Supreme Court of Nevada
Child custody: (1) NRS 125C.006(1)(b) provides in relevant part that a “custodial parent [who] intends to relocate his or her residence to a place outside of this State . . . and . . . desires to take the child” must first petition the district court for permission if the noncustodial parent refuses to consent to relocation; and (2) that provision applies to relocation from Nevada to a place outside of Nevada, and also from a place outside of Nevada to another place outside of Nevada. The district court must issue specific findings for each of the NRS 125C.007(1) factors relating to relocation and, if applicable, the NRS 125C.007(2) factors relating to the impact on the child, the relocating parent, and the non-relocating parent. Pelkola v. Pelkola (Child Custody), 137 Nev. Adv. Op. No. 24, ___ P.3d ___ (May 27, 2021).
Contempt: (1) Monetary sanctions payable to the opponent are civil—not criminal—in nature because they serve a remedial purpose, and those sanctions must be limited to the opponent’s actual loss caused by the contemptuous conduct; to the extent such a sanction exceeds the opponent’s actual loss, it is invalid; and (2) an attorney-fee award must not include fees that were incurred before the contemptuous conduct began, and an award of other damages must be based on evidence of an actual loss. The Supreme Court of Nevada also addressed two threshold issues. First, the Court considered the effect of an error in naming a party—here, the erroneous description of a national bank as “a Washington corporation.” Other state courts have created a framework distinguishing “misnomers” from “misidentifications.” A misidentification arises when two separate legal entities exist and a plaintiff mistakenly sues an entity with a name similar to that of the correct entity. In contrast, a misnomer occurs when a party misnames itself or another party, but the correct parties are involved. Courts generally allow parties to correct a misnomer so long as it is not misleading. In the instant case, the Supreme Court of Nevada adopted that analysis. Where the correct parties are involved and the error is not misleading, a misnomer amounts to nothing but a typographical or clerical error, which may be corrected “whenever one is found in a judgment, order, or other part of the record” pursuant to NRCP 60(a). Second, the Court addressed the proper time for an accused contemnor to demand a change of judge under NRS 22.030(3). Such a demand must be made before the contempt trial. Although the Court did not need to decide whether any more stringent time limit applies, the Court encouraged litigants to act without undue delay in exercising peremptory challenges to judges. Detwiler v. Dist. Ct. (Baker Boyer Nat’l Bank), 137 Nev. Adv. Op. No. 18, ___ P.3d ___ (May 6, 2021).
Elections: (1) NRS 293.465 provides for a new election when “an election is prevented in any precinct or district by reason of the loss or destruction of the ballots intended for that precinct, or any other cause”; (2) the Legislature did not intend for NRS 293.465 to apply when an election actually occurs in each precinct; (3) instead, NRS 293.465 requires some event that, similar to the loss or destruction of ballots, prevents eligible voters from casting their votes; and (4) once an election takes place and the voters have had the opportunity to vote, any challenge to the conduct of the election must proceed by way of an election contest brought pursuant to NRS 293.407-.435. Appellant Stavros Anthony lost by a margin of 15 votes in the 2020 general election for Clark County Commission District C. He argued that a new election is required pursuant to NRS 293.465 because the number of irregularities in the conduct of the election exceeded the narrow margin of victory. NRS 293.407-.435 sets forth a process by which a candidate may contest an election based on errors in the conduct of the election. Clearly, the Legislature has established a carefully delineated and accelerated procedure by which a candidate may challenge the conduct of the election, including any discrepancies or errors that may have affected the outcome of the election. And the Legislature has seen fit to grant the judiciary, not the Board of Commissioners, the authority to decide such a contested county election. Here, because the voters had the opportunity to vote in the general election and were not prevented from casting their votes for District C, the district court properly found that the election was not “prevented” under NRS 293.465. Anthony v. Miller (Ballot Issue), 137 Nev. Adv. Op. No. 25, ___ P.3d ___ (June 10, 2021).
Guardianship: (1) NRS 159.044(2)(i)(1) provides that a petition for adult guardianship must include a certificate from a physician or a qualified individual demonstrating need for a guardianship; (2) the certificate does not need to be based on an in-person examination of the proposed protected person; and (3) whether the petition and certificate warrant the need for a guardianship or further proceedings is within the sound discretion of the district court.
Adding an in-person examination requirement to the requirement of a certificate from a physician or other qualified professional in every case would detract from the flexibility which NRS 159.044(2) contemplates. While the guardianship statutes are silent on whether discovery is proper in guardianship matters, the Supreme Court of Nevada concluded that NRCP 26 generally permits discovery but the district court has discretion to control and limit discovery. Further, a district court’s decision to conduct an evidentiary hearing in a guardianship matter is within its sound discretion. The Court emphasized that “[g]uardianships are not to be lightly granted and are not required for every individual who suffers from a mental illness.” Here, a reasonable judge could have concluded that the facts presented do not rise to a level that warrants further investigation. Thus, the district court did not abuse its discretion in denying the petition without ordering discovery or holding an evidentiary hearing.In re: Guardianship of Rubin, 137 Nev. Adv. Op. No. 27, ___ P.3d ___ (July 1, 2021)
Jurors: (1) The discriminatory use of a peremptory challenge during jury selection constitutes structural error requiring reversal and remand for a new trial; however, (2) where the discriminatory peremptory challenge was used to remove a prospective alternate juror and no alternate deliberated with the jury, harmless-error review applies. Where a Batson violation involves a prospective alternate and no alternate participates in deliberations, the discrimination did not directly impact the jury’s makeup and the defendant was not tried by a jury whose members were selected pursuant to discriminatory criteria. The effects of the error are thus not too hard to measure—the Supreme Court of Nevada can be assured that a Batson violation involving a prospective alternate had no effect on the deliberations as to a defendant’s guilt where no alternate participated in deliberations. It is only under the specific facts of this case—where a discriminatory peremptory challenge was made against a prospective alternate juror and no alternate was called upon to deliberate—that the practicality of harmless-error review is warranted. In the instant case, although the district court erred in rejecting the defendant’s Batson objection to the State’s use of a peremptory challenge to remove a prospective alternate juror based on gender, the error had no effect on the outcome of the trial and was therefore harmless because no alternate deliberated with the jury. Dixon (Steven) v. State,137 Nev. Adv. Op. No. 19, ___ P.3d ___ (May 6, 2021).
Legislature: (1) Article 4, Section 18(2) of the Nevada Constitution requires the agreement of at least two-thirds of the members of each house of the Nevada Legislature to pass any bill “which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates”; (2) this supermajority provision plainly applies to two bills (Senate Bills 542 and 551) passed in 2019 during the 80th session of the Nevada Legislature because the bills create, generate, or increase public revenue; and (3) because the bills did not pass by a two-thirds majority in the Senate, those portions of the bills that would require a supermajority vote are unconstitutional. The individual defendants are protected by legislative immunity under NRS 41.071 because the actions they performed were within the sphere of legitimate legislative activity. Leg. of the State of Nev. v. Settelmeyer, 137 Nev. Adv. Op. No. 21, ___ P.3d ___ (May 13, 2021).
Petitions for judicial review: It is improper to combine (whether from the outset or through a later filing) a petition for judicial review with a related civil action. In this opinion, the Supreme Court of Nevada considered whether a petition for judicial review of an administrative zoning decision may be filed within an existing civil suit. A petition for judicial review requests district-court review of an administrative decision, while a civil action initiates litigation between two or more parties. Here, real party in interest Solid State Properties, LLC, sued petitioner City of Henderson for damages and other forms of civil relief related to the nonenforcement of a zoning decision. After subsequent developments to the zoning decision, Solid State filed within that civil matter a document entitled “Amended Petition for Judicial Review” to challenge the zoning decision. The City moved to strike that document as improperly filed, which motion the district court denied erroneously. A petition for judicial review and a civil action are too dissimilar for a court to be tasked with balancing both trial and appellate functions in a way that does not lead each to bleed into the other. To conclude otherwise would allow confusingly hybrid proceedings in the district courts, wherein the limited appellate review of an administrative decision would be combined with broad, original civil trial matters. Allowing both matters to proceed together would create a convoluted appellate record for either decision. City of Henderson v. Dist. Ct. (Solid State Props., LLC), 137 Nev. Adv. Op. No. 26, ___ P.3d ___ (June 24, 2021).
Sealing: (1) When, like here, a defendant withdraws a guilty plea, the plea legally and factually ceases to exist and the defendant returns to the situation he or she was in prior to entering the plea; thus, district courts may not rely upon a withdrawn guilty plea or an associated conviction when evaluating whether to seal a petitioner’s criminal records under NRS 179.245, but instead must confine their analysis to the crimes contained in the operative judgment of conviction; and (2) in evaluating whether an offense is “[a] crime against a child” or “[a] sexual offense” under NRS 179.245(6)(a)-(b), courts must abide by the express list of such offenses provided in NRS 179.245(8)(b) and NRS 179D.0357. Additionally, when the statutory requirements are met and a presumption in favor of sealing applies, it can only be rebutted by evidence that the petitioner is not rehabilitated, which cannot be shown by the facts underlying the conviction, but instead must be based on subsequent events tending to show a lack of rehabilitation despite the petitioner’s compliance with governing statutes. Tiffee v. Eighth Judicial Dist. Ct., 137 Nev. Adv. Op. No. 20, ___ P.3d ___ (May 6, 2021).
Termination of parental rights: (1) A termination-of-parental-rights (TPR) trial involves determining whether to deprive a person of a fundamental right; (2) while the Legislature has authorized juvenile courts to appoint hearing masters in many cases, it has expressly conditioned this authority on the constitutionality of the appointment; and (3) masters may not be appointed to preside in TPR trials. In TPR proceedings pursuant to NRS Chapter 432B, the matter must be conducted by a “court.” Under NRS 62A.180(2), a hearing master may constitute a “court” in this sense when the juvenile court delegates authority for the master to perform a role in accordance with the Nevada Constitution. Balancing the fundamental importance of the rights at stake in a TPR trial and the profound consequences of an erroneous deprivation of those rights against the minimal value to the State of inserting an extra layer between the parties and the ultimate decisionmaker, the Supreme Court of Nevada held that due process requires the TPR trial to be heard before a district judge in the first instance. Central to this holding is the Court’s conclusion that when a trial takes place before a hearing master, a district judge’s subsequent review of the trial record is not sufficient to safeguard the rights of the parent and child against the uniquely grave consequence of the permanent loss of parental rights. Because a master cannot preside over a TPR trial pursuant to NRS Chapter 432B without infringing on a parent’s constitutional right to procedural due process, the master is not statutorily authorized to serve the role that the Legislature requires to be conducted by a “court.” In re: Parental Rights as to L.L.S., 137 Nev. Adv. Op. No. 22, ___ P.3d ___ (May 27, 2021).
Termination of parental rights: The nonexpert-witness-notice requirements in NRCP 16.2 apply to termination-of-parental-rights proceedings. The termination of parental rights in a civil case is akin to the death penalty in a criminal case. Thus, in parental-rights cases, the State must follow procedural rules involving disclosure of trial witnesses prior to trial. In the instant case, the State sought to terminate appellant’s parental rights, and the case proceeded to trial. The State did not disclose a nonexpert witness until after the trial had commenced. Nevertheless, the district court allowed the witness to testify at trial, concluding that the nonexpert-witness-disclosure requirements in NRCP 16.2(e)(4) do not apply to termination-of-parental-rights proceedings. At the conclusion of trial, the district court terminated appellant’s parental rights. The Supreme Court of Nevada concluded that “[a]lthough ambiguous when viewed in isolation, when read ‘in pari materia,’ it is clear that NRCP 16.1, 16.2, and 16.205 were intended to work together to cover the entire range of civil proceedings, including termination of parental rights proceedings.” The Court then emphasized that “reading these rules otherwise would produce an absurd result, permitting trial by ambush despite the profound interests at stake in such proceedings.” Thus, the district court’s failure to apply NRCP 16.2(e)(4)’s mandate regarding disclosure of witnesses was error. However, the error was harmless in this instance, as substantial evidence supports the district court’s order terminating parental rights. In re: Parental Rights as to T.M.R., 137 Nev. Adv. Op. No. 23, ___ P.3d ___ (May 27, 2021).
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).