Nevada Appellate Court Summaries (7-1-19)

The content of this post was written by Joe Tommasino for COMMUNIQUÉ, the official publication of the Clark County Bar Association (CCBA).*

Supreme Court of Nevada

Criminal procedure: (1) Nevada follows Maryland v. Craig, 497 U.S. 836, 850 (1990), to determine whether a witness’s testimony at trial via two-way audiovisual transmission violates a defendant’s right to confrontation; and (2) under Craig, two-way video testimony may be admitted at trial in lieu of physical, in-court testimony only if (a) it “is necessary to further an important public policy,” and (b) “the reliability of the testimony is otherwise assured.” The district court did not abuse its discretion in allowing the victim, who was admitted to an out-of-state residential treatment center, to testify by two-way audiovisual transmission at trial. First, the use of the audiovisual procedure was necessary to protect the victim’s well-being while also ensuring that the defendant was provided a speedy trial. Second, the audiovisual-transmission procedure, as set forth in Supreme Court Rules Part IX-A(B), adequately ensured the reliability of the testimony, as it allowed the defendant to cross-examine the victim and the jury could hear and observe the victim. The Court also found that the district court erred in convicting defendant of both sexual assault and attempted sexual assault because they were based on the same underlying conduct; the State should have charged those counts in the alternative. Finally, the Court explained that “[a] single touching of the defendant’s penis to the victim’s closed lips is insufficient to demonstrate oral stimulation of the penis and does not meet the definition of fellatio.” Instead, “it is an attempted and failed sexual assault.” Lipsitz (Ryan) v. State, 135 Nev. Adv. Op. No. 17, ___ P.3d ___ (June 6, 2019). Death penalty: (1) A defendant is death-eligible in Nevada once the State proves beyond a reasonable doubt the elements of first-degree murder and at least one statutory aggravating circumstance; and (2) the weighing of aggravating and mitigating circumstances is not part of death-eligibility in Nevada. Appellant William Castillo, who was sentenced to death in 1996, filed a procedurally barred postconviction petition for a writ of habeas corpus asserting that he was entitled to a new penalty hearing. He claimed he demonstrated good cause and prejudice to excuse the procedural bars based on Hurst v. Florida, 577 U.S. ___, 136 S. Ct. 616 (2016). He specifically argued that Hurst did two things: (1) it established that the weighing component of Nevada’s death penalty procedures is a “fact” that must be proven beyond a reasonable doubt, and (2) it clarified that all eligibility determinations, regardless of whether they are factual, are subject to the beyond-a-reasonable-doubt standard. The Supreme Court of Nevada rejected both arguments. The Court emphasized that, in Nevada, the facts that expose a defendant to a death sentence, and therefore render him death-eligible are the elements of first-degree murder and any statutory aggravating circumstance. Although the relevant statutes provide that a jury cannot impose a death sentence if it concludes that mitigating circumstances outweigh the aggravating circumstances, that provision guides jurors in exercising their discretion to impose a sentence to which the defendant is already exposed and checks the unfettered exercise of that discretion. Thus, Castillo failed to demonstrate good cause and prejudice to excuse the various procedural bars precluding him from challenging his sentence. Castillo (William) v. State (Death Penalty–PC) , 135 Nev. Adv. Op. No. 16, ___ P.3d ___ (May 30, 2019). Garbage Liens: (1) The Nevada Legislature enacted NRS 444.520, the garbage-lien statute, to give waste-collection companies a method for collecting delinquent payments; (2) the reference to the mechanics’ lien statute in NRS 444.520(3) incorporates only the mechanics’ lien statute’s procedural requirements for foreclosure; and (3) no limitations period applies to the foreclosure of a garbage lien. The only provision of the mechanics’ lien statutes incorporated into NRS 444.520 is NRS 108.239. Therefore, the district court erred in incorporating into NRS 444.520 the perfection requirements under the mechanics’ lien statute as outlined in NRS 108.226, which is separate from NRS 108.239’s foreclosure procedures. Separately, the Supreme Court of Nevada explained that “[t]he plain language of NRS 444.520(3) indicates that the lien is perpetual, and therefore the remedy of foreclosure must also be perpetual.” Since a garbage lien is perpetual, it is not subject to a statute of limitations. Therefore, a municipal waste management company may foreclose upon such a lien at any time so long as it properly perfects the lien under NRS 444.520(4). Waste Mgmt. of Nevada, Inc. v. West Taylor St., LLC, 135 Nev. Adv. Op. No. 21, ___ P.3d ___ (June 27, 2019). Litigation malpractice tolling rule: Specific rules govern the interplay between Nevada’s litigation malpractice tolling rule and 28 U.S.C. § 1367(d) (2012) (a federal tolling statute) on a legal malpractice claim. The Supreme Court of Nevada first addressed the application of § 1367(d), which tolls the statute of limitations for a state-law claim joined with a federal claim under supplemental jurisdiction while the state-law claim is pending in federal court, and for at least 30 days after the state-law claim’s dismissal from federal court. The Court clarified that § 1367(d) distinguishes between an “action” and a “claim,” and thus, the state-law claim’s dismissal is sufficient to end the federal tolling period. The Court emphasized that “[a] federal court’s dismissal of a state-law claim, rather than dismissal of an entire action, . . . triggers the running of the relevant statute of limitations.” Pursuant to § 1367(d), the statute of limitations for a state-law claim filed in federal court stops running only while the claim is pending in federal court and for 30 days after the state-law claim’s dismissal. The Court then recognized that Nevada has adopted a special tolling rule for when malpractice is alleged to have occurred during an attorney’s representation of a client in active litigation; this rule is known as the “litigation malpractice tolling rule.” The rule does not apply to non-adversarial or transactional representation, and it does not apply before the attorney files a complaint. Instead, the rule applies to the two-year discovery rule, serving to toll a malpractice claim’s statute of limitations until the underlying litigation is resolved and damages are certain. The Court noted that “[u]nlike the federal statute, which distinguishes between claims and actions, the Nevada litigation malpractice tolling rule does not.” Kim v. Dickinson Wright, PLLC, 135 Nev. Adv. Op. No. 20, ___ P.3d ___ (June 13, 2019). Sentencing: (1) A presumption of vindictiveness arises where a judge imposes a more severe sentence after a new trial; however, (2) the presumption of vindictiveness does not apply when a different judge imposed the more severe sentence. Before addressing vindictiveness, the Supreme Court had to determine whether the sentence received on retrial by the defendant (Terrence Bowser) was harsher than the defendant’s original sentence, so as to trigger due-process concerns. Bowser’s aggregate total sentence on retrial decreased from the original aggregate sentence, but the individual sentences on the discharging-a-firearm counts increased in length and were also changed to run consecutive rather than concurrent. Thus, whether his sentence was increased depends on whether the Court focused on the aggregate sentence or the individual sentence on each count. Under the aggregate approach, if the new aggregate total sentence is not greater than the original aggregate total sentence, then no presumption of vindictiveness applies. Though the Court appreciated the logic of that approach, the Court chose to adopt the count-by-count method, which means looking at each individual count to determine whether the new sentence on that count is greater in length than the original sentence or has been run consecutive whereas the original sentence was concurrent. Using the count-by-count approach here, the Court found that Bowser’s sentence on each of the discharging-a-firearm counts (counts 4 and 6) increased and the new sentence on count 4 was run consecutive whereas originally it was concurrent; thus, his new sentence was more severe than his original sentence for due-process purposes. The Court then addressed the issue of whether the presumption of vindictiveness applies where there were two different sentencing judges. The Court concluded that “the presumption does not apply where a different judge imposes a higher sentence after retrial than the first judge.” Under these circumstances, the likelihood of vindictiveness is de minimis, as there is no reason to presume that the second judge had a personal stake in the outcome of the first trial or sentencing, or a motivation to retaliate for a successful appeal. Judges generally have broad discretion in sentencing, and different sentences imposed by different judges merely reflect this discretion. Thus, because a different judge presided over Bowser’s second trial and sentencing, due process did not require a presumption of vindictiveness. At Footnote 2, the Court emphasized that an increase in sentence following a new trial does not violate double-jeopardy principles because “the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean.” Bowser (Terrence) v. State, 135 Nev. Adv. Op. No. 15, ___ P.3d ___ (May 16, 2019). Workplace safety: (1) When an employer challenges a citation issued for a workplace-safety violation, Nevada’s Occupational Safety and Health Administration bears the burden of establishing all the essential elements of the charged violation, including that the employer had actual or constructive knowledge of the violative conduct; and (2) a supervisor’s knowledge that his or her own work practices violated safety laws (or the supervisor’s knowledge that employees under his or her supervision were not complying with such laws) will not be imputed to the employer unless the supervisor’s violative conduct was foreseeable. To hold an employer absolutely liable in all circumstances without regard for that employer’s efforts to comply with OSHA’s regulations would amount to strict liability and discourage OSHA compliance efforts. Here, because respondent did not demonstrate the employer’s actual knowledge of the violative conduct or that the supervisor’s violative conduct was foreseeable, the Review Board properly overturned the citation for lack of employer knowledge. The Original Roofing Co., LLC v. Chief Admin. Officer of the Occupational Safety and Health Admin. , 135 Nev. Adv. Op. No. 18, ___ P.3d ___ (June 6, 2019).

Nevada Court of Appeals

Leases: A majority of states requires landlords to strictly comply with any contractual notice provisions when declaring a lease in default; however, any failure to do so is excused when the allegedly defaulting party receives actual notice of the default despite noncompliance. The Court of Appeals also concluded that, under the particular circumstances presented, a subtenant was not a necessary party under NRCP 19 to an action for breach of contract between the landlord and the prime tenant. The ultimate goal of NRCP 19 is to promote efficiency and conserve judicial resources by reducing duplicative and piecemeal litigation and avoiding potentially inconsistent outcomes. That goal is poorly served if a party is allowed to make a tactical decision to refrain from timely bringing a known defect in the trial to the court’s attention that it then uses on appeal to try to force the court to conduct the same trial twice. Quite to the contrary, allowing a party to procure reversal based upon the absence of an entity that only it had any reason to join would set the dangerous precedent of permitting litigants to reduce trials to mere practice runs by manufacturing a “win-win” situation under which it either prevails at trial or has an easy Plan B for appeal if it loses. That can hardly have been the intention of the framers of NRCP 19. Rose, LLC. v. Treasure Island, LLC, 135 Nev. Adv. Op. No. 19, ___ P.3d ___ (June 6, 2019).


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). *© 2019 Clark County Bar Association and Joe Tommasino. The content on this page was originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (August 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.