Written by Joe Tommasino, Esq.
Supreme Court of Nevada
Alimony: When setting alimony awards, a court may consider the existence and value of a divorcing veteran’s military disability benefits. While Nevada law instructs courts to consider a broad array of factors to reach just and equitable alimony awards, NRS 125.165 prohibits a court from directly dividing military disability benefits for alimony purposes. However, by its plain language, the statute does not prohibit a court from considering the existence or value of those benefits as part of a holistic review of the divorcing couple’s financial circumstances and capacity to pay alimony. Oshiro v. Oshiro (Family), 141 Nev. Adv. Op. No. 59, ___ P.3d ___ (November 26, 2025).
Authentication: (1) Authentication is the gateway through which evidence must pass; (2) in the instant case, the district court skipped an essential step when it admitted text messages without confirming authorship; (3) the court erred in addressing hearsay before first deciding whether the messages were what the State purported them to be; and (4) even so, that error did not impact the outcome because the evidence of the defendant’s guilt was overwhelming in this case. Authentication concerns whether “the matter in question is what its proponent claims” it to be. Hearsay concerns whether an out-of-court statement may be admitted for its truth. Even if a text message fits within a hearsay exception, the message still must be properly authenticated. Evidence law follows a sequence. Among many admissibility questions, a court must first determine the authenticity of a proposed piece of evidence and then proceed to assess other evidentiary concerns, such as relevance and hearsay. Authentication is “satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.” This principle is foundational to the admissibility of evidence, as evidence cannot be deemed relevant if it is not what it is purported to be. “[E]stablishing the identity of the author of a text message through the use of corroborating evidence is critical to satisfying the authentication requirement for admissibility.” Authentication of text messages requires more than just a showing that a message originated from a particular cell phone. A text message may be authenticated in at least two ways. The first way is through the testimony of a witness with personal knowledge, such as the sender or someone who personally witnessed the message being sent. The second way is by using circumstantial evidence to establish the sender’s identity, such as the content or other contextual details of the messages or details that would only be known by a few people, including the defendant. In addition to corroborating authorship, when a text message’s admissibility is objected to on authentication grounds, the party seeking to introduce the evidence must also “explain the purpose for which they are offering the text message.” The proponent of the evidence “control[s] what will be required to satisfy the authentication requirement by deciding what he offers it to prove.” In the instant case, the prosecution focused only on who received the messages and the purpose of offering the messages. The prosecution failed to properly authenticate the messages by providing evidence of authorship beyond the text message coming from a specific phone number. Moreover, the statements in the text messages were of limited, if any, relevance without additional context, that was not provided by the testifying officer. Talley (Omar) v. State, 141 Nev. Adv. Op. No. 61, ___ P.3d ___ (December 4, 2025).
Citizens’ arrests: NRS 171.126 does not authorize citizens’ arrests for federal felonies committed outside the arrestor’s presence. NRS 171.126(3) authorizes a private person to make a citizen’s arrest when a felony has in fact been committed and the arrestor has reasonable cause to believe the person to be arrested committed the felony. For a felony-based citizen’s arrest, a private person may enter a building to make the arrest so long as they announce themselves, demand admittance, and state the purpose for which admittance is desired. However, “when the crime is committed outside the arrestor’s presence, a citizen’s arrest is only authorized for Nevada felonies, and [Appellant] was not legally entitled to make a citizen’s arrest for a perceived violation of federal obscenity law.” Separately, the Court held that district courts are not required to give lesser-included-offense instructions sua sponte, and failure to request such an instruction results in the party’s forfeiture of the issue on appeal. The Court overruled Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966), to the extent it required district courts to sua sponte give a lesser-included-offense jury instruction when evidence may demonstrate that the defendant is not guilty of the greater offense but the same evidence would support a finding of guilt of the lesser offense. Ser (Georgio) v. State, 141 Nev. Adv. Op. No. 57, ___ P.3d ___ (November 20, 2025).
Construction defects: Where a joint complaint asserts identical claims arising out of the same allegedly defective construction, separate affidavits and expert reports are unnecessary to comply with the plain language of NRS 11.258 and effectuate its purpose of ensuring that claims involving nonresidential construction have merit before filing a lawsuit. An attorney need not verify the merit of each complainant’s claims in separate affidavits based on the complainants’ distinct relationships with each design professional where the complainants (1) file a joint complaint, (2) assert identical claims arising out of the same allegedly defective design work, and (3) are represented by the same attorney. Holding otherwise would create a procedural hurdle that comports with neither the plain language of the statute nor the Legislature’s intent. Bagelmania Holdings, LLC v. RDH Interests, Inc. C/W 87901, 141 Nev. Adv. Op. No. 62, ___ P.3d ___ (December 4, 2025).
Employment: NRS 613.010 authorizes a civil cause of action when a worker changes his or her place of employment in response to an employer’s false or deceptive representations about the terms and conditions of employment, even if the worker does not physically relocate. Though NRS 613.010(1) does not define the meaning of the phrase, “to change from one place to another in this state,” NRS 613.010(3) establishes a civil cause of action for a worker who was induced to “change his or her place of employment, or place of abode.” The Supreme Court’s interpretation harmonizes and gives effect to both subsections to ensure a coherent framework for adjudicating claims under NRS 613.010. Field Effect Sec. Inc. v. Dist. Ct. (Anderson) (Civil), 141 Nev. Adv. Op. No. 63, ___ P.3d ___ (December 4, 2025).
Exhaustion of administrative remedies: While estates generally step into the shoes of the decedent, NRS 41.0322 plainly demonstrates that the Legislature did not intend for the exhaustion-of-administrative-remedies requirement to apply to an action brought by the estate of a deceased inmate. The Nevada Department of Corrections (NDOC) administrative regulations contain no mechanism for representatives acting on behalf of a deceased inmate’s estate to pursue administrative relief against NDOC, and the out-of-state authorities cited by NDOC were unpersuasive, as those jurisdictions lack a comparably broad waiver of sovereign immunity and impose distinct procedural prerequisites for all tort claims against the state. State, Dep’t of Corr. v. Dist. Ct. (Caperonis) (Civil), 141 Nev. Adv. Op. No. 54, ___ P.3d ___ (November 13, 2025).
Family Educational Rights and Privacy Act (FERPA): (1) The federal Family Educational Rights and Privacy Act (FERPA) and parallel Nevada statutes protect a parent’s or legal guardian’s access to a student’s education records; (2) not every email that mentions a student and is stored on a school’s email server constitutes an education record under FERPA and its analogous Nevada statutes; and (3) instead, an individual email may become part of a student’s education records when the school district or its agent takes affirmative and intentional steps to treat the email as an institutional record and stores it with a designated individual in a designated place. Emails, by their nature, may contain informal communications that are easily deleted and thus do not necessarily comprise a student’s education records simply by virtue of mentioning that student. The requirement that an educational agency track who seeks to access education records further weighs against construing ordinary emails as student records. The prevalence and informality of email, as well as that replies may restate all previous messages in a particular conversation, can lead to an enormous quantity of records. Maintaining tracking and privilege logs would thus impose a substantial administrative burden. Moreover, the provisions empowering parents and guardians to challenge, seek to correct, and add written explanations to information in education records are difficult to square with treating ordinary emails as education records. Emails are not typically amenable to being corrected and are often so numerous that it is difficult to imagine that the legislature intended to enact a system whereby parents and guardians might append explanations to every email mentioning their child’s name. Limiting the scope of education records to matters intentionally designated as such considerably narrows the universe of materials subject to the statutes’ access, amendment, and explanation protections and yields a more practicable statutory scheme. Clark Cnty. School Dist. v. Dist. Ct. (Angalia B.), 141 Nev. Adv. Op. No. 58, ___ P.3d ___ (November 26, 2025).
Jurisdiction: (1) The district court properly exercised specific personal jurisdiction over TikTok because the State’s Nevada Deceptive Trade Practices Act (NDTPA) claims target TikTok’s alleged misrepresentations and unconscionable design elements that addict Nevada’s young users to the platform; (2) those claims sufficiently relate to TikTok’s purposeful Nevada contacts in collecting young users’ personal data and selling it to advertisers targeting those Nevada users, thus satisfying due-process requirements; and (3) the Communications Decency Act (CDA), codified as 47 U.S.C. § 230, and First Amendment do not protect TikTok from liability for its own allegedly misleading statements and omissions about safety risks to young users or for allegedly harmful design features that are not based on third-party content or its own expressive activity. To establish a prima facie case for specific personal jurisdiction, the State had to show that TikTok’s claim-related conduct created sufficient minimum contacts with the state to make the exercise of jurisdiction fair and reasonable. In this regard, the following test applies:
(1) TikTok must have purposefully availed itself of the privilege of acting in Nevada or purposefully directed its conduct to Nevada;
(2) The claims must arise from or relate to that purposeful contact; and
(3) The exercise of jurisdiction must be reasonable so that it does not offend traditional notions of “fair play and substantial justice.”
When the claims sound in intentional tort, the effects test from Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), must be used to analyze the purposeful-direction prong, and “purposeful direction is satisfied when the defendant
(1) committed an intentional act,
(2) expressly aimed at the forum state,
(3) causing harm that the defendant knows is likely to be suffered in the forum state.
A court must look to the defendant’s contacts with the forum state itself and not “random, fortuitous, or attenuated” contacts with persons who reside there. In the instant case, TikTok challenged the district court’s conclusion as to the second prong of the Calder test, i.e., that TikTok purposefully directed its conduct at Nevada by maintaining a continuous and systematic presence in the state via its online platform, which “is downloaded to phones and/or other devices” in Nevada. TikTok argued that purposeful direction was not shown through this conduct because operating an interactive website accessible to users worldwide does not constitute an intentional act targeted at Nevada. The Supreme Court of Nevada determined that the express-aiming prong is satisfied by TikTok’s targeted marketing and data-collection activities. The State also satisfied the second and third prongs of the specific-jurisdiction test, relationship and reasonableness. Accordingly, the State made a prima facie showing of personal jurisdiction. Separately, the Supreme Court determined that the CDA § 230 and the First Amendment do not immunize TikTok from the State’s NDTPA claims at the pleading stage of this litigation. On its face, the State’s complaint does not seek to hold TikTok liable for any third-party content that it publishes. Also, the First Amendment does not bar the State’s NDTPA design-based claims as pleaded. For example, the First Amendment does not bar the State’s misrepresentation and omission claims, as the First Amendment does not protect inherently misleading commercial speech. TikTok, Inc. v. Dist. Ct. (State of Nev.) (Civil), 141 Nev. Adv. Op. No. 51, ___ P.3d ___ (November 6, 2025).
PERS:NRS 288.150(2)(d) requires PERS to collect additional retirement contributions in line with increased wages earned on negotiated holidays. The Las Vegas Police Managers and Supervisors Association and the Las Vegas Peace Officers Association enjoy statutory power to negotiate holidays on behalf of their members. The Associations negotiated with law-enforcement agencies for additional holidays. Despite the negotiated agreements, the Nevada Public Employees’ Retirement System (PERS) refused to collect the increased retirement-contribution rates on holiday pay for the additional holidays. The Associations sought and were granted declaratory relief, which PERS challenged on appeal. The Supreme Court of Nevada found that the Associations have statutory authority to negotiate holiday pay; PERS is obligated to obtain contributions for Juneteenth under its own policy because Juneteenth is a legal holiday; and the Associations have statutory power to negotiate holiday pay for Christmas Eve and New Year’s Eve. Moreover, PERS’s constitutional authority to govern is not infringed by the Associations’ power to negotiate holidays. PERS is statutorily obligated to govern the retirement system and cannot escape that responsibility merely by not being present in negotiations or not being a party to a collective-bargaining agreement. Pub. Employees’ Ret. Sys. of Nev. v. Las Vegas Managers and Supervisors Ass’n, 141 Nev. Adv. Op. No. 55, ___ P.3d ___ (November 13, 2025).
Photo lineups: The photo array used in this case was not unnecessarily suggestive. Defendant Ocean Camacho (hereinafter “Camacho”) argued that the district court violated his due-process right to a fair trial by admitting evidence of a pretrial identification of him. To prevail on this argument, Camacho had to show that the “police-organized photo lineup . . . ‘was so [unnecessarily] suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” The analysis involves two steps. First, a reviewing court must ask whether “law enforcement officers use[d] an identification procedure that is both suggestive and unnecessary.” If so, the court moves to the second step and considers whether the identification is nevertheless reliable. The factors affecting reliability include “‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.’” Where the other participants in a lineup or photo array are “grossly dissimilar in appearance to the suspect,” or the suspect is the only one in a lineup or photo array wearing the same “distinctive clothing” described by a witness to the crime, the identification evidence may be “so extremely unfair that its admission violates fundamental conceptions of justice.” The photo array here does not approach that level. For example, an article of clothing as common and ubiquitous as a white T-shirt does not make a photo array unduly suggestive because the witness mentioned it in describing the suspect, especially where, as here, the photos focus on the subjects’ face and hair, not their clothing; the fillers appear to be wearing similar, though different-colored clothing; and the witness’s description did not emphasize clothing over other features. The identification was sufficiently reliable that its presentation to the jury did not offend due process. The Supreme Court also ruled on a number of other issues and concluded that “the recent pandemic delayed these proceedings in a unique way that cannot be held against either party.” Camacho (Ocean) v. State, 141 Nev. Adv. Op. No. 52, ___ P.3d ___ (November 6, 2025).
Self-representation: A defendant’s refusal to engage in the requisite canvass results in a waiver of the right to self-representation. Courts should not lightly cast aside an accused’s right to self-representation. At the same time, given the pronounced dangers and disadvantages of self-representation, defendants who wish to represent themselves must submit to a thorough canvass under Faretta v. California, 422 U.S. 806 (1975), in order to ensure a knowing, intelligent, and voluntary waiver of the right to counsel. When a defendant asserts the right to self-representation but refuses to engage in a Faretta canvass, he waives the right to represent himself. State v. Dist. Ct. (Kirk, Jr.) (Criminal), 141 Nev. Adv. Op. No. 60, ___ P.3d ___ (November 26, 2025).
Venue: (1) The underlying charges were filed in Clark County and relate to acts involving false and forged instruments under NRS 205.110 and NRS 239.330; (2) the indictment alleges that respondents mailed false electoral-vote certificates related to the 2020 presidential election from Douglas County to Judge Miranda Du at the federal court in Clark County; and (3) venue was properly laid in Clark County because the offenses charged were not complete upon mailing but rather necessarily involved the receipt of the certificates at the location to which they were mailed. The offenses charged anticipated the documents’ receipt and sought to induce or persuade a recipient to take action by accepting them as true. As they were addressed to and delivered at the federal court in Las Vegas, venue properly laid in Clark County to prosecute the crimes alleged there. State v. Degraffenreid, III (James) (Criminal), 141 Nev. Adv. Op. No. 56, ___ P.3d ___ (November 13, 2025).
Workers’ compensation: (1) NRS 617.455(1) classifies disabling lung diseases in firefighters, arson investigators, or police officers as compensable occupational diseases when they result from “[an] exposure to heat, smoke, fumes, tear gas, or any other noxious gases, arising out of and in the course of the employment”; (2) another provision, NRS 617.455(5), entitles claimants to a conclusive presumption that their lung disease has “arisen out of and in the course of the employment” if they worked full time and continuously in one of those capacities for two or more years before the date of disablement; and (3) a plain reading of NRS 617.455 supports the conclusion that a claimant must satisfy both causal components of NRS 617.455(1) to establish a lung-disease claim for workers’ compensation. Appellant had a disabling lung disease and worked full time and continuously as a correctional officer for more than two years; therefore, NRS 617.455(5) entitled him to a conclusive presumption that his COVID-19 infection arose out of and in the course of his employment, thus satisfying one of the causal components of NRS 617.455(1). He did not, however, satisfy the other component of subsection 1, which required showing that his lung disease was caused by exposure to heat, smoke, fumes, tear gas, or other noxious gases. Holguin v. City of Henderson (Civil), 141 Nev. Adv. Op. No. 53, ___ P.3d ___ (November 13, 2025).
Resources
- “Advance Opinions” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
- A list of “Forthcoming Opinions” is available at this link every Wednesday: http://nvcourts.gov/Supreme/Decisions/Forthcoming_Opinions/
- “Supreme Court Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Unpublished_Orders/
- “Court of Appeals Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Court_of_Appeals/Unpublished_Orders/
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).
About the article
© 2025 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.
This article was originally submitted for publication in the Communiqué (January 2026), the official publication of the Clark County Bar Association.
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