Written by Joe Tommasino, Esq.
Supreme Court of Nevada
Arbitration: (1) The United States Supreme Court has held that, when a contract delegates the arbitrability question to the arbitrator, a court has no authority to decide whether the arbitration agreement applies to the dispute, even where the argument for arbitrability is wholly groundless; and (2) because the Federal Arbitration Act (FAA) governs the enforcement of the arbitration agreement at issue here, and the agreement delegates the arbitrability question to an arbitrator, the district court erred in deciding the arbitrability question itself. In this opinion, the Supreme Court of Nevada followed the United States Supreme Court case of Henry Schein, Inc. v. Archer & White Sales, Inc., ___ U.S. ___, 139 S.Ct. 524 (2019).
As the United States Supreme Court explained in Henry Schein,
“When the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract. In those circumstances, a court possesses no power to decide the arbitrability issue. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.“
___ U.S. at ___ , 139 S. Ct. at 529 (emphasis added). Based on the above, the Supreme Court of Nevada held that “[i]f there is a delegation clause, the court has no authority to decide the arbitrability question but must instead grant the motion to compel arbitration.” Airbnb, Inc. v. Rice, 138 Nev. Adv. Op. No. 65, ___ P.3d ___ (September 29, 2022).
Arbitration: (1) Where the Federal Arbitration Act (FAA) governs an arbitration agreement, state courts are compelled to follow that act and any federal law construing it; (2) under Nevada law, district courts typically decide the threshold question of whether a dispute is subject to an arbitration agreement, but the FAA allows the parties to agree that the arbitrator will resolve threshold arbitrability questions; (3) in Henry Schein, Inc. v. Archer & White Sales, Inc., ___ U.S. ___, 139 S.Ct. 524 (2019),the United States Supreme Court unanimously held that where the parties so contract, the court must enforce that agreement and refer the case to the arbitrator to determine threshold issues of arbitrability, even if the court believes the arbitration agreement cannot apply to the dispute at hand; (4) the Supreme Court of Nevada is bound by this precedent in regard to contracts governed by the FAA; and (5) the Supreme Court of Nevada therefore held that where an arbitration agreement delegates the threshold question of arbitrability to the arbitrator, the district court must refer the case to arbitration even if the district court concludes the dispute is not subject to the arbitration agreement. Here, because the arbitration agreement is governed by the FAA and included a delegation clause that clearly and unmistakably delegated the threshold question of arbitrability to the arbitrator, the district court erred by denying the motion to compel arbitration on the basis that the arbitration agreement did not cover the dispute. The Supreme Court of Nevada therefore reversed the district court’s order and directed the court to refer the case to arbitration. Uber Techs., Inc. v. Royz, 138 Nev. Adv. Op. No. 66, ___ P.3d ___ (September 29, 2022).
Pretrial release: (1) A defendant has a constitutional right to a prompt hearing after being taken into custody from pretrial release, and at that hearing, the State bears the burden of demonstrating probable cause; (2) a violation of a condition of pretrial release may lead to statutory sanctions, and Nevada law does not recognize a distinction between “technical” and “substantive” violations; and (3) NRS 178.4851 and Valdez-Jimenez v. Eighth Judicial Dist. Court, 136 Nev. 155 (2020), require the district court to make findings of fact on the record that each condition of pretrial release is the least restrictive means of ensuring public safety and the defendant’s return to court. The Legislature has provided that a penalty for noncompliance with a condition of pretrial release must be preceded by reasonable notice and an opportunity for a hearing. It has not provided specific time limits for conducting this hearing. Consistent with the principles of due process and in accordance with other decisions requiring individualized hearings where an individual is subject to restraint by the State, the Supreme Court of Nevada clarified that one detained for allegedly violating a condition of pretrial release has a due process right to a prompt hearing after arrest. At the hearing, the State must show probable cause that a violation of a condition of pretrial release has occurred, and the defendant may contest the evidence put forward. Should the district court find probable cause that a violation occurred, it may impose a sanction as set forth in NRS 178.4851(7)(a)-(c). A district court abuses its discretion when it does not hold a prompt hearing on an alleged pretrial release violation. Additionally, NRS 178.4851(7)(c) does not distinguish a “technical” violation of a condition of pretrial release from a “substantive” violation. Rather, it unambiguously allows the district court to revoke bail and remand the defendant into custody if the defendant fails to comply with a condition of release. Finally, in the instant case, the district court manifestly abused its discretion by failing to enter findings on the record supporting the conditions of pretrial release that it imposed. Johnston v. Eighth Jud. Dist. Ct., 138 Nev. Adv. Op. No. 67, ___ P.3d ___ (October 6, 2022).
Protective sweeps: (1) A protective sweep does not require a prior arrest; and (2) the search performed in this case was not a lawful protective sweep because it was not based on articulable facts supporting a reasonable belief that the premises harbored a dangerous individual. A protective sweep is generally described as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” Such a sweep is permissible under the Fourth Amendment if the officer had a “reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others.” The search is a cursory inspection of places where a person may be found and “lasts no longer than is necessary to dispel the reasonable suspicion of danger.” The United States Supreme Court has not addressed whether a protective sweep requires a prior arrest. Other courts that have considered this issue have largely determined that a protective sweep does not require a prior arrest.In the instant case, the Supreme Court of Nevada adopted the majority approach, as it appropriately balances the rights of an individual to be free from an unreasonable search and the safety of the officers and other people on the scene.Thus, “a protective sweep is permissible where there are articulable facts that would cause a reasonably prudent officer to believe that the area to be swept harbors an individual who poses a danger to those at the scene.” The Court declined to adopt a per se rule requiring an arrest before a protective sweep. Turning to the instant case, the Court found that the officers did not testify as to a reasonable belief that the area to be swept harbored a dangerous individual, so the search was unlawful. The Court emphasized the officers’ troubling admission that they conduct a protective sweep of an entire residence as a matter of course. The bare possibility that a dangerous person might be present and hiding in a given location does not justify a protective sweep. Thus, “the protective sweep was unconstitutional where the officers’ testimony established that the search was not based on articulable facts supporting a reasonable belief that the area harbored a dangerous individual.” A protective sweep is constitutionally permissible only where officers have a reasonable belief of danger, not when they are merely unsure if an area is safe. This limitation is critical to ensure that officers may not conduct warrantless sweeps as a matter of course, but only where justified by particular, exigent circumstances. State v. McCall, 138 Nev. Adv. Op. No. 64, ___ P.3d ___ (September 22, 2022).
Nevada Court of Appeals
Unauthorized practice of law: Despite the broad authority granted under Nevada’s Uniform Power of Attorney Act (UPOAA), a nonlawyer agent operating under a power of attorney concerning claims and litigation may not litigate an action in pro se in place of the principal or otherwise engage in the practice of law on the principal’s behalf. NRS Chapter 162A governs powers of attorney for financial matters and healthcare decisions. The plain language of the UPOAA allows a principal to grant considerable authority over the litigation of his or her own causes of action to an agent under a power of attorney. However, it is well established that it is unlawful for a person to practice law in Nevada unless that person is an “active member of the State Bar of Nevada or otherwise authorized to practice law in this state pursuant to the rules of the Supreme Court.” And the Supreme Court of Nevada has noted that, “[a]lthough an individual is entitled to represent himself or herself in the district court, no rule or statute permits a non-attorney to represent any other person … in the district courts or in [the appellate] court[s].” The underlying purpose of this prohibition on the unauthorized practice of law is “to ensure that the public is served by those who have demonstrated training and competence and who are subject to regulation and discipline.” Here, the Nevada Court of Appeals concluded that a nonlawyer agent with a power of attorney concerning claims and litigation is not authorized to appear in a pro-se capacity in place of the principal or practice law on the principal’s behalf. The Court of Appeals found no support in the UPOAA for the notion that the Nevada Legislature intended to supplant well-established law prohibiting the unauthorized practice of law. The Court concluded that “the UPOAA is better understood as allowing a principal to grant an agent the authority over claims and litigation the principal would have as a client in an attorney-client relationship.” The powers set forth in NRS 162A.560, which generally encompass bringing an action, submitting to alternative dispute resolution, seeking appellate review, and settling a claim or otherwise concluding an action or satisfying a judgment, are consistent with those decisions that are reserved to a client under the Nevada Rules of Professional Conduct. Thus, the Court of Appeals held that a nonlawyer agent under a power of attorney is not entitled to appear in pro se in place of the principal or engage in the practice of law on the principal’s behalf. Separately, the Court of Appeals found that the district court erred by dismissing the underlying claim with prejudice without conducting the analysis required for imposing case-concluding sanctions under Young v. Johnny Ribeiro Building, Inc., 106 Nev. 88 (1990), and its progeny. The district court was required to support and explain its decision to dismiss the underlying action with prejudice by analyzing the pertinent factors, particularly “the willfulness or culpability of the offending party, the prejudice to the non-offending party caused by the [offending party’s conduct], and the feasibility and fairness of alternative, less severe sanctions.” Requiring such an analysis not only facilitates appellate review, but also impresses upon the district court the severity of the sanction. Eby v. Johnston Law Office, P.C., 138 Nev. Adv. Op. No. 63, ___ P.3d ___ (September 8, 2022).
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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).