Nevada Appellate Court Summaries (11-30-18)

Nevada Appellate Court Summaries was written by attorney Joe Tommasino. This long format piece is designed to highlight summaries of recent opinions from Nevada’s Court of Appeals and Supreme Court from the Nevada. The content of this post was originally submitted for publication in the January 2019 issue of Communique, the official publication of the Clark County Bar Association (CCBA). Due to space constraints, this long format feature will be published exclusively on the CCBA’s website. All rights reserved. To request permissions to reprint, contact CCBA at (702) 387-6011.

Nevada Appellate Court Summaries (11-30-18)

Supreme Court of Nevada: 

Anti-SLAPP statute:  (1) Under NRS 41.660(1), Nevada’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, a defendant may file a special motion to dismiss a plaintiff’s complaint if the complaint is based upon the defendant’s “good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern”; (2) NRS 41.637 provides four alternative definitions for what can constitute a “good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern,” one of which includes a “statement made in direct connection with an issue under consideration by a. . . judicial body”; and (3) for a statement to fall within this definition, the statement must both relate to the substantive issues in the litigation and be directed to persons having some interest in the litigation. This case involved an attorney’s statement on a website summarizing a jury’s verdict in a misleading manner. Even if the statement had mentioned the pending appeal, it still did not relate to any substantive issues in the appeal or the district-court proceedings.  Moreover, the statement was not directed to any specific person or group, let alone to someone with an interest in the litigation.  Accordingly, the attorney’s statement was not “indirect connection with an issue under consideration by a . . . judicial body” for purposes of anti-SLAPP protection under NRS 41.637(3) and NRS 41.660(3)(a).  Patin v. Lee, 134 Nev. Adv. Op. No. 87, ___ P.3d ___ (November 15, 2018).

Civil procedure: A plaintiff’s attorney or an employee of the attorney may serve a summons and complaint. NRCP 4(c) states that “[p]rocess shall be served. . . by any person who is not a party and who is over 18 years of age.”  Because the over-arching purpose of a 2004 amendment was to conform NRCP 4(c) with FRCP 4(c)(2), and federal courts interpreting the federal counterpart at the time excluded counsel from the word “party,” the majority opinion concluded that NRCP 4(c)’s plain language allows service by a party’s attorney.  McGowen v. Dist. Ct. (Crystal), 134 Nev. Adv. Op. No. 89, ___ P.3d ___ (November 21, 2018).

Collective bargaining: In this case involving two labor unions that each claimed the right to represent Clark County School District employees as the exclusive bargaining representative, the Nevada Supreme Court held that “[t]he vote-counting standard mandated by NRS 288.160 and Nevada Administrative Code (NAC) 288.110 is a majority of the members of the bargaining unit and not simply a majority of the votes cast.” NRS 288.160 provides different means by which an employee organization may obtain recognition as the exclusive bargaining agent of government employees in a bargaining unit.  For recognition by election, NRS 288.160(4) states that the Board “may conduct an election” to discern “whether any employee organization is supported by a majority of the local government employees in a particular bargaining unit.”  The Board’s own governing administrative code is similar.  NAC 288.110(10)(d) plainly states that “[a]n employee organization will be considered the exclusive bargaining agent for employees within a bargaining unit, pursuant to an election, if. . . [t]he election demonstrates that the employee organization is supported by a majority of the employees within the particular bargaining unit.”  The regulation unambiguously provides that an employee organization will be the exclusive bargaining agent if it obtains the support of a majority of the bargaining unit at an election. Therefore, as the Board’s interpretation to allow for a majority-of-the-votes-cast standard contradicted its own regulation, the Board’s interpretation was erroneous.  State, Local Gov’t Employee-Mgmt. Relations Bd. v. Educ. Support Employees Ass’n, 134 Nev. Adv. Op. No.  86, ___ P.3d ___ (November 8, 2018).

Criminal law:  The plain language of NRS 195.020, Nevada’s aiding-and-abetting statute, provides for broad applicability across the criminal code, including imposing criminal liability upon nonprisoners who assist prisoners in possessing cellphones in jail under NRS 212.165(4).  NRS 212.165(4) provides that “[a] prisoner confined in a jail. . . shall not, without lawful authorization, possess or have in his or her custody or control a portable telecommunications device.”  Subsection 4 does not mention aiding and abetting liability, nor does it expressly limit such liability in any way.  The first three subsections of NRS 212.165 exclusively apply within an “institution or a facility of the Department of Corrections”—that is, a prison.  Subsection 1 prohibits a person from furnishing, attempting to furnish, or aiding or assisting in furnishing or attempting to furnish, an unauthorized device to a prisoner confined in a prison. Subsection 2 prohibits a person from carrying an unauthorized device into a prison. Subsection 3, which criminalizes a prisoner’s possession of a device in a prison, is the prison counterpart and mirror image of, subsection 4, which criminalizes the same behavior in jail.  Subsection 1 does not limit aider-and-abettor liability for the entirety of the statute.  It simply captures and criminalizes different conduct. The prohibited acts of subsection 1—knowingly furnishing, assisting in furnishing, or attempting to furnish a portable communications device to a prisoner—are different than the prohibited acts outlined in subsections 3 and 4—a prisoner confined in a prison or a jail possessing a portable telecommunications device.  An example illuminates the difference.  If a prisoner confined in a prison distracts a guard to aid another prisoner’s possession of a cellphone, the prisoner providing the distraction is not furnishing or attempting to furnish the cellphone to the other prisoner and therefore has not committed an act prohibited by subsection 1.  Although the prisoner providing the distraction does not have possession of the cellphone, he or she nevertheless could be punished for aiding the other prisoner’s possession of the cellphone under subsection 3 based on Nevada’s aiding-and-abetting statute.   Here, even though the appellant is not a prisoner confined in a jail, she can be criminally liable as a principal for a prisoner’s possession of a cellphone by virtue of NRS 195.020.  State v. Plunkett (Alexis), 134 Nev. Adv. Op. No. 88, ___ P.3d ___ (November 15, 2018).

Nevada Court of Appeals

Jury instructions:  Although Nevada district courts routinely instruct juries that they may consider the defendant’s flight from the scene of a crime in deciding guilt, the district court did not abuse its discretion in declining to give a so-called “inverse-flight” jury instruction. Here, the defendant argued that the district court should have instructed the jury that it could consider his lack of flight from the crime scene in considering whether or not he is guilty.  However, although flight is relevant to guilt, it does not necessarily follow that lack of flight is relevant to innocence. The Supreme Court of Nevada held that, except when flight is an element of the offense charged or when an absence of flight otherwise tends to seriously undermine the state’s case against the defendant, “[t]he failure to flee, like voluntary surrender, is not a theory of defense from which, as a matter of law, an inference of innocence may be drawn by the jury.” Moreover, “the fact that a suspect did not try to avoid the police is open to multiple interpretations, many of which have little to do with consciousness of guilt, and which could actually reflect a strategic choice.”  Even without his proposed instruction, the defendant remained free to argue to the jury during closing argument that lack of flight proved his innocence.  Starr (Brandon) v. State, 134 Nev. Adv. Op. No. 90, ___ P.3d ___ (November 21, 2018).

Labor credits:  An offender who is willing and able to work, but who has not been assigned a job by the Nevada Department of Corrections (NDOC), is not entitled to labor credits pursuant to NRS 209.4465(2). NRS 209.4465(2) grants NDOC’s Director the discretion to “allow not more than 10 days of credit each month for an offender whose diligence in labor and study merits such credits.”  The legislative intent is clear: where an inmate has not engaged in any labor, he has not been diligent in labor, and accordingly, the Director has no discretion under NRS 209.4465(2) to award labor credits to the inmate.  Separately, the Court of Appeals held that “the disparate application of statutory credits to parole eligibility based on when an offender committed an offense is rationally related to a legitimate governmental interest and thus does not offend the Equal Protection Clauses of the United States and Nevada Constitutions.”  Vickers (Tracey) v. Director, 134 Nev. Adv. Op. No. 91, ___ P.3d ___ (November 21, 2018).

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About the author: 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).