November 2019

Click cover image to download full 32-page issue (3.9 MB PDF file).

View the“Constitutional Law” issue of Communiqué* (November 2019), the official publication of the Clark County Bar Association. See features written by members of Nevada’s legal community listed as follows:

Additional content may be found in the 32 pages of the full color issue of the publication (print and PDF versions), including these special features:

  • “Will you be someone’s superhero?” by Clark County Bar President Jason P. Stoffel
  • View from the Bench: “The State of Nevada Summary Evictions Post SB151” By Hearing Master David F. Brown
  • “Remembering Our Colleagues” By Helen P. Towlerton, Esq.
  • Bar Activities
  • Member Moves
  • New Members
  • Court News
  • The Marketplace

Special thanks to the following advertisers for their support of Communiqué* (November 2019):

© 2019 The content on this page was originally published in Communiqué*, the official publication of the Clark County Bar Association. (November 2019). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


Physical and Mental Examinations: Rule 35 versus AB285

Jacquelyn Franco, Esq.
Jacquelyn Franco, Esq.

By Jacquelyn Franco, Esq.

Can AB285 and Rule 35 be read harmoniously? Nevada law requires the court to interpret a rule or statute in harmony with other rules or statutes. See Watson Rounds v. Eighth Jud. Dist. Ct., 131 Nev. 783 (2015). Arguably, they cannot be interpreted harmoniously as they conflict with respect to party attorneys being observers – AB285 allows it while Rule 35 prohibits it.

Article 3, § 1(1) of the Nevada Constitution provides that the three branches of government are intended to have separate powers. The distinction between the Legislative and Judiciary can be summed up as follows: “[t]o declare what the law is or has been is judicial power; to declare what the law shall be is legislative.” Berkson v. LePome, 126 Nev. 492, 499 (2010). “In keeping with this theory, ‘[t]he judiciary … has the inherent power to govern its own procedure.’” Id. (citations omitted).

NRS 2.120(2) explicitly provides that “[t]he Supreme Court, by rules adopted and published from time to time, shall regulate original and appellate civil practice and procedure … for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits.” (Am. 1967). Enacting legislation that conflicts with existing procedural rule would violate the separation of powers. See State v. Connery, 99 Nev. 342, 345 (1983) (holding that NRAP 4(b) supersedes NRS 177.066; thus, timing for filing appeal is governed by NRAP 4(b)). But see, Watson Rounds, 131 Nev. 783 (2015) (concluding that NRCP 11 does not supersede NRS 7.085 regarding sanctions as both may provide the court with independent methods for awarding sanctions).

AB285 as enacted amends Chapter 52 of the NRS to allow an observer, including the examinee’s attorney or designated representative, “to attend an examination but shall not participate in or disrupt the examination” and to record the examination by audio or stenograph.

In February 2017, the Supreme Court established a committee to review and recommend updates to the Nevada Rules of Civil Procedure. After 18 months, the committee filed a petition to amend the NRCP, including three drafts for Rule 35. While each draft provided for recording and observing the Rule 35 examination, the alternative drafts varied as to conditions.

After public comment and hearing, the Supreme Court adopted an edited version of the alternative drafts. See ADKT 522 (Order Amending the Rules of Civil Procedure, Dec. 31, 2018). Rule 35 allows examinations to be recorded and observed, but limits recordings upon a showing of good cause and prohibits observers being present upon a showing of good cause or for neuropsychological, psychological, and psychiatric examinations, unless court order otherwise for good cause shown.

This leads us to the question: are Rule 35 examinations exclusively procedural? The law governing observers and recordings of physical and mental examinations is added to Title 4. The legislature clearly has the power to implement statutory provisions therein governing witnesses and evidence. While NRS 47.020 provides that Title 4 governs proceedings, there is an exclusion for “which its provisions are relaxed by a statute or procedural rule …” While the Supreme Court has found that the order of Rule 35 examinations is procedural, state statutory laws governing IMEs have been found to be substantive. See Sibbach v. Wilson & Co., Inc., 61 St. Ct. 422 (1941); Watson v. State Farm Mut. Auto. Ins., 2010 WL 11542010 (E.D. Mich. 2010); Cristino v. Berkshire Life Ins. Co. of America, 2011 WL 13151979 (D. N.J. 2011). See also, Lanfeldt-Haaland v. Saupe Enterprises, Inc., 768 P.2d 1124, 1146 (Alaska 1989) (summarizing the right to presence of counsel at Rule 35 examination as (1) constitutional right to counsel in civil cases arising from the due process clause; (2) counsel may observe shortcomings and improprieties in an examination which can be brought out during cross-examination; and (3) counsel may on occasion properly object to questions concerning privileged information).

Upon the new statute going into effect on October 1, 2019, the enforceability of AB285 will ultimately be left to the judiciary; who will have to consider whether AB285 and Rule 35 can be interpreted harmoniously or if the presence of counsel is substantive law.

Jacquelyn Franco, Esq. is an associate with Backus, Carranza & Burden. She focuses on insurance defense, product and premises liability, and commercial transportation. Mrs. Franco can be reached at (702) 872-5555 or jacquelynfranco@backuslaw.com.


Can the Federal Government Legally Own Public Land in the West?

Paul Larsen
Paul Larsen, Esq.

By Paul E. Larsen, Esq.

At the heart of legitimate policy debates about who should own and manage public lands in Nevada and other western states — the federal government, states, or local communities — are the legal parameters for public land set forth in the US Constitution. Supporters of transferring lands currently owned and managed by the federal government to state or local control, such as US Senator Mike Lee or Director of the Bureau of Land Management William Pendley, often cite the Constitution to argue that the federal government either does not or should not own any such western land.

A recurrent legal argument against federal ownership of public land is that the “Enclave Clause” of the US Constitution prohibits federal ownership of land except by consent of the states. For example, in a television interview in 2016, advocate against federal ownership of public land, Ammon Bundy, stated “the federal government does not have authority to come down into the states and to control its land and resources. That is for the people to do, and that is clearly stated in Article 1, (Section) 8, (Clause) 17 of the Constitution.” Bryce Gray, “No, federal lands are not in the Constitution,” High Country News (Feb. 4, 2016). Senator Lee of Utah is also well known for advocating this theory.

That quoted constitutional article, known to both learned and armchair legal scholars as the “Enclave Clause,” grants the federal government the power:

“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings…” (emphasis added).

The Enclave Clause is a broad grant of power to the federal government, authorizing it “to exercise Legislation in all Cases whatsoever.” The second half of the clause uses the word “consent” only to define the lands to which these broad powers apply, meaning the clause applies to lands obtained with the consent of the states for use as “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” See Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 530, 539 (1885). On such transferred land, the U.S. has the power of “exclusive legislation,” just as it does in Washington, D.C. While a state might reserve the right to enforce some criminal or civil laws on the transferred property, the clause does not provide an affirmative grant of state power. Id. at 532-34. See also Doug Kendall, “Strange Brew: Mike Lee and the “Enclave Clause”” Constitutional Accountability Center (10th installment, August 2, 2010).

It should be noted that because the Enclave Clause only concerns state transfers of land to the U.S. government for a limited number of purposes, it does not apply to the vast majority of federally owned lands in Nevada. After all, Nevada could not “consent” to federal control over these lands because they were property of the U.S. government before Nevada’s statehood: when Nevada became a state in 1865, the state’s constitution contained an express clause recognizing prior and continuing federal ownership of those public lands. This provision of the Nevada Constitution has been reviewed by numerous courts, such as litigation brought by Nevada ranchers and Nye County, and has been universally deemed valid and binding. See Larsen, “Public Lands argument not rooted in fact,” Las Vegas Review Journal (March 26, 2016).
Given that the clear language of the Enclave Clause is only directed at the power to exercise “exclusive legislation” within an enclave, it is unclear how sagebrush scholars interpret the clause to mean the federal government cannot or should not own or control public land. Perhaps they interpret the phrase regarding consent of state legislatures to imply the federal government may only own or manage public land if a state “consents.” However, the US Supreme Court has consistently interpreted the Enclave Clause not as curtailing federal control of public land, but protecting it. Gray, supra.

The “No Federal Ownership” construction, some argue, misinterprets the explicit “exercise exclusive legislation” language of the Enclave Clause, and also overlooks the Constitution’s Property Clause, which courts have ruled undermines the argument that the federal government cannot own property within a state unless the state consents. The Property Clause, outlined in Article 4, Section 3, Clause 2, states:

“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

When Congress passes legislation respecting federal lands, “the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.” Kleppe v. New Mexico, 426 U.S. 529, 543 (1976); see U.S. Const., Art. VI, cl. 2. See also Kendall, supra. When the federal government has title to lands within a state, the state may not “affect the title of the United States or embarrass it in using the lands or interfere with its right of disposal.” James v. Dravo Contracting Co., 302 U.S. 134, 141 (1937) (emphasis added) (quoting Surplus Trading Co. v. Cook, 281 U.S. 647, 650 (1930)). Federal application of the Property Clause has been consistently supported in a chain of legal precedent that extends back to 1840. “In an unbroken line of cases, the Supreme Court has upheld federal management of public federal lands under the Property Clause,” says Michael Blumm, a law professor at Oregon’s Lewis and Clark College who specializes in public lands. Gray, supra.

One of the strongest advocates of the Enclave Clause is Mike Lee, the US Senator from Utah whose impressive legal credentials lend credibility to the otherwise questionable theory. According to Senator Lee, the clause gives Utah power over all federal lands within the state’s borders. Kendall, supra. Senator Lee’s theory was even incorporated into state law by the Utah legislature. However, the state’s legislative general counsel explained the clear defects in the theory, advising that “the state has no standing as sovereign to … assert any other state law that is contrary to federal law on land or property that the federal government holds under the Property Clause.” Kendall, supra.

There may be legitimate policy reasons for transferring ownership and/or control over federally owned public land to state or local (even private) ownership. Indeed, a great deal of land in Nevada has been transferred from federal to local or private ownership to facilitate construction of public infrastructure (such as transfers under the Recreational and Public Purposes Act) or for land needed to accommodate housing for a growing population (such as transfers under the Southern Nevada Public Land Management Act). However, the arguments that the public land cannot even be owned by the federal government lack merit. Rather, questions of public policy, and whether those policies should result in transfer of public land for private or other uses, are the more compelling considerations in the debate.

Paul Larsen is counsel in the Las Vegas office of Snell & Wilmer L.L.P. Paul is a regulatory and administrative law attorney with specific experience in alcohol compliance (Tied House and FDA regulatory compliance), business and professional licensing, land use, regulatory compliance at the local, state and federal level, and municipal and state government relations. He has also drafted state and local government laws and regulations concerning money laundering, First Amendment issues, land use and gaming law.


The Second Amendment in the Federal Courts

Professor Ian Bartrum
Dane Smith

By Dane Smith & Ian Bartrum

Introduction

For over two centuries, the Supreme Court provided little substantive guidance on the meaning of the Second Amendment. That all changed in 2008 when the Court specifically defined the scope of the right to bear arms in District of Columbia v. Heller. In the last decade, however, the lower courts’ application of Heller has brought the decision’s significance into question. This article explains how the decision in Heller defined the Second Amendment’s meaning, and then examines how lower courts have transformed the Heller principles and under-enforced the right to bear arms.

Heller Decision

The Court defined the scope of the Second Amendment in a case involving the constitutionality of a gun control ordinance, which effectively banned functional handguns in the home. The Court concluded that the Amendment protects an individual’s—not a militia’s—right to possess and carry weapons, though this may not be obvious from reading the plain text: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For an originalist like majority author Justice Antonin Scalia, however, the proper way to read the text is historically: The Second Amendment should mean now what its ratifiers understood it to mean at the time they voted for it. Scalia thus analyzed both the text and its historical context to find its “original import.”

To do this, he divided the Amendment into two parts: the prefatory clause (“A well-regulated Militia…State”) and the operative clause (“the right…infringed”). Using historical documents and dictionaries, Scalia concluded that the operative clause includes an individual right to possess and carry a firearm, and the prefatory clause lists just one of several possible justifications for this right. He then offered evidence that the founders intended also to codify a right of armed self-preservation, which Americans had enjoyed under English rule. This interpretation found a good deal of support in academic legal scholarship.

After Heller, then, the Second Amendment protects an individual right to bear arms, but that right is not absolute. Scalia went on to establish a categorical test for future courts when assessing potential safety regulations. Turning again to the approach he used to define the Amendment’s substance, Scalia rooted permissible regulatory limitations in history and tradition. Only restrictions that have a long historical pedigree in the United States are constitutional. Likewise, guns that have been “in common use” are protected, while unusual and dangerous weapons are not. Importantly, this is a categorical—not a balancing—approach: Either a restriction is longstanding and historically permissible, or it is not. This is clearly intended to minimize the future discretion of lower court judges, who might otherwise craft their own regulatory exceptions.

Scalia also provided an illustrative list of “presumptively lawful” regulations, including restrictions on: (1) felons; (2) the mentally ill; (3) sensitive places such as schools and government buildings; and (4) the commercial sale of arms. These explicit exceptions seem like common sense gun policy, but their relation to the categorical historical standard is unclear. These restrictions do not seem longstanding enough to pass the categorical test, and this disconnect has caused a good deal of confusion and debate. Some argue that these “exceptions” fall outside the scope of the Second Amendment entirely, and thus are presumed valid even if novel or rare. Others contend that lower courts must apply the historical test, with the four exceptions as merely non-binding illustrations. Either way, however, it is difficult to dispute that Scalia’s overall intent was to establish a categorical standard for gun regulations tied directly to their historical legitimacy. Thus, the Court neither discussed nor established any applicable standard of “scrutiny” for lower courts to apply. Such an approach asks judges to balance competing constitutional interests to arrive at case-by-case conclusions, but no such discretion is appropriate using a categorical approach.

Applying his categorical standard, Scalia struck down the ordinance in Heller, which effectively made it illegal to keep operable handguns in the home. He reasoned that the ordinance was uncommon and ahistorical, and thus violated the core of the Second Amendment. Two years later, the Court reaffirmed this approach in McDonald v. City of Chicago, which incorporated Heller against state and local governments.

Under-Enforcement

Together, these two opinions offer a coherent body of Second Amendment jurisprudence: The Second Amendment protects an individual right to possess and carry firearms for the purpose of self-protection. Firearms in common use are protected; unusual and dangerous weapons are not; and only longstanding historical safety regulations are permissible. In the nine years since McDonald, however, lower courts have had time to apply and shape these precedents. The results have been mixed, and have sometimes seemed to abandon the categorical approach that Heller and McDonald established. Indeed, such a departure occurred even in Heller II, the follow-up case to the Supreme Court’s landmark decision.

The Heller plaintiff again sued the District of Columbia to challenge restrictive gun ordinances that banned semi-automatic rifles and required strict registration of firearms. In Heller II, the D.C. Circuit Court’s approach departed from the categorical approach prescribed in Heller. Writing for the majority, Judge Douglas Ginsburg instead applied a two-part test. The first prong asks whether the particular law affects the core of the Second Amendment right. The second prong then applies “intermediate scrutiny” to the challenged regulation. In this way, the court avoided the question of whether semi-automatic rifles are commonly used, or if a prohibition on their possession is historically longstanding—which, of course, are the only categories that Heller deemed consequential. Instead, the court analyzed the regulations using a balancing approach. This new test balances the right to bear arms against the government’s interest in protecting public safety, and calls for the exercise of significant judicial discretion. As then-Judge Bret Kavanaugh argued in dissent, this might be a “better” Second Amendment doctrine, but it is not the one the Court mandated in Heller and McDonald.

The Ninth Circuit recently provided another example of the continuing under-enforcement of Heller. In Jackson v. City and County of San Francisco, Judge Sandra Ikuta used the same two-part analysis from Heller II to uphold a city ordinance strikingly similar to that struck down in Heller. The ordinance required that all handguns in the home be stored in a locked container or under a trigger lock mechanism, unless carried directly on one’s person. Ikuta found this ordinance imposed a relatively novel burden on the right to bear arms. She went on, however, to conclude that this burden was not substantial, because, in theory, people could still have quick access to their firearms. Using intermediate scrutiny, Ikuta found that the city ordinance passed constitutional muster. The Supreme Court denied certiorari in Jackson, but Scalia wrote a compelling dissent. It may be that the current Court, with newly-minted Justice Kavanaugh, will be more willing to take up such cases in the future.

Conclusion

The Heller decision established the modern Second Amendment doctrine, ruling that the individual has a right to bear arms. The decision also provided lower courts with a categorical test to evaluate permissible safety regulations. If a regulation is grounded in longstanding tradition or targets an unusual weapon it is constitutional; if not, it is not. In policing the Second Amendment, however, lower courts have applied a more discretionary balancing test, which sometimes results in an underenforcement of the Heller principles. This issue will be interesting to follow in the coming years, especially with the appointment of Justice Kavanaugh. Given his dissent in Heller II, the junior Justice may well spur his colleagues into action in this field.

Dane Smith is a J.D. candidate (2021) and Ian Bartrum UNLV Professor of Law at the William S. Boyd School of Law, UNLV.


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Communiqué is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

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