Written by Joe Tommasino, Esq.
Supreme Court of Nevada
Criminal law: A jury may consider whether a combination of voluntary intoxication and a disease or defect of the mind resulted in insanity, but voluntary intoxication alone may not be the cause of the disease or defect of the mind. The Supreme Court of Nevada also held that it was error for a replacement medical examiner to deviate from her predecessor’s testimony regarding the victim’s cause of death as articulated at the preliminary hearing without notifying the defense of the change. Expanding the possible causes of death during trial violated the notice requirements of NRS 174.234. Aubry (Malcolm) v. State (Criminal),142 Nev. Adv. Op. No. 14, ___ P.3d ___ (February 26, 2026).
Public works: (1) NRS Chapter 338 does not provide workers a private right of action against employers who violate NRS 338.020’s prevailing-wage and overtime pay requirements; (2) it vests enforcement responsibility with the Labor Commissioner and the contracting public body; (3) since the claims alleged here all seek damages for violation of NRS 338.020’s statutory prevailing-wage and overtime pay requirements, those claims needed to be presented to the Labor Commissioner in the first instance; and (4) because they were not, the claims were properly dismissed. NRS Chapter 338 creates an administrative scheme for the determination and enforcement of prevailing-wage and overtime pay requirements on public works projects. Alleging that they performed prevailing-wage work yet were not paid overtime at the prevailing-wage rates specified in NRS 338.020(3), appellants sued respondent employers and contractors in district court for the deficiency. The question presented here was whether employees may sue to enforce NRS 338.020(3) directly or must instead work through the administrative remedies NRS Chapter 338 provides, with judicial review to follow, if appropriate. The Supreme Court of Nevada held that NRS Chapter 338 does not afford a private right of action to employees outside the administrative process it creates. Because appellants’ claims depend on proving a violation of the prevailing-wage and/or overtime pay provisions in NRS 338.020, they must first seek redress through NRS Chapter 338’s administrative process. Nor can they circumvent that process by asserting their claims under NRS Chapter 608’s more general wage-and-hour provisions or as third-party beneficiaries, since the claims still depend on an alleged but administratively undetermined entitlement to prevailing-wage and/or overtime pay under NRS 338.020. Stuckey v. Apex Materials, LLC,142 Nev. Adv. Op. No. 17, ___ P.3d ___ (February 26, 2026).
Self-representation: Certain defendants may be competent to stand trial but may not be competent to represent themselves. The right to self-representation is guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 8 of the Nevada Constitution. A defendant’s exercise of this right must be knowing and intelligent, and the defendant must be made aware of the dangers and disadvantages in exercising this right. The case of Faretta v. California, 422 U.S. 806, 835 (1975), requires district courts to conduct a “thorough inquiry” and to “make findings as to whether the defendant’s waiver of the right to counsel is knowing, intelligent, and voluntary.” While the Supreme Court of Nevada has previously declined to require a rote, mechanical implementation of a Faretta canvass, an inquiry that fails to ascertain a defendant’s understanding of potential sentences upon conviction or the elements of the crimes with which the defendant is chargedis insufficient.The district court may deny a request for self-representation if “the defendant is incompetent to waive the right to counsel, the request is untimely, the request is equivocal, the request is made solely for the purpose of delay, or the defendant abuses the right to self-representation by disrupting the judicial process.” In Gallego v. State, 117 Nev. 348, 356-57, 23 P.3d 227, 233 (2001), the Supreme Court of Nevada outlined several situations in which a district court may deny a defendant’s request to represent themselves, including when the defendant is incompetent to waive the right to counsel. Later, in Indiana v. Edwards, 554 U.S. 164 (2008), the United States Supreme Court similarly evaluated whether an individual found competent may nevertheless be determined incapable of self-representing at trial due to mental illness. Here, the Supreme Court of Nevada considered Gallego alongside the United States Supreme Court’s subsequent decision in Edwards, establishing a separate, higher standard to determine a defendant’s competence to waive counsel and eschewing a less stringent standard used for determining a defendant’s competence to stand trial. In Edwards, the United States Supreme Court noted the choice “to forgo trial counsel presents a very different set of circumstances than the mental competency determination for a defendant to stand trial.” The United States Supreme Court also concluded a “gray area” existed between the minimal standard that “measures a defendant’s ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose.” An inherent difference exists between a defendant’s ability to comprehend proceedings and assist counsel on the one hand and the higher level of competence necessary to present one’s own defense without counsel. Based upon this difference, judges are constitutionally permitted to “take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so” and allowing courts to deny self-representation where a defendant lacks this requisite competence. Duckket (Isaiha) v. State,142 Nev. Adv. Op. No. 9, ___ P.3d ___ (February 5, 2026).
Sentencing: Because neither the statute governing mental health evaluation and civil commitment after an NGRI acquittal, NRS 175.539, nor the statutes governing sentencing after a GBMI conviction, NRS 175.533 and NRS 176.057, specify how civil commitment and incarceration should be sequenced in cases with split GBMI and NGRI verdicts, the district court retains discretion to determine the proper sentence. A jury found appellant Damien Mars Silvanus guilty but mentally ill (GBMI) of driver evading, eluding, or failing to stop on the signal of a peace officer, endangering other person or property. The jury also found Silvanus not guilty by reason of insanity (NGRI) on two other counts in the same charging document. Silvanus challenged the district court’s imposition of a prison sentence for the conviction, arguing that the court was required to instead place him on probation and commit him directly to a forensic mental health facility for treatment based on the NGRI acquittals. However, the Supreme Court of Nevada disagreed. The district court permissibly sentenced Silvanus to serve a prison term, followed by assessment at a forensic mental health facility once he is released. Probation is not mandatory when there is a split NGRI/GBMI verdict because the district court reserves discretion in deciding the sentence to impose on someone found GBMI under NRS 176.057(1)(b)(1). Nor do the NGRI procedures strip a district court of its discretion in imposing sentences for individuals found guilty or GBMI on other charges. Silvanus (Damien) v. State (Criminal),142 Nev. Adv. Op. No. 15, ___ P.3d ___ (February 26, 2026).
Sexual assault: (1) Under a plain reading of the statute, NRS 200.364(9), in relevant part, unambiguously requires intrusion into a genital or anal opening, including when the intruding instrument is a part of the perpetrator’s body; and (2) given that NRS 200.364(9) and by extension NRS 200.366 require intrusion into a genital or anal opening, forced masturbation without such intrusion does not constitute sexual assault under NRS 200.366. Under NRS 200.366(1)(a), a person commits sexual assault if he or she “[s]ubjects another person to sexual penetration, or forces another to make a sexual penetration on themselves or another,’ without the person’s consent.” NRS 200.364(9) defines sexual penetration as “cunnilingus, fellatio, or any intrusion, however slight, of any part of a person’s body or any object manipulated or inserted by a person into the genital or anal openings of the body of another, including sexual intercourse in its ordinary meaning.” Because the Supreme Court of Nevada interprets the intrusion clause of “sexual penetration” to require intrusion into a genital or anal opening of the body, the Court concluded that a perpetrator does not commit sexual assault under NRS 200.366 by forcing a victim to masturbate the perpetrator, so long as there is no intrusion into a genital or anal opening. Cosby, Jr. v. Leslie(NRAP 5),142 Nev. Adv. Op. No. 11, ___ P.3d ___ (February 12, 2026).
Water: (1) NRS 533.450(1) provides standing to seek judicial review of a decision of the State Engineer; and (2) where the decision is not made pursuant to NRS 533.270 to 533.445, inclusive, or NRS 533.481, 534.193, 535.200, or 536.200, the party seeking review must have a personal or property right affected by the challenged decision. Appellant Gold Standard Ventures (US) Inc. is a wholly owned subsidiary of Orla Mining Ltd. (collectively Orla). Orla has attempted to secure water rights in the Dixie Creek-Tenmile Creek basin to open a mining operation. In 2023, Adam Sullivan, the former Nevada State Engineer, made a determination relating to the water rights of a separate entity within the basin that ostensibly reduced the amount of water available for future appropriation, thereby diminishing Orla’s chance of obtaining prospective water rights. When Orla learned of the decision, it filed a petition for judicial review with the district court. The district court dismissed Orla’s petition after concluding that Orla lacked standing to challenge the decision and that the petition was untimely pursuant to NRS 533.450(1). Orla then appealed, arguing that the district court erred in determining it lacks standing to challenge the decision, deeming its petition untimely, and not considering equitable relief. The Supreme Court of Nevada found that the
district court was correct in determining that Orla lacked standing to challenge the decision of the State Engineer. Gold Standard Ventures (US) Inc. v. Thorson, P.E., 142 Nev. Adv. Op. No. 10, ___ P.3d ___ (February 12, 2026).
Water: NRS 534.090(3) does not mandate that the State Engineer make findings as to factors that are irrelevant. NRS 534.090(1) provides that a water rights holder who does not put the water to beneficial use for five successive years risks forfeiture of those water rights. While a water rights holder may request extensions to that deadline, whether to grant the requested extension is within the State Engineer’s discretion, as guided by the considerations specified in NRS 534.090(3). Here, after receiving a notice of nonuse and intent to forfeit from the State Engineer, appellant Egger Enterprises, LLC, obtained a one-year extension under NRS 534.090(3). Upon its request for a second extension, however, the State Engineer determined that another extension was not warranted and declared some of Egger’s water rights forfeited. On appeal, Egger argued that the State Engineer’s decision required reversal because he considered only seven of nine factors enumerated in NRS 534.090(3). However, “NRS 534.090(3) does not mandate that the State Engineer make findings as to factors that are not relevant to the request for extension.” Moreover, the State Engineer did not abuse his discretion in determining that, as guided by the remaining factors, good cause did not warrant the extension. Egger Enter., LLC v. State Engineer (Civil),142 Nev. Adv. Op. No. 18, ___ P.3d ___ (February 26, 2026).
Writs: Before issuing an ex parte writ of mandamus, a district court must address why regular inter partes procedure is inadequate, and a district court that does not consider why ex parte practice is appropriate abuses its discretion in issuing the writ. In this case, an individual requesting public records pursuant to the Nevada Public Records Act (NPRA) sought an ex parte writ of mandamus to compel the disclosure of those records. Because the district court did not specify why the petitioner could not avail himself of the routine NPRA process, and as the petitioner provided no evidence suggesting that the NPRA process did not work for this case, the Supreme Court of Nevada concluded that the district court manifestly abused its discretion in granting the ex parte writ of mandamus. The Supreme Court emphasized that “[o]ur holding should not be read to preclude a district court from issuing an ex parte alternative writ of mandamus to compel the production of public records.” District courts may do so, but they must first consider why ex parte relief is warranted and why the expedited NPRA process would not address the petitioner’s needs. City of Reno v. Dist. Ct.(Conrad) (Civil),142 Nev. Adv. Op. No. 13, ___ P.3d ___ (February 26, 2026).
Writs: Disparate claims for writ relief cannot be joined in one petition. The petitioner, Our Nevada Judges, Inc., a press organization, challenged three distinct district court orders denying, in some fashion, access to the court proceedings in three unrelated cases instituted in three different district courts. However, with limited exception, separate claims for writ relief cannot be joined in a single petition. One such exception is that claims arising out of the same transaction or connected with the same subject matter may be joined if permitted by court rule or statute. But even then, when granting writ relief on such claims would require mandating officials to take actions that do not relate to each other, joinder is not appropriate. Our Nev. Judges, Inc. v. Dist. Ct. (The Doe 1 Trust)(Civil),142 Nev. Adv. Op. No. 16, ___ P.3d ___ (February 26, 2026).
Nevada Court of Appeals
Criminal law: (1) To be convicted of home invasion, an individual must forcibly enter a “dwelling,” without permission of the owner, resident, or lawful occupant of the dwelling; (2) when a garage is attached to the other rooms of a house, it is part of the structure in which the owner, resident, or lawful occupant lives, and thus is part of the “dwelling” for purposes of the statute; and (3) when an individual forcibly enters an attached garage, without permission of the owner, resident, or lawful occupant, they have entered a dwelling and committed the crime of home invasion under NRS 205.067(1). Separately, attempted home invasion involves an intent to forcibly enter a dwelling without permission of the owner, resident, or lawful occupant; performance of some act towards the commission of a home invasion; and failure to consummate the home invasion. Because there was sufficient circumstantial evidence to allow a reasonable jury to find that the defendant intended to forcibly enter the dwelling through the laundry-room door without the residents’ permission, the Supreme Court of Nevada affirmed his conviction for attempted home invasion. Austin (Joseph) v. State (Criminal),142 Nev. Adv. Op. No. 12, ___ P.3d ___ (February 26, 2026).
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
© 2026 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 (February 2026), the official publication of the Clark County Bar Association.
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