Nevada Appellate Court Summaries (2-1-24)

Check out the summaries of opinions from the Nevada Appellate Courts written by Joe Tommasino, Esq.

Written by Joe Tommasino, Esq.

Supreme Court of Nevada

Immunity: (1) In Boland v. Nevada Rock & Sand Co., 111 Nev. 608, 611, 894 P.2d 988, 990 (1995), the Supreme Court of Nevada set out the test for determining when an owner or occupant of land is protected from liability for another’s recreational use of that land under NRS 41.510, and in the Boland opinion, the court determined that NRS 41.510’s protections applied to “rural, semi-rural, or nonresidential” property; (2) subsequently, the Nevada legislature amended NRS 41.510 to apply to “any premises”; thus, (3) Boland has been superseded by statute to the extent Boland limited NRS 41.510’s application to “rural, semi-rural, or nonresidential” property. As to the underlying case, the district court properly found that Vivaldi Park in Henderson was covered by NRS 41.510’s protection and that appellant Kathryn Abbott was engaged in a recreational activity (walking and assisting a child on a park playground) at the time of her injury on the property.Moreover, appellants failed to present evidence to establish a genuine dispute of material fact regarding whether respondent City of Henderson willfully or maliciously failed to guard or warn against a dangerous condition. Therefore, the court affirmed the district court’s order granting summary judgment in favor of the City of Henderson. Abbott v. City of Henderson, 140 Nev. Adv. Op. No. 3, ___ P.3d ___ (January 25, 2024).

Water: (1) The state engineer did not exceed his statutory authority in issuing Order 1309 relating to water regulations; (2) the state engineer has statutory authority to combine multiple basins into one hydrographic “superbasin” based on a shared source of water; and (3) respondents’ due-process rights were not violated because they received notice and had the opportunity to be heard at the Order 1309 hearing. This case examines whether the state engineer has the authority to redesignate multiple existing hydrographic basins as one “superbasin” based on a shared source of water for purposes of the water’s administration and management. The opinion also examines whether the state engineer complied with due process in creating the superbasin that is at issue here. In Order 1309, the state engineer determined that the waters of seven basins were interconnected in a manner such that withdrawals from one basin affected the amount of water in the other basins. Consequently, the state engineer combined those basins, for administration purposes, into one superbasin. Further, the previously granted appropriations of water exceeded the rate of recharge in the superbasin, now known as the Lower White River Flow System (LWRFS). The state engineer found that permitted groundwater pumping from that flow system may reduce the amount of water available to parties with vested surface water rights, including rights to waters from the Muddy River, a vital source of water for the City of Las Vegas. Additionally, the state engineer determined that no more than 8,000 afa, and perhaps less, could be appropriated from the flow system without affecting the vested rights and other public interests. Respondents, owners of water rights throughout the new superbasin, petitioned for judicial review in the district court, alleging that the state engineer lacks authority to conjunctively manage surface waters and groundwater and to jointly administer the multiple basins that form the LWRFS. They also asserted that the state engineer violated their due-process rights in issuing Order 1309. In response, the Supreme Court of Nevada held that “the State Engineer has authority to conjunctively manage surface waters and groundwater and to jointly administer multiple basins and thus was empowered to issue Order 1309.” The court also concluded that the state engineer did not violate due process protections because respondents received notice and had an adequate opportunity to be heard. Sullivan v. Lincoln Cnty. Water Dist., 140 Nev. Adv. Op. No. 4, ___ P.3d ___ (January 25, 2024).

Nevada Court of Appeals

Preliminary hearings: (1) NRS 171.196(2) requires that a preliminary hearing be set within 15 days of a criminal defendant’s initial appearance on a felony or gross-misdemeanor charge unless good cause exists for the delay; (2) when deciding whether good cause exists, the justice court must balance the defendant’s constitutional right to conditional pretrial liberty against the interests of the state and the needs of the court; and (3) the court must make findings on the record to justify any delay of the preliminary hearing and undertake efforts to ensure that the hearing is held as soon as practicable. In the instant case, the justice court set the preliminary hearing 76 days after the defendant’s initial appearance in justice court, or 61 days beyond the statutory threshold. This delay amounted to more than four times the 15-day window provided for in NRS 171.196(2). The Supreme Court of Nevada has recently recognized that “[p]retrial release and detention decisions implicate a liberty interest—conditional pretrial liberty—that is entitled to procedural due process protections.” This fundamental pretrial liberty interest attaches after arrest. Also, this constitutional interest is not only limited to a defendant’s initial arrest, but also applies when a defendant is later remanded into custody pending a hearing to determine their custody status. Thus, the right to conditional pretrial liberty applies to defendants who are awaiting their preliminary hearings, which also may involve “[p]retrial release and detention decisions” based on the justice court’s probable cause findings. Though a preliminary hearing itself is not a constitutional mandate, a defendant’s detention pending their preliminary hearing nonetheless implicates their constitutional interest in conditional pretrial liberty and must be considered in the justice court’s evaluation of good cause for a delay under NRS 171.196(2). Therefore, when evaluating good cause to set a preliminary hearing beyond 15 days from the initial appearance, justice courts must consider the defendant’s custody status and any applicable conditions of pretrial release. The court must also consider the length of the anticipated delay. An extensive delay beyond the initial 15 days will more substantially impact a defendant’s constitutional rights, particularly when the defendant remains incarcerated. On the other hand, longer delays can more easily be justified when the defendant is neither detained nor subject to onerous conditions of pretrial release, so the justice court may readdress the defendant’s custody status contemporaneously with its good-cause analysis. However, when considering a delay’s impact on the defendant’s constitutional rights, the justice court must “balanc[e] the interest of the State against fundamental fairness to a defendant with the added ingredient of the orderly functioning of the court system.” The court has already recognized circumstances where the state would be entitled to a continuance of the preliminary hearing. In the instant case, the Court of Appeals of Nevada could see no reason why the anticipated unavailability of a witness, and other grounds that may constitute good cause for a continuance, should not also be relevant considerations when initially setting a preliminary hearing. Further, the justice court may take into account the needs of the court when determining whether good cause exists for a delay, including the court’s calendar and the pendency of other cases. What constitutes good cause to set a preliminary hearing outside 15 days under NRS 171.196(2) is not subject to a bright-line rule and will vary based on the facts and circumstances of each case. However, the justice court must make findings of fact as to what constitutes good cause so that the reviewing court is not left to speculate as to the justice court’s reasoning. Thus, “[t]he record must reflect that the [delay] was reasonable in both purpose and length” when the justice court determines that a delay is justified. Also, there should be a “nexus between the [reason for the delay] and the purported need to delay the hearing.” Therefore, when finding that good cause exists to set a preliminary hearing beyond 15 days, the justice court must make findings, either in writing or on the record, as to why the delay is justified and should also undertake efforts to set the preliminary hearing as soon as possible after the 15-day period. At footnote five, the appellate court noted that “a defendant may waive the right to a preliminary hearing within 15 days, …in which case a good cause analysis is not required.” At footnote six, the appellate court concluded that “a defendant is not required to show prejudice when asserting a statutory violation of NRS 171.196(2), which places the burden exclusively on the State to establish good cause for the delay.” Chittenden v. Just. Ct. of Pahrump Twp., 140 Nev. Adv. Op. No. 5, ___ P.3d ___ (January 25, 2024).


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

© 2024 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 (Mar. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-mar-2024/.

The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.

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