benefit that might arise from preserving the Adjacent Lands does not change the fact that S.B. 358 operates over only one particular portion of Nevada, specifically small portions of Clark County.  Thus, S.B. 358 is a local law. Whether a law regulates or affects county business hinges on two criteria: (1) whether the challenged law governs a single item or project rather than multiple items or projects, and (2) whether the law's effect is temporary rather than permanent. Upon review, the Court found that S.B. 358 regulates county business. Since S.B. 358 is a local law operating over a particular locality that regulates Clark County's business by permanently divesting the County of its zoning power over the Adjacent Lands, S.B. 358 violates Article 4, Section 20. Separately, Article 4, Section 21 states that "[i]n all cases enumerated in [Section 20], all laws shall be general and of uniform operation throughout the State." Nev. Const. art. 4, § 21. However, a local law is not ipso facto unconstitutional. Where a law is either local or special, such a law may be upheld where (1) it does not come within any of the cases enumerated in Nevada Constitution Article 4, Section 20; and (2) a general law could not have been made applicable. S.B. 358 is a local law and falls within one of Section 20's enumerated cases in that it regulates county business. Thus, S.B. 358 is unconstitutional. Also, Article 4, Section 25 of the Nevada Constitution provides that "[t]he Legislature shall establish a system of County and Township Government which shall be uniform throughout the State." Nev. Const. art. 4, § 25. Having been divested of zoning powers over the Adjacent Lands, Clark County now lacks exclusive control over zoning. This divestment of zoning authority violates Section 25. Finally, the Court found that no exceptions applied that would render S.B. 358 valid despite S.B. 358 otherwise violating the Nevada Constitution. Attorney General v. Gypsum Resources, 129 Nev. Adv. Op. No. 4, ___ P.3d ___ (January 31, 2013).

http://www.nevadajudiciary.us/index.php/advancedopinions/1802-attorney-general-v-gypsum-resources-

Criminal Procedure: In this case, the State's failure to file a responsive pleading in justice court, leading to dismissal of a criminal complaint, constitutes conscious indifference to a defendant's procedural rights and/or important procedural rules barring a new prosecution for the same offense.  Most cases undertaking a conscious indifference analysis involve continuances of preliminary hearings. The Court has, however, considered claims of conscious indifference in other contexts. A conscious-indifference analysis is appropriately applied where some action or inaction by the State results in the dismissal of a criminal complaint. To demonstrate conscious indifference, a defendant need not show that the prosecution acted intentionally or with "calculated bad faith."  A finding of willful or conscious indifference is warranted when the State completely fails to comply with a procedural rule, or engages in outlandish or clearly deficient behavior resulting in a delay of the proceedings. Conversely, willful or conscious indifference is not indicated when the State attempts to comply with procedural rules but is thwarted by circumstances outside of its control, or occasions a dismissal after a less-than-perfect performance in the justice court proceedings. Here, the State was personally served with the defendant's motion to dismiss and did not oppose it, despite the fact that the preliminary hearing was postponed expressly for that purpose and it was required to file an opposition within 10 days. Under the specific circumstances of this case, the State acted with conscious indifference to important procedural rules.

Woods v. State, 129 Nev. Adv. No. 1, ___ P.3d ___ (January 17, 2013).

http://www.nevadajudiciary.us/index.php/advancedopinions/1788-woods-v-state-

Eminent Domain: In this case, the federal land patent burdening Cliff Shadows' property creates a public easement that the City of Las Vegas has a right to utilize based on (1) the Court's interpretation of the language of the patent at issue and other jurisdictions' similar interpretations of federal land patents with nearly identical language, and (2) the rule of construction for federal land patents requiring any ambiguities to be construed in favor of the government.  The Court emphasized that a taking does not occur when the government uses its own easement without exceeding the easement's scope. Las Vegas v. Cliff Shadows Prof’l Plaza, 129 Nev. Adv. Op. No. 2, ___ P.3d ___ (January 31, 2013 ).

http://www.nevadajudiciary.us/index.php/advancedopinions/1800-las-vegas-v-cliff-shadows-profl-plaza-

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).