By Paul C. Ray
Congratulations to all the New Bar Admittees!
The Nevada Oath of Attorney requires us to support the Constitution and government of the United States and of the State of Nevada. What constitutional issues do you see arising or do you hear about in Nevada?
The Supreme Court of the United States bears responsibility to interpret what the Constitution means. Appearance before the Supreme Court is a specialized practice to itself.
Working with Supreme Court specialists can be an interesting process. They know that most commonly, petitions for certiorari are denied. But when the Court expresses interest in an issue, then the interest builds.
Two Supreme Court cases, which began in Nevada, show unfamiliar processes that can occur. The first case was an inverse condemnation claim against Clark County. The County successfully persuaded the Court to invite the Solicitor General to submit a brief as amicus curiae (friend of the court) on the issue of certiorari. The Solicitor General’s procedure was to meet with both sides with a group of attorneys from the Department of Justice and from the relevant department and agency-in that case, the Transportation Department and the Federal Aviation Administration.
The presiding government attorney in the meeting had argued more Supreme Court cases than any other active attorney at that time, more than 100. Fortunately for our side, the government agreed with us that the Supreme Court of Nevada’s decision was not “certworthy.” So, the Supreme Court of the United States accepted the Solicitor General’s recommendation to deny certiorari, leaving our favorable decision from the Ninth Circuit Court of Appeals intact.
In the second case, a split of authority existed between the Seventh and Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals added to the intrigue with two dissenting judges from the ruling against us, including a 14-page dissent and another separate dissent about why the Ninth Circuit precedent should be overruled. Multiple Supreme Court specialists, including former acting Solicitor Generals and former law clerks to justices, contacted my client and me.
Although the Ninth Circuit Court of Appeals denied rehearing en banc, the Supreme Court accepted certiorari and ended up reversing and vacating a $1.2 billion Nevada U.S. District Court judgment. The oral argument was during the COVID outbreak, so oral argument was by phone, and the justices took turns asking questions to our selected lead counsel, Michael Pattillo. The Court held unanimously, 9-0, that the Federal Trade Commission (FTC) did not have jurisdiction to seek or obtain equitable monetary relief under Section 13(b) of the FTC Act, which allows the FTC to obtain injunctions in appropriate cases.
Contrary to public perceptions, the Court does not generally decide its cases on political lines. The Court’s internal operating procedures are different than ours in Nevada. But the Court’s procedures are published, and the Rule of Law still applies in the Supreme Court of the United States.
About the author
Paul C. Ray has practiced business and real estate litigation and appeals for 33 years and is with the law firm of Paul C. Ray, Chtd. He handles complex litigation matters and welcomes inquiries involving these. Paul serves as CCBA President through December 31, 2024.
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 published in the Communiqué (Nov. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-nov-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.