Nevada Reports 2003 (119 Nev.) PDF

119 Nev.
1, 1 (2003)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 119
____________
119 Nev. 1, 1 (2003) Cohen v. Mirage Resorts, Inc.
HARVEY COHEN, an Individual, Appellant, v. MIRAGE RESORTS, INC., a Nevada
Corporation; MIRAGE ACQUISITION SUB, INC., a Nevada Corporation; JEFFREY
PAUL JACOBS, an Individual; LOUIS SPOSATO, an Individual; JAMES
SCIBELLI, an Individual; FORREST WOODWARD, an Individual; AVIS P.
JANSEN, an Individual; JACOBS ENTERTAINMENT, NEVADA, INC., a Nevada
Corporation; and DIVERSIFIED OPPORTUNITIES GROUP, LTD., an Ohio Limited
Liability Company, Respondents.
No. 36434
February 7, 2003 62 P.3d 720
Appeal from a district court order dismissing a former shareholder's complaint for failure
to state a claim upon which relief can be granted. Eighth Judicial District Court, Clark
County; Valorie J. Vega, Judge.
Former minority shareholder filed class action complaint alleging breach of fiduciary duty
and/or loyalty by corporation's majority shareholders, board of directors and financial
advisors, in connection with corporation's merger, and alleging tortious interference claims
against the acquiring corporation. The district court dismissed complaint for failure to state a
claim. Former shareholder appealed. The supreme court, Becker, J., held that: (1) as a matter
of first impression, exclusive remedy provision did not prohibit former shareholder from
challenging merger based upon fraud or unlawful conduct in the merger process; (2) some of
former shareholder's allegations were in the nature of a derivative claim, which former
shareholder lacked standing to assert;
of former shareholder's allegations were in the nature of a derivative claim, which former
shareholder lacked standing to assert; and (3) trial court abused its discretion in refusing to
allow former shareholder to amend complaint to clarify that he was seeking rescission of the
merger and/or monetary damages based upon invalidity of the merger.
Affirmed in part, reversed in part and remanded.
[Rehearing denied March 14, 2003]
Rose, J., dissented in part.
Harrison Kemp & Jones, Chtd., and J. Randall Jones and Jennifer C. Popick, Las Vegas;
Berger & Montague, P.C., and Jacob A. Goldberg, Jill E. Sterbakov and Sherrie R. Savett,
Philadelphia, Pennsylvania, for Appellant.
Schreck Brignone Godfrey and Todd L. Bice and James J. Pisanelli, Las Vegas, for
Respondents.
1. Corporations.
Nevada's corporation statutes are designed to facilitate business mergers, while protecting minority shareholders from being
unfairly impacted by the majority shareholders' decision to approve a merger. NRS 92A.120, 92A.250, 92A.300-92A.500.
2. Corporations.
Minority shareholders may challenge a corporate merger if it is unlawful, that is, procedurally deficient, and they may seek to
stop a merger if fraud or material misrepresentation affected the shareholder vote on the merger; that is, the shareholders approved
the merger based upon materially incorrect information. NRS 92A.380(2).
3. Corporations.
When challenging a corporate merger based on fraud or unlawful conduct in the merger process, minority shareholders may
bring suit to enjoin or rescind the merger or to recover monetary damages attributable to the loss of their shareholder interest
caused by an invalid merger. They may also allege that the merger was accomplished through the wrongful conduct of majority
shareholders, directors, or officers of the corporation and attempt to hold those individuals liable for monetary damages under
theories of breach of fiduciary duty or loyalty. NRS 92A.380(2).
4. Corporations.
Minority shareholders' challenges to the validity of a corporate merger based on fraud usually encompass either or both of the
following: (1) lack of fair dealing or (2) lack of fair price. Both involve corporate directors' general duties to make independent,
fully informed decisions when recommending a merger and to fully disclose material information to the shareholders before a vote
is taken on a proposed merger, and they also can involve allegations that majority shareholders breached their limited fiduciary
duties to minority shareholders. NRS 92A.380(2).
5. Corporations.
In the context of minority shareholders' challenge to validity of a corporate merger based on fraud, lack of fair dealing
involves allegations that the board of directors did not make an independent, informed decision to recommend approval of the
merger, or that the majority shareholders approved the merger at the expense of the minority shareholders.
holders approved the merger at the expense of the minority shareholders. NRS 92A.380(2).
6. Corporations.
In the context of minority shareholders' challenge to validity of a corporate merger based on fraud, lack of fair price may
involve allegations similar to those concerning lack of fair dealing plus claims that the price per share was deliberately
undervalued, but it can also include negligent conduct. NRS 92A.380(2).
7. Corporations.
A dissenting shareholder who wishes to attack the validity of a corporate merger or seek monetary damages based upon
improper actions during the merger process must allege wrongful conduct that goes to the approval of the merger. Shareholders are
limited to appraisal-type actions unless they allege wrongful conduct or procedures in the approval process. NRS 92A.380(2).
8. Corporations.
Term fraudulent, as used in exclusive remedy statute, which permits shareholder to challenge corporate merger only if the
action is unlawful or fraudulent, is not limited to the elements of common-law fraud. The term encompasses a variety of acts
involving breach of fiduciary duties imposed upon corporate officers, directors, or majority shareholders. NRS 92A.380(2).
9. Corporations.
Minority shareholders' claims challenging the validity of a corporate merger should be asserted before the completion of the
merger by bringing an action to enjoin the merger. NRS 92A.380(2).
10. Corporations.
If injunctive relief is denied and a corporate merger is carried out, a dissenting shareholder who sought to enjoin the merger
may still pursue a claim for rescission and/or monetary damages on the grounds of fraud or unlawfulness. The dissenting
shareholder may also assert and preserve his or her appraisal rights in conjunction with challenging the merger. NRS 92A.380(2).
11. Corporations.
Dissenting shareholders who challenge validity of corporate merger may forfeit their appraisal remedies if they fail to comply
with the time lines for exercising their dissenters' rights. Failure to comply with the notice and procedure statutes deprives
dissenting stockholders of their appraisal remedy. NRS 92A.300-92A.500.
12. Corporations.
Exclusive remedy provision, generally prohibiting shareholders who are statutorily entitled to dissent and receive appraisal
remedy from challenging a corporate merger, did not prohibit former minority shareholder from challenging merger based upon
fraud or unlawful conduct in the merger process, and former shareholder could seek monetary damages including the difference
between the merger price and fair value of the shares. NRS 92A.380(2).
13. Corporations.
Once shareholders prove that a corporate merger was wrongfully accomplished, they are not limited to injunctive relief or
rescission, but may also receive compensatory and punitive damages, including the ability to litigate the value of the merged
corporation's stock. NRS 92A.380(2).
14. Corporations.
An action to invalidate a corporate merger is equitable in nature and subject to equitable defenses. NRS 92A.380(2).
15. Corporations.
Shareholders who vote in favor of a corporate merger generally have no standing to contest the validity of the merger; thus,
only a dissenting shareholder is usually permitted to maintain an action challenging the merger process. NRS 92A.380(2).
16. Corporations.
A dissenting shareholder generally loses the right to challenge a corporate merger's validity if he or she tenders the stock and
receives the merger price before initiating a suit disputing the validity of the merger. NRS 92A.380(2).
17. Corporations.
Misinformed shareholders retain their right to challenge a corporate merger regardless of their vote on the merger and a tender
of their shares. NRS 92A.380(2).
18. Corporations.
Doctrine of estoppel bars shareholders who vote for a corporate merger from later attempting to challenge the validity of the
merger. NRS 92A.380(2).
19. Corporations.
Doctrine of acquiescence bars challenges to a corporate merger by shareholders who are fully aware of a breach of duty that
affects the merger's validity, but choose not to pursue an action to enjoin the merger or for monetary damages if the merger has
already been completed. Instead, the shareholders either tendered their shares and accepted the merger price or exercised their
dissenters' right to an independent appraisal. NRS 92A.380(2).
20. Corporations.
The general rule that a shareholder who votes for a corporate merger or tenders his shares of stock lacks standing to later
challenge the merger does not apply when the unlawful or wrongful conduct affecting the merger's validity was unknown to the
shareholders until after they approved the merger and/or tendered their shares of stock. In such cases, the former shareholders may
still bring a cause of action for damages resulting from an invalid merger. NRS 92A.380(2).
21. Corporations.
In challenging a corporate merger after tendering their stock, former shareholders cannot simply seek more money for their
stock, but instead must assert and prove in an equitable action that the merger was improper. If this is proven, then they are
entitled to any monetary damages they are able to prove were proximately caused by the improper merger. NRS 92A.380(2).
22. Corporations.
In shareholders' action challenging validity of corporate merger, damages are not limited to the surviving corporation.
Damages may also be levied against the individuals whose wrongful conduct led to the approval of the merger or the unfair stock
evaluation. NRS 92A.380(2).
23. Corporations.
In post-merger challenges by shareholders who vote for a corporate merger or who tender their shares, the shareholder bears
the initial burden of proving facts that would support a finding that the merger was accomplished through unlawful means or
wrongful conduct. NRS 92A.380(2).
24. Corporations.
In post-merger challenges by shareholders who vote for a corporate merger or who tender their shares, once the shareholder
meets the threshold requirement of proving facts that would support a finding that the merger was accomplished through
unlawful means or wrongful conduct, the burden shifts to the defendants to prove that the doctrines of
acquiescence or estoppel apply;
merger was accomplished through unlawful means or wrongful conduct, the burden shifts to the defendants to prove that the
doctrines of acquiescence or estoppel apply; that is, the defendants must prove that the shareholder voted for the merger or
tendered his or her shares with full knowledge of the wrongful acts. NRS 92A.380(2).
25. Corporations.
For corporate directors to breach duty of candor and disclosure in merger process, omitted information or misrepresentation
must be material in nature. Information is considered material if there is a substantial likelihood that a reasonable shareholder
would consider it important in deciding how to vote on the proposed merger.
26. Corporations.
For acquiescence or other equitable defenses to apply to shareholders' action challenging corporate merger, shareholders must
be aware of all the alleged wrongdoing, misrepresentation, or omitted information alleged in support of the merger challenge at the
time they vote, approve the merger, or tender their shares. Shareholders who possess only some knowledge of wrongdoing before
approving the merger or tendering their shares are not barred by the doctrine of acquiescence. NRS 92A.380(2).
27. Corporations.
A derivative claim is one brought by a shareholder on behalf of the corporation to recover for harm done to the corporation.
28. Corporations.
Because a derivative claim is brought on behalf of the corporation, a former shareholder does not have standing to assert a
derivative claim. However, a former shareholder does have standing to seek relief for direct injuries that are independent of any
injury suffered by the corporation.
29. Corporations.
Former shareholder's claim, alleging that officers, directors, or majority shareholders mismanaged corporation's race book
resulting in lost profits over a period of years, was derivative in nature, and thus former shareholder lacked standing to maintain
such claim; claim alleged harm to the corporation, shared by all shareholders and not related to an individual shareholder.
30. Corporations.
Former shareholder's allegations that company, before acquiring corporation through merger, had used agents or subsidiaries
to acquire corporation's bonds and land so as to avoid generating increases in corporation's stock and to impair the corporation's
ability to expand, and that price paid for fairness opinion regarding value of corporation's stock and merger price was excessive,
were derivative in nature, and thus former shareholder lacked standing to assert breach of fiduciary duty or duty of loyalty claims
based on those allegations.
31. Pleading.
Trial court abused its discretion, in former shareholder's action alleging wrongful conduct on part of directors and other parties
involved in a corporate merger, in refusing to allow former shareholder to amend complaint to clarify that he was seeking
rescission of the merger and/or monetary damages based upon invalidity of the merger, where complaint contained allegations
supporting claim for rescission or monetary damages caused by invalid merger, former shareholder had offered to amend
complaint at early stage of the proceedings, defendant was already on notice of facts giving rise to potential claim, and there was
no evidence of bad faith or dilatory motive. NRS 92A.380(2).
32. Pretrial Procedure.
When considering a motion to dismiss for failure to state a claim, a district court must construe the complaint liberally and
draw every fair inference in favor of the plaintiff. NRCP 12(b)(5).
A complaint should not be dismissed for failure to state a claim unless it appears to a certainty that the plaintiff could prove no
set of facts that would entitle him or her to relief. NRCP 12(b)(5).
When a complaint can be amended to state a claim for relief, leave to amend, rather than dismissal, is the preferred remedy.
NRCP 12(b)(5).
35. Pleading.
Leave to amend a complaint should be freely given when justice requires, and a request to amend should not be denied simply
because it was made in open court rather than by formal motion.
Before Shearing, Rose and Becker, JJ.
OPINION
By the Court, Becker, J.:
The district court dismissed a former shareholder's class action complaint alleging
wrongful conduct on the part of the directors and other parties involved in a corporate merger.
1
The shareholder appeals, asserting he has standing, individually and on behalf of the class,
to bring a suit for monetary damages when wrongful conduct results in an improper merger.
Respondents, the directors and other parties involved in the merger, argue that the dismissal
was appropriate because the complaint does not seek damages arising from a wrongful
merger. Instead, they maintain the complaint seeks to untimely increase the valuation of the
merged corporation's shares in violation of the dissenters' rights provisions of NRS
92A.30092A.500
2
or that the complaint is barred by the affirmative defense of
acquiescence. Respondents also assert that the complaint seeks damages for harm to the
corporation, derivative claims that cannot be brought by former shareholders.
We conclude that some of the allegations and causes of action seek damages for lost
profits, usurpation of corporate opportunities, or mismanagement of the corporation, and that
these claims were properly dismissed as derivative claims.
__________

1
The caption below and on appeal reflects that Harvey Cohen is suing only in his individual capacity.
However, the complaint states that Cohen is also the representative for a class action by former shareholders of
the Boardwalk Casino. We are unable to determine from the record if the class was ever certified.

2
The 1997 versions of the statutes apply to the facts of this case. Various amendments were made to the
dissenters' rights provisions of NRS Chapter 92A in the 1999 and 2001 legislative sessions. These amendments
do not affect our analysis.
were properly dismissed as derivative claims. However, the remaining allegations involve
wrongful conduct in approving the merger and/or valuing the merged corporation's shares.
These are not derivative claims. Moreover, the exclusive remedy provision of NRS 92A.380
does not bar such claims. NRS 92A.380 does not apply when fraudulent or unlawful conduct
relating to the approval of a merger is alleged. Finally, although we recognize the doctrine of
acquiescence may bar claims arising from wrongful conduct in the approval of a merger, only
in very rare circumstances will the doctrine be applied to dismiss a complaint pursuant to a
Rule 12(b) motion to dismiss. Such circumstances do not exist in this case.
Because Nevada is a notice pleading state, the district court should have granted the
shareholder's oral request to amend the complaint, clarifying that the shareholder was seeking
damages as a result of an improper merger rather than merely contesting the value of the
acquisition price after the statutory time frames expired. Therefore, we affirm in part and
reverse in part the district court's order and remand this matter for further proceedings
consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Appellant Harvey Cohen was a minority shareholder in the Boardwalk, a small, publicly
held casino on Las Vegas Boulevard, The Strip. The Boardwalk had 1,200 feet of Strip
frontage located between the Bellagio and the Monte Carlo, large casinos in which the Mirage
Resorts had an interest.
3
Mirage also owned twenty-three acres of land adjacent to the
Boardwalk.
Mirage wished to acquire the Boardwalk as well as three parcels of land surrounding the
Boardwalk. The three parcels were either owned by entities connected with the Boardwalk's
majority shareholders and directors or were subject to options to purchase in favor of the
Boardwalk. Mirage sought to negate the Boardwalk's options and acquire the adjacent
properties for purposes of expansion.
Mirage made an offer to acquire the Boardwalk's shares through a merger with a Mirage
subsidiary, Acquisition. Prior to or contemporaneous with the merger, Mirage acquired the
surrounding parcels.
On May 27, 1998, the Boardwalk convened a special shareholder meeting to consider the
offer. A majority of the shareholders approved the merger. The merger was consummated on
June 30, 199S.
__________

3
Several different Mirage Resorts subsidiaries or affiliated entities were involved in transactions referred to in
the complaint. For purposes of this opinion, all Mirage Resorts affiliated entities or subsidiaries are simply
referred to as Mirage.
June 30, 1998. Cohen and other members of the class tendered their shares without
challenging the merger's validity or claiming dissenters' rights pursuant to NRS
92A.38092A.500, setting forth the procedures for challenging the valuation of shares in a
merger.
On September 28, 1999, Cohen filed suit for damages, alleging breach of fiduciary duty
and/or loyalty by the Boardwalk's majority shareholders, board of directors and financial
advisors, as well as tortious interference claims against Mirage and Acquisition. Cohen
asserts Mirage conspired with the Boardwalk's majority shareholders and directors to
purchase the Boardwalk at an artificially low price by offering special transactions to majority
shareholders and/or members of the Boardwalk's board of directors. Cohen claims that
Mirage bought land or rights owned or controlled by majority shareholders or directors in
properties around or involving the Boardwalk at inflated prices. Cohen contends that these
shareholders and directors then agreed to approve or recommend the merger for an amount
per share that was less than the fair value of the Boardwalk's stock. Finally, Cohen asserts that
the directors mismanaged the Boardwalk, causing decreased profits, and that they or majority
shareholders usurped corporate opportunities.
The remaining allegations involve the company that rendered a fairness opinion to the
Boardwalk's stockholders regarding the value of Boardwalk's stock and the merger price.
Cohen alleges that a former Boardwalk director controlled the company and that the
ex-director received special incentives to prepare an inaccurate opinion.
Respondents moved to dismiss for failure to state a claim upon which relief could be
granted, denying any wrongdoing. Respondents argued that, even assuming the truth of the
allegations, Cohen had no standing to sue for breach of fiduciary duty because he failed to
exercise his statutory rights to dissent to the merger and tendered his shares pursuant to the
merger. Respondents further asserted that the provisions of NRS 92A.30092A.500 are the
exclusive method for a dissenting shareholder to challenge the value of a merged
corporation's stock, and that Cohen and the class shareholders were barred from challenging
the value of the stock because they failed to exercise their statutory right to dissent.
Respondents also contended that because Cohen and the class were no longer shareholders,
they could not bring derivative claims for lost profits and usurpation of corporate
opportunities.
Cohen responded by acknowledging that an ex-shareholder cannot bring derivative claims
and that a shareholder who wanted to challenge the price set for acquiring a corporation's
stock in a merger was limited to the time lines and valuation proceedings set forth in NRS
92A.30092A.500. Cohen contended, however, that the complaint asserted that the merger
was approved unlawfully or as a result of wrongful conduct and therefore the time frames
set forth for an appraisal proceeding did not apply.
the complaint asserted that the merger was approved unlawfully or as a result of wrongful
conduct and therefore the time frames set forth for an appraisal proceeding did not apply.
Thus, he should be permitted individually, and as a representative of the class, to establish
that the merger was approved as a result of wrongful conduct on the part of the directors or
majority shareholders.
Cohen claimed that if the merger was accomplished through wrongful conduct, then he
had the right to seek monetary damages, including any difference in value between the merger
price and the fair value of his stock. Because he was seeking monetary damages arising from
an allegedly invalid merger, Cohen contended the claims were individual and not derivative
in nature and the motion to dismiss should be denied. Cohen also indicated that if the court
found the complaint confusing, he would gladly amend it to clarify his position.
In reply, respondents alleged that the complaint did not state a cause of action for damages
relating to an invalid merger. Respondents contended that the complaint was simply a thinly
disguised method of attacking the value of the Boardwalk's shares in violation of NRS
92A.440(3).
4
Respondents also asserted that Cohen knew about all of the alleged
wrongdoing before tendering his shares. Respondents argued that when a shareholder tenders
his shares with full knowledge of facts that would justify challenging the validity of the
merger, he or she acquiesces in the merger and is barred under the doctrine of acquiescence
from later challenging the merger. Therefore, according to respondents, Cohen was barred
from seeking monetary damages over a year after he tendered his shares with full knowledge
of any irregularities.
Although matters outside the complaint were attached to or addressed in the pleadings, the
district court declined to convert the motion to one for summary judgment. The district court
granted respondents' motion to dismiss, finding that all of Cohen's claims were derivative in
nature and that Cohen and other ex-shareholders lacked standing to assert the claims. Cohen
then filed this appeal.
DISCUSSION
This case involves the rights of dissenting shareholders to challenge the validity of
corporate mergers, issues of first impression in the State of Nevada. Under Nevada law, a
corporate merger must be approved by a majority of the corporation's shareholders.
5

__________

4
NRS 92A.440(3) provides that:
The stockholder who does not demand payment or deposit his certificates where required, each by the
date set forth in the dissenter's notice, is not entitled to payment for his shares under this chapter.

5
NRS 92A.120(5) (majority necessary unless statute or corporate documents require otherwise).
The existing shareholders then substitute their stock ownership in the old corporation for
stock ownership in the new merged corporation.
6
Shareholders who oppose the merger are
not forced to become stockholders in the new corporation. Instead, the statutes give such
shareholders three choices: (1) accept the terms of the merger and exchange their existing
shares for new shares; (2) dissent from the merger, compelling the merged corporation to
purchase their shares pursuant to a judicial appraisal proceeding; and/or (3) challenge the
validity of the merger based on unlawful or wrongful conduct committed during the merger
process.
7
The procedures that govern dissenters' rights are set forth in NRS
92A.30092A.500.
[Headnote 1]
The provisions of NRS 92A.30092A.500 were added to Nevada's statutes by the 1995
Legislature.
8
They are patterned after, or are identical to, the provisions of the 1984 Model
Business Corporation Act (Model Act).
9
In turn, the Model Act is based upon case law
from Delaware and New York.
10
The Model Act and Nevada's statutes are designed to
facilitate business mergers, while protecting minority shareholders from being unfairly
impacted by the majority shareholders' decision to approve a merger.
11

At common law, merger approval required the unanimous vote of the shareholders.
12
Before the enactment of dissenters' rights statutes, minority shareholders might block a
merger simply because they disagreed with the majority's view that the merger was
advisable.
__________

6
NRS 92A.250(1)(f).

7
See Alabama By-Products v. Cede & Co., 657 A.2d 254 (Del. 1995).

8
Some of the provisions of Chapter 92A were previously part of Chapter 78. In 1995, the Legislature shifted
dissenters' rights language from other parts of the Nevada Revised Statutes and incorporated them into Chapter
92A for ease of reference. The Legislature also added new provisions to bring Nevada more in line with the
Model Business Corporation Act.

9
See Hearing on A.B. 655 Before the Joint Senate and Assembly Comms. on Judiciary, 66th Leg. (Nev., May
7, 1991); Keith Paul Bishop, Nevada Law of Corporations & Business Organizations 13.1 (1998).

10
Model Bus. Corp. Act Ann. 13.02 cmt. at 13-16, 13-17 (3d ed. Supp. 1996). Because the Legislature
relied upon the Model Act and the Model Act relies heavily on New York and Delaware case law, we look to the
Model Act and the law of those states in interpreting the Nevada statutes. See Craigo v. Circus-Circus
Enterprises, 106 Nev. 1, 3, 786 P.2d 22, 23 (1990) (noting rule of statutory interpretation that when a statute is
derived from a sister state, it is presumedly adopted with the construction given it by the highest court of the
sister state).

11
See Hearing on A.B. 655 Before the Joint Senate and Assembly Comms. on Judiciary, 66th Leg. (Nev.,
May 7, 1991); Bishop, supra note 9, 13.1.

12
Alabama By-Products, 657 A.2d at 258; see also Steinberg v. Amplica, Inc., 729 P.2d 683, 687 (Cal.
1986); Schloss Associates v. C & O Ry., 536 A.2d 147, 152 (Md. Ct. Spec. App. 1988); In re Jones & Laughlin
Steel Corp., 398 A.2d 186, 191 (Pa. 1979).
statutes, minority shareholders might block a merger simply because they disagreed with the
majority's view that the merger was advisable.
13
Dissenters' rights statutes do away with the
common-law need for unanimous consent to the merger.
14
Mergers are approved by a
majority vote of the shareholders, and the Model Act limits the ability of minority
shareholders to challenge a merger. Under the Model Act, minority shareholders are no
longer able to enjoin a merger simply because they disagree with the majority's decision.
15
Instead, minority shareholders are limited to dissenting to the merger and seeking an
independent evaluation of the fair value of their stock.
16

[Headnotes 2, 3]
However, the states and the Model Act also recognize two circumstances when minority
shareholders should be able to challenge the merger process.
17
A merger may be challenged
if it is unlawful, that is, procedurally deficient. For example, it may have been approved in a
manner inconsistent with the articles of incorporation or there may have been irregularities in
the voting process.
18
In addition, minority shareholders may seek to stop a merger if fraud or
material misrepresentation affected the shareholder vote on the merger; that is, the
shareholders approved the merger based upon materially incorrect information.
19
Under
either theory, minority shareholders may bring suit to enjoin or rescind the merger or to
recover monetary damages attributable to the loss of their shareholder interest caused by an
invalid merger. They may also allege that the merger was accomplished through the wrongful
conduct of majority shareholders, directors, or officers of the corporation and attempt to hold
those individuals liable for monetary damages under theories of breach of fiduciary duty or
loyalty.
20

[Headnote 4]
Challenges to the validity of a merger based on fraud usually encompass either or both of
the following: (1) lack of fair dealing or (2) lack of fair price.
21
Both involve corporate
directors' general duties to make independent, fully informed decisions when recommending
a merger and to fully disclose material information to the shareholders before a vote is
taken on a proposed merger.
__________

13
See Alabama By-Products, 657 A.2d at 258.

14
Id.; see also Steinberg, 729 P.2d at 687; Schloss Associates, 536 A.2d at 152; In re Jones & Laughlin, 398
A.2d at 191.

15
Model Bus. Corp. Act Ann. 13.02 cmt. at 13-16 (3d ed. Supp. 1996).

16
Id. at 13-16 (3d ed. Supp. 1998-99).

17
Id. at 13-16 to 13-17 (3d ed. Supp. 1998-99).

18
Id.

19
See 15 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations 7160
(perm. ed., rev. vol. 1999).

20
Parnes v. Bally Entertainment Corp., 722 A.2d 1243, 1245 (Del. 1999).

21
Id.
ommending a merger and to fully disclose material information to the shareholders before a
vote is taken on a proposed merger.
22
They also can involve allegations that majority
shareholders breached their limited fiduciary duties to minority shareholders.
23

[Headnote 5]
Lack of fair dealing involves allegations that the board of directors did not make an
independent, informed decision to recommend approval of the merger,
24
or that the majority
shareholders approved the merger at the expense of the minority shareholders.
25
Cases
involving fair dealing frequently contain claims that directors, officers, or majority
shareholders had conflicts of interest or were improperly compensated or influenced in return
for their approval of the merger and that the shareholders lacked material information
regarding the merger when they voted for it.
26
These cases also frequently involve the timing
of the merger, merger negotiations, how the merger was structured, and the approval process.
27

[Headnote 6]
Lack of fair price may involve similar allegations plus claims that the price per share was
deliberately undervalued, but it can also include negligent conduct.
28
For example, the
directors may have hired incompetent or inexperienced persons to determine if the merger
price was fair or to evaluate the fair value of the corporation's stock.
29

Statutes that limit a minority shareholder's right of dissent to an appraisal proceeding are
known as exclusivity provisions.
30
Most states have some type of exclusivity provision in
their corporate law.
31
Like Nevada's provisions, they provide that, absent unlawful
procedures or fraud, a minority shareholder has only two options when confronted with a
merger. The minority shareholder may dissent from the merger and seek an independent
valuation or tender his or her shares and accept the merger price for the stock.
32

__________

22
Weinberger v. UOP, Inc., 457 A.2d 701, 710-11 (Del. 1983).

23
Id.

24
Id. at 711.

25
Alpert v. 28 Williams St. Corp., 483 N.Y.S.2d 667, 674-75 (Ct. App. 1984).

26
Weinberger, 457 A.2d at 711-12.

27
Id. at 711.

28
Id.

29
Id. at 711-12.

30
15 Fletcher, supra note 19, 7160.

31
Stringer v. Car Data Systems, Inc., 841 P.2d 1183, 1184 (Or. 1992).

32
Columbus Mills, Inc. v. Kahn, 377 S.E.2d 153, 154 (Ga. 1989); Johnson v. Baldwin, 69 S.E.2d 585, 591
(S.C. 1952).
Nevada's exclusivity provision is contained in NRS 92A.380, which provides:
1. Except as otherwise provided in NRS 92A.370 and 92A.390, a stockholder is
entitled to dissent from, and obtain payment of the fair value of his shares in the event
of any of the following corporate actions:
(a) Consummation of a plan of merger to which the domestic corporation is a
constituent party:
(1) If approval by the stockholders is required for the merger by NRS 92A.120 to
92A.160, inclusive, or the articles of incorporation and he is entitled to vote on the
merger; or
(2) If the domestic corporation is a subsidiary and is merged with its parent under
NRS 92A.180.
(b) Consummation of a plan of exchange to which the domestic corporation is a
party as the corporation whose subject owner's interests will be acquired, if he is
entitled to vote on the plan.
(c) Any corporate action taken pursuant to a vote of the stockholders to the event
that the articles of incorporation, bylaws or a resolution of the board of directors
provides that voting or nonvoting stockholders are entitled to dissent and obtain
payment for their shares.
2. A stockholder who is entitled to dissent and obtain payment under NRS 92A.300
to 92A.500, inclusive, may not challenge the corporate action creating his entitlement
unless the action is unlawful or fraudulent with respect to him or the domestic
corporation.
33

[Headnotes 7, 8]
A dissenting shareholder who wishes to attack the validity of the merger or seek monetary
damages based upon improper actions during the merger process must allege wrongful
conduct that goes to the approval of the merger.
34
Our conclusion is supported by case law
from other jurisdictions. Shareholders are limited to appraisal-type actions unless they allege
wrongful conduct or procedures in the approval process.
35
In addition, the term fraudulent,"
as used in the Model Act, has not been limited to the elements of common-law fraud; it
encompasses a variety of acts involving breach of fiduciary duties imposed upon
corporate officers, directors, or majority shareholders.
__________

33
See 1995 Nev. Stat., ch. 586, 44, at 2087.

34

35
See, e.g., Mullen v. Academy Life Ins. Co., 705 F.2d 971, 974 (8th Cir. 1983) (interpreting New Jersey
law); Twenty Seven Trust v. Realty Growth Investors, 533 F. Supp. 1028, 1036 (D. Md. 1982); Cede & Co. v.
Technicolor, Inc., 542 A.2d 1182, 1187-88 (Del. 1988); Yeager v. Paul Semonin Co., 691 S.W.2d 227, 228 (Ky.
Ct. App. 1985); Schloss Associates v. C & O Ry., 536 A.2d 147, 153 (Md. Ct. Spec. App. 1988); Sifferle v.
Micom Corp., 384 N.W.2d 503, 510 (Minn. Ct. App. 1986); Alpert, 483 N.Y.S.2d at 673; State ex rel. The Ohio
Co. v. Maschari, 553 N.E.2d 1356, 1358-59 (Ohio 1990).
lent, as used in the Model Act, has not been limited to the elements of common-law fraud; it
encompasses a variety of acts involving breach of fiduciary duties imposed upon corporate
officers, directors, or majority shareholders.
36
We conclude that the term fraudulent as
used in NRS 92A.380(2) has a similar scope.
[Headnotes 9, 10]
Claims challenging the validity of a merger should be asserted before the completion of
the merger.
37
This is accomplished by bringing an action to enjoin the merger.
38
If
injunctive relief is denied and the merger is carried out, a dissenting shareholder may still
pursue a claim for rescission and/or monetary damages on the grounds of fraud or
unlawfulness. The dissenting shareholder may also assert and preserve his or her appraisal
rights in conjunction with challenging the merger.
39

[Headnote 11]
Finally, dissenting shareholders may forfeit even their appraisal remedies if they fail to
comply with the time lines for exercising their dissenters' rights.
40
Failure to comply with the
notice and procedure statutes deprives dissenting stockholders of their appraisal remedy.
41

[Headnote 12]
Cohen concedes that he and the other class members failed to exercise their dissenters'
rights under the statutes. Therefore, they are not entitled to maintain a court action based
solely on a theory that the price paid for their shares pursuant to the merger was less than the
fair value of the shares. Cohen argues, however, that he is still entitled to seek damages if the
merger was based upon fraud or misrepresentation. If he is successful in proving that the
merger was the result of wrongful conduct, his monetary damages may include the difference,
if any, between the merger price and the fair value of the shares. Cohen asserts that the time
line for seeking the appraisal remedy does not apply to claims for monetary damages arising
from an improper merger. We agree.
[Headnote 13]
Although NRS 92A.380(2) refers to bringing a challenge to the corporate action giving
rise to the shareholder's right to dissent (i.e., the merger), case law suggests that shareholders'
remedies in such a challenge are not limited to injunctions or rescission.
__________

36
Sifferle, 384 N.W.2d at 507; Stringer, 841 P.2d at 1192-93.

37
See Cede, 542 A.2d at 1191.

38
See id. at 1190-91.

39
Id.; see 15 Fletcher, supra note 19, 7160.

40
NRS 92A.420(2); Columbus Mills, 377 S.E.2d at 154; Kohler Co. v. Sogen Intern. Fund, Inc., 608 N.W.2d
746, 751 (Wis. Ct. App. 2000).

41
Columbus Mills, 377 S.E.2d at 154; NRS 92A.440(3).
such a challenge are not limited to injunctions or rescission.
42
Once shareholders prove that
the merger was wrongfully accomplished, they may also receive compensatory and punitive
damages, including the ability to litigate the value of the merged corporation's stock.
43
Thus,
the mere fact that Cohen's complaint alleges that his stock was worth more than the amount
he received under the merger does not constitute grounds for dismissing it under NRS
92A.380(2) so long as the complaint also contains allegations that the merger was approved
through unlawful or fraudulent conduct.
44

[Headnote 14]
However, respondents contend that even if the complaint challenges the validity of the
merger, the district court did not err in dismissing the complaint because it is barred by the
doctrine of acquiescence, an affirmative defense akin to estoppel and waiver.
45

I. Doctrine of acquiescence
[Headnotes 15-17]
Shareholders who vote in favor of the merger generally have no standing to contest the
validity of the merger.
46
Thus, only a dissenting shareholder is usually permitted to maintain
an action challenging the merger process. In addition, even a dissenting shareholder generally
loses the right to challenge a merger's validity if he or she tenders the stock and receives the
merger price before initiating a suit disputing the validity of the merger.
47

__________

42
Cede, 542 A.2d at 1191.

43
Id.

44
Model Bus. Corp. Act Ann. 13.02 cmt. at 13-6 (3d ed. Supp. 1998-99); Weinberger, 457 A.2d at 703;
Coggins v. New England Patriots Football Club, 492 N.E.2d 1112, 1116-17 (Mass. 1986); Werner v.
Alexander, 502 S.E.2d 897, 900-02 (N.C. Ct. App. 1998); American Network Group, Inc. v. Kostyk, 834 S.W.2d
296, 299 (Tenn. Ct. App. 1991); Hoggett v. Brown, 971 S.W.2d 472, 482 (Tex. App. 1997).

45
15 Fletcher, supra note 19, 7161; Kahn v. Household Acquisition Corp., 591 A.2d 166, 176 (Del. 1991).
The dissent urges us to reject the doctrine of acquiescence because Nevada, unlike Delaware, has eliminated the
distinction between law and equity. While it is true we do not maintain separate courts of law and equity, we
apply equitable doctrines such as estoppel and waiver as a bar to recovery. In addition, the dissent fails to
consider that an action to invalidate a merger is equitable in nature and subject to equitable defenses. See Cede,
541 A.2d at 1190; Nagy v. Bistricer, 770 A.2d 43, 50 (Del. Ch. 2000); Alpert, 483 N.Y.S.2d at 673; Breed v.
Barton, 444 N.Y.S.2d 609, 611 (1981); Bayberry Associates v. Jones, 783 S.W.2d 553, 561-62 (Tenn. 1990);
Matteson v. Ziebarth, 242 P.2d 1025, 1032 (Wash. 1952).

46
Kahn, 591 A.2d at 176; Casey v. Brennan, 780 A.2d 553, 573-76 (N.J. Super. Ct. App. Div. 2001).

47
Bershad v. Curtiss-Wright Corp., 535 A.2d 840, 848 (Del. 1987); Schmid v. Clarke, Inc., 515 N.W.2d 665
(Neb. 1994); Vierling v. West Chemical Products, Inc., 533 N.Y.S.2d 328 (App. Div. 1988); Trounstine v.
Remington Rand, Inc., 194 A. 95, 99 (Del. Ch. 1937).
However, these general rules assume that the shareholders were properly informed about the
merger process and the methodology used to arrive at a merger price. Misinformed
shareholders retain their right to challenge the merger regardless of their vote on the merger
and a tender of their shares.
48

Shareholders who vote for, or surrender their shares and accept the merger price, with full
knowledge of wrongful conduct or reasons to challenge the validity of a merger are said to
have acquiesced in the merger and may not thereafter challenge the merger.
49
Former
shareholders may also be barred through the application of estoppel doctrines.
50
These
concepts are based on a desire to promote the finality of mergers and encourage shareholders
to take prompt action when they seek to invalidate a merger based on wrongful or unlawful
conduct.
51

The need for such actions to be brought in a prompt fashion is obvious. Corporations make
myriad decisions in reliance upon shareholder approval of a merger. Delays in challenging the
validity of the merger can work a great detriment to both corporations involved in the merger
process and ultimately to the shareholders of the corporations.
[Headnotes 18, 19]
For these reasons, courts have applied the doctrines of acquiescence and estoppel to bar
challenges to mergers.
52
Estoppel is the doctrine that applies to shareholders who vote for a
merger and then later attempt to challenge the validity of the merger.
53
Acquiescence applies
to shareholders who are fully aware of a breach of duty that affects the merger's validity, but
choose not to pursue an action to enjoin the merger or for monetary damages if the merger
has already been completed. Instead, the shareholders either tendered their shares and
accepted the merger price or exercised their dissenters' right to an independent appraisal.
54

[Headnote 20]
Under the general rule set forth in Bershad v. Curtiss-Wright Corp.,
55
Cohen lacks
standing to challenge the Boardwalk merger more than a year after he tendered his shares
of stock.
__________

48
Clements v. Rogers, 790 A.2d 1222, 1236-38 (Del. Ch. 2001); Turner v. Bernstein, 776 A.2d 530, 548
(Del. Ch. 2000); Cede, 542 A.2d at 1188; Casey, 780 A.2d at 574-75; Matteson, 242 P.2d at 1033.

49

50
Id.

51
Kahn, 591 A.2d at 176-77; Casey, 780 A.2d at 573-75; Good, et al. v. Lackawanna Leather Co., et al., 233
A.2d 201, 212 (N.J. Super. Ct. Ch. Div. 1967); Windhurst v. Central Leather Co., 138 A. 772, 774-76 (N.J. Ch.
1927).

52
Kahn, 591 A.2d at 176.

53
Id.

54
Id. at 177; Trounstine, 194 A. at 99.

55
535 A.2d at 848.
more than a year after he tendered his shares of stock. However, as noted in Cede & Co. v.
Technicolor, Inc.,
56
the general doctrine does not apply when the unlawful or wrongful
conduct affecting the merger's validity was unknown to the stockholders until after they
approved the merger and/or tendered their shares of stock. In such cases, the former
shareholders may still bring a cause of action for damages resulting from an invalid merger.
57
Bershad only applies to informed shareholders.
58

[Headnotes 21, 22]
Former shareholders, however, cannot simply seek more money for their stock. They must
assert and prove in an equitable action that the merger was improper.
59
If this is proven, then
they are entitled to any monetary damages they are able to prove were proximately caused by
the improper merger.
60
Moreover, damages are not limited to the surviving corporation.
They may also be levied against the individuals whose wrongful conduct led to the approval
of the merger or the unfair stock evaluation.
61

[Headnotes 23, 24]
In applying these standards, courts have constructed a framework for analyzing
post-merger challenges by shareholders who vote for the merger or who tender their shares.
The shareholder bears the initial burden of proving facts that would support a finding that the
merger was accomplished through unlawful means or wrongful conduct.
62
Once the
shareholder meets the threshold requirement, the burden shifts to the defendants to prove that
the doctrines of acquiescence or estoppel apply.
63
That is, the defendants must prove that the
shareholder voted for the merger or tendered his or her shares with full knowledge of the
wrongful acts.
64

What constitutes full knowledge is left to a case-by-case analysis. Mergers accomplished
through arm's-length negotiations with independent majority shareholders or directors require
less judicial scrutiny than mergers where corporations have common directors or majority
shareholders or where the majority shareholders or directors have conflicts of interest.
__________

56
542 A.2d 1182, 1188-89 (Del. 1988).

57
Id.

58
Turner, 776 A.2d at 548; Casey, 780 A.2d at 574.

59
Cede, 542 A.2d at 1191.

60
Id. at 1186-87.

61
Id. at 1189.

62
Weinberger v. UOP, Inc., 457 A.2d 701, 703 (Del. 1983); Alpert v. 28 Williams St. Corp., 483 N.Y.S.2d
667, 675 (Ct. App. 1984).

63
Weinberger, 457 A.2d at 703.

64
Turner, 776 A.2d at 548; Casey, 780 A.2d at 574-75.
ers or directors have conflicts of interest.
65
This application of higher scrutiny arises from the
duty of candor and disclosure that is imposed upon directors (and, where a conflict of interest
exists, majority shareholders) in the merger process.
66

[Headnote 25]
The omitted information or misrepresentation must be material in nature. Information is
considered material if there is a substantial likelihood that a reasonable shareholder would
consider it important in deciding how to vote on the proposed merger.
67

[Headnote 26]
Finally, for acquiescence or other equitable defenses to apply, shareholders must be aware
of all the alleged wrongdoing, misrepresentation, or omitted information alleged in support of
the merger challenge at the time they vote, approve the merger, or tender their shares.
Shareholders who possess only some knowledge of wrongdoing before approving the merger
or tendering their shares are not barred by the doctrine of acquiescence.
68

Respondents contend that, on the face of the complaint, Cohen knew of the alleged
wrongful conduct at the time of the special shareholders' meeting, and he raised questions
about these issues. Respondents assert that Cohen therefore falls within the Bershad rule, and
the doctrine of acquiescence bars his claim. Although there are statements in the complaint
indicating Cohen had some knowledge of the alleged unlawful or wrongful conduct before
tendering his shares, the statements are insufficient to determine that Cohen tendered his
shares with full knowledge of improper conduct.
69
Therefore, the complaint cannot be
dismissed on a Rule 12(b) motion. We now turn to the alternative ground for dismissalthe
finding that the complaint contained only derivative claims that cannot be instituted by a
former shareholder.
__________

65
15 Fletcher, supra note 19, 7160.50; Sifferle v. Micom Corp., 384 N.W.2d 503, 507 (Minn. Ct. App.
1986); Alpert, 483 N.Y.S.2d at 674-75.

66
Alpert, 483 N.Y.S.2d at 675.

67
Bershad, 535 A.2d at 846 (internal quotation marks and citations omitted).

68
Casey, 780 A.2d at 574-75; Clements, 790 A.2d at 1236-38; Turner, 776 A.2d at 548.

69
We recognize that attachments to the motion to dismiss and arguments in the pleadings provide greater
information on Cohen's knowledge, however, such information cannot be considered in the context of a motion
to dismiss, and we take no position on this issue. It is a matter best left to the district court upon remand. We
note, however, that even if Cohen tendered his shares with full knowledge, it would still not be grounds for
dismissing the entire class action. Bershad, 535 A.2d at 848.
II. Derivative claims
[Headnotes 27, 28]
The primary reason articulated by the district court in its order dismissing the complaint
was that the claims were derivative in nature. It is true that a former shareholder has no
standing to sue for breach of fiduciary duty on a derivative claim.
70
A derivative claim is one
brought by a shareholder on behalf of the corporation to recover for harm done to the
corporation.
71
Because a derivative claim is brought on behalf of the corporation, a former
shareholder does not have standing to assert a derivative claim.
72
A former shareholder does,
however, have standing to seek relief for direct injuries that are independent of any injury
suffered by the corporation.
73

A claim brought by a dissenting shareholder that questions the validity of a merger as a
result of wrongful conduct on the part of majority shareholders or directors is properly
classified as an individual or direct claim. The shareholder has lost unique personal
propertyhis or her interest in a specific corporation.
74
Therefore, if the complaint alleges
damages resulting from an improper merger, it should not be dismissed as a derivative claim.
75
On the other hand, if it seeks damages for wrongful conduct that caused harm to the
corporation, it is derivative and should be dismissed.
76
We must therefore turn to an analysis
of the complaint.
III. Sufficiency of complaint
The complaint is composed of a number of sections. The causes of action do not set forth
claims for relief based upon factual allegations contained in the claims themselves. Rather,
each claim incorporates by reference all of the factual allegations in the complaint.
__________

70
Parnes v. Bally Entertainment Corp., 722 A.2d 1243, 1245 (Del. 1999); Alabama By-Products v. Cede &
Co., 657 A.2d 254, 264 (Del. 1995); Grace Bros., Ltd. v. Farley Industries, Inc., 450 S.E.2d 814, 816 (Ga.
1994); Cede, 542 A.2d at 1188; Gabhart v. Gabhart, 370 N.E.2d 345, 356 (Ind. 1977).

71
Nelson v. Sierra Constr. Corp., 77 Nev. 334, 341, 364 P.2d 402, 405 (1961); Kramer v. Western Pacific
Industries, 546 A.2d 348, 351 (Del. 1988).

72
See NRCP 23.1; Keever v. Jewelry Mountain Mines, 100 Nev. 576, 577, 688 P.2d 317, 317 (1984);
Kramer, 546 A.2d at 351.

73
See Parnes, 722 A.2d at 1245; Kramer, 546 A.2d at 351.

74
See Parnes, 722 A.2d at 1245; see also Smith v. Gray, 50 Nev. 56, 72-73, 250 P. 369, 375 (1926).

75
See Parnes, 722 A.2d at 1245; Coggins v. New England Patriots Football Club, 492 N.E.2d 1112, 1116
(Mass. 1986); Hoggett v. Brown, 971 S.W.2d 472, 482 (Tex. App. 1997).

76
Parnes, 722 A.2d at 1244-45.
plaint. Thus, each claim for relief is based upon the totality of the factual allegations. Because
some of the factual allegations may support an individual claim for relief, while others may
be derivative, we have focused on the factual allegations as a whole in analyzing the
sufficiency of the complaint.
Aside from general assertions describing the Boardwalk and Mirage-related facilities, the
complaint asserts two types of allegations. The first type involves actions by various parties
that allegedly impaired the Boardwalk's revenue production or expansion, while the second
involves allegations that the Boardwalk key directors, officers, or majority shareholders were
given various incentives to improperly approve a merger with Mirage.
In the first category of allegations, Cohen asserts that: (1) improper management of the
Boardwalk's race book resulted in lost profits over a period of years, (2) Mirage used agents
or subsidiaries to acquire the Boardwalk bonds and land adjacent to the Boardwalk so as to
avoid generating increases in the Boardwalk's stock and to impair the Boardwalk's ability to
expand, (3) the Boardwalk management and/or Mirage caused the Boardwalk to lose land
options or opportunities to purchase land for expansion, and (4) the price paid for the fairness
opinion was excessive.
The second category of allegations contains assertions that: (1) Mirage paid more than fair
market value for adjacent land and options to purchase land to entities owned or controlled by
the Boardwalk's directors, officers, or majority shareholders; (2) the excessive payments were
made in return for directors', officers', or majority shareholders' votes to approve the merger;
and (3) the excessive fee was paid for the fairness opinion in return for the issuance of an
opinion that would undervalue the Boardwalk's stock.
Based on these allegations, the complaint asserts four claims for relief. The first claim
alleges breach of the duty of loyalty against members of the board of directors, on grounds
that they received inducements to approve the merger at a price per share below the fair
market value of the stock. The second claim alleges breach of the duty of loyalty against the
former director whose company rendered the fairness opinion, on grounds that the opinion
was erroneous and the price for services rendered excessive. The third claim alleges breach of
fiduciary duty against the entities involved in conveying the Boardwalk's option to purchase
adjacent land to Mirage. It contains allegations that the loss of the Boardwalk's option
damaged the corporation, as well as allegations that the parties involved were overpaid for
their interests in the parcel as an inducement for their votes to approve the merger. The final
claim for relief alleges tortious interference with fiduciary duty and is directed against
Mirage and Acquisition. It seeks damages for the alleged conspiracy to acquire the
Boardwalk's stock at below-market value by entering into a series of transactions with
majority shareholders and directors designed to induce them to support the merger.
value by entering into a series of transactions with majority shareholders and directors
designed to induce them to support the merger.
Each of the claims seeks monetary damages, primarily the difference between what was
paid for the shareholders' stock and the stock's fair market value. The claims also contain
language seeking punitive damages and attorney fees. In addition, the fourth claim contains
language explaining why the shareholders have not made a demand upon the board of
directors for redress, language more appropriate to a derivative action. The last portion of the
complaint is the prayer for relief. The prayer seeks general, special, compensatory and
punitive damages, reasonable attorney fees, and any further and additional relief the court
deems just and equitable. Nowhere in the complaint does it state that the shareholders seek
to prove that the merger was invalid because it was accomplished by unlawful means or
fraudulent conduct.
Respondents argue that the complaint does not state a cause of action for rescission or
monetary damages arising from an invalid merger and that it is an untimely attempt to assert
dissenters' appraisal rights. Cohen asserts that because the factual allegations, if true, state
grounds for challenging the merger as being unlawful or fraudulent, the failure to specifically
plead rescission or the invalidity of the merger does not warrant dismissal of the complaint
because Nevada is a notice pleading state. In the alternative, Cohen contends that the district
court should have allowed him to amend the complaint to state a cause of action for damages
resulting from the loss of his shareholder's interest caused by an invalid merger. Cohen
asserts that he made an offer to clarify the complaint if the district court was inclined to view
it as a derivative action.
[Headnote 29]
Examining the amended complaint, we conclude that the allegations involving the race
book are derivative in nature. They allege that officers, directors, or majority shareholders
mismanaged the corporation resulting in a loss of revenue. This is harm to the corporation,
shared by all stockholders and not related to an individual stockholder. To the extent these
allegations were intended to state a cause of action, the district court was correct in
dismissing the allegations as derivative claims barred by lack of standing.
[Headnote 30]
We reach the same conclusion with respect to the allegations against Mirage or
Acquisition for damages to the Boardwalk as a result of their acquisition of land or bonds
through agents or subsidiaries, as well as the allegations that the price paid for the fairness
opinion was excessive. These, too, are derivative claims. Although the allegations may be
relevant to outlining Mirage's overall plan, they are unnecessary to a claim for damages
relating to an invalid merger.
overall plan, they are unnecessary to a claim for damages relating to an invalid merger.
77

[Headnote 31]
The second category of factual allegations presents a different picture. If the Mirage paid
inflated prices to obtain Boardwalk's option to purchase adjacent land, or for the land itself,
for the purpose of influencing the shareholders' or directors' merger vote, then these
allegations go to the validity of the merger. The same is true of the allegations that an
excessive fee was paid for the fairness opinion in order to obtain an opinion that undervalued
the Boardwalk's stock. These allegations are all proper to support a claim for rescission or
monetary damages caused by an invalid merger, although no such claims are specifically
pleaded.
[Headnotes 32-35]
When considering a motion to dismiss made under NRCP 12(b)(5), a district court must
construe the complaint liberally and draw every fair inference in favor of the plaintiff.
78
A
complaint should not be dismissed unless it appears to a certainty that the plaintiff could
prove no set of facts that would entitle him or her to relief.
79
Moreover, when a complaint
can be amended to state a claim for relief, leave to amend, rather than dismissal, is the
preferred remedy.
80
Leave to amend should be freely given when justice requires, and a
request to amend should not be denied simply because it was made in open court rather than
by formal motion.
81

Here, the complaint contains factual allegations that, if true, could support a challenge to
the validity of the merger. The allegations would also support a shareholder derivative
action.
__________

77
We note that evidence of the race book operations, Mirage land acquisition activity and the fairness opinion
may still be admissible in either evaluating the value of the Boardwalk's stock to determine damages as to any
claims challenging the validity of the merger or as proof of wrongful conduct in the merger process. We merely
hold they do not support separate claims for damages and must be tied to a claim that the merger was invalid. 15
Fletcher, supra note 19, 7160; Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1142-43 (Del. Super. Ct. 1989);
Coggins, 492 N.E.2d at 1116, 1120; Werner, 502 S.E.2d at 900-01; Johnson, 69 S.E.2d at 593; American
Network, 834 S.W.2d at 299; cf. HMO-W Inc. v. SSM Health Care System, 611 N.W.2d 250, 258 (Wis. 2000)
(suggesting complaints must challenge the invalidity of the merger and cannot be based solely on a dispute over
the acquisition price or improper conduct that does not go to the merger process; improper conduct unrelated to
the merger is only relevant to the extent it relates to evidence of the fair value of the merged corporation).

78
Capital Mortgage Holding v. Hahn, 101 Nev. 314, 315, 705 P.2d 126, 126 (1985).

79
Edgar v. Wagner, 101 Nev. 226, 228, 699 P.2d 110, 112 (1985).

80
See generally Zalk-Josephs Co. v. Wells Cargo, Inc., 81 Nev. 163, 169-70, 400 P.2d 621, 624-25 (1965).

81
Weiler v. Ross, 80 Nev. 380, 382, 395 P.2d 323, 324 (1964).
gations would also support a shareholder derivative action. However, because the complaint
fails to contain a claim actually seeking rescission or challenging the validity of the merger,
the complaint, as worded, sets forth derivative, not individual claims.
82
As a former
shareholder has no standing to bring breach of fiduciary duty or loyalty actions for derivative
claims, the district court was correct in finding that the complaint failed to state a claim upon
which relief may be granted.
Although we conclude that the complaint was insufficient, we must still consider whether
the dismissal was proper in light of Cohen's offer to amend the complaint. Cohen indicated to
the district court that he would amend the complaint to clear up any confusion regarding the
need to prove the invalidity of the merger before the shareholders could seek monetary
damages. Thus, the issue is not only whether the complaint failed to state a cause of action,
but also whether the district court abused its discretion by not permitting Cohen to amend the
complaint.
In this instance, the request to amend came at an early stage of the proceedings and in
response to the motion to dismiss. Mirage was already on notice of the facts that would give
rise to a potential claim for rescission or monetary damages arising from an improper merger.
There was no reason to believe the request to amend was made in bad faith or for any dilatory
motive.
83
Therefore, given the factual allegations in the complaint that would support a
claim for rescission or damages relating to the invalidity of the merger and our general policy
to decide cases upon their merits, we conclude that the district court abused its discretion in
refusing to allow the amendment and dismissing the complaint.
CONCLUSION
We conclude that the exclusive remedy provisions of NRS 92A.380(2) permit a
shareholder to challenge the validity of a merger based upon fraud or unlawful conduct in the
merger process. Actions challenging the validity of the merger must normally be taken before
the completion of the merger, whereas dissenters' rights must be exercised in conformance
with the time lines set forth in NRS 92A.30092A.500. Former shareholders who are fully
informed of the facts supporting their challenge to the merger before approving the merger or
tendering their shares for the merger price have acquiesced in the merger. They are therefore
barred from pursuing a post-merger action to invalidate the merger or seek monetary
damages arising from an improper merger.
__________

82
See Coggins, 492 N.E.2d at 1116; Werner, 502 S.E.2d at 900-01; American Network, 834 S.W.2d at 299.

83
Stephens v. Southern Nevada Music Co., 89 Nev. 104, 105-06, 507 P.2d 138, 139 (1973).
the merger or seek monetary damages arising from an improper merger.
We further conclude that the district court was correct in dismissing all of the derivative
claims in the complaint, but erred in not permitting Cohen to amend the complaint to clarify
that he was seeking rescission of the merger and/or monetary damages based upon the
invalidity of the merger.
We affirm the order to the extent that it dismissed the derivative causes of action based
upon the operation of the race book, the loss of the land options, the impairment of the
Boardwalk's expansion, and recovery of fees paid for the fairness opinion. We reverse the
order to the extent that it dismissed the allegations supporting claims for rescission, breach of
loyalty, breach of fiduciary duty, and conspiracy involving the validity of the merger,
specifically, allegations that improper incentives were paid to approve the merger at a
below-market price per share. Upon remand, the district court is instructed to permit Cohen to
amend the complaint to properly assert claims for rescission and/or monetary damages
resulting from the invalidity of the merger.
Shearing, J., concurs.
Rose, J., concurring in part and dissenting in part:
I concur with many of the majority's conclusions regarding a shareholder's dissenter's
rights under Nevada's corporate merger law. However, I dissent because I believe that a
minority shareholder has the unconditional right to sue a corporation for fraud or illegality,
notwithstanding the fact that the minority shareholder tendered his or her shares with
knowledge of the wrongful conduct.
First, a restatement of Cohen's factual allegations is necessary to understand the corporate
overreaching involved in this case. Cohen alleges facts that, if true, present a picture of a
rigged merger election brought about by payoffs and sweetheart deals that produced a 53
percent vote of the Boardwalk shareholders to merge with the Mirage Corporation. The
merger was necessary to Mirage because Boardwalk owned the land and the casino south of
the Mirage property on the Las Vegas Strip, which was vital for Mirage to acquire if Mirage
was to go forward with its expansion. Cohen alleges that Mirage executives devised an
elaborate plan to secretly acquire Boardwalk and Boardwalk's 7.8-acre parcel of real property
by means of illegal or fraudulent payments to three shareholders who are respondents in this
appeal, James Scibelli, Jeffrey Jacobs, and Avis Jansen. These three shareholders provided a
clear margin of victory for the merger.
Cohen's allegations of a pre-merger conspiracy
Cohen alleges that Mirage conspired with the Boardwalk's controlling shareholders to
purchase Boardwalk at an artificially low price by offering special transactions that favored
certain members of Boardwalk's board of directors and certain shareholders at the expense of
Boardwalk's minority shareholders. First, Scibelli, a shareholder and director of Boardwalk,
resigned as a director less than two months before the announcement of the proposed merger.
Shortly thereafter, the board of directors awarded Scibelli and his company a $450,000
contract to conduct an independent appraisal, rendering a fairness opinion of the proposed
merger despite Scibelli's lack of experience or competence to render any such appraisal
opinion of real estate. Cohen alleges that because Scibelli owned warrants issued by
Boardwalk that would be rendered worthless if the merger occurred at the proposed $5 per
share price, the contract was an indirect way to ensure his vote for the merger and to pay him
off for his soon-to-be-worthless warrants. Cohen maintains that a truly independent property
appraisal would have cost no more than $20,000.
The second alleged pre-merger conspiracy transaction involved Jansen, a shareholder and
chairman of Boardwalk's board of directors, who was one of the owners of a one-acre
undeveloped parcel of real property next to the Boardwalk hotel and casino. Shortly before
the merger announcement, Mirage purchased the Jansen parcel for $8 million dollars, $3.4
million more per acre than Mirage eventually paid for Boardwalk's 7.8-acre developed parcel.
Cohen also alleges that Mirage made an agreement with Jansen to buy out the lease for the
gift shop that Jansen owned and operated in Boardwalk at a substantial premium.
The third alleged pre-merger conspiracy transaction involved Jansen, Jacobs, and Jacobs'
companies. Shortly before the merger announcement, Boardwalk claimed to need a capital
infusion of $3,250,000 to pay interest on its bonds. To raise this money, Boardwalk sold
3,250 A preferred shares to Jansen and to Jacobs' companies at $1,000 per share. The
agreement also provided that Jacobs and his companies would receive, for no stated
additional compensation, an option to purchase Jansen's one-acre parcel of real property
adjacent to Boardwalk in order to develop the property in a manner that would be beneficial
to Boardwalk. After Jacobs received the option, he assigned it to Mirage for $3,735,000, even
though it was expressly stated that the option shall not be conveyed to anyone that Boardwalk
did not control. The end result was that the infusion of needed money ultimately came from
Mirage, while Jacobs and Jansen received additional compensation and a strong incentive
to support the mergerthe purchase of their preferred shares by the merging
corporations.
compensation and a strong incentive to support the mergerthe purchase of their preferred
shares by the merging corporations.
I conclude that Cohen's allegations of a pre-merger conspiracy, which involves thinly
disguised payoffs and sweetheart deals, are sufficient to entitle him to present his evidence to
a jury. The only legal question is whether he forfeited that right by accepting payment for his
stock with knowledge of some of the facts regarding his allegations of fraud and illegality.
A shareholder's right to sue for fraud or illegality under Nevada's corporate merger law
At the heart of the controversy are a few key sections of Nevada's corporate merger law
adopted in 1995 and based upon the Model Business Corporation Act of 1984 (Model Act).
In addition to acknowledging that Nevada's corporate merger law is based upon the Model
Act, the majority states that the Model Act is based upon Delaware and New York case law;
and after recognizing this, the majority relies on Delaware and New York case law in
interpreting Nevada's corporate merger law. Official comment to section 13.02 notes that the
Model Act basically adopted New York's formula with regard to a shareholder's dissenter's
rights.
1
The comment further notes:
Because of the variety of situations in which unlawfulness and fraud may appear,
[section 13.02(b)] makes no attempt to specify particular illustrations. Rather, it is
designed to recognize and preserve the principles that have developed in the case law of
Delaware, New York and other states with regard to the effect of dissenters' rights on
other remedies of dissident shareholders.
2

I agree with the majority that the case law from New York and Delaware is persuasive
authority; however, I disagree that we should rely on this authority in interpreting Nevada's
corporate merger law.
Additionally, the majority's reliance on Delaware case law has very little persuasive effect
upon us for two reasons. First, Delaware has not adopted the Model Business Corporation
Act, but rather has enacted its own statutory scheme governing corporate mergers.
3
Second,
Delaware has both courts of law and equity, and maintains the distinction between each
type of action.
__________

1
See Model Bus. Corp. Act. Ann. 13.02 cmt. at 13-16 (3d ed. Supp. 1996).

2
Id. at 13-17.

3
See Robert W. Hamilton, The State of State Corporation Law: 1986, 11 Del. J. Corp. L. 3, 22 (1986).
maintains the distinction between each type of action.
4
Nevada has long since eliminated the
distinction between claims seeking legal and equitable relief.
5
This legal division affects
many Delaware cases and their analyses, and as such, reliance on Delaware case law is often
not appropriate.
In any event, I agree with the majority's conclusion that under NRS 92A.380(2), a minority
shareholder may attack the validity of the merger, seeking monetary damages based upon the
corporation's improper conduct during the merger process despite a minority shareholder's
appraisal remedy. Accordingly, as the majority concludes, Cohen's allegations of fraud are not
barred by the fact that he did not assert his dissenter's rights.
Doctrine of acquiescence
The majority ties a minority shareholder's acceptance of payment generated by the
shareholders' vote of the merger to a shareholder's unequivocal right to sue independently for
fraud or illegal action. In particular, the majority provides that when a minority shareholder
tenders his or her shares with full knowledge of the fraudulent or illegal conduct, the minority
shareholder acquiesces in the transaction, and thereby waives his or her right to attack the
merger. It is my view that the unqualified right to sue given by Nevada statute is independent
from any action taken by a minority shareholder in accepting payment for the then fixed value
of his or her shares. Thus, I disagree with the majority's application of the acquiescence
doctrine to minority shareholders who tender their shares.
First, the majority asserts that a minority shareholder can be barred from his or her right to
sue for fraud or illegality if he or she accepted payment of the price fixed by the majority
shareholders. This seems to be at odds with the clear language of Nevada's exclusivity
provision, which gives any shareholder the unconditional right to sue for fraud or illegality,
and is unfair to the individual shareholder who wants to sue for fraud or illegality. The
majority requires a shareholder desiring to bring such a suit to abstain from taking the
assessed price while the other shareholders can do so, even if they are accused of fraud.
__________

4
See generally Kurt M. Heyman & Patricia L. Enerio, The Disappearing Distinction Between Derivative and
Direct Actions, 4 Del. L. Rev. 155 (2001) (noting that Delaware continues to guard the distinction between legal
and equitable jurisdiction).

5
See Botsford v. Van Riper, 33 Nev. 156, 196, 110 P. 705, 712 (1910) (noting that the district court
administers legal and equitable relief); see also Nev. Const. art. 6, 14 (There shall be but one form of civil
action, and law and equity may be administered in the same action.).
can do so, even if they are accused of fraud. Additionally, a minority shareholder may well
need the money to fight the corporate raiders and business giants. Nothing in Nevada's
corporate merger law states that a minority shareholder loses his or her right to sue for fraud
or illegality if he or she takes the set price of the stock, and this court should refrain from
adding such language to a clear and unambiguous statute.
6
Statutes that are clear and
unambiguous should be given their normal and unambiguous meaning.
7

In addition, as the Supreme Judicial Court of Massachusetts noted, [t]he dangers of
self-dealing and abuse of fiduciary duty are greatest in freeze-out situations like this merger,
where controlling shareholders and corporate directors choose to eliminate public
ownership.
8
The court noted further that [i]t is in these cases that a judge should examine
with closest scrutiny the motives and the behavior of the controlling [shareholders].
9

Second, the majority states that a minority shareholder's action for fraud or illegality is
barred if the shareholder accepted payment knowing the facts that constitute the alleged fraud
or illegality. Again, the statute contains no such language, and this position is patently unfair
to a minority shareholder. A minority shareholder is deprived of the opportunity of both
accepting the set payment for the stock, as everyone else can, and asserting his or her suit for
fraud or illegality. The complaining shareholder, and perhaps the whistleblower about
corporate fraud, is penalized if he or she accepts payment even though the alleged fraudulent
shareholders or corporate directors may accept such payment with impunity. I consider this
unfair and a perversion of the statute that contains no such provision.
Notwithstanding the majority's reliance on Delaware case law, which I previously
addressed, the majority cites to Georgia for its explanation of the doctrine of acquiescence. In
Columbus Mills, Inc. v. Kahn,
10
the Supreme Court of Georgia asserted general statements of
law that support the majority's position, but that case can be distinguished on its face. In
Kahn, minority shareholders brought suit during the merger process, but when the trial court
denied their motion to enjoin the merger, they accepted the fixed price for their shares.
__________

6
See Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513-14 (2000) (noting that this
court seeks to give effect to the Legislature's intent, and in doing so, this court seeks to look at the plain language
of the statute).

7
See Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983) (A reading of
legislation which would render any part thereof redundant or meaningless, where that part may be given a
separate substantive interpretation, should be avoided.).

8
Coggins v. New England Patriots Football Club, 492 N.E.2d 1112, 1117 (Mass. 1986).

9
Id.

10
377 S.E.2d 153 (Ga. 1989).
nied their motion to enjoin the merger, they accepted the fixed price for their shares.
Subsequently, the trial court dismissed the minority shareholders' suit, ruling that since the
minority shareholders had voluntarily surrendered their suit for the fixed price, they could not
thereafter attack the merger in order to obtain more money.
11
Contrary to the Georgia Court
of Appeals, the Supreme Court of Georgia affirmed that decision.
12
Cohen's case presents a
far different factual scenario.
The issue in this case has no controlling precedent and the cases cited by the majority have
only marginal persuasive authority. Therefore, we are free to give full effect to the language
of the statute in selecting the best precedent for Nevada, giving full consideration to the
balance between corporations and shareholders, which Nevada's corporate merger law is
seeking to achieve, as well as other policy considerations. When we do this, we should
recognize the grossly inequitable strength between corporations and most shareholders and
not make it more difficult than necessary for a minority shareholder to sue for fraud or
illegality against business giants and corporate raiders. The majority opinion seems to be
doing just the opposite. The majority's reasoning provides such an inadequate remedy to
minority shareholders that the majority practically gives corporate insiders license to commit
fraud and gross breaches of their fiduciary duties with impunity.
13
This should not be the
policy of this state.
Even though Nevada's corporate merger law does not impose a statute of limitations for
fraud or illegality actions, the majority arbitrarily imposes such limitations under the mistaken
belief that actions for fraud or illegality are part of the merger process and must be
commenced during it. I believe this unfairly imposes limitations on a minority shareholder's
unconditional right to sue for fraud or illegality, and also improperly bundles this right to sue
with the merger/appraisal process. In my view, a suit for fraud or illegality is separate from
the merger process to the extent that the merger can be completed, subject only to a suit for
damages against the offending parties, which may or may not include the surviving
corporation. The majority seems to concede that such a scenario is possible.
A strict application of the doctrines of acquiescence and estoppel as espoused by the
majority puts further roadblocks in the path of a shareholder suing for fraud or illegality. The
application of these general doctrines to condition the right to sue for fraud or illegality
distorts the statutory scheme and compels a shareholder suing for fraud or illegality to
institute his or her action immediately, even though all the facts are not fully developed or
capable of quick investigation.
__________

11
Id. at 154.

12
Id.

13
Steinberg v. Amplica, Inc., 729 P.2d 683, 698 (Cal. 1986) (Bird, C. J., dissenting).
suing for fraud or illegality to institute his or her action immediately, even though all the facts
are not fully developed or capable of quick investigation.
The majority also cites with approval a procedure used by other states to analyze
post-merger challenges by minority shareholders and the application of the doctrines of
acquiescence or estoppel. Rather than adopt a burden shifting analysis, which necessarily
requires the determination of who will determine whether the appropriate burdens have been
met, with the judge acting as the jury, I would stick with the procedure usually employed in
Nevada. A plaintiff must establish by competent evidence the essential allegations of the
complaint if challenged and demonstrate that a question of fact exists. If the plaintiff meets
his or her burden, a trial on the contested issues is held. I see no reason why this procedure is
not adequate in a case where a minority shareholder is bringing a post-merger challenge and
the defense of estoppel or acquiescence is raised.
The Legislature provided shareholders standing to sue for fraud or illegality and it should
not be abridged by limitations not imposed by Nevada's corporate merger law or by the strict
application of the doctrines of estoppel or acquiescence.
Derivative claims
Nevada's corporate merger law gives a shareholder the right to sue for fraud or illegality
with respect to him or the domestic corporation and nowhere does it state that the claim
may not ask for relief that is derivative in nature.
14
The direction given by the statute is just
the opposite. Once again, I believe the majority is ignoring the clear statutory language and
putting additional conditions on the unequivocal right to sue for fraud or illegality. Under
NRS 92A.380(2), an aggrieved shareholder should be able to sue for any damages that were
proximately caused by illegal or fraudulent acts.
But even assuming that the general distinction between shareholders' individual or
derivative actions is applicable to this case, I think the majority's analysis of what constitutes
an individual claim is far too narrow. First, the majority seems to imply that if the fraudulent
or illegal actions cause the corporation damage, then such damage is not sufficiently
independent to be that of an individual shareholder. I believe, as the statute states, that a
shareholder can sue for damage caused him or her by fraud or illegality even though the
corporation may have also suffered damage. Indeed, the statute provides that the shareholder
can sue with respect to him or the domestic corporation.
15
Second, I think any evidence of
fraud or illegality that causes damage to a shareholder may be alleged in the complaint
and should be admissible at trial.
__________

14
NRS 92A.380(2).

15
Id.
evidence of fraud or illegality that causes damage to a shareholder may be alleged in the
complaint and should be admissible at trial. Therefore, it seems that the majority improperly
eliminates allegations of land acquisitions and issued bonds that relate to the fraudulent
allegations, as well as excessive fees paid for an appraisal report.
By classifying Cohen's first category of allegations as derivative, the majority strips Cohen
of three of his major allegations of excessive payments to directors in order to bring about a
favorable vote on the merger. It is alleged that three Boardwalk shareholders and directors
received exorbitant fees in the following manner shortly before the merger vote: (1) Scibelli
is alleged to have been given an appraisal fee of $450,000, twenty times what was reasonable
and customary; (2) Jansen is alleged to have been paid an excessive $8,000,000 for his parcel
of real property next to the Boardwalk land; and (3) it is alleged that a private sale of
$3,250,000 of preferred shares was made by Boardwalk to Jansen and Jacobs, and the
assignment to Jacobs' companies of Boardwalk's option to purchase Jansen's real property,
which Jacobs' companies assigned, contrary to the agreement, to the Mirage for $3,750,000.
While the majority acknowledges that this evidence may be admissible to show wrongful
conduct in the merger process, I see no reason why these are not proper allegations of
specific wrongdoing. It seems to me to be part and parcel of an action for fraud or illegality.
I do agree with the majority that Cohen's second category of allegations is clearly
individual claims. However, the majority goes on to conclude that such allegations are
derivative claims because there are no allegations actually seeking rescission or challenging
the validity of the merger: [B]ecause the complaint fails to contain a claim actually seeking
rescission or challenging the validity of the merger, the complaint, as worded, sets forth
derivative, not individual claims.
16

This conclusion resembles a requirement imposed in some states where the distinction
between law and equity courts is still recognized and relief seeking equitable relief, such as
rescission or injunctive relief, must be pleaded to satisfy jurisdictional requirements of an
equity court. The majority requires that a minority shareholder in Cohen's position must
allege the invalidity of the merger and ask to rescind or enjoin it rather than just ask for
monetary damages. And although an old refrain in this opinion by now, nothing in the statute
requires that the suing shareholder must ask for rescission or injunction of the merger, and
Nevada eliminated the distinction between law and equity long ago.
__________

16
See majority opinion ante p. 23.
I do agree that allegations of general mismanagement are derivative and improper in this
lawsuit unless they have a reasonable relation to the fraud or illegality charged. I further agree
that Cohen should be given the right to amend his complaint as permitted by the majority
opinion.
Conclusion
The Nevada Legislature provided minority shareholders the unequivocal right to sue for
fraud or illegal conduct that brought about a merger. A minority shareholder tendering his or
her shares and receiving payment should not hobble this unequivocal right. To do otherwise
would permit inequitable results as in this case, where a complaining minority shareholder
will be deprived of his legal right to sue the corporate raiders and business giants who are
alleged to have brought about a merger by fraud and illegality. The Legislature set a balance
between business and shareholders, determining that minority shareholders should have the
unfettered right to sue for illegal or fraudulent action that brings about a merger. This court
should not upset that balance by erecting obstacles for a complaining shareholder.
Because I agree with the majority's conclusion that a minority shareholder may file an
action for fraud or illegality despite the appraisal remedy, but disagree with the majority's
reliance on Delaware case law and its application of the doctrine of acquiescence, I
respectfully concur in part and dissent in part.
____________
119 Nev. 32, 32 (2003) Matter of Guardianship & Estate of D.R.G.
In the Matter of the Guardianship of the Person and Estate of D.R.G.
DWIGHT G., Appellant, v. CONNIE E. P., Respondent.
No. 38575
February 12, 2003 62 P.3d 1127
Appeal from a district court order adopting a guardianship commissioner's
recommendation and appointing respondent the minor child's guardian. Eighth Judicial
District Court, Family Court Division, Clark County; Gerald W. Hardcastle, Judge.
Unwed father appealed from decision of the district court, appointing child's maternal aunt
as general guardian of child following mother's death. The supreme court held that: (1)
statutory parental presumption properly was rebutted; and (2) aunt, as opposed to father,
properly was appointed as child's general guardian.
Affirmed.
Mark A. Jenkin, Henderson, for Appellant.
Gifford, Vernon & Barker and Christine A. Washburn, Las Vegas, for Respondent.
1. Child Custody.
District court enjoys broad discretionary powers in determining questions of child custody.
2. Child Custody.
The supreme court will not disturb the district court's exercise of discretion in child custody matters unless the discretion is
abused. However, the supreme court must be satisfied that the district court's decision was based upon appropriate reasons.
3. Guardian and Ward.
Statutory parental preference is a presumption that must be overcome before a court can grant guardianship to a non-parent.
NRS 159.061(1).
Before the statutory parental preference is applied in guardianship proceeding, the court must first determine if a parent is
qualified and suitable. Qualification and suitability are based on the parent's fitness for guardianship at the time of the hearing.
NRS 159.061(1).
If a parent is qualified and suitable, the parent prevails over non-parents for guardianship of the child. NRS 159.061(1).
If neither parent is qualified and suitable, or if both parents are, the statute setting forth preferences in appointing guardian for
child requires the court to move to the second step, namely determining who is most suitable to be child's guardian. NRS
159.061(1).
Child's basic needs or welfare are superior to the claim of a parent with respect to statute providing that one of the factors in
determining a parent's suitability to be child's guardian is whether the parent can provide for the basic needs of the child, including
medical care. NRS 159.061(1).
Statutory parental preference with respect to guardianship of child can be rebutted by showing parental unfitness or other
extraordinary circumstances. NRS 159.061.
Relevant factors to be considered in determining whether statutory parental-preference presumption for guardianship of child
has been overcome include: abandonment or persistent neglect of child by parent; likelihood of serious physical or emotional harm
to child if placed in parent's custody; extended, unjustifiable absence of parental custody; continuing neglect or abdication of
parental responsibilities; provision of child's physical, emotional and other needs by persons other than parent over significant
period of time; existence of bonded relationship between child and non-parent custodian sufficient to cause significant emotional
harm to child in event of a change in custody; and age of the child during period when his care is provided by non-parent. NRS
159.061.
Even though unwed father was not unfit, he was not qualified and suitable to be child's guardian at the time of the
guardianship hearing due to extraordinary circumstances,
to extraordinary circumstances, and thus, statutory parental presumption properly was rebutted in proceeding to determine whether
father or child's maternal aunt should be appointed as child's general guardian following mother's death; managing child's cystic
fibrosis and cerebral palsy was of the utmost importance to child's well-being, father had not shown that he was sufficiently
involved and educated regarding treatment protocol that child's health required, father had never been to any of the child's medical
appointments, and father had spent little time with the child. NRS 159.061(1).
Child's maternal aunt, as opposed to unwed father, properly was appointed as child's general guardian following mother's
death. The statutory parental presumption was rebutted where mother's will stated that she did not want father to be child's
guardian, and in addition, mother stated in an affidavit that her sister should be granted sole legal custody of the child in the event
of her death, and guardianship commissioner found that it was in the child's best interests to maintain aunt's guardianship until
such time as father made significant steps toward reunification. NRS 159.061(1), (3).
To determine the most suitable guardian, recommendations made by a guardianship commissioner should be considered.
Once the statutory parental-preference presumption has been overcome, the paramount consideration in guardianship
proceeding is the child's best interests. NRS 159.061(1).
14. Appeal and Error.
The weight and credibility to be given trial testimony is solely the province of the trier of fact, and a district court's findings of
fact will not be set aside unless clearly erroneous.
Before Shearing, Leavitt and Becker, JJ.
OPINION
Per Curiam:
This is an appeal from a district court order appointing respondent Connie E. P. as general
guardian of D.R.G., a minor child. Connie is the child's maternal aunt. Appellant Dwight G.,
the child's natural father, appeals arguing that the district court erred by failing to observe the
parental preference of NRS 159.061 and that there was no clear evidence in the record to
support a finding that it was in the child's best interest to award guardianship to Connie. We
disagree. The district court did not abuse its discretion in granting guardianship to Connie.
We also agree with the district court that if Dwight is able to show that he has created a
loving bond with the child, that he has taken parenting classes and undergone reunification
therapy, that he has undergone tolerance training or anger control management therapy, and
that he has learned to manage the child's health care needs, the issue of guardianship can be
revisited.
FACTS
D.R.G. was born on October 25, 1991, in Southern California, to Donna G. and Dwight
G., who were once married but were divorced long before the child was born. The child's
birth certificate lists Dwight as the father. Although paternity, custody, visitation, and child
support were never judicially determined, Donna exercised sole physical custody of the child
and Dwight voluntarily paid her $300 per month in child support. For nearly two years after
the child's birth, Donna lived in the same vicinity as Dwight in Southern California.
At seven months of age, the child was diagnosed with cystic fibrosis, and later with
cerebral palsy. The child requires daily, time-consuming chronic therapies.
On September 1, 1993, Donna, her sister Connie, the child, and the child's older sister
moved to Las Vegas. From that time to the present, the child has lived primarily with Connie,
although the child also spent a significant amount of time with Donna. Connie has
participated, along with Donna, in the child's care since birth. Whenever the child had to stay
in the hospital overnight, Connie would also stay at the hospital. It was Connie who took the
child to weekly physical therapy. It was Connie who took the child to school every day to
accommodate Donna's work schedule.
Dwight claims that until 1999, he made regular visits to Las Vegas to visit the child and
the child's sister. Donna asserted in her affidavit, however, that Dwight had never indicated or
shown any interest in providing a home for the child or in having a regular visitation
schedule.
Three years before the guardianship hearings, Donna was diagnosed with terminal cancer.
After that, Dwight admits that his visits became less frequent. Dwight claims he saw the child
twelve times in 1999, about six times in 2000, and only once during the first half of 2001. In
addition, Dwight did not call the child by telephone at all during the six months prior to the
guardianship hearings.
Dwight admits that he has never gone to any of the child's medical appointments.
However, he claims he went to several of the child's therapies during the first two years of the
child's life when Donna and the child still lived in California. Dwight has never spoken to any
of the child's medical care providers in Las Vegas. Dwight has never stayed all night in the
hospital with the child. Dwight does not even know how many times the child has been in the
hospital. Dwight has admittedly referred to the child in such derogatory terms as Cripple
and Sausage Arm, due to the child's physical malady. According to Dwight, the longest
visit the child ever had with him in California was three days. After one such visit, however,
the child returned to Las Vegas with over half of the required medicines untaken.
of the required medicines untaken. When questioned during the hearings, Dwight did not
even know the child's birth date.
Dwight admits that he has a past history of violence, including a battery charge in 1964
and another such charge in 1974. Dwight also admits that he hit Donna's brother, Lee, over
the head with a baseball bat in 1985. No charges were brought in that incident because
Dwight paid Lee $1,000. Dwight also acknowledges that he hit Donna during their marriage,
but claims there were no further incidents of violence after their divorce. Donna, however,
claims that Dwight attacked her while she was pregnant with the child, causing her multiple
head and facial injuries.
During the final stages of Donna's cancer, on April 17, 2001, Connie petitioned the district
court, seeking guardianship of the child. Donna provided an affidavit, stating her desire that
Connie be granted sole legal custody of the child in the event of her death. Donna's affidavit
also stated that [the child]'s health and welfare would be in very real danger if [the child]
were placed under Dwight's care for any extended period of time. An evidentiary hearing
was set for May 18, 2001. On April 27, 2001, the court issued an order appointing Connie as
temporary guardian of the child.
The evidentiary hearing took place on May 18, 2001, and was continued to June 15, 2001,
for completion. During this interval, Donna died. Because the temporary guardianship had
expired and Donna was now deceased, the district court issued an order granting Connie an
emergency general guardianship on June 5, 2001. The order provided that the guardianship
would be reviewed on June 15, the date of the continued hearing.
At the May 2001 hearing, Dr. Ruben Diaz, the child's attending physician, testified
concerning the serious nature of cystic fibrosis, which is a terminal disease. He stated that the
child is in the mild range of the disease at this time, due mostly to the excellent care and
therapies the child has received. Dr. Diaz further testified that continuity of care was
extremely important.
During the June 2001 evidentiary hearing, the child was interviewed at the family
mediation center, at the court's request. After the interview, the family mediation center
specialist was sworn in so he could testify regarding the child's wishes. The family mediation
center specialist testified that the child indicated a preference to live with Connie rather than
with Dwight. The child stated that the most important people in the child's life were Donna
and Connie. The child expressed a desire to live with Connie and just visit Dwight. When
asked why, the child expressed a belief that Connie loves the child more and the child was
happier there.
Following the second hearing, the guardianship commissioner filed a report and
recommendations. The guardianship commissioner recommended that Connie continue as
general guardian of the child, based on a finding that the child's unique circumstances and
best interests so required.
and best interests so required. The guardianship commissioner further provided that Dwight
could come back to the court to revise the guardianship provided he make a showing that he
has created a loving bond with [the child], that he has taken parenting classes and undergone
reunification therapy, that he has undergone tolerance training or some type of anger control
management therapy, and that he has learned to manage [the child's] health care needs. The
guardianship commissioner's recommendations were adopted by court order.
Dwight filed this appeal, alleging that the trial court erred by failing to observe the parental
preference under NRS 159.061. Dwight further asserts that the guardianship commissioner
erred by utilizing a best interests of the child test rather than observing parental preference as
set forth in NRS 159.061. Finally, Dwight claims that there was no clear evidence in the
record sufficient to support a finding that it was in the child's best interests that Connie be
awarded guardianship.
DISCUSSION
[Headnotes 1, 2]
The district court enjoys broad discretionary powers in determining questions of child
custody.
1
This court will not disturb the district court's exercise of discretion unless the
discretion is abused.
2
However, this court must be satisfied that the district court's decision
was based upon appropriate reasons.
3

[Headnote 3]
To aid the court in making guardianship decisions, the Nevada Legislature has established
guidelines in NRS 159.061. NRS 159.061(1) provides, in part, that [t]he parents of a minor,
or either parent, if qualified and suitable, are preferred over all others for appointment as
guardian for the minor. Parental preference, provided in NRS 159.061(1), is a presumption
that must be overcome before a court can grant guardianship to a non-parent.
4

[Headnotes 4-9]
Before the parental preference is applied, the court must first determine if a parent is
qualified and suitable.
5
Qualification and suitability are based on the parent's fitness for
guardianship at the time of the hearing.
6
If a parent is qualified and suitable, the parent
prevails over non-parents for guardianship of the child.
__________

1
See Locklin v. Duka, 112 Nev. 1489, 1493, 929 P.2d 930, 933 (1996).

2
Id.

3
Id.

4
See Litz v. Bennum, 111 Nev. 35, 38, 888 P.2d 438, 440 (1995).

5
NRS 159.061(1).

6
See In re Byran, 48 Nev. 352, 356, 232 P. 776, 777 (1925) (citing In re Green, 221 P. 903 (Cal. 1923)).
ent prevails over non-parents for guardianship of the child.
7
If, however, neither parent is
qualified and suitable, or if both parents are, the statute requires the court to move to the
second step, determination of who is most suitable.
8
NRS 159.061(1) provides that one of
the factors in determining a parent's suitability is whether the parent can provide for the basic
needs of the child, including medical care.
9
Thus, the child's basic needs or welfare are
superior to the claim of a parent.
10
Further, the parental preference can be rebutted by
showing parental unfitness or other extraordinary circumstances.
11
In Locklin v. Duka,
12
we
held that extraordinary circumstances are those that result in serious detriment to the child.
Relevant factors to be considered include:
abandonment or persistent neglect of the child by the parent; likelihood of serious
physical or emotional harm to the child if placed in the parent's custody; extended,
unjustifiable absence of parental custody; continuing neglect or abdication of parental
responsibilities; provision of the child's physical, emotional and other needs by persons
other than the parent over a significant period of time; the existence of a bonded
relationship between the child and the non-parent custodian sufficient to cause
significant emotional harm to the child in the event of a change in custody; the age of
the child during the period when his or her care is provided by a non-parent; the child's
well-being has been substantially enhanced under the care of the non-parent; the extent
of the parent's delay in seeking to acquire custody of the child; the demonstrated quality
of the parent's commitment to raising the child; the likely degree of stability and
security in the child's future with the parent; the extent to which the child's right to an
education would be impaired while in the custody of the parent; and any other
circumstances that would substantially and adversely impact the welfare of the child.
13

[Headnote 10]
Here, the guardianship commissioner specifically found that this case involved unique
circumstances. Managing the child's cystic fibrosis and cerebral palsy is of the utmost
importance to the child's well being. Dr. Ruben Diaz, the child's treating physician, testified
that cystic fibrosis is a terminal disease and that failure to strictly follow treatment and
medication regimens can result in serious detrimental effects.
__________

7
See NRS 159.061(1).

8
See NRS 159.061(2).

9
See NRS 159.061(1)(b).

10
See Fisher v. Fisher, 99 Nev. 762, 765, 670 P.2d 572, 573 (1983).

11
See Litz, 111 Nev. at 38, 888 P.2d at 440.

12
112 Nev. at 1495-96, 929 P.2d at 934.

13
Id. at 1496, 929 P.2d at 934-35.
strictly follow treatment and medication regimens can result in serious detrimental effects. In
addition, Dr. Diaz emphasized that continuity of care is an important factor in determining
the success of treatments.
At the time of the hearings, Dwight had not shown that he was sufficiently involved and
educated regarding the treatment protocol that the child's health required. The evidence at the
hearings showed that Dwight had not given the child all of the required medications on more
than one occasion when the child was with him. Additionally, in the seven years that the child
had lived in Las Vegas, Dwight had never been to any of the child's medical appointments.
Without a demonstration that Dwight could adequately care for the child, the district court
could not grant custody to Dwight without potentially undermining the child's physical
welfare.
In contrast, Connie has been involved in the child's medical care from the time the child
was first diagnosed. Every time the child spent the night in the hospital, Connie was there or
accompanied the child. Additionally, Connie routinely took the child to the weekly physical
therapy appointments. Dr. Diaz testified that under Connie's care, the child had done quite
nicely.
Another extraordinary circumstance in this case is the recent death of the child's mother,
Donna. As the child expressed to the family mediation center specialist, besides Donna, the
other most important person in the child's life is Connie. The child has primarily lived with
Connie from the age of two. She took the child to school and to medical appointments. She
has always been active in the child's care from the time of birth. The child has a bonded
relationship with Connie.
In contrast, Dwight has spent little time with the child, especially in recent years. At the
time of the hearings, the child had never visited Dwight for more than a few days. In the six
months before the hearings, Dwight had only visited the child on one occasion. In the year
prior to that, there were only about six visits. To give custody to Dwight, without first
creating a more significant bond, could seriously jeopardize the child's emotional welfare.
Therefore, even though Dwight is not unfit, he was not qualified and suitable to be the
child's guardian at the time of the guardianship hearing due to extraordinary circumstances.
The child's welfare takes precedence over Dwight's parental rights. The parental presumption
of NRS 159.061(1) was properly rebutted.
[Headnote 11]
Under NRS 159.061, once the parental preference is overcome, guardianship should go to
the qualified person who is most suitable and is willing to serve.
14
NRS 159.061(3)
provides factors to aid the court in determining who is most suitable.
__________

14
NRS 159.061(2).
aid the court in determining who is most suitable. One relevant factor is a parent's nomination
of a guardian in a will or other written instrument.
15
We have previously stated that such a
request is entitled to great weight and will prevail if there are no good reasons to the contrary.
16

This factor supports the appointment of Connie as guardian. In this case, Donna's will
stated that she did not want Dwight to be the child's guardian. In addition, she stated in an
affidavit that the child's health and welfare would be in very real danger if the child were
placed under Dwight's care for any extended period of time. The affidavit further expressed
Donna's desire that her sister, Connie, be granted sole legal custody of the child in the event
of her death.
[Headnote 12]
To determine the most suitable guardian, recommendations made by a guardianship
commissioner should also be considered.
17
In this case, after a two-day hearing, a
guardianship commissioner recommended that Connie continue as general guardian of the
child for the time being. The recommendation made clear, however, that if Dwight took
significant steps to be reunified with the child, the guardianship could be revisited.
[Headnotes 13, 14]
Finally, once the parental-preference presumption has been overcome, the paramount
consideration is the child's best interests.
18
The guardianship commissioner found that it was
in the child's best interests to maintain Connie's guardianship until such time as Dwight made
significant steps toward reunification. The recommendation was adopted by court order. The
weight and credibility to be given trial testimony is solely the province of the trier of fact, and
a district court's findings of fact will not be set aside unless clearly erroneous.
19
Here, the
guardianship commissioner made findings, based on the evidence presented at the hearings.
These findings are supported by the evidence in the record.
We have previously stated that the best interest of the child is usually served by
awarding his custody to a fit parent.'
20
This, however, is an unusual case. We agree with
the district court when it emphasized that Dwight can become qualified and suitable.
__________

15
NRS 159.061(3)(b).

16
See Badenhoof v. Johnson, 11 Nev. 87, 88 (1876).

17
NRS 159.061(3)(e).

18
See Hesse v. Ashurst, 86 Nev. 326, 331-32, 468 P.2d 343, 346 (1970).

19
Locklin, 112 Nev. at 1497, 929 P.2d at 935 (citing Washington v. State, 96 Nev. 305, 308, 608 P.2d 1101,
1103 (1980)).

20
Litz, 111 Nev. at 38, 888 P.2d at 440 (quoting McGlone v. McGlone, 86 Nev. 14, 17, 464 P.2d 27, 29
(1970)).
it emphasized that Dwight can become qualified and suitable. Once this is accomplished,
guardianship for the child can be revisited. The report and recommendations adopted by the
court state:
[T]he guardianship may be revisited upon a showing by [Dwight] that he has taken
significant steps to be reunified with [the child], namely that [Dwight] has created a
loving bond with [the child], that he has taken parenting classes and undergone
reunification therapy, that he has undergone tolerance training or some type of anger
control management therapy, and that he has learned to manage [the child]'s health care
needs.
In conclusion, the district court did not abuse its discretion when it ordered that, for the
present time, Connie should be the child's guardian. The provisions of NRS 159.061 were
properly addressed. Accordingly, we affirm the judgment of the district court.
____________
119 Nev. 41, 41 (2003) Echeverria v. State
RICARDO VENTURA ECHEVERRIA, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 38691
February 12, 2003 62 P.3d 743
Appeal from a judgment of conviction entered pursuant to a guilty plea on one count of
lewdness with a child under the age of fourteen. Second Judicial District Court, Washoe
County; Brent T. Adams, Judge.
The supreme court, Rose, J., held that: (1) State's breach of agreement to recommend
probation required reversal for new sentencing hearing; (2) as a matter of apparent first
impression, harmless-error analysis does not apply in the event of the State's breach of a plea
agreement; and (3) reassignment to different judge for resentencing was required.
Vacated and remanded.
Agosti, C. J., dissented.
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Deputy Public
Defender, Washoe County, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney,
and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
State's breach of plea agreement, whereby it was to recommend probation upon defendant's plea of guilty to lewdness with a
child under the age of fourteen, required reversal for new sentencing hearing, despite alleged lack of prejudice to defendant
resulting therefrom due to sentencing court's lack of reliance on State's recommendation of prison term, where harmless-error
analysis was inapplicable.
2. Criminal Law.
State's violation of a plea agreement requires reversal.
3. Criminal Law.
Harmless-error analysis does not apply in the event of the State's breach of a plea agreement.
4. Criminal Law.
When the State breaches a plea agreement, the case must be reassigned to a different sentencing judge for resentencing.
Before Agosti, C. J., Rose, J., and Young, Sr. J.
OPINION
By the Court, Rose, J.:
In this appeal, we consider whether a harmless-error analysis applies to the State's breach
of a plea agreement and whether such a breach requires reassignment to a different district
court judge for sentencing. We conclude that a harmless-error analysis does not apply and
that reassignment is required, and we vacate the judgment of conviction and remand this case
for a new sentencing hearing before a different district court judge.
FACTS
Ricardo Ventura Echeverria was charged with lewdness with a child under the age of
fourteen. Echeverria and the State entered into a plea agreement. Under the terms of the plea
agreement, Echeverria agreed to plead guilty to the lewdness charge, while the State agreed to
recommend probation at sentencing on the condition that Echeverria was probation eligible
and cooperated with the INS directly from jail.
After entering a guilty plea to the lewdness charge, Echeverria was scheduled for
sentencing. Dr. Davis prepared a risk assessment, concluding that Echeverria was not a
danger or menace to the safety, health, morals, or welfare of the community, so long as he
maintained his sobriety. At the sentencing hearing, the State argued that Dr. Davis' condition
of sobriety meant that Echeverria was not eligible for probation; therefore, the State
concurred with the Division of Parole and Probation's recommendation of a prison term. In
response, Echeverria's counsel argued that Dr. Davis' report certified that Echeverria was
eligible for probation, and that the State's recommendation was a violation of the plea
agreement.
Before sentencing Echeverria, the sentencing judge acknowledged that Dr. Davis' report
was favorable to Echeverria and that the State was bound by the plea agreement to
recommend probation. However, the sentencing judge reminded the parties that the actual
sentencing decision belonged to the sentencing judge alone. The sentencing judge then
expressed concern over Echeverria's long history of alcohol abuse and Echeverria's written
statement to the court denying the commission of the offense. Based on these concerns, the
sentencing judge sentenced Echeverria to life in prison with the possibility of parole after ten
years.
DISCUSSION
[Headnote 1]
Echeverria contends that the State violated the plea agreement when the prosecutor did not
make an affirmative recommendation of probation. Although the sentencing judge did not
explicitly make a finding that the State breached the plea agreement, we note that the judge's
statement, I will assume for the purposes of this hearing that the State is bound to
recommend probation in this case, implies this finding. Notably, the State concedes that the
sentencing judge found that the State breached the plea agreement. Accordingly, we need not
address this issue. Instead, we will first address the issue of whether reversal is required when
the State breaches a plea agreement.
The State argues that reversal is not warranted here because the sentencing judge did not
rely on the State's breach when he sentenced Echeverria.
1
In essence, the State argues that
the breach was harmless because Echeverria was not prejudiced by it.
The seminal United States Supreme Court decision regarding the government's breach of a
plea agreement is Santobello v. New York.
2
In that case, the prosecutor agreed to make no
recommendation as to the sentence.
3
However, at sentencing the prosecutor recommended
the maximum sentence.
4
Following an objection by the defense, the sentencing judge stated
that he was not at all influenced by what the prosecutor said and that the prosecutor's
recommendation made no difference to the court.
5
In vacating the judgment of conviction
due to the breach of the plea agreement, the Supreme Court explained:
[The sentencing judge] stated that the prosecutor's recommendation did not influence
him and we have no reason to doubt that.
__________

1
We note that the sentencing judge did not explicitly state that he was not influenced by the State's breach, as
the State contends on appeal.

2
404 U.S. 257 (1971).

3
Id. at 258.

4
Id. at 259.

5
Id.
that. Nevertheless, we conclude that the interests of justice and appropriate recognition
of the duties of the prosecution in relation to promises made in the negotiation of pleas
of guilty will be best served by remanding the case to the state courts for further
consideration [of the appropriate relief for the breachspecific performance or
withdrawal of the plea].
6

[Headnotes 2, 3]
Since Santobello, we have stated that the State's violation of a plea agreement requires
reversal.'
7
Our case law has implicitly rejected harmless-error analysis in the event of a
breach of a plea agreement, and we now make that rejection explicit.
[Headnote 4]
Additionally, in each of the cases in which we concluded that the State breached the plea
agreement and that specific performance of the agreement was the proper remedy, we vacated
the appellant's sentence and instructed the district court on remand to hold a new sentencing
hearing before a different judge.
8
We reject the State's argument that reassignment to a
different judge is appropriate only in unusual cases. Therefore, we hold that when the State
breaches a plea agreement, the case must be reassigned to a different sentencing judge for
resentencing.
CONCLUSION
Because the State breached the plea agreement, we conclude that harmless-error analysis is
not applicable, and this case must be remanded for resentencing before a different judge.
Accordingly, we vacate Echeverria's sentence and instruct that a new sentencing hearing be
held before a different judge.
9

Young, Sr. J., concurs.
Agosti, C. J., dissenting:
I dissent. I would affirm the judgment of conviction and sentence imposed against
Echeverria.
__________

6
Id. at 262-63.

7
Citti v. State, 107 Nev. 89, 91, 807 P.2d 724, 726 (1991) (quoting Van Buskirk v. State, 102 Nev. 241, 243,
720 P.2d 1215, 1216 (1986)); see also Kluttz v. Warden, 99 Nev. 681, 684, 669 P.2d 244, 246 (1983); Riley v.
Warden, 89 Nev. 510, 513-14, 515 P.2d 1269, 1271 (1973).

8
See, e.g., Citti, 107 Nev. at 94, 807 P.2d at 727; Wolf v. State, 106 Nev. 426, 428, 794 P.2d 721, 723 (1990);
Van Buskirk, 102 Nev. at 244, 720 P.2d at 1217; Kluttz, 99 Nev. at 684, 669 P.2d at 246; Riley, 89 Nev. at 514,
515 P.2d at 1271.

9
The Honorable Cliff Young, Senior Justice, having participated in the oral argument and deliberations of this
matter as a Justice of the Nevada Supreme Court, was assigned to participate in the determination of this appeal
following his retirement. Nev. Const. art. 6, 19; SCR 10.
In vacating Echeverria's sentence, the majority has adopted two rules that are broader than
what is required to decide this case. In so doing, the majority oversimplifies the problems
which arise by the State's breach of a plea agreement.
First, the majority holds that every breach of a plea bargain requires reversal without any
analysis as to whether the defendant has suffered prejudice. The State's breach of the plea
bargain struck in this case was substantial. Not every breach, however, is substantial. As is
sometimes the case, the State might inadvertently misstate the plea bargain or the State's
breach might be innocuous or minor. The presentence report, which also recites the plea
negotiations, sometimes inaccurately recounts the details of an agreement. The State might be
guilty of a substantial breach but the trial court might deviate only minimally from the true
plea bargain, imposing a sentence against the defendant which is close, though not identical,
to the plea bargain. The State might violate the plea bargain but, as occurred here, the court
might promptly notice the breach and immediately require the State to remedy the violation.
Under any of these circumstances I find it difficult to justify vacating a defendant's sentence
and remanding for an entirely new sentencing hearing.
I prefer an approach which first evaluates the magnitude of the breach and the prejudice, if
any, suffered by a defendant before determining the necessity of a new sentencing hearing.
Utilizing this approach, this case need not be remanded for a new sentencing hearing since
the trial court here promptly noted the breach, ordered specific performance of the plea
bargain and explicitly stated that the breach did not influence its sentencing decision.
Second, the majority holds that whenever a plea bargain is breached to the defendant's
detriment, the case must be reassigned to a different judge for resentencing. I disagree. Once
again, the holding is in excess of what might be called for in this case. Even if I agreed that
the sentence ought to be vacated and the case remanded, I do not believe every such case
requires reassignment upon remand. The reassignment of a case to a different court is not the
usual remedy, and reassignment is reserved for unusual circumstances.'
1

I prefer the approach employed in United States v. Arnett.
2
There, the court decided that,
absent evidence of personal bias on the part of the sentencing judge, the factors to be
considered in deciding whether reassignment is necessary include:
(1) whether the original judge would reasonably be expected upon remand to have
substantial difficulty in putting out of his or her mind previously-expressed views or
findings determined to be erroneous or based on evidence that must be rejected,
__________

1
United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979) (quoting United States v. Robin, 553 F.2d 8, 10
(2d Cir. 1977) (en banc)).

2
628 F.2d 1162.
or her mind previously-expressed views or findings determined to be erroneous or
based on evidence that must be rejected, (2) whether reassignment is advisable to
preserve the appearance of justice, and (3) whether reassignment would entail waste
and duplication out of proportion to any gain in preserving the appearance of fairness.
3

This weighing process was followed by the Ninth Circuit in United States v. Travis
4
under
circumstances where the breach was more grievous than in this case because the prosecution
not only failed to stand mute, as promised, but when challenged for its failure, persisted in the
breach. The mentioned factors were also applied by the United States Court of Appeals for
the District of Columbia Circuit in United States v. Wolff.
5
Wolff also considered the
question of whether reassignment was required under Santobello v. New York.
6
I agree with
its analysis and conclusion that Santobello is not binding precedent on this issue.
In applying the factors to this case, I conclude that no reason exists to reassign the case to
another judge. Reassignment would involve waste and duplication because a judge unfamiliar
with the case would be required to review the entire record. In addition, allowing the judge
who originally sentenced Echeverria to continue on with the case would not subvert the
appearance of justice since the record clearly indicates that the judge was not influenced by
the State's breach. Finally, this is not a case where there was evidence originally presented
that the trial judge must now put out of his mind. Nor did the trial judge express views which
would be difficult to set aside at a new sentencing. The judge did sentence the defendant
more harshly than was called for in the plea bargain, but that was his prerogative. The judge
imposed a sentence which is reasonably supported by the circumstances of this case.
Finally, I dissent to reassignment because I fear strategic breaches of plea bargains. It is
conceivable and yet ironic that the State might abuse the automatic reversal to take advantage
of the rule of automatic reassignment. The State might use breach as a matter of strategy to
disqualify a judge it perceives as lenient in the hope of having the case reassigned to a forum
less likely to follow the agreement. Thus, the State could breach the agreement in order to
enhance the chances that the agreement is later rejected by a different sentencing judge.
Based upon all of the above, I respectfully dissent.
__________

3
Id. at 1165 (quoting Robin, 553 F.2d at 10).

4
735 F.2d 1129, 1132 (9th Cir. 1984).

5
127 F.3d 84, 87-88 (D.C. Cir. 1997).

6
404 U.S. 257 (1971).
____________
119 Nev. 47, 47 (2003) All Star Bonding v. State of Nevada
ALL STAR BONDING, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38699
February 12, 2003 62 P.3d 1124
Appeal from a district court order forfeiting a bail bond. Eighth Judicial District Court,
Clark County; Michael L. Douglas, Judge.
The supreme court held that bail bond term, expressly limiting the effect of the agreement
to one year, was enforceable, such that bond had expired and had no legal effect by the time
that the defendant failed to appear at sentencing hearing.
Reversed and remanded.
Mayfield, Turco & Gruber and Harvey Gruber, Henderson, for Appellant.
David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney,
Clark County, for Respondent.
1. Bail.
A bail bond is a contract between the State and the surety of the accused.
Contract interpretation is a question of law, and thus, the supreme court reviews the district court's findings with respect to
such interpretation de novo.
3. Bail.
Bail bonds are governed by statute.
The supreme court reviews the construction of a statute de novo.
5. Bonds.
The language of a bond contract is strictly construed in accordance with the terms contained therein.
6. Contracts.
Neither a court of law nor a court of equity can interpolate in a contract what the contract does not contain.
7. Bail.
Bail bond term, limiting effect of agreement to one year, was not against public policy of ensuring that a defendant would
return to court when released; statute requiring that bail bond terms be no shorter than one year in duration did not express public
policy against limitations in bond terms, but rather allowed such limitations, and nothing in state statutes or in bond contract itself
provided a requirement for delivery of the criminal defendant to custody after expiration of bond term. NRS 178.502(2).
8. Bail.
Bail bond term, limiting effect of agreement to one year, was enforceable, and thus, bond had expired and had no legal effect
by the time that the criminal defendant failed to appear at sentencing hearing that was held after one-year period had passed; bond
unambiguously provided that bond would become void and of no legal effect after one year from date of bond,
of bond, district court accepted bail agreement, and nothing in bond contract itself or state statutes provided a requirement for
delivery of the defendant to custody after expiration of bond term. NRS 178.502(2).
9. Courts.
Court may consider legislation or judicial decisions to determine public policy considerations.
10. Bonds.
Terms of a bond should be construed strictly in favor of the surety.
11. Contracts.
Supreme court is not free to modify or vary the terms of an unambiguous agreement.
OPINION
Per Curiam:
In this appeal, we consider whether a bail bond containing an express provision that it
would expire and have no legal effect after one year from the date of the bond should have
been forfeited when the criminal defendant failed to appear in court after the one-year period
had passed. The district court held there is an implied requirement in a bail bond that the
criminal defendant be returned to custody before a bondsman can be relieved of liability. We
disagree. We conclude that the terms of the bond contract are controlling. We reverse the
district court's order forfeiting the bond and remand the matter to the district court to
exonerate the bond.
FACTS
On April 1, 2000, appellant All Star Bonding posted a $3,000 bail bond with the Las
Vegas Justices' Court for the release of a criminal defendant charged with attempted grand
larceny. The bond provided:
This bond shall be in full force and effect until any of the following events: (1)
Exoneration by court order, (2) Termination of this case by dismissal or conviction or
(3) The expiration of one (1) year from the date of this bond, at which time this bond
shall become void and of no legal effect.
Following the posting of the bail bond, the criminal defendant failed to appear before the
court for his initial arraignment on two occasions. Finally, on February 8, 2001, the criminal
defendant made an appearance, was arraigned, and entered a guilty plea to attempted grand
larceny. He was ordered to appear for sentencing on May 24, 2001.
On May 24, 2001, the criminal defendant failed to appear for sentencing. As a result, on
June 4, 2001, the district court sent a notice of intent to forfeit All Star's surety bond.
notice of intent to forfeit All Star's surety bond. This notice provided that the surety bond
would be declared forfeited on December 2, 2001.
On August 6, 2001, All Star filed a motion to exonerate the bond, arguing that because the
bond had expired, by its terms, on April 1, 2001, the contract was void and of no legal effect
on May 24, 2001, when the criminal defendant failed to appear for sentencing. The motion
was heard and denied on September 7, 2001. The court concluded, The Court's premise is
very simple. If you put up collateral promising that someone's going to appear, and you don't
come back and then surrender on the expiration date, you still have an obligation. You can't
just walk away, and you say you had no responsibility. The district court ordered the bail
bond forfeited.
All Star filed a timely appeal claiming the district court erred in ordering forfeiture of the
bond after the bond had expired.
DISCUSSION
[Headnotes 1-4]
A bail bond is a contract between the State and the surety of the accused.
1
Contract
interpretation is a question of law and this court reviews the district court's findings de novo.
2
Bail bonds are also governed by statute.
3
This court reviews the construction of a statute de
novo.
4

[Headnotes 5, 6]
The language of the bond contract is strictly construed in accordance with the terms
contained therein.'
5
We have previously stated that the court should not revise a contract
under the guise of construing it.
6
Further, [n]either a court of law nor a court of equity can
interpolate in a contract what the contract does not contain.
7

In this case, the bail bond contract provided that it would expire one year from the date of
the bond and become void and of no legal effect. This only guaranteed the criminal
defendant's appearance in court for a period of one year, beginning April 1, 2000.
__________

1
State v. District Court, 97 Nev. 34, 35, 623 P.2d 976, 976 (1981).

2
Grand Hotel Gift Shop v. Granite St. Ins., 108 Nev. 811, 815, 839 P.2d 599, 602 (1992).

3
State v. Stu's Bail Bonds, 115 Nev. 436, 438, 991 P.2d 469, 470 (1999).

4
Id. at 438, 991 P.2d at 471 (citing County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757
(1998)).

5
U.S. v. Vaccaro, 51 F.3d 189, 193 (9th Cir. 1995) (quoting United States v. Lujan, 589 F.2d 436, 438 (9th
Cir. 1978)).

6
Club v. Investment Co., 64 Nev. 312, 324, 182 P.2d 1011, 1016 (1947).

7
Id. at 324, 182 P.2d at 1017 (internal quotation marks and citation omitted).
2000. When the criminal defendant failed to appear for sentencing on May 24, 2001, the bond
had already expired.
[Headnotes 7-9]
The State argues that the bond term, limiting the effect of the agreement to one year, is
unenforceable because such a limitation is against the public policy of ensuring that a
defendant returns to court when he is released. The State argues that public policy requires an
implied term that the surety must return the defendant to the court at the end of the bond
contract period. The State accurately points out that the court may consider legislation or
judicial decisions to determine public policy considerations. Neither, however, supports the
State's position.
NRS 178.502(2) provides, Any bond or undertaking for bail must provide that the bond
or undertaking extends, for a period of at least 1 year. This statute requires that bail bond
terms be no shorter than one year in duration. This does not express a public policy against
limitations in the bail bond term; rather, it allows such limitations. There is nothing in the
bond contract itself, or in Nevada's statutes, that provides a requirement for delivery of the
criminal defendant to custody after the expiration of the bond term.
A New York court, on similar facts, held that the bond became void after one year based
on an express term limit in the bond contract.
8
The New York court followed the general rule
that liability of a surety is limited to the express contractual obligation.
9
The court refused to
impose a duty on the bondsman to notify the court that the bond was about to expire, stating
that case law in other contexts clearly establishes that a surety is not responsible for the
principal's failure to appear in court after the court has erroneously permitted the principal to
remain at liberty beyond the terms of the bail bond.
10

Here, the district court accepted the bail agreement, which expressly limited its
effectiveness to one year. The criminal defendant appeared for his arraignment on February 8,
2001, when the bond was still in effect. When the criminal defendant failed to appear for
sentencing, the bond had already expired.
It is noteworthy that in Bronx County, New York, as well as in Nevada's Eighth Judicial
District Court, the problems arising from limited-term bail bonds have been solved in the
same manner.
11
By court order, entered by the criminal judges, the courts will no longer
accept bonds that have a limited term.
__________

8
People v. Stuyvesant Ins. Co., 413 N.Y.S.2d 843, 850 (Sup. Ct. 1979).

9
Id. at 846-47.

10
Id. at 849.

11
See id. at 850.
[Headnotes 10, 11]
Other courts, construing bond contracts, have stated that because bondsmen make
calculated risks when entering into surety agreements, they cannot be held to any greater
undertaking than they have agreed to.
12
The terms of the bond should be construed strictly
in favor of the surety.
13
We agree. As we have previously stated, We are not free to modify
or vary the terms of an unambiguous agreement.
14

CONCLUSION
The bail bond in this case unambiguously provided that the bond would become void and
of no legal effect after one year from the date of the bond. Accordingly, we conclude that the
bond had expired and had no legal effect by the time the criminal defendant failed to appear.
We, therefore, reverse the district court's forfeiture of the bond and remand for the bond to be
exonerated.
____________
119 Nev. 51, 51 (2003) Custom Cabinet Factory of N.Y. v. Dist. Ct.
CUSTOM CABINET FACTORY OF NEW YORK, INC., a Nevada Corporation, and
WESTERN INSURANCE COMPANY, a Nevada Corporation, Petitioners, v. THE
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for
THE COUNTY OF CLARK, and THE HONORABLE JEFFREY D. SOBEL, District
Judge, Respondents, and RONALD McMILLAN and THERESA McMILLAN,
Husband and Wife, Real Parties in Interest.
No. 39735
February 12, 2003 62 P.3d 741
Original petition for a writ of mandamus challenging a district court order that denied a
motion to strike a request for trial de novo.
Homeowners filed request for a trial de novo, and cabinetmaker filed motion to strike
homeowners' request, after arbitrator found in favor of cabinetmaker on its claim that
homeowners breached contract and awarded it $S,300 in damages.
__________

12
See U.S. v. Vaccaro, 51 F.3d 189, 193 (9th Cir. 1995); Rodriques v. People, 554 P.2d 291, 292-93 (Colo.
1976); State v. Ericksons, 746 P.2d 1099, 1100 (N.M. 1987).

13
Ericksons, 746 P.2d at 1100.

14
Kaldi v. Farmers Ins. Exch., 117 Nev. 273, 281, 21 P.3d 16, 21 (2001) (citing State ex rel. List v. Courtesy
Motors, 95 Nev. 103, 107, 590 P.2d 163, 165 (1979)).
contract and awarded it $8,300 in damages. The district court denied motion to strike.
Cabinetmaker filed petition for a writ of mandamus to compel the trial court to strike the
homeowners' request for a trial de novo and to further compel the court to enter judgment on
the arbitrator's award. The supreme court held that the three additional days for service by
mail must be added directly to the thirty-day period for requesting a trial de novo.
Petition granted.
Ashby & Ranalli and John W. Kirk, Las Vegas, for Petitioners.
Nitz Walton & Heaton, Ltd., and Ashley E. Nitz, Las Vegas, for Real Parties in Interest.
1. Arbitration.
Three additional days for service by mail must be added directly to the thirty-day period for requesting a trial de novo after
notice of an arbitration award is served by mail. Then, if the deadline falls on a non-judicial day, the deadline should be extended
to the next judicial day. NRCP 6(a).
2. Courts.
Decisions of the federal district court and panels of the federal circuit court of appeals are not binding upon the supreme court.
3. Courts.
An en banc decision of a federal circuit court does not bind Nevada courts.
OPINION
Per Curiam:
In this petition, we are asked to determine how to calculate the thirty-day period for
requesting a trial de novo after notice of an arbitration award is served by mail. We conclude
that the three additional days for service by mail must be added directly to the thirty-day
period and that, consequently, the district court was compelled to strike the trial de novo
request as untimely.
FACTS
Custom Cabinet Factory of New York, Inc. (Custom Cabinet) entered into a contract to
build and install custom furniture at the home of Ronald and Theresa McMillan (the
McMillans). A dispute arose regarding the quality of the work, and the McMillans refused to
pay the balance owed under the contract. Custom Cabinet then filed suit in Clark County to
recover the remaining balance owed under the contract.
Because the amount in dispute did not exceed $40,000, the matter was referred to
arbitration. There, the arbitrator found in favor of Custom Cabinet and awarded $8,300 in
damages. Thirty-four days after notice of the arbitration award was served by mail, the
McMillans filed a request for trial de novo. The McMillans claimed that their request was
timely under NAR 18, which requires that trial de novo requests be filed within thirty days of
the date notice is served, because the thirtieth day after notice was served fell on a Saturday.
Thus, they claimed to be entitled to two additional days because the deadline fell on a
Saturday and to three more days because notice was served by mail.
Custom Cabinet countered that the McMillans were entitled to thirty-three days only and
filed a motion to strike the request for trial de novo. The district court denied Custom
Cabinet's motion to strike. Custom Cabinet then filed this original petition for a writ of
mandamus to compel the district court to strike the McMillans' request for trial de novo and
to further compel the district court to enter judgment on the arbitrator's award.
DISCUSSION
[Headnote 1]
The primary issue in this matter involves the method used to compute the filing deadline
for a request for trial de novo in response to an arbitration award. In the underlying case, the
thirtieth day following service of the arbitration award fell on a Saturday. Because the
arbitration award was served by mail, it is uncontested that each party was entitled to three
additional days to file a request for trial de novo.
1
The fundamental question is whether the
three-day allowance for mailing begins on the thirty-first day or, instead, does it begin on the
first judicial day following the thirtieth day?
Custom Cabinet claims that the three-day allowance for mailing begins on the thirty-first
day, regardless of whether the thirty-first day is a non-judicial day. In support, it cites this
court's decision in Ross v. Giacomo.
2
There, we considered whether a motion for new trial or
judgment notwithstanding the verdict was timely filed under NRAP 4(a) in order to extend
the thirty-day deadline for filing a notice of appeal.
3
To be timely, such motions must be
filed within ten days after written notice of the judgment's entry is served.
4
The ten-day
requirement is extended by three days if the notice is served by mail.
5
This court added the
ten days provided by the pertinent rules and the three additional days for service by mail to
determine that the motion was subject to a thirteen-day time limit.
__________

1
NRCP 6(a).

2
97 Nev. 550, 635 P.2d 298 (1981).

3
Id. at 553, 635 P.2d at 300.

4
Id. (citing NRCP 50(b)).

5
NRCP 6(e).
to determine that the motion was subject to a thirteen-day time limit.
6
Because the thirteenth
day fell on a Sunday, the court allowed an extra day so that the filing deadline fell on a
judicial day.
7

In response, the McMillans note the dearth of Nevada case law on the subject and rely on
federal case law to support their contention that the three-day allowance should be added only
after computing the appropriate filing period and adjusting for nonjudicial days. The
McMillans contend that the Ninth Circuit's decision in Tuschner v. United States District
Court for the Central District Court of California
8
controls. There, the court stated that
FRCP 6(e)'s purpose, to provide equal response time to those served by mail, would be
thwarted if the three-day allowance for mailing were applied prior to computing the
prescribed period.
9
The McMillans cite numerous examples where other state and federal
courts have agreed.
10

[Headnotes 2, 3]
Decisions of the federal district court and panels of the federal circuit court of appeals are
not binding upon this court.
11
Even an en banc decision of a federal circuit court does not
bind Nevada courts.
12
Because this issue is not a matter of constitutional import, this court is
free to interpret state law regarding the computational scheme to be applied in Nevada state
courts.
Additionally, following the federal courts' interpretation of the relevant procedural rules
would potentially result in an additional five to seven days to file motions.
13
This result is
complicated and absurd, especially in situations where the statutory time period is only ten
days. The computation scheme used in Ross is not only simpler, it is also speedier and
promotes judicial economy. For these reasons, the additional three days for service by mail
should be added to the time allotted by statute or rule first.
__________

6
Ross, 97 Nev. at 553 nn.1 & 2, 635 P.2d at 300 nn.1 & 2.

7
Id. at 553 n.2, 635 P.2d at 300 n.2.

8
829 F.2d 853 (9th Cir. 1987).

9
Id. at 855-56.

10
See, e.g., Treanor v. MCI Communications Corp., 150 F.3d 916 (8th Cir. 1998); Lerro v. Quaker Oats Co.,
84 F.3d 239 (7th Cir. 1996); Thielking v. Kirschner, 859 P.2d 777 (Ariz. Ct. App. 1993).

11
United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir. 1970).

12
Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 633, 748 P.2d 494, 500 (1987), aff'd sub nom.
Blanton v. North Las Vegas, 489 U.S 538 (1989); see also Rahn v. Warden, 88 Nev. 429, 498 P.2d 1344 (1972).

13
For example, a motion could theoretically be permitted an additional seven days if the thirtieth day fell on
Thanksgiving Day. The next judicial day would be four days in the future. Under the federal interpretation, three
more days would be added if notice were served by mail resulting in a total increase of seven days. Under this
court's interpretation, the total increase would be a more reasonable four days.
these reasons, the additional three days for service by mail should be added to the time
allotted by statute or rule first. Then, if the deadline falls on a non-judicial day, the deadline
should be extended to the next judicial day.
14

Here, the district court should have added the three days allowed for mailing on the
thirty-first day, even though the thirty-first day was a Saturday, a non-judicial day. This
computation would result in the thirty-fourth day falling on Tuesday, a judicial day. Thus,
there would be no need to extend the deadline further.
Custom Cabinet also contends that the district court abused its discretion by treating the
provisions of NAR 18 as procedural, not jurisdictional. The district court never addressed the
issue of whether Rule 18 was procedural or jurisdictional, nor did it need to. Instead, the court
merely used a computational method favored by the federal courts, but contradicted by
Nevada precedent.
Nevada has established a precedent in Ross that requires an addition of three days for
service by mail before considering whether additional days are required to avoid having a
deadline fall on a non-judicial day. Consequently, the district court was compelled to grant
petitioners' motion to strike the trial de novo request and manifestly abused its discretion in
denying that motion. Our intervention by way of extraordinary relief is therefore warranted,
and we grant this petition.
15
The clerk of this court shall issue a writ of mandamus
instructing the district court to grant the motion to strike the trial de novo request and to enter
judgment on the arbitration award filed on July 5, 2001.
____________
119 Nev. 55, 55 (2003) City of Reno v. Reno Gazette-Journal
CITY OF RENO, Appellant, v. RENO GAZETTE-JOURNAL, Respondent.
No. 40393
February 28, 2003 63 P.3d 1147
Appeal from a district court writ of mandamus directing the City of Reno to produce to the
Reno Gazette-Journal certain documents relating to the acquisition and relocation costs of the
Reno Transportation Rail Access Corridor Project. Second Judicial District Court, Washoe
County; Jerome Polaha, Judge.
The supreme court held that Department of Transportation's regulation to the federal
Uniform Relocation Assistance and Real Property Acquisition Policies Act, which provided
that [r]ecords maintained by an Agency .
__________

14
See NRCP 6(a).

15
NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981); Smith v. District
Court, 113 Nev. 1343, 950 P.2d 280 (1997).
maintained by an Agency . . . [were] confidential regarding their use as public information,
unless applicable law provide[d] otherwise, precluded disclosure of City's documents.
Reversed.
Gibbons, J., dissented.
Patricia A. Lynch, City Attorney, and Jonathan D. Shipman, Deputy City Attorney, Reno,
for Appellant.
Burton, Bartlett & Glogovac and Phillip W. Bartlett and Rebecca A. Rivenbark, Reno, for
Respondent.
McDonald Carano Wilson LLP and Michael A.T. Pagni and Sylvia L. Harrison, Reno, for
Amicus Curiae Truckee Meadows Water Authority.
1. Mandamus.
A district court's decision to grant or deny a petition for writ of mandamus is reviewed by the supreme court under an abuse of
discretion standard.
2. Records.
Purpose of the Nevada Public Records Act is to ensure the accountability of the government to the public by facilitating
public access to vital information about governmental activities. NRS 239.010.
3. Records.
Department of Transportation's regulation implementing the federal Uniform Relocation Assistance and Real Property
Acquisition Policies Act, which provided that [r]ecords maintained by an Agency . . . [were] confidential regarding their use as
public information, unless applicable law provide[d] otherwise, precluded disclosure of City's documents relating to acquisition
and relocation of railroad, despite claim that Nevada Public Records Act was the applicable law that made documents public.
Public Records Act only provided for disclosure of records that were not confidential by law, and records were confidential by law
under federal regulation, which was adopted by statute into state law. 42 U.S.C. 4601-4655; NRS 239.010, 342.105(1); 49
C.F.R. 24.9(b).
Before the Court En Banc.
OPINION
Per Curiam:
In this appeal, we are asked to consider whether documents related to relocation and
acquisition of property for the Reno Transportation Rail Access Corridor Project (ReTRAC)
are public information, requiring disclosure under the Nevada Public Records Act. We
conclude that these records have been declared confidential by law. Therefore, they are
exempt from disclosure under the Nevada Public Records Act.
FACTS
In December 1998, the City of Reno (City) entered into an agreement with the Union
Pacific Railroad to build ReTRAC. The purpose of ReTRAC is to eliminate eleven existing
at-grade rail crossings in downtown Reno by building a trench for trains to travel through the
City. ReTRAC is the largest public works project the City has ever undertaken, with an
estimated budget of $200,000,000. The budget for ReTRAC has been the subject of immense
controversy and several lawsuits.
To complete this project, the City must acquire certain real property, including thirty-two
parcels along the railroad right-of-way. Additionally, approximately fifty-two businesses may
have to be relocated to accommodate the project. Because ReTRAC is classified as a federal
highway project, the City must comply with the federal Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970 (the Act).
1
The Cooperative (Stewardship)
Agreement between the City and the Nevada Department of Transportation (NDOT), the
Federal Highway Administration's agent for ReTRAC, specifically states that the City must
provide written certification to NDOT that all new right-of-way was acquired in accordance
with the Act.
On July 30, 2002, Anjeanette Damon, a reporter employed by the Reno Gazette-Journal
(RGJ), sent a letter to Brent Boyer, Property Program Manager of the City, requesting access
to appraisal and other documents related to ReTRAC. Specifically, Damon requested access
to: (1) the appraisal values for each of the thirty-two parcels of property to be acquired by the
City for ReTRAC, including the monetary amount offered by the City for each title
acquisition, acquisition of buildings on the railroad right-of-way, and acquisition of
temporary and permanent easements; (2) the monetary amount to be offered to each of the
fifty-two businesses that may have to be relocated because of the project; (3) a specific
breakdown of any other costs included in the project's $17,760,000 property-acquisition
budget; and (4) the name and physical address of each property owner, leaseholder and tenant
who would receive payment from the City with the list of appraisal values and relocation
payments.
In a letter dated August 1, 2002, the City denied Damon's request on the grounds that state
and federal law classify all records maintained by the City relating to ReTRAC property
acquisition and relocation as confidential as a matter of law regarding their use as public
information.
The RGJ then petitioned the district court for a writ of mandamus. The RGJ argued that
the acquisition and relocation records are public records and are required to be open for
inspection under the Nevada Public Records Act.
__________

1
42 U.S.C. 4601-4655 (1995).
the Nevada Public Records Act. As a consequence, the district court issued a writ, directing
the City to provide copies of such documents or show cause why such documents should not
be provided. The City filed an opposition to the RGJ's petition. After a hearing, the district
court issued a permanent writ of mandamus directing the City to provide copies of the
requested documents to the RGJ.
The City filed a notice of appeal with this court and a motion for stay pending appeal with
the district court. Because the district court denied the motion for a stay, the City filed an
emergency motion to stay the writ with this court, which we granted.
DISCUSSION
Standard of review
[Headnote 1]
A district court's decision to grant or deny a writ petition is reviewed by this court under
an abuse of discretion standard.
2
However, questions of statutory construction, including
the meaning and scope of a statute, are questions of law, which this court reviews de novo.
3

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
The United States Congress enacted the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970
4
to establish a uniform policy for the fair and equitable
treatment of persons displaced as a direct result of programs or projects undertaken by a
Federal agency or with Federal financial assistance.
5
The Act requires a state agency to
comply with the Act's policies whenever the agency seeks federal financial assistance for
any program or project which will result in the acquisition of real property on and after
January 2, 1971.
6

NRS 342.105
In 1989, the Nevada Legislature enacted NRS 342.105. This statute provides, in relevant
part:
__________

2
DR Partners v. Bd. of County Comm'rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000) (citing County of Clark
v. Doumani, 114 Nev. 46, 53, 952 P.2d 13, 17 (1998)).

3
State, Bus. & Indus. v. Granite Constr., 118 Nev. 83, 86, 40 P.3d 423, 425 (2002) (citing SIIS v. United
Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993)).

4
42 U.S.C. 4601-4655 (1995).

5
42 U.S.C. 4621(b) (1995).

6
42 U.S.C. 4655(a) (1995).
Any department, agency, instrumentality or political subdivision of this state, or any
other public or private entity, which is subject to the provisions of the federal Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C.
4601-4655, and the regulations adopted pursuant thereto, and which undertakes any
project that results in the acquisition of real property or in a person being displaced
from his home, business or farm, shall . . . follow such procedures and practices as are
necessary to comply with those federal requirements.
7

The Nevada statute references the federal Act and the regulations adopted pursuant to the
Act. Therefore, the federal Act and the regulations are incorporated into Nevada's statute and
remain so, as long as the federal Act is in force.
8
Furthermore, by making reference to the
Act, should the United States Congress again, in the future, amend the Uniform Relocation
Act, [Nevada] would automatically be in compliance without having to readjust the state
statutes.
9

The City is a political subdivision of the State. Therefore, the City is subject to NRS
342.105. The City is currently in the process of acquiring real property for the ReTRAC
project. ReTRAC is being financed, in part, by federal funds. Thus, the City must comply
with the Act and its regulations that were adopted by reference in NRS 342.105. Furthermore,
the City is also under a contractual obligation to comply with the requirements of the Act and
NRS 342.105 because compliance with the Act was an express term of the Cooperative
(Stewardship) Agreement entered into by the City.
Nevada Public Records Act, NRS 239.010
[Headnote 2]
In 1911, the Nevada Legislature enacted the Nevada Public Records Act, NRS 239.010.
The purpose of this statute is to ensure the accountability of the government to the public by
facilitating public access to vital information about governmental activities.
10
The statute
provides, in relevant part:
All public books and public records of a governmental entity, the contents of which are
not otherwise declared by law to be confidential, must be open at all times during
office hours to inspection by any person, and may be fully copied or an abstract or
memorandum may be prepared from those public books and public records.
__________

7
NRS 342.105(1).

8
See Walsh ex rel. v. Buckingham, 58 Nev. 342, 349, 80 P.2d 910, 912 (1938).

9
Hearing on A.B. 623 Before the Assembly Governmental Affairs Comm., 65th Leg., at 3 (Nev., May 5,
1989) (statement by Mr. Conway Barlow, Nevada Division of the Federal Highway Administration).

10
DR Partners, 116 Nev. at 621, 6 P.3d at 468.
inspection by any person, and may be fully copied or an abstract or memorandum may
be prepared from those public books and public records.
11

This statute plainly provides that public records must be available for inspection, unless
the records are declared by law to be confidential.
12
Thus, the relevant inquiry is whether
these records are confidential.
13
If the records in question have been declared by law to be
confidential, they are exempt from the Nevada Public Records Act.
49 C.F.R. 24.9(b)
The federal Act provides that [t]he head of the lead agency shall . . . develop, publish, and
issue . . . such regulations as may be necessary to carry out this chapter.
14
The Act
designates the Department of Transportation as the lead agency.
15
One of the regulations
issued pursuant to the Act is 49 C.F.R. 24.9(b), which states that [r]ecords maintained by
an Agency in accordance with this part are confidential regarding their use as public
information, unless applicable law provides otherwise.
[Headnote 3]
We interpret a regulation according to its plain meaning.
16
This regulation plainly makes
records involved in the acquisition real property for federally funded programs confidential,
and not public information, unless there is a law providing that they are not confidential. The
RGJ argues that the Nevada Public Records Act is the applicable law that makes these
records public. We disagree.
We have previously stated that it is an accepted rule of statutory construction that a
provision which specifically applies to a given situation will take precedence over one that
applies only generally.
17
Here, the federal regulation specifically provides that these records
are confidential regarding their use as public information, unless applicable law provides
otherwise.
__________

11
NRS 239.010(1) (emphasis added).

12
See Nevada Power Co. v. Haggerty, 115 Nev. 353, 366, 989 P.2d 870, 878 (1999) ( When the language
of a statute is plain and unambiguous, a court should give that language its ordinary meaning and not go beyond
it.' (quoting City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989))).

13
The record reflects that the parties did not address whether any of the requested documents meet the
definition for public book or record.

14
42 U.S.C. 4633(a)(1) (1995).

15
42 U.S.C. 4601(12) (1995).

16
See State Envtl. Comm'n v. John Lawrence Nev., 108 Nev. 431, 435, 834 P.2d 408, 411 (1992).

17
Sierra Life Ins. Co. v. Rottman, 95 Nev. 654, 656, 601 P.2d 56, 57-58 (1979) (citing W. R. Co. v. City of
Reno, 63 Nev. 330, 172 P.2d 158 (1946)).
formation, unless applicable law provides otherwise.
18
The Nevada Public Records Act
merely provides that public records that are not declared by law to be confidential, must be
open for inspection.
19
It does not declare that records regarding acquisition of property are
public. Acquisition records have been declared confidential under 49 C.F.R. 24.9(b), which
was adopted by statute into Nevada law. Therefore, these records fit within the exemption
provided in the Nevada Public Records Act. The Nevada Public Records Act is not
applicable law changing the confidential nature of these records.
CONCLUSION
In NRS 342.105, the Nevada Legislature adopted, by reference, the federal Act and its
regulations. Under 49 C.F.R. 24.9(b), the records in question are confidential. They are
therefore exempt from the Nevada Public Records Act.
20
Thus, we reverse the district court's
order and dissolve the writ of mandamus.
21

Gibbons, J., dissenting:
I would affirm the decision of the district court.
[I]nformed public opinion is the most potent of all restraints upon misgovernment.
1
The
Nevada Public Records Act, NRS 239.010, provides citizens with an unqualified right to
access public records unless the records are declared confidential by law. We have held that
any exception to this statute should be interpreted and applied narrowly.
2

Since the Reno Transportation Rail Access Corridor Project (ReTRAC) is classified as a
highway project, the City of Reno (City) is required to adhere to the Uniform Relocation
Assistance and Real Property Acquisition Policies Act (Act). Under 49 C.F.R. 24.9(b),
records maintained in accordance with the Act are confidential regarding their use as public
information, unless applicable law provides otherwise. (Emphasis added.) Therefore, a state
such as Nevada may make an independent determination of whether public records relating
to the Act should be deemed confidential.
__________

18
49 C.F.R. 24.9(b) (2002).

19
See NRS 239.010(1).

20
See NRS 239.010.

21
The Honorable A. William Maupin, Justice, did not participate in the decision of this matter.

1
Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).

2
DR Partners v. Bd. of County Comm'rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000) (citing Ashokan v. State,
Dep't of Ins., 109 Nev. 662, 668, 856 P.2d 244, 247 (1993) (citing United States v. Nixon, 418 U.S. 683, 710
(1974) (Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created
nor expansively construed, for they are in derogation of the search for truth.))).
of whether public records relating to the Act should be deemed confidential.
The Nevada Public Records Act is the applicable law governing the confidentiality of
ReTRAC documents. Neither party has disputed that the pertinent documents are public
records. The purpose of NRS 239.010 is to ensure the accountability of the government to
the public by facilitating public access to vital information about governmental activities.
3
This coincides with Nevada's general policy of favoring open government.
4
In applying
Nevada law and considering the intent of the legislature in creating NRS 239.010, public
records relating to property acquisition for ReTRAC should not be confidential. Rather,
these documents should be subject to review by the citizens most affected by its impact.
ReTRAC is the largest and most costly public works project in the history of the City with
a cost of $282 million. The project's acquisition budget alone is projected at nearly $18
million. The project includes the acquisition of thirty-two parcels of land and relocation of
approximately fifty-two businesses. The legislature's intent of holding local agencies
accountable through public scrutiny necessitates that public documents pertaining to property
acquisition under ReTRAC be made available to the public. The City should be precluded
from hiding behind a veil of secrecy in a project of such magnitude.
Further, the suppression or abridgement of the publicity afforded by a free press [to issues
of public concern] cannot be regarded otherwise than with grave concern.
5
Freedom of the
press must remain inviolate.
____________
119 Nev. 62, 62 (2003) Farmers Ins. Exch. v. Neal
FARMERS INSURANCE EXCHANGE, Appellant, v. FLOSSIE NEAL, Respondent.
No. 37977
March 12, 2003 64 P.3d 472
Appeal from a district court judgment granting declaratory relief and damages in an
insurance action. Eighth Judicial District Court, Clark County; James C. Mahan, Judge.
Automobile accident victim brought action against her child's automobile insurer for a
declaratory judgment that it owed uninsured motorist (UM) benefits above statutory
minimum, even though the victim was driving a car not covered by the child's policy.
__________

3
Id.

4
Id. at 622, 6 P.3d at 468 (citing Donrey of Nevada v. Bradshaw, 106 Nev. 630, 635-36, 798 P.2d 144,
147-48 (1990)).

5
Grosjean, 297 U.S. at 250.
though the victim was driving a car not covered by the child's policy. The district court
entered summary judgment in favor of insured. Insurer appealed. The supreme court held that
the child's policy provided no coverage for UM benefits above the statutory minimum.
Lemons Grundy & Eisenberg and Tiffinay Barker Pagni, Reno; William C. Turner &
Associates and David L. Riddle, Las Vegas, for Appellant.
Albert D. Massi, P.C., and Allen A. Cap, Las Vegas, for Respondent.
Interpretation of a contract is a question of law reviewed de novo.
2. Insurance.
An insurance policy is a contract that must be enforced according to its terms to accomplish the intent of the parties.
3. Insurance.
Courts view insurance policy language from the perspective of one not trained in law and give plain and ordinary meaning to
the terms.
4. Insurance.
Unambiguous insurance policy provisions will not be rewritten.
5. Insurance.
Policy ambiguities are to be resolved in favor of the insured.
6. Insurance.
Exclusion of uninsured motorist (UM) coverage above the statutory minimum while occupying any vehicle owned by a named
insured or a family member, if insurance was not afforded under the policy, was valid and barred resident relative's claim for UM
benefits above statutory minimum under her child's policy, where the resident relative was injured while driving her car, which
was not insured under the child's policy.
Before Rose, Maupin and Gibbons, JJ.
OPINION
Per Curiam:
This is an appeal from a declaratory judgment finding that appellant Farmers Insurance
Exchange must provide Uninsured Motorist (UM) benefits under an automobile liability
policy in an amount that exceeds the minimum statutory requirements for such coverage. We
conclude that the district court erred as a matter of law.
On November 5, 1996, respondent Flossie Neal was seriously injured in an automobile
accident with a hit and run motorist. At the time of the accident, Flossie Neal resided with her
daughter, Regina Neal.
Regina Neal. Both mother and daughter owned their own motor vehicles; each vehicle was
separately insured under automobile liability policies issued by Farmers. Both policies
contained UM coverage endorsements, under which Farmers was obligated to pay benefits,
up to the limits of coverage, for personal injury damages sustained by any person insured
under the policies stemming from the legal liability of an uninsured motorist. Under NRS
690B.020(1) and (3)(f), the hit and run driver who injured Flossie Neal qualifies as an
uninsured motorist.
Flossie Neal received the limits of UM coverage under the policy that covered her vehicle:
$15,000. Claiming coverage as a resident relative of her daughter, Flossie Neal submitted a
claim for additional benefits under her daughter's policy, which provided UM coverage limits
in excess of the statutory minimum requirements, $15,000 per person injured in a single
accident and an aggregate total of $30,000 for two or more persons injured in a single
accident. Regina Neal's policy provided UM limits in the amount of $30,000 per person
injured in a single accident.
Farmers agreed to pay the statutory minimum coverage of $15,000 under the second
policy. However, pursuant to exclusionary language in Regina Neal's policy, the carrier
denied coverage for the remainder of the limits.
Flossie Neal sought a judicial declaration that Farmers owed the entirety of the policy
limits under the separate policy. The district court found the exclusion ambiguous and ruled
in favor of Flossie Neal. Farmers appeals.
DISCUSSION
[Headnotes 1-5]
Interpretation of a contract is a question of law that we review de novo.
1
An insurance
policy is a contract that must be enforced according to its terms to accomplish the intent of
the parties.
2
We view the language from the perspective of one not trained in law' and
give plain and ordinary meaning to the terms.
3

__________

1
Musser v. Bank of America, 114 Nev. 945, 947, 964 P.2d 51, 52 (1998) (citing Grand Hotel Gift Shop v.
Granite St. Ins., 108 Nev. 811, 815, 839 P.2d 599, 602 (1992)).

2
Lumbermen's Underwriting v. RCR Plumbing, 114 Nev. 1231, 1235, 969 P.2d 301, 304 (1998) (citing
Burrows v. Progressive Casualty Ins., 107 Nev. 779, 781, 820 P.2d 748, 749 (1991)).

3
McDaniel v. Sierra Health & Life Ins. Co., 118 Nev. 596, 599, 53 P.3d 904, 906 (2002) (quoting National
Union Fire Ins. v. Reno's Exec. Air, 100 Nev. 360, 364, 682 P.2d 1380, 1382 (1984)).
Unambiguous provisions will not be rewritten;
4
however, ambiguities are to be resolved in
favor of the insured.
5

[Headnote 6]
The exclusionary language upon which Farmers relies to restrict UM coverage to the
statutory minimum reads as follows:
This coverage does not apply while occupying any vehicle owned by you or a family
member for which insurance is not afforded under this policy or through being struck
by that vehicle. This exclusion only applies to those damages which exceed the
minimum limits of liability required by Nevada law for Uninsured Motorist coverage.
We conclude that this exclusion is neither ambiguous nor is otherwise invalid.
We have held that exclusions protecting the insurer from claims in excess of the statutory
minimum are valid.
6
Also, in Farmers Insurance Exchange v. Young, we noted the
responsibility of the insured to read the insuring agreement and attach the plain meaning to
the provisions therein.
7
Here, the policy clearly indicates that UM coverage is limited to
statutory minimums where the named insured or an additionally insured family member is
injured while occupying an owned vehicle not insured under the policy.
CONCLUSION
The exclusion in Farmer's optional UM coverage is unambiguous and provides the
statutory minimum for any claim. We have consistently upheld the validity of these types of
exclusions; thus, the district court's declaratory judgment is reversed and the case is remanded
to the district court for entry of judgment in accordance with this opinion.
__________

4
Farmers Insurance Group v. Stonik, 110 Nev. 64, 67, 867 P.2d 389, 391 (1994).

5
McDaniel, 118 Nev. at 599, 53 P.3d at 906 (citing National Union Fire Ins., 100 Nev. at 365, 682 P.2d at
1383).

6
See Nelson v. CSAA, 114 Nev. 345, 348, 956 P.2d 803, 805 (1998); Stonik, 110 Nev. at 70, 867 P.2d at 392;
Farmers Ins. Exchange v. Young, 108 Nev. 328, 331-32, 832 P.2d 376, 378-79 (1992); Zobrist v. Farmers Ins.
Exchange, 103 Nev. 104, 106, 734 P.2d 699, 700 (1987).

7
108 Nev. at 333 n.2, 832 P.2d at 379 n.2.
____________
119 Nev. 66, 66 (2003) Kirkpatrick v. Dist. Ct.
BRUCE KIRKPATRICK, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE ROBERT E. GASTON, District Judge, Family Court Division,
Respondents, and SIERRADAWN KIRKPATRICK CROW, Real Party in Interest.
No. 37593
March 14, 2003 64 P.3d 1056
Petition for rehearing of Kirkpatrick v. District Court, 118 Nev. 233, 43 P.3d 998 (2002).
Original petition for a writ of mandamus seeking to compel the district court to vacate an
order issuing a marriage license allowing petitioner's fifteen-year-old daughter to marry and
seeking to annul the marriage.
Father filed motion to vacate an order that authorized fifteen-year-old daughter's marriage
to forty-eight-year-old man and to annul that marriage. The district court denied motion.
Father petitioned for writ of mandamus, and the supreme court granted petition. On
daughter's petition for rehearing, the supreme court, Shearing, J., held that: (1) statute that
allowed a court to authorize marriage of a person under sixteen years old with consent of only
one parent, in extraordinary circumstances in which marriage would serve best interests of
minor, did not violate substantive or procedural due process rights of father; and (2) father
lacked standing to seek annulment of marriage.
Petition for rehearing granted; opinion withdrawn; petition for mandamus denied.
Agosti, C. J., with whom Leavitt and Becker, JJ., agreed, dissented.
Gayle F. Nathan, Las Vegas, for Petitioner.
Rebecca L. Burton, Las Vegas; Bruce I. Shapiro, Henderson, for Real Party in Interest.
1. Mandamus.
State supreme court will not issue a writ of mandamus to control a trial court's discretionary action unless the court has
manifestly abused its discretion. NRS 34.160.
2. Mandamus.
Mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered.
NRS 34.160.
3. Mandamus.
State supreme court would consider father's petition for writ of mandamus to compel district court to reverse an order
authorizing fifteen-year-old daughter's marriage to forty-eight-year-old man because petition raised important issues of public
policy and challenged the constitutionality of a statute,
ity of a statute, requiring only one parent's consent as well as findings by the district court as to a minor's best interests, that was
applied in contexts wherein review might be evaded. NRS 34.160, 122.025.
4. Marriage.
States have the right and power to establish reasonable limitations on the right to marry.
5. Constitutional Law.
Police power confers upon the states the ability to enact laws in order to protect the safety, health, morals, and general welfare
of society.
6. Infants; Parent and Child.
State has an interest in the welfare of children and may limit parental authority.
7. Constitutional Law; Infants.
Constitutional rights apply to children as well as adults.
8. Infants.
States have the power to make adjustments in the constitutional rights of minors.
9. Marriage.
Decision to marry should rest primarily in the hands of the individual, with little government interference.
10. Marriage.
Reasonable constraints on the right to marry are appropriate, especially when the marriage involves a minor.
11. Constitutional Law; Marriage.
Statute that allowed court to authorize marriage of a minor under sixteen years old with consent of only one parent, in
extraordinary circumstances in which marriage would serve best interests of minor, did not violate substantive due process rights
of non-consenting parent; statute struck appropriate balance between minor's interest in marriage, consenting parent's interest in
minor's welfare and happiness, and non-consenting parent's interest in legal control over child for the remainder of child's
minority. Const. art. 1, 8; U.S. Const. amend. 14; NRS 122.025.
12. Parent and Child.
State has a right to limit the right of a parent to control minor child if the limitation strikes an appropriate balance between the
various interests at stake.
13. Constitutional Law; Marriage.
Statute allowing court to approve marriage of a minor under age sixteen with consent of only one parent did not violate
procedural due process rights of parent who did not give consent, even though the statute did not require notice to non-consenting
parent or provide that parent with an opportunity to be heard on whether minor should be permitted to marry; statute protected
against an erroneous outcome by requiring one parent's consent as well as a judicial determination of extraordinary circumstances
and the best interests of the minor. Const. art. 1, 8; U.S. Const. amend. 14; NRS 122.025.
14. Marriage.
Father had no standing to annul fifteen-year-old daughter's marriage under statute providing that a marriage obtained without
parental consent could only be annulled upon application by or on behalf of the person who failed to obtain such consent. NRS
125.320(2).
OPINION ON REHEARING
By the Court, Shearing, J.:
On April 11, 2002, this court issued an opinion in this case granting the petition for a writ
of mandamus.
1
Subsequently, the real party in interest filed a rehearing petition. After
reviewing the rehearing petition, as well as the briefs and appendix, we conclude that
rehearing is warranted, and we grant the petition for rehearing.
2
We now withdraw our April
11, 2002, opinion and issue this opinion in its place.
Bruce Kirkpatrick asked us to hold unconstitutional NRS 122.025, which permits a minor
under the age of sixteen to marry with the consent of one parent and district court
authorization. Under that statute, the district court permitted Kirkpatrick's fifteen-year-old
daughter to marry a forty-eight-year-old man with the consent of her mother, but without the
knowledge of her father. We conclude that NRS 122.025 is constitutional and that the district
court was correct in denying Kirkpatrick's petition to annul his daughter's marriage. We,
therefore, deny this petition for extraordinary relief.
FACTS
SierraDawn Kirkpatrick Crow is the daughter of Karen Karay and petitioner Bruce
Kirkpatrick. In 1990, Karay and Kirkpatrick were divorced in California. As part of the
divorce decree, Karay and Kirkpatrick were awarded joint legal and physical custody of
SierraDawn. In 1992, Karay and SierraDawn moved from California to New Mexico. In
December 2000, when SierraDawn was fifteen years old, she informed her mother that she
desired to marry her guitar teacher, forty-eight-year-old Sauren Crow. SierraDawn's mother
approved of the marriage. However, under New Mexico law, SierraDawn was not permitted
to marry. Therefore, SierraDawn, her mother, and Crow traveled to Las Vegas where
SierraDawn and Crow could marry, if granted permission by the court.
Karay filed a petition with the Clark County district court to obtain judicial authorization
for SierraDawn's marriage. With the petition, Karay filed an affidavit consenting to the
marriage, in which she stated that she has seen no other couple so right for each other, that
they have very real life plans at home, in the town in which we all reside,"
__________

1
Kirkpatrick v. Dist. Ct., 118 Nev. 233, 43 P.3d 998 (2002).

2
An exhibit to the petition for rehearing is an application for a marriage license in New Mexico, which was
obtained after SierraDawn turned sixteen. A subsequent marriage under New Mexico law could render this case
moot, but in view of the important constitutional issues raised and the prior opinion issued, we will consider this
case.
town in which we all reside, and that [t]heir partnership and their talents will be most
effectively utilized by this marriage. The district court found that good cause existed under
Nevada law for the marriage, and ordered that a marriage license be issued to SierraDawn and
Crow. On January 3, 2001, SierraDawn and Crow were married in Las Vegas.
When Kirkpatrick first learned of SierraDawn's marriage, he sought an ex parte temporary
restraining order in the New Mexico district court. That court granted the temporary
restraining order, and awarded Kirkpatrick immediate legal and physical custody of
SierraDawn. Four days later, however, the court rescinded its order because it found that
SierraDawn's marriage was valid under Nevada law, and that SierraDawn was emancipated as
a result of the marriage.
3

Kirkpatrick then asked the Clark County district court to vacate its earlier order
authorizing SierraDawn's marriage and to annul the marriage. Following a hearing, during
which Kirkpatrick was present and SierraDawn and Crow were physically absent, but were
represented by counsel, the district court entered an order denying Kirkpatrick's motion. The
district court concluded that the marriage complied with Nevada law and determined that
Kirkpatrick lacked standing to challenge the marriage's validity.
Thereafter, Kirkpatrick filed this petition seeking a writ of mandamus to compel the
district court to vacate its order authorizing SierraDawn's marriage and to annul the marriage.
DISCUSSION
[Headnotes 1-3]
A writ of mandamus is available to compel the performance of an act [that] the law
[requires] as a duty resulting from an office, trust or station.
4
But we will not issue a writ of
mandamus to control a trial court's discretionary action unless the court has manifestly abused
its discretion.
5
Mandamus is an extraordinary remedy, and it is within the discretion of this
court to determine if a petition will be considered.
6
We will consider this petition because it
raises important issues of public policy and challenges the constitutionality of a Nevada
statute, which is applied in contexts wherein review may be evaded.
__________

3
At common law, marriage is generally sufficient to constitute emancipation. See 1 Donald T. Kramer, Legal
Rights of Children 15.04, at 672 (2d ed. 1994). Although NRS 129.080 provides that a child who is at least
16 years of age, married or living apart from his parents . . . may petition the . . . court . . . for a [judicial] decree
of emancipation, this statutory provision does not expressly abrogate the common law effect of marriage as
emancipating a minor. It does not appear that judicial action is required for emancipation to occur. A judicial
decree, however, provides an emancipated minor with tangible evidence of his or her emancipated status.

4
NRS 34.160.

5
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

6
Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
it raises important issues of public policy and challenges the constitutionality of a Nevada
statute, which is applied in contexts wherein review may be evaded.
7

Kirkpatrick asserts that, because NRS 122.025 allows the court to approve the marriage of
a person under the age of sixteen with the consent of only one parent, he has been deprived of
his fundamental right to the parent-child relationship without a compelling reason.
Kirkpatrick also maintains that his procedural due process rights were infringed because he
was not provided with notice, with an opportunity to be heard, or with an opportunity to
object to his daughter's marriage before the court authorized it. Thus, Kirkpatrick raises both
substantive and procedural due process challenges to Nevada's marriage consent statute.
8

[Headnotes 4, 5]
It is well settled that states have the right and power to establish reasonable limitations on
the right to marry.
9
This power is justified as an exercise of the police power, which confers
upon the states the ability to enact laws in order to protect the safety, health, morals, and
general welfare of society.
10
Pursuant to this power, the Nevada Legislature enacted NRS
122.025, which states, in relevant part:
1. A person less than 16 years of age may marry only if he has the consent of:
(a) Either parent; or
(b) Such person's legal guardian,
and such person also obtains authorization from a district court as provided in
subsection 2.
2. In extraordinary circumstances, a district court may authorize the marriage of a
person less than 16 years of age if the court finds that:
(a) The marriage will serve the best interests of such person; and
(b) Such person has the consent required by paragraph (a) or (b) of subsection 1.
__________

7
See Binegar v. District Court, 112 Nev. 544, 548, 915 P.2d 889, 892 (1996).

8
SierraDawn contends that because Kirkpatrick did not raise these issues before the district court, these issues
are not properly before us. See Wolff v. Wolff, 112 Nev. 1355, 1363-64, 929 P.2d 916, 921 (1996) (stating that
an issue not raised in the district court is considered waived on appeal). Because this petition raises important
constitutional issues, we will consider them. See McNair v. Rivera, 110 Nev. 463, 468 n.6, 874 P.2d 1240, 1244
n.6 (1994) (recognizing that this court can consider constitutional issues sua sponte).

9
Zablocki v. Redhail, 434 U.S. 374, 386 (1978).

10
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (plurality opinion).
[Headnote 6]
Kirkpatrick argues that this statute violates his constitutional interest in the care, custody,
and management of his daughter since it neither requires his consent nor gives him an
opportunity to be heard on the issue of his daughter's marriage. The United States Supreme
Court has held that parents have a fundamental liberty interest in the care, custody, and
management of their children.
11
However, the United States Supreme Court has also held
that, although these rights are fundamental, they are not absolute.
12
The state also has an
interest in the welfare of children and may limit parental authority.
13
The Supreme Court has
even held, where justified, that parents can be totally deprived of their children forever.
14
If
the state can completely eliminate all parental rights, it can certainly limit some parental
rights when the competing rights of the child are implicated.
The United States Supreme Court has held that the right to marry is a fundamental right.
15
In Zablocki v. Redhail, the Court stated:
The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men.
Marriage is one of the basic civil rights of man,' fundamental to our very existence
and survival.
16

In Zablocki, when Wisconsin sought to restrict the right to marry, the Supreme Court said:
It is not surprising that the decision to marry has been placed on the same level of
importance as decisions relating to procreation, childbirth, child rearing, and family
relationships. As the facts of this case illustrate, it would make little sense to recognize
a right of privacy with respect to other matters of family life and not with respect to the
decision to enter the relationship that is the foundation of the family in our society.
__________

11
See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also Troxel v. Granville, 530 U.S. 57, 65
(2000) (stating that the interest of parents in the care, custody, and control of their childrenis perhaps the
oldest of the fundamental liberty interests recognized by this Court); Parham v. J. R., 442 U.S. 584, 602 (1979)
(noting that [o]ur jurisprudence historically has reflected Western civilization concepts of the family as a unit
with broad parental authority over minor children).

12
Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).

13
Lassiter v. Department of Social Services, 452 U.S. 18 (1981); see also Prince, 321 U.S. at 166
(recognizing that the state may require school attendance, vaccination, medical treatment, and regulate or
prohibit child labor).

14
Santosky, 455 U.S. at 768-69.

15
Loving v. Virginia, 388 U.S. 1 (1967); Zablocki, 434 U.S. 374.

16
434 U.S. at 383 (quoting Loving, 388 U.S. at 12 (quoting Skinner v. Oklahoma, 316 U.S. 535, 541
(1942))).
our society. . . . Surely, a decision to marry and raise the child in a traditional family
setting must receive equivalent protection. And, if appellee's right to procreate means
anything at all, it must imply some right to enter the only relationship in which the State
of Wisconsin allows sexual relations legally to take place.
17

[Headnotes 7, 8]
The Supreme Court has made it clear that constitutional rights apply to children as well as
adults.
18
In the case of In re Gault, the Court stated that neither the Fourteenth Amendment
nor the Bill of Rights is for adults alone.
19
In Planned Parenthood of Missouri v. Danforth,
the Court stated, Constitutional rights do not mature and come into being magically only
when one attains the state-defined age of majority. Minors, as well as adults, are protected by
the Constitution and possess constitutional rights.
20
However, the Court has also recognized
that states have the power to make adjustments in the constitutional rights of minors.
21

[Headnotes 9, 10]
Marriage is the cornerstone of the family and our civilization.
22
As marriage comprises
the most sacred of relationships,
23
the decision of whom and when to marry is highly
personal, often involving reasons that are complex and vary from individual to individual.
The decision to marry should rest primarily in the hands of the individual, with little
government interference.
24
As a society, we recognize that reasonable constraints on the
right to marry are appropriate, especially when the marriage involves a minor.
25

There is no one set of criteria that can be set forth as a litmus test to determine if a
marriage will be successful. Neither is there a litmus test to determine whether a person is
mature enough to enter a marriage. Age alone is an arbitrary factor. The Nevada Legislature
recognized that although most fifteen-year-olds would not be mature enough to enter into a
marriage, there are exceptions.
__________

17
Id. at 386 (citations omitted).

18
In re Gault, 387 U.S. 1 (1967).

19
Id. at 13.

20
428 U.S. 52, 74 (1976).

21
Ginsberg v. New York, 390 U.S. 629, 638 (1968).

22
Zablocki, 434 U.S. at 384.

23
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

24
See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974).

25
The United States Supreme Court has made clear that states can regulate marriage with respect to bigamy,
incest, or underage marriages. See Zablocki, 434 U.S. at 392 (Stewart, J., concurring); id. at 399 (Powell, J.,
concurring); id. at 404 (Stevens, J., concurring).
not be mature enough to enter into a marriage, there are exceptions. Nevada provided for the
exceptional case by allowing a fifteen-year-old to marry if one parent consents and the court
approves. The statute provides a safeguard against an erroneous marriage decision by the
minor and the consenting parent, by giving the district court the discretion to withhold
authorization if it finds that there are no extraordinary circumstances and/or the proposed
marriage is not in the minor's best interest, regardless of parental consent. The statute strikes a
balance between an arbitrary rule of age for marriage and accommodation of individual
differences and circumstances.
Consent of both parents is by no means a constitutional requirement for even the most
important of decisions regarding minors, as Kirkpatrick alleges. In Hodgson v. Minnesota, in
declaring a two-parent notification requirement for an abortion unconstitutional, the United
States Supreme Court stated:
It is equally clear that the requirement that both parents be notified, whether or not
both wish to be notified or have assumed responsibility for the upbringing of the child,
does not reasonably further any legitimate state interest. . . . In the ideal family setting,
of course, notice to either parent would normally constitute notice to both. A statute
requiring two-parent notification would not further any state interest in those instances.
In many families, however, the parent notified by the child would not notify the other
parent. In those cases the State has no legitimate interest in questioning one parent's
judgment that notice to the other parent would not assist the minor or in presuming that
the parent who has assumed parental duties is incompetent to make decisions regarding
the health and welfare of the child.
Not only does two-parent notification fail to serve any state interest with respect to
functioning families, it disserves the state interest in protecting and assisting the minor
with respect to dysfunctional families.
26

The Hodgson Court went on to hold that two-parent notification is an oddity among state
and federal consent provisions governing the health, welfare, and education of children, such
as enlisting in the armed services, obtaining a passport, participating in medical research, or
submitting to any surgical or medical procedure.
27
When the state requires the consent of
only one parent for significant events in a minor's life, the state implicitly recognizes the
common reality of modern families. A significant percentage of children under the age of
eighteen live in single-parent households.
__________

26
497 U.S. 417, 450 (1990).

27
Id. at 454.
single-parent households.
28
Furthermore, single-parent consent to a minor's marriage is
common throughout the country, and none of these laws has been declared unconstitutional
on the basis that the other parent did not consent.
29
Nor have any courts held that a
non-consenting parent's due process rights have been violated by failure to notify that parent
of a child's desire to marry, with the consent of one parent. Kirkpatrick is making a unique
argument without the support of case law.
Kirkpatrick asserts that he has been deprived of his fundamental right to the parent-child
relationship, like the parents whose parental rights have been terminated. Contrary to what is
apparently Kirkpatrick's view, the parental relationship does not end with the emancipation of
a child. The only right that he has lost by his daughter's emancipation is his right to exercise
legal control over his daughter during her minority. He still has all the other legal and social
attributes of parenthood. Kirkpatrick retains the legal rights of inheritance, as well as all the
bonds of love, care, companionship, and influence that any parents have after emancipation of
their children. How he chooses to foster those bonds is up to him.
The Supreme Court has held that the usual standard for analyzing a substantive due
process challenge to the constitutionality of a state statute that impinges on a fundamental
constitutional right is whether the statute is narrowly tailored so as to serve a compelling
interest.
30
In family privacy cases involving competing interests within the family, however,
the Court has deviated from the usual test.
31
Various child rearing and custody cases
demonstrate the Court's application of a more flexible reasonableness test, which
implicitly calibrat[es] the level of scrutiny in each case to match the particular degree of
intrusion upon the parents' interests.
32

__________

28
See Troxel, 530 U.S. at 64 (noting that in 1996, twenty-eight percent of all children in the United States
under the age of eighteen lived with only one parent).

29
See, e.g., Cal. Family Code 302 (West 1994); see also 1 Kramer, supra note 3, 14.04, at 596.

30
See Washington v. Glucksberg, 521 U.S. 702, 721 (1997); accord Lulay v. Lulay, 739 N.E.2d 521, 529 (Ill.
2000); Wolinski v. Browneller, 693 A.2d 30, 37 (Md. Ct. Spec. App. 1997); see also John E. Nowak & Ronald
D. Rotunda, Constitutional Law 10.6(a), at 348 (5th ed. 1995).

31
See generally David D. Meyer, The Paradox of Family Privacy, 53 Vand. L. Rev. 527 (2000).

32
Id. at 546; see also David D. Meyer, Lochner Redeemed: Family Privacy After Troxel and Carhart, 48
UCLA L. Rev. 1125 (2001) (examining the Supreme Court's application of a reasonableness test when
balancing competing liberty interests in family-privacy jurisprudence); David D. Meyer, Family Ties: Solving
the Constitutional Dilemma of the Faultless Father, 41 Ariz. L. Rev. 753, 838-43 (1999) (discussing whether
the Supreme Court in family privacy cases applies a strict scrutiny standard or a reasonableness test).
[Headnotes 11, 12]
In this case, we have the interest of the daughter in marriage and the interest of the mother
in her daughter's welfare and happiness balanced against the father's interest in the legal
control of his daughter for the remainder of her minority. NRS 122.025 strikes an appropriate
balance between the various interests. As the United States Supreme Court stated in
Hodgson, [n]or can any state interest in protecting a parent's interest in shaping a child's
values and lifestyle overcome the liberty interests of a minor acting with the consent of a
single parent or court.
33
While the right involved in this case is different, the Hodgson
language illustrates the fact that there is clearly a limit on a single parent's control. The state
has a right to limit the right of a parent if the limitation strikes an appropriate balance
between the various interests at stake. As the Supreme Court said in Michael H. v. Gerald D.
34
in criticizing the dissent:
It seems to us that [the dissent] reflects the erroneous view that there is only one side to
this controversythat one disposition can expand a liberty of sorts without
contracting an equivalent liberty on the other side. Such a happy choice is rarely
available. . . . Our disposition does not choose between these two freedoms, but
leaves that to the people of California.
Nevada has an interest in promoting stable marriages, while not treating minors arbitrarily
by denying them a right based solely on a few months' difference in age. In fact, at common
law, although minors could not enter other contracts, they were allowed to contract for
marriage at age twelve for a girl and age fourteen for a boy.
35
Other state legislatures are free
to set a different public policy for their states,
36
but that does not invalidate Nevada's public
policy.
Kirkpatrick alleges that even if NRS 122.025 does not infringe on his substantive
constitutional rights, it still infringes on his procedural due process rights by depriving him of
notice and the opportunity to be heard on whether his daughter should be allowed to marry.
The United States Supreme Court made it clear in Hodgson that a two-parent notification
requirement when a minor seeks to enforce a right is not necessarily required.
37
The Court
said that even though the other parent may have an interest in the minor's decision and full
communication is desirable, "[t]he State has no more interest in requiring all family
members to talk with one another than it has in requiring certain of them to live together.
__________

33
497 U.S. at 452.

34
491 U.S. 110, 130 (1989).

35
State v. Wade, 766 P.2d 811, 815 (Kan. 1989) (noting that the common law still controls the minimum age
for marriage).

36
See, e.g., Moe v. Dinkins, 533 F. Supp. 623 (S.D.N.Y. 1981), aff'd, 669 F.2d 67 (2d Cir. 1982).

37
497 U.S. at 450.
minor's decision and full communication is desirable, [t]he State has no more interest in
requiring all family members to talk with one another than it has in requiring certain of them
to live together.
38

The usual test that is cited to determine whether a litigant's procedural due process rights
have been violated is set forth in Mathews v. Eldridge in the context of the deprivation of a
property right.
39
The factors the United States Supreme Court considers are:
First, the private interest that will be affected by the official action; second, the risk of
an erroneous deprivation of [the private] interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally, the
Government's interest, including . . . the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
40

This test is really more appropriate in the context of the government deprivation of property
rather than in the context of an intra-family dispute; however, applying the test still does not
invalidate Nevada's procedures.
Kirkpatrick does have an interest in the control of his daughter, but her emancipation
merely means that he no longer has the force of the law to enforce his rules and restrictions.
He still has all the moral and social authority that comes with parenthood. Kirkpatrick has
basically suffered no injury. The cases which have found that the parent has a right to be
heard have all been in the context of a party outside the family seeking to deprive parents of
control, not in the context of family members with competing interests.
41
In the one context
in which a right of parental notification regarding an important decision by a child has been
litigated, the United States Supreme Court has concluded that the parent had no such right.
42

[Headnote 13]
Under NRS 122.025, the state has provided the protections against an erroneous outcome
by requiring one parent's consent, as well as a judicial determination of extraordinary
circumstances, and the best interest of the minor. Just because a litigant is unhappy with the
outcome, does not mean that he has a right to be heard when appropriate safeguards are in
place. The state also has an interest in fostering appropriate marriages and tailoring its
statutes in such a way as to take into account the individual variations in maturity, rather
than just setting an arbitrary rule of age.
__________

38
Id. at 452.

39
424 U.S. 319, 335 (1976).

40
Id. at 335.

41
Troxel, 530 U.S. 57; Santosky, 455 U.S. 745; Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v.
Nebraska, 262 U.S. 390 (1923).

42
Hodgson, 497 U.S. 417.
such a way as to take into account the individual variations in maturity, rather than just
setting an arbitrary rule of age. Requiring additional notices and hearings would be a financial
and administrative burden, which would hinder the state policy of fostering appropriate
marriages. Balancing the interests of the state and the minimal deprivation to Kirkpatrick, it
cannot be said that Kirkpatrick has been deprived of procedural due process under either the
United States or Nevada Constitutions.
[Headnote 14]
Kirkpatrick also seeks to annul the marriage of his daughter. NRS 125.320(2) provides
that a marriage obtained without parental consent may only be annulled upon application by
or on behalf of the person who fails to obtain such consent. Thus, Kirkpatrick has no
standing to annul his daughter's marriage.
For the foregoing reasons, we find that NRS 122.025 is constitutional, and therefore, the
petition for a writ of mandamus is denied.
43

Rose and Maupin, JJ., and Young, Sr. J., concur.
Agosti, C. J., with whom Leavitt and Becker, JJ., agree, dissenting:
I dissent. The majority has reached beyond the relief sought in the petition for rehearing. In
her petition, SierraDawn admits that this court, in its earlier decision,
1
wisely added
procedural due process requirements to the statute and otherwise clarified the requirements
for minors under the age of 16 wanting to marry. These requirements are appropriate and
reasonable and provide the district courts with needed guidance. Moreover, SierraDawn
contends that Kirkpatrick should be given the opportunity to be heard, [she] should be given
an opportunity to be heard, and the district court should be given the opportunity to hear the
evidence and make a decision as to whether the marriage is void. SierraDawn simply asks
that this court order a hearing so that she has an opportunity to establish that marriage is in
her best interests and that her marriage should not be declared void. Thus, the only issue
raised on rehearing is whether the district court should be required to conduct a new hearing.
The majority opinion ignores the relief requested in the petition for rehearing and treats this
case as though it were before the court for the first time.
__________

43
The Honorable Cliff Young, Senior Justice, having participated in our prior decision of this matter and in
our deliberations on rehearing as a Justice of the Nevada Supreme Court, was assigned to participate in the
decision on rehearing following his retirement. Nev. Const. art. 6, 19; SCR 10. The Honorable Mark Gibbons,
Justice, did not participate in the decision of this matter.

1
Kirkpatrick v. Dist. Ct., 118 Nev. 233, 43 P.3d 998 (2002).
though it were before the court for the first time. According to the majority, the sole issue
before the court is whether NRS 122.025, the marriage consent statute, is constitutional.
In determining that the statute is constitutional, the majority purports to balance the
competing interests of SierraDawn, Karay, and Kirkpatrick, but the majority fails to balance,
or even appropriately recognize, the interests at stake. Marriage is a civil contract between
parties with the capacity to contract.
2
A child under the age of eighteen has no capacity to
contract absent some limited statutory authority.
3
The majority acknowledges that states can
place limitations on a minor's ability to marry, yet in the same breath suggests that a minor
has a fundamental liberty interest in marriage. But the Supreme Court has never declared or
suggested that a minor has a fundamental right to marry. And Nevada's statute, even if
deemed constitutional, recognizes that a minor has no independent constitutional right to
marrythe minor must obtain parental and court consent or have no right at all.
This limited statutory right cannot be equated with an adult's fundamental marriage right.
Even if a child could be deemed to have some constitutionally recognized interest in
marriage, the United States Supreme Court has pointed to the following three reasons why
children's constitutional rights are not equivalent to those of adults: the peculiar vulnerability
of children; their inability to make critical decisions in an informed, mature manner; and the
importance of the parental role in child rearing.
4
Our legal system recognizes time and time
again that children are not capable of making all the decisions necessary to lead an adult life
and are not vested with the same spectrum of constitutional rights afforded adults.
5

The majority misses the mark with its citation to an abortion case, Hodgson v. Minnesota.
6
Hodgson concluded that two-parent consent is unconstitutional when a minor seeks to
enforce her right to obtain an abortion.
__________

2
State Farm Fire & Cas. Co. v. Platt, 4 F. Supp. 2d 399, 404 (E.D. Pa. 1998).

3
See, e.g., NRS 129.010 (providing that all persons who are eighteen years old and without legal disability, or
who have been declared emancipated, are capable of entering into contracts and are held to be of lawful age).

4
Bellotti v. Baird, 443 U.S. 622, 634 (1979).

5
See, e.g., Goss v. Lopez, 419 U.S. 565, 590-91 (1975) (Powell, J., dissenting) (stating the importance of the
experience of mankind, as well as the long history of our law, recognizing that there are differences which must
be accommodated in determining the rights and duties of children as compared with those of adults. Examples of
this distinction abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and
rehabilitation, and in the right to vote and to hold office.); Ginsberg v. New York, 390 U.S. 629 (1968)
(upholding criminal statute that prohibited sale of obscene materials to minors when challenged under the First
Amendment); Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding prohibition on child labor when
challenged on First Amendment free exercise grounds).

6
497 U.S. 417 (1990).
consent is unconstitutional when a minor seeks to enforce her right to obtain an abortion.
Here, SierraDawn is not enforcing an abortion right, or, for that matter, any fundamental right
as a minor. A minor's right to have an abortion and the limited right to marry involve entirely
different considerations. As the Supreme Court has aptly observed: The abortion decision
differs in important ways from other decisions that may be made during minority . . . . The
pregnant minor's options are much different from those facing a minor in other situations,
such as deciding whether to marry.
7
A minor's abortion decision concerns recognized
privacy interests and must be made in a very limited period of time: [a] pregnant adolescent .
. . cannot preserve for long the possibility of aborting, which effectively expires in a matter of
weeks from the onset of pregnancy.
8
The privacy and time concerns present in any abortion
decision are absent in a decision to marry. A minor's desire to marry implicates contracts,
parental control and the adult responsibilities that arise in a marital relationship. If marriage is
delayed, the minor may marry later, if she and her intended spouse continue to want such a
relationship. Accordingly, with respect to abortion decisions, unlike other situations, a state
may require parental notification or consent only if it also provides an adequate procedure for
the minor to bypass her parent or parents and go directly to a court for permission to have an
abortion.
9

In Moe v. Dinkins,
10
a federal district court rejected a constitutional challenge brought by
a class of minors, to New York's dual-parent marriage consent law. That court determined
that the minors' reliance on abortion and contraception cases was misplaced.
11
The court
recognized that [g]iving birth to an unwanted child involves an irretrievable change in
position for a minor as well as for an adult, whereas the temporary denial of the right to marry
does not.
12
A minor's inability to marry is not a total deprivation of a marriage right, but
merely a delay. Thus, SierraDawn's limited marriage interest cannot be equated with a minor's
interest in obtaining an abortion.
Further, Hodgson was an extremely divided opinion. The majority fails to recognize this
important feature of the case. Although five members of the Court concluded that a
two-parent consent requirement was unconstitutional, in large part because many American
families have only one involved parent, five justices also concluded that the abortion statute's
bypass procedures rendered any constitutional concerns about two-parent notification
moot because the minor could avoid notifying one or both parents.
__________

7
Bellotti, 443 U.S. at 642.

8
Id.

9
Id. at 644, 647-48.

10
533 F. Supp. 623 (S.D.N.Y. 1981), aff'd, 669 F.2d 67 (2d Cir. 1982).

11
Id. at 630.

12
Id.
dered any constitutional concerns about two-parent notification moot because the minor could
avoid notifying one or both parents. In light of this split, the Supreme Court affirmed in its
entirety the Eighth Circuit's judgment in the case.
13
The Eighth Circuit's judgment concluded
that [c]onsidering the statute as a whole and as applied to all pregnant minors, the
two-parent notice requirement does not unconstitutionally burden the minor's abortion right.'

14

The two-parent statute in Hodgson, moreover, required a different analytical framework
than the marriage consent statute at issue in this case. The Hodgson Court took issue with the
abortion statute because of the problems inherent in obtaining consent from both parents
when one parent is unavailable, disinterested, or caused the pregnancy. Here, the marriage
consent statute, which requires only one parent to consent, is constitutional on its face, but
unconstitutional when applied to deprive, with absolutely no procedural safeguards, a parent
of his fundamental liberty interest. That parent's consent is not the issue, for the district court
must ultimately make the marriage determination. Instead, that parent's right to notice and to
participate in the proceedings must be considered.
Unlike SierraDawn's limited marriage interest, Kirkpatrick's interest in parenting his
teenage daughter, which includes participating in her important life decisions, is a
fundamental liberty interest.
15
As the United States Supreme Court has recognized, The
history and culture of Western civilization reflect a strong tradition of parental concern for the
nurture and upbringing of their children. This primary role of the parents in the upbringing of
their children is now established beyond debate as an enduring American tradition.
16
A
parent's protected interest does not end because of divorce or a child's development,
17
and
parents do have the authority to control their children's associates.
__________

13
Hodgson, 497 U.S. at 423.

14
Id. at 433 (quoting Hodgson v. Minnesota, 853 F.2d 1452, 1464-65 (8th Cir. 1988)). Consequently, even if
a two-parent abortion consent statute were at issue here, Hodgson would not mandate that we hold it
unconstitutional.

15
See, e.g., Moore v. East Cleveland, 431 U.S. 494, 499 (1977) (recognizing a private realm of family life
which the state cannot enter' (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944))); Wisconsin v.
Yoder, 406 U.S. 205, 232 (1972) (acknowledging that parents have the primary role to nurture and raise their
children); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recognizing interest of parent in companionship, care,
custody and management of children); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (recognizing that
parents have a duty to prepare children for life's obligations); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)
(stating that due process protects parents' liberty interests in establishing a home and bringing up children).

16
Yoder, 406 U.S. at 232.

17
See, e.g., Prisco v. U.S. Dept. of Justice, 851 F.2d 93, 97 (3d Cir. 1988), overruled on other grounds by
Acierno v. Cloutier, 40 F.3d 597 (3d Cir. 1994); see generally Margaret F. Brinig & F.H. Buckley, Joint
Custody: Bonding and Monitoring Theories, 73 Ind. L.J. 393, 396 (1998) (Joint cus-
the authority to control their children's associates.
18
Justice Stevens, in Hodgson, recognized
that the demonstration of commitment to the child through the assumption of personal,
financial, or custodial responsibility may give the natural parent a stake in the relationship
with the child rising to the level of a liberty interest.
19
Kirkpatrick is apparently a father
who has been consistently eager to participate in his daughter's upbringing. Until SierraDawn
was married, Kirkpatrick shared joint legal and physical custody of SierraDawn. He had the
right to spend time with and provide guidance to his daughter, and the right to participate in
the important decisions that would shape her life. Clearly, Kirkpatrick's interest in
maintaining his parental relationship with his daughter warrants greater protection than
fifteen-year-old SierraDawn's limited interest in her desire to marry her forty-eight-year-old
guitar teacher.
The only way to balance the interests at issue here and ensure that the district court makes
an informed decision is to require the district court to give interested and involved parents
like Kirkpatrick notice and an opportunity to participate before making its decision. The
majority's approach, which exalts a child's limited interest in marriage over a parent's
constitutionally protected interest in raising the child, results in no balance at allno
recognition of Kirkpatrick's protected constitutional rights, no constitutionally mandated
procedural safeguards and no requirement that extraordinary circumstances and best interests
be determined.
The majority erroneously analyzes Kirkpatrick's procedural due process claim by
misapplying the Supreme Court's three-part test. Mathews v. Eldridge sets forth the factors
that must be considered:
20

__________
tody means more than a sharing of physical custody, as parents must share the responsibility for the child's
upbringing. Both parents are to be consulted on major decisions, and each might veto the other's decisions.
(footnote omitted)); Stephanie N. Barnes, Comment, Strengthening the Father-Child Relationship Through a
Joint Custody Presumption, 35 Willamette L. Rev. 601, 612 (1999) (observing that joint legal custody allows
parents to share major decisions concerning the child's upbringing).

18
See Troxel v. Granville, 530 U.S. 57, 78 (2000) (Souter, J., concurring) (The strength of a parent's interest
in controlling a child's associates is as obvious as the influence of personal associations on the development of
the child's social and moral character. Whether for good or for ill, adults not only influence but may indoctrinate
children . . . .); Griggs v. Barnes, 78 So. 2d 910, 916 (Ala. 1955) (stating that [t]he essence of custody is
the companionship of the child and the right to make decisions regarding his care and control, education, health,
and religion ' (quoting Guardianship of Smith, 255 P.2d 761, 762 (Cal. 1953) (quoting Lerner v. Superior
Court, 242 P.2d 321, 323 (Cal. 1952)))).

19
Hodgson, 497 U.S. at 446 (opinion of Stevens, J.).

20
424 U.S. 319, 335 (1976).
First, the private interest that will be affected by official action; second, the risk of an
erroneous deprivation of [the private] interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally, the
Government's interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement[s] would entail.
Initially, the majority, in trying to avoid the obvious outcome in a Mathews analysis,
incorrectly states, without citation, that the Mathews test is really more appropriate in the
context of the government deprivation of property rather than in the context of an intra-family
dispute.
21
This court has consistently relied on Mathews when analyzing procedural
protections when a liberty interest has been impinged upon.
22
Other courts, including the
Supreme Court, have applied Mathews when liberty interests were involved.
23

The majority then finds a creative, result-oriented path to reach its conclusion that no
procedural due process violation occurred in this case. It characterizes Kirkpatrick's interest
as one of control and states that he has basically suffered no injury because he retains the
(rather obtuse) moral and social authority that comes with parenthood.
24
Kirkpatrick has
maintained an active role in SierraDawn's life, and, until her marriage, their relationship was
a continuous one. Because Kirkpatrick consistently demonstrated paternal commitment to
SierraDawn, through custody and visitation, he has a fundamental liberty interest in the
parent-child relationship.
25
Although the majority concludes that Kirkpatrick has suffered no
real injury, he has lost his daughter. He no longer has the right to see her, to care for her, to
have her live with him, or to participate in any of her important life decisions. How his
interest in his daughter's growth and development, and his concomitant loss of her
companionship, can be characterized as minimal is bewildering.
The majority then completely dodges the second Mathews factor by stating that the state
has provided the protections against an erroneous outcome by requiring one parent's consent,
as well as a judicial determination of extraordinary circumstances, and the best interest of
the minor.
__________

21

22
See Matter of Parental Rights as to Daniels, 114 Nev. 81, 953 P.2d 1 (1998) (parental rights termination);
Minton v. Board of Medical Examiners, 110 Nev. 1060, 881 P.2d 1339 (1994) (right to practice medicine); State
Bar of Nevada v. Claiborne, 104 Nev. 115, 756 P.2d 464 (1988) (right to practice law); Tarkanian v. Nat'l
Collegiate Athletic Ass'n, 103 Nev. 331, 741 P.2d 1345 (1987) (employment and reputation).

23
See John E. Nowak & Ronald D. Rotunda, Constitutional Law 13.9, 599-606 (6th ed. 2000).

24

25
See Hodgson, 497 U.S. at 445-46.
dicial determination of extraordinary circumstances, and the best interest of the minor.
26
The majority does not even mention the risk that Kirkpatrick's interest was erroneously
deprived and what probable value additional safeguards would have provided. The focus of
this second factor is the risk that Kirkpatrick was erroneously deprived of his parental
interest. Given the utter lack of procedural protections here, the risk that Kirkpatrick was
improperly deprived of his parental interest is great. He was not even given notice of
SierraDawn's marriage, much less an opportunity to be heard. Moreover, procedural
safeguards would not only have enhanced the likelihood that Kirkpatrick's rights as
SierraDawn's parent were not impeded without his knowledge, but also would have ensured
that SierraDawn's best interests were addressed, as required by the statute.
Finally, and ironically, the majority concludes that [r]equiring additional notices and
hearings would be a financial and administrative burden, which would hinder the state policy
of fostering appropriate marriages.
27
The majority puts the cart before the horse. If the
state's policy is to foster appropriate marriages, then requiring proper notice and a
meaningful hearing in cases such as this would assist the state in determining whether the
marriage is appropriate. The district court, in deciding whether to authorize the minor's
marriage, is required by Nevada's statute to determine whether extraordinary circumstances
exist and if the minor's best interests are served by the proposed marriage. Suggesting that the
court would be financially or administratively burdened by fully performing its task is
ridiculous.
The Mathews factors all point to the same result. Under the circumstances presented here,
Kirkpatrick was entitled to notice and a meaningful opportunity to be heard before the district
court determined that SierraDawn could marry. Kirkpatrick was denied such protections,
however, and his due process rights were violated.
The majority proclaims that by giving the district court the discretion to withhold
authorization, the statute provides safeguards against erroneous marriages. According to the
majority, the statute strikes a balance between the arbitrary rule of age and an individual's
choice to marry. Age is not arbitrary, however. The legislature has delineated various
requirements that minors must meet in order to marry, based on age.
28
For a fifteen-year-old
child, the legislature requires the district court to find extraordinary circumstances and that
the marriage serves the child's best interests.
__________

26

27
See id. at 77.

28
See NRS 122.020(1) (marriage at eighteen years old); NRS 122.020(2) (marriage at least sixteen years old);
NRS 122.025 (marriage under sixteen years of age).
and that the marriage serves the child's best interests. The majority opinion is necessarily
devoid of any discussion concerning the district court's finding of extraordinary
circumstances or that the proposed marriage was in SierraDawn's best interests, since no such
circumstances existed. The district court did not even engage in this analysis. Thus, I do not
see how the statute provided SierraDawn any protection.
The marriage consent statute includes a two-tiered approach: if one parent consents, then,
[i]n extraordinary circumstances, a district court may authorize the marriage of a person less
than 16 years of age if the court finds that . . . [t]he marriage will serve the best interests of
such person.
29
Moreover, pregnancy alone does not establish that the minor's best interests
will be served by marriage, nor is pregnancy required by the court as a condition necessary for
its marriage authorization.
30
Thus, under the statute, any judicial authorization must be based
on the court's determination that extraordinary circumstances warrant the marriage, and that
the minor's best interests will be served. If pregnancy, in and of itself, does not demonstrate
that the minor's best interests rest in marriage, then extraordinary circumstances and best
interests must mean that the circumstances justifying the marriage are extreme and unusual.
According to the documents before us, the district court had only Karay's summary
affidavit before it when it made its decision. The district court apparently relied exclusively
on Karay's observations that SierraDawn and Crow had very real life plans, and that Karay
has seen no other couple so right for each other. Surely these cursory observations neither
establish extraordinary circumstances, nor serve to demonstrate how the marriage is in
SierraDawn's best interests. Since Karay was not personally present before the district court
when it granted the petition to marry, the court did not have an opportunity to investigate her
credibility or motives. And, although there is an approximate thirty-year disparity between
SierraDawn and Crow, and SierraDawn was only fifteen years old at the time, the district
court failed to ask Karay more specifically why it was in SierraDawn's best interests to marry
Crow.
Even worse, the district court signed a basic form order granting the petition to marry. This
form simply stated that good cause exists under the Statutes of Nevada for the marriage of
applicant to Sauren Crow. The court did not interview the parties or conduct any meaningful
hearing. Kirkpatrick was not even given notice of the proceedings, much less an opportunity
to be heard on whether extraordinary circumstances existed or if SierraDawn's best interests
would be served.
__________

29
NRS 122.025(1), (2).

30
NRS 122.025(2).
best interests would be served. The majority puts a great deal of faith in the district court's
form order; it, along with Karay's summary affidavit, represents the whole of SierraDawn's
statutory protection.
As the majority would have it, under Nevada's marital consent statute, a father could
permit his thirteen-year-old son to marry the son's forty-two-year-old soccer coach, and the
boy's mother would have nothing to say about it. The mother, according to the majority,
would have lost nothing but a desire to control her son.
Now, one parent, without the other parent's knowledge, can turn what would otherwise be
a crime worthy of headline news into state sanctioned, constitutionally protected conduct. I
would point out that the Utah Court of Appeals recently upheld the conviction of a
thirteen-year-old girl's father, after concluding that the evidence supported a finding that the
father knew and intended that the daughter have sexual intercourse with his
forty-eight-year-old friend, the daughter's alleged husband.
31
There, the father conducted a
ceremony to marry his young daughter to his friend. The father instructed the daughter that as
a wife, she was expected to engage in sexual relations with her husband.
32
Eventually, the
daughter left the relationship and informed a law enforcement officer of the marriage and her
sexual relations with the husband.
33
The father was arrested and convicted, after a jury
trial, of three counts of child rape as an accomplice.
34
The husband was charged with child
rape and fled the jurisdiction.
35
The father would have been completely protected from
serious criminal liability, while at the same time achieving his objective of a consummated
marriage for his daughter, had he simply brought her to Nevada and executed an affidavit, as
Karay did, along with a petition to permit his daughter to marry.
The majority also fails to address the fact that Nevada's marriage consent statute includes
no minimum age for marriage.
36
Under the statute, an eight-year-old child could marry a
forty-year-old adult, with one parent's consent and the district court's authorization. If one
parent petitioned, and a court, with no meaningful review of the case, authorized the marriage
(as occurred here), then under the majority's view, absolutely no one would be in a position to
challenge it.
The majority insists that the intent of the marriage consent statute is to delineate the
circumstances under which a minor under sixteen years of age may marry.
__________

31
State v. Chaney, 989 P.2d 1091 (Utah Ct. App. 1999).

32
Id. at 1094.

33
Id.

34
Id. at 1095.

35
Id. at 1102.

36
See NRS 122.025.
years of age may marry. Interestingly, the legislative history reveals that the actual impetus
for passing the statute was money. In 1977, when the Nevada Legislature amended the
marriage consent statute to allow a minor under the age of sixteen to marry with the consent
of only one parent, the legislature made clear that the decision was driven by the Nevada
Wedding Association's successful lobbying efforts.
37
Apparently, during the late 1970s,
because Nevada required both parents to consent to the marriage of a minor under sixteen, a
small percentage of non-residents who came to Nevada to get married were turned away
because they traveled with only one parent, or presented the signature of only one parent.
38
The legislature's decision to amend the statute was determined by economics and certainly
was not motivated by an attempt to balance the interests of parents and minor children. I
seriously question whether the legislature would have passed the current statute had it
foreseen the majority's decision in this case.
39
Under these circumstances, I cannot
understand how the majority can uphold the district court's marriage authorization.
__________

37
See Hearing on A.B. 298 Before the Senate Judiciary Comm., 59th Leg. (Nev., March 18, 1977).

38
Hearing on A.B. 298 Before the Assembly Commerce Comm., 59th Leg. (Nev., February 23, 1977).

39
Other states have enacted statutes that are in keeping with due process requirements. Some require both
parents to consent to a minor child's marriage, if both parents are available. See, e.g., Ga. Code Ann.
19-3-37(b) (1999); Iowa Code 595.2(4)(a) (2001); La. Child. Code Ann. art. 1545(A) (1995); see also N.J.
Stat. Ann. 37:1-6 (West 2002) (requiring that both parents consent unless one of them is of unsound mind).
Another state requires that the court appoint an attorney guardian ad litem for the minor and consider the opinion
of both parents when determining whether marriage is in the child's best interests. See, e.g., N.C. Gen. Stat.
51-2.1(a)(1) (2002). Indiana requires that both parents receive notice of the hearing regarding marriage
authorization, if both parents are involved with the child and are competent to testify. Ind. Code 31-11-1-6(2)
(1997).
____________
119 Nev. 87, 87 (2003) Dewey v. Redevelopment Agency of Reno
JON SEVEREN DEWEY, an Individual; ROSEMARY B. DiGRAZIA, an Individual;
ANTOINETTE MOLLETT HARSH, an Individual; NANNA R. RASSU, an
Individual; THE NATIONAL TRUST FOR HISTORIC PRESERVATION, a Private
Non-Profit Organization; and THE TRUCKEE MEADOWS HERITAGE TRUST, a
Non-Profit Corporation, Appellants/Cross-Respondents, v. THE REDEVELOPMENT
AGENCY OF THE CITY OF RENO, NEVADA, Respondent/Cross-Appellant.
No. 35339
March 14, 2003 64 P.3d 1070
Appeal and cross-appeal from an order and judgment of the district court, entered pursuant
to a bench trial, declaring that the Redevelopment Agency of the City of Reno violated
Nevada's Open Meeting Law and granting injunctive relief. Second Judicial District Court,
Washoe County; James W. Hardesty, Judge.
Preservationists brought action for injunction after redevelopment agency voted at meeting
to allow demolition of hotel, claiming that agency's small, private, back-to-back briefings
regarding demolition violated Open Meeting Law. The district court enjoined agency from
holding future back-to-back private meetings. Preservationists and redevelopment agency
appealed. The supreme court held that briefings did not violate Open Meeting Law.
Reversed.
Jeffrey A. Dickerson, Reno, for Appellants/Cross-Respondents National Trust for Historic
Preservation and Truckee Meadows Heritage Trust.
K. Sue Trimmer, Reno, for Appellants/Cross-Respondents Dewey, DiGrazia, Harsh and
Rassu.
Patricia A. Lynch, City Attorney, and Michael K. Halley and Michael L. Melner, Deputy
City Attorneys, Reno; Goldfarb & Lipman and David M. Robinson, Lee C. Rosenthal, and
Yoomie L. Ahn, Oakland, California, for Respondent/Cross-Appellant.
A district court's factual determinations will not be set aside on review unless they are clearly erroneous and not supported by
substantial evidence.
A district court's conclusions of law are reviewed de novo.
3. Statutes.
If the language of a statute is plain and unambiguous, and its meaning is clear and unmistakable, there is no room for
construction, and the courts are not permitted to search for its meaning beyond the statute itself.
4. Statutes.
Courts are to give words in a statute their plain meaning unless that violates the spirit of the act.
5. Municipal Corporations.
Back-to-back private briefings which lacked quorum of city redevelopment agency's members were not meetings within
meaning of Open Meeting Law, although briefings were designed to permit agency members to gather information and discuss the
highly complex redevelopment proposal; there were no serial collective discussions between briefings, and there was no substantial
evidence that agency members met for purpose of taking action on or collectively discussing a matter of public business. NRS
241.015(2).
6. Municipal Corporations; Statutes.
A statute promulgated for the public benefit such as a public meeting law should be liberally construed and broadly
interpreted to promote openness in government.
7. Administrative Law and Procedure.
The Open Meeting Law only prohibits collective deliberations or actions where a quorum is present. NRS 24.015(2).
A quorum is necessary to apply the Open Meeting Law to a given situation. NRS 241.015(2).
A collective discussion by a quorum of an issue with the goal of reaching a decision is a deliberation for purposes of the
Open Meeting Law. NRS 241.015(2).
The quorum standard required for a meeting to fall under the Open Meeting Law is a bright-line standard in legislative
recognition of a demarcation between the public's right of access and the practical necessity that government must function on an
orderly, but nonetheless legitimate, basis. NRS 241.015(2).
When less than a quorum is present, private discussions and information gathering do not violate the Open Meeting Law.
NRS 241.015(2).
Mere back-to-back briefings, standing alone, do not constitute a constructive quorum for purposes of the Open Meeting Law.
NRS 241.015(2).
OPINION
Per Curiam:
This appeal and cross-appeal asks whether private, back-to-back staff briefings attended by
less than a quorum of a public body violates Nevada's Open Meeting Law. We conclude that,
absent substantial evidence of serial communications to support a finding of action or
deliberation towards a decision,
stantial evidence of serial communications to support a finding of action or deliberation
towards a decision, private back-to-back briefings of less than a quorum of a public body do
not violate the Open Meeting Law. Therefore, we conclude that the district court erred in
finding a violation of the Open Meeting Law and reverse the district court's judgment
entering a permanent injunction prohibiting future briefings. Because we conclude there was
no violation of the Open Meeting Law, we need not address the remainder of the parties'
contentions on appeal.
FACTS
The Redevelopment Agency of the City of Reno (Agency)
1
acquired the Mapes Hotel in
1996, and since that time has tried to find developers for the property. The hotel, built in
1947, had been listed on the register for the National Trust for Historic Preservation (NTHP),
but was closed for over seventeen years prior to its demolition in January 2000.
On June 28, 1999, the Agency adopted a resolution by which it would accept bids for
rehabilitation of the Mapes or, in the alternative, initiate paperwork for possible demolition.
The Agency staff assembled a request for proposals (RFP), which was advertised in nine
newspapers and sent to more than 580 developers whose names were supplied by NTHP.
2
The Agency received six responses that met the RFP requirements by the August 13, 1999,
deadline for submission of bids. The responses were set for consideration at a public hearing
scheduled for September 13, 1999.
On August 31, 1999, two private back-to-back briefings were conducted between members
of the Agency staff and members of the Agency board. The purpose of the briefings was to
discuss the staff's evaluation of the six RFP responses. The first briefing was attended by the
staff and two Agency board members. The second briefing was attended by the staff and three
Agency board members. For the purposes of an Agency meeting, a quorum is four or more
members.
On September 11, 1999, two days prior to the public meeting, the Reno Gazette-Journal
published an article reporting that three of the Agency members and the Reno city mayor
intended to vote for demolition.
At the regularly scheduled public meeting on September 13, 1999, the Agency met to
review the proposals for redevelopment, and to review the option of demolition and financing
for demolition.
__________

1
The Agency board is comprised of the Mayor of the City of Reno and members of the Reno City Council.

2
The Agency staff evaluation team consisted of Agency staff and consultants to the Agency. Agency staff are
also City of Reno staff members. The evaluation team had the discretion to determine a mechanism or process
for evaluating the RFPs.
tion. Agency staff presented the proposals. The meeting lasted approximately six hours and
included staff presentations, public testimony, and substantial discussion between the Agency
members. At the conclusion of the meeting, the Agency members voted to demolish the
Mapes. Preliminary demolition commenced in late November 1999.
On November 10, 1999, appellants filed a verified complaint in the district court seeking
declaratory and injunctive relief. Appellants consist of four individual preservationists and
two non-profit organizations (National Trust for Historic Preservation and Truckee Meadows
Heritage Trust). The defendants below were the Agency and third-party Clauss Construction.
3

In the complaint, appellants alleged that the private, back-to-back briefings on August 31,
1999, between the Agency members and their staff violated the Open Meeting Law.
4
Appellants contended that this violation rendered void the Agency members' decision to
demolish the Mapes at the subsequent September 13, 1999, public meeting. Appellants
asserted three causes of action.
First, appellants sought an order declaring the actions of the Agency at the September 13,
1999, meeting void because of four alleged Open Meeting Law violations: (a) the Agency
members took action on the Mapes issue through polling by the staff during the August 31
briefing; (b) the August 31 private briefings were meetings for the purpose of deliberating
toward a consensus; (c) the Agency members publicly announced their decision prior to the
public meeting (publication of information in the Reno Gazette-Journal) inferring action had
been taken outside of the public hearing; and (d) the public meeting agenda was defective.
Second, appellants sought an injunction (a) prohibiting the Agency from conducting future
private briefings, and (b) requiring the Agency to reopen the review process and reconsider
all proposals previously submitted.
Lastly, appellants sought to void the actions taken by the Agency at the September 13,
1999, meeting because the written agenda for the meeting was defective.
While the Agency did not file an answer to the complaint because trial was conducted
before its duty to answer arose under NRCP 12, the district court considered the Agency's
responsive pleading to the preliminary injunction motion as its answer. The bench trial was
conducted on December 16 and 17, 1999, at which the district court admitted twenty exhibits,
heard testimony from seventeen witnesses, and reviewed testimony from five witnesses by
deposition.
__________

3
Clauss Construction was retained by the City of Reno to demolish the Mapes. Clauss Construction was
dismissed from this appeal by order of this court on January 22, 2002.

4
See NRS 241.010-.040. The 1999 versions of the Open Meeting Law apply to the facts of this case. The
Open Meeting Law was amended in 2001, however, the amendments have no bearing on this opinion.
seventeen witnesses, and reviewed testimony from five witnesses by deposition.
All of the Agency members testified that the city attorney was not present at the private
briefings, nor was a quorum present at either of the briefings. Testimony from the Agency
members indicated that this was intentional, and the briefings were conducted with the intent
of complying with the Open Meeting Law. The members present at the private briefings
testified that their recollections of the briefings were not perfect.
5
However, they
remembered substantial portions of the briefings and testified that they did not provide their
opinion or vote on the Mapes issue, nor were they polled as to their opinion or vote. The
meeting attendees also indicated that the meetings were not intended to promote a discussion
of the issues with the intent of arriving at a decision or course of action. Finally, all of the
Agency members stated that they made their final decision regarding demolition of the Mapes
at the public meeting on September 13, 1999.
Further, testimony by Agency members and Agency staff indicated that Agency staff did
not communicate questions or comments made by the Agency members from the first
briefing to those who attended the second briefing. Moreover, no evidence was presented to
suggest that Agency members attending the first briefing communicated such information to
members attending the second briefing. Additionally, based upon the testimony received at
trial, the demolition option was not discussed at the August 31 private briefings because
insufficient information was available regarding this option (i.e., no bid information).
Councilwoman Sherrie Doyle, during the first briefing, questioned Agency staff members
regarding the status of the demolition bid. She was told additional information would be
available at the scheduled September 13 meeting. Agency staff indicated that information
pertaining to the demolition bids was not available at the time of the private briefings. The
focus of the private briefings was the RFP option status and bid rankings.
Additionally, Agency Assistant City Manager Donna Kristaponis testified that the RFP
evaluation information, as provided to the advisory boards, was disclosed in a September 2,
1999, Reno Gazette-Journal article. Finally, many of the Agency members or staff gave
extensive testimony regarding what took place at the briefings, and two Agency members'
notes of their briefings were examined or introduced into evidence.
Appellants presented the testimony of former Councilwoman Judy Herman. Herman's
testimony was presented to attempt to establish that staff briefings were routinely used to
avoid the Open Meeting Law, inferring that the Mapes briefings were also used for this
purpose.
__________

5
Because the briefings did not include a quorum of members, no minutes of the briefings were kept by the
City. See NRS 241.035.
Meeting Law, inferring that the Mapes briefings were also used for this purpose. Herman
testified that the city manager during this case, Charles McNeely, was also the Reno city
manager during her tenure with the city council. Herman indicated that it was McNeely's
customary practice to conduct private back-to-back briefings between staff members and less
than a quorum of city council members for the purpose of discussing complex or
controversial issues agendized for upcoming public meetings. Herman characterized the
private back-to-back briefings as secret meetings or serial meetings designed to give
information to council members that was not made available to the public.
Herman also asserted that McNeely habitually polled council members about their votes
regarding issues before the council. Herman stated that McNeely did this by asking individual
council members if they had a problem with an agenda item. As a result, Herman testified
that she quit attending any private briefings based upon her belief that the meetings violated
the Open Meeting Law. She admitted, however, that the Reno City Attorney had informed her
that the briefings did not violate the Open Meeting Law.
The district court entered its order and judgment on December 21, 1999. First, the district
court held that the agendas for the September 13, 1999, public meeting met the requirements
of NRS chapter 241. Second, the court concluded that the private briefings held on August
31, 1999, violated the Open Meeting Law because a constructive quorum was gathered for
the purpose of conducting or deliberating the business of the public.
6
The district court found
that no action on the Mapes occurred at the briefings. The district court accepted the
testimony of the Agency that Agency members did not make a decision, commitment, or
promise to vote in a particular manner on the Mapes issue at the briefings.
The district court then addressed whether the briefings constituted deliberations in
violation of the Open Meeting Law. The district court found that the comments and questions
by the Agency members made the briefings more of a discussion of the issue, rather than a
one-sided, information-only briefing. Thus, the discussions were deliberations. Although the
district court found no evidence that the members collectively discussed the issues, the court
concluded that there was a possibility that cross-over communications occurred between the
meetings. The district court indicated the possibility existed because witnesses could not
remember everything that took place in the briefings, and no minutes were kept of the
briefings. Based on this possibility, the district court found that the briefings were serial
communications that created a constructive quorum involving deliberations in violation of
the Open Meeting Law.
__________

6
Referencing NRS 241.015(2) (defining meeting).
of the Open Meeting Law. Finally, the district court concluded that the Agency members'
statements that were published in the Reno Gazette-Journal declared their respective opinions
on the Mapes issue and were not evidence that a decision had already been made about the
Mapes at the August 31 private briefings.
Although the district court found an Open Meeting Law violation, it did not void the
actions taken by the Agency at the September 13 public meeting. The district court concluded
that the public meeting cured any Open Meeting Law violation. The district court found that
the September 13 public meeting was not a sham or rubber stamp of the August 31 briefings.
In so finding, the district court relied on the following considerations: (1) the length and
nature of the debate that occurred at the public meeting, (2) the lack of unanimity of the
Agency members' final vote, and (3) the fact that substantially all of the information
conveyed and discussed in the briefings was also discussed at the public hearing or disclosed
to the public prior to the public hearing.
Accordingly, the district court concluded that the actions taken at the September 13 public
meeting were valid, and rejected appellants' arguments. However, the district court also
concluded that some remedy should be granted for the Open Meeting Law violations. The
district court therefore enjoined the Agency from holding prearranged, private meetings in
back-to-back sessions with more than one Agency member in attendance.
7

Appellants appealed, contending that the district court erred in refusing to void the actions
taken at the September 13 meeting. The Agency cross-appealed, contending the district court
erred in concluding the briefings violated the Open Meeting Law. We conclude that the
briefings did not violate the Open Meeting Law and reverse the district court's judgment and
vacate the permanent injunction. Because we conclude that no Open Meeting Law violation
occurred, we decline to address appellants' contentions and dismiss their appeal as moot.
DISCUSSION
I. Standard of review
[Headnotes 1-4]
A district court's factual determinations will not be set aside unless they are clearly
erroneous and not supported by substantial evidence.
8
A district court's conclusions of law
are reviewed de novo.
9
This court has held that the construction of a statute is a question of
law.
__________

7
The district court also excluded communications between Agency members and legal counsel from the
injunction.

8
NRCP 52(a); Radaker v. Scott, 109 Nev. 653, 657, 855 P.2d 1037, 1040 (1993).

9
Bopp v. Lino, 110 Nev. 1246, 1249, 885 P.2d 559, 561 (1994).
question of law.
10
Additionally, [w]here the language of a statute is plain and
unambiguous, and its meaning is clear and unmistakable, there is no room for construction,
and the courts are not permitted to search for its meaning beyond the statute itself.'
11
Thus,
courts are to give words in a statute their plain meaning unless this violates the spirit of the
act.'
12

Private briefings and the Open Meeting Law
[Headnote 5]
The Agency argues that the district court erred in finding that the August 31, 1999,
briefings violated the Open Meeting Law and enjoining the Agency from having future
briefings. The Agency contends that no quorum of Agency members was present at the
August 31 briefings and no collective decision or commitment was ever sought or made at the
August 31 briefings. Thus, the Agency contends that there was no meeting in violation of the
Open Meeting Law.
13
We agree.
[Headnotes 6, 7]
The purpose of Nevada's Open Meeting Law is dispositively set forth in NRS 241.010.
14
This court has concluded that [t]he spirit and policy behind NRS chapter 241 favors open
meetings.
15
Further, a statute promulgated for the public benefit such as a public meeting
law should be liberally construed and broadly interpreted to promote openness in
government.
16
However, we have also acknowledged that the Open Meeting Law is not
intended to prohibit every private discussion of a public issue. Instead, the Open Meeting
Law only prohibits collective deliberations or actions where a quorum is present.
__________

10
Attorney General v. Board of Regents, 114 Nev. 388, 392, 956 P.2d 770, 773 (1998).

11
Id. at 392, 956 P.2d at 774 (quoting State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922)).

12
Id. (quoting McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986)).

13
See NRS 241.015(2).

14
NRS 241.010 states:
In enacting this chapter, the legislature finds and declares that all public bodies exist to aid in the conduct
of the people's business. It is the intent of the law that their actions be taken openly and that their
deliberations be conducted openly.

15
McKay, 102 Nev. at 651, 730 P.2d at 443; accord Board of Regents, 114 Nev. at 393-94, 956 P.2d at 774.

16
85-19 Op. Att'y Gen. 90, 93 (1985) (citing Laman v. McCord, 432 S.W.2d 753, 755 (Ark. 1968); City of
Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971); Wolfson v. State, 344 So. 2d 611, 613 (Fla. Dist. Ct. App.
1977); Wexford Cty. Pros. Atty. v. Pranger, 268 N.W.2d 344, 348 (Mich. Ct. App. 1978)); see also McKay, 102
Nev. at 651, 730 P.2d at 443.
Open Meeting Law only prohibits collective deliberations or actions where a quorum is
present.
17

[Headnote 8]
Nevada follows a majority of states in adopting a quorum standard as the test for applying
the Open Meeting Law to gatherings of the members of public bodies.
18
Thus, a quorum is
necessary to apply the Open Meeting Law to a given situation. This is necessitated by the
definition of a meeting in the Open Meeting Law. A meeting is defined in NRS
241.015(2) (1999) as: [T]he gathering of members of a public body at which a quorum is
present to deliberate toward a decision or to take action on any matter over which the public
body has supervision, control, jurisdiction or advisory power.
An action for the purposes of the Open Meeting Law is defined in NRS 241.015(1)
(1999) as:
(a) A decision made by a majority of the members present during a meeting of a
public body;
(b) A commitment or promise made by a majority of the members present during a
meeting of a public body; or
(c) A vote taken by a majority of the members present during a meeting of a public
body.
Action taken in violation of the Open Meeting Law is void.
19

In Attorney General v. Board of Regents,
20
this court addressed serial meetings and their
relation to the presence requirements of NRS 241.015(2). The case involved serial telephonic
communications between members of the Board of Regents. The Regents were actually asked
to vote on an issue via the telephone.
21
We concluded that serial telephonic communications
by a quorum of members of a public body for the purpose of deliberat[ing] toward a
decision or to make a decision on any matter over which the public body has supervision,
control, jurisdiction or advisory power violates the Open Meeting Law.
__________

17
See McKay v. Board of Cty. Comm'r, 103 Nev. 490, 495-96, 746 P.2d 124, 127 (1987).

18
Ann Taylor Schwing, Open Meeting Laws 2d 6.10(a), at 265, 269 n.78 (2000) (citing NRS 241.015(2)
(1997) and 85-19 Op. Att'y Gen. 90 (1985)). Schwing distinguishes between quorum jurisdictions (where the
open meeting law is activated whenever a quorum of a public body is present), deliberation jurisdictions
(jurisdictions which expressly apply their open meeting law to meetings of fewer than a quorum of a particular
public body) and jurisdictions which have not made a determination either way.

19
NRS 241.036 states: The action of any public body taken in violation of any provision of this chapter is
void.

20
114 Nev. 388, 956 P.2d 770.

21
See generally id.
violates the Open Meeting Law.
22
Although a quorum of the Regents was not present in a
physical location, their communications fell within the spirit of the Open Meeting Law. The
communications permitted a quorum of the public body to be constructively present, creating
a meeting under the Open Meeting Law.
Our interpretation of the Open Meeting Law in Board of Regents was influenced by the
opinions and writings of the attorney general's office. We noted that the attorney general had
consistently stated that telephonic communication or the use of mail polling to make a
decision by a quorum of a public body is inconsistent with the spirit and intent of NRS
chapter 241.
23
The attorney general has indicated that, while certain forms of communication
may be lawful, they should never be used as a subterfuge to compliance with the Open
Meeting Law.'
24

However, we also reiterated in Board of Regents that it was the nature of the
communications and the public body's intent to avoid compliance with the Open Meeting
Law that turned the serial communications into a constructive quorum. We reaffirmed the
language in McKay v. Board of County Commissioners
25
that referenced the ability of public
officials to meet privately with less than a quorum to discuss public issues:
While properly implying that members of a public body may ultimately make decisions
on public matters based upon individual conversations with colleagues, [McKay]
reiterates that the collective process of decision making, whether legal counsel is
present or not, must be accomplished in public.
. . . .
That is not to say that in the absence of a quorum, members of a public body cannot
privately discuss public issues or even lobby for votes.
26

Here, the district court found that, unlike the serial communications in Board of Regents,
the back-to-back briefings conducted with Agency members in this case were not done with
the intent to make a decision. However, the district court found that the briefings were
deliberations designed to aid Agency members in making a decision. As less than a quorum
was present at each briefing, the district court reasoned that the briefings would not constitute
a constructive quorum unless the discussions and questions of the Agency members in the
first meeting were communicated to the Agency members in the second meeting.
__________

22
Id. at 400, 956 P.2d at 778 (emphasis added).

23
See id. at 395-96, 956 P.2d at 775-76.

24
Id. at 395, 956 P.2d at 775 (quoting Richard H. Bryan, Open Meeting Law Manual 15 (3d ed. 1980)).

25
103 Nev. 490, 746 P.2d 124 (1987).

26
Board of Regents, 114 Nev. at 400, 956 P.2d at 778 (citation omitted).
questions of the Agency members in the first meeting were communicated to the Agency
members in the second meeting. The district court then found that there was a possibility of
cross-communication between the meetings and that a constructive quorum was established.
We disagree.
Deliberations
Neither the Legislature nor this court has defined the term deliberation.
27
Webster's
College Dictionary defines deliberation as consulting or conferring formally, careful
consideration before decision or formal consultation or discussion.
28
The attorney
general, relying on Sacramento Newspaper Guild v. Sacramento County Board of
Supervisors,
29
defines deliberate as to examine, weigh and reflect upon the reasons for or
against the choice . . . thus connot[ing] not only collective discussion, but the collective
acquisition or the exchange of facts preliminary to the ultimate decision.
30

[Headnote 9]
The California court, in Sacramento Newspaper, recognized deliberation and action as
dual components of the collective decision-making process [which] brings awareness that the
meeting concept cannot be split off and confined to one component only, but rather
comprehends both and either.
31
In Sacramento Newspaper, all of the members of a county
board met informally at a luncheon to discuss possible actions to avert or deal with an
impending strike of county workers.
32
While no action was taken at the meeting, the
California court deemed the collective discussion of a public issue with a quorum of members
present was a meeting" under California's open meeting law.
__________

27
Other jurisdictions have considered the meaning of deliberations. See, e.g., Sacramento Newspaper Guild
v. Sacramento Co. Bd. of Super., 69 Cal. Rptr. 480 (Ct. App. 1968); Brookwood Homeowners Ass'n v.
Municipality of Anchorage, 702 P.2d 1317, 1322 n.5 (Alaska 1985) (noting that six other jurisdictionsFlorida,
Illinois, Maryland, Minnesota, New York and Wisconsinhave followed the reasoning of the court in
Sacramento Newspaper Guild and have held that informal sessions, or deliberations, for the purpose of
conducting business constitute meetings under state open meeting laws).

28
Random House Webster's College Dictionary 348 (2d ed. 1997).

29
69 Cal. Rptr. 480 (Ct. App. 1968) (a case involving the invocation of the attorney-client privilege by a
county board where all members of the board met privately with the board attorney and other county executives
for the purpose of discussing an impending strike of county-employed social workers), superseded by statute as
stated in Roberts v. City of Palmdale, 9 Cal. Rptr. 2d 503 (Ct. App. 1992).

30
Frankie Sue Del Papa, Nevada Open Meeting Law Manual 23 (8th ed. 2000).

31
69 Cal. Rptr. at 485.

32
Id. at 483.
ing under California's open meeting law. The court then concluded that a collective
discussion with a quorum was a deliberation under the law and thus the private luncheon
meeting violated the open meeting law.
33

We agree with the definition of deliberations encompassed in Sacramento Newspaper.
However, we note that the use of the word deliberations in Sacramento Newspaper
contemplates a collective discussion amongst a quorum of a public body. It is the collective
discussion of an issue with the goal of reaching a decision that constitutes a deliberation
under California's open meeting law.
34
Discussions with less than a quorum are not
deliberations within the meaning of the act.
35

Here, no quorum was physically present at either briefing. Thus, a collective discussion
equaling a deliberation could not take place unless a quorum was constructively present under
Board of Regents.
Constructive quorum
[Headnote 10]
We now address whether the back-to-back briefings created a constructive quorum or
serial communication in violation of Board of Regents.
36
If a constructive quorum did not
exist, there was no violation of the Open Meeting Law. This is because the quorum standard
is a brightline standard [in] legislative recognition of a demarcation between the public's
right of access and the practical necessity that government must function on an orderly, but
nonetheless legitimate, basis. . . . The public's right of access at later stages in the decision
making process, and its accompanying right to question, is a strong safeguard that public
servants remain accountable to the citizens.
37

[Headnote 11]
Importantly, [r]equiring members of [a] board to consider only information obtained
through public comment and staff recommendations presented in formal sessions would
cripple the board's ability to conduct business.
38
This reasoning underscores the need for
other action, such as polling or collective discussions designed to reach a decision, to create
a constructive quorum between the briefings.
__________

33
Id. at 487.

34
Id. at 485-87.

35
Id. at 486 n.4.

36
See 114 Nev. at 400, 956 P.2d at 778-79 (The constraints of the Open Meeting Law apply only where a
quorum of a public body, in its official capacity as a body, deliberates toward a decision or makes a decision.).

37
Delaware Solid Waste Authority v. News-Journal, 480 A.2d 628, 635 (Del. 1984) (citations omitted).

38
Hispanic Educ. Com. v. Houston Ind. Sch. Dist., 886 F. Supp. 606, 610 (S.D. Tex. 1995), aff'd, 68 F.3d
467 (5th Cir. 1995).
decision, to create a constructive quorum between the briefings. When less than a quorum is
present, private discussions and information gathering do not violate the Open Meeting Law.
39
Here, absent serial communication of the discussions, there was no quorum and therefore
no deliberations in violation of the Open Meeting Law.
A review of the record demonstrates that no actual quorum of Agency members was
present during the staff briefings on August 31, 1999. Moreover, substantial evidence
supports the district court's finding that the Agency members did not meet on August 31,
1999, with the intent of taking action on the Mapes Hotel. Substantial evidence also supports
the district court's finding that the content of the briefings involved more than information
gathering. The attendees indicated various RFP ratings were discussed and the Agency
members asked questions or made comments on the issue. The briefings were designed to
permit the Agency members to gather information and discuss the highly complex RFP
proposal process. However, substantial evidence does not support a finding that serial
collective discussions occurred between the briefings.
Because not every attendee, particularly the Agency staff, could remember precisely what
was discussed in each briefing, the district court shifted the burden of proof to the Agency to
show that no serial collective discussions, i.e., deliberations, occurred. The district court then
concluded that the Agency had not met its burden because it did not keep minutes of the
briefings. Such a shifting might be permissible if a quorum was physically present, or if there
was a significant lack of memory on the part of the participants. However, the record lacks
substantial evidence to support such burden shifting in this case. Agency members and staff
gave significant testimony concerning the contents of the briefings. The attendees did not
have a suspicious loss of memory or vague recollections that would support an inference that
serial communications or collective discussions occurred or that the briefings were designed
as a subterfuge to avoid the Open Meeting Law.
[Headnote 12]
At best, the record reflects speculation that information discussed in the first meeting was
also discussed in the second meeting, not that the meetings involved the kind of exchange of
information and collective discussions present in the faxed distributions and serial telephonic
communications identified in Board of Regents.
40
Thus, the district court's determination
that the private briefings of August 31, 1999,
__________

39
Id.

40
114 Nev. at 391, 956 P.2d at 773; see also Wood v. Battle Ground School Dist., 27 P.3d 1208, 1216-17
(Wash. Ct. App. 2001) (collective action or discussions via e-mail designed to reach a decision prohibited).
briefings of August 31, 1999, constituted gatherings or deliberations as those terms are
used in the definition of meeting was clearly erroneous and not supported by substantial
evidence. Specifically, mere back-to-back briefings, standing alone, do not constitute a
constructive quorum. Moreover, unlike the serial communications involved in Board of
Regents, there is no substantial evidence in the record that Agency members or Agency staff
met or gathered privately for the purpose of taking action on, or collectively discussing, a
matter of public business. We conclude substantial evidence does not support a finding that
the private briefings of August 31 created a constructive quorum or that a meeting in
violation of the Open Meeting Law occurred. Accordingly, we reverse the judgment of the
district court and vacate the permanent injunction.
41

____________
119 Nev. 100, 100 (2003) Lewis v. Sea Ray Boats, Inc.
ROBIN LEWIS, TERESA RAE WEBB and TRICIA MARIE GASSE, Appellants, v. SEA
RAY BOATS, INC., a Tennessee Corporation, Respondent.
No. 36831
March 21, 2003 65 P.3d 245
Appeal from a judgment based on a jury verdict in favor of respondent. Eighth Judicial
District Court, Clark County; Nancy M. Saitta, Judge.
After one boat purchaser was injured and another killed from carbon monoxide poisoning
during an overnight outing in used pleasure boat, injured purchaser and heirs of deceased
purchaser brought strict liability action against dealer that sold them the boat. The district
court entered judgment on jury verdict for former owner. Purchaser and heirs appealed. The
supreme court, Maupin, J., held that: (1) jury instruction on adequacy of warning was
insufficient; (2) courts had to advise juries that warnings in the context of products liability
claims had to be designed to reasonably catch the consumer's attention, be comprehensible
and give a fair indication of the specific risks attendant to use of the product, and be of
sufficient intensity justified by the magnitude of the risk; and (3) admiralty law did not apply.
Reversed and remanded with instructions.
[Rehearing denied May 9, 2003]
__________

41
The Honorable Cliff Young, Senior Justice, having participated in the oral argument and deliberation of this
matter as Justice of the Nevada Supreme Court, was assigned to participate in the determination of this appeal
following his retirement. Nev. Const. art. 6, 19; SCR 10. The Honorable Mark Gibbons, Justice, did not
participate in the decision of this matter.
Beckley Singleton, Chtd., and Daniel F. Polsenberg and Rex A. Jemison, Las Vegas, for
Appellant Lewis.
Frank C. Cook, Las Vegas, for Appellants Webb and Gasse.
Parnell & Associates and Christian E. Hardigree and Richard B. Parnell, Las Vegas;
Snell & Wilmer and Alex Marconi, Phoenix, Arizona, for Respondent.
1. Products Liability.
Strict liability may be imposed even though a product is faultlessly made if it was unreasonably dangerous to place the
product in the hands of a user without suitable and adequate warning concerning safe and proper use.
Inherent in doctrine, stating strict liability may be imposed even though a product is faultlessly made if it was unreasonably
dangerous to place the product in the hands of a user without suitable and adequate warning concerning safe and proper use, is
that a product must include a warning that adequately communicates the dangers that may result from its use or foreseeable
misuse.
Instruction, which stated that whether a warning was legally sufficient for purposes of strict liability depended upon
impression warning language was calculated to make on average product user and that jury should use common sense in resolving
issue, was insufficient to resolve liability for failure of boat dealership, which did warn of carbon monoxide poisoning from
exhaust fumes, to also warn buyers of used pleasure boat about possible carbon monoxide poisoning by fumes from generator that
powered air conditioner; sufficiency of warnings was primary issue such that text of warnings instruction was critical, instructions
provided little guidance, and jurors were due specific guidance given expert testimony.
Nevada trial courts should advise juries that warnings in the context of products liability claims must (1) be designed to
reasonably catch the consumer's attention, (2) be comprehensible and give a fair indication of the specific risks attendant to use of
the product, and (3) be of sufficient intensity justified by the magnitude of the risk.
5. Admiralty.
Incident in which pleasure boat purchasers were injured from carbon monoxide poisoning had no potential for disruption of
maritime commerce on lake in which incident occurred, and thus admiralty law did not apply to subsequent strict liability action
brought against seller based on failure to warn. 46 U.S.C. 740.
6. Admiralty.
Under location prong of two-part test for determining when the exercise of federal maritime jurisdiction is appropriate, a court
must determine whether tort occurred on navigable water or the injury suffered on land was caused by a vessel on navigable water.
46 U.S.C. 740.
7. Admiralty.
The connection prong of two-part test for determining when the exercise of federal maritime jurisdiction is appropriate has
two subtests that must be satisfied: (1) one subtest requires an analysis of the general features of the incident causing the injury to
determine whether the incident has a potentially disruptive impact on maritime commerce,
has a potentially disruptive impact on maritime commerce, and (2) the second subtest requires a court to examine whether the
general character of the incident causing the injury shows a substantial relationship to traditional maritime activity. 46 U.S.C.
740.
OPINION
By the Court, Maupin, J.:
Leo Gasse was killed and Robin Lewis catastrophically injured due to carbon monoxide
poisoning during an overnight outing in a Sea Ray pleasure boat at the Lake Mead National
Recreation Area. Lewis, along with Gasse's heirs, Teresa Rae Webb and Tricia Marie Gasse,
brought suit against Sea Ray Boats, Inc., alleging that Sea Ray is strictly liable in tort in
connection with the incident. A jury returned a verdict in favor of Sea Ray, finding that the
boat was not a defective or unreasonably dangerous product. This appeal followed.
Appellants' primary contention centers on the district court's failure to adopt appellants'
proffered instructions on their theory of liability; that warnings concerning the risk of carbon
monoxide migration secondary to use of the boat's air conditioning system were inadequate.
Because we conclude that appellants were entitled to more specific instructions with regard to
the warnings issue, we reverse the district court's judgment and remand this matter for a new
trial.
FACTS
In May 1991, Leo Gasse and Jimmy Paxson purchased a used Sea Ray pleasure boat from
a Las Vegas area Sea Ray dealership. In addition to gasoline propulsion engines, the boat
contained a small gasoline generator, which powered the boat's accessories, including the air
conditioner.
On May 29, 1993, during a weekend cruise on Lake Mead, Gasse and Lewis side-tied
the boat to a beach and went to sleep in the boat's cabin, leaving the gasoline generator
running to power the air conditioner. The next morning, Anthony Caro, Jr., a friend who was
staying at the beach, knocked on the cabin door and received no response. He returned later
that afternoon, boarded the boat, and found Gasse dead and Lewis barely breathing. Mr. Caro
testified that the engines were not running when he first checked on the couple and when he
returned.
Subsequent investigation confirmed that the generator, rather than the engines, was the
source of the carbon monoxide, a tasteless odorless gas. This proposition was bolstered by
other trial testimony that, had engine exhaust been the source,
timony that, had engine exhaust been the source, the couple may have been able to detect the
problem because of the distinctive odor of exhaust fumes.
Two warnings regarding carbon monoxide poisoning accompanied the sale of this type of
boat in 1981, one written by ONAN, the generator manufacturer,
1
and the other by the
National Marine Manufacturers' Association (NMMA).
2
Sea Ray provided boat purchasers
with an assortment of other manuals, none of which are relevant to this case. Both warnings
primarily addressed the danger of carbon monoxide exposure from engine exhaust.
When Gasse and Paxson purchased the boat, the Sea Ray dealership service manager,
George Schenk, and the salesman, Curt Snouffer, warned of the danger of exhaust fumes and
carbon monoxide, and the necessity of ventilating the boat to remove hazardous fumes.
Schenk and Snouffer demonstrated this process by opening a window and the hatch to allow
for flow-through ventilation, and explained the need to have the rear door remain open when
running the main propulsion engines. Lastly, Schenk indicated that idling the engine with the
front hatch closed could cause accumulations of carbon monoxide.
Appellants theorized that a process described as migrating carbon monoxide caused the
accident. The process occurs when carbon monoxide, although safely exhausted from the
boat's gasoline generator into the open air, is blown back into the boat by wind, entering the
passenger cabin through small openings. Sea Ray's expert agreed with this theory of
causation,
__________

1
The warning states:
WARNING
ENGINE EXHAUST GAS (CARBON MONOXIDE) IS DEADLY!
Carbon monoxide is an odorless, colorless gas formed by incomplete combustion of hydrocarbon fuels.
Carbon Monoxide is a dangerous gas that can cause unconsciousness and is potentially lethal. Some of
the symptoms or signs of carbon monoxide inhalation are:
- Dizziness - Vomiting
- Intense Headache - Muscular Twitching
- Weakness and Sleepiness - Throbbing in Temples
If you experience any of the above symptoms, get out into fresh air immediately. The best protection
against carbon monoxide inhalation is a regular inspection of the complete exhaust system. If you notice
a change in the sound or appearance of the exhaust system, shut the unit down immediately and have it
inspected and repaired at once by a competent mechanic.

2
The warning states:
WARNING: Use care in running the engine continuously when the boat is closed up in bad weather,
particularly when the boat is not in motion. Exhaust fumes and carbon monoxide may accumulate in the
passenger areas, so be alert to any indication that exhaust fumes are present, and ventilate accordingly.
pert agreed with this theory of causation, but noted that such a phenomenon is quite rare and
for carbon monoxide to accumulate to dangerous levels, passenger cabin ventilation must
have been obstructed.
Sea Ray's expert testified regarding the safety of sleeping with the air conditioner running.
He admitted that although boaters will often sleep with the air conditioner running unless
warned not to do so, certain precautions should be taken. These include: (1) posting a watch,
since in 1981, the year the boat was manufactured, no carbon monoxide detection devices
were available; (2) anchoring the boat from the bow rather than the side, so that any wind
currents would blow away from the stern; or (3) creating flow-through ventilation before
going to sleep. The expert conceded that Sea Ray's manual contained no such instructions or
warnings, but stressed that no incidents of this type resulting in death had ever been reported
in connection with the particular pleasure boat model involved in this case. Sea Ray's expert
also voiced his opinion that the warnings given were adequate with regard to carbon
monoxide exposure, and that the risk of migrating carbon monoxide from on-board
generators was not a known hazard when the boat was originally purchased in 1981.
Sea Ray's expert additionally relied upon a Nevada Department of Wildlife booklet found
on the boat after the incident. The booklet discussed the hazards of exhaust fumes, warned
that carbon monoxide itself is tasteless and odorless, that plenty of air flow should be
maintained because exhaust fumes can blow back into a boat when running downwind, and
that adequate ventilation was required when using catalytic heaters for warmth.
The warnings that are the subject of this appeal specifically addressed the danger of carbon
monoxide exposure from exhaust fumes, generally addressed dangers attendant to carbon
monoxide exposure, and only inferentially addressed dangers in connection with generator
fumes. All of this is important because, as noted, the discrete odor from engine exhaust would
arguably alert the passengers to the presence of noxious fumes, while emissions from the
generator probably would not.
Jury instructions on adequate warning
Appellants submitted a proposed jury instruction regarding legal requirements for an
adequate warning based on Pavlides v. Galveston Yacht Basin, Inc.,
3
a Fifth Circuit case
applying a three-factor test under Texas law
4
for determining whether a product warning
was adequate. The proposed instruction read as follows:
__________

3
727 F.2d 330 (5th Cir. 1984).

4
See Bituminous Casualty Corp. v. Black & Decker Mfg. Co., 518 S.W.2d 868, 872-73 (Tex. Civ. App.
1974).
A warning must (1) be designed so it can reasonably be expected to catch the
attention of the consumer; (2) be comprehensible and give a fair indication of the
specific risks involved with the product; and (3) be of an intensity justified by the
magnitude of the risk.
The district court rejected this proposed instruction and instead gave the following two
instructions:
First:
Although you are to consider only the evidence in the case in reaching a verdict, you
must bring to the consideration of the evidence your everyday common sense and
judgment as reasonable men and women. Thus, you are not limited solely to what you
see and hear as the witnesses testify. You may draw reasonable inferences from the
evidence which you feel are justified in the light of common experience, keeping in
mind that such inferences should not be based on speculation or guess.
Second:
The question of whether or not a given warning is legally sufficient depends upon
the language used and the impression that such language is calculated to make upon the
mind of the average user of the product.
The first instruction is a stock instruction that the jury should simply use its common sense
in evaluating and drawing inferences from the evidence introduced at trial. The second
instruction is generally worded, containing partial excerpts from Pavlides.
5

During deliberations, the jury sent a note to the trial judge, requesting a definition of an
adequate warning. Appellants proposed an instruction taken from a products liability
treatise to the district court.
6
The district court rejected this instruction, as well as again
rejecting appellants' proposed Pavlides instruction. Consequently, the district court simply
reread the two instructions it had previously given on the issue to the jury.
After the trial judge reread the instructions, the jury foreman informed the judge that the
reading did not assist the jury in its deliberations.
__________

5
Pavlides, 727 F.2d at 338 (citing Bituminous Casualty Corp., 518 S.W.2d at 873).

6
The instruction defining adequate warning offered by appellants stated:
To be adequate a necessary warning by its size, location, and intensity of language or symbol, must be
calculated to impress upon a reasonably prudent user of the product the nature and extent of the hazard
involved. The language used must be direct and should, where applicable, describe the method of safe
use.
erations. The district court again sought a definition of adequate warning from the parties.
Appellants reoffered the treatise definition, arguing that it was essentially consistent with
Nevada case authority.
7
The district court again rejected the treatise definition, and refused to
instruct the jury further, despite the confusion. Soon after the rereading of the jury
instructions, one juror was replaced during deliberations for unspecified reasons. Shortly
thereafter, the jury returned a verdict in favor of Sea Ray. This appeal followed.
DISCUSSION
Failure to give appellants' proposed adequacy of warnings instruction
Respondent contends that warnings instructions in cases such as this one should be
generally worded and that the adequacy of warnings should be left to the common sense of
the finder of facts. Appellants contend that the district court erred by not instructing the jury
with their more specific definition of adequate warning. We agree with appellants.
In American Casualty Co. v. Propane Sales & Service, we held that a party is entitled to
have the jury instructed on all of his theories of the case that are supported by the evidence,
8
and that general, abstract or stock instructions on the law are insufficient if a proper request
for a specific instruction on an important point has been duly proffered to the court.
9
We
reversed in American Casualty Co. because the jury was left to guess from general stock'
instructions discrete elements of proof in the rather unusual context of a gas explosion
case.
10
However, in American Casualty Co., we also observed that [i]n some instances a
requested instruction, although proper, will not be essential to the jury's understanding of the
case.
11

__________

7
See Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977); see also Fyssakis v. Knight
Equipment Corp., 108 Nev. 212, 826 P.2d 570 (1992).

8
89 Nev. 398, 400, 513 P.2d 1226, 1227 (1973); cf. Singleton v. State, 90 Nev. 216, 220, 522 P.2d 1221,
1223 (1974) (holding that [a]n instruction need not be given when there is no proof in the record to support it).

9
89 Nev. at 400, 513 P.2d at 1227; see also Dixon v. Ahern, 19 Nev. 422, 429, 14 P. 598, 601 (1887) (stating
that a party is entitled to have specific charges upon the law applicable to each of the hypotheses or
combinations of facts which the jury, from the evidence, might legitimately find' (quoting Sword v. Keith, 31
Mich. 247, 255 (1875))).

10
89 Nev. at 401, 513 P.2d at 1228.

11
Id.; see also Jones v. Viking Freight System, 101 Nev. 275, 701 P.2d 745 (1985).
[Headnotes 1, 2]
Under Nevada law,
12
strict liability may be imposed even though the product is
faultlessly made if it was unreasonably dangerous to place the product in the hands of the user
without suitable and adequate warning concerning safe and proper use.
13
Inherent in this
doctrine is that a product must include a warning that adequately communicates the dangers
that may result from its use or foreseeable misuse.
14
More particularly, in Fyssakis v.
Knight Equipment Corp., we held that adequacy of warnings was an issue of fact for the jury
where an industrial strength soap manufacturer's warnings did not alert the user that the soap
could cause blindness.
15
In Allison v. Merck and Company,
16
a district court entered
summary judgment in favor of a manufacturer of a childrens vaccine. We reversed in light of
our conclusion that the drug manufacturer was required to adequately warn parents of
possible side effects of immunization, including blindness, deafness or mental retardation.
Accordingly, we held that a general warning that an inoculated child could encounter rashes
and possible brain inflammation was arguably inadequate and issues of fact remained as to
the sufficiency of the warnings given.
17
In remanding the Allison case for trial on the
adequacy of the warnings, we rejected the notion that a drug manufacturer could, via a
general warning, avoid liability as a matter of law, even where the product was either
reasonably or unavoidably unsafe.
18

[Headnote 3]
In the instant matter, the purchasers of the boat were comprehensively warned about the
dangers of carbon monoxide poisoning from exhaust fumes, fumes characterized by a
distinctive odor. Here, however, the injuries sustained by Gasse and Lewis were not caused
by exhaust fumes; they were caused by odorless and tasteless carbon monoxide fumes from
the generator that powered the boat's air conditioner.
__________

12
Because we have determined, infra, that this case does not implicate maritime jurisdiction, we rely on
Nevada decisional authority in resolving the warnings issues presented in this appeal.

13
Outboard Marine Corp., 93 Nev. at 162, 561 P.2d at 453 (citing General Electric Co. v. Bush, 88 Nev.
360, 498 P.2d 366 (1972)).

14
Fyssakis, 108 Nev. at 214, 826 P.2d at 571-72.

15
Id.

16
110 Nev. 762, 878 P.2d 948 (1994).

17
Id. at 774-76, 878 P.2d at 956-58.

18
Id. In Allison, we also remanded the matter for trial on the basic causation issue of whether the child's brain
damage was caused by the serum. Id. at 782, 878 P.2d at 961.
powered the boat's air conditioner. Whether the warnings described above, which generally
addressed dangers and symptoms of carbon monoxide poisoning and specifically addressed
carbon monoxide exposure secondary to engine exhaust and running the heater, sufficiently
apprised Gasse and his co-owner of carbon monoxide poisoning from use of the air
conditioner remained the primary issue of fact throughout the trial below. Thus, the text of
the warnings instruction became critical to the jury's fact-finding mission.
Here, the district court's warnings instructions provided very little in the way of
guidance, other than to generally state that whether a warning is legally sufficient depends
upon the impression that the warnings language is calculated to make upon the mind of
the average user of the product, and that the jury should use its common sense in resolving
the issue. This instruction was not sufficient to assist the jury in resolving the liability issues
based upon Sea Ray's alleged failure to warn. First, in Fyssakis and Allison, we refused to
exonerate products manufacturers as a matter of law from strict tort liability based upon
general warnings language. Second, these instructions left lay jurors, persons in much the
same position as the users of the product at issue, to search their imaginations to test the
adequacy of the warnings. Third, given that experts testified in this case to the nature and
quality of the warnings that were given and their supposed behavioral impact, the jurors were
entitled to more specific guidance as to the law governing the duty to warn in connection with
consumer products.
[Headnote 4]
We therefore embrace the rule of law stated in the Pavlides instructions offered by
appellants below, and hold that Nevada trial courts should advise juries that warnings in the
context of products liability claims must be (1) designed to reasonably catch the consumer's
attention, (2) that the language be comprehensible and give a fair indication of the specific
risks attendant to use of the product, and (3) that warnings be of sufficient intensity justified
by the magnitude of the risk.
The district court's failure to instruct the jury as suggested by appellants mandates reversal
for a new trial.
Applicable law to be applied on remand
[Headnote 5]
Appellants argue that the district court improperly applied admiralty law instead of Nevada
law to the proceedings below. We agree.
[Headnotes 6, 7]
In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
19
the United States
Supreme Court established a two-part location and connection test for determining when
the exercise of federal maritime jurisdiction is appropriate.
20
Under the location leg of this
test, a court must determine whether the tort occurred on navigable water or . . . [the] injury
suffered on land was caused by a vessel on navigable water.
21
Although the location prong
of the test is satisfied in this instance, the connection prong is not. One feature of the
connection test requires an analysis of the general features of the incident causing the injury
to determine whether the incident has a potentially disruptive impact on maritime
commerce.'
22

We conclude that the incident in question here had no potential for disruption of maritime
commerce on the Lake Mead Reservoir. Gasse and Lewis were occupants of a single pleasure
boat moored in an isolated location at night. Thus, there is no basis to apply admiralty law to
this controversy in lieu of Nevada law.
23

CONCLUSION
The district court's warnings instructions merely admonished the jury to use its common
sense in resolving the sufficiency of the warnings, guided only by a general and partial
definition of adequate warning under Pavlides. Although Fyssakis and Allison do not
delineate how juries are to be instructed on this issue, when read together with American
Casualty Co.
__________

19
513 U.S. 527 (1995).

20
Id. at 531-32 (dealing with admiralty jurisdiction pursuant to 28 U.S.C. 1333(1) over a tort claim).

21
Id. at 534 (citing 46 U.S.C. App. 740).

22
Id. (quoting Sisson v. Ruby, 497 U.S. 358, 364 n.2 (1990)). The connection test has two subtests that must
be satisfied. The second subtest requires a court to examine whether the general character of the incident causing
the injury shows a substantial relationship to traditional maritime activity.' Id. (quoting Sisson, 497 U.S. at
365, 364 n.2). It is unnecessary for us to reach this second subtest, given our conclusion that this matter does not
present a set of facts depicting a potentially disruptive impact on maritime commerce. See Christensen v.
Georgia-Pacific Corp., 279 F.3d 807, 814 (9th Cir. 2002) (To create a maritime tort, the incident must have
occurred on navigable waters and have a maritime flavor. An incident has maritime flavor if it has a potentially
disruptive impact on maritime commerce and a substantial relationship to traditional maritime activity.
(footnote omitted and emphasis added)).

23
See H2O Houseboat Vacations Inc. v. Hernandez, 103 F.3d 914 (9th Cir. 1996) (holding that emission of
carbon monoxide injuring family members on a single pleasure boat, where there was no danger to other vessels,
did not invoke maritime jurisdiction under the disruptive impact test); cf. Sisson, 497 U.S. at 360, 367
(holding that a fire in a marina in navigable waters had a potential for disruption of maritime commerce).
not delineate how juries are to be instructed on this issue, when read together with American
Casualty Co., they impliedly require a more specific instruction on the adequacy of warnings
than given here. Under our adoption of the Pavlides instruction, appellants are entitled to
have their instruction on the definition of adequate warning submitted to the jury. That the
jury ultimately became engaged in a dialogue with the district court on this very issue, and
that the jury foreman indicated repetition of prior instructions was not helpful to the jury's
deliberations, underscores the insufficiency of the instructions that were given.
We therefore reverse the judgment of the district court and remand this matter for new trial
proceedings
24
conducted in accordance with this opinion.
25

Agosti, C. J., Shearing, Rose and Leavitt, JJ., and Young, Sr. J., concur.
____________
119 Nev. 110, 110 (2003) Wesley v. Foster
CASSANDRA WESLEY, Appellant, v. ANTHONY FOSTER, Respondent.
No. 38639
March 21, 2003 65 P.3d 251
Appeal from a district court order granting an objection to a master's recommendation and
modifying the child support obligation. Eighth Judicial District Court, Family Court Division,
Clark County; Robert W. Lueck, Judge.
Mother of child born out of wedlock requested statutory three-year review and
modification of child support. The district court modified recommendation of hearing master
and reset child support obligation. Mother appealed. The supreme court held that statutory
presumptive maximum was to be applied after offset against gross monthly income.
__________

24
Appellants also take issue with the district court's instructions on changed conditions and superseding
cause. The district court should revisit these instructions on remand depending on whether evidence introduced
supports them. See Singleton, 90 Nev. at 220, 522 P.2d at 1223. Because of our ruling with regard to the
warnings instructions, we need not reach appellants' arguments concerning the practice of filing ex-parte trial
briefs pursuant to EDCR 7.27.

25
The Honorable Nancy Becker, Justice, voluntarily recused herself from participation in the decision of this
matter.
The Honorable Cliff Young, Senior Justice, having participated in the oral argument and deliberations of this
matter as a Justice of the Nevada Supreme Court, was assigned to participate in the determination of this appeal
statutory presumptive maximum was to be applied after offset against gross monthly income.
David J. Roger, District Attorney, and Beth E. Ford, Deputy District Attorney, Clark
County, for Appellant.
Anthony Foster, Henderson, in Proper Person.
1. Child Support.
Child support statutes, taken together, set forth an objective standard for establishing child support. NRS 125B.020(1),
125B.070(1)(b), 125B.080.
2. Child Support.
In child support calculation involving equally shared custody, statutory presumptive maximum was to be applied after, not
before, calculation of appropriate percentage of gross income for each parent and subtraction of difference between the two, with
mother's percentage of gross monthly income subtracted from father's percentage of gross monthly income, and cap applied only
after such offset. NRS 125B.020(1), 125B.070(1)(b), 125B.080.
3. Child Support.
In shared custodial arrangements, the offset of one parent's percentage of gross income against that of the other parent should
be applied prior to application of the statutory cap. NRS 125B.020(1), 125B.070(1)(b), 125B.080.
OPINION
Per Curiam:
In this appeal, we examine whether the statutory presumptive maximum for child support,
as provided in NRS 125B.070,
1
should be applied to the support obligation before, or after,
application of the calculation set forth in Wright v. Osburn
2
for shared custodial
arrangements. We conclude that the Wright calculation should be performed before
application of the presumptive maximum support obligation.
__________

1
The version of NRS 125B.070 that applies in this opinion is the statute in effect through June 30, 2002,
providing a presumptive maximum of $500 per month per child. The new version of the statute, effective July 1,
2002, provides a different presumptive maximum amount to each income range, ranging from a presumptive
maximum amount of $500 to $800. The new statute also requires that the income range and maximum amounts
be adjusted on July 1 of each year based upon the increase or decrease in the Consumer Price Index.

2
114 Nev. 1367, 970 P.2d 1071 (1998).
performed before application of the presumptive maximum support obligation.
In 1995, Cassandra Wesley and Anthony Foster had a child out of wedlock. Shortly
thereafter, paternity was established and child support was set.
On November 15, 2000, Wesley requested a three-year review and modification of child
support, pursuant to NRS 125B.145(1)(b); a hearing was conducted. Foster's gross monthly
income was determined to be $5,417. Wesley's gross monthly income was determined to be
$1,417. The hearing master calculated the appropriate percentage of each parent's income,
subtracted Wesley's obligation from Foster's, pursuant to Wright, and then applied the
statutory presumptive maximum (the cap), as provided by NRS 125B.070(1)(b).
Shortly thereafter, Foster filed an objection to the hearing master's recommendation and
order, arguing that the child support court's decision was clearly erroneous because the cap
should have been applied before performing the Wright calculation. Following a hearing, the
district court agreed with Foster's approach and reset his support obligation.
Wesley appealed the district court's ruling, contending that in shared custody
arrangements, the cap should be applied after the Wright calculations. We now take this
opportunity to clarify our ruling in Wright.
DISCUSSION
[Headnote 1]
NRS 125B.020(1) provides that parents have a duty to support their children. NRS
125B.070(1)(b) provides a formula for calculating child support based on a percentage of a
parent's gross monthly income, but not more than $500 per month per child . . . unless the
court sets forth findings of fact as to the basis for a different amount pursuant to subsection 6
of NRS 125B.080. These two statutes, taken together, set forth an objective standard for
establishing child support.
3

[Headnote 2]
In Wright, this court established a formula for determining which parent receives child
support and the amount of support in situations where custody is shared equally.
4
The district
court must [c]alculate the appropriate percentage of gross income for each parent; subtract
the difference between the two and require the parent with the higher income to pay the
parent with the lower income that difference.
__________

3
See Wright, 114 Nev. at 1368, 970 P.2d at 1072.

4
Id. at 1368-69, 970 P.2d at 1072.
parent; subtract the difference between the two and require the parent with the higher income
to pay the parent with the lower income that difference.
5
In Wright, we did not specifically
address the question of when application of the statutory presumptive maximum should
occur.
6

The Wright offset should take place before, not after, application of the cap. This
conclusion supports the general philosophy of NRS 125B.070, which is to make sure
adequate monthly support is paid to our children.
7

As we have previously stated, the fixed child-care expenses incurred by each parent are
usually not appreciably diminished as a result of shared custody.
8
The sad reality that must
be faced is that the desirable sharing of custody responsibilities by [another] custodian in joint
custody situations has the inevitable result of increasing total child-related expenses.
9
Nonetheless, we must still attempt to maintain the comparable lifestyle of the child between
the parents' households.
10

In this case, there is a disparity in the gross monthly income of the two parents. Consistent
with our holding in Wright, Wesley's percentage of gross monthly income should first be
subtracted from Foster's percentage of gross monthly income.
11
Then, after this offset is
made, the cap should be applied.
12
Of course, the district court also has the option to adjust
the amount of the award where special circumstances exist.
13

CONCLUSION
[Headnote 3]
We hold that in shared custodial arrangements, the Wright offset should be applied prior to
application of the statutory cap. The district court erred by applying the cap prior to
performing the offset.
__________

5
Id. at 1369, 970 P.2d at 1072.

6
See id. In Wright, we applied the applicable percentage to each parent's gross income and subtracted the
lower obligation from the higher obligation. The father's obligation was $1 over the presumptive maximum
before subtracting the mother's obligation.

7
Garrett v. Garrett, 111 Nev. 972, 976, 899 P.2d 1112, 1115 (1995) (Rose, J., dissenting).

8
Barbagallo v. Barbagallo, 105 Nev. 546, 549, 779 P.2d 532, 535 (1989).

9
Id.

10
See Wright, 114 Nev. at 1368, 970 P.2d at 1072.

11
18% of $1,417.00 = $255.06. 18% of $5,417.00 = $975.06. Applying the offset, $975.06 minus $255.06 =
$720.00, Foster's child support obligation prior to application of the cap.

12
The version of NRS 125B.070 in effect at the time of the petition for modification provided a $500 cap.
Therefore, Foster's obligation for support payments to Wesley is $500 per month.

13
Wright, 114 Nev. at 1369, 970 P.2d at 1072 (citing NRS 125B.080(9)).
trict court erred by applying the cap prior to performing the offset. Accordingly, we reverse
the order of the district court and remand this case for further proceedings consistent with this
opinion.
____________
119 Nev. 114, 114 (2003) White v. Continental Ins. Co.
HAROLD A. WHITE, Appellant, v. CONTINENTAL INSURANCE COMPANY,
Respondent.
No. 37656
April 3, 2003 65 P.3d 1090
Appeal from a district court order granting declaratory relief and summary judgment in an
automobile insurance action. Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Automobile insurer sought a declaratory judgment that the insured was not entitled to
uninsured or underinsured motorist (UM/UIM) benefits for collision with City street sweeper.
The district court entered summary judgment in favor of insurer. Insured appealed. The
supreme court held that: (1) street-sweeping machine was not an uninsured motor vehicle;
and (2) the insured was legally entitled to recover only $50,000, the City's statutory cap on
liability and, therefore, was not entitled to UIM benefits, overruling Mann v. Farmers
Insurance Exchange, 108 Nev. 648, 836 P.2d 620 (1992).
Affirmed.
Carl M. Hebert, Reno, for Appellant.
Perry & Spann and Linda J. Linton, Reno, for Respondent.
The construction of a statute is a question of law.
3. Statutes.
Where the language of a statute is plain and unambiguous and its meaning is clear and unmistakable, there is no room for
construction, and the courts are not permitted to search for its meaning beyond the statute itself.
4. Statutes.
Words in a statute should be given their plain meaning unless this violates the spirit of the act.
5. Insurance.
Self-insured City's street-sweeping machine was not an uninsured motor vehicle. Since financial responsibility laws defined
self-insurers as insured, the City was not uninsured. NRS 41.038, 485.380(1), 690B.020, 690B.020(3)(a).
6. Insurance.
Victim of collision with City's street-sweeping machine was legally entitled to recover only $50,000, the City's statutory cap
on liability, for which City was self-insured, and therefore, victim was not entitled to underinsured motorist (UIM) benefits;
overruling Mann v. Farmers Insurance Exchange, 108 Nev. 648, 836 P.2d 620 (1992). NRS 41.035, 687B.145(2).
7. Insurance.
Underinsured motorist (UIM) coverage was not available for the gap between amount of accident victim's settlement with
self-insured City and the limit of the City's liability. NRS 41.035, 687B.145(2).
OPINION
Per Curiam:
Harold A. White appeals from a declaratory judgment entered by the district court in favor
of his automobile liability insurer, Continental Insurance Company. The district court upheld
Continental's denial of White's claim for uninsured/underinsured motorist (UM/UIM)
benefits made in connection with an automobile collision with a vehicle owned by the City of
Reno. The district court found that the self-insured exclusion contained in White's policy
precluded recovery for UM/UIM benefits because the City was a qualified self-insured entity
under the Nevada Motor Vehicle Insurance and Financial Responsibility Act.
1

We conclude that as a matter of law, the City is not uninsured or underinsured; thus, the
policy's UM/UIM coverage never became operative. Because we conclude that Continental
has no obligation to pay UM/UIM benefits as a matter of law, we need not analyze the policy
exclusion upon which the district court relied. We therefore affirm the district court's
judgment in Continental's favor.
FACTS
White was injured in an automobile accident with a street-sweeping machine owned by the
City of Reno, which was self-insured up to its liability limit of $50,000 as set forth in NRS
41.035.
2
White filed an action seeking damages for his personal injuries against the City and
its employee, the operator of the sweeper. Subsequently, White settled his claim with the City
for $45,000, $5,000 less than the $50,000 liability limit for state and local governments.
__________

1
See NRS 41.038; NRS 485.380.

2
NRS 41.035 waives the sovereign immunity of the state and its political subdivisions in tort actions up to
$50,000.
Continental's policy insuring White provided UM/UIM motor vehicle coverage with
optional limits of $250,000 per person and $500,000 per accident. Because White's damages
allegedly exceeded $50,000, White's counsel notified Continental that a claim would be made
for damages in excess of $50,000 based on White's UM/UIM coverage.
Upon receiving notice from White's counsel, Continental intervened in the suit against the
City,
3
seeking a judicial declaration that its UM/UIM coverage exclusion for accidents
involving vehicles owned or operated by a self-insurer effectively renounced coverage in
this instance. White filed a counterclaim arguing the exclusion was void as against public
policy.
4

Continental moved for summary judgment, which was granted by the district court.
Specifically, the district court found the exclusion unambiguously barred recovery by White
because the City's street-sweeping machine was a self-insured vehicle. Further, the district
court found White's public policy argument regarding the exclusionary clause without merit.
This appeal followed.
DISCUSSION
Under the unique facts of this case, the City was not uninsured or underinsured as a matter
of law. The City was a qualified self-insured, and it was insured to the extent of its maximum
statutory liability of $50,000. Consequently, the policy's UM/UIM coverage was inoperative.
As noted, although the parties focused on the application of the self-insured exclusion both in
the district court and in their appellate briefs, we need not and do not address the validity of
the exclusionary language contained in the Continental policy.
Standard of review
[Headnotes 1-4]
5
The construction of a statute
is a question of law.
6
Where the language of a statute is plain and unambiguous, and its
meaning is clear and unmistakable, there is no room for construction, and the courts are not
permitted to search for its meaning beyond the statute itself.
__________

3
See Allstate Insurance Co. v. Pietrosh, 85 Nev. 310, 454 P.2d 106 (1969).

4
Additionally, White argued the exclusion for government-owned vehicles was void. As this issue is well
settled, it is not addressed here. See Arnesano v. State, Dep't Transp., 113 Nev. 815, 819, 942 P.2d 139, 142
(1997).

5
Bopp v. Lino, 110 Nev. 1246, 1249, 885 P.2d 559, 561 (1994).

6
City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003).
statute itself.'
7
It is well settled in Nevada that words in a statute should be given their
plain meaning unless this violates the spirit of the act.'
8

Uninsured vehicle coverage
[Headnote 5]
White's automobile insurance coverage with Continental was written in compliance with
NRS 690B.020, Nevada's uninsured vehicle coverage statute. NRS 690B.020 requires, with
certain exceptions, that automobile liability policies provide protection to insureds who are
legally entitled to recover damages from uninsured drivers. NRS 690B.020(3)(a) defines an
uninsured vehicle as one [w]ith respect to which there is not available at the department of
motor vehicles evidence of financial responsibility as required by chapter 485 of NRS.
NRS 485.380(1) states, Any person in whose name more than 10 motor vehicles are
registered in the State of Nevada may qualify as a self-insurer by obtaining a certificate of
self-insurance issued by the department as provided in subsection 2. Furthermore, NRS
41.038 allows local governments to self-insure against liability claims up to their maximum
limit of $50,000.
9

As noted, the street-sweeping machine was owned by the City, was operated at the time of
the accident by a City employee, and the City was a qualified self-insurer to the extent of its
statutory liability in accordance with NRS 41.038.
10
Since Nevada's financial responsibility
laws define self-insurers as insured,
11
such entities or persons cannot also be defined as
uninsured. Thus, as a matter of law, the City was not uninsured under NRS 690B.020. The
City's status as a qualified self-insured, therefore, makes NRS 690B.020 inapplicable. Thus,
we conclude that Continental was under no obligation to pay uninsured motorist benefits to
White.
Underinsured motorist coverage
[Headnote 6]
NRS 687B.145(2) requires that UM coverage include UIM protection. UIM coverage
provides for the payment of benefits to a person insured under an automobile liability policy
for damages the insured is "legally entitled to recover" from an adverse driver,
__________

7
Attorney General v. Board of Regents, 114 Nev. 388, 392, 956 P.2d 770, 773 (1998) (quoting State v.
Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922)).

8
Id. (quoting McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986)).

9
See NRS 41.035.

10
See NRS 41.035; NRS 485.380.

11
See NRS 485.037.
person insured under an automobile liability policy for damages the insured is legally
entitled to recover from an adverse driver, when the adverse driver's liability insurance limits
are insufficient to extinguish that liability.
12

Here, White is legally entitled to recover only $50,000, the statutory cap on the City's
liability. The City was self-insured to the statutory amount. Thus, UIM coverage is not at
issue here under NRS 687B.145(2). Further, under Mann v. Farmers Insurance Exchange,
13
White's settlement for less than the statutory cap does not change our analysis.
[Headnote 7]
In Mann, we held that a UIM carrier is obligated to pay UIM benefits only for damages
that exceed the underinsured driver's liability limits.
14
Therefore, even if a UM/UIM insured
settles with the underinsured driver for less than the driver's liability limits, the insured's UIM
coverage applies only to damages that surpass those liability limits. Thus, UIM coverage is
not available for the gap between the settlement amount and the adverse driver's liability
policy limit.
In the present case, White's UIM coverage would pay benefits only for damages beyond
the $50,000 limit for which the adverse driver was liable. As explained above, since the
$50,000 cap represents a limit on liability, White's UIM coverage was not activated. We note
that in Mann, the tortfeasor was also subject to the $50,000 cap on municipal liability.
15
To
the extent that Mann suggests that UIM coverage would apply to a claim for damages beyond
that liability limit, it is expressly overruled.
CONCLUSION
As a matter of law, the City was not uninsured because it was self-insured under the
relevant statutes. The City was also not underinsured because its legal liability is capped at
$50,000, and the City was self-insured to the extent it could be held liable for White's
injuries.
Accordingly, the district court reached the correct result that White cannot obtain
UM/UIM benefits under the Continental policy. Therefore, we affirm the district court's
judgment.
16

__________

12
NRS 687B.145(2).

13
108 Nev. 648, 836 P.2d 620 (1992).

14
Id. at 650-51, 836 P.2d at 621-22.

15
Id. at 648, 836 P.2d at 620.

16
See Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987) (concluding this court will affirm
the order of the district court if it reached the correct result, albeit for different reasons).
____________
119 Nev. 119, 119 (2003) DiMartino v. Dist. Ct.
MARK DiMARTINO, Petitioner v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE VALORIE J. VEGA, District Judge, Respondents, and MICHAEL
GREENSTEIN, Real Party in Interest.
No. 40923
April 16, 2003 66 P.3d 945
Original petition for a writ of mandamus challenging a district court order disqualifying
petitioner's counsel under SCR 178.
Shareholder brought civil action against president of corporation, individually and in his
capacity as president, relating to the firing of shareholder. The district court granted
shareholder's motion to disqualify defense counsel. Defendant petitioned for writ of
mandamus. The supreme court held that the rule precluding an attorney who is likely to be a
necessary witness from acting as a trial advocate did not preclude the defense attorney from
representing the defendant in the pretrial stage.
Petition granted.
Nersesian & Sankiewicz and Robert A. Nersesian, Las Vegas, for Petitioner.
Law Office of Barry Levinson and Barry Levinson, Las Vegas, for Real Party in Interest.
1. Mandamus.
When petitioner has no plain, speedy, and adequate remedy in the ordinary course of law, a writ of mandamus is available to
control an arbitrary or capricious exercise of discretion.
2. Attorney and Client.
The rule precluding an attorney who is likely to be a necessary witness from acting as a trial advocate does not preclude the
attorney from representing a client in the pretrial stage. SCR 178.
When determining whether to disqualify an attorney, under the rule precluding an attorney who is likely to be a necessary
witness from acting as a trial advocate, the court must balance the parties' interests and address the hardship that the attorney's
disqualification may have on the client. SCR 178.
OPINION
Per Curiam:
This original petition for a writ of mandamus questions whether the district court acted
arbitrarily and capriciously by disqualifying petitioner Mark DiMartino's counsel, Michael H.
Singer,
petitioner Mark DiMartino's counsel, Michael H. Singer, under SCR 178. Having reviewed
the petition and the answer filed by real party in interest Michael Greenstein, we conclude
that SCR 178 may prevent Singer from representing DiMartino at trial, if the underlying
action proceeds to trial, but it does not otherwise disqualify him from representing DiMartino.
According to the documents before us, the underlying action is primarily a breach of
contract suit brought by Greenstein against DiMartino, individually and as president of
Synergy Restaurant Group, Inc. Synergy was incorporated in June 1993, and DiMartino,
Singer, Greenstein and two others (Richard DiMartino and Christopher Birkin) were
Synergy's sole shareholders. In September 1996, when these five shareholders entered into an
agreement restricting the transferability of Synergy's stock, Mark DiMartino owned 370
shares, Richard DiMartino 330 shares, Greenstein 250 shares, and Singer and Birkin 25
shares each. Under the agreement, all five shareholders were made directors.
In December 1996, apparently before Synergy began its actual business operations, Singer
transferred his stock interest and resigned from the board of directors. In 1999, DiMartino and
Greenstein had a falling out, and Greenstein offered to sell his stock interest for $90,000.
DiMartino offered Greenstein $4,500 and asked for his resignation. Apparently Greenstein
rejected the offer, and DiMartino fired him in October 1999.
1

In December 2000, Greenstein sued DiMartino and Synergy. In January 2001, DiMartino
and Synergy, represented by attorney Singer, answered and counter-claimed against
Greenstein. In December 2002, Greenstein filed an amended complaint, which alleges nine
causes of action: (1) wrongful removal of an officer, (2) breach of the implied covenant of
good faith and fair dealing, (3) libel, (4) slander, (5) wrongful interference with prospective
economic advantage, (6) breach of loyalty, (7) breach of contract, (8) breach of fiduciary duty,
and (9) unjust enrichment. The amended complaint seeks compensatory and punitive
damages.
In December 2002, Greenstein moved for Singer's disqualification as DiMartino and
Synergy's counsel under SCR 178, on the basis that Greenstein planned to call Singer as a
witness because he had been a shareholder and a member of the board of directors.
Greenstein had not identified Singer as a potential witness until December 2002, when he
filed his amended complaint, the motion to disqualify and an amended pretrial memorandum.
DiMartino and Synergy unsuccessfully opposed the motion. On January 8, 2003, the district
court granted the motion orally, citing SCR 178 and this court's opinion in Cronin v. District
Court.
__________

1
The skimpy record before us contains a bare allegation that DiMartino fired Greenstein and banned him
from Synergy's operations, without further explanation.
and this court's opinion in Cronin v. District Court.
2
On January 27, 2003, the district court
entered a written order disqualifying Singer.
In February 2003, DiMartino filed this writ petition challenging the disqualification order.
He contends that SCR 178 may prohibit Singer from acting as trial counsel, but it does not
justify his complete disqualification. This court ordered Greenstein to answer the petition,
and in March 2003 he did so. Greenstein does not address the rule's scope, however.
[Headnote 1]
When petitioner has no plain, speedy and adequate remedy in the ordinary course of law, a
writ of mandamus is available to control an arbitrary or capricious exercise of discretion.
3
SCR 178 generally precludes an attorney who is likely to be a necessary witness from
acting as a trial advocate. Specifically, SCR 178 provides, in relevant part:
1. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness except where:
(a) The testimony relates to an uncontested issue;
(b) The testimony relates to the nature and value of legal services rendered in the
case; or
(c) Disqualification of the lawyer would work substantial hardship on the client.
Here, although the parties dispute whether attorney Singer is likely to be a necessary
witness, the district court disqualified him as petitioner's counsel. In doing so, the court
exercised its discretion arbitrarily and capriciously.
[Headnote 2]
First, the rule does not mandate complete disqualification of an attorney who may be
called as a witness; by its plain terms, SCR 178 simply prohibits the attorney from appearing
as trial counsel. In most jurisdictions, a lawyer who is likely to be a necessary witness may
still represent a client in the pretrial stage.
4
Some courts, however, have disqualified
counsel in the pretrial stage.
__________

2
105 Nev. 635, 781 P.2d 1150 (1989) (stating that in situations involving attorney disqualifications, any
doubts should be resolved in favor of disqualification).

3
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981).

4
See, e.g., Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988) (lawyers performing
substantial pretrial work did not violate the advocate-witness rule because they did not plan to act as advocates
at trial if called as witnesses); United States v. Castellano, 610 F. Supp. 1151, 1167 (S.D.N.Y. 1985) (lawyer
may fully participate in pretrial stage even though the lawyer will probably be called as a witness); ABA Comm.
on Ethics and Prof'l
however, have disqualified counsel in the pretrial stage.
5
We believe the majority approach
is the better reasoned one. Because the rule is meant to eliminate any confusion and prejudice
that could result if an attorney appears before a jury as an advocate and as a witness, pretrial
disqualification generally is not necessary. The case may not go to trial, other evidence may
be available in place of the attorney's testimony or the attorney's client might prefer to have
the attorney as an advocate rather than a witness.
6

Second, SCR 178 is derived from, and virtually identical to, ABA Model Rule of
Professional Conduct 3.7. The ABA Commission on Ethics and Professional Responsibility
has interpreted the Model Rule to allow a lawyer who is expected to testify at trial to
represent his client in pretrial proceedings, with consent, although the lawyer may not appear
in any situation requiring the lawyer to argue his own veracity to a court or other body,
whether in a hearing on a preliminary motion, an appeal or other proceeding.
7
This
interpretation preserves the right to counsel of one's own choice while protecting the integrity
of the judicial proceeding.
[Headnote 3]
Third, the district court's oral ruling and written decision do not balance the parties'
interests or address the hardship Singer's disqualification may have on DiMartino. SCR
178(1)(c) requires consideration of this factor. The district court also did not determine
whether Singer was likely to be a necessary witness.
Finally, we are loathe to allow a party to wholly disqualify opposing counsel under SCR
178 by simply listing that counsel as a witness two years into the litigation and asserting that
disqualification doubts should be resolved in favor of disqualification. The potential for
abuse is obvious.
__________
Responsibility, Informal Op. 1529 (1989) (lawyer who is expected to testify at trial may represent client in
pretrial proceedings, provided client consents after consultation and lawyer reasonably believes representation
will not be adversely affected by the lawyer's interest in the expected testimony); State Bar of Mich. Comm. on
Prof'l and Judicial Ethics, RI-299 (Dec. 18, 1997) (lawyer not disqualified from representing client in pretrial
matters even if lawyer might eventually be disqualified from acting as trial counsel).

5
See, e.g., World Youth Day, Inc. v. Famous Artists, 866 F. Supp. 1297 (D. Colo. 1994) (court refused to
allow lawyer who was necessary trial witness to take or defend depositions, holding that if pretrial activity
includes obtaining evidence that, if admitted at trial, would reveal lawyer's dual role, then risk of jury confusion
and prejudice overrides rationale that the advocate-witness rule applies only to trial advocacy); Freeman v.
Vicchiarelli, 827 F. Supp. 300 (D.N.J. 1993) (lawyer likely to be called as trial witness for client may not
represent client even during pretrial stages).

6
See ABA Comm. on Ethics and Prof'l Responsibility, Informal Op. 1529 (1989).

7
Id.
potential for abuse is obvious. Interpreting SCR 178 to permit total disqualification would
invite the rule's misuse as a tactical ploy.
8

Accordingly, we grant the petition. The clerk of this court shall issue a writ of mandamus
directing the district court to vacate its order disqualifying attorney Singer.
____________
119 Nev. 123, 123 (2003) Kornton v. Conrad, Inc.
HELMUT KORNTON, Appellant, v. CONRAD, INC., a Nevada Corporation, Respondent.
No. 36501
April 28, 2003 67 P.3d 316
Appeal from an order granting partial summary judgment, certified as final under NRCP
54(b). Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
An individual who was severely injured in an automobile accident with another motorist,
who was driving to work, sued motorist's employer, among others, under a theory of
respondeat superior liability for his injuries. The district court entered summary judgment for
the employer, and the plaintiff appealed. The supreme court held that the motorist was not
performing a service within the scope of his employment for his employer at the time of the
accident.
Affirmed.
Thomas A. Vallas, Reno, for Appellant.
Lauria Tokunaga & Gates, LLP, and Raymond R. Gates, Sacramento, California, for
Respondent.
1. Appeal and Error; Judgment.
Summary judgment is reviewed de novo and is proper when no genuine issues of material fact exist and the moving party is
entitled to judgment as a matter of law.
2. Master and Servant.
To determine whether respondeat superior liability is applicable, the trier of fact generally determines whether an employee
was acting within the scope of his or her employment when the tortious act occurred.
__________

8
See, e.g., Zurich Ins. Co. v. Knotts, 52 S.W.3d 555, 560 (Ky. 2001) (holding that the showing of prejudice
needed to disqualify opposing counsel as trial advocate must be more stringent than when the attorney is
testifying on behalf of his own client, because adverse parties may attempt to call opposing lawyers as witnesses
simply to disqualify them).
Issues of respondeat superior liability may be resolved as a matter of law when evidence of an employee's status at the time of
the incident is undisputed.
The tortious conduct of an employee in transit to or from the place of employment will not expose the employer to liability,
unless there is a special errand which requires driving. This is known as the going and coming rule.
5. Automobiles.
Motorist was not performing a service within the scope of his employment for his employer at the time of the accident, but
was merely commuting to a job site from home in his private vehicle, and thus, the employer was not vicariously liable for injuries
suffered by plaintiff. Although, due to the nature of his work, the motorist reported to different job sites depending on the location
of the employer's projects, he received hourly compensation only for actual time worked, did not receive reimbursement for travel
expenses, and transported the company-issued plasterer's trowel to and from his job each workday due to transient nature of the
job location.
OPINION
Per Curiam:
Appellant Helmut Kornton was severely injured by an automobile driven by Marcelino
Camacho. Camacho, who was killed in the accident, was driving to work when the accident
occurred. Kornton sued, among others, Conrad, Inc., Camacho's employer at the time of the
accident, under a theory of respondeat superior liability. The district court granted Conrad's
motion for summary judgment, determining as a matter of law that Conrad was not
vicariously liable for Camacho's negligent operation of his motor vehicle. We agree.
FACTS
The facts are undisputed. On January 3, 1997, Kornton was driving northbound on U.S.
Highway 395, while Camacho slid toward him in the center, northbound lane at a high rate of
speed. The two vehicles collided and Camacho was killed. Kornton sustained severe and
permanent injuries. Camacho was driving his personal vehicle from home to a job location
where he was told to report for the day. At the time, Camacho was employed by Conrad as an
hourly apprentice plasterer and worked on a field crew. The field crew did not have a fixed
reporting location; rather, a foreman notified his crew where to report each day. Camacho's
crew members were required to arrive at the job site fifteen minutes prior to their scheduled
start time and were not compensated for travel.
DISCUSSION
[Headnote 1]
Summary judgment is reviewed de novo
1
and is proper when no genuine issues of
material fact exist and the moving party is entitled to judgment as a matter of law.
2

[Headnotes 2-4]
Generally, the trier of fact determines whether an employee was acting within the scope
of his or her employment when the tortious act occurred.
3
Issues of respondeat superior
liability, however, may be resolved as a matter of law when evidence of an employee's status
at the time of the incident is undisputed.
4
The tortious conduct of an employee in transit to
or from the place of employment will not expose the employer to liability, unless there is a
special errand which requires driving.
5
This is known as the going and coming' rule.
6

[Headnote 5]
In National Convenience Stores v. Fantauzzi,
7
an employee was involved in an accident
while traveling to one of his employer's stores to obtain shelf measurements on his day off.
The employee had broad discretion to work past his normal hours to measure shelving, and
the task was to benefit his employer. We held there was sufficient evidence for a jury to
conclude the accident occurred during a special errand for the employer.
This case is distinguishable. Camacho was not performing a service within the scope of his
employment for Conrad at the time of the accident, but was merely commuting to a job site
from home in his private vehicle. Due to the nature of his work, Camacho reported to
different job sites depending on the location of Conrad's projects. He was an hourly employee
who received compensation only for actual time worked and did not receive reimbursement
for travel expenses. In addition, Conrad did not exercise control over Camacho or receive a
benefit by having Camacho transport a company-issued plasterer's trowel to and from his
job each workday.
__________

1
GES, Inc. v. Corbitt, 117 Nev. 265, 268, 21 P.3d 11, 13 (2001) (citing Caughlin Homeowners Ass'n v.
Caughlin Club, 109 Nev. 264, 266, 849 P.2d 310, 311 (1993)).

2
Id. (citing NRCP 56).

3
Evans v. Southwest Gas, 108 Nev. 1002, 1005, 842 P.2d 719, 721 (1992) (citing National Convenience
Stores v. Fantauzzi, 94 Nev. 655, 659, 584 P.2d 689, 692 (1978)), overruled on other grounds by GES, Inc.,
117 Nev. at 268 n.6, 21 P.3d at 13 n.6.

4
Id. (citing Molino v. Asher, 96 Nev. 814, 818, 618 P.2d 878, 880 (1980)).

5
Molino, 96 Nev. at 817, 618 P.2d at 879-80 (citing National Convenience Stores, 94 Nev. at 658, 584 P.2d
at 691).

6
National Convenience Stores, 94 Nev. at 658, 584 P.2d at 691 (quoting Short v. United States, 245 F. Supp.
591, 593 (D. Del. 1965)).

7
Id. at 658, 584 P.2d at 692.
company-issued plasterer's trowel to and from his job each workday. Keeping the trowel with
him instead of leaving it at a job site was a commonsense practicality due to the transient
nature of Camacho's job location.
CONCLUSION
Since Camacho was not acting within the scope of his employment, we conclude Conrad is
not vicariously liable for Camacho's actions. We therefore affirm the district court's summary
judgment.
____________
119 Nev. 126, 126 (2003) White Cap Indus., Inc. v. Ruppert
WHITE CAP INDUSTRIES, INC., dba SIERRA SUPPLY, Appellant, v. RICHARD
RUPPERT, aka DICK RUPPERT, Respondent.
No. 38034
April 28, 2003 67 P.3d 318
Appeal from a district court order granting summary judgment in favor of respondent
Richard Ruppert. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Construction supply company brought action against former owner for breach of
non-competition agreement and his fiduciary duties. The district court granted summary
judgment for former owner, and company appealed. The supreme court held that: (1) owner
was not obligated to disclose other employee's intention to start competing business, and (2)
former owner did not breach duty of loyalty.
Affirmed.
Avansino Melarkey Knobel McMullen & Mulligan and John B. Mulligan, Reno; Rutan &
Tucker, LLP, and Robert Charles Braun and Matthew K. Ross, Costa Mesa, California, for
Appellant.
McDonald Carano Wilson LLP and Pat Lundvall and Michael A. T. Pagni, Reno, for
Respondent.
When reviewing a district court order granting summary judgment, the supreme court exercises de novo review.
2. Judgment.
Summary judgment is appropriate when there is no genuine issue of material fact remaining and the moving party is entitled
to judgment as a matter of law.
3. Contracts.
Non-competition agreement between construction supply company and former owner, who continued to work for company as
district sales manager, did not obligate former owner to disclose that employee told him he was
dissatisfied and was considering starting his own construction supply business,
manager, did not obligate former owner to disclose that employee told him he was dissatisfied and was considering starting his
own construction supply business, where agreement only prohibited former owner from engaging in direct competition with
company or assisting, encouraging, or inducing others to compete with company.
Employee did not breach his duty of loyalty to employer by failing to disclose that fellow employee was making preparations
to start competing construction supply business. Restatement (Second) of Agency 381.
OPINION
Per Curiam:
In 1974, Richard Ruppert, along with several other individuals, formed a construction
supply business named Sierra Supply, Inc., in Sparks, Nevada. Over the years, Ruppert was
intimately involved in the company's daily operations. In 1998, he sold the company to White
Cap Industries, Inc. The sales agreement contained a non-competition clause and provided
that he serve as White Cap's district sales manager. White Cap retained most of Sierra
Supply's employees, including Michael Harmon, who stayed on as the local branch manager.
Shortly after the sale, Harmon became dissatisfied with White Cap's management,
terminated his employment and formed a competing construction supply business. However,
before terminating his employment with White Cap, Harmon allegedly told Ruppert that he
was interested in starting his own construction supply business and that he was attempting to
obtain financing. Ruppert never disclosed any of this information to White Cap, nor did he
take any affirmative actions to assist or dissuade Harmon from starting his own business.
Ruppert retired from White Cap in December 1998.
In February 2001, White Cap filed the instant action against Ruppert, alleging that he
breached the non-competition agreement and his fiduciary duties to White Cap when he
failed to inform White Cap of Harmon's statements about starting his own construction
supply business. Ruppert filed a motion for summary judgment, which the district court
granted after determining that there was no evidence to support White Cap's claims.
[Headnotes 1, 2]
On appeal, White Cap asserts that the district court erred because Ruppert breached his
contractual and fiduciary duties to White Cap by failing to inform White Cap of Harmon's
statements. When reviewing a district court order granting summary judgment, we exercise
de novo review.
ment, we exercise de novo review.
1
Summary judgment is appropriate when there is no
genuine issue of material fact remaining and the moving party is entitled to judgment as a
matter of law.
2
In making this determination, we will view the pleadings and proof offered
below in the light most favorable to the non-moving party.
3

[Headnote 3]
White Cap asserts that Ruppert was obligated by the terms of the non-competition
agreement to inform White Cap of Harmon's intentions to start a competing business. The
non-competition agreement states, in pertinent part:
2. Non-Competition Commitment.
(a) Agreement Not to Compete. The Seller agrees that, for a period of five (5) years
after the date of this Agreement, he shall not, directly or indirectly, in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director, stockholder,
employee, member of any association or otherwise) engage in the Business within the
geographic area described in Section 2(b) below.
(b) Geographic Extent of Covenant. The obligations of the Seller under Section 2(a)
shall apply to Nevada and California.
(c) Indirect Competition. Seller further agrees that, during the term of this
Agreement, he will not, directly or indirectly, assist or encourage any other person in
carrying out, directly or indirectly, any activity that would be prohibited by the
foregoing provisions of this Section 2 if such activity were carried out by the Seller,
either directly or indirectly. In particular, the Seller agrees that he will not, directly or
indirectly, induce any employee of the Buyer . . . to carry out, directly or indirectly, any
such activity.
White Cap argues that Ruppert breached section 2(c) of the agreement because his silence
assisted and encouraged Harmon in carrying out his plans to compete with White Cap. We
disagree. The plain language of the non-competition agreement does not state that Ruppert
has an affirmative duty to inform White Cap of the competitive intentions of other
employees. Rather, the non-competition agreement reads as a list of prohibitions directing
Ruppert not to engage in competition with White Cap or assist, encourage or induce
others to compete with White Cap. Nothing in the agreement suggests that mere
non-action would result in a breach.
__________

1
Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992).

2
Serrett v. Kimber, 110 Nev. 486, 488, 874 P.2d 747, 749 (1994); NRCP 56(c).

3
Bulbman, 108 Nev. at 110, 825 P.2d at 591.
in the agreement suggests that mere non-action would result in a breach. Accordingly, the
district court properly concluded that the non-competition agreement did not require Ruppert
to inform White Cap of Harmon's competitive intentions.
[Headnote 4]
Additionally, we conclude that Ruppert breached no fiduciary duty to White Cap. While
section 381 of the Restatement (Second) of Agency provides that an agent is subject to a duty
to use reasonable efforts to give his principal information which is relevant to affairs
entrusted to him,
4
Harmon's statements regarding his desire to start his own business were
not relevant to the duties entrusted to Ruppert, who did not oversee Harmon. Moreover, the
Restatement provides that an employee is permitted to make preparations to compete with his
or her employer.
5
Accordingly, since an employee does not breach his duty of loyalty by
making preparations to compete, a fellow employee does not breach his duty of loyalty by
failing to disclose his knowledge of this fact.
Based on the above, we conclude that the district court did not err when it granted
summary judgment in favor of Ruppert. Accordingly, we affirm the judgment of the district
court.
____________
119 Nev. 129, 129 (2003) Barnier v. State
MICHAEL JOHN BARNIER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38657
April 28, 2003 67 P.3d 320
Appeal from a judgment of conviction, following a jury verdict, on one count of driving
under the influence of intoxicating liquor (third offense), a category B felony.
1
Seventh
Judicial District Court, Lincoln County; Steve L. Dobrescu, Judge.
The supreme court, Maupin, J., held that the jury instruction on actual physical control of a
motor vehicle unduly restricted the defense and was tantamount to directing a verdict in favor
of the State.
Steven G. McGuire, State Public Defender, James P. Logan, Chief Deputy Public
Defender, and Susan M. Reaser, Deputy Public Defender, Carson City, for Appellant.
__________

4
Restatement (Second) of Agency 381 (1958).

5
See id. 393 cmt. e.

1
See NRS 484.379; NRS 484.3792(1)(c).
Brian Sandoval, Attorney General, Carson City; Philip H. Dunleavy, District Attorney,
and Matthew D. Carling, Deputy District Attorney, Lincoln County, for Respondent.
1. Criminal Law.
The supreme court evaluates appellate claims concerning jury instructions using a harmless error standard of review. NRS
178.598.
2. Automobiles; Criminal Law.
Jury instruction in prosecution for driving under the influence of intoxicating liquor (DUI) based on actual physical control of
a motor vehicle unduly restricted the defense and was tantamount to directing a verdict in favor of the State, by not allowing jury
to consider whether vehicle's engine was running, whether defendant was trying to move or did move the vehicle, and whether
defendant drove the vehicle to the location where he was apprehended, despite evidence to contrary; officer testified that car was
not running, record showed that defendant did not move the vehicle, and original informant reported that a woman was driving the
vehicle. NRS 484.379.
3. Automobiles.
Proper balancing of Rogers factors to determine whether a defendant charged with driving under the influence of intoxicating
liquor (DUI) had actual physical control of a motor vehicle should be left to discretion of triers of fact in individual cases. NRS
484.379.
OPINION
Michael John Barnier appeals from a judgment of conviction for driving a motor vehicle
under the influence of intoxicating liquor (DUI), third offense, a category B felony under
Nevada law. We now consider whether failure to instruct DUI trial juries regarding certain
factors for determining actual physical control of a motor vehicle
2
mandates reversal.
Having concluded in the affirmative, we reverse and remand this matter for a new trial.
FACTUAL BACKGROUND
On May 5, 1999, the Lincoln County Sheriff's Department received information that a
male and female couple appearing to be intoxicated had just left a local store in a blue motor
vehicle. According to the informant, the female was the driver and the male was the
passenger.
Shortly thereafter, Sheriff's Sergeant Maribah Cowley came across a car, matching the
description provided by the dispatcher, parked in a pull-off area on Nevada State Route
319, approximately twenty to twenty-five feet from the roadway.
__________

2
See Rogers v. State, 105 Nev. 230, 773 P.2d 1226 (1989).
mately twenty to twenty-five feet from the roadway. As Sergeant Cowley approached, she
observed Barnier in the driver seat and a woman on the passenger side of the car relieving
herself. Upon examining the driver's side of the vehicle where Barnier was sitting, Sergeant
Cowley noticed a strong odor of alcohol. She also observed that the keys were in the ignition
and that the automobile's engine was not running. Sergeant Cowley questioned Barnier and
administered several field sobriety tests, which Barnier failed. She then arrested Barnier for
DUI. Because Barnier sustained three convictions for misdemeanor DUI within the previous
seven years, the State charged him with felony DUI.
3

The trial jury found Barnier guilty of DUI based upon the State's theory that he was in
actual physical control of the vehicle.
4
The conviction was enhanced to felony status at
sentencing based upon documentation of the three prior misdemeanor convictions.
5
The
district court sentenced Barnier to a maximum term of sixty months in the Nevada State
Prison with minimum parole eligibility of twenty-four months, a $2,000 fine, a $25
administrative assessment fee, and a $60 forensic fee. Barnier appeals.
DISCUSSION
NRS 484.379 makes it unlawful for a person to drive or be in actual physical control of a
vehicle in a public area while intoxicated. Because the vehicle in which Barnier was found
was stationary with the ignition in the off position, the primary issue at Barnier's trial was
whether he was in actual physical control of the vehicle within the meaning of NRS 484.379
and our decisional law interpreting it. In Rogers v. State, we concluded that a person,
although not driving, is in actual physical control of a vehicle when [he] has existing or
present bodily restraint, directing influence, domination, or regulation of the vehicle.
6
We
went on to develop the following factors or considerations for triers of fact to weigh in
resolving issues concerning actual physical control:
(1) Where and in what position the person is found in the vehicle;
(2) Whether the vehicle's engine is running or not;
(3) Whether the occupant is awake or asleep;
__________

3
See NRS 484.3792(1)(c).

4
See NRS 484.379.

5
See NRS 484.3792(1)(c).

6
105 Nev. at 233, 773 P.2d at 1228 (citing State v. Ruona, 321 P.2d 615, 618 (Mont. 1958); City of Kansas
City v. Troutner, 544 S.W.2d 295, 300 (Mo. Ct. App. 1976); Hughes v. State, 535 P.2d 1023, 1024 (Okla. Crim.
App. 1975); Commonwealth v. Kloch, 327 A.2d 375, 383 (Pa. Super. Ct. 1974); State v. Bugger, 483 P.2d 442,
443 (Utah 1971)).
(4) Whether, if the person is apprehended at night, the vehicle's lights are on;
7

(5) The location of the vehicle's keys;
(6) Whether the person was trying to move the vehicle or moved the vehicle;
(7) Whether the property on which the vehicle is located is public or private; and
(8) Whether the person must, of necessity, have driven to the location where
apprehended.
8

Prior to submission of the case to the jury, Barnier offered a jury instruction on the actual
control issue that was virtually a verbatim restatement of the Rogers factors. The district
court, however, refused the proposed instruction and, instead, instructed the jury that it could
consider the following control factors:
1) [A]ctive or constructive possession of the ignition keys;
2) the position of the person charged in the driver's seat, behind the steering wheel, and
in such a condition that, except for the intoxication, he or she is physically capable of
starting the engine and causing the vehicle to move; and 3) a vehicle that is operable to
some extent. Actual movement of the vehicle is not required as long as it is reasonably
capable of being rendered operable.
Barnier argues that the district court committed reversible error by not instructing the jury
on the factors listed in Rogers that were relevant to his case. Clearly, the instruction given by
the district court omitted several important factors that we will discuss in their turn below.
Standard of review
[Headnote 1]
This court evaluates appellate claims concerning jury instructions using a harmless error
standard of review.
9
Harmless error, as defined by NRS 178.598, requires that [a]ny error,
defect, irregularity or variance which does not affect substantial rights shall be disregarded.
With regard to claims of inadequacy of jury instructions, we have stated that, if a defendant
has contested the omitted element [of a criminal offense] and there is sufficient evidence to
support a contrary finding, the error [in the instruction] is not harmless.
__________

7
This factor did not apply in this instance. Thus, it was unnecessary to any theory of the case presented by
either the State or the defense.

8
Rogers, 105 Nev. at 233-34, 773 P.2d at 1228.

9
See Wegner v. State, 116 Nev. 1149, 1155, 14 P.3d 25, 30 (2000) (citing Collman v. State, 116 Nev. 687,
722-23, 7 P.3d 426, 447 (2000) (citing Neder v. United States, 527 U.S. 1, 13-15 (1999))).
less.
10
However, while the defense has the right to have the jury instructed on its theory
of the case as disclosed by the evidence, no matter how weak or incredible that evidence may
be,'
11
a defendant is not entitled to an instruction which incorrectly states the law'
12
or
that is substantially covered by other instructions.
13

[Headnote 2]
Barnier's proposed instruction was based upon his theory of the case, correctly stated the
law, and was not substantially covered by the other instructions. Thus, because substantial
evidence established at trial would have supported a finding in Barnier's favor based upon the
omitted Rogers factors, we conclude that failure to accept the proposed defense instruction
was not harmless.
The omitted Rogers factors
One of the omitted Rogers factors for jury consideration was whether the vehicle's engine
was running. At trial, Sergeant Cowley testified that the car was not running, which would
certainly have weighed in favor of Barnier being found not in actual physical control of the
vehicle.
The second factor omitted from the jury instruction was whether Barnier was trying to
move or did move the vehicle. The record shows that Barnier did not move or try to move the
vehicle when approached by the police officer. Again, this factor would have weighed in
favor of Barnier not being found in actual physical control of the vehicle.
The third and final factor omitted was whether Barnier drove the vehicle to the location
where he was apprehended. The record indicates that the original informant reported that a
woman was driving the vehicle. Additionally, Cynthia Hunter, the woman found at the scene
with Barnier, testified that she drove the vehicle to the location where Barnier was
apprehended and that she intended to recommence driving after relieving herself. This
evidence would likewise have weighed in favor of Barnier not being in actual physical
control of the vehicle.
[Headnote 3]
The State argues that this court has not indicated how the Rogers factors should be
weighed or whether any of the factors are absolutes.
__________

10
Id. at 1156, 14 P.3d at 30 (citing Neder, 527 U.S. at 19).

11
Vallery v. State, 118 Nev. 357, 372, 46 P.3d 66, 76-77 (2002) (quoting Margetts v. State, 107 Nev. 616,
619, 818 P.2d 392, 394 (1991)); see also Geary v. State, 110 Nev. 261, 264-65, 871 P.2d 927, 929 (1994).

12
Ducksworth v. State, 113 Nev. 780, 792, 942 P.2d 157, 165 (1997) (quoting Geary, 110 Nev. at 265, 871
P.2d at 929).

13
Vallery, 118 Nev. at 372, 46 P.3d at 77.
solutes. We have, however, reaffirmed the Rogers factors in every subsequent opinion in
which we have considered the subject of actual physical control.
14
In Rogers, we stated
that a spectrum of cases may arise from those where no actual physical control was present
because it was clear that the defendant did not drive his vehicle,
15
to those where the
defendant must have driven to the location where apprehended and so must have been in
actual physical control.
16
The result will differ based on an application of the Rogers factors
to specific factual situations. We, therefore, leave the proper balancing of those factors to the
discretion of triers of fact in individual cases.
CONCLUSION
The district court instructed the jury to resolve the issue of actual physical control by
weighing whether there was active or constructive possession of the keys, Barnier's position
in the vehicle behind the wheel, whether he was physically capable of operating the vehicle
and whether the vehicle was operable. We acknowledge that the factors set forth in the
district court's instruction on actual physical control were reasonable.
17
We also
acknowledge that a jury could convict Barnier even with proper instructions given pursuant to
Rogers. However, without mentioning the omitted factors, the instruction given by the district
court unduly restricted Barnier's defense and was tantamount to directing a verdict in favor of
the State. Accordingly, we cannot conclude that the omission of the three Rogers factors
constitutes harmless error. We, therefore, hold that the failure in this instance to instruct in
accordance with the applicable Rogers factors mandates reversal.
18

__________

14
See Bullock v. State, Dep't Motor Vehicles, 105 Nev. 326, 328, 775 P.2d 225, 226 (1989); Isom v. State,
105 Nev. 391, 393, 776 P.2d 543, 545 (1989); State, Dep't of Motor Vehicles v. Torres, 105 Nev. 558, 561, 779
P.2d 959, 961 (1989).

15
E.g., where an intoxicated person exits a bar and falls asleep in the back seat of his car located in the
parking lot of the bar without starting or driving the vehicle.

16
E.g., where an intoxicated person drives a vehicle, suffers a flat tire, and is apprehended while outside the
vehicle changing the tire.

17
The Rogers factors are not restrictive of considerations that might occur in any individual DUI prosecution.

18
Barnier additionally seeks reversal based upon the following comment made by the prosecutor: I have
taken an oath to follow the law. The Judge has instructed you that [DUI is] against the law. Barnier claims that
this statement was akin to the prosecutor telling the jury that he would not prosecute someone who did not
violate the law. Although we cannot conclude that this statement materially affected the verdict, we admonish
the district attorney to refrain from this type of rhetoric in the future.
We have also considered Barnier's assignments of error lodged in connection with the validity of his prior
misdemeanor convictions and find them to be without merit.
In light of the above, we reverse Barnier's conviction and remand the matter to the district
court for a new trial to be conducted in a manner consistent with this opinion.
Rose and Gibbons, JJ., concur.
____________
119 Nev. 135, 135 (2003) Sanders v. State
CHRISTOPHER PAUL SANDERS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 39702
April 28, 2003 67 P.3d 323
Appeal from judgment of conviction for felony nonsupport. Fifth Judicial District Court,
Nye County; Robert W. Lane, Judge.
The supreme court held that: (1) statute allowing an affirmative defense to charge of
felony nonsupport is not vague, and thus, the statute is constitutional; (2) any arrearages for
child support reduced to judgment were properly included in the calculation of the $10,000
threshold to qualify for felony nonsupport; (3) incarceration can be asserted as an affirmative
defense to a charge of felony nonsupport; and (4) jury was warranted in holding defendant
liable for child support arrearages that accrued while he was incarcerated.
Affirmed.
[Rehearing denied June 18, 2003]
[En banc reconsideration denied August 29, 2003]
Harold Kuehn, Tonopah, for Appellant.
Brian Sandoval, Attorney General, Carson City; Robert S. Beckett, District Attorney, and
Erik A. Levin, Deputy District Attorney, Nye County, for Respondent.
1. Criminal Law.
The supreme court reviews the constitutionality of statutes de novo.
The burden is on the challenger to make a clear showing of the unconstitutionality of a statute.
3. Criminal Law.
When challenging a statute based on vagueness, the challenger must prove that the statute is so imprecise, and vagueness so
permeates its text, that persons of ordinary intelligence cannot understand what conduct is prohibited, and the enactment
authorizes or encourages arbitrary and discriminatory enforcement.
4. Child Support; Constitutional Law; Husband and Wife.
Phrase without good cause, as used in statute allowing inability to provide child support or spousal support ordered by a
court as an affirmative defense to charge of felony nonsupport, unless the defendant is voluntarily unemployed or underemployed
without good cause, is not vague because an ordinary person can easily understand what constitutes without good cause, and the
affirmative defense statute does not lend itself to arbitrary enforcement. Thus, the statute is constitutional. NRS 201.051.
5. Criminal Law.
The meaning of a statute is a question of law that the supreme court reviews de novo.
6. Statutes.
The supreme court interprets statutes based on their plain meaning, which is intended to reflect legislative intent.
7. Child Support.
Any arrearages for child support reduced to judgment were properly included in the calculation of the $10,000 threshold to
qualify for felony nonsupport, because such arrearages clearly originated from and were directly and exclusively correlative to the
court-ordered obligation to pay support. Thus, there did not have to be an additional accrual of $10,000 in arrearages from the time
of the arrearage order. NRS 201.020.
8. Child Support.
Incarceration can be asserted as an affirmative defense under the circumstances to a charge of felony nonsupport. NRS
201.020, 201.051.
9. Child Support.
In making determination of whether incarceration constituted an affirmative defense under the circumstances to a charge of
felony nonsupport, the jury should weigh factors such as whether the obligor has other assets or income, the obligor's past and
future ability to earn income, the length of the obligor's incarceration, and the best interest of the child. NRS 201.020, 201.051.
10. Child Support.
Evidence was sufficient to support defendant's conviction for felony nonsupport because jury had good reason to reject
defendant's affirmative defense of incarceration, where defendant had arrearages of $9,475 when the district court ordered him to
pay those arrearages plus $510 per month for child support, and he knew of his child support obligation prior to entering prison
and never made a payment, illustrating that he never made a meaningful attempt to support his children regardless of his
incarceration. NRS 201.020, 201.051.
OPINION
Per Curiam:
In this appeal, we consider the constitutionality of NRS 201.051, which provides an
affirmative defense to felony nonsupport. We hold that this statute is not vague, and thus, is
constitutional.
We next consider whether NRS 201.020, the felony nonsupport statute, is ambiguous. We
hold that the plain language of the statute is clear, and that arrearages reduced to judgment
by a support order should be included in calculating arrearages under NRS 201.020.
is clear, and that arrearages reduced to judgment by a support order should be included in
calculating arrearages under NRS 201.020.
We finally consider whether incarceration may be asserted as an affirmative defense to
felony nonsupport pursuant to NRS 201.051. Although we hold that incarceration may be
asserted as an affirmative defense, we conclude that it was within the jury's province to
decide that incarceration was not an affirmative defense in this instance.
FACTS
On June 30, 1998, the district court ordered Christopher Paul Sanders to pay $510 per
month in child support for his two minor children and reduced his $9,475 in arrearages to
judgment. On April 5, 2001, the State charged Sanders with felony nonsupport under NRS
201.020 after he failed to make any child support payments as ordered by the district court.
Before trial, Sanders asserted an affirmative defense under NRS 201.051, claiming that he
was unable to pay child support because he could not secure sufficient employment while
incarcerated.
Sanders was incarcerated for approximately twenty-one months during the
thirty-three-month period from the date the district court ordered Sanders to pay child support
to the date the State filed the criminal complaint. Sanders worked on the fire support crew
while incarcerated in the Nevada State Prison, earning a starting salary of $2.10 per day.
Sanders claimed that he was left with about $27 per month to spend on commissary items
because his earnings first went to room and board, restitution, the Policeman's Retirement
Fund, and debts owed to the prison for services received. Thus, Sanders maintained that he
was unable to pay child support while incarcerated.
Sanders, however, acknowledged that he failed to make any child support payments while
not incarcerated. He claimed that he had trouble securing employment, but also he admitted
that he did not pay child support even when he was employed for a short while.
Sanders also attacked the fuzzy math that the State used to calculate his arrearages.
Essentially, Sanders argued that his arrearages did not exceed the $10,000 threshold set out in
NRS 201.020, and thus, he was not guilty of felony nonsupport. Sanders argued that the State
should not have included his arrearages reduced to judgment in calculating his total
arrearages. He also argued that his obligation to pay child support was suspended during his
incarceration; therefore, his arrearages did not exceed $10,000.
The State argued that Sanders did not show that he was entitled to an affirmative defense
under NRS 201.051 because his unemployment was without good cause. Specifically, the
State argued that incarceration should not be used as an affirmative defense because
Sanders' inability to pay was voluntary,
that incarceration should not be used as an affirmative defense because Sanders' inability to
pay was voluntary, given that he voluntarily committed the crimes that led to his incarceration
and subsequent inability to pay. In addition, the State argued that Sanders was aware of his
child support obligation, yet failed to make payments regardless of whether he was
incarcerated.
The jury found Sanders guilty of felony nonsupport. The district court sentenced Sanders
to imprisonment in the Nevada State Prison for a maximum of thirty-six months with a
minimum parole eligibility of twelve months, but suspended the sentence and placed Sanders
on probation for three years.
DISCUSSION
Constitutionality of NRS 201.051
Sanders argues that the without good cause language in NRS 201.051 is vague, thereby
making the affirmative defense statute unconstitutional.
[Headnotes 1-3]
This court reviews the constitutionality of statutes de novo.
1
The burden is on the
challenger to make a clear showing of the unconstitutionality of a statute.
2
When challenging
a statute based on vagueness, the challenger must prove that the statute is so imprecise, and
vagueness so permeates its text, that persons of ordinary intelligence cannot understand what
conduct is prohibited, and the enactment authorizes or encourages arbitrary and
discriminatory enforcement.
3

At the outset, we note that vagueness challenges are not generally raised when a statutory
affirmative defense is at issue, given that such provisions do not delineate the boundaries of
unlawful conduct, nor do they generally encourage arbitrary enforcement. Indeed, it has been
acknowledged that where the statute deals not with a proscription itself but, instead, with
affirmative defenses, statutory provisions which become relevant only after an arrest is made
and charges are filed, any uncertainty in its terms is far less likely to be an inducement to
irresponsible law enforcement.'
4

__________

1
See Sheriff v. Burdg, 118 Nev. 853, 857, 59 P.3d 484, 486 (2002).

2
Id.

3
City of Las Vegas v. Dist. Ct., 118 Nev. 859, 863, 59 P.3d 477, 480 (2002).

4
People v. Capitol News, Inc., 560 N.E.2d 303, 307 (Ill. 1990) (quoting People v. Illardo, 399 N.E.2d 59, 62
(N.Y. 1979)).
[Headnote 4]
NRS 201.051 states in part:
1. Except as otherwise provided in this section, in a prosecution for a violation of
NRS 201.020, the defendant may claim as an affirmative defense that he was unable to
provide the child support or spousal support ordered by a court.
. . . .
8. For the purposes of this section, a defendant is not unable to provide the child
support or spousal support ordered by a court if, during the period that the defendant
was obligated to provide and failed to provide child support or spousal support, the
defendant was:
(a) Voluntarily unemployed or underemployed without good cause or to avoid
payment of child support or spousal support, including, without limitation, not using
reasonable diligence to secure sufficient employment . . . .
Sanders argues that the without good cause language in NRS 201.051 is similar to the
without legal excuse language that the Washington Supreme Court found void for
vagueness in State v. Richmond.
5
In Richmond, the Washington Supreme Court observed
that there was no statutory or case authority that specified and delimited the lawful excuses
that constitute a defense to criminal nonsupport.
6
However, numerous courts have been
critical of the Richmond decision.
7
In these cases, the courts have concluded that without
lawful excuse is not vague since the phrase is well understood.
8

We agree with those courts that have concluded that without lawful excuse is not vague.
A person of ordinary intelligence can easily understand what constitutes without good
cause, as the phrase is well understood. Moreover, because NRS 201.051 is an affirmative
defense statute, it does not encourage arbitrary or discriminatory enforcement.
__________

5
683 P.2d 1093, 1096 (Wash. 1984).

6
Id.

7
See Taylor v. State, 710 P.2d 1019, 1023 (Alaska Ct. App. 1985) (concluding that the phrase without lawful
excuse provides sufficient notice of prohibited conduct); State v. Kirkland, 837 P.2d 846, 851 (Kan. Ct. App.
1992) (concluding that the phrase without lawful excuse is not unconstitutionally vague and indefinite); State
v. Timmons, 706 P.2d 1018, 1019 (Or. Ct. App. 1985) (Like one of the reluctant concurring judges in
Richmond, we find it difficult to believe that the phrase without lawful excuse' confuses or misleads defendants
to the slightest degree as to their duty to support their minor children . . . .).

8
See cases cited supra note 7.
criminatory enforcement. Accordingly, we hold that NRS 201.051 is constitutional.
Scope and validity of NRS 201.020
Next, Sanders argues that the State misinterpreted NRS 201.020, thereby miscalculating
his arrearages. The State maintains that once the district court initially ordered Sanders to pay
child support, all arrearages, including those reduced to judgment, may be considered in
determining eligibility for criminal prosecution under NRS 201.020. Essentially, the parties
dispute whether the statute contemplates that arrearages that are reduced to judgment should
be included when determining whether arrearages have exceeded the $10,000 threshold in
NRS 201.020.
[Headnotes 5, 6]
The meaning of a statute is a question of law that this court reviews de novo.
9
This court
interprets statutes based on their plain meaning, which is intended to reflect legislative intent.
10

NRS 201.020(2)(a) provides that a person who knowingly fails to provide for the support
of his minor child is guilty of a felony if his arrearages for nonpayment of the court-ordered
child support total $10,000 or more and have accrued over any period since the date that a
court first ordered the defendant to provide for such support.
[Headnote 7]
The plain language of the statute is clear. We therefore hold that any arrearages reduced to
judgment are properly included in the calculation of the $10,000 threshold set forth in NRS
201.020 because arrearages originate from and are directly and exclusively correlative to the
court-ordered obligation to pay support.
11
As a result, there does not have to be an
additional accrual of $10,000 in arrearages from the time an arrearage order is entered.
Instead, an obligor can be charged with felony nonsupport as soon as his or her arrearages
exceed $10,000, even if that amount includes arrearages reduced to judgment.
In this instance, the court ordered Sanders to pay $9,475 in arrearages plus $510 per month
for child support on June 30, 1998. Thus, after just two months of nonpayment, Sanders'
arrearages exceeded $10,000. Moreover, notwithstanding the $9,475 in arrearages reduced to
judgment, Sanders accumulated arrearages in excess of $10,000 by failing to make a single
child support payment from July 1998 to April 2001. Accordingly, we conclude that the State
properly charged Sanders with violating NRS 201.020.
__________

9
State v. Allen, 118 Nev. 842, 847, 60 P.3d 475, 478 (2002).

10
Washington v. State, 117 Nev. 735, 738-39, 30 P.3d 1134, 1136 (2001).

11
State v. Lenz, 602 N.W.2d 173, 175-76 (Wis. Ct. App. 1999).
Sufficiency of the evidence
Finally, Sanders argues that insufficient evidence supports his conviction, given that he did
not have significant ability or opportunity to pay child support while incarcerated.
[Headnote 8]
We first address whether incarceration can be asserted as an affirmative defense pursuant
to NRS 201.051. We next address whether sufficient evidence supports Sanders' conviction,
given that the jury held him liable for arrearages that accrued while he was incarcerated. We
hold that incarceration can be asserted as an affirmative defense under NRS 201.051;
however, we conclude that sufficient evidence supports the jury's verdict.
12

NRS 201.051 allows a defendant charged with felony nonsupport to claim that he was
unable to provide court-ordered child support. However, NRS 201.051(8)(a) clarifies that a
defendant cannot assert the affirmative defense if he was voluntarily unemployed or
underemployed without good cause or to avoid payment of child support.
Many courts have confronted the issue of whether an obligor should be relieved of paying
child support because he or she is incarcerated. Although the cases involve civil matters, they
have equal application to the criminal nonsupport statute at issue here. While some courts
have held that any criminal act is voluntary, and thus, an incarcerated individual is not
entitled to modification of a child support obligation,
13
others have held that incarceration is
a factor that can be considered.
14

[Headnote 9]
We agree with those courts that take incarceration into account when determining whether
an individual is excused from paying child support.
__________

12
See Jackson v. State, 117 Nev. 116, 122, 17 P.3d 998, 1002 (2001) (observing that this court must
determine whether any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt, after viewing the evidence in the light most favorable to the prosecution' (quoting
Domingues v. State, 112 Nev. 683, 693, 917 P.2d 1364, 1371 (1996))).

13
See Richardson v. Ballard, 681 N.E.2d 507, 508 (Ohio Ct. App. 1996) (concluding that incarceration due
to criminal conduct is voluntary thereby not justifying a modification of a child support order); Com. ex rel.
Marshall v. Marshall, 15 S.W.3d 396, 401 (Ky. Ct. App. 2000) (concluding that incarceration is a result of a
voluntary act and will not excuse a child support obligation).

14
See Nab v. Nab, 757 P.2d 1231, 1238 (Idaho Ct. App. 1988) (agreeing that [w]here a noncustodial parent
is imprisoned for a crime other than non-support . . . the parent is not liable for such payments while incarcerated
unless it is affirmatively shown that he or she has income or assets to make such payments.' (quoting Edmonds
v. Edmonds, 633 P.2d 4, 5 (Or. Ct. App. 1981))); Johnson v. O'Neill, 461 N.W.2d 507, 508 (Minn. Ct. App.
1990) (Intention to commit a crime does not automatically translate into intention to limit income.).
child support. Accordingly, we hold that a jury can consider whether incarceration is a valid
affirmative defense under the circumstances. In making this determination, the jury should
weigh factors such as whether the obligor has other assets or income, the obligor's past and
future ability to earn income, the length of the obligor's incarceration, and the best interest of
the child.
15

[Headnote 10]
In this instance, we conclude that sufficient evidence supports Sanders' conviction because
it was within the jury's discretion to reject Sanders' affirmative defense. Sanders had
arrearages of $9,475 when the district court ordered him to pay those arrearages plus $510 per
month for child support. He knew of his child support obligation prior to entering prison and
never made a payment, illustrating that he never made a meaningful attempt to support his
children regardless of his incarceration.
CONCLUSION
We hold that NRS 201.051 is not vague because an ordinary person can easily understand
what constitutes without good cause, and the affirmative defense statute does not lend itself
to arbitrary enforcement. Also, we hold that NRS 201.020 is not ambiguous. And we
conclude that the State did not misinterpret NRS 201.020 when it charged Sanders with
felony nonsupport. Although we hold that incarceration can be asserted as an affirmative
defense under NRS 201.051, we conclude that sufficient evidence supports Sanders'
conviction because the jury had good reason to reject Sanders' affirmative defense of
incarceration.
Accordingly, we conclude that Sanders' conviction was supported by sufficient evidence
and affirm his judgment of conviction.
16

__________

15
See Halliwell v. Halliwell, 741 A.2d 638, 645 (N.J. Super. Ct. App. Div. 1999).

16
Sanders also argues that the information did not charge him with a willful violation of the law, thereby
requiring reversal. However, we conclude that this argument lacks merit, given that NRS 201.020 no longer uses
the term willful.
____________
119 Nev. 143, 143 (2003) California Commercial v. Amedeo Vegas I
CALIFORNIA COMMERCIAL ENTERPRISES, dba COMMERCIAL ENTERPRISES,
Appellant, v. AMEDEO VEGAS I, INC., a Delaware Corporation, Respondent.
No. 38042
April 29, 2003 67 P.3d 328
Appeal from a district court order expunging a mechanic's lien for alleged delay and
disruption damages. Eighth Judicial District Court, Clark County; James C. Mahan, Judge.
Subcontractor brought action to foreclose on mechanic's lien, alleging damages caused by
developer's delay and disruption. Developer, who had paid remainder of contract price,
moved for order to show cause to expunge lien or reduce amount to zero. The district court
entered order expunging the mechanic's lien or, in the alternative, reducing the lien amount to
zero. Subcontractor appealed. The supreme court held that subcontractor could not foreclose
on mechanic's lien for damages outside contract.
Affirmed.
Morse & Mowbray and Christopher H. Byrd and John H. Mowbray, Las Vegas; Hunt,
Ortmann, Blasco, Palffy & Rossell and Laurence P. Lubka, Pasadena, California, for
Appellant.
Hale Lane Peek Dennison and Howard and Shannon M. Bryant, Steven B. Lane, and
Torry R. Somers, Las Vegas; Bryan Cave LLP and Christopher L. Dueringer and Sheldon
Eisenberg, Santa Monica, California, for Respondent.
1. Mechanics' Liens.
Subcontractor could not foreclose on mechanic's lien in order to recover delay and disruption damages from developer, which
had paid contract price in full, but rather was limited to amount of the contract. Statute limited remedy to contract amount, and
there was no evidence that contract was waived or abandoned. NRS 108.222(1)(a).
2. Appeal and Error; Statutes.
The construction of a statute is a question of law subject to de novo review.
A mechanic's lienholder is limited to the contract price when a contract exists. NRS 108.222(1)(a), 108.235(1), 108.239(5).
Delay costs are a foreseeable consequence of construction delays, and are therefore properly characterized as consequential
damages in an action to recover on a mechanic's lien. NRS 108.239(5).
The purpose of the mechanic's lien statute is to provide a speedy remedy to secure payment of the claims of builders,
mechanics and materialmen out of the property to which their work and material have contributed an increased value. NRS
108.239(5).
A contractor may seek a mechanic's lien for labor, materials, overhead and profit when no contract exists. NRS 108.222.
Before Agosti, C. J., Rose and Gibbons, JJ.
OPINION
Per Curiam:
In this appeal, we must determine if a mechanic's lien may be used to recover delay and
disruption damages when a contract exists between the parties. California Commercial
Enterprises (Commercial), a framing and drywall subcontractor, contracted with R.D. Olson
to perform work for a development owned by Amedeo Vegas I, Inc. (Amedeo). After
Commercial finished its work, which was allegedly delayed for sixteen months by Amedeo, it
recorded a mechanic's lien under NRS 108.222 for $515,927.92. The lien reflected the
amount remaining on the contract price, as well as alleged delay and disruption damages.
Amedeo paid in full the remainder on the contract price, $194,912.00. Commercial then tried
to foreclose on the full lien for $515,927.92. Amedeo moved the district court for an order to
show cause to expunge the lien or reduce the amount to zero. The district court entered an
order to expunge the lien or, in the alternative, to reduce the lien amount to zero because it
decided the contract price had been paid and the remaining amount was not properly the
subject of a mechanic's lien. Commercial brought this timely appeal under NRS 108.2275(6).
The issue on appeal is whether a lien is an available remedy for unpaid extra work costs
under NRS 108.222(1) when a contract exists.
1

Commercial argues that NRS 108.222(1) permits a lien for the value of labor and
materials, plus reasonable overhead and profit, used to benefit the owner's property. It asserts
that limiting recovery to the contract price is contrary to the language and intent of the statute.
Commercial also contends that the purpose of the statute is to allow improved property to be
the security for the costs of the improvement where materials and labor supplied by the
contractor or subcontractor contribute to the improved property's value, so that the owner is
not unjustly enriched.
Amedeo counters that the language of NRS 108.222 unambiguously limits the lien amount
to the contract price and that legislative intent supports this reading. Amedeo argues that the
legislature knew that a subcontractor could incur costs above the contract price when it
enacted NRS 10S.222 but chose not to include language to address that possibility in the
statute.
__________

1
The contract is not part of the record and only one of the change orders is included.
price when it enacted NRS 108.222 but chose not to include language to address that
possibility in the statute.
First, we note that Commercial was requested to do extra work under written, approved
change orders. While the scope of the work under these change orders increased six-fold from
the original contract, the approved change orders became part of the contract. From the
record, it appears that Commercial was fully compensated under the original contract price
plus the approved change orders. Commercial then submitted a claim for $321,016.00 to R.D.
Olson for alleged delay-related damages. It appears from the record that these delay-related
costs were within the scope of the contract in the form of approved change orders.
[Headnote 1]
To the extent that these alleged damages were incurred outside of the contract, we now
address Commercial's arguments.
NRS 108.222(1) provides:
1. Except as otherwise provided in subsection 2, a person who performs labor upon
or furnishes material of the value of $500 or more, to be used in the construction,
alteration or repair of any building, or other superstructure, railway, tramway, toll road,
canal, water ditch, flume, aqueduct or reservoir, bridge, fence or any other structure, has
a lien upon the premises and any building, structure and improvement thereon for:
(a) If the parties entered into a contract, the unpaid balance of the price agreed upon
for; or
(b) In absence of a contract, an amount equal to the fair market value of,
the labor performed or material furnished or rented, as the case may be, by each
respectively, including a reasonable allowance for overhead and a profit, whether
performed or furnished at the instance of the owner of the building or other
improvement, or at the instance of his agent.
[Headnote 2]
The construction of a statute is a question of law subject to de novo review.
2
When a
statute is not ambiguous, this court has consistently held that we are not empowered to
construe the statute beyond its plain meaning, unless the law as stated would yield an absurd
result.
3
The language of NRS 108.222(1)(a) is not ambiguous. It clearly states that, if a
contract exists, the amount of the lien that a contractor or subcontractor has upon the
property and improvements is "the unpaid balance of the price agreed upon.
__________

2
County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998).

3
Diamond v. Swick, 117 Nev. 671, 675, 28 P.3d 1087, 1089 (2001).
a contractor or subcontractor has upon the property and improvements is the unpaid balance
of the price agreed upon. Because this language is not ambiguous, we must construe that
language according to its ordinary meaning.
4

[Headnotes 3, 4]
Reading NRS 108.222 in conjunction with NRS 108.235(1) and NRS 108.239(5) further
supports the conclusion that a lienholder is limited to the contract price when a contract
exists. NRS 108.235(1) states, in pertinent part, that a contractor shall be entitled to recover,
upon a lien recorded by him, only such amount as may be due to him according to the terms
of his contract. NRS 108.239(5) provides in pertinent part that [n]o consequential damages
may be recovered in an action pursuant to this section.
5
The statutory scheme as a whole
clearly limits a lienholder to the amount of the contract if a contract exists.
[Headnote 5]
Furthermore, the purpose of the mechanic's lien statute is to provide a speedy remedy to
secure payment of the claims of builders, mechanics and materialmen out of the property to
which their work and material have contributed an increased value.'
6
The speedy nature of
the remedy would be frustrated if the court were required to hear evidence regarding the
disputed costs of materials, labor, overhead and profit beyond the contract price.
7

Commercial next argues that Nevada case law supports the position that a contractor can
impose a lien for extra costs incurred as a result of the owner's alleged delays. Commercial
cites our 1934 opinion in Paterson v. Condos
8
for the proposition that, when the terms of a
contract have been substantially changed by the property owner, a lien is permissible for the
extra costs naturally arising out of the changed terms. Commercial also cites our more recent
opinion in Udevco, Inc. v. Wagner
9
for the proposition that the contract price does not bar a
lien claim for extra work that, here, the significant increase in the scope of the work, like
the circumstances in Paterson and Udevco, was a material change in the terms of the
contract allowing Commercial to assert a lien claim for its increased costs.
__________

4
Banegas v. SIIS, 117 Nev. 222, 225, 19 P.3d 245, 247 (2001).

5
Commercial tries to characterize its delay costs as direct damages, rather than consequential damages, to
avoid this statute. However, delay costs are a foreseeable consequence of construction delays, and are therefore
properly characterized as consequential damages. See Clark County Sch. Dist. v. Rolling Plains, 117 Nev. 101,
106, 16 P.3d 1079, 1082-83 (2001).

6
Brunzell v. Lawyers Title, 101 Nev. 395, 396-97, 705 P.2d 642, 644 (1985) (quoting Williams Bros. Const.
v. Vaughn, 631 P.2d 688, 690 (Mont. 1981)).

7
See NRS 108.239(5) (requiring the district court to hear and determine mechanic's lien claims in a summary
way).

8
55 Nev. 134, 28 P.2d 499 (1934).

9
100 Nev. 185, 678 P.2d 679 (1984).
here, the significant increase in the scope of the work, like the circumstances in Paterson and
Udevco, was a material change in the terms of the contract allowing Commercial to assert a
lien claim for its increased costs.
Both Paterson and Udevco are distinguishable from the case at hand. Paterson involved an
action in quantum meruit to foreclose a mechanic's lien filed by materialmen and
subcontractors. The lien claimants had entered into an express contract with the defendant to
construct a building for $38,800.00 according to plans and specifications, but significant
changes were made to the plans, costing thousands of dollars more than the contract price.
10
This court held that the lien claimants could recover in quantum meruit in that situation
because the changes had been so great that it appeared the original contract had been
abandoned.
11

In Udevco, two subcontractors filed separate lien claims against a developer and others,
arguing that the contract provision, requiring a written change order for extra-contractual
work with the first subcontractor, had been waived because the subcontractor had performed
extra work upon the contractor's oral request.
12
This court held that the written change order
provision had been waived because the developer orally requested the extra work and
promised to compensate the subcontractors for it, and the subcontractors relied on that
promise.
13
Moreover, we stated that the subcontractor performedafter completing
framing according to plans and specificationsextra work of such character and magnitude
that the idea that the parties intended him to do so without additional compensation would be
highly unreasonable.
14

In both of the above cases, the contract was waived or abandoned in whole or in part.
Therefore, rather than relying on the contract price, we allowed recovery based upon quantum
meruit, a means of recovery that is similar to NRS 108.222(1)(b).
[Headnote 6]
Here, in contrast, there is no evidence that the parties waived or abandoned any portion of
the contract. Pursuant to written, approved change orders, which became part of the contract
price, Commercial performed extra work. Commercial was compensated under the contract
and for approved change orders. However, Commercial then submitted a claim for
delay-related damages, which allegedly included materials, labor and extra overhead
incurred as a result of the delays.
__________

10
55 Nev. at 140, 28 P.2d at 499.

11
Id. at 142-43, 28 P.2d at 500.

12
100 Nev. at 186-87, 678 P.2d at 680.

13
Id. at 189-90, 678 P.2d at 682.

14
Id. at 190, 678 P.2d at 682.
which allegedly included materials, labor and extra overhead incurred as a result of the
delays. The extra materials, labor and delay-related compensation that Commercial now seeks
should have been addressed by Commercial when the parties were bargaining over the
amounts of the change orders. Once those change orders were approved, they became part of
the contract price. Neither Paterson nor Udevco applies because the contract provisions were
not waived or abandoned.
15

Because it does not appear that Commercial suffered damages beyond the contract price
and approved change orders, and because, to the extent that it did, the statutory scheme does
not allow a mechanic's lien when a contract exists and its provisions have not been waived,
we affirm the order of the district court.
____________
119 Nev. 148, 148 (2003) Attorney General v. Board of Regents
BRIAN SANDOVAL, ATTORNEY GENERAL OF THE STATE OF NEVADA, Appellant,
v. THE BOARD OF REGENTS OF THE UNIVERSITY AND COMMUNITY
COLLEGE SYSTEM OF NEVADA and CAMPUS ENVIRONMENT
COMMITTEE, Respondents.
No. 38877
May 2, 2003 67 P.3d 902
Appeal from a district court order granting summary judgment. First Judicial District
Court, Carson City; William A. Maddox, Judge.
State Attorney General filed complaint seeking declaratory and injunctive relief against
Board of Regents and its committee, alleging violation of Open Meeting Law. The district
court entered summary judgment in favor of Board and committee. Attorney General
appealed. The supreme court held that: (1) discussion at committee meeting of Board of
Regents of the University and Community College System exceeded scope of clear and
complete agenda topic related to a review of law and policies governing the release of
materials, documents, and reports to the public and, thus, violated notice requirements of
Open Meeting Law; (2) discussion at meeting of Board of Regents of the University and
Community College System exceeded scope of clear and complete agenda topic regarding a
committee report about unfinished business and a schedule of topics for the remaining
year and, thus, violated notice requirements of Open Meeting Law;
__________

15
Commercial's argument that, by failing to allow a mechanic's lien claim for delay-related damages, the
district court would permit Amedeo to be unjustly enriched is without merit. It appears that Commercial was
compensated under the contract, so Amedeo was not unjustly enriched. Furthermore, NRS 108.222 allows a
contractor to seek a mechanic's lien for labor, materials, overhead and profit when no contract exists, thereby
preventing unjust enrichment. Presumably, when a contract exists, the parties have already bargained over these
items.
agenda topic regarding a committee report about unfinished business and a schedule of topics
for the remaining year and, thus, violated notice requirements of Open Meeting Law; and (3)
requiring that Board of Regents of the University and Community College System strictly
comply with the clear and complete standard under the Open Meeting Law for notice of
agenda at public meeting did not impinge on the regents' First Amendment free speech rights.
Brian Sandoval, Attorney General, and Tina M. Leiss, Senior Deputy Attorney General,
Carson City, for Appellant.
Brooke A. Nielsen, Assistant General Counsel, University and Community College System
of Nevada, Reno, for Respondents.
On appeal, the supreme court reviews orders granting summary judgment de novo.
Under some circumstances in reviewing an order granting summary judgment, the supreme court must determine whether the
law has been correctly perceived and applied by the district court.
3. Judgment.
After viewing all evidence and taking every reasonable inference in the light most favorable to the nonmoving party, summary
judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter
of law.
The construction of a statute is a question of law that is reviewed de novo.
5. Statutes.
To construe a statute, courts must first look at the plain language of the statute.
6. Statutes.
If statutory language is ambiguous or does not address the issue before the reviewing court, that court must discern the
Legislature's intent and construe the statute according to that which reason and public policy would indicate the Legislature
intended.
The plain language of provision of Open Meeting Law governing notice of a public meeting requires that discussion at a
public meeting cannot exceed the scope of a clearly and completely stated agenda topic. NRS 241.020(2)(c)(1).
Open Meeting Law seeks to give the public clear notice of the topics to be discussed at public meetings so that the public can
attend a meeting when an issue of interest will be discussed. NRS 241.020.
9. Colleges and Universities.
Discussion at committee meeting of Board of Regents of the University and Community College System exceeded scope of
clear and complete agenda topic related to a review of law and policies governing the release of
materials, documents, and reports to the public,
complete agenda topic related to a review of law and policies governing the release of materials, documents, and reports to the
public, and thus violated notice requirements of Open Meeting Law, where, following general counsel's presentation of state and
federal laws related to the topic, the committee discussed details of a report prepared by Nevada Division of Investigation
regarding a dormitory raid on university campus, criticized campus police, and commented on impact of drug use on university
campus. NRS 241.020(2)(c)(1).
Discussion at meeting of Board of Regents of the University and Community College System exceeded scope of clear and
complete agenda topic regarding a committee report about unfinished business and a schedule of topics for the remaining year,
and thus violated notice requirements of Open Meeting Law, where committee report generated discussion about obtaining a
redacted report prepared by Nevada Division of Investigation regarding a dormitory raid on university campus and disarming
campus police. NRS 241.020(2)(c)(1).
Requiring that Board of Regents of the University and Community College System strictly comply with the clear and
complete standard under the Open Meeting Law for notice of agenda at public meeting did not impinge on the regents' First
Amendment free speech rights because regents were free to speak on any topic of their choosing, provided they placed the topic on
the agenda. NRS 241.020(2)(c)(1).
OPINION
Per Curiam:
This appeal arises from a district court's order granting summary judgment in favor of
respondents, the Board of Regents of the University and Community College System of
Nevada (Board) and Campus Environment Committee (Committee). Appellant Attorney
General filed a complaint against respondents, alleging that they violated Nevada's Open
Meeting Law by discussing topics not listed on the agendas for public meetings held
September 7-8, 2000.
In granting summary judgment in favor of respondents, the district court acknowledged
that Nevada's Open Meeting Law requires that agendas for public meetings include a clear
and complete statement of topics to be discussed, but concluded that any discussion that is
germane to an agenda topic does not violate the Open Meeting Law. Applying the
germane standard, the district court concluded that respondents did not violate the Open
Meeting Law.
We conclude that the district court applied an erroneous legal standard in granting
summary judgment because Nevada's Open Meeting Law clearly includes stringent agenda
requirements, which are not satisfied by applying the germane standard. Because the
discussion at the public meetings exceeded the scope of the clear and complete" statement
of the topics listed on the agendas, we reverse the district court's order granting
summary judgment in favor of respondents.
and complete statement of the topics listed on the agendas, we reverse the district court's
order granting summary judgment in favor of respondents. And we conclude that, as a matter
of law, the Attorney General is entitled to summary judgment. However, we remand the case
to the district court to determine whether injunctive relief is warranted.
FACTS
On December 20, 2000, the Attorney General filed a complaint against respondents for
alleged violations of Nevada's Open Meeting Law, namely NRS 241.020, which states that
agendas for public meetings must include a clear and complete statement of agenda topics.
The complaint sought a declaration that respondents discussed topics that were not on the
agenda for the Committee and Board meetings held on September 7-8, 2000, and sought
injunctive relief to ensure that respondents abide by the Open Meeting Law in the future.
Committee meeting
The Committee held a meeting on September 7, 2000. The agenda included an
informational topic, Review of UCCSN Policies on Reporting, described as:
Review UCCSN, state and federal statutes, regulations, case law, and policies that
govern the release of materials, documents, and reports to the public.
Before discussing the topic, Regent Tom Kirkpatrick explained that this was an informational
item only, and that the Committee had to be very careful in discussing this item and taking
action because of certain state and federal laws. Tom Ray, general counsel, then gave an
overview of federal and state laws related to the release of documents to the public.
Following Mr. Ray's presentation, Regent Douglas Hill proceeded to discuss a
controversial report, prepared by the Nevada Division of Investigation (NDI), regarding a
dormitory raid that occurred on the University of Nevada, Las Vegas (UNLV) campus.
Regent Hill discussed details of the dormitory raid, criticized the UNLV police department's
actions, and recommended that the UNLV police department be disarmed. Regent David
Phillips then commented on the danger of drugs on the UNLV campus.
Throughout the discussion, Mr. Ray warned the Committee to cease discussing this issue.
He warned the regents that the discussion might implicate personnel issues and violate the
Open Meeting Law because the topic was not on the agenda. He also recommended that the
Committee put the item on the agenda for a future meeting. After Mr. Ray's third warning,
Regent Kirkpatrick terminated the discussion.
Board meeting
On September 7-8, 2000, the Board held a regular meeting. The agenda included a section
titled Committee Reports, under which read: Please refer to the specific committee
agendas for complete reference materials and/or reports. The Campus Environment
Committee was listed as a topic under the Committee Reports section and was described
as follows:
Chairman Tom Kirkpatrick will present a report on the Campus Environment
committee meeting held September 7, 2000 and requests Board action on the following
recommendations of the committee:
Round Table Discussion of Actions and Schedule of Topics to be Discussed with
Campus RepresentativesThe committee reviewed previous actions and unfinished
business of the committee and compiled a schedule of topics for the remainder of
this year.
At the Board meeting, Regent Kirkpatrick reported that the Committee discussed issues to
be addressed for the remainder of the year. He also conveyed what Mr. Ray explained to the
Committee regarding the laws that govern the release of documents to the public. Regent
Kirkpatrick then informed the Board that a request was made for an additional report
regarding the investigation into the UNLV dormitory raid incident, which would address the
actions of the UNLV police while not disclosing names of the officers involved. He also
informed the Board that a request was made to examine the possibility of disarming the
UNLV police department.
Following a motion to approve the Committee's recommendations and to accept Regent
Kirkpatrick's report, Regent Mark Alden asked whether UNLV President Dr. Carol Harter
could request NDI to bifurcate the report about the UNLV dormitory raid, making it a general
summary of the incident that could be released to the public. Mr. Ray responded that NDI
might be able to redact confidential information from the report, but recommended that the
UNLV administration or general counsel's office should do so instead. Chancellor Jane
Nichols agreed to work with NDI in an attempt to redact the report. The Board agreed,
however, that obtaining a new NDI report should be included in the prior motion, and thus,
the Board did not take official action to obtain a redacted report.
Proceedings in district court
Prior to trial, respondents filed a motion for summary judgment. In granting respondents
summary judgment, the district court observed that Nevada's Open Meeting Law did not
specifically define the scope of permissible discussion about an agenda topic.
the scope of permissible discussion about an agenda topic. And thus, the district court relied
on out-of-state authority in concluding that any discussion that is germane to an agenda
topic does not violate Nevada's Open Meeting Law. The district court determined that the
discussion at the Committee and Board meetings was germane to the agenda topics, as it
generally related to the release of information to the public. The district court further
determined that Mr. Ray's warnings were motivated by personnel concerns, and because no
individuals were identified, the district court concluded that no personnel rights were violated
and no violations of the Open Meeting Law occurred.
DISCUSSION
[Headnotes 1-3]
On appeal, we review orders granting summary judgment de novo.
1
Under some
circumstances, we must determine whether the law has been correctly perceived and applied
by the district court.
2
After viewing all evidence and taking every reasonable inference in the
light most favorable to the nonmoving party, summary judgment is appropriate when there
are no genuine issues of material fact, and the moving party is entitled to judgment as a
matter of law.
3

Here, the parties do not argue that a genuine issue of material fact exists. Instead, the
parties dispute what is required under NRS 241.020(2)(c)(1) in terms of notifying the public
about what will be discussed at a public meeting. Essentially, the parties dispute whether the
district court properly applied the germane standard or whether Nevada's Open Meeting
Law requires a more stringent standard.
[Headnotes 4-6]
The construction of a statute is a question of law that we review de novo.
4
To do so, we
must first look at the plain language of the statute.
5
But if the statutory language is
ambiguous or does not address the issue before us, we must discern the Legislature's intent
and construe the statute according to that which reason and public policy would indicate the
legislature intended.
6

__________

1
Lumbermen's Underwriting v. RCR Plumbing, 114 Nev. 1231, 1234, 969 P.2d 301, 303 (1998).

2
Calloway v. City of Reno, 116 Nev. 250, 256, 993 P.2d 1259, 1263 (2000).

3
Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993).

4
See Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513 (2000).

5
See id. at 1168, 14 P.3d at 514.

6
State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986) (internal quotations
and citations omitted), quoted in Salas, 116 Nev. at 1168, 14 P.3d at 514.
NRS 241.020(2)(c)(1) requires that a public body provide an agenda consisting of a clear
and complete statement of the topics scheduled to be considered during the meeting. NRS
241.010 explains that the Legislature enacted the Open Meeting Law to ensure that all public
bodies deliberate and take action openly because all public bodies exist to aid in the conduct
of the people's business. Indeed, the legislative history of NRS 241.020(2)(c)(1) illustrates
that the Legislature enacted the statute because incomplete and poorly written agendas
deprive citizens of their right to take part in government and interfere with the press' ability
to report the actions of government.
7

[Headnote 7]
The Legislature evidently enacted NRS 241.020(2)(c)(1) to ensure that the public is on
notice regarding what will be discussed at public meetings. By not requiring strict compliance
with agenda requirements, the clear and complete standard would be rendered meaningless
because the discussion at a public meeting could easily exceed the scope of a stated agenda
topic, thereby circumventing the notice requirement. Accordingly, we reject the germane
standard, as it is more lenient than the Legislature intended. Instead, we conclude that the
plain language of NRS 241.020(2)(c)(1) requires that discussion at a public meeting cannot
exceed the scope of a clearly and completely stated agenda topic.
We must now apply this standard to the case at hand. The Attorney General argues that a
comparison between the agenda topics and what was actually discussed at the Committee and
Board meetings shows that respondents violated the Open Meeting Law because the agendas
did not provide the public with adequate notice that the NDI report, UNLV police, or drugs
on the UNLV campus would be discussed.
In Salazar v. Gallardo,
8
the Texas Court of Appeals noted that Texas' Open Meeting Law
requires full and adequate notice of the topics scheduled so that the public is fairly alerted
as to what will be considered at a public meeting. Following this standard, the court
concluded that the Open Meeting Law was violated when the school district board's agenda
stated that the board would discuss the superintendent's performance, job duties, evaluation,
and contract, but the discussion at the meeting resulted in an award of $500,000 of severance
pay for the superintendent.
9
In another case, the Texas Court of Appeals observed that a
higher degree of specificity is needed when the subject to be debated is of special or
significant interest to the public.
__________

7
Hearing on S.B. 140 Before the Assembly Governmental Affairs Comm., 65th Leg. (Nev., May 10, 1989).

8
57 S.W.3d 629, 633-34 (Tex. App. 2001).

9
Id.
of specificity is needed when the subject to be debated is of special or significant interest to
the public.
10

Like Texas, the purpose of Nebraska's agenda requirements is to give the public notice of
what will be discussed at a public meeting so that any interested persons can attend.
11
Indeed, in Hansmeyer v. Nebraska Public Power District,
12
the Nebraska Court of Appeals
observed, The public meeting laws are to be broadly interpreted and liberally construed to
obtain the objective of openness in favor of the public. In Hansmeyer, the court concluded
that the agenda topic, Work Order Reports, was not sufficiently descriptive to give notice
that a $47 million, three-year construction project would be discussed and approved at the
meeting.
13
Given the magnitude of the project and the public's inability to participate in the
decision-making process as a result of the inadequate notice, the court concluded that a
substantial violation of the Open Meeting Law occurred.
14

[Headnote 8]
Similarly, Nevada's Open Meeting Law seeks to give the public clear notice of the topics
to be discussed at public meetings so that the public can attend a meeting when an issue of
interest will be discussed. In this instance, the NDI report was a matter of substantial public
interest, yet the agendas for the Committee and Board meetings did not state that the report
would be discussed.
[Headnote 9]
The discussion at the Committee meeting greatly exceeded the scope of the clear and
complete agenda topic relating to review of law and policies governing the release of
materials, documents, and reports to the public. Although discussion of the NDI report in the
abstract may not have violated the Open Meeting Law, the Committee went too far when it
discussed details of the report, criticized the UNLV police department, and commented on the
impact of drug use on the UNLV campus. Accordingly, we conclude that, as a matter of law,
the Committee violated the Open Meeting Law.
[Headnote 10]
Whether the Board violated the Open Meeting Law is a closer question. Although the
agenda clearly and completely stated that, among other things, the Committee would inform
the Board about unfinished business and a schedule of topics for the remaining year,
__________

10
Gardner v. Herring, 21 S.W.3d 767, 773 (Tex. App. 2000).

11
Hansmeyer v. Nebraska Public Power Dist., 578 N.W.2d 476, 480 (Neb. Ct. App. 1998), aff'd, 588
N.W.2d 589 (Neb. 1999).

12
Id. at 481.

13
Id.

14
Id.
among other things, the Committee would inform the Board about unfinished business and a
schedule of topics for the remaining year, we conclude that this was too broad to alert the
public of the possibility that Committee recommendations, such as obtaining a redacted NDI
report and proposing an examination of disarming the UNLV police, would be discussed.
15
Because the Board's agenda did not properly apprise the public that it would engage in a
discussion that would lead to informal action to obtain a redacted NDI report, we conclude
that, as a matter of law, the Board violated the Open Meeting Law.
[Headnote 11]
Finally, respondents argue that strict compliance with the clear and complete standard
impinges on the regents' First Amendment rights and places too arduous a burden on public
bodies. The impact of the Open Meeting Law on the First Amendment rights of public
officials was addressed in Hays County Water Planning Partnership v. Hays County.
16
In
that case, the Texas Court of Appeals concluded that the problem with the county
commissioner's remarks was not that he could not make them at all, but rather the location
and timing of his comments, as they exceeded the scope of the agenda topic.
17
The court
observed, [W]e see no restriction of the right of free speech by the necessity of a public
official's compliance with the Open Meetings Act when the official seeks to exercise that
right at a meeting of the public body of which he is a member.
18

We agree with the Texas Court of Appeals that requiring the regents to comply with
Nevada's Open Meeting Law does not infringe on their First Amendment rights. The regents
are free to speak on any topic of their choosing, provided they place the topic on the agenda,
thereby satisfying the clear and complete standard found in NRS 241.020(2)(c)(1).
Furthermore, we do not regard this requirement as too burdensome.
Accordingly, we reverse the district court's order granting respondents summary judgment,
and remand this case to the district court with instructions to enter summary judgment in
favor of the Attorney General and to determine whether injunctive relief is appropriate.
__________

15
See Hays Cty. Water Plan. Part. v. Hays County, 41 S.W.3d 174, 180 (Tex. App. 2001) (observing that the
notices that the supreme court held to be sufficiently descriptive alerted readers to the particular issue the
governing bodies would addresschanges in electric power rates, the enlargement of the Dallas-Forth Worth
Turnpike, and condemnation of land located in a specific area of Bexar County, but that the supreme court
concluded that more general notices, such as personnel, litigation, and real estate matters, were too broad
to give adequate notice).

16
41 S.W.3d 174.

17
Id. at 182.

18
Id. at 181-82.
court with instructions to enter summary judgment in favor of the Attorney General and to
determine whether injunctive relief is appropriate.
____________
119 Nev. 157, 157 (2003) Nevada Contract Servs. v. Squirrel Cos.
NEVADA CONTRACT SERVICES, INC., Appellant, v. SQUIRREL COMPANIES, INC.;
SQUIRREL SYSTEMS OF CANADA, LTD.; SULCUS HOSPITALITY
TECHNOLOGIES CORP.; SULCUS HOSPITALITY GROUP, INC.; VEGA
ENTERPRISES, INC.; and BEVERAGE MANAGEMENT SYSTEMS, INC.,
Respondents.
No. 37706
May 14, 2003 68 P.3d 896
Appeal from district court order granting summary judgment. Eighth Judicial District
Court, Clark County; Nancy M. Saitta, Judge.
Bar that purchased liquor-dispensing system brought action for breach of warranty against
companies that designed and installed system. The district court granted summary judgment
in favor of companies that designed and installed system, and bar appealed. The supreme
court held that: (1) bar was not required to show specific cause of malfunction of
liquor-dispensing system, and (2) testimony of repair technicians was sufficient to create
genuine issue of material fact precluding summary judgment.
John Peter Lee Ltd. and John Peter Lee and Paul C. Ray, Las Vegas, for Appellant.
Jolley Urga Wirth & Woodbury and William R. Urga, Las Vegas, for Respondent Vega
Enterprises.
Law Office of V. Andrew Cass and Michael R. Hall, Las Vegas, for Respondent Beverage
Management Systems.
Santoro, Driggs, Walch, Kearney, Johnson & Thompson and Nicholas J. Santoro,
Elizabeth E. Wachsman, and James E. Whitmire III, Las Vegas, for Respondents Squirrel
Companies, Squirrel Systems of Canada, Sulcus Hospitality Technologies, and Sulcus
Hospitality Group.
1. Sales.
Bar was not required to show specific cause of malfunction of liquor-dispensing system in its breach of warranty claim against
companies that manufactured and installed system, because it was too burdensome to require bar to prove why liquor-dispensing
system, which integrated electronic and mechanical components, did not work.
2. Contracts.
In a breach of warranty cause of action, a plaintiff must prove that a warranty existed, the defendant breached the warranty,
and the defendant's breach was the proximate cause of the loss sustained.
3. Judgment; Sales.
Testimony of various repair technicians who attempted to diagnose and repair liquor-dispensing system, provided sufficient
evidence to support a reasonable inference that companies that designed and installed system breached the warranty and caused
bar's damages, and thus, a genuine issue of material fact existed precluding summary judgment.
OPINION
Per Curiam:
In this appeal, we consider the degree of specificity required to sustain the causation
burden when claiming a breach of express or implied warranty. Specifically, we address
whether the plaintiff had to prove the cause of a malfunctioning liquor-dispensing system in
order to defeat a motion for summary judgment. We hold that a plaintiff is not required to
prove the precise technical cause of a malfunction to sustain its causation burden. Instead, a
plaintiff must show that a product's malfunction was likely caused by a breach of warranty,
and consequently, the plaintiff sustained damages.
FACTS
In 1997, Nevada Contract Services, Inc. (NCS) and Vega Enterprises, Inc. (Vega) entered
into a contract by which Vega agreed to supply NCS with a new specially designed
liquor-dispensing system for use in The Gipsy, a bar it owned and operated in Las Vegas. The
liquor-dispensing system was designed to provide inventory control and security from theft
by calculating the amount of alcohol served and by charging an appropriate amount in
proportion to the serving.
The liquor-dispensing system consisted of two component systems: (1) a liquor-dispensing
system called EasyBar manufactured by Beverage Management Systems, Inc. (BMS), and
(2) a point-of-sale cash management system manufactured by Squirrel Companies, Inc.
(Squirrel). BMS was responsible for designing an interface card that would allow the two
systems to respond to one another and function as one system.
another and function as one system. Vega purchased the component systems directly from
BMS and Squirrel and then oversaw integration and installation of the liquor-dispensing
system in The Gipsy.
Shortly after the liquor-dispensing system was operational, it began to experience
problems. Specifically, the tab screen malfunctioned, allowing the EasyBar pour system to
dispense drinks without communicating with the Squirrel point-of-sale system. And the
liquor-dispensing system would occasionally freeze-up, impeding the bartenders from
pouring alcohol. NCS filed a complaint against respondents alleging, among other things,
breach of express and implied warranties. According to NCS, The Gipsy suffered economic
losses as a result of the malfunctioning liquor-dispensing system because the bartenders often
resorted to free-pouring alcohol and could pour drinks without a sale being registered.
Prior to filing its complaint in the district court, NCS made numerous requests that the
problems it was experiencing with the liquor-dispensing system be corrected. In response,
service technicians from Vega, Squirrel, and BMS evaluated the liquor-dispensing system.
Upon inspection, the technicians found a lack of dedicated power; water damage to the
EasyBar system caused by a leaking water filter near the EasyBar system's control box; and
employee misuse, namely the liquor-dispensing guns were submerged in water for cleaning
and one of the pumps had a nail in it. The parties disputed whether these findings could have
caused the liquor-dispensing system to malfunction.
George Hill, the designer of the interface card for the liquor-dispensing system, opined
that the lack of dedicated power and water damage could have caused equipment
malfunctions, but likely did not cause the tab screen malfunction. Joseph Cortese, a Squirrel
technician, opined that the tab screen malfunction was likely caused by a problem with the
interface from the EasyBar system. Indeed, Squirrel's core programmer analyzed a record of
messages from the liquor-dispensing system and determined that the EasyBar pour system
was failing to properly communicate with the Squirrel point-of-sale system.
Cortese explained that the Squirrel engineers had difficulty recreating the tab screen
malfunction during testing because they were unable to replicate the set-up in The Gipsy due
to unique conditions found in The Gipsy, such as the water damage and lack of dedicated
power. Additionally, the engineers only had access to a similar EasyBar system, not the one
actually utilized in The Gipsy's liquor-dispensing system. Cortese also acknowledged that the
Squirrel engineers were never able to perform on-site testing of The Gipsy's liquor-dispensing
system.
Christopher Launey, an expert witness for NCS, also expressed his inability to recreate the
tab screen malfunction. Launey explained that there were too many variables present at The
Gipsy that could not be recreated in a testing situation. Another expert hired by NCS, Joseph
Krupinski, tested the liquor-dispensing system following its removal from The Gipsy; the
liquor-dispensing system was stored in an empty office for about a year before the parties
convened to test it. Krupinski, however, was unable to recreate the liquor-dispensing system's
malfunction. Krupinski acknowledged that he could come up with at least fifty things that
may have caused the liquor-dispensing system to malfunction.
Following Krupinski's inability to opine as to the cause of the liquor-dispensing system's
malfunction, respondents filed a motion for summary judgment, arguing that NCS could not
sustain its causation burden. The district court expressed concern over the fact that NCS's
own experts could not opine as to the probable cause of the liquor-dispensing system's
malfunction. NCS responded that the experts were attempting to pinpoint the exact cause of
the malfunction, not the probable cause, and argued that it did not have to prove the precise
cause of the malfunction.
The district court disagreed, observing that the case was not one involving strict products
liability, where the plaintiff does not have to show causation; but rather, it was a case under
the Uniform Commercial Code, where the plaintiff bears the burden of showing proximate
causation. After finding that NCS could not prove causation, the district court granted
summary judgment in favor of respondents. This appeal followed.
DISCUSSION
We review orders granting summary judgment de novo.
1
Under some circumstances, we
must determine whether the district court correctly perceived and applied the law.
2
After
viewing all evidence and taking every reasonable inference in the light most favorable to the
nonmoving party, summary judgment is appropriate when there are no genuine issues of
material fact, and the moving party is entitled to judgment as a matter of law.
3
If there is the
slightest doubt as to any material issue of fact, the litigant has a right to trial by a jury.
4

__________

1
Lumbermen's Underwriting v. RCR Plumbing, 114 Nev. 1231, 1234, 969 P.2d 301, 303 (1998).

2
See Calloway v. City of Reno, 116 Nev. 250, 256, 993 P.2d 1259, 1263 (2000).

3

4
Pressler v. City of Reno, 118 Nev. 506, 509-10, 50 P.3d 1096, 1098 (2002).
[Headnotes 1, 2]
We have recognized that purely economic losses can be recovered for breach of warranty.
5
In a breach of warranty cause of action, a plaintiff must prove that a warranty existed, the
defendant breached the warranty, and the defendant's breach was the proximate cause of the
loss sustained.
6
Here, the district court granted summary judgment in favor of respondents
because NCS could not prove its breach of warranty claim, as it could not sustain its
causation burden.
[Headnote 3]
In this appeal, we consider the degree of specificity required to meet the causation burden
in a breach of warranty action. In Nelson v. Wilkins Dodge, Inc.,
7
the Minnesota Supreme
Court observed that in a breach of warranty case, generally no specific defect need be
alleged, and a defective condition can be proved by circumstantial evidence. Likewise, in
Hershenson v. Lake Champlain Motors, Inc.,
8
the Vermont Supreme Court observed:
Circumstantial evidence may be resorted to . . . if there can be drawn therefrom a
rational inference that [a defect in the defendant's product] was the source of the
trouble. There must be created in the minds of the jurors something more, of course,
than a possibility, suspicion or surmise, but the requirements of the law are satisfied if
the existence of this fact is made the more probable hypothesis, when considered with
reference to the possibility of other hypotheses.
We agree with those courts that hold that the specific cause of the malfunction need not be
shown. Indeed, we reached a similar conclusion in Stackiewicz v. Nissan Motor Corp.
9
Although Stackiewicz is a products liability case, we are adopting a similar causation burden
in breach of warranty actions. In Stackiewicz, we stated that requiring a plaintiff to prove the
specific cause of a product defect or to negate alternative causes in order to establish that a
product is defective is far too restrictive.
__________

5
See Central Bit Supply v. Waldrop Drilling, 102 Nev. 139, 140-41, 717 P.2d 35, 36 (1986).

6
See Dickerson v. Mountain View Equipment Co., 710 P.2d 621, 624 (Idaho Ct. App. 1985); see also U.C.C.
2-314 cmt. 13 (2000).

7
256 N.W.2d 472, 476 (Minn. 1977).

8
424 A.2d 1075, 1078 (Vt. 1981) (quoting Patton v. Ballam, 58 A.2d 817, 821 (Vt. 1948)).

9
100 Nev. 443, 450-51, 686 P.2d 925, 929 (1984) (concluding that evidence of a steering malfunction which
resulted in the [plaintiff] losing control of [her] vehicle might properly be accepted by the trier of fact as
sufficient circumstantial proof of a defect, or an unreasonably dangerous condition, without direct proof of the
mechanical cause of the malfunction).
that a product is defective is far too restrictive.
10
Applying this reasoning, we conclude that it
is too burdensome to require a plaintiff to prove precisely why a product does not work in a
breach of warranty action, specifically in instances such as the one presented here, where a
product integrating electronic and mechanical components is involved.
11

Based on the testimony of the various technicians, we conclude that there was sufficient
evidence to support a reasonable inference that respondents breached the warranty and caused
NCS's damages. We acknowledge that NCS's experts could not opine as to the precise cause
of the liquor-dispensing system's malfunction and that there is evidence of alleged misuse of
the liquor-dispensing system that may have contributed to the malfunction; however, such
evidence affects the weight of NCS's case.
12
Thus, we conclude that a genuine issue of
material fact exists, thereby precluding summary judgment.
CONCLUSION
We hold that a plaintiff need not show the specific technical cause of a product's
malfunction in order to sustain its causation burden in a breach of warranty cause of action.
Because NCS produced evidence creating an inference that the newly acquired
liquor-dispensing system's problems were not related to misuse and may have resulted from
respondents' breach of warranty, we conclude that NCS is entitled to litigate its case before a
jury.
Therefore, we reverse the district court's order granting summary judgment in favor of
respondents, and remand for further proceedings consistent with this opinion.
__________

10
Id. at 447, 686 P.2d at 927.

11
Cf. Capitol Dodge Sales v. Northern Concrete Pipe, 346 N.W.2d 535, 539 n.11 (Mich. Ct. App. 1983)
(holding that a new car's inoperability establishes its failure to conform to the contract of sale without showing
the specific technical cause of the overheating); Eggl v. Letvin Equipment Co., 632 N.W.2d 435, 439 (N.D.
2001) (holding that evidence that a farm tractor was not fit for the ordinary purposes for which such goods are
used was sufficient when it was shown that the tractor could not be used to pull an implement).

12
Stackiewicz, 100 Nev. at 452, 686 P.2d at 930 (observing that it is within the province of the jury, not the
court, to weigh the credibility of the plaintiff's evidence in order to determine whether the defendant caused the
plaintiff's damages).
____________
119 Nev. 163, 163 (2003) Milton v. State, Dep't of Prisons
GREGORY RONALD MILTON, Appellant, v. NEVADA DEPARTMENT OF PRISONS,
Respondent.
No. 38251
May 14, 2003 68 P.3d 895
Proper person appeal from an order dismissing a personal injury complaint against the
Nevada Department of Prisons. Sixth Judicial District Court, Pershing County; Jerry V.
Sullivan, Judge.
Prisoner brought personal injury action against Department of Prisons. The district court
dismissed complaint on the basis that the statute of limitations had expired, and prisoner
appealed. The supreme court held that prison mailbox rule did not apply to extend time for
filing of prisoner's personal injury action.
Affirmed.
Gregory Ronald Milton, Lovelock, in Proper Person.
Brian Sandoval, Attorney General, and T. Laura Lui, Deputy Attorney General, Carson
City, for Respondent.
1. Limitation of Actions.
Prison mailbox rule, under which notices of appeal in civil or criminal cases submitted by incarcerated proper person
litigants to prison officials were deemed filed for the purposes of timeliness on the date of delivery into the hands of prison
officials, did not apply to extend time for filing of prisoner's personal injury action against Department of Prisons. NRS 11.190(4).
Prisoner's argument that he met the applicable filing deadline raised a pure question of law, which was reviewed de novo.
NRS 11.190(4).
OPINION
Per Curiam:
Gregory Ronald Milton appeals from a district court order dismissing his personal injury
complaint against the Nevada Department of Prisons on the basis that the statute of
limitations had expired.
Milton, an inmate at the Lovelock Correctional Center, attempted to commence a
negligence action against the Department in connection with an incident alleged to have
occurred at the Lovelock prison facility on January 8, 1999. Because the Sixth Judicial
District Court Clerk did not receive the complaint until January 10, 2001, the district court,
upon motion of the Department, entered its order of dismissal pursuant to NRS 11.190{4),
January 10, 2001, the district court, upon motion of the Department, entered its order of
dismissal pursuant to NRS 11.190(4), the applicable Nevada statute of limitation governing
actions for personal injuries.
1

[Headnotes 1, 2]
On appeal, Milton contends that he handed the complaint to prison officials for filing on
January 5, 2001, and that, because incarcerated persons may not file legal documents of any
kind except through the assistance of prison officials, his complaint should be deemed filed
on that date for statute of limitation purposes. Milton's argument that he met the applicable
filing deadline as required under NRS 11.190(4) raises a pure question of law, which we
review de novo.
2

Milton asks us to apply what has come to be known as the prison mailbox rule, adopted
by this court in Kellogg v. Journal Communications,
3
to the filing of his civil complaint. In
Kellogg, we held that notices of appeal in civil or criminal cases submitted by incarcerated
proper person litigants to prison officials are deemed filed for the purposes of timeliness on
the date of delivery into the hands of prison officials.
4
Thus, we reinstated appeals that were
dismissed for failure to file notices of appeal within the jurisdictional time limit of thirty days
under NRAP 4(a).
5
Accordingly, the prison official's hands become the mailbox in such an
instance.
We noted in Kellogg that prisoners have no control over the vagaries of the prison mail
system or the processes of filing documents once handed over to facility officials.
6
We also
accepted the notion that, because substantial rights depend on the date of filing of a notice of
appeal, unrepresented prisoner litigants should be deemed to have complied with NRAP 4(a)
when they have done all in their power to comply.
7

__________

1
NRS 11.190(4)(e) requires that actions seeking damages for personal injuries must be brought within two
years from the date upon which the cause of action arises.

2
See Pressler v. City of Reno, 118 Nev. 506, 509, 50 P.3d 1096, 1098 (2002).

3
108 Nev. 474, 477, 835 P.2d 12, 13 (1992).

4
Id. In Kellogg, we embraced the United States Supreme Court decision in Houston v. Lack, 487 U.S. 266
(1988), construing federal appellate procedural rules identical to our own.

5
Kellogg, 108 Nev. at 477, 835 P.2d at 13; see also Rust v. Clark Cty. School District, 103 Nev. 686, 688,
747 P.2d 1380, 1381 (1987) (an untimely notice of appeal fails to vest jurisdiction in this court).

6
Kellogg, 108 Nev. at 477, 835 P.2d at 13.

7
Id. at 476, 835 P.2d at 13.
Milton asks us to extend Kellogg beyond notices of appeal to the filing of pleadings
commencing any civil action. We decline his invitation to do so.
Recently, in Gonzales v. State,
8
we refused to extend the mailbox rule to the statutory
deadlines for filing post-conviction petitions for writs of habeas corpus.
9
In Gonzales, we
noted the distinction between the timeliness problems in filing notices of appeal, which must
be accomplished within thirty days, and the timeliness problems attendant to petitions for
post-conviction relief, which are subject to deadlines of an entire year and possibly longer, in
the event good cause for delay in filing the petition is shown. Thus, we concluded that the
vagaries of a prison mail system do not have the potential for prejudice in connection with
procedures that must be commenced within longer time frames, in opposition to procedures
burdened by very short deadlines, i.e., thirty days.
10

In this instance, Milton had two years from the date of his injuries within which to file his
lawsuit. As in Gonzales, we find no compelling policy reason to create a blanket mailbox
rule for the filing of complaints for personal injuries.
Accordingly, the judgment below dismissing Milton's action is affirmed.
11

__________

8
118 Nev. 590, 53 P.3d 901 (2002).

9
See NRS 34.726(1), which provides in pertinent part as follows:
Unless there is good cause shown for delay, a petition that challenges the validity of a judgment or
sentence must be filed within 1 year after entry of the judgment of conviction or, if an appeal has been
taken from the judgment, within 1 year after the supreme court issues its remittitur.

10
118 Nev. at 595, 53 P.3d at 903-04.

11
Milton claims that he placed the summons and complaint in the hands of prison officials before the
expiration of the limitation period set forth in NRS 11.190(4). The Department acknowledges that it received an
envelope addressed to the district court on January 5, 2001, but does not concede that the envelope contained the
process against it. We do not foreclose Milton the right to relief under NRCP 60(b), or via independent action,
to establish via evidentiary hearing that the delay in delivery was the result of some mischief. However, he can
only obtain relief if fraud is shown. Again, if the innocent vagaries of the prison mail system caused the delay,
the expiration of the limitation period must fall on Milton; after all, he had two years to commence this action.
____________
119 Nev. 166, 166 (2003) State v. Allen
THE STATE OF NEVADA, Appellant, v. RUTH LAMAY ALLEN, Respondent.
No. 38741
May 21, 2003 69 P.3d 232
En banc reconsideration of 118 Nev. 842, 60 P.3d 475 (2002). Appeal from a district court
order suppressing evidence seized in a search pursuant to a defective search warrant. Sixth
Judicial District Court, Humboldt County; Jerry V. Sullivan, Judge.
Defendant who was charged with possession of a controlled substance for sale filed a
motion to suppress evidence seized from her home. The district court granted the motion.
State appealed. The supreme court, 118 Nev. 842, 60 P.3d 475 (2002), affirmed. On en banc
reconsideration, the supreme court held that: (1) search warrant was defective in that it did
not contain a statement of probable cause, and (2) deputy's search of defendant's residence
pursuant to the defective warrant did not fall within good faith exception to exclusionary rule.
Affirmed.
Brian Sandoval, Attorney General, Carson City; David G. Allison, District Attorney, and
Conrad Hafen, Chief Deputy District Attorney, Humboldt County, for Appellant.
Jack T. Bullock II, Winnemucca, for Respondent.
1. Searches and Seizures.
A search warrant has three basic components: (1) it must be issued upon probable cause and have support for the statement of
probable cause, (2) it must describe the area to be searched, and (3) it must describe what will be seized. The linchpin of a warrant,
however, is the existence of probable cause. Const. art. 1, 18; U.S. Const. amend. 4.
2. Criminal Law.
The meaning of a statute is a question of law to be reviewed de novo.
3. Statutes.
When a statute is plain and unambiguous, the supreme court will give that language its ordinary meaning and not go beyond
it.
4. Statutes.
If a statute is susceptible to more than one natural or honest interpretation, it is ambiguous, and the supreme court will
examine the Legislature's intent to determine the meaning of the vague language.
If a magistrate, for good cause, seals an affidavit of probable cause pursuant to statute, then the search warrant may
incorporate that affidavit by reference. However, the statutory provision permitting the incorporation by reference of the affidavit
under these circumstances does not eliminate the requirement that the warrant itself contain a statement of probable cause if the
affidavit is not sealed or issued upon a recorded oral statement. NRS 179.045(2), (3), (5)(b).
119 Nev. 166, 167 (2003) State v. Allen
Simply because an affidavit of probable cause is incorporated by reference in a search warrant does not eliminate the need to
attach the statement of probable cause to the warrant, in cases where the affidavit has not been sealed and the warrant has not been
issued upon a recorded oral statement. NRS 179.045(2), (3), (5)(b).
In cases where a magistrate has not sealed an affidavit of probable cause and it is incorporated by reference in the search
warrant, that affidavit must accompany the warrant and be provided to the target of the search or left at the residence. This allows
the person whose privacy is being invaded to know immediately why a warrant has been served and upon what grounds it was
issued. NRS 179.045(3), (5)(b).
Search warrant that did not contain a statement of probable cause was defective, even though the warrant made some
reference to the supporting affidavit of probable cause, because the affidavit was not sealed, affidavit was not attached to the
warrant, and the warrant was not issued upon a recorded oral statement. NRS 179.045(2), (3), (5)(b).
9. Criminal Law.
The exclusionary rule, while not acting to cure a Fourth Amendment violation, is a remedial action used to deter police from
taking action that is not in accordance with proper search and seizure law. Const. art. 1, 18; U.S. Const. amend. 4.
10. Criminal Law.
Deputy's search of defendant's residence pursuant to a defective search warrant, which did not include statement of probable
cause as required by statute, did not fall within good faith exception to exclusionary rule because statute setting forth search
warrant requirements was not ambiguous. Thus, evidence seized in search of defendant's residence was to be suppressed. Const.
art. 1, 18; U.S. Const. amend. 4; NRS 179.045(2), (3), (5)(b).
11. Criminal Law.
Exclusion of evidence seized under a defective search warrant is only appropriate where the remedial objectives of the
exclusionary rule are served. Const. art. 1, 18; U.S. Const. amend. 4.
12. Criminal Law.
Under good faith exception to the exclusionary rule, an officer's objectively reasonable reliance on an invalid warrant issued
by a magistrate or judge will not act to suppress evidence seized under the warrant. However, under the objective standard, an
officer is required to have a reasonable knowledge of what the law prohibits. Const. art. 1, 18; U.S. Const. amend. 4.
OPINION ON EN BANC RECONSIDERATION
Per Curiam:
In this appeal, we are asked to determine whether a search warrant that did not contain a
statement of probable cause was nevertheless valid because it complied with the
incorporation by reference requirements of NRS 179.045(5)(b). The affidavit supporting
the search warrant was not sealed, and the warrant was not issued after telephonic
communication pursuant to NRS 179.045{2).
119 Nev. 166, 168 (2003) State v. Allen
porting the search warrant was not sealed, and the warrant was not issued after telephonic
communication pursuant to NRS 179.045(2). We conclude that a search warrant that is
neither supported by a sealed affidavit nor issued pursuant to NRS 179.045(2) must contain a
probable cause statement or have the probable cause statement physically attached to the
search warrant. Additionally, we conclude that the Leon
1
good faith exception does not apply
to the actions of the police in this case.
FACTS
On October 12, 1999, Humboldt County Deputy Sheriff Mike Buxton (Deputy Buxton)
received information that a drug deal had occurred in a local Wal-Mart parking lot. After
identifying the vehicle involved in the drug deal, Deputy Buxton obtained the address of the
respondent, Ruth Allen (Ms. Allen), and began to conduct surveillance on her home in an
attempt to locate the vehicle. On January 11, 2000, Deputy Buxton searched Ms. Allen's trash
and found items containing Ms. Allen's name and pieces of marijuana.
Based on the foregoing, Deputy Buxton submitted an affidavit to a justice of the peace
requesting the issuance of a search warrant. The justice of the peace determined that probable
cause existed and authorized a search of Ms. Allen's residence. The warrant, drafted by
Deputy Buxton and signed by the justice of the peace, provided the following: Proof by
[a]ffidavit having been made before me by Michael Buxton that there is grounds for issuing
this Search Warrant, pursuant to NRS 179.035, and that there is property or other things to be
seized that consist of items, or constitute evidence.
On January 20, 2000, Deputy Buxton and other investigators executed the search warrant.
After arresting a man on the premises who had marijuana in his pocket, the investigators
searched the home and found drugs in the bedroom and in a safe. Ms. Allen was arrested and
charged with possession of a controlled substance for sale, a category D felony. As was his
normal practice, Deputy Buxton left the search warrant and an inventory receipt of the items
seized at Ms. Allen's house, but did not leave a copy of the affidavit.
2
The Deputy had not
brought the affidavit with him when he searched the residence.
Ms. Allen filed a motion to suppress the evidence seized from her home, on which the
district court held a hearing on September 13, 2001. One of the main issues at the hearing was
whether the search warrant was insufficient on its face because it did not properly state
probable cause or incorporate the probable cause affidavit by reference as required by
NRS 179.045{5).
__________

1
United States v. Leon, 468 U.S. 897 (1984).

2
Deputy Buxton testified that he was never trained to leave an affidavit at a residence.
119 Nev. 166, 169 (2003) State v. Allen
the search warrant was insufficient on its face because it did not properly state probable cause
or incorporate the probable cause affidavit by reference as required by NRS 179.045(5).
3

At the hearing, Deputy Buxton conceded that the search warrant itself did not recite
probable cause for the search.
4
Rather, the Deputy testified that probable cause was
contained in his affidavit. Additionally, the Deputy testified that while the warrant did not
contain the specific words the affidavit is hereby incorporated herein, the warrant did make
some reference to the affidavit.
5

The district court granted Ms. Allen's motion to suppress the evidence seized during the
search of her home. The court concluded that Deputy Buxton did not comply with either of
the requirements of NRS 179.045(5).
6
The district court further concluded that the Leon
good faith exception did not apply because the search warrant lacked specific grounds or
probable cause on its face.
7
The State appeals from that order.
__________

3
NRS 179.045(5) provides, in relevant part:
The warrant must be directed to a peace officer in the county where the warrant is to be executed. It must:
(a) State the grounds or probable cause for its issuance and the names of the persons whose affidavits
have been taken in support thereof; or
(b) Incorporate by reference the affidavit or oral statement upon which it is based.

4
Deputy Buxton testified that he prepared the warrant in the manner that he was trained.

5
In 1997, the Legislature added the language that is codified as NRS 179.045(5)(b). 1997 Nev. Stat., ch. 213,
1, at 741. This section was added to allow for sealed warrants pursuant to the newly added NRS 179.045(3).
Deputy Buxton testified that he was never trained that when the warrant stated that the affidavit was
incorporated by reference, the affidavit still had to be attached to the warrant.

6
The trial court stated:
The law required that [D]etective Buxton deliver or leave a copy of a sufficient search warrant stating
probable cause or incorporation of the probable cause, unless he had a judicial order sealing the
Affidavit. Attaching or even leaving the probable cause Affidavit at the residence could have fulfilled
legal requirements. On the face of the search warrant you could put something such as attached to this
search warrant is the probable cause affidavit of Investigator Buxton, which is incorporated by
reference.

7
NRS 179.085(1) states:
A person aggrieved by an unlawful search and seizure may move the court having jurisdiction where the
property was seized for the return of the property and to suppress for use as evidence anything so
obtained on the ground that:
. . . .
(b) The warrant is insufficient on its face . . . .
119 Nev. 166, 170 (2003) State v. Allen
DISCUSSION
This appeal revolves around several criminal procedure questions. First, how to properly
attach an affidavit through incorporation by reference. Second, if such an affidavit is
incorporated, whether the affidavit needs to be left at the scene of a search pursuant to the
warrant. Third, whether the Leon good faith exception to the exclusionary rule applies if
police do not properly incorporate an affidavit into a warrant by reference or leave an
affidavit at the scene of a search.
The Nevada Constitution and the United States Constitution require a search warrant to be
issued only upon a showing of probable cause. [N]o warrant shall issue but on probable
cause, supported by Oath or Affirmation, particularly describing the place or places to be
searched, and the person or persons, and thing or things to be seized.
8

[Headnote 1]
Thus, a search warrant has three basic components: (1) it must be issued upon probable
cause and have support for the statement of probable cause; (2) it must describe the area to be
searched; and (3) it must describe what will be seized. The linchpin of a warrant, however, is
the existence of probable cause.
[Headnotes 2-4]
The meaning of a statute is a question of law to be reviewed de novo.
9
We review NRS
179.045(5) to determine its plain meaning, which is intended to reflect legislative intent.
10
When a statute is plain and unambiguous, this court will give that language its ordinary
meaning and not go beyond it.
11
However, if a statute is susceptible to more than one
natural or honest interpretation, it is ambiguous, and we will examine the legislature's intent
to determine the meaning of the vague language.
12
We conclude that the statute is not
ambiguous and is clear on its face.
The Nevada Legislature amended NRS 179.045 in 1997 to permit a magistrate to seal the
affidavit of probable cause upon a showing of good cause.
__________

8
Nev. Const. art. 1, 18; see also U.S. Const. amend. IV (substantially similar language).

9
State v. Friend, 118 Nev. 115, 120, 40 P.3d 436, 439 (2002).

10
See Washington v. State, 117 Nev. 735, 738-39, 30 P.3d 1134, 1136 (2001).

11
City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989).

12
Banegas v. SIIS, 117 Nev. 222, 225, 19 P.3d 245, 247 (2001).
119 Nev. 166, 171 (2003) State v. Allen
showing of good cause.
13
This now appears as NRS 179.045(3).
14
The section at issue here,
NRS 179.045(5)(b), was proposed in the same amendment
15
and was designed to facilitate
the magistrate's ability to seal affidavits.
[Headnotes 5, 6]
If a magistrate, for good cause, seals an affidavit of probable cause under NRS 179.045(3),
then the search warrant may incorporate that affidavit by reference under NRS 179.045(5)(b).
However, the incorporation by reference provision does not eliminate the requirement that the
warrant itself contain a statement of probable cause if the affidavit is not sealed or issued
upon a recorded oral statement pursuant to section 2 of NRS 179.045.
16
Underpinning search
warrant law is the requirement that search warrants be issued upon a showing of probable
cause. Thus, the option provided under NRS 179.045 is to make a statement of probable
cause and (1) state the names of the persons whose affidavits had been taken, or (2)
incorporate the affidavit by reference in the warrant. Implicit in NRS 179.045(5)(b) is that a
statement of probable cause be included in the warrant. Simply because an affidavit is
incorporated by reference does not eliminate the need to attach the statement of probable
cause to the warrant.
[Headnote 7]
In cases where a magistrate has not sealed an affidavit and it is incorporated by reference
in the warrant, that affidavit must accompany the warrant and be provided to the target of the
search or left at the residence. This allows the person whose privacy is being invaded to know
immediately why a warrant has been served and upon what grounds it was issued.
[Headnotes 8, 9]
In the current case, the affidavit was not sealed, and the record does not indicate that
Deputy Buxton attempted to do so. Thus, it should have accompanied the search warrant.
__________

13
1997 Nev. Stat., ch. 213, 1, at 741.

14
Upon a showing of good cause, the magistrate may order an affidavit or a recording of an oral statement
given pursuant to this section to be sealed. Upon a showing of good cause, a court may cause the affidavit
or recording to be unsealed.

15
1997 Nev. Stat., ch. 213, 1, at 741.

16
NRS 179.045(2) permits a magistrate to take a recorded statement under oath to establish probable cause
and then authorize the issuance of the warrant. The Legislature has set forth this procedure to address special
situations that law enforcement may encounter. This opinion does not address and should not affect search
warrants issued pursuant to NRS 179.045(2).
119 Nev. 166, 172 (2003) State v. Allen
should have accompanied the search warrant. As Deputy Buxton testified, the only statement
of probable cause was in the affidavit. His failure to provide that affidavit to Ms. Allen was a
failure that invokes the exclusionary rule. The exclusionary rule, while not acting to cure a
Fourth Amendment violation, is a remedial action used to deter police from taking action that
is not in accordance with proper search and seizure law.
17
Thus, we conclude that the
evidence seized in the search of Ms. Allen's home was correctly suppressed.
[Headnotes 10-12]
We also hold that Deputy Buxton's conduct does not fall within the purview of the Leon
good faith exception to the exclusionary rule. Exclusion is only appropriate where the
remedial objectives of the exclusionary rule are served.
18
Under Leon, an officer's
objectively reasonable reliance on an invalid warrant issued by a magistrate or judge will not
act to suppress evidence seized under the warrant. However, under the objective standard, an
officer is required to have a reasonable knowledge of what the law prohibits.
19

Because we conclude that NRS 179.045(5) is not ambiguous, we also conclude that the
Leon good faith exception does not apply in this case. Deputy Buxton's actions did not follow
the requirements set forth in NRS 179.045. If Deputy Buxton had properly incorporated the
affidavit by reference, he was required to provide Ms. Allen with both the search warrant and
the accompanying affidavit.
CONCLUSION
We conclude that the district court properly suppressed evidence seized from Ms. Allen's
home, and the Leon exception to the exclusionary rule does not apply. Accordingly, we affirm
the district court's order.
20

__________

17
See Leon, 468 U.S. at 906.

18
See Powell v. State, 113 Nev. 41, 45, 930 P.2d 1123, 1125-26 (1997).

19
Leon, 468 U.S. at 919-20 n.20.

20
The Honorable Mark Gibbons, Justice, did not participate in the decision of this matter.
____________
119 Nev. 173, 173 (2003) State v. Haberstroh
THE STATE OF NEVADA, Appellant, v. RICHARD HABERSTROH, aka GERALD
HABERSTROH, aka PATRICK JAMES HICKEY, aka RICKY HICKEY, aka LEE
DIVINCENT, Respondent.
No. 38404
RICHARD HABERSTROH, aka RICKY HICKEY, aka PATRICK JAMES HICKEY, aka
GERALD HABERSTROH, aka LEE DIVINCENT, Appellant, v. WARDEN,
NEVADA STATE PRISON, E.K. McDANIEL, Respondent.
No. 38600
May 30, 2003 69 P.3d 676
These are consolidated appeals from an order of the district court granting in part and
denying in part a post-conviction petition for a writ of habeas corpus in a capital case. Eighth
Judicial District Court, Clark County; Michael L. Douglas, Judge.
After defendant's convictions for murder, kidnapping, sexual assault, and robbery, and
death sentence were affirmed, 105 Nev. 739, 782 P.2d 1343 (1989), defendant petitioned for
habeas corpus relief. The district court granted partial relief. State and defendant appealed.
The supreme court, Rose, J., held that: (1) parties in a post-conviction habeas proceeding
cannot stipulate to disregard the statutory procedural default rules, (2) jury's finding of
depravity of mind as an aggravating factor during penalty phase was error, and (3) such error
was not harmless.
Affirmed.
[Rehearing denied August 29, 2003]
Leavitt, J., with whom Becker and Gibbons, JJ., agreed, dissented in part.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and
Clark A. Peterson, James Tufteland, and Lynn M. Robinson, Chief Deputy District Attorneys,
Clark County, for Appellant in Docket No. 38404 and Respondent in Docket No. 38600.
Franny A. Forsman, Federal Public Defender, and Elizabeth Brickfield and Michael L.
Pescetta, Assistant Federal Public Defenders, Las Vegas, for Respondent/Appellant Richard
Haberstroh.
1. Habeas Corpus.
Post-conviction habeas counsel in capital case violated rule of appellate procedure requiring brevity in appendices, where
counsel filed an appendix of 52 volumes and 11,3S4 pages,
pendix of 52 volumes and 11,384 pages, but counsel did not cite to single page in 22 of the volumes and for most other volumes,
counsel cited to only a few pages out of an entire volume. NRAP 30(b).
2. Habeas Corpus.
Parties in a post-conviction habeas proceeding cannot stipulate to disregard the statutory procedural default rules. NRS
34.745, 34.810.
3. Habeas Corpus.
Supreme court would treat parties' stipulation in post-conviction habeas proceeding in capital case as establishing facts to
show cause to raise relevant claims but allowing consideration of claims' merits only to determine question of prejudice, where
stipulation preceded decision in Pellegrini v. State, 117 Nev. 860, 34 P.3d 519 (2001), in which the court disallowed the
discretionary application of current procedural bar for waiver, and defendant relied upon stipulation and did not present evidence
or argument in regard to cause for raising his claims. NRS 34.745, 34.810.
4. Stipulations.
Parties can stipulate to the facts but not to the law.
5. Sentencing and Punishment.
Jury's finding depravity of mind as an aggravating factor in penalty phase of capital murder trial was error, where there was no
jury instruction limiting depravity of mind in a constitutional matter, namely, requiring torture, mutilation, or other serious and
depraved physical abuse beyond the act of killing itself as a qualifying requirement to an aggravating circumstance based in part
upon depravity of mind. NRS 200.033(8) (1995).
Erroneous jury instruction on depravity of mind in penalty phase of capital murder trial was not harmless, and thus required
vacation of death sentence, where prosecutor repeatedly employed terms drawn from jury instruction such as depraved, vile,
wanton, perverted, indifferent, and evil, weight of other aggravating circumstances was not so great that it was beyond a
reasonable doubt that jury would have returned death sentence even without invalid finding of depravity of mind, and jury heard
no mitigating evidence and defendant would now offer evidence in mitigation. NRS 34.810, 200.033(8) (1995).
Harmless-error review in death penalty case requires the supreme court to actually perform a new sentencing calculus to
determine whether the error involving the invalid aggravator was harmless beyond a reasonable doubt.
Reweighing of aggravating and mitigating evidence in death penalty cases involves disregarding the invalid aggravating
circumstances and reweighing the remaining permissible aggravating and mitigating circumstances.
Supreme court must provide close appellate scrutiny of the import and effect of invalid aggravating factors to implement the
well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases. U.S. Const.
amend. 8.
10. Habeas Corpus.
Supreme court would consider capital murder defendant's claim raised for first time in post-conviction habeas proceeding that
prosecutors withheld exculpatory evidence in violation of Brady, where claim was likely to arise again on
remand for new penalty hearing.
withheld exculpatory evidence in violation of Brady, where claim was likely to arise again on remand for new penalty hearing.
11. Criminal Law.
Prosecutors did not fail to turn over purportedly exculpatory evidence that shank found on capital murder defendant while in
jail was digging tool belonging to another inmate in violation of Brady, where another inmate admitted to and was disciplined for
using metal object as a digging tool and slipping it into defendant's cell to avoid detection shortly before defendant was found with
it, but defendant did not discard object or report it to jail authority, rather defendant placed object in his pocket.
12. Habeas Corpus.
Capital murder defendant's claim in habeas corpus petition that he was denied access to legal materials and was appointed an
inexperienced investigator who lacked adequate funding and access to defendant was conclusory claim that precluded defendant
from prevailing on claim.
13. Criminal Law.
Evidence that defendant's appearance allegedly closely resembled that of another alleged suspect in case involving different
victim was not material within meaning of Brady in capital murder case, where detective testified that alleged suspect did not look
like defendant and police eliminated alleged suspect in crimes against different victim.
14. Homicide.
Evidence that tanning would not have obscured defendant's tattoos was not material in capital murder prosecution, and thus
exclusion of such evidence did not violate defendant's right to present a defense, where two witnesses were certain in their
identification of defendant, on the night and at the scene of the abduction, one witness had spoken with defendant for about two
hours and heard his plan to abduct a victim, and the other witness had observed defendant for about twenty minutes and saw
defendant abduct victim.
15. Criminal Law.
Trial judge was not hostile to defense in capital murder prosecution by allegedly imposing undue court security, including
armed guards with a shoot-to-kill order.
16. Judges.
Fact that trial judge in capital murder prosecution was popularly elected did not render judge hostile to defense.
17. Habeas Corpus.
Capital murder defendant failed to provide any facts or argument in habeas corpus petition demonstrating that his
constitutional rights were violated because the trial court failed and refused to have some proceedings reported. Defendant did not
allege what error or errors might have occurred and defendant cited only to his own habeas petition to support contention. NRAP
28(e).
18. Habeas Corpus.
Defendant's claim in habeas corpus petition that fact that he did not receive a transcript of his first capital murder trial until
shortly before his second capital murder trial prejudiced him because the trial witnesses changed their testimony repeatedly was
conclusory. Thus, defendant could not prevail on claim, where defendant did not describe a single instance of such changed
testimony or how it prejudiced him.
19. Jury.
Dismissal of African-American juror during jury selection in capital murder trial was not facially pretextual for purposes of
Batson, where prosecutor noted that two or three other African-American jurors had served in defendant's
first trial without challenge,
prosecutor noted that two or three other African-American jurors had served in defendant's first trial without challenge, and
prosecutor explained that he dismissed prospective juror for not being as quick on the uptake as prosecutor would have liked.
20. Criminal Law.
Contentions unsupported by specific argument or authority should be summarily rejected on appeal.
Jury instruction defining deadly weapon in penalty phase of capital murder trial was not unconstitutionally vague, and thus,
deadly weapon enhancement was properly applied to defendant's noncapital sentences, where an eyewitness testified that shortly
before the crimes, defendant displayed a handgun and a ligature and expressed a plan to use them to abduct a victim. NRS
193.165(1).
Assuming that jury instruction defining deadly weapon for sentence enhancement purposes in penalty phase of capital murder
trial was otherwise vague, defendant was not prejudiced by instruction, where there was evidence that defendant used a firearm.
NRS 193.165(1).
23. Habeas Corpus.
Defendant's claim in habeas corpus petition that death penalty was applied in an arbitrary and capricious manner was
conclusory, thereby precluding defendant from prevailing on claim, where claim was without any specific facts or argument to
support it.
Defendant's confinement on death row for more than fourteen years was not cruel and unusual punishment in violation of
Eighth Amendment. U.S. Const. amend. 8.
Capital murder defendant failed to provide facts demonstrating that pain inflicted during lethal injection was unnecessary or
gratuitous, so as to amount to violation of constitutional prohibition on gratuitous infliction of suffering. U.S. Const. amends. 8,
14.
26. Criminal Law.
The law of a first appeal is the law of the case in all later appeals in which the facts are substantially the same, and that law
cannot be avoided by more detailed and precisely focused argument made after reflecting upon previous proceedings.
27. Habeas Corpus.
Claims previously raised by capital murder defendant and rejected on the merits in prior proceedings, including prosecutorial
misconduct, were precluded from appellate review on defendant's habeas corpus petition under law of the case.
28. Habeas Corpus.
Certain claims raised by capital murder defendant in habeas corpus petition, including ineffective assistance of appellate
counsel and suggestive identifications, were precluded by law of the case as well as procedurally barred, where defendant failed to
show good cause for presenting such claims again and defendant stipulated that claims had already been fairly presented and
rejected on the merits. U.S. Const. amend. 6; NRS 34.810.
OPINION
In 1986, Richard Haberstroh kidnapped a young woman in Clark County, then robbed,
sexually assaulted, and murdered her. After his first trial ended in a mistrial, he was convicted
at a second trial and sentenced to death. Haberstroh unsuccessfully sought relief on direct
appeal and in a prior post-conviction proceeding. In this second post-conviction proceeding,
the district court granted partial relief in favor of Haberstroh, vacating his sentence and
granting him a new penalty hearing. The State appeals from that part of the district court's
order, and Haberstroh appeals from the part denying the remainder of his petition.
The district court concluded that Haberstroh's death sentence should be vacated because
the jury's finding of depravity of mind as an aggravating circumstance, without a proper
limiting instruction, was unconstitutional. This error is undisputed, and we conclude that it
was not harmless beyond a reasonable doubt. The district court otherwise upheld Haberstroh's
conviction, and he raises numerous issues in that regard. We conclude that they do not
warrant relief and therefore affirm the district court's order.
FACTS
Early in the morning on July 21, 1986, Haberstroh abducted a young woman, Donna
Kitowski, from a grocery store parking lot in Las Vegas. He took Kitowski into the desert
outside the city, robbed her, sexually assaulted her, and strangled her with a ligature. The
strangulation caused irreparable brain damage and ultimately Kitowski's death.
After his arrest, Haberstroh was appointed counsel, Deputy Public Defender George
Franzen. Haberstroh pleaded not guilty to various felony charges, including first-degree
murder of Kitowski with the use of a deadly weapon. The charges also included kidnapping,
sexual assault, attempted robbery, and attempted murder of another victim, Suzette Yake, in a
different incident. The week before trial was set to begin, Haberstroh moved to dismiss
Franzen and to proceed with his own defense. The district court canvassed Haberstroh
extensively to determine if he understood the charges against him, the elements of each crime
that the State had to prove, and the possible penalties. The court questioned Haberstroh about
his education and prior legal experience. The court advised him that he would not receive any
special indulgence by proceeding without counsel and informed him that his appointed
counsel was an experienced criminal trial lawyer.
was an experienced criminal trial lawyer. Haberstroh nevertheless insisted that he be allowed
to represent himself. The court granted the motion to dismiss counsel, but ordered Franzen to
remain as standby counsel. The trial ended in a mistrial with the jurors voting eleven to one
for conviction. A new trial date was set for September 1987. The charges involving Yake
were severed from the second trial.
Early in June 1987, Haberstroh informed the district court that he wished to represent
himself again at the second trial. On September 15, 1987, just six days before trial,
Haberstroh moved to continue the trial and to have Franzen reappointed as defense counsel.
The court was pleased to do so and willing to grant a one-week continuance. Franzen stated
that he needed at least a month to prepare. When the court refused to continue the trial for
longer than one week, Haberstroh, after an off-the-record conversation with Franzen, stated
that he was prepared to proceed himself. Franzen again acted as standby counsel.
The second jury found Haberstroh guilty of first-degree murder, first-degree kidnapping,
sexual assault, and robbery, each with the use of a deadly weapon. At Haberstroh's request,
Franzen was appointed as counsel for the penalty phase of the trial, but Haberstroh requested
that no witnesses be called on his behalf because he did not want his friends and family
embarrassed by the publicity. At the end of the penalty phase, the jurors returned a sentence
of death. They found no mitigating circumstances and five aggravating circumstances: the
murder was committed by a person previously convicted of a felony involving the use or
threat of violence, it was committed during the commission of a robbery, it was committed
during the commission of first-degree kidnapping, it was committed during the commission
of sexual assault, and it involved depravity of mind. Haberstroh also received four
consecutive terms of life in prison without possibility of parole for the kidnapping and sexual
assault and two consecutive fifteen-year prison terms for the robbery.
This court affirmed Haberstroh's sentence on direct appeal.
1
Haberstroh then sought
post-conviction relief, claiming that he had received ineffective assistance of counsel and that
his waiver of the right to counsel had not been voluntary and intelligent. After an evidentiary
hearing on the matter, the district court denied relief, and this court affirmed the denial.
2

In November 1997, Haberstroh filed a petition for a writ of habeas corpus in the district
court, raising 43 main issues. In September 199S, the district court adopted a stipulation
by the parties that some claims would be considered on the merits after an evidentiary
hearing,
__________

1
Haberstroh v. State, 105 Nev. 739, 782 P.2d 1343 (1989) (Haberstroh I), modification recognized by Harte
v. State, 116 Nev. 1054, 1072, 13 P.3d 420, 432 (2000).

2
Haberstroh v. State, 109 Nev. 22, 846 P.2d 289 (1993) (Haberstroh II).
September 1998, the district court adopted a stipulation by the parties that some claims would
be considered on the merits after an evidentiary hearing, that some other claims would be
considered on the merits without the taking of any evidence, and that still other claims had
already been rejected by this court and in the State's view were subject to the doctrine of the
law of the case. The parties stipulated that they had substantial evidence to present on any
procedural default issues but had chosen to allow adjudication on the merits for the sake of
efficiency and fairness.
The district court held an evidentiary hearing over several days from July 1999 to June
2001 and granted the habeas petition in part. It concluded that the penalty-phase jury
instruction on depravity of mind had been unconstitutional and that the error was not
harmless. It therefore vacated the sentence of death and ordered a new penalty hearing. The
court decided no other penalty-phase claims and rejected all of Haberstroh's guilt-phase
claims. The State and Haberstroh appealed.
DISCUSSION
NRAP 30(b) and the requirement of brevity in appendices
[Headnote 1]
As a preliminary matter, we admonish Haberstroh's attorney, Assistant Federal Public
Defender Michael Pescetta, for filing an appendix containing extensive irrelevant material.
Pescetta filed an appendix of 52 volumes and 11,384 pages. In his briefs to this court,
however, he did not cite to even a single page in 22 of the volumes, and for most of the other
volumes, he cited to only a few pages out of an entire volume. Including thousands of pages
of appendix that were not relevant to this appeal violated the Nevada Rules of Appellate
Procedure and needlessly burdened this court and its staff. NRAP 30(b) expressly provides
that [b]revity is required in appendices and that all matters not essential to the decision of
issues presented by the appeal shall be omitted.
In response to questions at oral argument in this case, attorney Pescetta asserted that he
considered it necessary to impose such a massive record on this court to ensure that he
preserves the record for future proceedings in federal court. This response is unacceptable.
We do not see how including materials in the record before this court, without relying on
them to support issues raised here, could operate to preserve those materials. Moreover, we
question what purpose these materials could serve in the federal court if they were of no use
to Haberstroh in the proceedings before this court.
We therefore admonish Pescetta for filing an appendix which grossly violates NRAP 30(b)
and caution him that we will consider sanctions for similar conduct in the future.
Further, counsel for both Haberstroh and the State cited to the appendices without
providing volume numbers. This is technically not a violation of NRAP 28(e), which
expressly requires every assertion regarding the record only to be supported by a reference to
the page of the transcript or appendix. But citation to the specific volume is necessary when
appendices or transcripts have multiple volumes, and we direct all appellate attorneys before
this court to also cite the volume number in such cases.
Stipulation by the parties in regard to the procedural default rules
[Headnote 2]
We must consider whether it was valid for the parties to stipulate to allow resolution of
many of the issues on the merits. We conclude that a stipulation by the parties cannot
empower a court to disregard the mandatory procedural default rules.
NRS 34.810(1)(b) provides that a court shall dismiss a habeas petition that challenges a
conviction resulting from a trial if the grounds for the petition could have been presented in
earlier proceedings, absent cause and prejudice. NRS 34.810(2) similarly provides that a
successive petition must be dismissed if it fails to allege new grounds for relief after a prior
determination on the merits, or if it alleges new grounds but the failure to assert them in a
prior petition constitutes abuse of the writ, again absent cause and prejudice. Based on this
mandatory statutory language, this court in Pellegrini v. State disallowed the discretionary
application of the current procedural bar for waiver.
3
Therefore, a stipulation by the parties
cannot empower a court to disregard these statutory requirements.
Haberstroh argues that the stipulation is binding on this court. He cites, for example,
Second Baptist Church v. Mount Zion Baptist Church, an opinion by this court that states that
valid stipulations are controlling and conclusive and both trial and appellate courts are
bound to enforce them.
4
However, the stipulation in this case is not valid if it contradicts
the relevant statutes.
In oral argument before this court, Haberstroh's counsel argued that application of
procedural default rules is not mandatory under this court's opinion in Phelps v. Director,
Prisons.
5
In that opinion, this court considered earlier versions of NRS 34.740 and 34.810
and decided that the Legislature did not intend to require a post-conviction habeas petition to
show good cause and prejudice on its face but instead intended that the State raise waiver
or abuse of the writ as affirmative defenses before a petitioner was required to show
good cause and prejudice.
__________

3
117 Nev. 860, 886 & n.116, 34 P.3d 519, 536 & n.116 (2001). NRS 34.726(1) also provides that a habeas
petition must be filed within one year after entry of the judgment of conviction or after issuance of remittitur
on direct appeal, absent good cause for the delay and prejudice.

4
86 Nev. 164, 172, 466 P.2d 212, 217 (1970) (emphasis added).

5
104 Nev. 656, 764 P.2d 1303 (1988).
face but instead intended that the State raise waiver or abuse of the writ as affirmative
defenses before a petitioner was required to show good cause and prejudice.
6
However, the
Legislature abrogated this part of Phelps a year later by adding subsections three and four to
NRS 34.810 and amending former NRS 34.740.
7
As a result, NRS 34.810(3) expressly
provides that the petitioner has the burden of pleading and proving specific facts that
demonstrate both good cause for failing to present a claim or for presenting a claim again
and actual prejudice, and NRS 34.745(4) allows courts to look beyond the face of a petition to
the courts' own records in deciding whether to order summary dismissal of the petition.
[Headnotes 3, 4]
We realize that the stipulation here preceded our decision in Pellegrini and that Haberstroh
relied upon the stipulation and did not present evidence or argument in regard to cause for
raising his claims. Under the circumstances of this case, we conclude that we can treat the
stipulation as establishing the facts
8
to show cause to raise the relevant claims but allowing
consideration of the claims' merits only to determine the question of prejudice. This approach
leaves the procedural default rules in effect and allows us to accept the stipulation and decide
the appeal.
However, we hold that the parties in a post-conviction habeas proceeding cannot stipulate
to disregard the statutory procedural default rules. We direct all counsel in the future not to
enter into stipulations like the one in this case and direct the district courts not to adopt such
stipulations.
The State's appeal: the unconstitutional application of depravity of mind as an aggravating
circumstance
[Headnotes 5, 6]
The State contends that the district court erred in vacating Haberstroh's death sentence
based on the invalid aggravating circumstance of depravity of mind. Given the parties'
stipulation, we accept that cause exists for Haberstroh to raise this claim for the first time in
the instant petition. We must decide, therefore, whether the district court correctly concluded
that Haberstroh established prejudice under NRS 34.810.
During the penalty phase, the jury was instructed that depravity of mind is characterized
by an inherent deficiency of moral sense and rectitude.
__________

6
Id. at 658-59, 764 P.2d at 1305.

7
1989 Nev. Stat., ch. 204, 4, 5, at 456-57. The relevant language in former NRS 34.740 now is codified at
NRS 34.745(4).

8
Parties can stipulate to the facts but not to the law. Ahlswede v. Schoneveld, 87 Nev. 449, 452, 488 P.2d 908,
910 (1971).
is characterized by an inherent deficiency of moral sense and rectitude. It consists of
evil, corrupt and perverted intent which is devoid of regard for human dignity and
which is indifferent to human life. It is a state of mind outrageously, wantonly vile,
horrible or inhuman.
The State did not allege torture or mutilation. The jury found that the murder involved
depravity of mind as well as four other aggravating circumstances. This instruction provided
inadequate guidance to the jury; therefore, the depravity aggravator was not properly found.
In Godfrey v. Georgia, the United States Supreme Court held that States must avoid the
arbitrary and capricious infliction of the death penalty.
9

Part of a State's responsibility in this regard is to define the crimes for which death may
be the sentence in a way that obviates standardless [sentencing] discretion. It must
channel the sentencer's discretion by clear and objective standards that provide
specific and detailed guidance, and that make rationally reviewable the process for
imposing a sentence of death.
10

This court has recognized that under Godfrey, absent a properly limiting instruction, the term
depravity of mind fails to provide the required constitutional guidance to jurors.
11
Thus
this court construed the relevant statute, former NRS 200.033(8),
12
as requiring torture,
mutilation or other serious and depraved physical abuse beyond the act of killing itself, as a
qualifying requirement to an aggravating circumstance based in part upon depravity of mind.
13

The instruction given in this case fails to limit the term in a constitutional manner.
14
The
State does not dispute that the instruction was inadequate, but it argues that the error was
harmless or in the alternative that this court should uphold the death sentence after
reweighing the four valid aggravators against the nonexistent mitigating evidence.
__________

9
446 U.S. 420, 428 (1980) (plurality opinion).

10
Id. (alteration in original) (citations and footnotes omitted).

11
See, e.g., Smith v. State, 110 Nev. 1094, 1103-04, 881 P.2d 649, 655-56 (1994).

12
Haberstroh's trial preceded the Legislature's amendment of NRS 200.033(8) in 1995, deleting depravity of
mind altogether as an aggravating element. 1995 Nev. Stat., ch. 467, 1, at 1491.

13
Robins v. State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990).

14
See Smith, 110 Nev. at 1103-04, 881 P.2d at 655-56.
[Headnotes 7-9]
The Supreme Court has held that the Federal Constitution does not prevent a state
appellate court from upholding a death sentence that is based in part on an invalid or
improperly defined aggravating circumstance either by reweighing of the aggravating and
mitigating evidence or by harmless-error review.
15
It appears that either analysis is
essentially the same and that either should achieve the same result.
16
Harmless-error review
requires this court to actually perform a new sentencing calculus' to determine whether
the error involving the invalid aggravator was harmless beyond a reasonable doubt.
17
Reweighing involves disregarding the invalid aggravating circumstances and reweighing the
remaining permissible aggravating and mitigating circumstances.
18
In any case, we must
provide close appellate scrutiny of the import and effect of invalid aggravating factors to
implement the well-established Eighth Amendment requirement of individualized sentencing
determinations in death penalty cases.
19

The State stresses that the jury found no mitigating circumstances and that four valid
aggravators remain. It therefore argues that the error was harmless beyond a reasonable doubt
and the death sentence should stand after reweighing. It cites several cases where this court
has upheld death sentences after invalidating an aggravating circumstance.
20
Haberstroh
counters that jurors need not return a death sentence even if the mitigating circumstances do
not outweigh the aggravating.
21
Also, in the instant proceedings, he has presented evidence
relevant to mitigation.
22
The cases cited by the State all involve direct appeals, unlike this
case, and therefore did not entail reversal of a district court's decision to grant habeas
relief.
__________

15
Clemons v. Mississippi, 494 U.S. 738, 741 (1990).

16
Cf., e.g., Canape v. State, 109 Nev. 864, 882-83, 859 P.2d 1023, 1035 (1993) (reaching same result under
both analyses).

17
Pertgen v. State, 110 Nev. 554, 563, 875 P.2d 361, 366-67 (1994) (quoting Richmond v. Lewis, 506 U.S.
40, 49 (1992); citing Chapman v. California, 386 U.S. 18, 21-24 (1967)), abrogated on other grounds by
Pellegrini, 117 Nev. at 881-84, 34 P.3d at 533-35.

18
Id.

19
Stringer v. Black, 503 U.S. 222, 230 (1992).

20
See, e.g., Witter v. State, 112 Nev. 908, 929-30, 921 P.2d 886, 900-01 (1996), receded from on other
grounds by Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000); Canape, 109 Nev. at 882, 859 P.2d at 1035.

21
See, e.g., Bennett v. State, 111 Nev. 1099, 1109-10, 901 P.2d 676, 683 (1995).

22
In regard to a claim of ineffective assistance of counsel, Haberstroh presented evidence that he suffers from
partial fetal alcohol syndrome, mild neuropsychological impairment, a low average IQ, and personality disorders
and that he grew up with alcoholic parents and suffered physical and emotional abuse. He also presented
evidence that he posed a low risk of committing serious violence in custody as an inmate sentenced to death.
the State all involve direct appeals, unlike this case, and therefore did not entail reversal of a
district court's decision to grant habeas relief. Since there are no factual findings by the
district court involved here, de novo review of this issue may be in order.
23

The primary concern of the district court was the emphasis placed on depravity of mind by
the prosecutor in closing argument. The record shows that the prosecutor repeatedly
employed terms drawn from the jury instruction on depravity of mind, terms such as
depraved, vile, wanton, perverted, indifferent, and evil. We share the district
court's concern that this argument likely induced the jurors to rest their sentence to a
significant degree on the invalid aggravator.
Four valid aggravators remain in this case. Of course, the weighing of aggravating and
mitigating circumstances is not a simplistic, mathematical process.
24
Three of the remaining
aggravatorsthat the murder was committed during a robbery, a first-degree kidnapping, and
a sexual assaultinvolve the circumstances of the murder itself and can be viewed in effect
as one major aggravator. The fourth aggravator is that Haberstroh was previously convicted
of a felony involving the use or threat of violencean escape from federal custody in which
Haberstroh threatened a jailer with a shank. The weight of these aggravating circumstances is
not so great that we are convinced beyond a reasonable doubt that the jury would have
returned a death sentence even without the invalid finding of depravity of mind, especially
considering the emphasis the prosecution placed on depravity. We are also cognizant that the
jury heard no mitigating evidence and that Haberstroh would now offer evidence in
mitigation. We conclude that Haberstroh has established prejudice under NRS 34.810, and we
affirm the district court's order vacating the death sentence and granting a new penalty
hearing.
Haberstroh's appeal: numerous claims
As a petitioner for post-conviction relief, Haberstroh cannot rely on conclusory claims for
relief but must plead and prove specific facts demonstrating good cause and actual prejudice.
25

Because we have concluded that Haberstroh's death sentence should be vacated, we do not
discuss cognizable claims challenging the validity of his death sentence unless they are
likely to arise again or are based on grounds that would prohibit another death sentence
from being imposed or executed.
__________

23
There are no relevant factual findings relating to this issue other than those of the jury at the original
penalty hearing. Cf. American Fire v. City of North Las Vegas, 109 Nev. 357, 359-60, 849 P.2d 352, 354 (1993)
(reviewing de novo where trial court's interpretation of documents did not depend upon weighing credibility of
conflicting extrinsic evidence).

24
See Leonard v. State, 114 Nev. 1196, 1216, 969 P.2d 288, 300 (1998).

25
NRS 34.810(3); Evans v. State, 117 Nev. 609, 621, 28 P.3d 498, 507 (2001); Bejarano v. Warden, 112
Nev. 1466, 1471, 929 P.2d 922, 925 (1996).
ing the validity of his death sentence unless they are likely to arise again or are based on
grounds that would prohibit another death sentence from being imposed or executed.
Claims not raised before
The following claims were apparently not raised before the instant petition, but cause
exists under the parties' stipulation for Haberstroh to raise them for the first time. We
conclude that he fails to demonstrate prejudice in regard to any of them, however.
[Headnotes 10, 11]
Haberstroh contends that prosecutors argued at the penalty hearing that he was found at the
jail with a metal object that could be sharpened into a shank while they withheld
exculpatory evidence that the object was a digging tool belonging to another inmate. He
argues that this violated Brady v. Maryland.
26
Because the issue is likely to arise again, we
consider whether Haberstroh has established prejudice. As a preliminary point, even though
Haberstroh did not want mitigating evidence presented, he did want his counsel to counter the
State's case regarding this metal object. This claim is nevertheless meritless. Haberstroh has
not shown that the State withheld exculpatory evidence. The record shows that another
inmate admitted to and was disciplined for using the metal object as a digging tool and
slipping it into Haberstroh's cell to avoid detection shortly before Haberstroh was found with
it. But these facts still do not contradict the evidence or argument presented by the State.
Regardless of the source of the metal object, Haberstroh did not discard it or report it to jail
authoritiesrather, he placed it in his pocket. And the evidence that it could have been
fashioned into a shank is undisputed.
[Headnote 12]
Haberstroh asserts that in defending himself he was denied adequate access to legal
materials and was appointed an inexperienced investigator who lacked adequate funding and
access to Haberstroh. Haberstroh does not explain how the lack of legal materials or limited
investigation prejudiced him. This remains a conclusory claim that does not entitle him to any
relief.
[Headnote 13]
Haberstroh claims that the prosecution misled the defense in regard to the appearance of
another suspect. The police eliminated Gary Huber as a suspect in the crimes committed
against Suzette Yake, prosecuted in Haberstroh's first trial but not the second. In the first trial,
a detective testified that Huber did not look like Haberstroh.
__________

26
373 U.S. 83 (1963).
Haberstroh. Haberstroh points out that Huber's sister told police that she would have sworn
that a composite drawing was of her brother. Evidently this drawing appeared in a newspaper
and was intended to depict the suspect in this case, i.e., Haberstroh. Haberstroh therefore
asserts that the prosecution concealed exculpatory evidence that Huber closely resembled
him, in violation of Brady.
27
This evidence was not material: Haberstroh has failed to show
how its disclosure would have made a different result reasonably probable.
[Headnote 14]
Haberstroh contends that the district court erred in excluding evidence that tanning would
not have obscured his tattoos. Because witnesses who identified him as the perpetrator did not
report seeing his tattoos, he says that excluding the evidence violated his due process right to
present a defense. This evidence also was immaterial because two witnesses were certain in
their identifications of Haberstroh. On the night and at the scene of the abduction, one had
spoken with Haberstroh for about two hours and heard his plan to abduct a victim, and the
other had observed Haberstroh for about twenty minutes and saw him abduct the victim.
Haberstroh thus fails to show any prejudice resulting from exclusion of evidence regarding
tanning and his tattoos.
[Headnotes 15, 16]
Haberstroh claims that the trial judge, District Judge Addeliar Guy, was hostile to the
defense in imposing undue court security, including armed guards with a shoot-to-kill order.
Haberstroh also complains that, being popularly elected, district judges cannot be impartial.
Haberstroh cites to the record where Judge Guy denied issuing such an order and lifted a
requirement that the parties stay behind their respective tables in the courtroom. These facts
do not bear out the claim that the judge was hostile to the defense.
[Headnote 17]
Haberstroh contends that his constitutional rights were violated because the district court
failed, and in one instance refused, to have some proceedings reported. He says that the lack
of a complete record prevents him from demonstrating error, but he does not allege what error
or errors might have occurred. Moreover, he improperly cites only his own habeas petition to
support his contention.
28
He thus fails to provide any facts or argument demonstrating
prejudice.
__________

27
Id.

28
NRAP 28(e) (Every assertion in briefs regarding matters in the record shall be supported by a reference to
the page of the transcript or appendix where the matter relied on is to be found. . . . Briefs or memoranda of law
filed in district courts shall not be incorporated by reference in briefs submitted to the Supreme Court.).
[Headnote 18]
Haberstroh claims that he did not receive a transcript of the first trial until shortly before
the second trial. He says this prejudiced him because the trial witnesses changed their
testimony repeatedly. This claim remains conclusory. Haberstroh does not describe a single
instance of such changed testimony or how it prejudiced him.
[Headnote 19]
Haberstroh alleges that the State peremptorily dismissed a prospective juror who was
African-American in violation of Batson v. Kentucky.
29
During jury selection, Haberstroh
asked for an explanation after the prosecutor dismissed a black juror. The district court noted
that another black juror remained on the jury and stated that it saw no improper pattern of
challenges by the prosecution. The prosecutor nevertheless responded. He noted that two or
three black jurors had served in the first trial without challenge, and he explained that he
dismissed the prospective juror for not being as quick on the uptake as I'd like. Haberstroh
calls this explanation facially pretextual and asserts that other, unchallenged jurors
appeared no more quick than the one that was dismissed. This assertion remains
unsupported by reference to any specific facts. Haberstroh fails to show that any Batson
violation occurred.
[Headnote 20]
Haberstroh contends that the district court erred when it did not sua sponte remove a juror
who knew a close friend of the victim and was familiar with the facts of the case. Haberstroh
says that the juror had even discussed the case with the friend, but this is inaccurate. The juror
had only spoken to the friend's mother. The court questioned the juror extensively, and she
stated that she could be fair and impartial. Haberstroh questioned her briefly and did not
challenge her. Haberstroh invokes his right to an impartial jury and cites the United States
and Nevada Constitutions, but he offers no specific authority or argument for his contention
that the district court had a duty to strike the juror despite Haberstroh's own decision to allow
her to serve. Contentions unsupported by specific argument or authority should be summarily
rejected on appeal.
30

[Headnotes 21, 22]
Haberstroh claims that the deadly weapon enhancement was improperly applied to his
noncapital sentences because the jury instruction defining deadly weapon was
unconstitutionally vague and there was no evidence that he used a deadly weapon. This claim
has no merit. An eyewitness testified that shortly before the crimes Haberstroh displayed a
handgun and a ligature and expressed a plan to use them to abduct a victim.
__________

29
476 U.S. 79 (1986).

30
Mazzan v. Warden, 116 Nev. 48, 75, 993 P.2d 25, 42 (2000).
crimes Haberstroh displayed a handgun and a ligature and expressed a plan to use them to
abduct a victim. NRS 193.165(1) provides in pertinent part that any person who uses a
firearm or other deadly weapon . . . in the commission of a crime shall be punished by an
additional, consecutive prison term equal to the term prescribed for the crime.
31
This court
has held that the Legislature has attributed to firearms a per se deadly status; proof of a
firearm's deadly capabilities is not required.
32
And the jury was so instructed. Even
assuming that the jury instruction was otherwise vague in its general definition of deadly
weapon, given the evidence that Haberstroh used a firearm, we conclude that he was not
prejudiced.
[Headnotes 23-25]
Haberstroh asserts that the death penalty in Nevada is applied in an arbitrary and
capricious manner, permitting juries an unlimited ability to impose a death sentence,
regardless of the circumstances of the case. This claim remains completely conclusory
without any specific facts or argument to support it. Haberstroh contends that the death
penalty is cruel and unusual punishment under any circumstances and especially in his case
because of his mental impairments. He also contends that his confinement on death row for
more than fourteen years raises a presumption of inhuman or degrading treatment. This court
has consistently rejected such arguments.
33
Haberstroh claims that lethal injection involves
the unnecessary infliction of pain, in violation of the Eighth and Fourteenth Amendment
prohibition against the gratuitous infliction of suffering. However, he fails to provide any
facts demonstrating that pain inflicted during lethal injection is unnecessary or gratuitous.
Claims already decided by this court
[Headnotes 26-28]
This court has already decided on the merits some of the grounds for relief raised in the
instant petition. A court must dismiss a successive habeas petition in regard to such grounds,
unless the petitioner proves specific facts that demonstrate good cause for presenting the
claims again and actual prejudice.
34
The doctrine of the law of the case also precludes
reconsideration of these claims. The law of a first appeal is the law of the case in all later
appeals in which the facts are substantially the same,
__________

31
The pertinent statutory language was the same at the time of Haberstroh's crimes. See 1981 Nev. Stat., ch.
780, 1, at 2050.

32
McIntyre v. State, 104 Nev. 622, 623, 764 P.2d 482, 483 (1988).

33
See, e.g., Colwell v. State, 112 Nev. 807, 814-15, 919 P.2d 403, 408 (1996); Flanagan v. State, 112 Nev.
1409, 1423, 930 P.2d 691, 700 (1996) (rejecting contention that lengthy confinement before imposition of the
death penalty was cruel and unusual punishment).

34
NRS 34.810(2), (3).
in which the facts are substantially the same, and that law cannot be avoided by more detailed
and precisely focused argument made after reflecting upon previous proceedings.
35

Haberstroh complains that the prosecutor committed misconduct at the trial. However, in
his direct appeal Haberstroh claimed that the prosecutor committed misconduct in the penalty
phase, and this court rejected the claim.
36
This is now the law of the case. The parties
stipulated that this issue should be considered on its merits, but that does not alter the force of
the law of the case established by our prior decision. Haberstroh also contends that his
conviction must be reversed because he was forced to choose between proceeding to trial
with unprepared counsel or representing himself. This court has also considered and rejected
this claim.
37

In addition, Haberstroh stipulated below that certain claims (numbered 4-7, 9, 12, 13, 16,
19-21, 23-26, 33, and 34 in his district court habeas petition) already have been fairly
presented to this court and rejected on the merits. Such a stipulation of fact is valid.
38
Haberstroh raises some of these claims on appeal
39
but has not shown good cause for
presenting them again.
__________

35
Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).

36
Haberstroh I, 105 Nev. 739, 782 P.2d 1343.

37
See Haberstroh II, 109 Nev. at 26-27, 846 P.2d at 293.

38
See Ahlswede, 87 Nev. at 452, 488 P.2d at 910.

39
The following claims raised in this appeal were presented to the district court and are subject to the
stipulation. Claim No. 5 in the district court: Haberstroh received ineffective assistance of counsel on appeal.
No. 13: placing the jury in the custody of a key State witness at trial violated due process. No. 16: identifications
of Haberstroh were produced by impermissibly suggestive means and should have been excluded. No. 19: the
jury instruction on reasonable doubt was unconstitutional. No. 20: the instruction on equal and exact justice
was unconstitutional. No. 21: the instructions improperly defined the elements of the capital offense; the
instruction on implied malice imposed a mandatory presumption; and the instructions on felony murder failed to
make clear that the felony cannot be incidental to the homicide. No. 23: the application of the aggravating
circumstance that Haberstroh was previously convicted of a felony involving the use or threat of violence was
unconstitutional. No. 24: the trial court failed to instruct the jury that each juror had to determine individually
whether any mitigating circumstances existed; the court instructed the jury on commutation even though
Haberstroh's sentence could not be commuted to a sentence allowing parole; the court gave the jury a misleading
antisympathy instruction; the instructions failed to define the elements of the felony-murder aggravating
circumstances or to require the jury to find those circumstances independently of their guilt phase findings; and
the court gave the jury an incorrect verdict form on the weighing of aggravating versus mitigating circumstances
and intruded into the jury's factfinding in attempting to correct the mistake. No. 25: the use of Haberstroh's prior
convictions against him in the penalty phase constituted double jeopardy and violated his right to a fair
proceeding. Nos. 26 and 33: the use of three felonies to support a felony-murder conviction as well as
aggravating circumstances was unconstitutional. No. 34: Haberstroh's inability to compensate a witness in return
for testimony, while the State is able to do so, violated due process and equal protection guarantees.
not shown good cause for presenting them again. Therefore, they also are precluded by the
law of the case as well as procedurally barred.
40

CONCLUSION
The jury's finding of depravity of mind as an aggravating circumstance was improper
because there was no jury instruction limiting the term in a constitutional manner. This error
was not harmless beyond a reasonable doubt. We therefore affirm the district court's order
vacating Haberstroh's death sentence and granting a new penalty hearing. We also affirm the
order insofar as it otherwise upholds Haberstroh's conviction.
Agosti, C. J., Shearing and Maupin, JJ., concur.
Leavitt, J., with whom Becker and Gibbons, JJ., agree, concurring in part and dissenting in
part:
I concur with the majority opinion in affirming the decision of the district court to uphold
Haberstroh's conviction, in admonishing Haberstroh's attorneys for filing an appendix
containing irrelevant material, and in disapproving stipulations regarding procedural default
rules. I dissent from the majority's affirmance of the district court's decision to vacate the
death sentence and to grant a new penalty hearing. Although the jury instruction on depravity
of mind was inadequate and the aggravating circumstance is invalid, four valid aggravators
remain, and there is no mitigating evidence. I therefore conclude that the error was harmless
and that this court should uphold the death sentence.
The majority is correct that de novo review is appropriate because there are no relevant
factual findings by the district court. And despite the district court's concern about the
prosecutor's final argument, independent review of the record shows that the prosecutor did
not emphasize depravity of mind more than any of the other four aggravators. Moreover, the
prosecutor's comments served a dual purpose. The prosecutor was not simply arguing that the
State had proven depravity; he was also arguing why the aggravating circumstances were
not outweighed by any mitigating circumstances and that death was the appropriate penalty.
At various points in his argument, the prosecutor used terms found in the instruction on
depravity of mind, such as vile, wanton, perverted, indifferent, and evil. The use of
this language, for these purposes, was not per se improper. Furthermore, the prosecutor did
not place inordinate stress on depravity of mind in comparison to the other aggravating
circumstances or other considerations.
__________

40
Hall, 91 Nev. at 315-16, 535 P.2d at 798-99; NRS 34.726(1); NRS 34.810.
tions. In his opening final argument, the prosecutor discussed a number of points: the jury's
responsibility for deciding the sentence in a capital case; the framework for making that
decision and the five alleged aggravators generally; the three felony aggravators specifically;
the character of Haberstroh and the circumstances of the crime; his prior crimes and use of a
shank; his recent possession of a metal object which could be fashioned into a shank; and the
sentencing factors of rehabilitation, deterrence, protection of society, and punishment. The
prosecutor referred to the depraved nature of the murder, but did not suggest that jurors
should consider that factor to be of primary importance. In his closing argument, the
prosecutor again addressed a number of points: the general framework for deciding on a
sentence; the defense argument that there was still a chance that Haberstroh could ultimately
be proved innocent; the credibility of the State's witnesses and the strength of the State's case
in the guilt phase; the victim; the lack of mitigating circumstances and the existence of all
five aggravating circumstances; and the appropriateness of death as the penalty. The record
does not show that the prosecutor's argument sought or worked to convince the jurors to base
their sentence particularly on depravity of mind.
Four valid aggravators remain in this case. The murder was committed: during the
commission of robbery, during the commission of first-degree kidnapping, during the
commission of sexual assault, and by a person who was previously convicted of a felony
involving the use or threat of violence. In reweighing the valid aggravating circumstances, we
have no mitigating circumstances to counter them. The balance overwhelmingly favors death,
as this court's decisions in similar cases indicate.
1
Haberstroh chose not to present mitigating
evidence, and his belated offer of such evidence is of no consequence to the decision before
this court.
2
This murder was unprovoked and extremely callous and brutal. The failure to
give a limiting instruction on depravity of mind was harmless error
__________

1
See Witter v. State, 112 Nev. 908, 929-30, 921 P.2d 886, 900-01 (1996) (concluding that four remaining
aggravators clearly outweighed mitigating evidence), receded from on other grounds by Byford v. State, 116
Nev. 215, 994 P.2d 700 (2000); Leslie v. State, 114 Nev. 8, 22-23, 952 P.2d 966, 976 (1998) (concluding that
three remaining aggravating circumstances far out-weighed single mitigating circumstance), overruled on other
grounds by Leslie v. Warden, 118 Nev. 773, 59 P.3d 440 (2002); Canape v. State, 109 Nev. 864, 882, 859 P.2d
1023, 1035 (1993) (concluding that invalid aggravator was harmless error where three aggravators remained and
there were no mitigating circumstances).

2
Cf. Kirksey v. State, 112 Nev. 980, 995, 923 P.2d 1102, 1112 (1996) ([A] defendant may waive the right to
present mitigating evidence and defense counsel's acquiescence to such a waiver does not constitute ineffective
assistance of counsel.).
harmless error: I have no reasonable doubt that the jury would have returned a death sentence
even without the invalid aggravator. Haberstroh has failed to establish prejudice under NRS
34.810, and this court should reverse the district court's order on this point.
____________
119 Nev. 192, 192 (2003) Nittinger v. Holman
JOHN NITTINGER; DALE ROEKER; ROBERT MARTINEZ; COAST HOTELS AND
CASINOS, INC., fka COAST OPERATING COMPANY, and GOLD COAST
HOTEL AND CASINO, a Nevada Limited Partnership, dba GOLD COAST HOTEL
AND CASINO; GAUGHAN-HERBST, LIMITED, and GAUGHAN-HERBST, INC.,
Dissolved and Merged Into COAST RESORTS, INC., a Nevada Corporation,
Appellants, v. DEDRIC HOLMAN and CHRISTINA EDWARDS, Respondents.
No. 34917
May 30, 2003 69 P.3d 688
Appeal from a district court judgment entered upon a jury verdict and an order denying a
motion for a new trial. Eighth Judicial District Court, Clark County; Gary L. Redmon, Judge.
Patrons sued corporation that operated casino for battery and false imprisonment in
connection with events that occurred after security guards asked patrons to leave. Pursuant to
jury verdict, the district court entered judgment for patrons that included compensatory and
punitive damages. Corporation appealed. The supreme court, Shearing, J., held that: (1) jury
could find that security supervisor ratified beating and other tortious conduct by security
guards against patrons, thus subjecting corporation to liability for compensatory damages; but
(2) supervisor was not a managerial agent of corporation, and thus his failure to stop tortious
conduct against patrons did not subject corporation to liability for punitive damages.
Rose, J., with whom Leavitt and Maupin, JJ., agreed, dissented in part.
Beckley Singleton, Chtd., and Daniel F. Polsenberg, Las Vegas, for Appellants.
Leo P. Flangas, Las Vegas, for Respondents.
1. Corporations.
Jury could find, in battery and false imprisonment action by patrons against corporation that operated casino in connection
with events that occurred after security guards asked patrons to leave, that security supervisor ratified beating and other tortious
conduct by guards against patrons, thus subjecting corporation to liability for compensatory damages. There was evidence that
security supervisor was responsible for implementing three-tiered, progressive-force policy, that he was present during much of the
guards' tortious conduct, and that he failed to stop guards' actions.
2. Corporations.
Security supervisor at casino was not managerial agent of corporation that operated casino, and thus his failure to stop a
beating and other tortious conduct carried out by security guards against patrons who had been asked to leave did not subject
corporation to liability for punitive damages on battery and false imprisonment claims. The evidence did not indicate that
supervisor had authority to deviate from corporation's three-tiered progressive-force policy or that he had any discretion or could
exercise his independent judgment in implementing policy. Restatement (Second) of Torts 909.
OPINION
This is an appeal from a judgment on a jury verdict in an action for battery and false
imprisonment awarding compensatory and punitive damages and from the denial of a motion
for a new trial. Appellants' principal argument is that the corporation is not liable for punitive
damages based on the actions of its security officers. We agree, but affirm the remainder of
the judgment and the order denying a new trial.
FACTS
In the early morning hours of February 19, 1994, respondents, Dedric Holman, an
African-American man, and Christina Edwards, a Caucasian woman, went gambling at the
Gold Coast Hotel and Casino, operated by appellant, Coast Hotels and Casinos, Inc. (Gold
Coast). Edwards separated from Holman. A short time later, a casino employee asked to see
her identification, as she appeared to be underage. Edwards had forgotten her identification at
work and agreed to leave the casino to retrieve it. Edwards found Holman and asked him to
drive her to her workplace. Holman said he would do so after one more hand of blackjack.
Appellant John Nittinger, a security guard, approached and asked Edwards for her
identification. According to Edwards and Holman, when Edwards explained that she was
making arrangements to get it, Nittinger, using profanity, told her to leave immediately.
Holman, when Edwards explained that she was making arrangements to get it, Nittinger,
using profanity, told her to leave immediately. Holman and Nittinger started to argue, and
Nittinger repeatedly told Holman and Edwards to leave the casino. Holman took his chips and
proceeded toward the cashier. A physical confrontation ensued between Nittinger and
Holman.
Appellant Dale Roeker, another security guard, subdued Edwards and frisked her. Edwards
testified that Roeker patted down her entire body, including her breasts and crotch. Edwards
testified that Roeker also made derogatory comments about her dating Holman. Roeker and
Rodney Wilson, another guard, escorted Edwards outside, placed her in handcuffs, and
waited for the police.
Meanwhile, Holman and Nittinger were involved in a fistfight. Holman then tried to run,
with security officers in pursuit. A casino employee tripped Holman. Nittinger, appellant
Robert Martinez, and another guard held Holman on the ground. Holman testified that the
guards then punched, kicked, and beat him with nightsticks while Sergeant Michael Malloy,
the security shift supervisor, watched.
Holman testified that the guards then hog-tied him and carried him into a truck, where
Martinez said, If you think we beat your black ass now, wait until we get you around to the
back. The guards drove Holman to a security office where, Holman testified, they continued
to beat him. Holman remained in the office until the police arrived approximately three hours
later. Holman spit up a substantial amount of blood while in the security office. Holman
testified that the guards also stole money from his wallet and throughout the incident used
racial slurs, including nigger. Malloy was present during part of this incident.
Independent witnesses at the casino testified that Holman was beaten after he was
handcuffed. Holman also presented medical testimony as to the severity of his injuries. The
guards testified, denying the beating, the sexual touching, and the racial comments.
Richard Whitaker, the Gold Coast's director of security, testified concerning the Gold
Coast's three-tiered, progressive-force policy. First, a guard is to ask a troublesome customer
to leave. If the customer refuses, the guards are to lead him by the arm toward the exit. If the
customer becomes violent, the guards are to force him to the floor and lie atop him until he
ceases struggling. At this point, the guards are to handcuff the customer and lead him to a
security area, where he is to remain until police arrive. The Gold Coast charged Malloy, as
security supervisor, with implementing this policy and ensuring that the guards followed it.
Although Malloy reported to higher-ranking security personnel, his superiors were not at the
casino the night of the incident. Thus, Malloy had control over all security operations in the
casino at the time.
The jury awarded Holman $178,000 in compensatory damages against Nittinger, Martinez,
and the Gold Coast, $1,500 in punitive damages against Nittinger, $1,200 in punitive
damages against Martinez, and $279,000 in punitive damages against the Gold Coast. The
jury awarded Edwards $20,000 in compensatory damages against Roeker and the Gold Coast,
$1,000 in punitive damages against Roeker, and $93,000 in punitive damages against the
Gold Coast. The appellants moved for a new trial, which the district court denied. They now
appeal the judgment on the jury verdict and the order denying their motion for a new trial.
DISCUSSION
Appellants' principal arguments relate to the award of punitive damages against the Gold
Coast. The district court instructed the jury that it could find the Gold Coast liable for
punitive damages if a managerial agent authorized or ratified the guards' conduct, and if
malice was proven by clear and convincing evidence. The respondents argue that Malloy,
who was in charge of security operations at the time of the incident, was a managerial agent.
The Gold Coast argues that Malloy was not a managerial agent so as to subject the Gold
Coast to punitive damages based on his conduct.
In Smith's Food & Drug Centers v. Bellegarde,
1
this court adopted the standard set forth
in Restatement (Second) of Torts 909 (1979). This section provides:
Punitive damages can properly be awarded against a master or other principal
because of an act by an agent if, but only if,
(a) the principal or a managerial agent authorized the doing and the manner of the
act, or
(b) the agent was unfit and the principal or a managerial agent was reckless in
employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of
employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.
2

No evidence was presented to establish that subsections (a), (b), or (c) are implicated in
this case. Accordingly, the Gold Coast's liability for punitive damages depends upon Malloy's
being a managerial agent under subsection (d). Thus, the issue is whether, on the night in
question, Malloy had the authority to ratify or approve the acts of the security guards.
__________

1
114 Nev. 602, 610-11, 958 P.2d 1208, 1214 (1998).

2
Restatement (Second) of Torts 909 (1979). This section is identical to section 217C of the Restatement
(Second) of Agency (1958).
The philosophy behind the Restatement position is that a corporation should not be liable
for punitive damages for the acts of its agents absent corporate culpability. However,
subsection (d) provides an exception. Comment b to section 909 states the reason for
subsection (d) as follows:
Although there has been no fault on the part of a corporation or other employer, if a
person acting in a managerial capacity either does an outrageous act or approves of the
act by a subordinate, the imposition of punitive damages upon the employer serves as a
deterrent to the employment of unfit persons for important positions.
The Restatement does not define a managerial agent. Neither the comment nor the
illustrations under section 909 clarify whether a person in charge of security at a business
would be considered a managerial agent. In Egan v. Mutual of Omaha Insurance Co., the
Supreme Court of California stated:
The determination whether employees act in a managerial capacity . . . does not
necessarily hinge on their level in the corporate hierarchy. Rather, the critical inquiry
is the degree of discretion the employees possess in making decisions that will
ultimately determine corporate policy.
3

Other cases that have considered who qualifies as a managerial agent have followed Egan and
have emphasized the discretion or policy-making authority that the agent is granted. In
Albuquerque Concrete v. Pan Am Services, the New Mexico Supreme Court stated:
A key in determining whether an agent acts in a managerial capacity is to look at the
nature of what the agent is authorized to do by the principal and whether the individual
has discretion regarding both what is done and how it is done. Job titles, in and of
themselves, are not necessarily dispositive.
4

The judge in Steinhoff v. Upriver Restaurant Joint Venture summed up his conclusion
regarding a managerial agent as follows:
Having reviewed many cases interpreting 909 this court believes the following
quotation exemplifies the correct criteria:
__________

3
620 P.2d 141, 148 (Cal. 1979).

4
879 P.2d 772, 777 (N.M. 1994); see also Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 284
(5th Cir. 1999).
The fact that [an employee] described herself as a manager' is not evidence of the
type of managerial capacity that the law requires to charge an employer punitively with
the conduct of a managerial agent. For such to occur, the managerial agent must be of
sufficient stature and authority to have some control and discretion and independent
judgment over a certain area of [the] business with some power to set policy for the
company.
5

In Bellegarde, we upheld an award of punitive damages when an acting store manager
oversaw security guards' tortious mistreatment of a suspected shoplifter.
6
We emphasized the
manager's lack of training and the lack of a policy regarding shoplifters.
7
In other words, the
corporation was held liable because the corporation had given the acting store manager total
discretion to determine what is done and how it is done,
8
even though she was not a part of
the management that ordinarily would have determined corporate policy.
[Headnote 1]
In this case, the Gold Coast presented evidence of its progressive-force policy established
by its management regarding the treatment of patrons. Clearly, the jury did not believe that
the policy was followed. Substantial evidence supports that finding, including testimony of
other Gold Coast patrons. Malloy was charged with responsibility for security in the casino at
the time of the incident, implementing the Gold Coast's progressive-force policy, and
ensuring that the guards obeyed it. Malloy was apparently present during much of the guards'
tortious and malicious misconduct. Although Malloy testified that he did not see any
misconduct, the jury could choose not to believe him and to believe the other witnesses.
Malloy had the power and responsibility to stop the beating and other tortious conduct, but
did not do so. The jury could find, under these facts, that Malloy ratified or approved the
conduct. Since the Gold Coast had charged him with this responsibility that evening and he
did not fulfill it, the hotel can be held liable for the compensatory damages to Holman and
Edwards. However, for purposes of imposing punitive damages on the Gold Coast, Malloy
must be a managerial agent, which the evidence does not establish.
__________

5
117 F. Supp. 2d 598, 604-05 (E.D. Ky. 2000) (alteration in original) (quoting Fitzgerald v. Mountain States
Tel. & Tel. Co., 46 F.3d 1034, 1045 n.24 (10th Cir.) (emphasis added) (citations omitted), vacated on rehearing,
60 F.3d 837 (10th Cir. 1995)).

6
114 Nev. at 611, 958 P.2d at 1214.

7
Id.

8
Id.
the Gold Coast, Malloy must be a managerial agent, which the evidence does not establish.
[Headnote 2]
There is no evidence that Malloy had the authority to deviate from the established policy
or that he had any discretion or could exercise his independent judgment. The evidence
indicates that he merely had the authority to implement the Gold Coast's policy and to see that
the security guards enforced it. Therefore, he would not be classified as a managerial agent
under section 909(d) of the Restatement (Second) of Torts so as to subject the Gold Coast to
liability for punitive damages for his actions or inactions on the night in question.
9

The fact that Malloy was a supervisor was not enough to grant him that status. In White v.
Ultramar, Inc., the California Supreme Court clarified the Egan definition of managerial
agent:
If we equate mere supervisory status with managing agent status, we will create a rule
where corporate employers are liable for punitive damages in most employment cases.
Such a rule would ignore Egan's sound reasoning . . . and end our emphasis on the
limited role and deterrent purpose of punitive damages awards: to punish wrongdoers
and thereby deter the commission of wrongful acts.
10

We reverse the portion of the judgment imposing punitive damages on the Gold Coast and
affirm the remainder of the judgment and the order denying a new trial.
11
This case is
remanded to the district court for amendment of the judgment and recalculation of interest.
Agosti, C. J., Becker and Gibbons, JJ., concur.
Rose, J., with whom Leavitt and Maupin, JJ., agree, concurring in part and dissenting in
part:
I join with the majority's affirmance of the general damages verdict, but I believe that the
majority defines the term managerial agent, as used in the Restatement (Second) of Torts
909 (1979), too narrowly; and by doing so, it improperly strikes the punitive damages award.
__________

9
None of the cases cited by the dissent supports the view that just because an agent is a supervisor, the agent
is a managerial agent. Both Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 669 (Tex. 1990), and Albuquerque
Concrete v. Pan Am Services, 879 P.2d 772, 778 (N.M. 1994), emphasize the discretion and authority that the
agent had within the company. People v. East-West University, Inc., is a criminal case and has no applicability
here. 516 N.E.2d 482 (Ill. App. Ct. 1987).

10
981 P.2d 944, 953 (Cal. 1999) (quoting Neal v. Farmers Ins. Exchange, 582 P.2d 980, 990 n.13 (Cal.
1978)).

11
We conclude that the other issues raised by the appellants have no merit.
The majority correctly references section 909 and its comment, but then declines to follow
the general statements therein. Comment b states that a person acting in a managerial capacity
can expose the corporation to punitive damages for malicious or outrageous acts if he or she
approves of the act by a subordinate. There is ample evidence in the record to establish that
Malloy approved the heinous acts by simply standing by and permitting the violent conduct
by the employees he was supervising. Nowhere in section 909 or the comment does it state
that a managerial agent must have policy-making authority or discretion to make ad hoc
policy or corporate decisions.
Obviously, a manager who has the authority to make policy decisions and discretion to
follow or abrogate corporate rules would be someone who is a managerial agent, but it does
not follow that managers and supervisors who do not have this power or discretion cannot
also be considered managerial agents.
Several courts have interpreted the term managerial agent to logically include those
employees who manage or are in supervisory positions and are charged with enforcing a
corporation's rules and policies. For example, in Ramos v. Frito-Lay, Inc.,
1
the Texas
Supreme Court concluded that an employee with the title of district sales manager and
supervisory authority over twelve employees was employed in a managerial capacity; and
thus, the punitive damages award against Frito-Lay was proper. Also, in Albuquerque
Concrete v. Pan Am Services,
2
the Supreme Court of New Mexico concluded that when a
corporate agent with managerial capacity acts on behalf of the corporation, pursuant to the
theoretical underpinnings of the Restatement rule of managerial capacity, his acts are the acts
of the corporation; the corporation has participated. The court observed that managerial
agents could be those who enforce or effectuate corporate policies and rules.
3
Moreover, in
People v. East-West University, Inc.,
4
the Illinois Court of Appeals noted that one who has
supervision of subordinate employees in a managerial capacity should be included in the
definition of managerial agent.
This interpretation of the term managerial agent is in accordance with our prior decision
in Smith's Food & Drug Centers v. Bellegarde, where we observed:
In determining whether an agent acts in a managerial capacity, [the key] is to look to
what the individual is authorized to do by the principal and to whether the agent has
discretion as to what is done and how it is done.
__________

1
784 S.W.2d 667, 669 (Tex. 1990).

2
879 P.2d 772, 778 (N.M. 1994).

3
Id. at 777 (noting that a managerial employee is defined as one who formulates, determines, and effectuates
his employer's policies).

4
516 N.E.2d 482, 485 (Ill. App. Ct. 1987).
as to what is done and how it is done. Job titles . . . should be of little importance.
5

Thus, a managerial agent can be a corporate employee who is in a supervisory position, as
is the case here. Malloy was the acting supervisor of security employees when the incidents
with Holman and Edwards occurred and was in charge of supervising the security employees
and enforcing the corporation's progressive-force policy. He obviously had substantial
discretion in enforcing corporate policy. Malloy was present during much of the security
guards' tortious misconduct and had the power and responsibility to stop it. Given his
supervisory position and his power to enforce corporate policy, Malloy should be considered
a managerial agent for the Gold Coast.
The majority narrowly construes the term managerial agent by requiring that he or she
possess policy-making authority or ad hoc discretion to make corporate rules and decisions.
This restricts the imposition of punitive damages to instances where officers, directors, and a
few upper-level executives are involved, assuming these corporate actors even have such
authority. The majority cites with approval Albuquerque Concrete, which disapproved of the
very restriction the majority now adopts:
In the modern world of multinational corporations, corporate control must be delegated
to managing agents who may not possess the requisite upper-level executive authority
traditionally considered necessary to trigger imposition of corporate liability for
punitive damages. If we were to adopt the position that misconduct by managing agents
who actually control daily operations is not sufficient to trigger corporate punitive
damages, large corporations that routinely delegate managerial authority to shape
corporate policy by making important corporate decisions could unfairly escape liability
for punitive damages by virtue of their size.
6

The practical effect of the majority decision will be to insulate corporations from punitive
damages for the vast majority of acts of malice or outrageous behavior committed by their
supervisors and managers. This is bad law and poor public policy. At a time when we have
seen many illegal and outrageous acts committed by corporate America, it is not appropriate
to reduce corporate responsibility for such egregious action.
Therefore, I respectfully concur in part and dissent in part, and I would affirm the punitive
damages award against the Gold Coast.
__________

5
114 Nev. 602, 611, 958 P.2d 1208, 1214 (1998) (quoting J. Ghiardi & J. Kirchner, Punitive Damages Law
and Practice, ch. 24, at 15 (1987)).

6
879 P.2d at 778 (internal citation omitted).
____________
119 Nev. 201, 201 (2003) Buchanan v. State
DENISE DIANNA BUCHANAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34866
May 30, 2003 69 P.3d 694
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of
first-degree murder. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
The supreme court, Shearing, J., held that: (1) sufficient evidence supported convictions;
(2) defendant's right to due process was not violated by State's failure to gather alleged
exculpatory evidence consisting of various tissues from her three children; and (3)
sufficient evidence was presented to establish premeditation and deliberation, such that
giving of Kazalyn instruction on premeditation and deliberation, which was subsequently
disapproved, did not require reversal of convictions.
Affirmed.
Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public Defender,
and Kathleen M. O'Leary, Deputy Public Defender, Washoe County, for Appellant.
and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.
1. Homicide.
Sufficient evidence supported defendant's convictions for two counts of first-degree murder of two of her children. Opinions
of medical experts indicated little agreement as to cause of children's death, but, based on experts alone, there was substantial
evidence from which jury could conclude that defendant killed children. Specifically, the defendant was unemotional about deaths,
she had been physically and emotionally unavailable to children, and she abused them, defendant told contradictory stories of
events leading to child's death, both of which were inconsistent with physical record on apnea monitor, and children had medical
problems while in her care, but none when they were in others' care.
2. Homicide.
In a murder case, the state is required to prove (1) the fact of death, and (2) the criminal agency of another as the cause of the
death.
3. Criminal Law.
To sustain homicide conviction, relevant inquiry for reviewing court is whether, after viewing evidence in light most favorable
to prosecution, any rational trier of fact could have concluded beyond reasonable doubt that victim's death was caused by a
criminal agency.
4. Criminal Law.
It is for the jury to determine what weight and credibility to give various testimony.
5. Criminal Law.
Circumstantial evidence alone can certainly sustain a criminal conviction. However, to be sufficient, all the circumstances
taken together must exclude to a moral certainty every hypothesis but the single one of guilt.
6. Constitutional Law; Criminal Law.
Murder defendant's right to due process was not violated by State's failure to gather alleged exculpatory evidence, consisting
of various tissues from her three children. There was no evidence of bad faith on part of law enforcement, given that murder
investigation did not start until third child died, and thus any exculpatory value from tissue from first two child victims would not
have been apparent to law enforcement. Defendant hoped to prove that deaths resulted from metabolic or hereditary kidney
disease, but defendant failed to show that lost evidence was exculpatory, and hereditary tests could have been performed by
defense on surviving family members if defendant really thought it likely that exculpatory evidence would have been produced.
U.S. Const. amend. 14.
7. Criminal Law.
Burden of demonstrating prejudice from State's loss or destruction of evidence lies with defendant. It is not sufficient that the
defendant shows merely a hoped-for conclusion from examination of the lost evidence or that it would be helpful in preparing a
defense.
8. Criminal Law.
Sufficient evidence was presented to establish premeditation and deliberation in murder prosecution, such that giving of
Kazalyn instruction on premeditation and deliberation, which was subsequently disapproved, did not require reversal of
convictions. The testimony regarding how long it took to suffocate an infant provided sufficient evidence of deliberation, and two
children being killed years apart was sufficient evidence to infer premeditation.
OPINION
Appellant Denise Buchanan was charged with three counts of first-degree murder in the
deaths of her three infant sons. After a four-week trial with 100 witnesses, Buchanan was
convicted of two counts of first-degree murder, and sentenced to two consecutive terms of
life in prison with the possibility of parole. Buchanan contends that her judgment of
conviction should be overturned because: (1) there is insufficient evidence to support her
judgment of conviction; (2) she was prejudiced by the State's failure to gather evidence and
by the State's destruction of evidence; (3) the jury instructions regarding premeditation,
deliberation, and reasonable doubt constituted reversible error; (4) the district court erred by
allowing the State to present rebuttal evidence; and (5) the district court erred by failing to
instruct the jury on an advisory verdict of acquittal. We find that Buchanan's allegations are
without merit. Therefore, we affirm the judgment of conviction.
FACTS
In 1987, Denise Buchanan and Francisco Leal moved in together. Later that same year,
Buchanan gave birth to her first child, Joseph. Joseph was not Leal's child, but Leal raised
him as his own son. Buchanan became pregnant again shortly after Joseph's birth. In 1988,
Buchanan gave birth to Joshua, her second son, her first with Leal.
Leal testified that the couple experienced financial pressure to the point that they separated
while Buchanan was pregnant with Joshua. Later, after Joshua was born, they moved back in
together. Leal testified that he could see that Buchanan was disappointed with Joshua when
he was brought to her in the hospital. She wanted a girl. Joshua was in the hospital several
times during his infancy. Leal and many other witnesses testified that Buchanan had a close,
loving relationship with Joseph, but she was very distant and always seemed irritated with
Joshua. She favored Joseph in every way, even in providing food. Teachers testified that
Joshua would come to school in first grade without having been provided any breakfast. Leal
testified that Buchanan favored Joseph over Joshua such that Jo[seph] could do no wrong,
and Joshua could do no right.
Within weeks after Joshua's birth, Buchanan became pregnant again. Jeremiah, Buchanan's
third son, was born in 1989. Jeremiah died at four months of age. The police officer who
responded to the scene testified that Buchanan told him that she had found Jeremiah that
morning in his crib with blankets over his head. Buchanan told the officer that Jeremiah
normally awoke around 8 a.m. or 9 a.m. But the officer was not called to the scene until
approximately 10:20 a.m. The officer testified that because of the condition of the body and
the appearance of a brown and white substance around the mouth and nose, he suspected the
child had vomited and aspirated.
Dr. Terrance Young, the pathologist who performed the autopsy on Jeremiah, attributed
the cause of death to Sudden Infant Death Syndrome (SIDS). Dr. Young drew this conclusion
because he could not discern another reasonable cause of death. Dr. Young testified that he
did not detect any outward physical signs that would help explain Jeremiah's death, nor did he
see any evidence that Jeremiah's death was caused by another person.
Leal testified that Buchanan's pregnancies were extremely difficult, with constant sickness
and vomiting. There were continuing financial pressures and Leal was, therefore, working
long hours, sometimes at three jobs. He did not participate in the household or child care;
Buchanan was responsible for that. Leal said he basically came home to eat and sleep. Leal
testified that Buchanan said she was always tired and very stressed with always being
pregnant. Within a twenty-four-month period, she had had three pregnancies.
Buchanan became pregnant with her fourth son, John, in 1990. Because Jeremiah's death
had been ruled a SIDS death, John was brought home with an apnea monitor.
1
John died at
almost three months of age. Leal testified that on the morning John died, Buchanan told him
she was awakened by the sound of the apnea monitor. She called Leal and he performed CPR
on John. The paramedics were summoned, but attempts to revive John were futile. The police
officer who responded to the call testified that Leal was distraught, but Buchanan was very
calm. Buchanan told the police officer that the apnea monitor alarm had sounded around 5
a.m., and she found John breathing properly. She reset the monitor, checked John, and turned
the monitor off. Buchanan said that as soon as she turned the monitor off, John stopped
breathing. A paramedic testified that Buchanan told him, My child is a victim of SIDS,
rather than the usual, My child has stopped breathing. The paramedic testified that it was
unusual that someone would use medical terminology.
Dr. Ellen Clark, a board-certified anatomic, clinical, and forensic pathologist, conducted
the autopsy on John. Dr. Clark testified that upon examination, John showed petechiae of the
lungs, which are capillary bursts beneath the tissue surface of the lungs. Dr. Clark testified
that although these commonly accompany an asphyxial injury or suffocation, they are not
infrequently found in SIDS cases. Dr. Clark also testified that she found bleeding on the
thymus, but that could have been caused by the vigorous attempts at resuscitation. A
toxicology screen was done to test for drugs in John's system. The results were negative. Dr.
Clark testified that the bladder washings utilized in the toxicology test were completely
consumed by that test. Dr. Clark listed the cause of John's death as undetermined. Dr. Clark
testified that this conclusion was based, in part, on her knowledge that a previous SIDS death
had occurred in this same family.
In 1992, Buchanan became pregnant again. Leal testified that Buchanan stated she did not
want to be pregnant, but she wished for a girl. Leal testified that Buchanan expressed her
desire to join a SIDS group's counseling session, but he discouraged her. Jacob, Buchanan's
fifth son, was born in July 1993. Leal testified that although Jacob was a healthy baby, Jacob
was also placed on an apnea monitor. Leal testified that as time progressed, Jacob was
hospitalized several times for various ailments, including apnea. Jacob died just a few days
before his first birthday. Leal testified that this was significant because he and Buchanan had
been told by Jacob's pediatrician that if Jacob lived past his first birthday, he would no longer
be at risk of succumbing to SIDS.
__________

1
An apnea monitor is a device that monitors the child's breathing and heart rate. An alarm is activated on the
monitor when either the child's heart rate or breathing falls below a certain level.
The circumstances surrounding Jacob's death were described by Buchanan in various
ways. Leal testified that Buchanan told him that she had turned off Jacob's apnea monitor in
order to give Jacob some medicine, that the dog had begun barking in the backyard, and she
had left Jacob to determine why the dog was barking. When she returned, Jacob had stopped
breathing and was turning blue. Leal testified that Buchanan had told him she sent Joseph
next door to summon their neighbor. The police officer who responded to the scene of Jacob's
death testified that Buchanan told him that around 7 a.m. she had turned Jacob's apnea
monitor off to give him some medicine, and then had gone about her morning chores.
Buchanan told the officer that she had lain down and had forgotten to turn the monitor back
on. When Buchanan returned around 9 a.m. to check on Jacob, she found that he was not
breathing.
A representative of the company that supplied the apnea monitor testified that he arrived at
the house to retrieve the apnea monitor a few hours after Jacob had died. The representative
testified that the internal memory of the monitor showed that it was turned off at 3:56 a.m. the
morning Jacob died, not at 7 a.m., as Buchanan had told the police officer. The representative
also said that Buchanan seemed very unemotional.
Dr. Samuel Parks, a pathologist, conducted Jacob's autopsy. In the external examination,
Dr. Parks noted that Jacob was both underweight and short for his age and that he had a
linear-like bruise on his scalp. In the internal examination, he determined that both of Jacob's
kidneys were smaller than normal. He found possible hemorrhagic areas in the right posterior
lower lobe of the lung and a possible hemorrhagic area in the posterior right lobe of the liver.
Further tests indicated that the kidneys had been functioning normally. Toxicology tests for
blood alcohol, heavy metals, aspirin, Tylenol, and cyanide were negative. Phenobarbital was
found in the blood at below a therapeutic level, but Dr. Parks knew that Jacob had been
prescribed Phenobarbital. Dr. Parks did bacterial and viral cultures, all of which were
negative.
Dr. Parks was not concerned with metabolic illnesses because when he looked at the liver
under a microscope, there were no metabolic changes. After consultation with Dr. Ritzlin and
Dr. Clark, both board-certified forensic pathologists, Dr. Parks concluded that the cause of
death was undetermined.
Vernon McCarty, the Washoe County Coroner, testified that his office issued the death
certificates, in which the cause of death for Jeremiah is stated as SIDS; the cause of death for
John is stated as undetermined after autopsy and toxicology and the manner of death is
stated as undetermined; the cause of death for Jacob is stated as undetermined due to third
unexplained infant death in same family and the manner of death is stated as homicide.
McCarty also included as the answer to the statement, Describe How Injury Occurred,
history consistent with suffocation.'
After stating his education, training, and experience in death investigations, McCarty
testified that there is general agreement among the professionals in the forensic field that
when you see three unexplained infant deaths in the same family, the first is recorded as
Sudden Infant Death Syndrome, the second as Undetermined and the third or subsequent
deaths as Homicide. McCarty testified that the incidence of a SIDS death is approximately
1 in 1,000 births, and that it is virtually a statistical impossibility that a second SIDS death
would occur in the same family. McCarty testified that the certificate of death for Jacob was
filed over a year after the death because he was trying to get all the information he could. He
consulted with both the Reno and Sparks police departments to get all the information they
had gathered as a result of their investigations. He consulted with the district attorney's office
and local doctors, as well as out-of-state medical experts, before filing the death certificate.
Dr. Clark testified that she was contacted after Jacob's death by the coroner, coroner's
investigators, and detectives from the Reno and Sparks police departments. The reports
included the records for all the Leal children, including the two living children. She reviewed
all three cases, including the autopsy protocols, the microscopic slides for each case, the tests
conducted and the autopsies, including the toxicology and bacterial cultures. She suggested
that the case should be sent to other persons with particular expertise in looking at multiple,
unexplained infant deaths in a family.
Dr. Clark contacted Dr. Janice Ophoven, an expert in pediatric pathology and forensic
pathology in St. Paul, Minnesota. Dr. Ophoven referred her to her partner, Dr. Susan Roe, a
forensic pathologist and assistant medical examiner in Minnesota. Dr. Clark sent Dr. Roe the
autopsy and medical reports and the slides for the three children, as well as the police reports
on the Leal family. Dr. Clark told Dr. Roe that she was particularly interested in your
opinions regarding the possibilities of occult inheritable fatal diseases. Dr. Clark said she
had found no evidence of such diseases, but wanted to have someone with specific expertise
re-examine the cases and exclude those possibilities. After receiving a report from Dr. Roe,
Dr. Clark also sent some of Jacob's specimens to Dr. Michael Bennett at the Department of
Pathology at the Children's Medical Center of Dallas to conduct additional tests for potential
metabolic disorders. Dr. Bennett is a specialist in evaluating infant tissues for metabolic or
inheritable disorders. He reported that no abnormalities were detected.
Dr. Clark testified that the incidence of SIDS in this country, depending on the part of the
country, is from 1 in 1,000 live births to 1 in 1,500 live births. She also stated that
statistically, the probability of a second SIDS death in the same family would be 1,000
times 1,000 and the probability of a third SIDS death in the same family would be 1,000
times 1,000 times 1,000.
ability of a second SIDS death in the same family would be 1,000 times 1,000 and the
probability of a third SIDS death in the same family would be 1,000 times 1,000 times 1,000.
However, her conclusion that the deaths were a result of homicide was based on the physical
findings and the surrounding circumstances, not on statistics. Her information regarding
probabilities resulted in more intensive investigation of the deaths after the first death.
Dr. Clark stated that Jeremiah's death could fit into the category of SIDS. He was a healthy
child with no apnea monitor, and there was no antecedent medical history or a preceding
history of other infant death in the family. His death was a seemingly random event. Jacob's
death could not fit into the category of SIDS. He barely fit within the age category as he was
older than ninety-five to ninety-nine percent of SIDS cases. He did not appear to be a healthy
child. Jeremiah and John had both been normal size and weight and apparently were well
nourished at the time of their deaths. In contrast, when Jacob died, he was somewhat
emaciated, grossly underweight, and did not have a healthy appearance. Twelve-month-old
Jacob's weight was that of approximately a two-month-old child. He had two areas of
skin-break injury on his head and a bruise at the top of his ear. SIDS, by definition, is only
ascribed to seemingly healthy children.
Dr. Roe also testified at the trial. She is board certified as an anatomic, clinical, and
forensic pathologist with special training and interest in pediatric pathology. She testified
regarding her consultation with Dr. Clark on the Leal children. She reviewed the records
provided to her and consulted with Dr. Ophoven regarding pediatric pathology and with Dr.
Michael Coleman, a neonatologist at St. Paul's Children's Hospital, regarding the apnea
monitor records. After reviewing the records and the consultation reports, Dr. Roe concluded
that the deaths of the three children were not natural deaths, but were caused by another
person, most likely by asphyxiation.
She cited evidence of child abuse in that both Joshua and Jacob were failure-to-thrive
children. They suffered from hypernatremic dehydration, which indicates child abuse. Both
children had various hospitalizations and had a normal growth curve while in the hospital.
While in the hospital, they had good appetites and gained weight. But when they had been
home awhile and then returned to the hospital, they were underweight. In addition, Jacob had
no apnea episodes with any medical or other personnel; only Buchanan reported any such
episodes. While in the hospital, Jacob's encephalogram, sleep study, and pneumatogram
results were normal, and no cardiac arrhythmias were noted. Dr. Roe testified that apnea
monitor alarms sound often for many reasons, but that does not mean there is an episode of
apnea. The neonatologist consulted by Dr. Roe concluded that the apnea monitor records
available in this case showed no evidence of apnea, just periodic or irregular breathing,
which is normal in a baby.
available in this case showed no evidence of apnea, just periodic or irregular breathing, which
is normal in a baby.
Dr. Ophoven has specialized training and experience in the area of serial deaths of children
less than five years of age within a single family. She has lectured on the subject and testified
many times in criminal cases for both the prosecution and defense. She reviewed the material
that Dr. Roe had regarding the Leal baby deaths and her conclusions were included in Dr.
Roe's report. Subsequently, the Washoe County District Attorney's Office was provided with
additional materials involving the investigation and the Leal family medical records, all of
which she reviewed to render an opinion.
Dr. Ophoven outlined her background, training, and experience with SIDS. She handled
all of the examinations of SIDS deaths that came into the office during her forensic training.
She kept informed of SIDS research and current thinking. She was asked to author a book
chapter summarizing the world's literature at the time on SIDS and has been keeping up with
SIDS literature. She serves as a consultant to the Minnesota SIDS Center located at the
Minnesota Children's Hospital and has served for many years on the Minnesota state
mortality review panel, which reviews all the deaths of children in the state. She has
performed hundreds of autopsies on children who have died suddenly and unexpectedly at
less than one year of age. She has reviewed many cases of serial deaths in the same family,
including the case involving the Hoyt children, who were the first to go home with apnea
monitors.
Dr. Ophoven testified that two of the Hoyt children were patients of Dr. Alfred
Steinschneider, and he developed the theory that hereditary apnea was the cause of SIDS and
reported this in a 1972 article in The Journal of Pediatrics. Until 1996, this theory that
hereditary apnea caused SIDS was strongly held and was the basis for many articles
supporting the theory. It was also the basis for the widespread use of apnea monitors. In 1996,
the editor of The Journal of Pediatrics retracted the 1972 article and apologized for having
published it. The evidence on which the 1972 article was based was refuted when the mother
confessed to killing her five children. Dr. Ophoven testified that, at the time, it was
considered almost incomprehensible that mothers would kill their children. Therefore, many
earlier deaths had been considered SIDS cases based on incomplete or no exams and poor
death investigation wherever investigators did not even consider the possibility of murder by
a parent. Accordingly, there needs to be a high degree of skepticism about reports before
1996 of a recurrence of SIDS deaths in a single family.
Dr. Ophoven also described how easy it is to asphyxiate a very young infant, most of the
time leaving no sign. She testified that it takes two full minutes to smother a child to
unconsciousness and after that another four to five minutes for death to occur.
takes two full minutes to smother a child to unconsciousness and after that another four to
five minutes for death to occur.
Dr. Ophoven concluded that the deaths of Jeremiah, John, and Jacob resulted from
homicide. The basis for that opinion was as follows:
There is no underlying disease present in the three children identified. There is clear
evidence of physical neglect, emotional neglect, emotional abuse in the children. There
is evidence of injuries to the head of Jacob that, in my opinion, are suggestive of
physical abuse as well.
There is [sic] remarkable inconsistencies in the story rendered by the mother in the
history of specifically Joshua and Jacob. And there's many, many inconsistencies to the
point where, with Joshua alone, I would have considered him to be at risk of potential
death.
The striking recurrence of sudden and unexplained death in three children that
clearly cannot be Sudden Infant Death Syndrome, reasonable evaluation of the children
fails to demonstrate a plausible explanation for all of the facts in this case. Substantial
failure to thrive of Joshua and Jacob to the point of, in a reasonable person's mind, they
were at significant risk of death or debility.
Presence of pulmonary hemorrhage in Jeremiah, which the people in England are
now suggesting is a risk factor for children who may be being suffocated.
. . . .
The fact that no apnea was ever observed of any significance by anyone but the
mother. The fact that the monitors were turned off at the time that the deaths occurred.
And to bring that all to a close, and the fact that none of the deaths are consistent with
Sudden Infant Death Syndrome or with any other known disorder.
The absence of microscopic findings in any of the children that suggests an
underlying metabolic disease, specifically in the brain, the heart, the liver and the
muscle. The presence of petechiae in the liver of Jeremiah. The life-threatening event
that Joshua presented with that clearly was inconsistent with the mother's story.
When you put all of those things together, there is only one diagnosis that explains
them all.
. . . .
. . . [T]hey were killed.
When asked about possible metabolic disease, Dr. Ophoven testified that metabolic
disease does not account for all the problems, and it typically demonstrates abnormalities in
tissue. Typically, there are abnormalities in either the liver, heart, skeletal muscle, or
brain.
there are abnormalities in either the liver, heart, skeletal muscle, or brain. Dr. Ophoven
testified that in the Leal case, each of the three children would have had to have the
autosomal recessive gene from both parents. The chances of each child's getting the recessive
gene would be one in four. Furthermore, the fact that the children entered the hospital in
desperate shape and recovered as soon as they were provided food and water is not consistent
with metabolic disease. Dr. Ophoven testified that while the petechiae in the lungs could be
found in SIDS deaths, she had never seen petechiae in the liver in a SIDS death.
Dr. Ophoven agreed that John's death, in isolation, is not totally inconsistent with SIDS.
But other factors are significant, such as the fact that he was found by the same person as the
others, and he was off the monitor when he died. The only person who reported that the
children changed color several times was the mother. Dr. Ophoven testified that when a
parent reported this information, either she is fabricating or is causing the symptoms, and the
failure of any other person to see these symptoms is almost diagnostic. The autopsy report
also showed hemorrhage in the lungs and an absence of thymic petachiae, which are present
in eighty to eighty-five percent of SIDS deaths.
Dr. Ophoven testified that at the Minnesota Apnea Center, with which she has worked for
years, the diagnostic criteria for pathological apnea requires that there be cyanosis, limp
muscle tone, lethargy or absence of cry, bradycardia of a significant degree, and cessation of
breathing long enough to cause profound symptoms or a life-threatening event. Pauses in
breathing are normal in infants. No one other than the mother had reported any symptoms of
apnea in the children.
Dr. Ophoven testified that it is standard operating procedure in a death investigation to
review social service records, referrals to child protective services, and any contacts that
individuals have made with the family. Investigators have noted that a perpetrator will resist
contact with social services. The medical records reflect that the Leal children were quite
filthy and physically neglected and were, therefore, referred to social services, but the Leals
did not follow up. Dr. Ophoven testified that a pediatric pathologist must consider not only
the physical findings, but other factors that reflect potential risk, such as attachment and
concern on the part of the parent.
Dr. Ophoven was asked about the statistical probability of three SIDS deaths in the same
family. She testified that the diagnosis of SIDS is not relevant here because of the reasons she
had stated. The diagnosis of SIDS requires that you exclude all other causes of death before
you can call a death a SIDS death and, here, other causes of death could not be excluded. She
testified that, even without considering the other deaths, she believes that the medical and
autopsy reports show that Jacob was murdered.
and autopsy reports show that Jacob was murdered. At six months of age, he weighed about
the same as he did at birth. His death was clearly a case of failure to thrive because of
starvation and physical neglect.
Dr. Ophoven testified that she is familiar with the forensic approach of labeling the first
unexplained infant death in a family SIDS, the second as undetermined, and the third as
homicide. It is an approach to the handling of cases like this by coroners and is standard
practice within the forensic community, but not in her practice.
Dr. Patrick Colletti, Jacob's pediatrician, testified that upon reviewing the autopsy report,
he determined that Jacob was a failure to thrive child, but that Jacob did not suffer from
starvation prior to his death. Upon a review of the medical and autopsy records of all three
children, Dr. Colletti testified that he did not have an alternative cause of death for Jeremiah
other than SIDS. He believed that Jacob suffered from renal hypoplasia, meaning that the
kidneys do not grow. Dr. Colletti testified that a child of Jacob's age should have had kidneys
weighing approximately seventy-two grams, and that a newborn would have kidneys
weighing approximately twenty-two grams. At Jacob's death, his kidneys weighed fourteen
and eighteen grams, respectively, a total of thirty-two grams. Dr. Colletti believes that this
condition could be hereditary, that it could be vascular, meaning the blood supply had not
developed properly, or that it could be inflammatory or degenerative. Dr. Colletti stated that
he believed Jacob died as a result of this condition.
Dr. Colletti further testified that he believed that John suffered from an obstruction
uropathy, meaning that the tube that helps the bladder empty properly had not developed. He
believed that John died as a result of an obstruction uropathy, and that it was this condition
that predisposed John to an infection. He further testified that John's infection was probably
sepsis, which is an infection of the bloodstream. Dr. Colletti testified that he noted this
condition from John's autopsy report where one of the kidneys was described as being small
and having a kink[ed] and convoluted ureter. Although Dr. Clark, who conducted the
autopsy of John, testified that she found no evidence that John's kidneys caused an infection
that contributed to his death, Dr. Colletti stated that he was not surprised that the infection
was not discovered during the autopsy because the infection would be very difficult to detect.
He testified that kidney disease could be hereditary, and that an infant with a kidney disorder
would easily become dehydrated.
The defense called Dr. Cyril Wecht of Pittsburgh, a board-certified anatomic, clinical, and
forensic pathologist. He founded the Infant Survival Alliance and is on its Board of Directors.
Dr. Wecht testified that although he was aware of the practice of classifying the first
unexplained death in a family as SIDS, the second as undetermined, and the third as
homicide, he did not subscribe to the theory.
sifying the first unexplained death in a family as SIDS, the second as undetermined, and the
third as homicide, he did not subscribe to the theory. He stated that such a theory was not
based on science. Dr. Wecht further testified that it is possible for SIDS to occur more than
once in the same family, and that all risk factors, including a short duration between
pregnancies, must be taken into account.
Dr. Wecht stated his opinion that the investigation conducted to determine how these
children died was not extensive. As to John's death, Dr. Wecht testified that since John was
the second child within this family to die, a careful and thorough investigation should have
been conducted at that time to determine the cause of death. Dr. Wecht testified that extensive
testing was not conducted to determine whether the children died as a result of some
metabolic or genetic cause.
As to Jeremiah, Dr. Wecht testified that there was nothing in the autopsy report to indicate
that Jeremiah died from anything other than SIDS. Additionally, Dr. Wecht testified that there
was no evidence of suffocation. In fact, Dr. Wecht did not find any evidence of suffocation in
any of the children. In regard to the liver petechiae found during the autopsy of Jeremiah,
Dr. Wecht concluded that the liver petechiae did not indicate any cause of death. In
conclusion, Dr. Wecht testified that it was his belief that Jeremiah died as a result of SIDS.
In regard to John, Dr. Wecht testified that it was very significant that one of John's kidneys
was smaller than the other. Because of the abnormal kidney, Dr. Wecht testified that he
would have initially listed John's death as undetermined. He also testified that the condition
of John's kidneys would have caused him to order additional tests, and that if these tests had
come back negative, he would have listed the cause of death as SIDS.
As to Jacob, Dr. Wecht testified that he would have initially listed the cause of death as
undetermined, and then he would have ordered additional tests. After more tests were done,
and if the results had come back negative, Dr. Wecht testified that he would have listed the
cause of death as SIDS. Dr. Wecht conceded that statistically it would be very unlikely that a
second SIDS death would occur in the same family, but he stated that he could not base a
cause of death on statistics. Dr. Wecht also testified that once homicide was suspected in
John's death, all evidence should have been retained.
The defense also called Dr. Berkley Powell, a board-certified pediatrician and geneticist
and associate professor at the John A. Burns School of Medicine at the University of Hawaii.
He works with other professionals in the field in identifying children and adults who have
genetic and/or metabolic disorders. He reviewed the autopsy and medical reports of the
Leal children and the transcripts of the grand jury testimony.
the autopsy and medical reports of the Leal children and the transcripts of the grand jury
testimony. Later, he reviewed the testimony of the pathologists, Dr. Roe, Dr. Hart, Dr.
Ophoven, Dr. David Zucker, and Dr. Colletti. Dr. Powell had also been a treating physician
for Jacob when he practiced in Reno. He had been covering for Dr. Colletti at the time of
Jacob's birth. At that time, he requested metabolic screening and organic acid screening, and
received a report from Dr. Bennett in Dallas, Texas. Dr. Bennett's report stated that no
abnormalities were detected. Dr. Powell testified at trial that he was concerned with the lactic
acid and pyroglutamic acid peaks. However, in 1993, he signed off on the report that
concluded: not abnormal for age, no need to repeat.
Dr. Powell testified that he believes that Jacob suffered from renal tubular acidosis. He
could not agree with Dr. Colletti's conclusion that Jacob suffered from renal failure without a
creatinine test. A creatinine test had been performed on Joshua and was normal. Dr. Powell
described a number of genetic or metabolic disorders, which could have been present and
would have been consistent with the kidney findings on John and Joshua. After reviewing the
reports before trial, Dr. Powell was immediately suspicious that there was an inherent genetic
disorder that was overlooked.
The defense called Dr. Enid Gilbert-Barness, a professor of pathology and laboratory
medicine, pathology of pediatrics, and obstetrics and gynecology in Tampa, Florida. She is
board certified in pediatrics, anatomic pathology, clinical pathology, and pediatric pathology.
Dr. Gilbert-Barness testified that although many pathologists subscribe to the first death is
SIDS, the second death is unexplained and the third death is homicide theory, she believes
that the use of the theory is a disgrace. She described SIDS as a waste basket group,
which she would prefer to call Sudden Infant Deathcause undetermined. She also described
the use of apnea monitors as a disgrace. She testified that the pathological changes that you
see in asphyxiation and SIDS are frequently indistinguishable. After a review of the reports,
Dr. Gilbert-Barness testified that she believes that all four Leal children suffered from
hereditary renal adysplasia that predisposed the children to death.
Dr. Gilbert-Barness testified that it is well documented that recurrence of SIDS in the same
family is up to ten times the normal risk factor which is 1 in 1,000in subsequent siblings it
would be 1 in 100. She disagrees with the opinion expressed in The Pathology of Child Abuse
by the Kemp Center, well known to Dr. Gilbert-Barness as a leader in the area of child abuse,
that the risk of three SIDS deaths in one family would be approximately 1 in 10 million.
However, she had expressed a different opinion in an article titled Sudden Deaths in Infants:
Because it now appears that SIDS is probably not genetically controlled, medical
examiners should be cautious in attributing the second or third apparent crib death in
the family to SIDS, and should instead initiate an investigation into the likelihood of
filicide', homicide by a parent, or metabolic disease.'
Dr. Gilbert-Barness disagreed with Dr. Colletti's conclusion that an overwhelming septic
infection caused John's death. She believes that many more tests should have been done with
respect to the Leal children.
The defense called Lewis Barness, a professor of pediatrics at the University of South
Florida College of Medicine. He reviewed the medical and autopsy records of the Leal
children and, like Dr. Gilbert-Barness, concluded that the children had a renal disorder. He
testified that Jacob's failure to thrive could have been a result of a metabolic disease that had
an effect on the kidney. He testified that he wrote a paper in which he concluded that if you
eliminate anatomical difficulties, ninety percent of failure-to-thrive cases are due to feeding
difficulties. Either there is a failure to know what to feed, or a failure to give the child the
proper food, or the child is neglected.
The defense called Dr. Robert Steiner from the Oregon Health Sciences University, who is
in charge of the division of metabolism in the department of pediatrics. He is board certified
in pediatrics, clinical genetics, and clinical biochemical genetics. He is a metabolic disease
consultant to the Northwest Regional Newborn Screening Program. Every newborn in the
United States is tested for several metabolic and other diseases. He was asked to review the
medical records of four of the Leal children, transcripts from the grand jury investigation, and
some summaries regarding the family members.
Dr. Steiner testified that he is suspicious that Jacob died from a kidney disease or a genetic
or metabolic disease. He testified that the testing of the Leal children's tissues was inadequate
and many more metabolic tests should have been made. However, he admitted that even if all
the tests he recommended had been performed, he still could not rule out all metabolic
disorders.
As a rebuttal witness, the State called Dr. Vincent DiMaio, chief medical examiner in San
Antonio, Texas, professor in the department of pathology at the medical school in San
Antonio, the editor of The American Journal of Forensic Medicine and Pathology, and
coauthor of the treatise Forensic Pathology. Dr. DiMaio testified that he coined the forensic
axiom regarding multiple, unexplained infant deaths in the same family. Dr. DiMaio
explained the axiom by stating:
[T]he way it's applied is when you get a first case that appears to be SIDS, you always
treat it as SIDS. And you assume that this is a natural death. That's the way you should
do it. You should not be suspicious of the parents and such, and you know, be insulting,
essentially.
In the second case, we know that in all probability it's not a SIDS. It's a homicide.
But still, you always give them the benefit of the doubt. So, in the second case you
always give them the benefit of the doubt, rather than beyou would rather give too
much away than to falsely accuse them. It's only whenyou get suspicious and you
have the police investigate a second one. Do a lot more. It's when you get to the third
one, then you've gone beyond reasonable doubts and you have to call it a homicide.
The prosecutor showed Dr. DiMaio an article by Dr. Guntheroth in which he cites a
number of SIDS cases in the same family. Dr. DiMaio stated that the problem with the data is
that they are based on death certificates and the article was published in 1990. He testified
that it is estimated that approximately forty percent of death certificates are incorrectly filled
out. Furthermore, any statistics before 1995 are not reliable because they were including
homicides as SIDS cases. The Hoyt case, involving the deaths of five children, had been
reported in the pediatric literature. It was thought that some hereditary disease was causing
repetitive SIDS. In his 1989 treatise, Dr. DiMaio expressed his opinion that SIDS as the cause
of death of the Hoyt children was wrong; the deaths were homicides. Subsequently, the
mother confessed that she killed her children. Other cases that are classified as SIDS have
also been found to be homicide when the killer confesses. Dr. DiMaio testified that, in his
opinion, he does not believe that SIDS recurs in a single family. His opinion is based on his
experience and the experience of other forensic pathologists in evaluating cases.
Dr. DiMaio was asked about the reports on Jacob and John. He testified that the size of
kidneys varies widely, and small kidneys do not mean there is a disease process or that they
are abnormal. John's left kidney was abnormal and shows evidence of some fibrosis and scar
tissue, which probably happened in utero based on his young age. A doctor evaluates whether
the organ works and, if it does, size does not matter. Even John's abnormal kidney was fine
microscopically. John had a normal right kidney and all anyone needs is half of one kidney to
function without any problems. Jacob's kidneys were small, but so was the rest of his body.
Dr. DiMaio testified that when you have significant starvation, one of the organs that
decreases in size is the kidney, while other organs may or may not decrease in size. His
information on variable tissue wasting is based on studies in the early 1940s in the
Warsaw ghetto.
able tissue wasting is based on studies in the early 1940s in the Warsaw ghetto. There were
many doctors in the ghetto, and as people starved to death, the doctors reported medically
what was happening. The doctors performed autopsies on the dead and recorded their results.
The resulting medical documents were hidden and were recovered from the ruins after the
war and translated and published.
Dr. DiMaio also saw no evidence of metabolic disorders in the Leal children, and even if
they had such a disorder, there is no evidence that it would have killed them. Most of the
metabolic diseases show some evidence in the liver, and there was no such evidence in these
children. Therefore, he did not see the need for additional metabolic tests. Neither did he see
the need for genetic tests because there is nothing specific for which to test.
In addition to the medical experts, numerous other witnesses testified regarding their
experience with the family members. That testimony revealed inconsistent stories by
Buchanan. Joshua's teacher testified that Joshua was not fed and was emotionally neglected
and abused. Buchanan refused to allow Joshua to meet with the school counselor despite
requests from the counselor because of Joshua's apparent, severe emotional problems. There
was also testimony regarding physical abuse of Joshua.
A grocery store clerk testified that she heard an apnea alarm sound when Buchanan was in
the store with a baby, but she saw that the baby looked normal and healthy. Later, when
Buchanan told Leal about the episode at the grocery store, she said that Jacob had a drastic
color change. But Buchanan had also told a nurse that Jacob's monitor never went off.
A number of witnesses testified that Buchanan showed little or no emotion regarding the
deaths of her three sons. At Jacob's funeral, the priest mistook Leal's sister, who was crying,
for Jacob's mother. Buchanan showed no emotion at any of the funerals. A woman from a
support group testified that she talked to Buchanan over the telephone about SIDS. She did
not remember Buchanan's exact words because she was distracted by Buchanan's casual tone.
She testified that when Buchanan talked about her child's death and about SIDS running in
the family, I felt at the time it was like somebody was asking me to pass them the salt at the
dinner table.
Based on this evidence, the jury convicted Buchanan of two counts of first-degree murder
in the deaths of John and Jacob. The jury acquitted Buchanan of murder in connection with
the death of Jeremiah. Buchanan was sentenced to two consecutive terms of life in prison
with the possibility of parole.
DISCUSSION
Sufficiency of the evidence
[Headnotes 1, 2]
Buchanan's principal argument is that insufficient evidence was presented at trial to
convict her of the murder of her two sons. She focuses specifically on proof regarding the
corpus delicti. At trial in a murder case, the State is required to prove (1) the fact of death,
and (2) the criminal agency of another as the cause of the death.
2
The fact of death is not in
dispute, but there was a great deal of conflicting evidence regarding the cause of the deaths of
the two boys. Buchanan argues that the evidence that either she or someone else caused the
deaths was not proven beyond a reasonable doubt. She contends that, on the contrary, the
evidence established that the two boys died of natural causes.
[Headnotes 3-5]
The relevant inquiry for this court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have concluded beyond a
reasonable doubt that [the decedent's] death was caused by a criminal agency.
3
[I]t is for
the jury to determine what weight and credibility to give various testimony.
4
Circumstantial
evidence alone can certainly sustain a criminal conviction.
5
However, to be sufficient, all the
circumstances taken together must exclude to a moral certainty every hypothesis but the
single one of guilt.
6

There is little disagreement about the physical evidence, only the interpretation of that
evidence. The trial became a battle of the medical experts, since most of the testimony
regarding the cause of death was presented by medical experts who had not actually examined
the bodies, but only reviewed the autopsy reports, the medical reports, the other reports of the
investigation, as well as the testimony of the other medical experts.
Despite the fact that most of the doctors testifying had excellent medical credentials, there
was little agreement as to the cause of death of the three children. The Washoe County
forensic pathologist and the two forensic pathologists with whom Dr. Clark consulted agreed
that Buchanan caused the deaths. However, there was even disagreement among the other
doctors about whether the autopsy photograph of Jacob depicted a normal or an emaciated
failure-to-thrive child.
__________

2
Frutiger v. State, 111 Nev. 1385, 1389, 907 P.2d 158, 160 (1995).

3
Id. at 1391, 907 P.2d at 161.

4
Hutchins v. State, 110 Nev. 103, 107, 867 P.2d 1136, 1139 (1994).

5
Walker v. State, 113 Nev. 853, 861, 944 P.2d 762, 768 (1997).

6
Kinna v. State, 84 Nev. 642, 646, 447 P.2d 32, 34 (1968).
topsy photograph of Jacob depicted a normal or an emaciated failure-to-thrive child. The
jurors had an opportunity to hear the opinion of all the medical experts and could look at the
photograph for themselves and make their own determination.
Even though the defense experts did not agree on a cause of death and disagreed with the
conclusions reached by others, they seemed to agree that additional tests should have been
conducted to rule out metabolic, kidney or other inherited diseases. However, other experts
testified that there was no indication of any metabolic diseases when the organs were
examined, and therefore, no further tests were warranted. Also, the metabolic tests that were
conducted showed no abnormalities. Furthermore, the defense could still have tested for any
inherited disease in the surviving Leal family members. There were abnormalities in the size
and shape of Jacob's kidneys, but tests showed they functioned normally. There was expert
testimony that only half a kidney is necessary for survival. The jurors were free to judge the
credibility of the various experts and make their own determination as to whom they should
believe. Based on the medical experts alone, there was substantial evidence from which the
jury could conclude that Buchanan killed her children.
In view of the physical findings and the widely varying medical opinions, the
circumstances surrounding the deaths become important. The State presented evidence that
Buchanan was unemotional about the deaths of her children, that she had been physically and
emotionally unavailable to the children, and that she abused her children. Buchanan told
contradictory stories of the events leading to the death of Jacob, both of which were
inconsistent with the physical record on the apnea monitor. Buchanan was the only person
who reported seeing a life-threatening episode, and one episode that she reported as life
threatening was contradicted by a witness to the episode. The children had medical problems
when in her care, but none when they were in the care of others.
Buchanan argues that the only evidence presented at trial showing that the infants died as a
result of a crime was the testimony of Dr. DiMaio and other pathologists who testified that
statistical probabilities mandated that these infants could not have died from natural causes.
She is incorrect. The forensic pathologists set forth their reasons for concluding that the
deaths were caused by asphyxiation, and those reasons were not based on statistical
probabilities.
The coroner and several of the medical experts cited statistical probabilities, but they did
not agree on those either. The Washoe County coroner testified that there is general
agreement among the professionals in the forensic field that the first unexplained death of an
infant is recorded as SIDS, the second as undetermined, and the third and subsequent deaths
as homicide, based on the statistical impossibility of subsequent deaths in the same family
being SIDS.
impossibility of subsequent deaths in the same family being SIDS. Dr. DiMaio testified that
he developed this axiom based on his experience and the experience of other pathologists
in evaluating cases. He explained that basically, the first unexplained death is treated as a
natural death since you should not want to be suspicious of the parents or insult them by
investigating them when they are grieving. At the second death, you are suspicious, but you
still give the parents the benefit of the doubt because you do not want to falsely accuse them.
When you get to the third death, you have gone beyond reasonable doubt and you treat it as
a homicide.
It is clear that neither Dr. DiMaio nor the Washoe County coroner would automatically list
the third death as homicide. Dr. DiMaio stated that he would treat it as a homicide. In other
words, a criminal investigation is warranted, including interrogation of family members and
consideration of all of the surrounding circumstances. It is apparent that the coroner in this
case did not automatically find the cause of the third death to be homicide based on the
axiom either. Instead, he conducted an intensive investigation and reviewed the entire case
with both the Sparks and Reno police departments and medical experts. He did not file the
death certificate until over a year after Jacob's death because of the extensive investigation.
The so-called axiom appears to be simply a guide to coroners or medical examiners to
focus their future investigations.
There was also considerable testimony attacking the statistical probabilities and approach
mentioned by the coroner and Dr. DiMaio, even though they all recognized that the approach
was commonly used by coroners and forensic pathologists. Dr. Gilbert-Barness called the
theory a disgrace. She also testified that it is well-documented that the risk of the
recurrence of SIDS in the same family is up to ten times the normal risk factor. Dr. Wecht
also does not subscribe to Dr. DiMaio's theory. He testified that the theory was not based
on science. In fact, Dr. Wecht is of the opinion that it is possible for SIDS to occur more than
once in the same family. All the medical experts agreed that the generally accepted risk for a
SIDS death is about 1 in 1,000 live births. However, they clearly disagreed as to whether the
likelihood of a subsequent SIDS death in the same family goes up or down. The jurors heard
these opinions and were free to accept or reject any or all of them.
Lost or destroyed evidence
[Headnotes 6, 7]
Buchanan claims that she was irretrievably crippled and a fair trial became impossible
because the State discarded, consumed or failed to gather various tissues of the three infants,
thus, impermissibly shifting the burden of proof to the defense. In Williams v. State,
State,
7
this court quoted the following passage from Leonard v. State:
8

The State's loss or destruction of evidence constitutes a due process violation only if
the defendant shows either that the State acted in bad faith or that the defendant
suffered undue prejudice and the exculpatory value of the evidence was apparent before
it was lost or destroyed. Where there is no bad faith, the defendant has the burden of
showing prejudice. The defendant must show that it could be reasonably anticipated
that the evidence sought would be exculpatory and material to [the] defense.' It is not
sufficient to show merely a hoped-for conclusion' or that examination of the
evidence would be helpful in preparing [a] defense.'
There was no evidence of bad faith on the part of law enforcement. The murder
investigation did not start until the third death, so any exculpatory value from any tissue from
the first two victims would not have been apparent to law enforcement. Also, medical experts
testified that because of the small size of infants, frequently the tissues are consumed in the
testing.
The burden of proving prejudice lies with the defendant.
9
It is not sufficient that the
defendant shows merely a hoped-for conclusion from examination of the lost evidence or that
it would be helpful in preparing a defense.
10
Buchanan claims she hoped to prove either
metabolic or hereditary kidney disease. Some defense experts indicated that the potential
diseases that the defense was postulating were hereditary. Other medical experts testified that
hereditary disease could still be shown by testing the living members of the family. One of
Buchanan's medical experts who testified that inadequate metabolic testing was done, had
signed off on the results of the metabolic tests on Jacob when he practiced as a pediatrician in
Reno as not abnormal for age, no need to repeat. Another defense metabolic disease expert
testified that even if all the tests he recommended had been done, metabolic disease still
could not be ruled out. Many other experts testified that there was no indication of a
metabolic or hereditary disease in any of the children or in their test results. Buchanan has not
shown that the lost evidence would have been exculpatory. Also, hereditary tests could
have been performed by the defense on the surviving Leal family members if Buchanan
really thought it likely that exculpatory evidence would have been produced.
__________

7
118 Nev. 536, 552, 50 P.3d 1116, 1126 (2002), cert. denied, 537 U.S. 1031 (2002).

8
117 Nev. 53, 68, 17 P.3d 397, 407 (2001) (citations omitted).

9
Sheriff v. Warner, 112 Nev. 1234, 1240, 926 P.2d 775, 778 (1996).

10
Id. (citing Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979)).
Leal family members if Buchanan really thought it likely that exculpatory evidence would
have been produced.
Buchanan also alleges that she was prejudiced because the bedding and pajamas were not
collected at the scenes of the deaths and because photographs were not taken at the scenes.
Buchanan has failed to show how these items would be material to her defense.
Premeditation and deliberation instruction
[Headnote 8]
Buchanan argues that the instructions given to the jury regarding premeditation and
deliberation were improper. The jury was given the standard instruction at the time, known as
the Kazalyn
11
instruction. In 2000, after the conclusion of this trial, this court disapproved of
that instruction in Byford v. State
12
because the instruction blurs the distinction between
premeditation and deliberation. However, that does not mean that any prior conviction using
the Kazalyn instruction must be overturned. This court reviews the evidence in cases in which
the Kazalyn instruction was given to determine if sufficient evidence was presented to
establish premeditation and deliberation. In this case, we have the testimony regarding how
long it takes to suffocate an infant, which is sufficient evidence of deliberation, and two
children being killed years apart is sufficient evidence to infer premeditation.
Beyond a reasonable doubt instruction
Buchanan challenges the reasonable doubt instruction codified in NRS 175.211. This court
has repeatedly reaffirmed the constitutionality of Nevada's reasonable doubt instruction.
13
In
Ramirez v. Hatcher, the United States Court of Appeals for the Ninth Circuit agreed that
Nevada's reasonable doubt instruction is constitutional.
14

Other claims
Buchanan's claims that the district court erred in allowing rebuttal testimony and in not
issuing an advisory verdict are without merit. The district court was within its discretion in
admitting rebuttal evidence
15
and in not issuing an advisory verdict.
16

__________

11
Kazalyn v. State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992).

12
116 Nev. 215, 235, 994 P.2d 700, 713 (2000).

13
See, e.g., Noonan v. State, 115 Nev. 184, 189, 980 P.2d 637, 640 (1999).

14
136 F.3d 1209 (9th Cir.), cert. denied, 525 U.S. 967 (1998).

15
Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).

16
Milton v. State, 111 Nev. 1487, 1494, 908 P.2d 684, 688 (1995); NRS 175.381(1).
For the foregoing reasons, Buchanan's judgment of conviction is affirmed.
Agosti, C. J., Becker and Maupin, JJ., and Young,
17
Sr. J., concur.
Rose, J., with whom Leavitt, J., agrees, concurring:
I agree with the majority's analysis and conclusion, but concur to express my concern
about the use of statistical evidence in criminal trials.
In this case, several experts testified about the probability of three infants in one family
being stricken with SIDS. This testimony was based on the experts' own investigations of
unexplained infant deaths as well as literature discussing the subject. The experts explained
that years of research and current thinking on the subject establish the statistical improbability
of SIDS occurring three times in the same family.
The admission of statistical evidence to show the probability of an event occurring has
long concerned courts throughout the United States. In State v. Sneed,
1
the Supreme Court of
New Mexico stated that mathematical odds are not admissible as evidence to identify a
defendant in a criminal proceeding so long as the odds are based on estimates, the validity of
which have not been demonstrated. In Sneed, a mathematics professor testified that the
chances of the defendant committing the crime as opposed to some other person were 1 in
240 billion.
2
The professor used the product rule to determine the probability that certain
independent events would occur jointly.
3
The product rule provides that the probability of
the joint occurrence of a number of mutually independent events is equal to the product of the
individual probabilities that each of the events will occur.
4
The court determined that the
factors used by the professor were unsubstantiated estimates and, thus, reversed the
conviction and remanded the case for a new trial.
5

In the landmark case of People v. Collins,
6
the California Supreme Court concluded that
testimony by a college mathematics professor on the probability of persons with the same
distinctive characteristics as the defendants committing the crime was inadmissible.
__________

17
The Honorable Cliff Young, Senior Justice, having participated in the oral argument and deliberations of
this matter as a Justice of the Nevada Supreme Court, was assigned to participate in the determination of this
appeal following his retirement. Nev. Const. art. 6, 19; SCR 10. The Honorable Mark Gibbons, Justice, did not

1
414 P.2d 858, 862 (N.M. 1966).

2
Id. at 861.

3
Id.

4
People v. Collins, 438 P.2d 33, 36 (Cal. 1968).

5
Sneed, 414 P.2d at 861-62.

6
438 P.2d at 33.
professor on the probability of persons with the same distinctive characteristics as the
defendants committing the crime was inadmissible. The court determined that the expert
testimony lacked an adequate evidentiary foundation for the probability estimates and also
lacked adequate proof of the statistical independence of the six factors used by the State's
witness when calculating the probabilities.
7
On the other hand, other courts have concluded
that statistics are admissible when based on objective, substantiated evidence and the number
of variables is controlled.
8

In cases dealing with multiple occurrences of SIDS, testimony of statistical probabilities
has been received with caution. For example, in Johnson v. State,
9
the Georgia Supreme
Court concluded that evidence of the probability of multiple occurrences of SIDS was
inadmissible due to the lack of information upon which it was based. Other courts, however,
have upheld the admission of statistical evidence on the rarity of multiple occurrences of
SIDS in a single household when a sufficient foundation is established.
10

Here, there was substantial evidence, which the majority amply identifies, to establish that
John and Jacob died of asphyxiation and not SIDS. It was the expert opinion of Dr. Clark and
Dr. Ophoven that at least the second and third deaths were not caused by SIDS. Had there
been no evidence other than the statistics, I would be very reluctant to affirm this conviction
because a defendant should be convicted by the evidence, not exclusively by the numbers and
probabilities. In this case, however, that did not happen.
Therefore, I respectfully concur.
__________

7
Id. at 38-39.

8
See Rachals v. State, 361 S.E.2d 671, 675 (Ga. Ct. App. 1987) (admitting statistical evidence where the
variables were controlled and the statistics were not derived from a random sampling); State v. Briggs, 776
P.2d 1347, 1358 (Wash. Ct. App. 1989) (noting that [t]here is no prohibition against using well-founded
statistics to establish some fact that will be useful to the trier of fact).

9
405 S.E.2d 686, 688 (Ga. 1991).

10
See, e.g., State v. Pankow, 422 N.W.2d 913, 918-19 (Wis. Ct. App. 1988) (admitting statistical probability
analysis because proper foundation was laid, and the State did not argue that the probability could be used to
determine the defendant's guilt).
____________
119 Nev. 224, 224 (2003) Salazar v. State
GABRIEL SALAZAR, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38828
June 11, 2003 70 P.3d 749
Appeal from a judgment of conviction of one count of battery with use of a deadly weapon
with substantial bodily harm, one count of battery with a deadly weapon, and one count of
mayhem with use of a deadly weapon. Eighth Judicial District Court, Clark County; Mark W.
Gibbons, Judge.
The supreme court held that defendant's convictions for both battery with use of a deadly
weapon with substantial bodily harm and mayhem with use of a deadly weapon were
redundant, requiring reversal of conviction for battery with use of a deadly weapon with
substantial bodily harm.
Affirmed in part, reversed in part, and remanded.
Mayfield, Turco & Gruber and John M. Turco, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James
Tufteland, Chief Deputy District Attorney, and James R. Sweetin, Deputy District Attorney,
Clark County, for Respondent.
1. Double Jeopardy.
The Double Jeopardy Clause of the United States Constitution protects defendants from multiple punishments for the same
offense. U.S. Const. amend. 5.
2. Double Jeopardy.
The supreme court utilizes the Blockburger test to determine whether multiple convictions for the same act or transaction are
permissible. Under this test, if the elements of one offense are entirely included within the elements of a second offense, the first
offense is a lesser included offense, and the Double Jeopardy Clause prohibits a conviction for both offenses. U.S. Const. amend.
5.
3. Double Jeopardy.
Battery with use of a deadly weapon with substantial bodily harm and mayhem with a deadly weapon are separate offenses
under the Blockburger test for determining whether multiple convictions for same act are permissible under Double Jeopardy
Clause. U.S. Const. amend. 5; NRS 0.060, 193.165, 200.280, 200.481(2)(e)(2).
4. Criminal Law.
While the State may bring multiple charges based upon a single incident, redundant convictions that do not comport with
legislative intent will be reversed.
5. Criminal Law.
The gravamen of charge of battery with use of a deadly weapon with substantial bodily harm, namely, that defendant cut
victim and he suffered nerve damage, was the same as the gravamen of charge of mayhem with use of a deadly weapon,
namely, that defendant cut victim and he suffered permanent nerve damage.
use of a deadly weapon, namely, that defendant cut victim and he suffered permanent nerve damage. Thus, defendant's convictions
for both offenses were redundant, requiring reversal of conviction for battery with use of a deadly weapon with substantial bodily
harm. NRS 0.060, 193.165, 200.280, 200.481(2)(e)(2).
OPINION
Per Curiam:
Gabriel Salazar appeals from a judgment of conviction following a jury trial.
1
He asserts
that his convictions of battery with use of a deadly weapon with substantial bodily harm
2
and mayhem with use of a deadly weapon
3
are duplicative. We agree and reverse his battery
conviction.
FACTUAL AND PROCEDURAL HISTORY
Salazar, his two brothers, and two friends attended a birthday party for Michael Howard at
an apartment in Las Vegas. While the party was ongoing, an automobile accident occurred
outside the apartment, and the partygoers went out to help. Salazar remained behind. Paul
Clark returned from the accident to the apartment, and he and Salazar began arguing. Clark
left the apartment, and Salazar followed him outside and began shouting.
Several people asked Salazar and his companions to leave. Amber Brown, another party
guest, told Salazar to calm down and leave the party. Salazar swore at her and pushed her.
The two began fighting, and Salazar punched her several times in the face and upper parts of
her body. Brown testified that after Salazar punched her neck, she felt a sharp pain. Brown
backed away, picked up a beer bottle and threw it at Salazar, but she missed. Salazar lunged
towards her, but Clark jumped between the two, punched Salazar in the side of the head, and
began fighting with him.
Salazar punched Clark several times in the neck and face. Clark testified that one punch
felt like a pinch. Clark backed away from the fight, and Salazar told Clark to look at his
neck. Clark did and realized he was bleeding heavily. Clark ran back into the apartment, and a
general melee broke out between the remaining guests, Salazar, and one of Salazar's friends.
Salazar sustained some injuries in the fight.
__________

1
See NRS 177.015(3).

2
See NRS 200.481(2)(e)(2); NRS 0.060.

3
See NRS 200.280; NRS 193.165.
When Brown returned to the apartment, another guest noticed Brown was bleeding heavily
from a wound in her neck.
4
Brown's friend drove Clark and Brown to the hospital. Brown
sustained a shallow cut on her side and a deep cut to her neck, the latter requiring stitches.
Clark sustained three cuts, one of which severed a nerve resulting in permanent numbness
from his ear to his jaw and the partial loss of control over a muscle controlling his lip. He
required over one hundred stitches to close his wounds. At trial, to establish the extent of
Brown's and Clark's injuries, the State presented testimony from the two victims, their
medical records, and photos of their injuries.
Salazar and his friends attempted to leave the party, but before they could leave, police
officers arrived. Because the police officers were responding to a report of a possible
stabbing, they handcuffed and patted down Salazar and his companions. An officer retrieved
a bloody box cutter from Salazar's pants pocket.
The police officers observed blood and mud on Salazar's clothing. Initially, Salazar
claimed he was wrestling with some friends and he did not know where the blood came from.
The police officers spoke with Salazar's companions and other witnesses and learned about
the argument, fight, and stabbing that occurred at the party. From these statements, the police
suspected Salazar was involved in the stabbing. A police officer read Salazar his Miranda
5
rights. Salazar admitted he was involved in a fight and he had cut some people after he
became frightened. He also admitted that the box cutter belonged to him.
At trial, Salazar's theory of the case was that he acted in self-defense after several people
attacked him simultaneously without provocation. He testified he was kicked and punched
while he was on the ground and someone shot a gun during the fight. Thus, he feared for his
life and used his box cutter to defend himself. Salazar testified that when he was on the
ground, he began swinging the box cutter in a wide circle to warn away his assailants, and
somehow he cut both Brown and Clark.
For his actions towards Clark, the jury found Salazar guilty of one count of battery with
use of a deadly weapon with substantial bodily harm and one count of mayhem with use of a
deadly weapon. He was also found guilty of one count of battery with use of a deadly weapon
for his actions towards Brown.
The district court sentenced Salazar to two concurrent twenty-four to seventy-two-month
prison terms for the battery convictions. Additionally, the district court sentenced Salazar to a
twenty-four to seventy-two-month term for the mayhem conviction, plus an equal and
consecutive term of twenty-four to seventy-two months for use of a deadly weapon.
__________

4
Brown did not see Salazar with a weapon.

5
Miranda v. Arizona, 384 U.S. 436 (1966).
for use of a deadly weapon. The latter sentence was to run concurrently with the battery
sentences. The district court also ordered Salazar to pay a $25 administrative fee, a $250
DNA fee, and $140 in restitution. Salazar appeals.
DISCUSSION
Salazar argues on appeal that he should not have been convicted of both battery with use
of a deadly weapon with substantial bodily harm and mayhem with a deadly weapon for the
injuries he inflicted upon Clark. We agree and reverse his conviction for battery with use of a
deadly weapon with substantial bodily harm.
[Headnotes 1, 2]
The Double Jeopardy Clause of the United States Constitution protects defendants from
multiple punishments for the same offense.
6
This court utilizes the test set forth in
Blockburger v. United States
7
to determine whether multiple convictions for the same act or
transaction are permissible.
8
Under this test, if the elements of one offense are entirely
included within the elements of a second offense, the first offense is a lesser included offense
and the Double Jeopardy Clause prohibits a conviction for both offenses.'
9

[Headnotes 3, 4]
Battery with use of a deadly weapon with substantial bodily harm and mayhem with a
deadly weapon are separate offenses under the Blockburger test. However, while the State
may bring multiple charges based upon a single incident, we will reverse redundant
convictions that do not comport with legislative intent.'
10
When considering whether
convictions are redundant, in State of Nevada v. District Court,
11
this court stated:
The issue . . . is whether the gravamen of the charged offenses is the same such that
it can be said that the legislature did not intend multiple convictions. [R]edundancy
does not, of necessity, arise when a defendant is convicted of numerous charges arising
from a single act. Skiba v. State, 114 Nev. 612, 616 n.4, 959 P.2d 959, 961 n.4 (1998).
The question is whether the material or significant part of each charge is the same even
if the offenses are not the same.
__________

6
Williams v. State, 118 Nev. 536, 548, 50 P.3d 1116, 1124 (2002), cert. denied, 537 U.S. 1031 (2002); U.S.
Const. amend. V.

7
284 U.S. 299 (1932).

8
Williams, 118 Nev. at 548, 50 P.3d at 1124 (citing Barton v. State, 117 Nev. 686, 692, 30 P.3d 1103, 1107
(2001)).

9
Id. at 548, 50 P.3d at 1124 (quoting Barton, 117 Nev. at 692, 30 P.3d at 1107).

10
State v. Koseck, 113 Nev. 477, 479, 936 P.2d 836, 837 (1997) (quoting Albitre v. State, 103 Nev. 281, 283,
738 P.2d 1307, 1309 (1987)).

11
116 Nev. 127, 994 P.2d 692 (2000).
same even if the offenses are not the same. Thus, where a defendant is convicted of two
offenses that, as charged, punish the exact same illegal act, the convictions are
redundant.
12

[Headnote 5]
We conclude, under the specific facts of this case, that the gravamen of both the battery
with use of a deadly weapon with substantial bodily harm and mayhem with use of a deadly
weapon offenses are the same and, therefore, Salazar's convictions for battery and mayhem
are redundant. The gravamen of the battery offense, as charged, is that Salazar cut Clark and
he suffered substantial harm, which was the nerve damage. The gravamen of the mayhem
offense, as charged, is that Salazar cut Clark and he suffered permanent nerve damage. Both
arise from and punish the same illegal actcutting Clark with a box cutter.
13
[T]he
Legislature never intended to permit the State to proliferate charges as to one course of
conduct by adorning it with chameleonic attire.
14

We have reviewed Salazar's other arguments and conclude that they either lack merit or
constitute harmless error. The State presented sufficient medical evidence to convict Salazar
for battery with substantial bodily harm; the district court did not abuse its discretion when it
denied Salazar's two proposed jury instructions; and the district court's admission of evidence
without a hearing that Salazar consumed alcohol was harmless error.
Accordingly, we affirm Salazar's convictions for battery with a deadly weapon and for
mayhem with use of a deadly weapon. We reverse the conviction for battery with use of a
deadly weapon with substantial bodily harm and remand to the district court to amend the
judgment of conviction accordingly.
__________

12
Id. at 136, 994 P.2d at 698.

13
Cf. Skiba, 114 Nev. 612, 959 P.2d 959 (redundant convictions for battery with a deadly weapon and battery
with substantial harm when the convictions arose from single act of hitting victim with broken beer bottle).

14
Albitre, 103 Nev. at 284, 738 P.2d at 1309.
____________
119 Nev. 229, 229 (2003) Nieto v. State
JOSHUA I. NIETO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 39976
June 11, 2003 70 P.3d 747
Appeal from an order of the district court denying a motion for additional credit for time
served in presentence confinement. Eighth Judicial District Court, Clark County; Lee A.
Gates, Judge.
Defendant, who was convicted for attempted murder, filed motion seeking credit for time
served. The district court denied relief. Defendant appealed. The supreme court held that
defendant was entitled to additional credit for the time spent in custody in another state from
the date of his arrest until his extradition.
Sciscento & Montgomery and Joseph S. Sciscento, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
The appropriate means of challenging the computation of time served pursuant to a judgment of conviction is to file a
post-conviction petition for a writ of habeas corpus in the district court.
Charges in Nevada were the sole reason for defendant's incarceration in another state, and thus, defendant was entitled to
additional credit for the time spent in custody in other state from the date of his arrest until his extradition, where defendant was
arrested in other state pursuant to a fugitive warrant on Nevada charges, and defendant waived extradition and voluntarily
requested to come back to Nevada to face the charges. NRS 176.055(1).
A defendant is entitled to credit for time served in presentence confinement in another jurisdiction when that confinement was
solely pursuant to the charges for which he was ultimately convicted. NRS 176.055(1).
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant Joshua I. Nieto's
motion for additional credit for time served in presentence confinement.
119 Nev. 229, 230 (2003) Nieto v. State
On November 2, 2001, Nieto was convicted, pursuant to a guilty plea, of one count of
attempted murder. The district court sentenced Nieto to serve a prison term of 60-180
months, and ordered him to pay restitution and extradition fees. Nieto was given credit for
146 days time served. Nieto did not pursue a direct appeal from the judgment of conviction.
[Headnote 1]
On June 5, 2002, with the assistance of counsel, Nieto filed a motion in the district court
for additional credit for time served in presentence confinement. The State opposed the
motion. On June 17, 2002, the district court denied Nieto's motion without conducting an
evidentiary hearing. This appeal followed.
1

[Headnote 2]
Nieto's sole contention is that he is entitled to additional credit for time served for his
period of pretrial confinement in California while awaiting extradition to Nevada. Nieto
alleges, and the State concedes, that he was arrested in California pursuant to a fugitive
warrant on the instant charges on or about April 11, 2001, and that he was extradited to
Nevada on or about June 5, 2001. Nieto also alleges, and the State does not refute, that he
waived extradition and voluntarily requested to come back to Nevada to face the charges.
Therefore, Nieto argues that because the charges in Nevada were the sole reason for his
incarceration in California, pursuant to NRS 176.055,
2
he is entitled to credit for the time
spent in custody from the date of his arrest until his extradition.
The State argues that an application of Nieto's contention would improperly expand upon
and violate the purpose of the credit statute as discussed by this court in Anglin v. State,
which is to provide credit for confinement . . . where (1) bail has been set for the defendant
and (2) the defendant was financially unable to post the bail.
3
The State quotes the Supreme
Court of New Hampshire in State v. Harnum
__________

1
We note that the appropriate means of challenging the computation of time served pursuant to a judgment of
conviction is to file a post-conviction petition for a writ of habeas corpus in the district court. In this case,
however, we conclude that the procedural label is not of critical importance. See NRS 34.724(2)(c); Pangallo v.
State, 112 Nev. 1533, 1535, 930 P.2d 100, 102 (1996), limited in part on other grounds by Hart v. State, 116
Nev. 558, 1 P.3d 969 (2000).

2
NRS 176.055(1) states in relevant part:
[W]henever a sentence of imprisonment in the county jail or state prison is imposed, the court may order
that credit be allowed against the duration of the sentence . . . for the amount of time which the defendant
has actually spent in confinement before conviction, unless his confinement was pursuant to a judgment
of conviction for another offense.

3
90 Nev. 287, 292, 525 P.2d 34, 37 (1974); see also Kuykendall v. State, 112 Nev. 1285, 1286, 926 P.2d
781, 782 (1996).
119 Nev. 229, 231 (2003) Nieto v. State
New Hampshire in State v. Harnum for the proposition that Nieto has pointed to nothing that
demonstrates that the legislature intended to extend pretrial confinement credit to fugitives . .
. who are awaiting extradition in another State.
4
The New Hampshire court distinguishes
between awaiting trial and awaiting extradition for purposes of determining when a
defendant is in the custody of the state, and has concluded that credit for time served in
pretrial confinement is inapplicable where the defendant is not awaiting trial, but is instead
awaiting extradition.
5
Further, the State urges this court to follow the logic of the New
Hampshire court and conclude that such an interpretation is an impermissible statutory
modification and amounts to inserting the phrase while awaiting extradition into the
language of NRS 176.055.
6

[Headnote 3]
We disagree with the State's interpretation and conclude that the district court erred in
denying Nieto's motion. We find the reasoning in Harnum unpersuasive, and note that the
overwhelming majority of states allow for the granting of credit for time served in
presentence confinement while awaiting extradition when the sole reason for the foreign
incarceration is the offense for which the defendant is ultimately convicted and sentenced.
7
NRS 176.055(1) states that a defendant is entitled to credit against a sentence for time
actually spent in confinement before conviction, and makes no distinction between in-state
or out-of-state presentence custody. In our view, the granting of credit for pretrial
confinement is not necessarily limited to the situations discussed in Anglin.
__________

4
697 A.2d 1380, 1382 (N.H. 1997). The statute in question, N.H. Rev. Stat. Ann. 651-A:23 (1996), states in
relevant part:
Any prisoner who is confined to the state prison, any house of correction, any jail or any other place shall
be granted credit against both the maximum and minimum terms of his sentence equal to the number of
days during which the prisoner was confined in jail awaiting and during trial prior to the imposition of
sentence and not under any sentence of confinement.
See also N.H. Rev. Stat. Ann. 651:3(I) (1996) (All the time actually spent in custody prior to the time
[defendant] is sentenced shall be credited in the manner set forth in RSA 651-A:23 . . . .).

5
See Harnum, 697 A.2d at 1382.

6
See id.

7
Although the statutes and case law vary widely in form and substance, the following states, at a minimum,
allow for the granting of such credit under the right circumstances: Alabama, Arizona, Arkansas, California,
Colorado, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee,
Texas, Vermont, Washington, West Virginia, Wisconsin, and Wyoming.
119 Nev. 229, 232 (2003) Nieto v. State
essarily limited to the situations discussed in Anglin. Therefore, we conclude that a defendant
is entitled to credit for time served in presentence confinement in another jurisdiction when
that confinement was solely pursuant to the charges for which he was ultimately convicted.
CONCLUSION
Having considered Nieto's argument and concluded that it is meritorious, we order the
judgment of the district court reversed and remand this matter to the district court for an
evidentiary hearing to determine the exact amount of additional credit to which Nieto is
entitled.
8

____________
119 Nev. 232, 232 (2003) Ayala v. Caesars Palace
JUDIE AYALA, Appellant, v. CAESARS PALACE and CDS COMPFIRST, Respondents.
No. 36979
June 26, 2003 71 P.3d 490
Appeal from a district court order denying a petition for judicial review of an appeals
officer's decision that a wage-benefit-level determination was accurate and proper. Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Workers' compensation claimant petitioned for judicial review of Department of
Administration's monthly wage determination. The district court denied claimant's petition.
Claimant appealed. The supreme court held that: (1) Department appeals officer had
jurisdiction to decide whether employer had authority to alter its wage determination for
claimant, (2) employer was not barred from altering its wage-benefit determination after
seventy-day appeal period, and (3) evidence did not support employer's contention that it
recalculated claimant's benefits based upon one-year period prior to claimant's accident.
Affirmed in part, reversed in part and remanded with instructions.
[En banc reconsideration denied October 24, 2003]
__________

8
At the hearing, the burden remains with Nieto to provide the district court with specific factual information
in support of his claim for credit. See Pangallo, 112 Nev. at 1536-37, 930 P.2d at 102. We have considered all
proper person documents filed or received in this matter and conclude that Nieto is entitled only to the relief
described herein. This constitutes our final disposition of this appeal. Any subsequent appeal shall be docketed
as a new matter.
Clark & Richards and H. Douglas Clark, Las Vegas, for Appellant.
Santoro, Driggs, Walch, Kearney, Johnson & Thompson and Javier A. Arguello, Lee E.
Davis and Daniel L. Schwartz, Las Vegas, for Respondents.
Supreme court's role, like that of the district court, in reviewing an administrative decision, is to determine whether the
agency's decision constituted an abuse of discretion.
Supreme court's review of an agency's decision is limited to the record before the agency.
Although the supreme court independently reviews an agency's legal determinations, the agency's conclusions of law, which
will necessarily be closely related to the agency's view of the facts, are entitled to deference and will not be disturbed if they are
supported by substantial evidence, which is that which a reasonable person might accept as adequate to support a conclusion.
4. Workers' Compensation.
Workers' compensation claimant's failure to appeal Department of Administration hearing officer's remand to employer for
recalculation based on improper methodology did not preclude claimant from contending on appeal of subsequent decision that
benefit level became fixed after seventy days because the remand was not a final judgment on the merits, and claimant could not
have known whether she should appeal until after the recalculation was completed.
As a general rule, an order by a district court remanding a matter to an administrative agency is not an appealable order unless
the order constitutes a final judgment.
Department of Administration appeals officer had jurisdiction to decide whether employer had authority to alter its wage
determination for workers' compensation claimant, even though claimant had not brought matter to attention of hearing officer and
had not timely appealed the hearing officer's order to remand for recalculation because appeals officer had jurisdiction to hear any
matter raised before him.
Employer was not barred from altering its wage-benefit determination for workers' compensation claimant after seventy-day
appeal period. Thus, Department of Administration appeals officer's error in concluding that he lacked jurisdiction to decide
whether employer had authority to alter its wage determination was harmless. NRS 616C.315(2).
Evidence did not support employer's contention that it recalculated workers' compensation claimant's benefits based upon the
one-year period prior to claimant's accident, as instructed by Department of Administration hearing officer, where record indicated
that employer based its recalculation upon seven months of employment, as opposed to one year. Thus, appeals officer abused its
discretion by affirming the new calculation. NAC 616C.435.
An agency ruling without substantial evidentiary support is arbitrary or capricious and therefore unsustainable.
OPINION
Per Curiam:
At issue in this appeal is whether respondents properly adjusted appellant's workers'
compensation temporary total disability benefits downward based upon a recalculation of her
pre-injury income. While we conclude that an adjustment was warranted, the record does not
support the adjustment that was made because it was based upon the wrong period of
earnings. Therefore, the matter must be remanded for recalculation based upon the correct
period of earnings, which in this case is one year.
On July 4, 1998, Judie Ayala fractured her right ankle in a work-related accident while
employed by Caesars Palace. On July 5, 1998, Ayala underwent surgery to have the fracture
repaired. Ayala submitted a workers' compensation claim to Caesars.
Caesars Palace is a self-insured employer for workers' compensation purposes. Claims
made to Caesars are administered by CDS CompFirst. On August 10, 1998, CDS accepted
Ayala's claim for temporary total disability. On September 11, 1998, Ayala provided
information regarding her income history and loss to CDS for determination of her monthly
income. In a letter dated October 2, 1998, CDS indicated that Ayala's monthly income had
been established at $2,215.23 and that she had the right to appeal the determination within
seventy days. Ayala did not appeal her income determination.
CDS then notified Ayala by letter dated March 10, 1999, that her monthly wage
determination had been reduced to $560.40 based upon her income during the twelve weeks
prior to injury, excluding concurrent employment income. Ayala timely appealed the new
calculation to the Department of Administration. On April 19, 1999, the hearing officer
issued a decision remanding the wage determination to CDS for a recalculation of the average
monthly wage based upon a one-year period of earnings. Ayala did not appeal the order of
remand.
CDS subsequently notified Ayala by letter dated May 28, 1999, that the benefit level of
$560.40 would stand. Ayala appealed the determination, and the appeals officer affirmed the
benefit-level determination on February 10, 2000. Ayala then petitioned the district court for
judicial review, which was denied on October 18, 2000.
2000. Ayala now appeals the district court's order denying the petition for judicial review.
[Headnotes 1-3]
This court's role, like that of the district court, in reviewing an administrative decision, is
to determine whether the agency's decision constituted an abuse of discretion.
1
This court's
review is limited to the record before the agency.
2
Furthermore, [a]lthough this court
independently reviews an agency's legal determinations, the agency's conclusions of law,
which will necessarily be closely related to the agency's view of the facts, are entitled to
deference, and will not be disturbed if they are supported by substantial evidence.'
3
Substantial evidence is that which a reasonable person might accept as adequate to support a
conclusion.
4

[Headnotes 4, 5]
First, we address the issue of whether Ayala was precluded from arguing on appeal that the
benefit level became fixed after seventy days due to her failure to appeal the hearing officer's
remand for recalculation within thirty days. As a general rule, an order by a district court
remanding a matter to an administrative agency is not an appealable order unless the order
constitutes a final judgment.
5
While the issue here involved a remand by a hearing officer,
rather than the district court, the final decision of the hearing officer was that benefits were
owed to Ayala and that CDS's calculation reducing her benefit level was based on improper
methodology. In essence, the hearing officer remanded the matter to CDS to consider
evidence that it had failed to consider in determining Ayala's benefit level. The remand was
not a final judgment on the merits; therefore, Ayala was not precluded by the doctrines of
issue preclusion or claim preclusion from appealing the subsequent decision.
6
Furthermore,
while NRS 616C.345(1) allows thirty days in which to appeal a hearing officer's decision,
Ayala could not have known whether she should appeal until after the recalculation was
completed.
__________

1
SIIS v. Montoya, 109 Nev. 1029, 1031, 862 P.2d 1197, 1199 (1993).

2
Id.

3
Id. at 1031-32, 862 P.2d at 1199 (quoting Jones v. Rosner, 102 Nev. 215, 217, 719 P.2d 805, 806 (1986)).

4
Id. at 1032, 862 P.2d at 1199.

5
See State, Taxicab Authority v. Greenspun, 109 Nev. 1022, 1024-25, 862 P.2d 423, 424-25 (1993) (stating
that the district court's order of remand to an administrative agency to consider evidence it initially refused to
review was not appealable as a final judgment); see also Clark County Liquor v. Clark, 102 Nev. 654, 657-58,
730 P.2d 443, 446 (1986).

6
See LaForge v. State, University System, 116 Nev. 415, 419, 997 P.2d 130, 133 (2000) (stating that res
judicata, or issue preclusion, applies when (1) the same issue that was decided in the prior action is presented in
the current action; (2) there was a final decision on the merits; and (3) the party against whom the judgment is
asserted was the same party in the prior action); see also Executive Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823,
835, 963 P.2d
in which to appeal a hearing officer's decision, Ayala could not have known whether she
should appeal until after the recalculation was completed. The hearing officer's decision was
issued on April 29, 1999. CDS notified Ayala of its recalculation by letter dated May 28,
1999. Ayala could not have timely appealed the recalculation from the date of remand
because the recalculation was not made available to her before the time to appeal expired.
[Headnote 6]
We turn now to Ayala's argument that the administrative agency was divested of
jurisdiction to allow the wage determination to be altered after seventy days had lapsed. The
appeals officer determined that he lacked jurisdiction to consider this argument, and the
district court agreed, because Ayala had not brought this matter to the attention of the hearing
officer and had not timely appealed the hearing officer's order to remand for a recalculation.
[Headnote 7]
In order to remand the matter for recalculation, the hearing officer necessarily had to find
that CDS had authority to alter its benefit-level determination after seventy days had expired.
Hence, the issue was before the hearing officer, regardless of whether the parties had
addressed it.
7
Furthermore, we have previously held that:
Once the jurisdiction of the appeals officer is invoked, the appeals officer must hear
any matter raised before him on its merits, including new evidence bearing on the
matter. Thus, the hearing before the appeals officer is more akin to a hearing de novo
than to an appeal as we know it.
8

Even if the hearing officer had not considered the issue of whether CDS could alter its
benefit-level determination after seventy days, the appeals officer had the jurisdiction to hear
any matter raised before him. Hence, the appeals officer and the district court erred in
concluding that the appeals officer lacked jurisdiction to decide whether CDS had authority to
alter its wage determination. We further conclude, however, that their error was harmless
because CDS was not barred from altering its wage-benefit determination after seventy
days.
__________
465, 473 (1998) (stating that collateral estoppel, or claim preclusion, includes the same elements as issue
preclusion but embraces not only the grounds of recovery that were asserted in the prior suit but those that could
have been asserted).

7
See Diaz v. Golden Nugget, 103 Nev. 152, 154-55, 734 P.2d 720, 722 (1987) (holding that district court had
erroneously concluded that the appeals officer lacked jurisdiction to consider the issue of rehabilitation benefits,
which had not been brought to the attention of the hearing officer, because the hearing officer's decision to deny
all benefits necessarily included the denial of rehabilitation benefits).

8
Id. at 155, 734 P.2d at 723 (quoting NRS 616.5426(2) (currently codified as NRS 616C.360(2))).
CDS was not barred from altering its wage-benefit determination after seventy days.
NRS 616C.155(2) provides a mechanism for recovery of overpayments by the insurer. The
statute provides:
2. If, within 30 days after a payment is made to an injured employee pursuant to the
provisions of chapters 616A to 616D, inclusive, of NRS, the insurer determines that it
has overpaid the injured employee as a result of a clerical error in its calculation of the
amount of payment, or as a result of using improper or incorrect information to
determine the injured employee's eligibility for payment or to calculate the amount of
payment, the insurer may deduct the amount of the overpayment from future benefits
related to that claim to which the injured employee is entitled, other than accident
benefits, if:
(a) The insurer notifies the injured employee in writing of its determination;
(b) The insurer informs the injured employee of his right to contest the deduction;
and
(c) The injured employee fails to contest the deduction or does so and upon final
resolution of the contested deduction, it is determined that such an overpayment was
made.
NRS 616C.315(2), which, according to Ayala, precludes an insurer from recalculating the
benefit-level determination once seventy days have elapsed, provides, in relevant part:
2. Except as otherwise provided in NRS 616B.772, 616B.775, 616B.787 and
616C.305, a person who is aggrieved by:
(a) A written determination of an insurer; or
(b) The failure of an insurer to respond within 30 days to a written request mailed to
the insurer by the person who is aggrieved,
may appeal from the determination or failure to respond by filing a request for a hearing
before a hearing officer. Such a request must be filed within 70 days after the date on
which the notice of the insurer's determination was mailed by the insurer or the
unanswered written request was mailed to the insurer, as applicable.
A close reading of NRS 616C.315(2) shows that the seventy-day appeal period applies to
particular parties: those aggrieved by a written determination of the insurer and those
aggrieved by the insurer's failure to respond to a written request within thirty days. Nothing in
the language of the statute suggests that the insurer is one of the intended aggrieved parties.
Nor does the language of the statute suggest that the insurer is barred from recalculating the
benefit level after seventy days.
efit level after seventy days. In fact, such a reading would render NRS 616C.155(2)
meaningless. If we were to agree with Ayala's interpretation of the statutes, an insurer that
determines it has made a mistake in calculating benefit levels after expiration of the
seventy-day appeal period could invoke NRS 616C.155 to recover an overpayment, but it
could not reduce future payments. Instead, it would have to make the overpayment each time,
then use NRS 616C.155 to recover the overpayment, then make another overpayment. Such a
result would be absurd.
9

[Headnote 8]
Finally, we address Ayala's argument that, even if the insurer had the authority to
recalculate the benefit level, its methodology was improper. Ayala asserts that the actual
wage history and the methodology used to recalculate her benefits are not in the record, and
that there is no factual predicate upon which the appeals officer could base his findings of
fact, and therefore, the findings cannot be sustained. Ayala further contends that while the
initial calculation was properly based upon a projection of her hourly rate pursuant to NAC
616C.435(5), the subsequent reduction was not in accord with that regulation. Ayala contends
that the appeals officer not only incorrectly interpreted the statutes and regulations, but that
his conclusions are not supported by substantial evidence. Consequently, she argues, the
district court erred by denying her petition for judicial review.
On appeal to the hearing officer, the hearing officer reversed CDS's determination of
benefits and remanded the matter for recalculation based on SIIS v. Montoya
10
and NAC
616C.435. In ordering CDS to recalculate Ayala's monthly wage based on a one-year period
of earnings, the hearing officer stated:
Review of the information provided notes Mrs. Ayala was injured on her first day of
employment based on the Banquet B list. However, testimony and the record reflect [
] Mrs. Ayala has worked as a banquet waitress for a long period of time. Due to the
nature of this work projecting a wage is very difficult, if not impossible. Therefore,
based on NAC 616C.435 and the Montoya decision by the Nevada Supreme Court, the
Administrator is REVERSED. The matter is REMANDED to recalculate the wage
based on a one year period of earning.
In Montoya, this court reversed the district court's denial of a petition for judicial review
from an appeals officer's order that the claimant's wage calculation be based on the two
weeks prior to the accident in which the claimant was fully employed.
__________

9
See Glover v. Concerned Citizens for Fuji Park, 118 Nev. 488, 492, 50 P.3d 546, 548 (2002) (stating that
the statute's language should not be read to produce absurd or unreasonable results), disapproved on other
grounds by Garvin v. Dist. Ct., 118 Nev. 749, 59 P.3d 1180 (2002).

10
109 Nev. 1029, 862 P.2d 1197 (1993).
claimant's wage calculation be based on the two weeks prior to the accident in which the
claimant was fully employed. This court held that neither a calculation based on the prior
twelve weeks of employment, as generally required by NAC 616.678 (currently codified as
NAC 616C.435), nor a calculation based on the two weeks of full employment immediately
preceding the injury, would adequately reflect the claimant's average monthly wage.
11
Hence, this court ordered the district court to remand the matter with instructions to calculate
the average monthly wage based upon a one-year period of earnings.
12

NAC 616C.435 provides, in pertinent part:
1. Except as otherwise provided in this section, a history of earnings for a period of
12 weeks must be used to calculate an average monthly wage.
2. If a 12-week period of earnings is not representative of the average monthly wage
of the injured employee, earnings over a period of 1 year or the full period of
employment, if it is less than 1 year, may be used. Earnings over 1 year or the full
period of employment, if it is less than 1 year, must be used if the average monthly
wage would be increased.
3. If an injured employee is a member of a labor organization and is regularly
employed by referrals from the office of that organization, wages earned from all
employers for a period of 1 year may be used. A period of 1 year using all the wages of
the injured employee from all his employers must be used if the average monthly wage
would be increased.
In the hearing officer's order, the hearing officer determined that Ayala had been a member
of the culinary union one day prior to her accident. Therefore, a calculation based on NAC
616C.435(3) would not yield a result accurately reflecting Ayala's monthly gross wages.
Hence, it appears the hearing officer ordered a recalculation based upon NAC 616C.435(2).
However, a letter by CDS dated May 28, 1999, to Ayala informed her that the recalculation
was based upon her income from union assignments from January 19, 1998, to July 4, 1998.
It appears that CDS ignored the hearing officer's instructions that the recalculation be based
on a period of one year.
At the hearing before the appeals officer, CDS represented that it had recalculated Ayala's
wages based upon a one-year period, but that the new calculation yielded a lower number
than $560.40 per month. Because the number was lower, it would keep paying the $560.40
per month. The appeals officer found this representation to be true. However, the record does
not reflect that CDS used a one-year period of earnings to recalculate the benefit level, but
that it based its recalculation upon seven months of employment referrals based upon
union membership.
__________

11
Id. at 1033-34, 862 P.2d at 1200-01.

12
Id. at 1034, 862 P.2d at 1201.
it based its recalculation upon seven months of employment referrals based upon union
membership. The hearing officer found that Ayala had belonged to the union only one day
prior to her accident. The appeals officer found that there was conflicting testimony regarding
the duration of Ayala's membership with the culinary union, but did not make new findings or
issue a new order to recalculate Ayala's benefits based only upon her union membership. In
any event, CDS contravened the hearing officer's order to recalculate Ayala's wages based
upon her work as a banquet waitress for one year prior to the injury.
[Headnote 9]
An agency ruling without substantial evidentiary support is arbitrary or capricious and
therefore unsustainable.
13
Because there is no evidence in the record to support the
contention made by Caesars Palace and CDS that a recalculation was made based upon the
one-year period prior to Ayala's accident, the appeals officer's order affirming the new
calculation was an abuse of discretion. Hence, the district court's denial of Ayala's petition for
judicial review was also an abuse of discretion. We reverse the order denying Ayala's petition
for judicial review with regard to this issue and remand this matter to the district court. On
remand, the district court should remand the matter to the appeals officer with instructions to
remand to CDS to recalculate the benefit level based upon a one-year period of earnings.
14
We affirm the district court's order denying the petition for judicial review with respect to all
other issues.
__________

13
SIIS v. Christensen, 106 Nev. 85, 88, 787 P.2d 408, 410 (1990).

14
Ayala further contends that the appeals officer abused its discretion by allowing CDS to omit Ayala's
concurrent employment with the Mirage as part of its wage calculation under NAC 616C.444 and NAC
616C.447. However, the record reflects that Ayala had left her position at the Mirage before the injury, so it was
not a concurrent employment under NAC 616C.447. Furthermore, she worked there as a cashier, not as a
banquet waitress. Therefore, CDS properly excluded those wages from its calculation.
____________
119 Nev. 241, 241 (2003) State v. Bayard
THE STATE OF NEVADA, Appellant, v. RICO SHOUNTES BAYARD, Respondent.
No. 39376
June 26, 2003 71 P.3d 498
Expedited appeal by the State of Nevada from a district court order granting a motion to
suppress evidence. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Defendant who was charged with trafficking in a controlled substance and possession of a
controlled substance for the purpose of sale moved to suppress evidence of drugs found on
him based on his allegedly illegal arrest. The district court granted the motion. State appealed.
The supreme court held that police officer's arrest of defendant for traffic violation rather than
issuing citation was unlawful, and thus, warrantless strip search, which revealed cocaine and
marijuana, violated defendant's state constitutional rights against unlawful searches and
seizures.
Affirmed.
and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
Defender, Washoe County, for Respondent.
1. Criminal Law.
Review in supreme court from a district court's interpretation of a statute is de novo.
2. Statutes.
When a statute is plain and unambiguous, supreme court will give that language its ordinary meaning and not go beyond it.
States may expand the individual rights of their citizens under state law beyond those provided under the Federal Constitution.
4. Automobiles.
An arrest made in violation of statute giving police officers discretion in either arresting or issuing a citation to individuals
who violate traffic laws violates a suspect's right to be free from unlawful searches and seizures under State Constitution, even
though the arrest does not offend the Fourth Amendment of Federal Constitution. Const. art. 1, 18; U.S. Const. amend. 4; NRS
484.795.
5. Automobiles.
To make a valid arrest under statute that gives officers discretion in either making a full custodial arrest or issuing a citation
for traffic violations, which does not violate state constitutional provisions prohibiting unlawful searches and seizures, an officer's
exercise of discretion must be reasonable. Reasonableness requires probable cause that a traffic offense has been committed and
circumstances that require immediate arrest. Const. art. 1, 18; NRS 484.795.
6. Automobiles.
Absent special circumstances requiring immediate arrest, individuals should not be made to endure the humiliation of arrest
and detention when a traffic citation will satisfy the state's interest. Such special circumstances are contained in the mandatory
section of statute authorizing arrest for traffic violations or exist when an officer has probable cause to believe other criminal
misconduct is afoot. NRS 484.795.
7. Automobiles.
Police officer abused his discretion in subjecting defendant who violated local traffic ordinance to a full custodial arrest
instead of issuing him a citation where officer had no legitimate reason to arrest defendant rather than issue citation, defendant
cooperated at all times with officer after being pulled over for violation, defendant provided officer with identification, defendant
volunteered that he was carrying a concealed weapon and furnished a valid permit, and defendant agreed to a search of his person
for potential drugs and other weapons during traffic stop. Thus, subsequent warrantless strip search of defendant conducted during
booking procedures violated defendant's state constitutional right to be free from an unlawful search or seizure. Const. art. 1, 18;
NRS 484.795.
8. Criminal Law.
The granting of a motion to suppress precludes the introduction of evidence at trial that is claimed to be inadmissible for
constitutional reasons and is the remedy contemplated by the criminal code.
OPINION
Per Curiam:
FACTUAL BACKGROUND
This is an expedited appeal by the State of Nevada from a district court order granting a
motion to suppress narcotics found when police searched respondent Rico Shountes Bayard
after arresting him for committing two minor traffic violations.
Reno Police Officer Ty Sceirine witnessed Bayard commit two minor moving traffic
violations. Bayard turned left onto a two-lane thoroughfare and [i]nstead of taking the
closest lane to the center line [Bayard] drove immediately to the outside lane, which is an
illegal left turn. The second violation occurred when Bayard changed lanes abruptly. The
officer followed the vehicle and observed a pedestrian waving at it. When the pedestrian
spotted the patrol vehicle, he acted like he did not want to be seen flagging down the vehicle.
At this point, Sceirine activated his lights and Bayard pulled his vehicle over to the side of the
road. A male passenger seated beside Bayard was allowed to leave.
Bayard produced identification and cordially asked why he had been stopped. Sceirine told
Bayard to step out of the vehicle. When Bayard exited the vehicle, he voluntarily informed
Sceirine that he had a gun in his waistband and produced a valid concealed weapons
permit.
that he had a gun in his waistband and produced a valid concealed weapons permit. Bayard
consented to a search of his person which yielded $116 in cash. Sceirine then arrested Bayard
for violating local traffic ordinances. During the booking procedure, police strip searched
Bayard and bindles of cocaine and marijuana fell on the floor when he removed his
underwear.
Bayard was charged with (1) trafficking in a controlled substance (cocaine), (2) possession
of a controlled substance for the purpose of sale (marijuana), and (3) possession of a
controlled substance for the purpose of sale (cocaine). After a preliminary hearing and
arraignment, Bayard filed a motion to suppress the drugs based on the allegedly illegal arrest.
The district court conducted a hearing and granted Bayard's motion, stating:
The court finds that defendant's arrest violated NRS 171.1771 because he was arrested
instead of being issued a citation even though there were no facts and circumstances
which would cause a person of reasonable caution to believe that the defendant would
disregard a written promise to appear. The evidence seized in the search incident to this
arrest must be suppressed.
The State appeals the district court's decision.
DISCUSSION
[Headnotes 1, 2]
Review in this court from a district court's interpretation of a statute is de novo.'
1
When a statute is plain and unambiguous, this court will give that language its ordinary
meaning and not go beyond it.
2

As an initial matter, the district court inadvertently relied on NRS 171.1771 in determining
Bayard's arrest was unlawful. NRS Chapter 171 covers proceedings to commitment in
general and NRS 171.1771 discusses an officer's authority to issue a citation or arrest for
misdemeanor crimes. The Legislature, however, excluded traffic violations from the purview
of NRS 171.1771.
3
The proper statute is found in NRS Chapter 484, which governs traffic
violations. NRS 484.795 is the controlling statute because it addresses warrantless
misdemeanor arrests for traffic violations.
__________

1
State, Div. of Insurance v. State Farm, 116 Nev. 290, 293, 995 P.2d 482, 484 (2000) (quoting State, Dep't of
Mtr. Vehicles v. Frangul, 110 Nev. 46, 48, 867 P.2d 397, 398 (1994)).

2
State v. Allen, 119 Nev. 166, 170, 69 P.3d 232, 235 (2003).

3
NRS 171.1779 states, NRS 171.177 to 171.1779, inclusive, not applicable to violations of traffic laws.
The provisions of NRS 171.177 to 171.1779, inclusive, do not apply to those situations in which a person is
detained by a peace officer for any violation of chapter 484 of NRS.
The State argues NRS Chapter 484 does not apply since Officer Sceirine arrested Bayard
for violating a Reno local traffic ordinance, not a state ordinance. The distinction is irrelevant.
The purpose of NRS Chapter 484 is to [e]stablish traffic laws which are uniform throughout
the State of Nevada, whether or not incorporated into local ordinances.
4
NRS 484.795,
therefore, applies to all traffic ordinances in Nevada regardless of whether the ordinance is
local, regional, or statewide.
The United States Supreme Court addressed the constitutional implications of a
warrantless arrest for a misdemeanor offense in Atwater v. Lago Vista.
5
In that case, an
officer pulled over Gail Atwater, a small-town soccer mom with only one prior traffic citation
and no criminal record, verbally berated her in front of her two small children, placed her in
handcuffs behind her back, and took her to the police station. While at the station, police took
away her jewelry, eyeglasses, shoes, and other personal possessions, took her mug shot, and
kept her in a jail cell for an hour.
6
Atwater was forced to undergo this humiliation for
committing the fine-only offense of failing to wear a seatbelt.
7
In a controversial 5-4
decision, the United States Supreme Court upheld Atwater's arrest stating that [i]f an officer
has probable cause to believe that an individual has committed even a very minor criminal
offense in his presence, he may, without violating the Fourth Amendment, arrest the
offender.
8
The Court recognized, however, the states' power to legislatively restrict arrests
for such minor offenses.
9
The Court stated, It is of course easier to devise a minor-offense
limitation by statute than to derive one through the Constitution, simply because the statute
can let the arrest power turn on any sort of practical consideration without having to subsume
it under a broader principle.
10
The Court also said it is only natural that States should
resort to this sort of legislative regulation . . . [because] it is in the interest of the police to
limit petty-offense arrests, which carry costs that are simply too great to incur without good
reason.
11
Numerous states have statutorily imposed more restrictive safeguards than those
provided by the Fourth Amendment.
12

__________

4
NRS 484.011.

5
532 U.S. 318 (2001).

6
Id. at 323-24.

7
Id.

8
Id. at 354.

9
Id. at 352.

10
Id.

11
Id.

12
Id. (citing Ala. Code 32-1-4 (1999); Cal. Veh. Code Ann. 40504 (West 2000); Ky. Rev. Stat. Ann.
431.015(1), (2) (Michie 1999); La. Rev.
The Atwater dissent criticized the majority's opinion stating that providing officers
constitutional carte blanche to effect an arrest whenever there is probable cause to believe a
fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment's
command that seizures be reasonable.
13
The dissent further states,
The majority gives a brief nod to this bedrock principle of our Fourth Amendment
jurisprudence [that a full custodial arrest is a severe intrusion on an individual's liberty,
the reasonableness of which hinges upon the need to promote legitimate governmental
interests], and even acknowledges that Atwater's claim to live free of pointless
indignity and confinement clearly outweighs anything the City can raise against it
specific to her case. But instead of remedying this imbalance, the majority allows itself
to be swayed by the worry that every discretionary judgment [by police] in the field
[will] be converted into an occasion for constitutional review. It therefore mints a new
rule that . . . is not only unsupported by our precedent, but runs contrary to the
principles that lie at the core of the Fourth Amendment.
14

In Nevada, the Legislature has not forbidden warrantless arrests for minor traffic offenses.
NRS 484.795 requires officers to perform an arrest in certain situations
15
and provides the
officer with discretion to make an arrest or issue a citation in all other situations.
16
The
discretionary provision of NRS 484.795 states that when a person is halted by a peace
officer for any violation of [NRS Chapter 484] and is not required to be taken before a
magistrate, the person may, in the discretion of the peace officer, either be given a traffic
citation, or be taken without unnecessary delay before the proper magistrate. The
discretionary provision applies to the instant case.
__________
Stat. Ann. 32:391 (West 1989); Md. Transp. Code Ann. 26-202(a)(2) (1999); S.D. Codified Laws 32-33-2
(1998); Tenn. Code Ann. 40-7-118(b)(1) (1997); Va. Code Ann. 46.2-936 (Supp. 2000)).

13
Atwater, 532 U.S. at 365-66 (O'Connor, J., dissenting).

14
Id. at 361-62 (citations omitted) (O'Connor, J., dissenting).

15
The mandatory arrest procedures pertinent to this case are invoked when the driver provides insufficient
identification or when the officer has reasonable grounds to conclude that the cited driver will not appear in
court to respond to the citation or when the individual is charged with driving under the influence. NRS
484.795(1), (4). The officer's discretion to formally arrest is implicated when the above mandatory requirements
are not met; that is, absent insufficient identification, if there is not a reasonable belief that the cited driver will
not appear in court or is under the influence, the officer is statutorily empowered with discretion to arrest or cite
the driver.

16
The case before us is distinguishable from Collins v. State, 113 Nev. 1177, 946 P.2d 1055 (1997), and
Ortega v. Reyna, 114 Nev. 55, 953 P.2d 18 (1998), which were decided based on the mandatory provision of
NRS 484.795.
to the instant case. Bayard was stopped and arrested by Officer Sceirine for making an illegal
left turn and lane change, violations of the Reno Municipal Traffic Code. He was cooperative,
provided adequate identification, and was not under the influence of alcohol or a controlled
substance. There is also no indication in the record that Officer Sceirine claimed a reasonable
basis for concluding that Bayard would not respond to a traffic summons in municipal court.
Thus, the mandatory provisions of NRS 484.795 do not apply.
The primary issue is whether Officer Sceirine abused his discretion by performing a full
custodial arrest under the circumstances. Although the Legislature has given officers
discretion in determining when to issue a citation or make an arrest for a traffic code
violation, that discretion is not unfettered. Discretion means power to act in an official
capacity in a manner which appears to be just and proper under the circumstances.
17
It also
means the capacity to distinguish between what is right and wrong, lawful or unlawful, wise
or foolish, sufficiently to render one amenable and responsible for his acts.
18
An officer
abuses his or her discretion when the officer exercises discretion in an arbitrary or
unreasonable manner.
[Headnote 3]
Both the Fourth Amendment of the United States Constitution and Article 1, Section 18 of
the Nevada Constitution provide citizens with a right to be secure in their persons, houses,
papers and effects against unreasonable seizures and searches. Although the Nevada
Constitution and the United States Constitution contain similar search and seizure clauses, the
United States Supreme Court has noted that states are free to interpret their own
constitutional provisions as providing greater protections than analogous federal provisions.
19
Further, [w]e are under no compulsion to follow decisions of the United States Supreme
Court which considers such [conduct] in connection with the federal constitution.
20
This
means that states may expand the individual rights of their citizens under state law beyond
those provided under the Federal Constitution.
__________

17
Black's Law Dictionary 419 (5th ed. 1979) (emphasis added).

18
Id. (emphasis added).

19
Osburn v. State, 118 Nev. 323, 325-26, 44 P.3d 523, 525 (2002); see also Arkansas v. Sullivan, 532 U.S.
769, 772 (2001) (explaining states may restrict police power under state law to a greater degree than the
Supreme Court holds is necessary under the Federal Constitution); California v. Greenwood, 486 U.S. 35, 43
(1988) (holding that [i]ndividual States may . . . construe their own constitutions as imposing more stringent
constraints on police conduct than does the Federal Constitution).

20
Zale-Las Vegas v. Bulova Watch, 80 Nev. 483, 502, 396 P.2d 683, 693 (1964).
[Headnotes 4-6]
We hold that an arrest made in violation of NRS 484.795 violates a suspect's right to be
free from unlawful searches and seizures under Article 1, Section 18, even though the arrest
does not offend the Fourth Amendment. An officer violates NRS 484.795 if the officer
abuses his or her discretion in making a full custodial arrest instead of issuing a traffic
citation. We adopt the test set forth by the Montana Supreme Court in State v. Bauer
21
for
determining the proper exercise of police discretion to arrest under NRS 484.795. To make a
valid arrest based on state constitutional grounds, an officer's exercise of discretion must be
reasonable.
22
Reasonableness requires probable cause that a traffic offense has been
committed and circumstances that require immediate arrest. Absent special circumstances
requiring immediate arrest, individuals should not be made to endure the humiliation of arrest
and detention when a citation will satisfy the state's interest. Such special circumstances are
contained in the mandatory section of NRS 484.795 or exist when an officer has probable
cause to believe other criminal misconduct is afoot. This rule will help minimize arbitrary
arrests based on race, religion, or other improper factors and will benefit law enforcement by
limiting the high costs associated with arrests for minor traffic offenses.
[Headnote 7]
In applying this test, we hold that Officer Sceirine abused his discretion because he had no
legitimate reason to subject Bayard to the humiliation of a full custodial arrest instead of
issuing him a citation. Bayard was cooperative at all times, provided the customary
identification, volunteered that he was carrying a concealed weapon and furnished a valid
permit, and even agreed to a search of his person for potential drugs and other weapons. The
officer was not permitted to arrest Bayard based on a hunch or whim that Bayard was
engaged in other illegal activity that might be revealed through a subsequent strip search or
car search. The arrest was unlawful and violated Bayard's state constitutional right to be free
from an unlawful search or seizure.
[Headnote 8]
The granting of a motion to suppress preclude[s] the introduction of evidence at trial
which is claimed to be inadmissible for constitutional reasons, and is the remedy
contemplated by our criminal code.
23
While in jail, Bayard was strip searched and narcotics
were found on his person. He was then prosecuted for possessing and trafficking illegal
drugs.
__________

21
36 P.3d 892 (Mont. 2001).

22
Id. at 896.

23
Cook v. State, 85 Nev. 692, 694-95, 462 P.2d 523, 526 (1969).
possessing and trafficking illegal drugs. Bayard filed a pretrial motion to suppress the
evidence claiming the arrest was unlawful. The district court approved the motion to suppress
and the State appeals. We agree the illegal drugs must be excluded from evidence because
they were the product of an unlawful search and seizure in violation of Bayard's state
constitutional rights.
CONCLUSION
We conclude that NRS 484.795 governs an officer's ability to arrest an individual or issue
the individual a citation for violating Nevada's traffic code. NRS 484.795 contains both a
mandatory provision and a discretionary provision. We limit our holding to the discretionary
provision. Under the discretionary provision, an officer has discretion to arrest an individual
or issue the individual a traffic citation for committing a traffic violation. The officer's
discretion is not unfettered, however, and may be abused if exercised in an unreasonable
manner. We further conclude that if an officer abuses his discretion, the resulting arrest is in
violation of Article 1, Section 18 of the Nevada Constitution.
We affirm the district court's order suppressing the illegal narcotics found on Bayard's
person during the subsequent search and seizure because no special circumstances warranting
an arrest were presented to the district court and the use of the fruits of the improper arrest
implicated the Nevada Constitution.
____________
119 Nev. 248, 248 (2003) Hathaway v. State
MICHAEL JOSEPH HATHAWAY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 39512
June 26, 2003 71 P.3d 503
Proper person appeal from an order of the district court denying appellant's
post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
County; John S. McGroarty, Judge.
After pleading guilty to first-degree murder, sexual assault, and attempted sexual assault,
defendant filed a proper person post-conviction petition for a writ of habeas corpus. The
district court denied petition as untimely without conducting an evidentiary hearing.
Defendant appealed. The supreme court held that, if true, defendant's assertions that his
petition was filed untimely due to his erroneous belief that his counsel had filed a direct
appeal constituted good cause for the untimely filing, and thus, evidentiary hearing was
necessary.
tuted good cause for the untimely filing, and thus, evidentiary hearing was necessary.
Michael Joseph Hathaway, Lovelock, in Proper Person.
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Good cause for purposes of failing to file a post-conviction petition for writ of habeas corpus within the one-year deadline
means a substantial reason that affords a legal excuse. NRS 34.726(1).
2. Habeas Corpus.
In order to demonstrate good cause in failing to file a post-conviction petition for writ of habeas corpus within the one-year
deadline, a petitioner must show that an impediment external to the defense prevented him or her from complying with the state
procedural default rules. NRS 34.726(1).
3. Habeas Corpus.
An impediment external to the defense, which prevented a defendant from filing a post-conviction petition for a writ of habeas
corpus within the one-year deadline, may be demonstrated by a showing that the factual or legal basis for a claim was not
reasonably available to counsel or that some interference by officials made compliance impracticable. NRS 34.726(1).
4. Habeas Corpus.
A claim of ineffective assistance of counsel may excuse a defendant's failure to file a post-conviction petition for writ of
habeas corpus within the one-year deadline if counsel was so ineffective as to violate the Sixth Amendment; however, a petitioner
must demonstrate cause for raising the ineffective assistance of counsel claim in an untimely fashion. U.S. Const. amend. 6; NRS
34.726(1).
5. Habeas Corpus.
A claim or allegation that was reasonably available to the post-conviction relief petitioner during the statutory time period for
filing a post-conviction petition for a writ of habeas corpus would not constitute good cause to excuse the delay. NRS 34.726(1).
6. Habeas Corpus.
An appeal deprivation claim is not good cause for filing a post-conviction relief petition for a writ of habeas corpus outside of
the one-year statutory filing period if that claim was reasonably available to the petitioner during the statutory time period. Claims
that counsel failed to inform the petitioner of the right to appeal, that the petitioner received misinformation about the right to
appeal, or that counsel refused to file an appeal after the petitioner requested an appeal and the petitioner did not believe that
counsel had filed an appeal on his or her behalf would all be reasonably available to the petitioner within the statutory time period.
Thus, such claims must be filed within the one-year statutory period unless the petitioner can demonstrate that some other cause
existed to excuse the delay. NRS 34.726(1).
7. Criminal Law.
Trial counsel is ineffective if he or she fails to file a direct appeal after a defendant has requested or expressed a desire for a
direct appeal. Under these facts, counsel's performance is deficient and prejudice is presumed. U.S. Const. amend. 6.
8. Habeas Corpus.
A post-conviction relief petitioner's reliance upon his counsel to file a direct appeal is sufficient cause to excuse a procedural
default if the petitioner demonstrates: (1) he actually believed his counsel was pursuing his direct appeal, (2) his belief was
objectively reasonable, and (3) he filed his state post-conviction relief petition within a reasonable time after he should have
known that his counsel was not pursuing his direct appeal. NRS 34.726(1).
9. Habeas Corpus.
A petitioner can establish good cause for the delay in filing his petition for writ of habeas corpus if the petitioner establishes
that the petitioner reasonably believed that counsel had filed an appeal and that the petitioner filed a habeas corpus petition within
a reasonable time after learning that a direct appeal had not been filed. NRS 34.726(1).
10. Habeas Corpus.
If defendant's assertions were believed, defendant who filed post-conviction relief petition for writ of habeas corpus after the
one-year statutory deadline showed good cause for untimely filing where defendant claimed that his untimely filing of petition was
due to his erroneous belief that his attorney had filed a direct appeal as he had requested. Therefore, remand was necessary for trial
court to conduct evidentiary hearing. NRS 34.726(1).
OPINION
Per Curiam:
Appellant Michael J. Hathaway filed an untimely proper person post-conviction petition
for a writ of habeas corpus in the district court. Hathaway argued that he had good cause to
excuse the delay in filing his habeas corpus petition because he thought his attorney was
pursuing a direct appeal and he did not learn that his attorney had not filed a direct appeal
until after the statutory time period for filing a habeas corpus petition had expired. Hathaway
argued that he filed his habeas corpus petition within a reasonable time after learning that his
attorney had not filed a direct appeal. The district court, relying on this court's holding in
Harris v. Warden,
1
determined that Hathaway had not demonstrated adequate cause to
excuse his delay and denied the petition as procedurally time-barred.
__________

1
114 Nev. 956, 964 P.2d 785 (1998).
We conclude that the district court erroneously relied upon Harris to determine that
Hathaway had not demonstrated cause for his delay. Harris does not preclude a finding of
good cause in every case in which the good cause allegation is based upon an appeal
deprivation claim. Rather, Harris stands for the proposition that an appeal deprivation claim
is not good cause if that claim was reasonably available to the petitioner within the one-year
statutory period for filing a post-conviction habeas petition. A petitioner's mistaken but
reasonable belief that his or her attorney was pursuing a direct appeal is good cause if the
petitioner raises the claim within a reasonable time after learning that his or her attorney was
not in fact pursuing a direct appeal on the petitioner's behalf.
FACTS
On December 11, 1998, the district court convicted Hathaway, pursuant to a guilty plea, of
one count of first-degree murder, one count of sexual assault, and one count of attempted
sexual assault. The district court sentenced Hathaway to serve two concurrent terms in the
Nevada State Prison of life with the possibility of parole and a third concurrent term of 20
years with parole eligibility after 8 years. No direct appeal from the judgment of conviction
was filed.
On November 6, 2001, Hathaway filed a proper person post-conviction petition for a writ
of habeas corpus in the district court. In his petition, among other things, Hathaway claimed
that he had been deprived of a direct appeal without his consent. Hathaway asserted that he
had cause to excuse the delay in filing his petition because he had believed that his attorney
had filed a direct appeal and that he filed his petition within a reasonable time after learning
that his attorney had not filed a direct appeal. Hathaway alleged that immediately after
sentencing he whispered to his attorney that he wanted a direct appeal and that his attorney
told him that the attorney would take care of it. Hathaway stated that his attorney failed to
respond to any subsequent correspondence and that he finally learned that a direct appeal had
not been filed when he wrote to this court.
The State opposed Hathaway's petition. The State argued that the petition was procedurally
time-barred and that Hathaway had failed to demonstrate adequate cause for the delay.
Hathaway filed a reply. Pursuant to NRS 34.750 and NRS 34.770, the district court declined
to appoint post-conviction counsel or to conduct an evidentiary hearing. The district court
agreed with the State and denied Hathaway's petition on the ground that it was procedurally
time-barred. This appeal followed.
This court's preliminary review of the record on appeal revealed that the district court may
have erroneously relied upon this court's holding in Harris to determine that Hathaway had
not demonstrated good cause.
holding in Harris to determine that Hathaway had not demonstrated good cause. Accordingly,
this court directed the State to file points and authorities addressing whether this court should
adopt the reasoning of Loveland v. Hatcher,
2
clarify this court's holding in Harris and
remand the appeal for an evidentiary hearing. The State argues that Harris should not be
modified, and that even if this court modified Harris, this court should determine that
Hathaway was not entitled to an evidentiary hearing. We disagree.
DISCUSSION
NRS 34.726(1) provides that a post-conviction petition for a writ of habeas corpus must be
filed within one year after entry of the judgment of conviction, if no direct appeal was taken,
unless the petitioner demonstrates good cause for the delay. Hathaway filed his petition
almost three years after the district court entered the judgment of conviction. Therefore,
Hathaway's petition was untimely filed and should have been dismissed unless Hathaway
demonstrated good cause for the delay.
[Headnotes 1-5]
Generally, good cause' means a substantial reason; one that affords a legal excuse.'
3
In order to demonstrate good cause, a petitioner must show that an impediment external to the
defense prevented him or her from complying with the state procedural default rules.
4
An
impediment external to the defense may be demonstrated by a showing that the factual or
legal basis for a claim was not reasonably available to counsel, or that some interference by
officials,' made compliance impracticable.
5
A claim of ineffective assistance of counsel
may also excuse a procedural default if counsel was so ineffective as to violate the Sixth
Amendment.
6
However, in order to constitute adequate cause, the ineffective assistance of
counsel claim itself must not be procedurally defaulted.
7
In other words, a petitioner must
demonstrate cause for raising the ineffective assistance of counsel claim in an untimely
fashion. In terms of a procedural time-bar, an adequate allegation of good cause would
sufficiently explain why a petition was filed beyond the statutory time period.
__________

2
231 F.3d 640 (9th Cir. 2000).

3
Colley v. State, 105 Nev. 235, 236, 773 P.2d 1229, 1230 (1989) (quoting State v. Estencion, 625 P.2d 1040,
1042 (Haw. 1981)).

4
Pellegrini v. State, 117 Nev. 860, 886-87, 34 P.3d 519, 537 (2001); Lozada v. State, 110 Nev. 349, 353,
871 P.2d 944, 946 (1994); Passanisi v. Director, Dep't Prisons, 105 Nev. 63, 66, 769 P.2d 72, 74 (1989).

5
Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).

6
Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Carrier, 477 U.S. at 488-89); see also Crump v.
Warden, 113 Nev. 293, 304, 934 P.2d 247, 253 (1997).

7
Edwards, 529 U.S. at 453.
allegation of good cause would sufficiently explain why a petition was filed beyond the
statutory time period. Thus, a claim or allegation that was reasonably available to the
petitioner during the statutory time period would not constitute good cause to excuse the
delay.
The district court determined that Hathaway failed to demonstrate adequate cause to
excuse his delay pursuant to this court's holding in Harris.
8
In Harris, an untimely
post-conviction petition for a writ of habeas corpus was filed in the district court.
9
In an
attempt to demonstrate good cause, Harris argued that his trial counsel was ineffective for
failing to inform him of the right to file a direct appeal and that his counsel's ineffective
assistance constituted good cause and prejudice.
10
This court rejected Harris' argument and
held:
[A]n allegation that trial counsel was ineffective in failing to inform a claimant of the
right to appeal from the judgment of conviction, or any other allegation that a claimant
was deprived of a direct appeal without his or her consent, does not constitute good
cause to excuse the untimely filing of a petition pursuant to NRS 34.726.
11

This court further held that Harris was required to demonstrate some other excuse for his
delay.
[Headnote 6]
Although this court generally will not disturb a district court's finding regarding good
cause,
12
we conclude that the district court's reliance upon Harris, although understandable,
was misplaced in the instant case. Harris should not be read so expansively as to preclude
consideration of whether Hathaway had demonstrated cause for the delay in filing his petition
simply because his good cause allegation involved an appeal deprivation claim. We take this
opportunity to clarify our holding in Harris; an appeal deprivation claim is not good cause if
that claim was reasonably available to the petitioner during the statutory time period. Thus,
claims that counsel failed to inform the petitioner of the right to appeal or that the petitioner
received misinformation about the right to appeal would be reasonably available to the
petitioner within the statutory time period. Another claim that would be reasonably available
to the petitioner within the statutory time period is a claim that counsel refused to file an
appeal after the petitioner requested an appeal where the petitioner did not believe that
counsel had filed an appeal on his or her behalf.
__________

8
114 Nev. 956, 964 P.2d 785.

9
Id. at 957, 964 P.2d at 786.

10
Id. at 957-58, 964 P.2d at 786.

11
Id. at 959, 964 P.2d at 787.

12
Colley, 105 Nev. at 236, 773 P.2d at 1230.
the petitioner within the statutory time period is a claim that counsel refused to file an appeal
after the petitioner requested an appeal where the petitioner did not believe that counsel had
filed an appeal on his or her behalf. These claims must be filed within the one-year statutory
period unless the petitioner can demonstrate that some other cause existed to excuse the
delay.
[Headnotes 7-9]
In the instant case, Hathaway claimed that he had good cause to excuse his delay because
he requested that his attorney file an appeal, his attorney had affirmatively indicated that he
would file an appeal, he believed that his attorney had filed an appeal on his behalf, and he
filed his habeas corpus petition within a reasonable time after learning that his attorney had
not filed an appeal.
13
Trial counsel is ineffective if he or she fails to file a direct appeal after
a defendant has requested or expressed a desire for a direct appeal; counsel's performance is
deficient and prejudice is presumed under these facts.
14
In Loveland, the Ninth Circuit Court
of Appeals recognized that [i]f a defendant reasonably believes that his counsel is pursuing
his direct appeal he most naturally will not file his own post-conviction relief petition.
15
The court in Loveland held that a petitioner's reliance upon his counsel to file a direct appeal
is sufficient cause to excuse a procedural default if the petitioner demonstrates: (1) he
actually believed his counsel was pursuing his direct appeal, (2) his belief was objectively
reasonable, and (3) he filed his state post-conviction relief petition within a reasonable time
after he should have known that his counsel was not pursuing his direct appeal.
16
We
conclude that the test set forth in Loveland is a reasonable test for evaluating an allegation
of good cause based upon a petitioner's mistaken belief that counsel had filed a direct
appeal.
__________

13
Hathaway raised several further arguments in favor of consideration of his late petition. First, Hathaway
argued that he had good cause to excuse his delay because he had a difficult time retrieving his files from his
attorney. This court has held that trial counsel's failure to send a petitioner his or her file does not constitute
good cause to excuse a procedural default. Hood v. State, 111 Nev. 335, 890 P.2d 797 (1995). Second,
Hathaway argued that the time for filing should be tolled because of an alleged mental illness, a Pervasive
Developmental Disorder, Not Otherwise Specified. Hathaway failed to demonstrate that any alleged mental
illness prevented him from filing a timely habeas corpus petition. Finally, Hathaway argued that the procedural
time-bar should not apply to his habeas corpus petition because he filed a petition pursuant to NRS 34.360.
Because Hathaway challenged the validity of his judgment of conviction, Hathaway's petition was properly
construed to be a post-conviction petition for a writ of habeas corpus. NRS 34.724(2)(b). Consequently, the
procedural time-bar set forth in NRS 34.726 applies to Hathaway's petition.

14
Roe v. Flores-Ortega, 528 U.S. 470, 477-78, 483-85 (2000); Thomas v. State, 115 Nev. 148, 150, 979 P.2d
222, 223 (1999); Davis v. State, 115 Nev. 17, 20, 974 P.2d 658, 659-60 (1999); Lozada, 110 Nev. at 354-57,
871 P.2d at 947-49.

15
231 F.3d at 644.

16
Id.
Loveland is a reasonable test for evaluating an allegation of good cause based upon a
petitioner's mistaken belief that counsel had filed a direct appeal. Thus, a petitioner can
establish good cause for the delay under NRS 34.726(1) if the petitioner establishes that the
petitioner reasonably believed that counsel had filed an appeal and that the petitioner filed a
habeas corpus petition within a reasonable time after learning that a direct appeal had not
been filed.
[Headnote 10]
Hathaway raised a claim supported by specific facts not belied by the record, which if true,
would entitle him to relief.
17
Because the district court did not conduct an evidentiary
hearing regarding Hathaway's allegation, we cannot determine whether Hathaway believed
that his attorney had filed a direct appeal, whether Hathaway's belief was objectively
reasonable, and whether Hathaway filed his habeas corpus petition within a reasonable time.
Accordingly, we remand for an evidentiary hearing to determine whether Hathaway can
demonstrate good cause under the approach set forth above. If Hathaway demonstrates good
cause based on his ineffective assistance of counsel claim, he will have necessarily
established undue prejudice to excuse the procedural time-bar.
18

CONCLUSION
We reverse the district court's order in its entirety and remand this case for an evidentiary
hearing to determine whether Hathaway can demonstrate good cause to excuse the delay in
filing his petition.
19

__________

17
See Mann v. State, 118 Nev. 351, 353, 46 P.3d 1228, 1231 (2002); Hargrove v. State, 100 Nev. 498, 202,
686 P.2d 222, 225 (1984).

18
Flores-Ortega, 528 U.S. at 483-85; Lozada, 110 Nev. at 356-57, 871 P.2d at 948-49.

19
Because we conclude that an evidentiary hearing is necessary, we decline to reach the merits of any of the
claims raised in the petition. Any final order entered by the district court shall address those claims. We
conclude that oral argument and briefing are unwarranted in this matter. Luckett v. Warden, 91 Nev. 681, 682,
541 P.2d 910, 911 (1975). This is our final disposition of this appeal. Any subsequent appeal shall be docketed
as a new matter.
____________
119 Nev. 256, 256 (2003) Sellers v. Dist. Ct.
DEAN K. SELLERS, Petitioner, v. THE FOURTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF ELKO, and THE
HONORABLE J. MICHAEL MEMEO, District Judge, Respondents, and RICHARD
J. MATTHEWS, Real Party in Interest.
No. 40766
June 26, 2003 71 P.3d 495
Original proper person petition for a writ of certiorari, challenging a justice's court
judgment awarding damages, prejudgment interest, costs and attorney fees.
Attorney sued a non-attorney for unpaid attorney fees, and both parties proceeded in
proper person. The district court entered judgment for attorney on his claim for $5,075 and
also awarded him prejudgment interest, $230 for costs of suit, and $1,500 in attorney fees.
Non-attorney filed proper person petition for a writ of certiorari. The supreme court held that:
(1) the statute allowing the prevailing party in any civil action to receive a reasonable attorney
fee does not authorize a fee award to a prevailing proper person litigant, even if he or she is
an attorney, (2) attorney was not entitled to attorney fees, and (3) attorney's
testimony-in-lieu-of-memorandum did not deprive the justice's court of jurisdiction to award
prejudgment interest and costs.
Petition granted in part.
Dean K. Sellers, Gilbert, Arizona, in Proper Person.
Matthews & Wines and Richard J. Matthews, Elko, for Real Party in Interest.
1. Justices of the Peace.
Losing party in collection action was precluded from appealing decision of the justice court to the supreme court to determine
if the justice court exceeded its jurisdiction in awarding attorney fees because the district court had final appellate jurisdiction over
cases arising in justice's court. Thus, party could seek relief only through a petition for writ of certiorari.
2. Certiorari.
Certiorari is properly used to correct an inferior tribunal's judicial action if the tribunal exceeded its jurisdiction.
3. Costs; Interest.
Prevailing party's testimony-in-lieu-of-memorandum did not deprive the justice court of jurisdiction to award prejudgment
interest and costs in action to collect unpaid attorney fees where prevailing party testified under oath that he incurred costs of $126
for the filing fee plus $104 for service of process, and losing party did not cross-examine prevailing party regarding his costs,
challenge the amount, or object to the lack of a memorandum. NRS 69.020, 69.040(1), 99.040(1)(a).
4. Costs.
Statute allowing the prevailing party in any civil action to receive a reasonable attorney fee does not authorize an award of
attorney fees to a prevailing proper person litigant, even if he or she is an attorney. Legislature's clear intent is that the prevailing
party in a justice court be reimbursed by the losing party for out-of-pocket costs incurred to prosecute the suit, and an attorney fee
is commonly understood to be the sum paid or charged for legal services. NRS 69.030.
5. Costs.
Justice's court exceeded its jurisdiction by awarding attorney fees to attorney proper person litigant who prevailed in collection
action, where litigant did not incur and was not obligated to pay such fees. NRS 69.030.
OPINION
Per Curiam:
This proper person writ petition presents an issue of first impressionwhether NRS
69.030 authorizes an award of attorney fees to a prevailing proper person litigant. We
conclude that it does not and that a justice's court exceeds its jurisdiction by awarding
attorney fees to a prevailing proper person litigant who has not incurred any obligation to pay
attorney fees, even if the proper person litigant is an attorney.
In the proceedings underlying this petition, Richard K. Matthews, an attorney, sued Dean
K. Sellers, a non-attorney, in Elko justice's court for unpaid attorney fees. The parties both
proceeded in proper person, and the justice's court entered judgment for Matthews on his
claim for $5,075. In addition to the principle amount, the justice's court awarded Matthews
prejudgment interest, $230 for costs of suit and $1,500 in attorney fees. Following an
unsuccessful appeal to the district court, Sellers filed this proper person petition for a writ of
certiorari.
1

[Headnotes 1, 2]
Because the district court has final appellate jurisdiction over cases arising in justice's
court,
2
Sellers cannot appeal to this court and may seek relief only through a writ petition.
3
Certiorari is properly used to correct an inferior tribunal's judicial action if the tribunal
exceeded its jurisdiction.
__________

1
At our direction, Matthews filed an answer limited to the justice's court's authority to award attorney fees to
a proper person attorney litigant who incurred no attorney fees. We deny as moot Sellers' transcript requests,
received January 10 and 17, 2003; the transcript was filed February 10, 2003.

2
Nev. Const. art. 6, 6.

3
See City of Las Vegas v. Carver, 92 Nev. 198, 547 P.2d 688 (1976) (holding that because supreme court
lacks appellate jurisdiction to review a district court judgment entered on appeal from municipal court, an
aggrieved party's only remedy would be a timely petition for writ of certiorari).
properly used to correct an inferior tribunal's judicial action if the tribunal exceeded its
jurisdiction.
4

[Headnote 3]
The justice's court did not exceed its jurisdiction by entering judgment for Matthews, and
awarding him prejudgment interest and costs. The court had jurisdiction over the subject
matter and parties, NRS 99.040(1)(a) authorizes interest on the amount of the judgment from
the time it became due, NRS 69.020 provides that the prevailing party in a justice's court is
entitled to costs, and NRS 69.040(1) provides that the justice of the peace must tax and
include in the judgment the costs allowed by law to the prevailing party. Although Matthews
did not file a memorandum of costs, as required by NRS 69.040(2), he testified under oath
that his costs were $230: the $126 filing fee plus $104 for service of process on Sellers in
Arizona. Sellers did not cross-examine Matthews regarding his costs, challenge the amount or
object to the lack of a memorandum. NRS 69.040's purpose was fully satisfied, and
Matthews' testimony-in-lieu-of-memorandum did not deprive the justice's court of
jurisdiction to award costs.
5

[Headnotes 4, 5]
The justice's court did exceed its jurisdiction, however, by awarding Matthews attorney
fees that he did not incur and was not obligated to pay. NRS 69.030 provides that the
prevailing party in a justice's court civil action shall receive, in addition to the costs of court,
a reasonable attorney fee, and that the justice of the peace shall fix the fee and tax it as costs
against the losing party. This court has not yet addressed the question whether the justice's
court has jurisdiction under this statute to award attorney fees to a litigant who has
represented himself, has not retained an attorney and has not incurred any attorney fees.
Other states that have addressed the question almost uniformly do not allow non-attorney
proper person litigants to recover attorney fees.
6
In contrast, states that have considered
whether an attorney proper person litigant may be awarded attorney fees are divided, with a
slight majority permitting such fees.
__________

4
NRS 34.020; see State of Nevada v. Dist. Ct., 116 Nev. 127, 133-34, 994 P.2d 692, 696-97 (2000) (holding
that supreme court may exercise its constitutional power to entertain a petition for extraordinary writ seeking
review of a municipal or justice's court decision, despite district court's appellate authority, to decide an
unsettled issue of statewide importance).

5
Ex rel. Wolf v. Justice of the Peace, 47 Nev. 359, 223 P. 821 (1924), which held that the justice's court
lacked jurisdiction to tax costs because the prevailing party failed to file and serve a memorandum, is not on
point because the prevailing party there did not testify as to his costs.

6
Sonja A. Soehnel, Annotation, Recovery Under State Law of Attorney's Fees by Lay Pro Se Litigant, 14
A.L.R.5th 947 (1993 & Supp. 2002).
vided, with a slight majority permitting such fees.
7
Decisions approving fee awards to
attorney proper person litigants generally do so on the basis that an attorney is paid for
rendering legal services, and if he renders such services on his own behalf, it results in as
much pecuniary loss to him as if he paid another attorney to render the same services.
8
So, if
a losing party must pay attorney fees anyway, it should make no difference whether the fees
are to be paid to an attorney representing himself or another attorney employed by him.
9
In
short, a lawyer's time and advice are his stock in trade.
10

Of course, other professionals' time and advice are also their stock in trade, and it is unfair
to differentiate on this basis alone. Some decisions disapproving fees to attorney proper
person litigants, as well as non-attorney proper person litigants, do so on the basis that an
attorney-client relationship is a prerequisite to an attorney fees award,
11
or that an attorney
proper person litigant must be genuinely obligated to pay attorney fees before he may recover
such fees.
12
And at least one state has declined to adopt a one-sided system whereby attorney
proper person litigants may recover attorney fees awards without incurring any obligation to
pay legal fees, while non-attorney proper person litigants may not, primarily because it would
appear, and be, unfair.
13

We join those states that decline to have one rule for attorneys who successfully represent
themselves in court and a different rule for non-attorneys who do the same. We interpret NRS
69.030 to require that all proper person litigants, whether attorney or non-attorney, be
obligated to pay attorney fees as a prerequisite for an award of prevailing party attorney fees.
This interpretation gives effect to the Legislature's clear intent that the prevailing party in
justice's court be reimbursed by the losing party for out-of-pocket costs incurred to prosecute
the suit. To interpret the statute otherwise would require us to redefine what is meant by an
attorney fee, which is commonly understood to be the sum paid or charged for legal
services.
__________

7
C. Clifford Allen, III, Annotation, Right of Party Who Is Attorney and Appears for Himself to Award of
Attorney's Fees Against Opposing Party as Element of Costs, 78 A.L.R.3d 1119 (1977 & Supp. 2002).

8
See, e.g., Winer v. Jonal Corporation, 545 P.2d 1094, 1096-97 (Mont. 1976).

9
Id.

10
Friedman v. Backman, 453 So. 2d 938, 938 (Fla. Dist. Ct. App. 1984).

11
See, e.g., Connor v. Cal-Az Properties, Inc., 668 P.2d 896, 898-99 (Ariz. Ct. App. 1983).

12
See, e.g., Calhoun v. Calhoun, 529 S.E.2d 14, 17 (S.C. 2000); Lisa v. Strom, 904 P.2d 1239, 1243 (Ariz.
Ct. App. 1995).

13
Swanson & Setzke, Chtd. v. Henning, 774 P.2d 909 (Idaho Ct. App. 1989), cited with approval in Bowles v.
Pro Indiviso, Inc., 973 P.2d 142, 148 (Idaho 1999).
to redefine what is meant by an attorney fee, which is commonly understood to be the sum
paid or charged for legal services.
14

Because Matthews represented himself and did not pay or incur any obligation to pay
attorney fees, the justice's court exceeded its jurisdiction by awarding such fees. We therefore
grant, in part, the petition for a writ of certiorari. The clerk of this court shall issue a writ of
certiorari directing the district court to remand this matter to the Elko Township Justice's
Court so that it may modify its judgment, consistent with this opinion, by deleting the $1,500
attorney fees award in Matthews v. Sellers, case number CV2002-0115.
____________
119 Nev. 260, 260 (2003) Wheeler Springs Plaza, LLC v. Beemon
WHEELER SPRINGS PLAZA, LLC, Appellant, v. DENNIS BEEMON; DONALD
MARKS; STEVE WILLIAMS; MIKE BOLEN; PHYLLIS MARKS; JAMES M.
HUDSPETH; and MARY ANNE HUDSPETH, Respondents.
No. 39094
July 2, 2003 71 P.3d 1258
Appeal from a post-remand order regarding judgment in a landlord-tenant dispute. Fifth
Judicial District Court, Nye County; Richard Wagner, Judge.
Commercial tenants brought breach of contract action against landlord, which
counterclaimed for breach of lease. The district court entered judgment on jury verdict for
each party on their respective claims and, after offsetting damage awards, awarded damages,
fees, and costs to tenants. Landlord appealed. While appeal was pending, landlord tendered
payment in order to prevent garnishments. On appeal, the supreme court reversed judgment
against landlord and award of costs and fees and remanded for determination of damages. On
remand, the district court vacated award of fees and costs, denied tenant's motion to dismiss
based on mootness, and denied landlord's claims for interest, costs, attorney fees, and
restitution. Landlord appealed. The supreme court, Maupin, J., held that: (1) as a matter of
first impression, landlord did not waive right to appeal by tendering payment of judgment; (2)
landlord was entitled to interest, costs, and attorney fees; (3) landlord was entitled to
restitution; and (4) tenants, rather than their attorneys, were responsible for restitution of
attorney fees.
__________

14
See McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986) (recognizing that rules of
statutory construction require words in a statute to be given their plain meaning unless it violates the spirit of the
act); Merriam-Webster's Collegiate Dictionary 426 (10th ed. 1995) (defining a fee as a fixed charge or a
sum paid or charged for a service).
Goold, Patterson, Ales, Roadhouse & Day, Chartered, and Jeffrey D. Patterson, Las
Vegas, for Appellant.
Dennis Beemon, Las Vegas, in Proper Person.
Mike Bolen, Pahrump, in Proper Person.
James M. Hudspeth, Sparks, in Proper Person.
Mary Anne Hudspeth, Sparks, in Proper Person.
Donald Marks, Reno, in Proper Person.
Phyllis Marks, Reno, in Proper Person.
Steve Williams, in Proper Person.
When a reviewing court determines the issues on appeal and reverses the judgment specifically directing the lower court with
respect to particular issues, the trial court has no discretion to interpret the reviewing court's order; rather, it is bound to
specifically carry out the reviewing court's instructions.
2. Action; Appeal and Error.
The issue of mootness goes to the controversy's justiciability and must be considered at all stages of the litigation. Thus, a
party cannot waive the issue on appeal due to a failure to raise it in the trial court.
Payment of a judgment only waives the right to appeal or renders the matter moot when the payment is intended to
compromise or settle the matter. Accordingly, the failure to file a supersedeas bond or seek a stay of execution of a judgment does
not amount to acquiescence in the judgment.
Commercial landlord did not waive right to appeal by tendering payment of judgment in favor of tenants in order to stop
garnishments of its accounts, as payment was not intended to compromise or settle the matter but rather was coerced.
5. Courts.
Under the law-of-the-case doctrine, when an appellate court decides a rule of law, that decision governs the same issues in
subsequent proceedings.
6. Courts.
The law-of-the-case doctrine only applies to issues previously determined, not to matters left open by the appellate court.
Commercial landlord was entitled to interest, costs, and attorney fees on reversal and remand of judgment for tenants in
breach of contract action, where remand order specifically instructed the district court to award landlord "rent and other
charges due" under lease agreements,
award landlord rent and other charges due under lease agreements, and each lease agreement expressly provided for interest,
costs, and attorney fees.
Commercial landlord was entitled to restitution for monies, including judgment, costs, and attorney fees, it paid to tenants
while its appeal of breach of contract judgment was pending. Although supreme court did not expressly order restitution when it
reversed and remanded trial court and landlord failed to obtain supersedeas bond or stay of execution, supreme court order
required trial court to award landlord rent and other charges due. Tenants would not be prejudiced by award of restitution as they
had notice of appeal when they received payment on judgment.
To permit one who has collected money upon a judgment later reversed to retain the same would in most cases result in unjust
enrichment.
Commercial tenants, rather than their attorneys, were responsible for restitution of attorney fees that commercial landlord had
paid to tenants while action was pending on appeal, which resulted in reversal in favor of landlord, because client, not attorney, is
awarded fees as prevailing party, and statutes and lease agreement provided that prevailing party would be entitled to fees.
11. Costs.
The general rule is that attorney fees are not recoverable unless authorized by agreement or by statute or rule.
Before Agosti, C. J., Maupin and Gibbons, JJ.
OPINION
This case presents an issue of first impression in Nevada: whether payment of a monetary
judgment pending an appeal renders the appeal moot. We hold that payment of a judgment
only constitutes a waiver of the judgment debtor's appellate rights when the payment is
intended as a compromise or settlement of the matter.
FACTS
Respondents Dennis Beemon, Donald Marks, Steve Williams, Mike Bolen, Phyllis Marks,
James M. Hudspeth and Mary Anne Hudspeth (the Tenants), entered into commercial leases
with appellant Wheeler Springs Plaza, LLC. The Tenants later filed a complaint against
Wheeler Springs alleging breach of contract and misrepresentation. In response, Wheeler
Springs filed counter-claims alleging, among other things, breaches of the various leases by
the Tenants. A jury returned verdicts in favor of both parties on their respective claims. After
offsetting the damage awards, the district court determined that the Tenants were the
prevailing parties and awarded them their individual damages, attorney fees, and costs
pursuant to the lease agreements.
and awarded them their individual damages, attorney fees, and costs pursuant to the lease
agreements.
Wheeler Springs appealed the judgment and award of attorney fees and costs, primarily
contending that substantial evidence did not support the jury verdicts. It did not seek a stay of
the judgment pending appeal or post a supersedeas bond.
The Tenants garnished Wheeler Springs' accounts to enforce payment of the judgment
while the appeal was pending. Rather than undergo further garnishments, Wheeler Springs
tendered payment of the outstanding balance owed on the judgments. Thereafter, in an
unpublished order, we reversed the judgment against Wheeler Springs, concluding that
substantial evidence did not support the jury's verdict. We also reversed the award of attorney
fees and costs. We then remanded the case to the district court to redetermine the amount of
damages owed to Wheeler Springs.
On remand, the district court ordered the parties to submit briefs on the issue of damages
to be awarded. Wheeler Springs submitted a brief calculating its damages, including interest
and its own attorney fees. In response, the Tenants filed a motion to dismiss the remanded
cases for lack of jurisdiction, arguing that Wheeler Springs' payment of the judgment
rendered the proceedings moot. Wheeler Springs then filed a countermotion for restitution of
the monies Wheeler Springs paid to the Tenants pending the original appeal.
The district court entered a series of orders on these applications. On one hand, the district
court determined Wheeler Springs' contract damages, vacated the Tenants' award of attorney
fees and costs, and denied the Tenants' motion to dismiss for mootness, which as noted
above, was based upon the payment of the judgment by Wheeler Springs while the original
appeal was pending. On the other hand, the district court denied Wheeler Springs' claims for
interest, costs, attorney fees, and restitution on the grounds that such relief was beyond the
scope of the remand order, i.e., that the relief was not mandated under the law of the case
generated by the first appeal.
Wheeler Springs appeals from the post-remand order denying its claims for interest,
attorney fees, costs, and restitution.
DISCUSSION
[Headnote 1]
To resolve this case, we must determine whether the district court complied with our
mandate on remand, a question of law that this court reviews de novo.
1
When a reviewing
court determines the issues on appeal and reverses the judgment specifically directing the
lower court with respect to particular issues,
__________

1
See SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993).
issues on appeal and reverses the judgment specifically directing the lower court with respect
to particular issues, the trial court has no discretion to interpret the reviewing court's order;
rather, it is bound to specifically carry out the reviewing court's instructions.
2

Satisfaction of the original judgment
[Headnote 2]
We must first resolve whether Wheeler Springs' payment of the judgment constituted
acquiescence in it, thus rendering the proceedings in this case moot.
3

We have held that a party who accepts the benefits of a judgment waives the right to
appeal, because a party may not follow two legally inconsistent courses of action.
4
However, we have yet to decide whether payment of a judgment automatically renders an
appeal moot.
Some jurisdictions hold that a judgment debtor does not waive the right to appeal or render
the controversy moot by payment or satisfaction of the judgment under coercion, unless the
judgment creditor demonstrates that the payment or satisfaction was intended to compromise
or settle the matter.
5
In line with this view, the Supreme Court of Colorado notes the inherent
unfairness in imposing a waiver of appeal upon a party who has paid a judgment to avoid
a distress sale upon execution by the judgment creditor.
__________

2
See In re Dargie's Estate, 119 P.2d 438, 441 (Cal. Ct. App. 1941).

3
Wheeler Springs contends that the Tenants waived this issue because it was not raised during the pendency
of the first appeal. However, the issue of mootness goes to the controversy's justiciability and must be considered
at all stages of the litigation. See, e.g., Vieux Carre Property Owners v. Brown, 948 F.2d 1436, 1442-43 (5th
Cir. 1991) (concluding that district court has duty to consider mootness issue on remand); Commodity Futures
Trading Com'n v. Board of Trade, 701 F.2d 653, 658 (7th Cir. 1983) (pointing out that appellate court had duty
to vacate district court's findings in action that had become moot during previous appeal and noting that
appellate court would not vacate its prior decision because it had decided consolidated appeals and only one was
moot); see also Litman v. Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1510 (11th Cir. 1987) (noting that
an exception to the law of the case doctrine occurs when the presentation of new evidence or an intervening
change in the controlling law dictates a different result, or the appellate decision is clearly erroneous and, if
implemented, would work a manifest injustice).

4
Ford v. Ford, 105 Nev. 672, 676 n.1, 782 P.2d 1304, 1307 n.1 (1989); see also County of Clark v. Roosevelt
Title Ins., 80 Nev. 303, 306, 393 P.2d 136, 137 (1964); Basic Refractories v. Bright, 71 Nev. 248, 253, 286 P.2d
747, 749 (1955).

5
See Webb v. Crane Co., 80 P.2d 698, 708 (Ariz. 1938); Reitano v. Yankwich, 237 P.2d 6, 7 (Cal. 1951);
Reserve Life Ins. Co., Dallas, Tex. v. Frankfather, 225 P.2d 1035, 1039 (Colo. 1950); Younger v. Mitchell, 777
P.2d 789, 791 (Kan. 1989); Fruge v. Sonnier, 511 So. 2d 105, 106-07 (La. Ct. App. 1987); Grand River Dam
Authority v. Eaton, 803 P.2d 705, 709 (Okla. 1990); State v. Winthrop, 269 P. 793, 796 (Wash. 1928). We note
that the Texas rule was previously inapposite, but the Supreme Court of Texas recently changed its rule to be
consistent with several jurisdictions addressing the mootness issue. Compare Highland Church of Christ v.
Powell, 640 S.W.2d
posing a waiver of appeal upon a party who has paid a judgment to avoid a distress sale upon
execution by the judgment creditor.
6
Accordingly, jurisdictions not precluding appeal after
coercive satisfaction of a judgment have stated that a judgment debtor's payment without
attempting to stay execution pending appeal or to post a supersedeas bond does not amount to
voluntary satisfaction of a judgment or render the controversy moot.
7
Indeed, as the Supreme
Court of Kansas has noted, the filing of a supersedeas bond or seeking a stay of execution
pending appeal is permissive.
8

[Headnote 3]
We agree with the jurisdictions that do not preclude the right to appeal after coercive
satisfaction of a judgment. Courts are divided regarding what constitutes payment under
coercion; some hold that there must be actual threatened execution of the judgment,
9
while
others hold that the payment of a judgment, even before actual threat of execution thereon, is
sufficient.
10
Although we recognize that Wheeler Springs did not satisfy the judgment until a
garnishment actually coerced payment, we are of the view that actual or potential threat of
garnishment or execution is sufficient coercion to avoid a mootness challenge based upon
payment of the judgment. Thus, we hold that payment of a judgment only waives the right to
appeal or renders the matter moot when the payment is intended to compromise or settle the
matter. Accordingly, the failure to file a supersedeas bond or seek a stay of execution of a
judgment does not amount to acquiescence in the judgment.
__________
235, 236-37 (Tex. 1982) (stating that the well-settled rule of law is that an appeal becomes moot when the
judgment debtor voluntarily pays and satisfies the judgment, but noting an exception when payment was made
under duressit would have been very embarrassing for this religious institution to have execution issued
against it), with Miga v. Jensen, 96 S.W.3d 207, 212 (Tex. 2002) (holding that payment on a judgment will
not moot an appeal of that judgment if the judgment debtor clearly expresses an intent that he intends to exercise
his right of appeal and appellate relief is not futile).

6
Frankfather, 225 P.2d at 1039.

7
See Wales v. Greene, 270 P.2d 534, 538 (Cal. Ct. App. 1954); Grand River Dam Authority, 803 P.2d at 709.

8
Younger, 777 P.2d at 792. NRCP 62(d) is also permissive: When an appeal is taken the appellant by giving
a supersedeas bond may obtain a stay. The bond may be given at or after the time of filing the notice of appeal.
The stay is effective when the supersedeas bond is filed. Cf. V-1 Oil Co. v. People, 799 P.2d 1199, 1203 (Wyo.
1990) (The essence of posting a supersedeas bond by an appellant following judgment entry is to avoid a
mootness challenge that might otherwise arise if the judgment is paid before appeal is taken . . . .).

9
See Younger, 777 P.2d at 791.

10
See Reitano, 237 P.2d at 7; Frankfather, 225 P.2d at 1040; Webb, 80 P.2d at 707-08; Winthrop, 269 P. at
796.
[Headnote 4]
Here, after Wheeler Springs timely filed its appeal, the Tenants garnished Wheeler
Springs' accounts to enforce payment of the judgment. To stop the garnishments, which could
adversely affect its ability to secure credit, Wheeler Springs paid the outstanding balance
owed on the judgment. Thus, Wheeler Springs' payment of the judgment was not intended to
compromise or settle the matter; rather, the record indicates that the Tenants' garnishment of
Wheeler Springs' accounts coerced payment.
In light of our holding above, we conclude that Wheeler Springs did not waive its rights to
prosecute the original appeal when it paid the judgment. Accordingly, the issues on remand
and in this appeal are not moot.
Compliance with our prior order of remand
[Headnotes 5, 6]
Under the law-of-the-case doctrine, when an appellate court decides a rule of law, that
decision governs the same issues in subsequent proceedings.
11
The doctrine only applies to
issues previously determined, not to matters left open by the appellate court.
12

[Headnote 7]
On remand, the district court redetermined and awarded Wheeler Springs damages, but
refused to award Wheeler Springs interest, costs, and attorney fees, on the basis that this relief
was not mandated under the law of the case of the first appeal. In our remand order, however,
we specifically instructed the district court to award Wheeler Springs rent and other charges
due to Wheeler Springs under the various lease agreements with the Tenants. Each of the
respective lease agreements expressly provided for interest, costs, and attorney fees.
13
Thus,
because the law of the case on the original appeal mandates these awards, we conclude that
the district court erred in its failure to provide Wheeler Springs this relief.
__________

11
Bd. of Gallery of History v. Datecs Corp., 116 Nev. 286, 289, 994 P.2d 1149, 1150 (2000).

12
Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979).

13
Section 3.5 of the lease agreements provided that any such unpaid [rent] shall bear interest from the
thirtieth (30th) day after the due date thereof to the date of payment at the rate of eighteen percent (18%) per
annum. Section 26.3 of the lease agreements provided: In any action brought by Landlord or Tenant to enforce
any of its rights under or arising from this Lease, the prevailing party shall be entitled to receive its costs and
legal expenses, including reasonable attorneys' fees, whether such action is prosecuted to judgment or not.
[Headnote 8]
In light of our original order of reversal and remand, Wheeler Springs also requested
restitution for the monies it paidthe judgment, costs, and attorney feesto the Tenants. As
noted, the district court refused to award restitution, concluding that such a request was also
beyond our order of reversal and remand.
[Headnote 9]
We have stated: Upon the reversal of the judgment against him, the appellant is entitled
to the restitution from the respondent of all the advantages acquired by the latter by virtue of
the erroneous judgment.'
14
The Restatement of Restitution 74 (1937), extends this
principle:
A person who has conferred a benefit upon another in compliance with a judgment,
or whose property has been taken thereunder, is entitled to restitution if the judgment is
reversed or set aside, unless restitution would be inequitable or the parties contract that
payment is to be final . . . .
To permit one who has collected money upon a judgment later reversed to retain the same
would in most cases result in unjust enrichment.
15

Although we have recognized the principle of restitution when a judgment is reversed, we
have yet to decide whether the district court has the inherent authority to grant an order of
restitution when we have not expressly ordered it. However, other jurisdictions addressing the
issue have held that the trial court has inherent authority to order restitution when a judgment
has been reversed, even though the appellate court did not expressly order such relief.
16
The
California Court of Appeal has stated that a motion for restitution upon a reversed judgment
is within the sound discretion of the court and such a motion may be denied in exceptional
cases.
17

Here, the district court erroneously concluded that it was without discretion under the law
of the previous appeal to award restitution of the monies paid pursuant to the original
judgment.
__________

14
Jaksich v. Guisti, 36 Nev. 104, 112, 134 P. 452, 455 (1913) (quoting A.C. Freeman, Law of Judgments
482 (2d ed.)).

15
Rogers v. Bill & Vince's, Inc., 33 Cal. Rptr. 129, 131 (Ct. App. 1963).

16
See Moore & Son, Inc. v. Drewry & Associates, Inc., 945 F. Supp. 117, 121 (E.D. Va. 1996); Fitch v.
Kentucky-Tennessee Light & Power Co., 215 S.W.2d 91, 92 (Ky. Ct. App. 1948); Fender v. Hendley, 26 S.E.2d
887, 889 (Ga. 1943); Bank of America Nat. Trust & Sav. Ass'n v. McLaughlin, 99 P.2d 548, 550 (Cal. Ct. App.
1940).

17
Rogers, 33 Cal. Rptr. at 131.
tution of the monies paid pursuant to the original judgment. Because we embrace a new rule
concerning the satisfaction of money judgments pending appeal, and given the scope of the
original remand, we conclude that Wheeler Springs was entitled to restitution upon reversal
of the judgment against it. Wheeler Springs' failure to obtain a supersedeas bond or stay of
execution does not affect its entitlement to this equitable relief.
18

The Tenants argue that they would suffer prejudice if they were required to pay restitution
because of the substantial amount of time that has elapsed. But, it is said that the respondent
who collected upon the judgment immediately becomes a trustee for his opponent with
respect thereto.
19
Wheeler Springs' appeal was pending when the Tenants received
payments on the judgment; therefore, we conclude that the Tenants' prejudice argument is
without merit, as they were on notice that the judgment might be reversed.
[Headnote 10]
In addition to restitution for the paid judgment, we conclude that Wheeler Springs is
entitled to restitution for the attorney fees it paid to the Tenants. We note, however, that the
Tenants are responsible for restitution of the attorney fees, and not the Tenants' attorney as
Wheeler Springs contends.
[Headnote 11]
The general rule in Nevada is that attorney fees are not recoverable unless authorized by
agreement or by statute or rule.
20
The statutes that permit an allowance of attorney fees
specifically state that such an award is recoverable by the prevailing party; thus, the client, not
the attorney, is awarded the attorney fees.
21
Also, the lease agreements provide that either the
landlord or the Tenant, whichever is the prevailing party, shall be entitled to an award of
reasonable attorney fees. Whatever arrangement exists between the Tenants and their
attorneys does not affect the Tenants' obligation to pay an attorney fee award under the lease
or repay restitution of such an award reversed in the prior appeal.
CONCLUSION
We hold that payment of a judgment only constitutes a waiver of the judgment debtor's
appellate rights when the payment is intended as a compromise or settlement of the
matter;
__________

18
See Moore & Son, Inc., 945 F. Supp. at 121 (noting that a court has the authority to order restitution when a
judgment is reversed notwithstanding the failure to obtain a supersedeas bond or stay of execution).

19
Rogers, 33 Cal. Rptr. at 131.

20
Young v. Nevada Title Co., 103 Nev. 436, 442, 744 P.2d 902, 905 (1987).

21
See, e.g., NRS 18.010 (providing that the prevailing party is entitled to attorney fees in certain
circumstances).
tended as a compromise or settlement of the matter; that the district court failed to comply
with our unpublished order of reversal and remand when it refused to award interest, attorney
fees, and costs to Wheeler Springs; and that the district court erred in refusing to award
Wheeler Springs restitution of the monies it paid in satisfaction of the original judgment.
Accordingly, we reverse the district court's post-remand order and further remand this case
to the district court with instructions to award Wheeler Springs interest, attorney fees, costs,
and restitution. We also affirm the district court's order regarding Wheeler Springs' award of
damages on the original remand.
Agosti, C. J., and Gibbons, J., concur.
____________
119 Nev. 269, 269 (2003) J.J. Indus., LLC v. Bennett
J.J. INDUSTRIES, LLC, Appellant/Cross-Respondent, v. HALE B. BENNETT,
Respondent/Cross-Appellant, and NORMAN KAYE and KAY BENNETT, Respondents.
No. 35873
July 8, 2003 71 P.3d 1264
Appeal and cross-appeal from a judgment, pursuant to a jury verdict, for breach of contract
and intentional interference with contractual relations. Third Judicial District Court, Lyon
County; David A. Huff, Judge.
Alleged purchaser brought action against vendor for breach of contract to sell land and
against vendor's neighbors for interference with contractual relations, and also requested
specific performance. The district court dismissed one neighbor from claim and dismissed
specific performance claim, and entered judgment on jury verdict for alleged purchaser.
Alleged purchaser appealed, and vendor and neighbor cross-appealed. The supreme court
held that: (1) evidence was sufficient to support finding that neighbor was aware of vendor's
contract with alleged purchaser, (2) knowledge of contract did not establish intent to interfere
with contract, (3) evidence was insufficient to support finding that neighbor committed
intentional acts designed to disrupt contract, and (4) damages award against vendor was
speculative and had to be reduced.
[En banc reconsideration denied October 23, 2003]
Sherry B. Bowers and Glade L. Hall, Reno, for Appellant/Cross-Respondent.
Schwartzer & McPherson Law Firm and Lenard E. Schwartzer, Las Vegas, for Richard A.
Davis, Trustee in the bankruptcy case of Respondent Norman Kaye.
Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno, for
Respondent/Cross-Appellant Hale Bennett and Respondent Kay Bennett.
When the sufficiency of evidence is challenged on appeal, the supreme court determines whether, after viewing all inferences
in favor of the prevailing party, substantial evidence supports the jury's verdict. In doing so, the court is not at liberty to weigh
conflicting evidence.
2. Torts.
In an action for intentional interference with contractual relations, a plaintiff must establish: (1) a valid and existing contract,
(2) the defendant's knowledge of the contract, (3) intentional acts intended or designed to disrupt the contractual relationship, (4)
actual disruption of the contract, and (5) resulting damage.
3. Torts.
Evidence was sufficient to support finding in intentional interference with contractual relations action that vendor's neighbor
was aware of vendor's contract with alleged purchaser even though vendor told neighbor that contract had been canceled where
neighbor specifically asked about status of contract when vendor offered neighbor opportunity to purchase property, and neighbor
discovered memorandum filed with county recorder that provided notice that vendor and alleged purchaser had entered into
purchase agreement.
4. Torts.
Because interference with contractual relations is an intentional tort, the plaintiff must demonstrate that the defendant knew of
the existing contract, or at the very least, establish facts from which the existence of the contract can reasonably be inferred.
5. Torts.
Evidence was insufficient to establish that vendor's neighbor committed intentional acts designed to disrupt contract between
vendor and alleged purchaser of vendor's property. Although neighbor had knowledge of contract and paid $98,000 more for the
property than purchase price in contract between vendor and alleged purchaser, there was evidence that vendor called neighbor
and asked if neighbor was interested in buying property and told neighbor that contract with alleged purchaser had been canceled,
and there was no evidence that neighbor knew alleged purchaser's purchase price.
6. Torts.
At the heart of an intentional interference with contractual relations action is whether plaintiff has proved intentional acts by
defendant intended or designed to disrupt plaintiff's contractual relations.
7. Torts.
In an interference with contractual relations action, one does not commit the necessary intentional act, inducement to commit
breach of contract, merely by entering into an agreement with knowledge that the other party cannot
perform because there is an existing contract between the other party and a third person.
contract, merely by entering into an agreement with knowledge that the other party cannot perform because there is an existing
contract between the other party and a third person.
8. Torts.
Mere knowledge of a contract is insufficient to establish that the defendant intended or designed to disrupt the plaintiff's
contractual relationship; instead, the plaintiff must demonstrate that the defendant intended to induce the other party to breach the
contract with the plaintiff.
9. Damages.
Evidence did not support damages award of $598,000 in alleged purchaser's breach of contract action against vendor. Award
was reduced to $98,000 based on evidence that vendor had agreed to sell property to alleged purchaser for $152,000 but that
vendor's neighbor purchased property from vendor for $250,000.
Before Agosti, C. J., Rose and Maupin, JJ.
OPINION
Per Curiam:
In this appeal, we define the elements for an intentional interference with contractual
relations claim, specifically the elements of knowledge and intentional acts.
FACTS
In 1951, Norman Kaye acquired 152 acres of undeveloped land (the property) in Silver
Springs, Nevada. The property is adjacent to the Silver Springs Airport, which respondents
Hale and Kay Bennett principally own through Silver Springs Airport, LLC (Silver Springs).
1

In June 1979, Jerome Cardin loaned Kaye $75,000, and in consideration for the loan, Kaye
placed Cardin's name on the title of the property as a joint tenant, listing Cardin as a single
man even though he was married. In 1997, Kaye filed Cardin's death certificate, and
consequently, Kaye owned the entire property. Regarding the loan, Kaye testified that in
1985, when the note was due, he paid Cardin $35,500, half of the note.
In December 1997, Kaye signed an agreement authorizing Gloria Crockett, a real estate
agent, to sell the property. Shortly thereafter, Crockett found a potential buyer, J.J. Industries,
LLC, which was represented by John Hui. Crockett then contacted Hale Bennett, first
informing him that she had a potential buyer and next asking him if he had any information
about Lyon County or the FAA, but Hale Bennett insisted that he had no information.
__________

1
The Bennetts own 80 percent of Silver Springs, while their children own 20 percent.
County or the FAA, but Hale Bennett insisted that he had no information.
On January 20, 1998, Kaye and Hui entered into a land purchase agreement for $152,000.
Kaye and Hui opened escrow with United Title in Reno, but escrow was eventually
transferred to the company's office in Las Vegas. Thereafter, Kaye and Hui agreed to transfer
escrow from United Title in Las Vegas to American Title in Yerington. After escrow was
transferred, American Title conducted a title search, discovering a deed of trust on the
property, dated 1979, which secured the Cardin note. Donna Glock, title officer with
American Title, attempted to clear the Cardin cloud, but she discovered that Kaye was
directly negotiating with the Cardin heirs to clear the title. Nevertheless, on February 27,
1998, American Title generated a notice of default, which the Cardins signed, and which was
filed on March 18. Kaye discovered the notice of default on March 26, 1998.
Pursuant to the land purchase agreement, escrow was to close on or before January 31,
1998. But escrow did not close by January 31, 1998, and Kaye sent a fax to Crockett
complaining that escrow had not closed. Escrow was then extended to March 30, 1998. In
April 1998, American Title sent Kaye the escrow instructions, but Kaye refused to sign them.
Shortly thereafter, Kaye contacted Hale Bennett, asking him if he was interested in buying
the property. Hale Bennett inquired about the status of the existing sale, and Kaye responded
that it had been terminated, fallen out of escrow. Kaye and Hale Bennett reached an
agreement for a purchase price of $250,000. Hale Bennett claimed that he negotiated the
purchase of the property on behalf of Silver Springs. Although the Bennetts signed the
purchase agreement and this agreement failed to mention Silver Springs as the purchaser, the
document was later corrected to indicate that Silver Springs was the owner of the property.
On May 1, 1998, Hui, on behalf of J.J. Industries, filed and recorded a memorandum with
the Lyon County Recorder, providing notice that J.J. Industries and Kaye entered into an
agreement to purchase the property. The memorandum described the property and provided
the assessor parcel number. During his title search of the property, Hale Bennett found Hui's
memorandum, but according to Hale Bennett, the memorandum described a different piece of
property. Although the memorandum contained the assessor parcel number, Hale Bennett did
not have the number with him to compare. Based upon his assumption, Hale Bennett ignored
the memorandum, as he believed it was not germane to the property.
Hale Bennett attempted to open escrow at Stewart Title in Carson City, but Stewart Title
refused because of the clouds on the title. Escrow was eventually closed through Kaye and the
Bennetts' attorneys.
On October 5, 1998, J.J. Industries filed a complaint against Norman Kaye and his wife,
Cheryle, alleging breach of contract, and against the Bennetts, alleging interference with
contractual relations. J.J. Industries also brought a claim for specific performance, but it was
dismissed because J.J. Industries failed to name Silver Springs in the complaint. Before trial,
Cheryle Kaye was dismissed because she executed a quitclaim deed on June 12, 1979,
thereby disclaiming any interest in the property. In addition, the district court dismissed Kay
Bennett during trial because J.J. Industries failed to produce any evidence that she interfered
with the contract.
At trial, Hale Bennett denied that he interfered with any contract that J.J. Industries had
with Kaye, explaining that although he knew there was an agreement between Kaye and
J.J.Industries, Kaye represented to him that the contract was terminated. Kaye contested the
existence of any contract with J.J. Industries, explaining that he did not feel bound by the
contract as of February 17, 1998. Hui, on the other hand, testified that he never agreed to
terminate the contract between Kaye and J.J. Industries, explaining that he sent various letters
inquiring whether Kaye was going to sign the escrow instructions. He also testified that he
would have expected to make five million dollars on the property after he developed an outlet
mall and an industrial park on the property.
The jury entered a general verdict, finding in favor of J.J. Industries on both causes of
action. The jury assessed damages of $598,000 against Kaye, and $336,000 against Hale
Bennett.
J.J. Industries appeals, challenging the dismissal of Kay Bennett and the dismissal of its
specific performance claim. Hale Bennett cross-appeals, arguing that there was insufficient
evidence of intentional interference with the contract and that the damage award was
excessive as a matter of law; Kaye also argues that the damage award was excessive.
DISCUSSION
[Headnote 1]
On cross-appeal, Hale contends that there was insufficient evidence that he intentionally
interfered with the contract between J.J. Industries and Kaye. When the sufficiency of
evidence is challenged on appeal, this court determines whether, after viewing all inferences
in favor of the prevailing party, substantial evidence supports the jury's verdict.
2
In doing so,
this court is not at liberty to weigh conflicting evidence.
3

__________

2
Taylor v. Thunder, 116 Nev. 968, 974, 13 P.3d 43, 46 (2000).

3
Id.
[Headnote 2]
In an action for intentional interference with contractual relations, a plaintiff must
establish:
(1) a valid and existing contract;
(2) the defendant's knowledge of the contract;
(3) intentional acts intended or designed to disrupt the contractual relationship;
(4) actual disruption of the contract; and
(5) resulting damage.
4

Although we have set forth the elements for an intentional interference with contractual
relations claim, we have yet to define the elements, in particular, the elements of knowledge
and intentional acts. We now take the opportunity to do so.
[Headnotes 3, 4]
Hale Bennett first contends that, at the time he entered into the purchase agreement with
Kaye, he did not have actual knowledge of the contract between J.J. Industries and Kaye
because Kaye unequivocally told him that the contract had been canceled. Restatement
(Second) of Torts 766 cmt. i (1979) provides that the actor must have knowledge of the
contract with which he is interfering and of the fact that he is interfering with the performance
of the contract. Because interference with contractual relations is an intentional tort, the
plaintiff must demonstrate that the defendant knew of the existing contract, or at the very
least, establish facts from which the existence of the contract can reasonably be inferred.
5

Here, Hale Bennett knew that Kaye had a contract with J.J. Industries because he
specifically asked Kaye about the status of the contract when Kaye offered him the property.
Although Kaye informed Hale Bennett that the contract had been terminated, Hale Bennett
discovered Hui's memorandum, which was dated a month after he had been negotiating with
Kaye to purchase the property. Even though Hale Bennett testified that he did not believe that
Hui's memorandum was germane to the property because he believed that the legal
description was incorrect, we conclude that it was reasonable for the jury to infer that he was
aware of the contract between J.J. Industries and Kaye.
[Headnote 5]
Next, Hale Bennett argues that there was insufficient evidence that he intended or
designed to disrupt the contractual relationship between J.J. Industries and Kaye.
__________

4
Sutherland v. Gross, 105 Nev. 192, 196, 772 P.2d 1287, 1290 (1989) (placed in list format).

5
Nat. Right to Life P. A. Com. v. Friends of Bryan, 741 F. Supp. 807, 813 (D. Nev. 1990); see also Sebastian
Intern., Inc. v. Russolillo, 162 F. Supp. 2d 1198, 1204 (C.D. Cal. 2001).
between J.J. Industries and Kaye. J.J. Industries contends that Hale Bennett's knowledge of
the contract between it and Kaye was sufficient to establish this element. We disagree.
[Headnotes 6, 7]
At the heart of [an intentional interference] action is whether Plaintiff has proved
intentional acts by Defendant intended or designed to disrupt Plaintiff's contractual relations.
. . .'
6
Contrary to J.J. Industries' argument, one does not commit the necessary intentional
actinducement to commit breach of contractmerely by entering into an agreement with
knowledge that the other party cannot perform because there is an existing contract between
the other party and a third person.
7
Indeed, the United States District Court of Nevada,
interpreting Nevada law, explained that the plaintiff must establish that the defendant had a
motive to induce breach of the contract with the third party:
The fact of a general intent to interfere, under a definition that includes imputed
knowledge of consequences, does not alone suffice to impose liability. Inquiry into the
motive or purpose of the actor is necessary. The inducement of a breach, therefore,
does not always vest third or incidental persons with a tort action against the one who
interfered. Where the actor's conduct is not criminal or fraudulent, and absent some
other aggravating circumstances, it is necessary to identify those whom the actor had a
specific motive or purpose to injure by his interference and to limit liability
accordingly.
8

[Headnote 8]
As previously noted, in Sutherland we provided the necessary elements to establish the
tort of intentional interference with contractual relations. In doing so, we relied on Ramona
Manor Convalescent Hospital v. Care Enterprises.
9
In that case, the California Court of
Appeal explained that the plaintiff must prove that the defendant intended to induce the other
person to breach its contract with the plaintiff.
10
The court noted that because the action
involves an intentional tort, the inquiry usually concerns the defendant's ultimate purpose or
the objective that he or she is seeking to advance.
__________

6
Las Vegas Investors v. Pacific Malibu Dev. Corp., 867 F. Supp. 920, 925 (D. Nev. 1994) (alteration and
emphasis in original) (quoting Nat. Right to Life P. A. Com., 741 F. Supp at 814).

7
See Restatement (Second) of Torts 766 cmt. n (1979).

8
Nat. Right to Life P. A. Com., 741 F. Supp. at 814 (emphasis in original) (quoting DeVoto v. Pacific Fid.
Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir. 1980)).

9
225 Cal. Rptr. 120, 124 (Ct. App. 1986).

10
Id. at 124.
ing to advance.
11
Thus, mere knowledge of the contract is insufficient to establish that the
defendant intended or designed to disrupt the plaintiff's contractual relationship; instead, the
plaintiff must demonstrate that the defendant intended to induce the other party to breach the
contract with the plaintiff. Accordingly, the plaintiff must inquire into the defendant's motive.
Applying these principles to the present case, we conclude that there is insufficient
evidence to support the conclusion that Hale Bennett committed intentional acts designed to
disrupt the contract between J.J. Industries and Kaye. Hale Bennett testified that Kaye called
him, asking him if he was interested in buying the property. During their conversation, Hale
Bennett inquired about the status of the existing sale, and Kaye responded that it had been
terminated. Kaye's response indicated that Kaye no longer felt bound by the contract; indeed,
Kaye testified that as of February 17, 1998, he did not feel bound by the contract with J.J.
Industries. Although Hale Bennett paid approximately $100,000 more for the property, there
was no evidence adduced at trial that Hale Bennett knew J.J. Industries' purchase price. Thus,
there was no evidence that Hale Bennett induced Kaye to breach the contract. Consequently,
Hale Bennett cannot be held liable for intentionally interfering with J.J. Industries' contractual
relations.
[Headnote 9]
Because we conclude that J.J. Industries' claim against Hale Bennett fails, we need not
address Hale Bennett's argument that the damage award against him was excessive as a
matter of law. However, Kaye likewise argues that the breach of contract damage
award$598,000against him was excessive as a matter of law. We have stated that the
measure of damages in an action for breach of contract to sell real estate is the difference
between the contract price and the market value of the land on the date of the breach.
12
Notably, the district court instructed the jury on the proper measure of damages for breach of
contract. However, the only evidence presented at trial relating to the value of the property at
the time of the breach was Hale Bennett's testimony that he purchased the property for
$250,000. Thus, we conclude that the jury's contract damage award of $598,000 was based on
speculation.
13
Therefore, we conclude that the damage award against Kaye should be
reduced to $98,000the difference between the contract price between J.J. Industries and
Kaye {$152,000) and Hale Bennett's purchase price {$250,000).
__________

11
Id. at 125.

12
Harris v. Shell Dev. Corp., 95 Nev. 348, 352, 594 P.2d 731, 734 (1979).

13
See Gramanz v. T-Shirts and Souvenirs, Inc., 111 Nev. 478, 485, 894 P.2d 342, 347 (1995) (noting that a
verdict may not be based on speculation).
tween J.J. Industries and Kaye ($152,000) and Hale Bennett's purchase price ($250,000).
14

Finally, we conclude that J.J. Industries' contentions on appeal lack merit.
CONCLUSION
Because there was insufficient evidence that Hale Bennett intentionally interfered with the
contract between J.J. Industries and Kaye, we reverse that portion of the judgment against
Hale Bennett. Regarding Kaye, we reverse that portion of the judgment awarding breach of
contract damages and remand the case to the district court with instructions to reduce the
damage award against Kaye to $98,000. We affirm the district court's judgment in all other
respects.
____________
119 Nev. 277, 277 (2003) Governor v. Nevada State Legislature
HONORABLE KENNY GUINN, Governor of the State of Nevada, Petitioner, v. THE
LEGISLATURE OF THE STATE OF NEVADA; HONORABLE LORRAINE T.
HUNT, President of the Senate; HONORABLE RICHARD D. PERKINS, Speaker of
the Assembly; MARK E. AMODEI, Senator; TERRY CARE, Senator; MAGGIE
CARLTON, Senator; BARBARA CEGAVSKE, Senator; BOB COFFIN, Senator;
WARREN B. HARDY, Senator; BERNICE MATHEWS, Senator; MIKE
McGINNESS, Senator; JOSEPH M. NEAL, JR., Senator; DENNIS NOLAN, Senator;
ANN O'CONNELL, Senator; WILLIAM J. RAGGIO, Senator; RAYMOND D.
RAWSON, Senator; DEAN A. RHOADS, Senator; MICHAEL SCHNEIDER,
Senator; RAYMOND C. SHAFFER, Senator; SANDRA TIFFANY, Senator; DINA
TITUS, Senator; RANDOLPH TOWNSEND, Senator; MAURICE WASHINGTON,
Senator; VALERIE WIENER, Senator; BERNIE ANDERSON, Assemblyman;
WALTER ANDONOV, Assemblyman; SHARRON E. ANGLE, Assemblywoman;
MORSE ARBERRY, JR., Assemblyman; KELVIN D. ATKINSON, Assemblyman;
BOB BEERS, Assemblyman; DAVID BROWN, Assemblyman; BARBARA E.
BUCKLEY, Assemblywoman; JOHN C. CARPENTER, Assemblyman; VONNE S.
CHOWNING, Assemblywoman; CHAD CHRISTENSEN, Assemblyman; JERRY D.
CLABORN, Assemblyman;
__________

14
Hale Bennett and Kaye argue that any punitive damage award was erroneous. However, there was no award
for punitive damages, and thus, we de cline to address this argument.
BORN, Assemblyman; TOM COLLINS, Assemblyman; MARCUS CONKLIN,
Assemblyman; JASON GEDDES, Assemblyman; DAWN GIBBONS,
Assemblywoman; CHRIS GIUNCHIGLIANI, Assemblywoman; PETE
GOICOECHEA, Assemblyman; DAVID GOLDWATER, Assemblyman; TOM
GRADY, Assemblyman; JOSH GRIFFIN, Assemblyman; DON GUSTAVSON,
Assemblyman; JOE HARDY, Assemblyman; LYNN C. HETTRICK, Assemblyman;
WILLIAM C. HORNE, Assemblyman; RON KNECHT, Assemblyman; ELLEN M.
KOIVISTO, Assemblywoman; SHEILA LESLIE, Assemblywoman; R. GARN
MABEY, JR., Assemblyman; MARK A. MANENDO, Assemblyman; JOHN A.
MARVEL, Assemblyman; KATHY McCLAIN, Assemblywoman; BOB
McCLEARY, Assemblyman; HARRY MORTENSON, Assemblyman; JOHN
OCEGUERA, Assemblyman; GENIE OHRENSCHALL, Assemblywoman; DAVID
R. PARKS, Assemblyman; PEGGY PIERCE, Assemblywoman; ROD SHERER,
Assemblyman; VALERIE WEBER, Assemblywoman; and WENDELL P.
WILLIAMS, Assemblyman, Respondents.
LYNN HETTRICK; GARN MABEY; BOB BEERS; VALERIE WEBER; CHAD
CHRISTENSEN; WALTER ANDONOV; DAVID BROWN; SHARRON ANGLE;
DON GUSTAVSON; JOHN MARVEL; JOHN CARPENTER; PETE
GOICOECHEA; ROD SHERER; TOM GRADY; RON KNECHT; BARBARA
CEGAVSKE; MIKE McGINNESS; ANN O'CONNELL; SANDRA TIFFANY, and
MAURICE WASHINGTON, Members of the Legislature of Nevada,
Counter-Petitioners, v. HONORABLE KENNY GUINN, Governor of the State of
Nevada, and THE LEGISLATURE OF THE STATE OF NEVADA,
Counter-Respondents.
No. 41679
July 10, 2003 71 P.3d 1269
Original petition for a writ of mandamus compelling the Legislature to fulfill its
constitutional duties by a time certain and counter-petition for a writ of mandamus
compelling the Governor to call a special session to consider the entire state budget.
The supreme court, Agosti, C. J., held that issuance of writ of mandamus was warranted
directing Legislature to proceed expeditiously with special session under simple majority
rule, notwithstanding constitutional provision requiring two-thirds supermajority for
revenue-raising legislation.
notwithstanding constitutional provision requiring two-thirds supermajority for
revenue-raising legislation.
Petition granted in part as to the Legislature of the State of Nevada; petition denied
as to the Lieutenant Governor and the individual members of the Legislature;
counter-petition denied.
Rehearing denied; opinion clarified. 119 Nev. 460, 76 P.3d 22 (2003).
Maupin, J., dissented in part.
Brian Sandoval, Attorney General, and Jeff E. Parker, Solicitor General, Carson City, for
Petitioner and Counter-Respondent.
Brenda J. Erdoes, Legislative Counsel, Carson City, for Respondents.
Allison, MacKenzie, Russell, Pavlakis, Wright & Fagan, Ltd., and Mark E. Amodei,
Carson City, for Respondents Care and Amodei.
Barbara E. Buckley, Carson City, in Proper Person.
Beckley Singleton, Chtd., and Daniel F. Polsenberg and Beau Sterling, Las Vegas, for
Counter-Petitioners.
Jeffrey S. Blanck, General Counsel, Washoe County School District, Reno; Walther Key
Maupin Oats Cox & LeGoy and Michael E. Malloy, Reno, for Amicus Curiae Washoe
County School District.
Dyer, Lawrence, Penrose, Flaherty & Donaldson and Michael W. Dyer, Carson City, for
Amici Curiae Nevada State Education Association, Clark County Education Association,
Education Support Employees Association of Clark County, and Washoe Education
Association.
Ellsworth Moody & Bennion, Chtd., and Keen L. Ellsworth, Las Vegas, for Amicus Curiae
Nevada Congress of Parents and Teachers Association.
C. W. Hoffman Jr., General Counsel, Las Vegas, for Amicus Curiae Clark County School
District.
Law Offices of Thomas D. Beatty and Thomas D. Beatty, Las Vegas, for Amici Curiae
Clark County Association of School Administrators, Washoe County Education
Administrators, and Nevada Association of School Administrators.
McCracken Stemerman Bowen & Holsberry and Richard G. McCracken, Las Vegas, for
Amici Curiae Nevada State AFL-CIO and Nevada State Employees Association, AFSCME,
Local 4041.
McDonald Carano Wilson LLP and John J. Laxague, Michael A. T. Pagni, Jeffrey A.
Silvestri and Thomas R. C. Wilson II, Reno, for Amici Curiae Nevada Taxpayers Association,
Associated Builders and ContractorsSierra Nevada Chapter, AGC Nevada, Nevada
Association of Mechanical Contractors, Sierra Chemical Company, Polymer Plastics
Corporation, Barth Electronics, EDAWN/Western Nevada Development Authority, Nevada
Consumer Finance Corporation, Nevada Petroleum Marketers and Convenience Store
Association, Cal-Neva Franchise Owners Association, 7-Eleven Franchise Owners
Association of Southern Nevada, Nevada Resident Agents Association, Monte L. Miller and
Joshua C. Miller, Nevada Bankers Association, Nevada Manufacturers Association, Nevada
Motor Transport Association, Retail Association of Nevada, Tiberti Fence Company, Carson
City Chamber of Commerce, Las Vegas Chamber of Commerce, Nevada Franchised Auto
Dealers Association, Nevadans for Real Tax Fairness, Household International, Nevada
Corporate HeadquartersCort Christie, Robert List, Henderson Chamber of Commerce,
Thomas Powell, Pic-Mount Imaging Corp., Phoenix Holdings of Nevada, Inc., Nevada
Association of Independent Businesses, Chain Drug Council of Nevada, and Grocery Industry
Council of Nevada.
Thomas J. Ray, General Counsel, Las Vegas, for Amicus Curiae University and
Community College System of Nevada.
James T. Richardson, Reno, for Amicus Curiae Nevada Faculty Alliance.
Layne T. Rushforth, Las Vegas, for Amicus Curiae Nevada Concerned Citizens.
Wilson & Barrows and Stewart R. Wilson, Elko; Gregory T. Broderick, Sacramento,
California, for Amicus Curiae Pacific Legal Foundation.
Constitutional construction is purely a province of the judiciary.
When constitutional provisions are incompatible with one another or are unworkable, or when the enforcement of one
prevents the fulfillment of another, supreme court must exercise its judicial function of interpreting the Constitution and attempt to
resolve the problem.
In construing constitutional provisions, court's task is to ascertain the intent of those who enacted the provisions at issue, and
to adopt an interpretation that best captures their objective.
When construing constitutional provision, court must give words their plain meaning unless doing so would violate the spirit
of the provision.
Whenever possible, court construes provisions so that they are in harmony with each other.
Constitutional provisions should be interpreted so as to avoid absurd consequences and not produce public mischief.
7. Mandamus; Statutes.
Issuance of writ of mandamus was warranted directing Legislature to proceed expeditiously with special session under simple
majority rule, notwithstanding constitutional provision requiring two-thirds supermajority for revenue-raising legislation.
Constitution's requirement that public education be funded was a substantive constitutional right that Legislature had failed to
fulfill, and two-thirds majority requirement was merely a procedural requirement. Const. art. 4, 18(2), art. 9, 2, art. 11, 6.
Constitutional provisions imposing an affirmative mandatory duty upon the legislature are judicially enforceable in protecting
individual rights, such as educational rights.
OPINION
By the Court, Agosti, C. J.:
The Governor of Nevada has petitioned this court for a writ of mandamus declaring the
Legislature to be in violation of the Nevada Constitution, and compelling the Legislature to
fulfill its constitutional duty to approve a balanced budgetincluding an annual tax to defray
the state's estimated expenses for the biennium beginning July 1, 2003, and appropriations to
fund public education during that fiscal periodby a time certain. We agree that our
intervention is appropriate in this extraordinary circumstance.
The Legislature failed to fund education in the 72nd Regular Session and in two special
sessions and is evidently in a deadlock over the means of raising the necessary revenues. As a
result, Nevada's public educational institutions are in crisis because they are unable to
proceed with the preparations and functions necessary for the 2003-2004 school year.
Nevada's public educational institutions are in crisis because they are unable to proceed with
the preparations and functions necessary for the 2003-2004 school year.
It is apparent that the Legislature has failed to fulfill its constitutional mandate because of
the conflict among several provisions of the Nevada Constitution. Therefore, we, in our
judicial role as interpreters of the Nevada Constitution, must reconcile the provisions which
cause the present crisis.
Because we conclude that the individual legislators and the Lieutenant Governor have not
violated their constitutional duties, we deny the petition as to them as individuals. We grant
the petition as to the Legislature as a body. We order the Legislature to fulfill its obligations
under the Constitution of Nevada by raising sufficient revenues to fund education while
maintaining a balanced budget. Due to the impasse that has resulted from the procedural and
general constitutional requirement of passing revenue measures by a two-thirds majority, we
conclude that this procedural requirement must give way to the substantive and specific
constitutional mandate to fund public education. Therefore, we grant the petition in part and
order the clerk of this court to issue a writ of mandamus directing the Legislature of the State
of Nevada to proceed expeditiously with the 20th Special Session under simple majority rule.
DISCUSSION
The Governor filed this writ petition after the Legislature failed to approve a balanced
budget before the start of fiscal year 2004, which started on July 1, 2003. The Governor is
responsible for the faithful execution
1
of the state's laws and is also responsible for
proposing a state budget and submitting it to the Legislature.
2
Pursuant to Article 9, Section
2 of our Constitution, the Legislature is responsible for approving a balanced budget. Also,
Article 11, Section 6 of our Constitution compels the Legislature to support and maintain the
public school system.
3
The Legislature must appropriate the money needed for all state
government expenditures and provide for an annual tax to defray the state's estimated
expenses for the two fiscal years following its regular biennial session.
4
Fiscal year 2004
began on July 1,
5

__________

1

2
Id. art. 4, 2(3).

3
Nev. Const. art. 11, 6 provides that [i]n addition to other means provided for the support and maintenance
of [the state] university and common schools, the legislature shall provide for their support and maintenance by
direct legislative appropriation from the general fund.

4
Nev. Const. art. 9, 2(1) provides that [t]he legislature shall provide by law for an annual tax sufficient to
defray the estimated expenses of the state for each fiscal year.

5
yet the Legislature has thus far failed in its obligation to support and maintain the public
school system. No money has been appropriated to fund this constitutionally mandated
obligation. Our Constitution's Article 4, Section 19 provides that the State Treasurer cannot
release general funds from the state treasury without specific legislative appropriation.
The Governor began the 2003 legislative session with a request for $980 million in new
revenues to balance his proposed budget for the 2003-2005 biennium. The Legislature did not
fund education in its 72nd Regular Session, which ended on June 3, 2003,
6
but, after making
substantial cuts in the Governor's budget, appropriated $3,264,269,361 for various
government functions. The Governor signed these appropriations into law.
7
Existing
revenues are expected to meet these appropriations.
Since the conclusion of the Legislature's general session, two special sessions have been
convened. On June 3, 2003, the Governor convened the Legislature in the 19th Special
Session to appropriate funds for the K-12 school system and to provide an adequate tax plan
to provide for funding. The Legislature failed to reach an agreement on a tax plan. The
Governor adjourned the 19th Special Session at the request of the Senate Majority Leader and
the Speaker of the Assembly on June 12, 2003. That same day, the Governor convened the
Legislature for a second special session to begin on June 25, 2003. The Legislature convened,
but had not passed a bill to raise the required revenues for the educational system by the start
of the new fiscal year, July 1, 2003. The Senate and Assembly recessed by mutual consent,
because of their inability to pass a revenue measure by a two-thirds majority.
Since its enactment in 1864, the Nevada Constitution has required a simple majority of
each house to pass a bill or joint resolution.
8
Article 4, Section 18(1) provides that a
majority of all the members elected to each house is necessary to pass every bill or joint
resolution. In 1993, the Legislature rejected a resolution that proposed to amend the
Constitution to create an exception to the simple majority rule and require a two-thirds
majority of each house to increase existing taxes or impose new taxes. Ultimately, by
initiative, the citizens accepted an identical proposal as a constitutional amendment. The
constitutionally required second vote on the initiative occurred in 1996, at a time when the
state enjoyed a budget surplus and public sentiment strongly favored restricted tax increases.
__________

6
Nev. Const. art. 4, 2(2) limits the regular session to 120 days.

7
All but three sections of this law took effect on July 1, 2003. Two provisions took effect on June 3, 2003,
and one other will take effect on July 1, 2004. 2003 Nev. Stat., ch. 328.

8
Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 837 (Andrew J. Marsh
off. rep., 1866).
tax increases. Article 4, Section 18(2) of our Constitution now requires a two-thirds vote of
each house to pass a bill or joint resolution 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.
In 1997, 1999 and 2001, the Legislature was able to work within these new constraints
without major difficulties because the state operated under a budget surplus and no major tax
increases required a vote in the Legislature. By 2003, however, the state's economic picture
had changed drastically. The Legislature, faced with a rapidly increasing population, a
substantial budget deficit and record-high needs, was unable to reach a two-thirds majority
and left its constitutional obligations unfulfilled.
The Legislature's failure to fulfill its constitutional duties by the beginning of the new
fiscal year has precipitated an imminent fiscal emergency.
9
Nevada now faces an
unprecedented budget crisis. Schools have not been funded for the upcoming school year.
Teachers have not been hired. Educational programs have been eliminated. Planning for the
academic year is not possible, and the state's bond rating may be jeopardized. This court has
been petitioned to resolve the crisis. In light of the above circumstances, it appears there is no
plain, speedy and adequate remedy in the ordinary course of law, and this court's intervention
is warranted.
10

[Headnote 1]
At the heart of this case is the two-thirds supermajority requirement for revenue-raising
legislation. The Legislature is unable to fulfill its constitutional duties to fund the public
schools and to adopt a balanced budget because it has not met the two-thirds vote
requirement. The Legislature's failure to provide funds for public education, to pass the
concomitant revenue generating package and to balance the state's budget after having had the
opportunities of one general session and two special sessions to do so, leads us to the
inevitable conclusion that it is futile to order the Legislature to debate further within the
parameters of Article 4, Section 18(2). As constitutional construction is purely a province of
the judiciary,
__________

9
Some of the pleadings argue that no emergency exists because the Governor and Legislature have methods
of providing for education. We have no authority, under the separation of powers doctrine, to compel either the
Governor or the Legislature to employ such methods to resolve any impasse.

10
Nev. Const. art. 6, 4; NRS 34.160 (providing that a writ of mandamus may issue to compel the
performance of an act that the law especially enjoins as a duty resulting from an office, trust or station); NRS
34.170 (stating that a writ of mandamus may issue when there is no plain, speedy and adequate remedy in the
ordinary course of law).
ary,
11
we undertake to resolve the tension between the Legislature's constitutional obligation
to fund public education and the constitutional provisions requiring a simple majority to enact
appropriations bills but a two-thirds majority to generate or increase public revenue to fund
those appropriations.
12

[Headnote 2]
Clearly, this court has no authority to levy taxes or make appropriations. Only our
Legislature has been given the constitutional mandate to make appropriations, levy taxes, and
to balance the state's budget.
13
However, when constitutional provisions are incompatible
with one another or are unworkable, or when the enforcement of one prevents the fulfillment
of another, this court must exercise its judicial function of interpreting the Constitution and
attempt to resolve the problem.
[Headnotes 3-6]
When construing constitutional provisions, we apply the same rules of construction used
to interpret statutes.
14
Our task is to ascertain the intent of those who enacted the provisions
at issue, and to adopt an interpretation that best captures their objective. We must give words
their plain meaning unless doing so would violate the spirit of the provision.
15
Whenever
possible, we construe provisions so that they are in harmony with each other.
16
Specific
provisions take precedence over general provisions.
17
Finally, constitutional provisions
should be interpreted so as to avoid absurd consequences and not produce public mischief.
18

__________

11
Marbury v. Madison, 5 U.S. 137, 178 (1803); State of Nevada v. Rosenthal, 93 Nev. 36, 41, 559 P.2d 830,
834 (1977).

12
We note that Article 4, Section 18(3) allows a simple majority of each legislative house's members to refer
to the people any measure that creates, generates, or increases revenue. Under this section, however, the referral
may only be made at the next general election, which will not occur until November 2004. NRS 293.12755. This
sixteen-month delay renders any remedy under Section 18(3) inadequate, given the immediacy of the fiscal and
educational crises facing our state.

13
Nev. Const. art. 3, 1 (providing for separation of powers); id. art. 4, 1 (vesting state's legislative
authority in Senate and Assembly); id. art. 4, 18; id. art. 9, 2.

14
Nevada Mining Ass'n v. Erdoes, 117 Nev. 531, 538, 26 P.3d 753, 757 (2001).

15
Id.

16
See Bowyer v. Taak, 107 Nev. 625, 627, 817 P.2d 1176, 1177 (1991); see also People v. Anderson, 493
P.2d 880, 886 (Cal. 1972).

17
SIIS v. Surman, 103 Nev. 366, 368, 741 P.2d 1357, 1359 (1987).

18
State v. Brodigan, 44 Nev. 306, 311, 194 P. 845, 846-47 (1921).
[Headnote 7]
Nevada's Constitution clearly expresses the vital role that education plays in our state in
Article 11. Of particular importance are Sections 1, 2, and 6. Section 1 mandates:
The legislature shall encourage by all suitable means the promotion of intellectual,
literary, scientific, mining, mechanical, agricultural, and moral improvements, and also
provide for a superintendent of public instruction and by law prescribe the manner of
appointment, term of office and the duties thereof.
Section 2 mandates:
The legislature shall provide for a uniform system of common schools, by which a
school shall be established and maintained in each school district at least six months in
every year . . . and the legislature may pass such laws as will tend to secure a general
attendance of the children in each school district upon said public schools.
And Section 6 requires the Legislature to provide for the support and maintenance of the
public schools.
Our Constitution's framers strongly believed that each child should have the opportunity to
receive a basic education.
19
Their views resulted in a Constitution that places great
importance on education. Its provisions demonstrate that education is a basic constitutional
right in Nevada.
[Headnote 8]
When a procedural requirement that is general in nature prevents funding for a basic,
substantive right, the procedure must yield. Here, the application of the general procedural
requirement for a two-thirds majority has prevented the Legislature as a body from
performing its obligation to give life to the specific substantive educational rights enunciated
in our Constitution. We agree with the Wyoming Supreme Court that [c]onstitutional
provisions imposing an affirmative mandatory duty upon the legislature are judicially
enforceable in protecting individual rights, such as educational rights.
20
It is paramount that
we give Section 18(2) a construction that will preserve the basic right of education.
21
Other
states with constitutional provisions similar to ours have also given significant import to
the educational clauses of their constitutions.
__________

19
See Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 567-72 (Andrew J.
Marsh off. rep., 1866).

20
Campbell County School Dist. v. State, 907 P.2d 1238, 1264 (Wyo. 1995); see also Washakie Co. Sch.
Dist. No. One v. Herschler, 606 P.2d 310 (Wyo. 1980).

21
See Montana Power Co. v. Public Service Com'n, 26 P.3d 91, 96 (Mont. 2001) (stating that constructions
which preserve constitutional rights are paramount).
constitutional provisions similar to ours have also given significant import to the educational
clauses of their constitutions.
22

Our Legislature has failed to accomplish its constitutionally mandated tasks of funding
Nevada's public education system and balancing the budget. In order to allow the Legislature
to fulfill its constitutional mandate in this regard, the general language of Section 18(2) must
give way to the simple majority requirement of Article 4, Section 18(1) in order that the
specific provisions concerning education are not defeated.
Based upon the Legislature's failure over the last several weeks to fund the constitutionally
mandated arena of education, we observe that its adherence to the Constitution's two-thirds
majority provision defeats the Constitution's public education funding requirements. We
conclude that an irreconcilable conflict exists with respect to the relevant constitutional
provisions. Because the Governor has seen fit to petition this court in mandamus, and because
evidently further legislative discussions are futile, it becomes the responsibility of this court
to order the Legislature to fund public education and to balance the budget. It is a waste of
public resources to simply tell the Legislature to forge on and deliberate and negotiate further,
since that body has failed to perform its constitutionally required function. As a result, this
court is faced with the onerous task of weighing the various constitutional provisions and, in
effect, prioritizing them.
The two-thirds majority requirement is a procedural requirement. It is a process
requirement by which legislative action is accomplished and decisions that weigh the public
interests are accounted for. In the area of taxation this means that the Legislature must agree
by a two-thirds majority as to which mechanisms will be employed to generate revenue.
Without a two-thirds majority, revenue measures may not be enacted. This general
constitutional provision does not purport to say what the substance of the revenue measures
ought to be, only that whatever they be, they are acceptable to two-thirds of the elected
members of each house of the Legislature.
In contrast, the Constitution requires specifically, as a matter of substantive constitutional
law, that public education be funded. The framers have elevated the public education of the
youth of Nevada to a position of constitutional primacy. Public education is a right that the
people, and the youth, of Nevada are entitled, through the Constitution, to access. If the
procedural two-thirds revenue vote requirement in effect denies the public its expectation of
access to public education, then the two-thirds requirement must yield to the specific
substantive educational right.
__________

22
See, e.g., Brigham v. State, 692 A.2d 384, 391-95 (Vt. 1997); Lake View Sch. Dist. No. 25 v. Huckabee, 91
S.W.3d 472, 492-95 (Ark. 2002), cert. denied, 538 U.S. 1035 (2003).
of access to public education, then the two-thirds requirement must yield to the specific
substantive educational right.
The Legislature must resume its work of funding education and selecting appropriate
methods of revenue generation to balance the state's budget. Therefore, we grant the petition
as to the Legislature of the State of Nevada and direct this court's clerk to issue a writ of
mandamus directing the Legislature to proceed expeditiously with the 20th Special Session
under simple majority rule. The relief prayed for in the petition as to the Lieutenant Governor
and the individual legislators and in the counter-petition is denied.
Shearing, Rose, Leavitt, Becker and Gibbons, JJ., concur.
Maupin, J., dissenting in part and concurring in part:
The Governor's petition seeks our intervention to judicially pronounce that the Legislature
has violated Articles 9 and 11 of the State Constitution by its failure to fund the education
budget and balance the budget over the next two fiscal years. He also seeks an order requiring
legislative compliance with these constitutional provisions, via passage of taxing measures to
defray the state's estimated expenses for the biennium beginning July 1, 2003, within a time
certain. I would decline the Governor's invitation to intervene in the legislative budgetary
processa process that represents the discretionary authority of a co-equal branch of the state
governmentat this time. In this, I would note that none of the parties directly named in this
litigation, including the Governor, have requested the specific relief we provide today. I also
note that the legislative response to the petition acknowledges the Legislature's constitutional
obligations concerning the budget.
The Governor filed this writ petition because the Legislature failed to approve a balanced
budget before the start of the new fiscal year. I acknowledge, with the majority, the following
undisputed features of this controversy. First, that the Governor is responsible for seeing that
this state's laws are faithfully executed
1
and for proposing a state budget and submitting it to
the Legislature.
2
Second, that our Constitution requires the Legislature to approve a balanced
budget. Third, that it also compels the Legislature to support and maintain the public school
system.
3
Fourth, that the Legislature must appropriate the money needed for all state
government expenditures and must provide for an annual tax to defray the state's estimated
expenses for the two fiscal years following its regular biennial session.
__________

1

2
Id. art. 4, 2(3).

3
Nev. Const. art. 11, 6 provides that [i]n addition to other means provided for the support and maintenance
of [the state] university and common schools, the legislature shall provide for their support and maintenance by
direct legislative appropriation from the general fund.
tax to defray the state's estimated expenses for the two fiscal years following its regular
biennial session.
4
Fifth, that the state's current fiscal year commenced July 1, 2003,
5
and
that the State Treasurer may not release general funds from the state treasury without specific
legislative appropriation.
6
All of this notwithstanding, now that the Governor has called the
Legislature into special session to resolve the budget impasse over the Distributive School
Account (DSA), the Legislature is under no express constitutional duty to pass its
appropriations and tax bills by the beginning of the fiscal year.
7
Indeed, in the last ten years,
the Legislature has worked beyond the fiscal year's beginning three times. That the
Legislature has had more than enough time to comply with the funding mandates is
constitutionally beside the point. Because the first quarterly distribution of funds to the
various county school districts for this fiscal year will not occur until August 1, 2003,
8
there
is still a short window within which the Legislature can itself insure compliance with the
constitutional mandate for public school funding. Accordingly, I would defer the relief
afforded by today's majority until it becomes evident that the constitutional mandate to fund
education will not be satisfied in time for compliance with the statutory requirements for
distribution of state funds to local school districts.
Remedies sought by the Governor
Simply stated, the Governor seeks a judicial declaration that the Legislature has violated
the Constitution and an order that the Legislature comply with it. This, in my view, will not
provide a solution, other than to chastise the Legislature for its inability to deal with the
voting impasse in which it is now embroiled. The Legislature concedes its constitutional
obligation to fund public education. Why the relief actually sought in the petition will not
effect a concrete solution is explained immediately below.
9

__________

4
Nev. Const. art. 9, 2(1) provides that [t]he legislature shall provide by law for an annual tax sufficient to
defray the estimated expenses of the state for each fiscal year.

5

6
Id. art. 4, 19.

7
Article 4, Section 2(2) of the State Constitution limits regular legislative sessions to 120 days and renders
void legislative action taken at any other time except where, as here, the Governor has convened a special
legislative session.

8
NRS 387.124(1) requires the state superintendent of public instruction to apportion the state DSA in the
state general fund among the several county school districts on a quarterly basis, starting on or before August 1,
November 1, February 1, and May 1 of each year. The DSA must be funded for the current biennium for this to
occur.

9
See Campaign for Fiscal Equity, Inc. v. State of New York, 801 N.E.2d 326 (N.Y. 2003) (noting that simple
direction of education authorities to
As a threshold matter, the separation of powers doctrine stands as an impediment to our
immediate involvement. Subject only to the reservation of the legislative power to the people
in Article 19, our Constitution bestows all legislative authority upon the Legislature.
10
It
seems well settled that a court will not issue the writ of mandamus to compel a state
legislature or an officer of such legislature to exercise their legislative functions or to perform
duties involving the exercise of discretion.
11
This rule is expressed in the Nevada
Constitution:
The powers of the Government of the State of Nevada shall be divided into three
separate departments,the Legislative,the Executive and the Judicial; and no
persons charged with the exercise of powers properly belonging to one of these
departments shall exercise any functions, appertaining to either of the others, except in
the cases expressly directed or permitted in this constitution.
12

Certainly, the specifics of creating a budget fall within the discretion of the Legislature.
We are asked in the Governor's petition, at least implicitly, to intervene in the current
legislative controversy to force individual members of the Legislature to vote (exercise their
discretion) in a certain way. Because the people of this state elected the individual members
of the Legislature and their primacy to vote as they so choose, we cannot grant this relief. The
pre-eminent right of individual lawmakers is to vote their consciences on individual
measures. Their individual votes do not violate the Constitution, their votes as a body may do
so.
For similar reasons, we either cannot or should not, as suggested by some of the
legislators, order the Governor to amend the parameters of the special session to open
previously closed budget accounts. First, this form of relief would only make a balanced
budget possible; second, such relief would impinge upon the prerogatives of the executive
branch to define the scope of special sessions.
__________
follow the New York State Constitution is problematic in terms of effecting compliance and in terms of
providing adequate judicial redress for a constitutionally infirm education funding system).

10
Nev. Const. art. 4, 1; see generally Nev. Const. art. 19.

11
R.T.K., Annotation, Mandamus to Members or Officer of Legislature, 136 A.L.R. 677, 677 (1942); e.g.,
Wells v. Purcell, 592 S.W.2d 100 (Ark. 1979) (holding that a writ of mandamus could not be issued to compel
legislative officers to adjourn or attempt to adjourn the legislature, or to obtain an adjournment from the
governor); Limits v. President of the Senate, 604 N.E.2d 1307 (Mass. 1992) (denying mandamus relief to
compel the state legislature's action on a proposed constitutional amendment); State ex rel. Daschbach v.
Meyers, 229 P.2d 506 (Wash. 1951) (declining to issue a writ of mandamus compelling legislature to affix on a
bill a different date of passage).

12
Nev. Const. art. 3, 1(1).
rogatives of the executive branch to define the scope of special sessions.
13
This is
underscored by the fact that a balanced budget is possible now; it is just improbable under the
current parameters of the special session. Thus, in my view, we cannot constitutionally order
any member of the Legislature to vote in a certain way and we cannot order the Governor to
open budgets to create a mere possibility that the Legislature can arrive at a balanced budget.
14
As of now, neither the Governor nor any individual legislator has violated the Constitution.
15
This having been said, compliance with the constitutional mandate to appropriate state
education funding must occur in sufficient time to allow the quarterly distribution to county
school districts on or before August 1, 2003, per NRS 387.124(1).
Remedy afforded by the court
Given our intervention, the petition necessarily seeks our resolution of separate mandatory
provisions in the Nevada Constitution that may remain in conflict in the current application.
Section 6 of Article 11 mandates legislative funding for Nevada schools, the budget for which
may be set by a simple majority of each house of the Legislature. Section 2(1) of Article 9
requires that additional taxes be created whenever projections indicate state revenue will be
insufficient to defray estimated expenses of the state. And Section 18(2) of Article 4 requires
that any increase in taxes must be approved by two-thirds of the members of each legislative
body. Thus, while the state's education budget may be set by simple majorities of each
legislative house, any new taxes to fund the budget may only be accomplished via
supermajority. These provisions are not inherently in conflict; they only conflict in the event
education funding is prevented by an inability to balance the budget with sufficient funding
mechanisms. That is the current state of affairs, as described by the majority.
I would now turn to address the following observations submitted by the Legislature in its
response to the Governor's petition:
With respect to the allegation that the Legislature has not balanced the state budget
for the next two fiscal years, and not done so in a timely manner, that allegation is
simply erroneous. . . .
. . . .
__________

13
See State v. Dickerson, 33 Nev. 540, 562, 113 P. 105, 111 (1910).

14
Id.

15
I recognize the majority's concern that failure to provide immediate appropriations to fund the DSA will
impede county school district planning and the hiring of personnel. While this is very important, it does not, in
my view, require resolution of the constitutional impasse by immediate intervention by this court.
. . . [T]he Legislature has worked diligently to fulfill its constitutional duties and
continues to engage in such work, and . . . complete its duties as soon as possible.
. . . .
. . . . The Answering Respondents [the Legislature] agree that the Legislature has a
mandatory duty to provide money for education and to ensure adequate revenue to pay
state expenses.
The Legislature goes on in its papers filed in this case to request our forbearance to allow
it to acquit its admitted constitutional responsibility to fund a state education budget. I can
only observe that this Legislature has completed the mandatory 120-day session, has been
convened twice in special session and has failed to fund the DSA and balance the budget. It
has had plenty of time to fulfill its constitutional obligations. I would give the Legislature
more time; but the exigencies of the current situation require some dispatch.
Absent the immediate relief now being afforded, the Governor, of course, would have
been free to amend the scope of the special session to facilitate a resolution. Also, individual
legislators could, upon further deliberation, have relented to help comply with the
supermajority requirements. And, as stated, there was still a window of opportunity for the
two branches of government to resolve the impasse without our assistance. In the absence of
an education budget crafted and funded in time to effect statutory distribution of funds to the
county school districts, we could appropriately declare the impasse at an end because time
then would truly be of the essence.
16
Accordingly, I would give the Legislature until July 28,
2003, to resolve the impasse
17
before intervening and considering the relief afforded today,
along with other possibilities.
18

I take this opportunity to comment upon the dynamic that brings us to this point in our
state's history. For years, a philosophical debate over provision of state services has been
developing and is highlighted by the unparalleled population growth here in Nevada and
economic conditions governed by external forces, including those attendant to the attacks
of September 11, 2001.
__________

16
See supra note 8.

17
Id.

18
Again, we are powerless to order co-equal branches of government to exercise individual acts of
constitutional discretion. Our authority depends upon whether extraordinary relief is warranted and in exercising
our authority to grant relief, we would be restricted to an interpretation of the Constitution, utilizing recognized
tenets of statutory construction. See Nevada Mining Ass'n v. Erdoes, 117 Nev. 531, 538, 26 P.3d 753, 757
(2001) (when construing constitutional provisions, the Nevada Supreme Court uses the same rules of
construction that are used to interpret statutes).
and economic conditions governed by external forces, including those attendant to the attacks
of September 11, 2001. This debate is the signal feature of the 2003 legislative sessions. The
primary concerns of both sets of antagonists involve the quality of state services, the extent to
which state services need to be expanded and/or improved, including education services for
our children, and unwise or wasteful use of state resources; resources that are paid for by the
citizens of this state. This debate has been conducted in a true democratic spirit and both
sides have admirably stated their cases. In my view, taking judicial notice of the public
debate, considerable waste has been revealed, services can be improved, and many in our
state government have been working to improve the situation. Nevertheless, it is not evident
that the totality of fiscal problems facing Nevada will be solved in the near term. What is
evident is that our schools must, as matter of constitutional law, be funded on or before
August 1, 2003.
____________
119 Nev. 293, 293 (2003) Tabish v. State
RICHARD BENNETT TABISH and SANDRA RENEE MURPHY, Appellants, v. THE
STATE OF NEVADA, Respondent.
No. 36873
July 14, 2003 72 P.3d 584
Joint appeal from judgments of conviction upon jury verdicts, and from orders of the
district court denying motions for judgment of acquittal, for judgment notwithstanding the
verdict and for a new trial. Appellants were each convicted of first-degree murder, conspiracy
to commit murder and/or robbery, robbery, conspiracy to commit burglary and/or grand
larceny, burglary, and grand larceny. Appellant Tabish was also convicted of extortion with
the use of a deadly weapon, conspiracy to commit extortion, false imprisonment with the use
of a deadly weapon, and assault with a deadly weapon. Eighth Judicial District Court, Clark
County; Joseph T. Bonaventure, Judge.
The supreme court, Rose, J., held that: (1) defendants were entitled to severance of charges
against second defendant arising from marginally relevant earlier incident involving different
victim, (2) failure to sever charges was prejudicial to defendants with regard to counts
relating to murder and robbery, (3) failure to sever charges was harmless error with regard to
counts against second defendant relating to extortion and assault, (4) State established corpus
delicti for murder, and (5) jury was not required to achieve unanimity on a single theory of
how defendants committed first-degree murder.
unanimity on a single theory of how defendants committed first-degree murder.
Affirmed in part, reversed in part, and remanded.
[Rehearing denied October 24, 2003]
Shearing, J., dissented in part. Maupin, J., with whom Leavitt, J., agreed, dissented.
William B. Terry, Las Vegas, for Appellant Tabish.
Herbert Sachs, Las Vegas; Dershowitz, Eiger & Adelson, PC, and Alan M. Dershowitz and
Victoria B. Eiger, New York, New York, for Appellant Murphy.
James Tufteland and David T. Wall, Chief Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Decisions to join or sever are left to the discretion of the trial court and will not be reversed absent an abuse of discretion.
2. Criminal Law.
An error arising from misjoinder is subject to harmless error analysis and warrants reversal only if the error had a substantial
and injurious effect or influence in determining the jury's verdict.
3. Criminal Law.
Murder of victim to obtain access to victim's wealth and earlier extortion and assault of a different victim to obtain interest in
certain property were not part of common scheme or plan, and thus defendant was entitled to severance of charges arising from the
two incidents. Common elements of money and greed were not sufficient to connect the incidents, methods of attack were
dissimilar, and fifty days separated the two incidents. NRS 173.115.
4. Criminal Law.
Trial court's erroneous joinder of counts against defendant arising out of extortion and assault of first victim with counts
against defendant and codefendant for murder and robbery of second victim was prejudicial to defendant and codefendant with
regard to counts relating to murder and robbery of second victim. Evidence of first victim's extortion and assault was graphic,
State emphasized in closing arguments the similarities between the incidents, State's weaker case on the murder and robbery
counts was bolstered by combining it with the stronger case against defendant on the extortion and assault counts, incidents were
descriptively separable, and evidence of extortion and assault would not be admissible as a prior bad act in murder and robbery
trial.
5. Criminal Law.
Prejudice created by the district court's failure to sever charges is more likely to warrant reversal in a close case because it may
prevent the jury from making a reliable judgment about guilt or innocence.
6. Criminal Law.
Although judicial economy is an appropriate consideration in deciding whether severance is appropriate, it must be weighed
against the possible prejudice to defendants.
7. Criminal Law.
To deem a prior bad act admissible, the district court must first determine outside the presence of the jury that (1) the incident
is relevant to the crime charged, (2) the act is proven by clear and convincing evidence, and (3) the probative value of the evidence
is not substantially outweighed by the danger of unfair prejudice. NRS 48.045(2).
8. Criminal Law.
Defendant's prior bad act of extortion and assault of victim was supported by clear and convincing evidence; victim of the
extortion and assault testified regarding defendant's attack on him. NRS 48.045(2).
9. Criminal Law.
Probative evidence of defendant's prior bad act of extortion and assault of victim was substantially outweighed by risk of
unfair prejudice in defendant and codefendant's prosecution for the murder of a different victim.
10. Criminal Law.
Trial court's erroneous joinder of counts against defendant arising out of extortion and assault of first victim with counts
against defendant and codefendant for murder and robbery of second victim was harmless with regard to counts against defendant
relating to extortion and assault allegations, in light of strong evidence, including victim testimony, as to defendant's guilt on such
charges.
11. Criminal Law.
Joinder of defendants' trials was proper on charges of first-degree murder, conspiracy to commit murder and/or robbery,
robbery, conspiracy to commit burglary and/or grand larceny, burglary, and grand larceny.
12. Criminal Law.
Even if murder victim's statement was admissible under state of mind exception to hearsay rule, defendant was entitled to
limiting instruction on permissible use of evidence that murder victim stated to his attorney the day before his death, Take
[defendant] out of the will if she doesn't kill me tonight. If I'm dead, you'll know what happened; prejudicial impact was great,
and statement was not admissible as evidence of defendant's intent or conduct.
13. Criminal Law.
Harmless error analysis applies to hearsay errors.
14. Criminal Law.
Upon admission of evidence that murder victim stated a belief that defendant might try to kill him, trial court's erroneous
failure to give instruction limiting use of out-of-court statement to show victim's state of mind was not harmless. State's evidence
was highly circumstantial and not overwhelming, statement was highly prejudicial, State emphasized statement in closing
arguments, and risk was unacceptable that jury would improperly consider statement as evidence of defendant's intent or conduct.
15. Homicide.
To establish corpus delicti in a murder case, the State must demonstrate (1) the fact of death, and (2) that death occurred by
the criminal agency of another.
16. Homicide.
The corpus delicti may be established by circumstantial evidence only. At trial the State bears the burden of establishing the
corpus delicti beyond a reasonable doubt.
17. Homicide.
State established corpus delicti in murder prosecution, even though there was conflicting testimony regarding whether victim
died at the hand of another or as a result of accidental or self-induced heroin overdose; expert witness testified that he had
concluded that one or more persons had suffocated the victim.
18. Criminal Law.
To establish the corpus delicti in a murder case, when conflicting or alternative theories of criminal agency are offered through
the medium of competent evidence, the jury need only achieve unanimity that a criminal agency in evidence was the cause of
death. The jury need not achieve unanimity on a single theory of criminal agency.
OPINION
The State charged appellants Richard Tabish and Sandra Murphy by information with
numerous crimes relating to three separate incidents: (1) the alleged robbery and murder by
suffocation and/or poisoning of Lonnie Theodore Ted Binion at Binion's home in Las
Vegas, Nevada, on September 17, 1998 (the Binion counts); (2) the removal of a large
quantity of silver belonging to Binion from an underground vault located in a desert area near
Pahrump, Nevada (the silver counts); and (3) the alleged July 1998 kidnapping, beating,
and extortion of Leo Casey, who along with Tabish had a financial interest in a sand and
gravel pit in Jean, Nevada (the Casey counts).
Following a lengthy jury trial, Tabish and Murphy were both convicted of three Binion
counts: first-degree murder; conspiracy to commit murder and/or robbery; and robbery
relating to Binion's currency, coin collections, silver coins, and/or silver bars located at his
Las Vegas residence. The jury also convicted both appellants of three silver counts:
conspiracy to commit burglary and/or grand larceny; burglary; and grand larceny of the silver
stored in the Pahrump underground vault. Tabish, but not Murphy, was convicted of four
Casey counts: conspiracy to commit extortion; false imprisonment with the use of a deadly
weapon; assault with a deadly weapon; and extortion with the use of a deadly weapon.
1

__________

1
Although the jury also found Tabish guilty of conspiracy to commit kidnapping, the district court entered an
amended judgment of conviction on October 16, 2000, dismissing that count.
The district court sentenced Murphy to serve a term of life in the Nevada State Prison with
the possibility of parole after 20 years for murder, a consecutive term of 2 to 10 years for
burglary, and four other concurrent terms ranging from 1 year in the county jail to a potential
maximum prison term of 15 years.
The district court sentenced Tabish to serve two consecutive terms of 18 to 120 months in
the Nevada State Prison for the extortion of Casey with the use of a deadly weapon; a
consecutive term of life in the Nevada State Prison with the possibility of parole after 20
years for Binion's murder; a fourth consecutive term of 24 to 120 months for burglary of the
underground vault, and concurrent terms ranging from 1 year in the county jail to potential
maximum prison terms of 15 years for the convictions on the remaining counts.
Appellants assign numerous errors on appeal, including that: (1) improper and prejudicial
joinder of their trials and the charges against them deprived them of a fair trial; (2) testimony
regarding an alleged statement Binion made to his attorney prior to his death was improperly
admitted at trial; (3) the State did not prove criminal agency; (4) the State's allegations in the
charging document of aiding and abetting were unconstitutionally vague; and (5) juror
misconduct deprived appellants of a fair trial. We conclude that the district court's refusal to
sever the Casey counts from the remaining charges in the case and to give a crucial limiting
instruction warrant reversal. We reject appellants' claim that the State failed to prove criminal
agency.
2
In light of our determination that reversal is warranted for the reasons stated, we
further conclude it is unnecessary to resolve the issues relating to the aiding and abetting
charges alleged in the information and jury misconduct. Finally, we conclude that appellants'
remaining assignments of error are without merit.
3

FACTS
Binion was found dead in his home in Las Vegas on September 17, 1998. At appellants'
trial, Binion's drug supplier Peter Sheridan testified that he had sold Binion a large quantity of
black tar heroin the day before his death. Heroin-smoking paraphernalia and traces of the
drug were found in a bathroom near Binion's body. Toxicology reports obtained in connection
with the autopsy that followed revealed the presence of heroin, Xanax, and Valium in
Binion's blood.
__________

2
To the extent that either appellant also generally challenges the sufficiency of the evidence supporting the
jury's verdict, we conclude that contention lacks merit.

3
Although we have considered appellants' remaining arguments, we do not specifically discuss these
contentions in this opinion.
Binion's live-in girlfriend, appellant Sandra Murphy, found Binion's body. An ambulance
and police officers were summoned to the house, and paramedics unsuccessfully attempted to
revive Binion. Police personnel then took pictures of the body and surrounding area, but they
did not seal the area or otherwise preserve it as a crime scene. Their assumption at the time
was that Binion died from a drug overdose, and no foul play was suspected. Murphy,
described as hysterical, was taken to Valley Hospital.
The Chief Medical Examiner for Clark County, Dr. Lary Simms, performed the autopsy on
Binion's body the following day. Dr. Simms noted the presence of various marks on Binion's
body and took photographs of them. He concluded that Binion's death was caused by an
overdose, but could not determine whether the death was suicide or accidental.
Several months before his death, Binion lost his gaming license to operate the family's
business, the Horseshoe Casino. Thereafter, he removed from the Horseshoe his large
personal collection of silver coins and bars worth approximately $8 million. In the summer of
1998, Binion employed appellant Richard Tabish to build an underground vault for the silver
on a vacant parcel of land Binion owned in Pahrump near his family's ranch. In late August or
early September 1998, Binion alerted the local Nye County Sheriff's Office that the silver had
been moved to the underground vault and asked them to keep an eye on the area. Tom
Standish, one of Binion's lawyers, testified at trial that he was present when Binion told
Tabish that if Binion died, Tabish should retrieve the silver from the vault so that greedy
Binion family members would not try to keep the silver from Binion's daughter, Bonnie.
Murphy and Tabish met through Binion. They became friends and then allegedly became
lovers. On the night of September 18, 1998, Tabish telephoned the Nye County Sheriff and
told him he was coming to Pahrump to dig up and remove the silver in the vault. Tabish
explained that Binion had requested him to retrieve the silver in the event of Binion's death.
But after Tabish and two other men, Dave Mattsen and Mike Milot, had loaded the silver into
their trucks, they were stopped by Nye County Sheriff's officers. They were detained for a few
hours, arrested, and then released on bail.
Police returned to Binion's house to gather more evidence about four weeks after Binion's
death. During that four-week period, the alleged crime scene had not been secured and
various people had access to the house and the den where Binion's body was found. A
comparison at trial of police photographs from the date of Binion's death and from the second
police investigation a month later clearly showed that objects had been moved. Paul
Dougherty, an expert in law enforcement procedures and crime scene reconstruction, testified
for the defense that the police had been irresponsible and unprofessional in gathering
evidence at the house and in failing to secure it as a crime scene.
ble and unprofessional in gathering evidence at the house and in failing to secure it as a crime
scene.
About a week after Binion's death, Binion family members hired a private investigator,
retired homicide detective Tom Dillard, to investigate Binion's death. Dillard conducted
numerous interviews and consulted experts in his investigation. Approximately six months
after Binion's death, Dr. Simms, the medical examiner who had performed the autopsy,
examined Dillard's materials and this time concluded that Binion's death was a homicide. The
Clark County District Attorney's Office subsequently charged Tabish and Murphy, alleging
they had robbed and murdered Binion at his house and had then stolen the silver from the
underground vault.
Appellants' trial lasted six weeks and included 115 witnesses. The witnesses consisted in
substantial part of numerous medical experts, many of them physicians hired by each side to
analyze the cause and manner of Binion's death. Except for Dr. Michael Baden, all of the
doctors, including Dr. Simms, agreed that Binion's death was caused by an overdose of
heroin, Xanax, and Valium.
4
These witnesses disagreed somewhat over which of the drugs
were present in Binion's body in lethal amounts. Nevertheless, whether they testified for the
State or the defense, they agreed that the drugs had killed Binion, probably working together
in a synergistic fashion to make them more toxic together than each drug would have been by
itself.
In contrast, Dr. Baden, a physician and expert witness for the prosecution, testified that
Binion did not die from a drug overdose, but had instead been suffocated by one or more
persons. Although Dr. Baden did not personally examine Binion's body, based on his
extensive experience as a medical examiner and trial consultant, he concluded that certain
marks on Binion's face, chest, and wrists demonstrated that Binion's hands had been
restrained, and that someone had covered his nose and mouth and applied pressure to Binion's
chest, perhaps with a knee, to hasten his death. Other doctors testifying for each side related
innocent explanations for the marks on Binion's body, including that Binion may have
bumped into things while under the influence of drugs, that a paramedic had rubbed Binion's
sternum to make sure he was dead, and that Binion suffered from dermatitis.
Binion's estate lawyer, James Brown, testified at trial that Binion had called Brown's office
the day before his death and had asked Brown to change the terms of his will. Brown testified
that Binion had said to him, Take Sandy [Murphy] out of the will if she doesn't kill me
tonight. If I'm dead, you'll know what happened. Although Brown did not report this
statement to police until several days after Binion's death,
__________

4
Dr. Simms also observed that some heroin users take Xanax to augment their heroin high.
until several days after Binion's death, he testified that he wrote down what Binion had said
less than twenty-four hours after he learned that Binion was dead.
Other State witnesses testified regarding appellants' suspicious behavior and other unusual
activities at the residence around the time of Binion's death: Binion's maid testified that
Murphy sent her home early the day before Binion's death and told her not to come to work
the next day; Binion's gardener testified that drapes that were always open were closed that
day and the dogs were behaving strangely; a private investigator testified that Murphy and
Tabish telephoned each other fewer times than usual on that day; and Bonnie Binion testified
that valuable items including cash and antique coins were missing from the Binion house.
Several State witnesses testified that Tabish had severe financial problems, thus supporting
the State's theory that his need for money provided a motive for him to kill Binion and steal
his silver. Kurt Gratzer, a witness who knew Tabish in Montana where Tabish had also
resided, said Tabish had discussed killing Binion with him and asked for his help. Gratzer
told a friend, Timothy Boileau, that Tabish wanted him to come to Las Vegas to kill a heroin
addict who was dating a stripper. Appellants countered these allegations with evidence that
Binion's death may have resulted from an accidental overdose or a suicide.
As noted, Tabish was also tried on charges relating to Leo Casey.
5
Casey and Tabish both
had a financial interest in the sand pit, which Casey estimated contained raw materials worth
about $10 million. Casey claimed that in July 1998, two months before Binion's death, he was
kidnapped and beaten by Tabish and Steve Wadkins, the manager of a company that had a
contract to wash sand provided by the sand pit to concrete companies. Casey testified that
Tabish and Wadkins forced him at gunpoint to drive approximately twenty miles to the Jean
sand pit, where they beat him about the head with a telephone book, injuring him and
knocking his toupee askew. Casey stated that the men berated him, poked a knife under his
fingernails, restrained his hands with a pair of thumbcuffs,
6
held a gun to his head, and told
him that they would kill him if he did not sign documents transferring his property interest
in the sand pit and confessing that he had embezzled money.
__________

5
Murphy was originally charged with the Casey counts as well, but these charges against her were dismissed
before trial.

6
Thumbcuffs were also found in a bag of silver coins discovered by James Brown and Tom Dillard behind a
television in Murphy's room at the Binion house on September 24, 1998. Brown testified that after they
discovered the bag, Dillard removed it from the residence. Later, Dillard returned the bag to the residence in
April 1999 where its contents were examined by an appraiser. During the appraisal, a pair of thumbcuffs were
discovered mixed in with the silver coins in the bag.
kill him if he did not sign documents transferring his property interest in the sand pit and
confessing that he had embezzled money.
Casey admitted at trial that he had been involved in a scheme to defraud investors in a
trucking and construction company in which Tabish had an interest. He testified that he was
afraid of the men and became even more so when they threatened to bury him in the desert
and proceeded to dig a shallow grave with excavation machinery at the sand pit. Casey
said, [T]hey threatened they were going to cut my fingers off and my wrists off, and I was
extremely shaken.
Eventually, Tabish and Wadkins drove Casey back into Las Vegas. They picked up John
Joseph, and visited an attorney's office, where documents were prepared transferring Casey's
interest in the sand pit to the others. Casey testified that his hands were bleeding slightly as he
signed the documents. Notaries at the attorney's office testified, however, that Casey did not
look as though he had just been beaten.
According to Casey, when they released him, Tabish and the other men told him they
would kill him, sexually assault his ex-wife, and kill his daughters if he did not leave Nevada
at once. He said that he moved out of the state and was contacted by police eight months later
regarding the incident. Casey also testified that Tabish had bragged to him at some time prior
to this incident that he was sleeping with Ted Binion's girlfriend, Sandra Murphy, and was
using her to get to Binion's valuable silver collection.
Before and during trial, appellants made numerous motions for severance. The district
court refused to sever the Casey counts from the other counts in the information or to grant
Tabish and Murphy separate trials. The district court did instruct the jury, however, that the
evidence respecting the Casey counts was not to be considered as evidence against Murphy.
The jury deliberated for eight days and found Tabish and Murphy guilty of the charges
specified above. Murphy filed motions for a new trial and for a judgment of acquittal. Tabish
also sought a new trial, as well as a judgment notwithstanding the verdict. The district court
denied the motions. This joint appeal followed.
DISCUSSION
I. Failure to sever charges
Appellants argue that improper and exceptionally prejudicial joinder deprived them of
their right to a fair trial. They contend that the Casey counts should have been tried separately
from the remaining counts because the charges were not based on a common scheme or
plan and trying the charges together was unconstitutionally prejudicial.
stitutionally prejudicial.
7
We conclude that the district court improperly denied appellants'
motions to sever the counts and that the error was not harmless beyond a reasonable doubt.
[Headnotes 1, 2]
Decisions to join or sever are left to the discretion of the trial court and will not be
reversed absent an abuse of discretion.
8
An error arising from misjoinder is subject to
harmless error analysis and warrants reversal only if the error had a substantial and
injurious effect or influence in determining the jury's verdict.'
9
As discussed below, we
conclude that misjoinder of the Casey counts with the other charges did have a substantial
and injurious effect warranting reversal of appellants' convictions, and requiring remand to
the district court for a new trial on the allegations against appellants respecting the murder
and robbery of Binion and the burglary and larceny of the underground vault. We reject the
State's contentions that all of the counts charged were part of a common scheme or plan, that
combining the counts was not unfairly prejudicial and promoted judicial economy, that the
counts had to be combined to give the jury the complete story of the crimes, or that the counts
would have been cross-admissible as prior bad acts in separate trials. We further conclude,
however, that the case against Tabish on the Casey counts did not present the jury with the
same close issues of fact, and the improper joinder of the charges did not have the same
substantial and injurious influence on the jury's consideration of the charges against Tabish
on the Casey counts. Therefore, we conclude that the error in that respect was harmless
beyond a reasonable doubt, and we affirm Tabish's conviction on the Casey counts.
A. Common scheme or plan
The State contends that the charges were properly joined pursuant to NRS 173.115
because they were part of a common scheme or plan. The State claims in particular that the
common thread of all these criminal acts is greed, money and the Jean Sand Pit. The
focus of all these crimes revolved around the Jean Sand Pit. Leo Casey had to be
eliminated so that Tabish could obtain the sand pit. Ted Binion had to be murdered in
order to obtain his silver and fund the Jean Sand Pit.
__________

7
NRS 173.115 provides in pertinent part:
Two or more offenses may be charged in the same . . . information in a separate count for each offense if the
offenses charged . . . are:
(1) Based on the same act or transaction; or
(2) Based on two or more acts or transactions connected together or constituting parts of a common
scheme or plan.

8
Amen v. State, 106 Nev. 749, 756, 801 P.2d 1354, 1359 (1990).

9
Robins v. State, 106 Nev. 611, 619, 798 P.2d 558, 564 (1990) (quoting United States v. Lane, 474 U.S. 438,
449 (1986)).
murdered in order to obtain his silver and fund the Jean Sand Pit. The connection
between all of these crimes is sufficient to justify the joinder of all these offenses.
The State also emphasizes the similarities between Casey and Binion: that Casey and Binion
were both older than Tabish, both had valuable assets worth stealing, both were allegedly
restrained by Tabish (and/or Murphy in Binion's case), and both were attacked in ways
leaving no visible injuries (although the State's theory of Binion's murder relies heavily on
marks on his wrists that the State argues are evidence of applied restraint).
[Headnote 3]
We agree with appellants, however, that money and greed could be alleged as connections
between a great many crimes and thus do not alone sufficiently connect the incidents.
Additionally, we note that Casey transferred his interest in the sand pit well before Binion's
death. This lapse of time between the events undermines the State's theory that Tabish and
Murphy killed Binion because Tabish was desperate for money to run the sand pit, and that
Tabish attacked Casey to obtain his interest so he could then kill Binion to finance the
project. Further, although both victims were older men with substantial assets, the alleged
crimes themselves were quite distinct: Casey was allegedly victimized with a phone-book, a
gun, a knife, and thumbcuffs, while Binion was allegedly murdered by a forced overdose of
drugs or by suffocation.
The State cites to several Nevada cases defining a common scheme or plan or allowing
connected counts to be tried together, but these cases fail to support the State's claim that the
Casey and Binion counts were sufficiently connected to support joinder.
10
This court has
previously held that even certain similar counts could not be joined because their connection
in time was too remote. In Mitchell v. State, for example, this court concluded that two
separate incidents forty-five days apart involving social drinks at a particular bar followed by
alleged sexual assaults could not be considered part of a common scheme or plan.
11
In this
case, the joined incidents were dissimilar, and fifty days separated the Casey incident from
the alleged murder and theft of the silver.
__________

10
For example, the State cites to the following: Tillema v. State, 112 Nev. 266, 914 P.2d 605 (1996) (counts
for two automobile burglaries sixteen days apart joined with store robbery committed immediately after second
burglary); Howard v. State, 102 Nev. 572, 729 P.2d 1341 (1986) (counts for robbery and murder properly
joined when defendant used stolen items to lure murder victim within a day of the robbery); State v. Boueri, 99
Nev. 790, 672 P.2d 33 (1983) (counts for twelve incidents of embezzlement from same ultimate victim were
properly joined); and Gibson v. State, 96 Nev. 48, 604 P.2d 814 (1980) (counts joined for prison escapee who
committed two auto thefts in a row to get away from the prison).

11
105 Nev. 735, 782 P.2d 1340 (1989).
incident from the alleged murder and theft of the silver. We are simply not persuaded that the
State sufficiently established the alleged connections between the counts to demonstrate a
common scheme or plan.
B. Prejudice
[Headnote 4]
We further conclude that appellants' trial on the Binion counts was unfairly prejudiced by
the joinder.
12
In assessing the potential prejudice created by joinder, this court has held that
[t]he test is whether joinder is so manifestly prejudicial that it outweighs the dominant
concern with judicial economy and compels the exercise of the court's discretion to sever.'
13
When some potential prejudice is present, it can usually be adequately addressed by a limiting
instruction to the jury. The jury is then expected to follow the instruction in limiting its
consideration of the evidence.
14

In this case, the district court instructed the jury that it was not allowed to consider
evidence from the Casey counts in determining Murphy's guilt as to the counts alleged against
her. Murphy argues that this limiting instruction was inadequate, partly because the evidence
in the Casey counts was so graphic. Moreover, Murphy contends, the State guarantee[d]
that the jury would consider the Casey matter in determining whether the Binion crimes were
committed by emphasizing in its closing arguments its view of the similarities between the
Casey incident and the separate allegations in the other counts against both appellants.
15
In
light of the graphic nature of the Casey evidence, coupled with the State's closing argument,
we are unable to conclude beyond a reasonable doubt that the limiting instruction was
sufficient to mitigate the prejudicial impact of the joinder on the jury's consideration of
appellants' guilt on the remaining counts.
16
The erroneous joinder was especially prejudicial
in Murphy's case,
__________

12
See Floyd v. State, 118 Nev. 156, 164, 42 P.3d 249, 255 (2002) (Even if joinder is permissible under NRS
173.115, a trial court should sever the offenses if the joinder is unfairly prejudicial.' (quoting Middleton v.
State, 114 Nev. 1089, 1107, 968 P.2d 296, 309 (1998))).

13
Honeycutt v. State, 118 Nev. 660, 667, 56 P.3d 362, 367 (2002) (quoting United States v. Brashier, 548
F.2d 1315, 1323 (9th Cir. 1976)).

14
Spencer v. Texas, 385 U.S. 554, 562 (1967).

15
For example, one prosecutor said in closing, I want to draw some comparisons for your consideration. Leo
Casey, older gentleman, Ted Binion, older gentleman. Leo Casey owed Rick Tabish money. Ted Binion owed
Rick Tabish money. . . . Leo Casey thumb-cuffed, Ted Binion, wrists were restrained. Leo Casey beat in a
manner which would leave no marks, Ted Binion suffocated in a manner that would leave no marks.

16
Cf. U.S. v. Smith, 795 F.2d 841, 851 (9th Cir. 1986) (holding that refusal to sever charges was not
manifestly prejudicial where prosecution and court took great pains to avoid emphasizing the charges were
somehow connected).
was especially prejudicial in Murphy's case, although it was manifestly prejudicial to Tabish's
trial on the other counts as well.
[Headnote 5]
This court has recognized the view of the United States Court of Appeals for the Ninth
Circuit that joinder may be so prejudicial that the trial judge [is] compelled to exercise his
discretion to sever.'
17
Prejudice created by the district court's failure to sever the charges is
more likely to warrant reversal in a close case because it may prevent the jury from making a
reliable judgment about guilt or innocence.
18
In our view, the Binion charges presented the
jury with a close case, and the joinder of the Casey counts rendered the trial of the Binion
counts fundamentally unfair.
19

Additionally, the limiting instruction was inadequate to prevent the improper spillover
effect of inappropriate joinder.
20
In Bean v. Calderon,
21
the prosecution joined counts
alleging two separate murders. The Ninth Circuit Court of Appeals reversed one of the
murder convictions because the consolidation of cases led the jury to infer criminal
propensity. In other words, there was an unacceptable risk that the jury found the defendant
guilty of the second murder simply because it thought he was a bad person for having
committed the first murder.
22
In Bean, this impermissible inference allowed the jury to
convict on the prosecution's weak case for one of the murders by relying on the stronger
evidence of the other murder.
23
Similarly, here the State's weaker case on the Binion counts
was bolstered by combining it with the stronger case against Tabish on the Casey counts.
Thus, the prejudice in this case constitutes the same type of due process violation that was
found in Bean.
24

__________

17
Lisle v. State, 113 Nev. 679, 694, 941 P.2d 459, 469 (1997) (quoting United States v. Lewis, 787 F.2d
1318, 1321, opinion amended, 798 F.2d 1250 (9th Cir. 1986)).

18
Zafiro v. United States, 506 U.S. 534, 539 (1993); see also Lewis, 787 F.2d at 1322 (considering relative
strength of evidence underlying joined charges as factor showing undue prejudice).

19
Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991); Bean v. Calderon, 163 F.3d 1073, 1084 (9th
Cir. 1998).

20
See Lisle, 113 Nev. at 689, 941 P.2d at 466 (discussing spillover effect of a jury's unfavorable impression
of a defendant influencing its determination of guilt).

21
163 F.3d 1073.

22
See NRS 48.045(1) (subject to certain exceptions, [e]vidence of a person's character or a trait of his
character is not admissible for the purpose of proving that he acted in conformity therewith on a particular
occasion).

23
See Bean, 163 F.3d at 1083.

24
See id. at 1083-84. It appears that the district court also recognized the prejudicial effects of the joinder
when it commented late in the trial that it should have granted the motions to sever the Casey counts from the
Binion counts.
C. Judicial economy
[Headnote 6]
The State also argues that joinder promoted judicial economy and that severance should
not be granted on guilt by association' alone.
25
Although judicial economy is an
appropriate consideration in deciding whether severance is appropriate, it must be weighed
against the possible prejudice to defendants.
26

The State's argument carries little force when considered in the context of this case.
Tabish's two co-defendants Joseph and Wadkins, who were charged only in connection with
the Casey counts, had their cases severed from Tabish and Murphy's before the preliminary
hearing based upon a stipulation with the State. Therefore, another trial was expected to be
held on the Casey counts in any event. Further, Tabish and Murphy's co-defendants in the
silver theft counts, Mattsen and Milot, were granted severance and were also scheduled for a
separate trial. In short, all of the other defendants' trials were severed from Tabish and
Murphy's, and there was a potential for at least two other trials at the time of Tabish and
Murphy's trial. Under these circumstances, no waste of judicial resources could have been
reasonably anticipated from Tabish being tried separately from Murphy on the Casey counts,
along with Joseph and Wadkins. In fact, to promote judicial economy in a far less potentially
prejudicial manner, the district court could have held one trial for all the defendants involved
in the Casey counts and one trial for those involved in the Binion and the silver counts.
Therefore, we conclude, considerations of judicial economy were far outweighed by the
manifest prejudice resulting from the joinder.
D. Complete story
The State contends that even if the Casey counts were improperly joined, they were
otherwise admissible under the complete story exception. NRS 48.035(3) provides:
Evidence of another act or crime which is so closely related to an act in controversy or a
crime charged that an ordinary witness cannot describe the act in controversy or the
crime charged without referring to the other act or crime shall not be excluded, but at
the request of an interested party, a cautionary instruction shall be given explaining the
reason for its admission.
__________

25
Lisle, 113 Nev. at 689, 941 P.2d at 466 (quoting United States v. Boffa, 513 F. Supp. 444, 487 (D. Del.
1980) (citation omitted)).

26
See Honeycutt, 118 Nev. at 667, 56 P.3d at 367 (joinder must be so manifestly prejudicial that it outweighs
the dominant concern with judicial economy); Lisle, 113 Nev. at 689, 941 P.2d at 466 (holding that trial court
must consider possible prejudice to government resulting from two time-consuming, expensive, and duplicative
trials).
This court has interpreted NRS 48.035(3) quite narrowly. For example, in Bletcher v.
State, we held that it was reversible error for the district court to admit evidence of the
defendant's drug possession during his prosecution for second-degree murder.
27
We
emphasized that the presence of drugs was not so interconnected with events leading to the
victim's death that the witness had to refer to the drugs to explain those events.
28

In this case, the Casey events could have easily been described without reference to the
Binion counts, and vice versa. The fact that Tabish's accomplices in the underground silver
incident and in the Casey incident had separate trials from Tabish and from each other
demonstrates the incidents are descriptively separable. Therefore, we conclude that the
complete story exception does not apply to these counts.
E. Cross-admissibility
The State argues that joinder of the Binion and Casey counts was permissible because of
cross-admissibility. Specifically, the State contends that evidence of the Binion counts would
have been admissible at Tabish's separate trial on the Casey counts, and evidence of the
Casey counts would have been admissible at a joint trial of appellants on the other counts.
29
The State asserts that the Casey prior bad act evidence would have been admissible at such a
joint trial of the other counts under NRS 48.045(2)
30
for the limited purposes of showing
motive (that Tabish was a greedy person and needed money to run the sand pit), plan (to
obtain money to run the sand pit, as discussed above), and the identity of Tabish and Murphy
as Binion's killers (because of the alleged similarities between the attack on Casey and the
death of Binion). We disagree.
[Headnote 7]
As this court held in Tinch v. State, to deem a prior bad act admissible, the district court
must first determine outside the presence of the jury that (1) the incident is relevant to the
crime charged;
__________

27
111 Nev. 1477, 1480, 907 P.2d 978, 980 (1995).

28
Id.; see also Flores v. State, 116 Nev. 659, 662-63, 5 P.3d 1066, 1068 (2000) (evidence that co-defendant
had been convicted of earlier murder in which same gun was used was not admissible against defendant in
murder prosecution under complete story doctrine); cf. Ochoa v. State, 115 Nev. 194, 200, 981 P.2d 1201, 1205
(1999) (evidence of prior drug transactions between victim and defendant was allowed to show history of
friction which escalated to murder).

29
See Mitchell, 105 Nev. at 738, 782 P.2d at 1342 (discussing cross-admissibility).

30
NRS 48.045(2) provides Evidence of other crimes, wrongs or acts is not admissible to prove the character
of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of
the evidence is not substantially outweighed by the danger of unfair prejudice.
31

Although, in our view, the relevance is somewhat tenuous, the Casey counts arguably have
some relevance to the remaining counts for the various purposes advanced by the State.
Appellants note that money and greed could be considered common motives for almost
every crime under the sun, including these crimes. The Casey counts are also arguably
relevant for the other purposes, i.e., to demonstrate a plan to obtain money to run the sand pit
and the identity of Tabish and Murphy as Binion's killers.
[Headnote 8]
Additionally, we agree that the State could have met the second Tinch requirement and
proven the Casey counts at a Petrocelli hearing by clear and convincing evidence.
32
The
testimony of Leo Casey regarding the attack on him provided the jury with strong, more than
sufficient evidence to convict Tabish of the crimes beyond a reasonable doubt, a higher
standard than required for the admission of prior bad act evidence under our holdings in
Tinch and Petrocelli.
[Headnote 9]
In our view, however, the district court would have manifestly abused its discretion in
finding that the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice.
33
As discussed above, the introduction of the Casey counts into
the trial on the remaining counts caused an improper spillover effect to occur, and the danger
of unfair prejudice was substantial. Although the Casey counts may have some relevance for
the purpose of demonstrating common motive, plan, and identity, that limited probative value
was substantially outweighed by the danger of unfair prejudice.
34
Therefore, we reject the
State's contention respecting the cross-admissibility of the counts, and we conclude that the
joinder was not supportable on this basis.
35

__________

31
Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).

32
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).

33
It is within the district court's discretion to admit or exclude evidence, and that determination will not be
disturbed unless manifestly wrong. See Walker v. State, 116 Nev. 670, 6 P.3d 477 (2000); Petrocelli, 101 Nev.
at 52, 692 P.2d at 508.

34
See, e.g., Tavares v. State, 117 Nev. 725, 730, 30 P.3d 1128, 1131 (2001) (holding that it is heavily
disfavored to use prior bad act evidence to convict a defendant because bad acts are often irrelevant and
prejudicial and force the accused to defend against vague and unsubstantiated charges); Flores v. State, 116
Nev. 659, 662-63, 5 P.3d 1066, 1068 (2000) (holding that probative value of evidence of a prior murder to show
identity and motive for another murder was far outweighed by the danger of unfair prejudice).

35
We do not suggest that all evidence relating to Tabish's interactions with Casey and their interests in the
sand pit is inadmissible. For example, the State
[Headnote 10]
In sum, the district court's improper denial of the motions to sever the Casey counts from
the other counts unfairly prejudiced both appellants in their trial on those other counts. With
respect to the Binion counts and the silver counts, we conclude that the error was not
harmless beyond a reasonable doubt, and we reverse appellants' convictions on those counts
and remand for a new trial on those matters alone. The prejudicial impact of the improper
joinder on Tabish, as it related to his trial on the Casey counts, was not as severe. Given the
strong and more than substantial evidence presented against Tabish on the Casey counts, we
conclude that the improper joinder was harmless beyond a reasonable doubt as it relates to his
conviction on those counts. Therefore, we affirm Tabish's conviction on the Casey counts.
II. Failure to sever appellants' trials
[Headnote 11]
Murphy argues that she and Tabish should have been granted separate trials altogether.
36
The Casey counts against Murphy were dismissed before appellants' joint trial. Therefore, if
Murphy were to have had a separate trial, she would have been tried only on the counts
related to the murder and robbery of Binion and the counts related to the theft of the
underground vault.
37
Although Tabish and Murphy should not have been subjected to a joint
trial including the Casey counts, we conclude that they were properly tried together for the
remaining charges as co-defendants. The improper joinder of the Casey counts with the
remaining charges does not foreclose a joint retrial of Tabish and Murphy on those remaining
charges on remand.
III. Hearsay statement of decedent
Appellants contend that the district court abused its discretion by permitting Binion's estate
attorney, James Brown, to testify that Binion telephoned him the day before his death and
said, "Take Sandy [Murphy] out of the will if she doesn't kill me tonight.
__________
could appropriately present limited evidence relating to Tabish's financial transactions with Casey for the
purpose of establishing Tabish's financial condition, his need for funds, and his motivation for committing the
acts alleged in the Binion and the silver counts. We emphasize, however, that the highly prejudicial impact of
Casey's graphic testimony respecting the brutal treatment he received at the hands of Tabish and his accomplices
substantially outweighs the limited probative value of that evidence with respect to the allegations in the Binion
and the silver counts.

36
NRS 173.135 provides in relevant part: Two or more defendants may be charged in the same . . .
information if they are alleged to have participated in the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses.

37
Tabish and Murphy apparently do not challenge the joinder of the counts involving the underground silver
vault with the counts alleged to have occurred at Binion's Las Vegas residence.
Binion telephoned him the day before his death and said, Take Sandy [Murphy] out of the
will if she doesn't kill me tonight. If I'm dead you'll know what happened.
Prior to trial, appellants moved to exclude the statement as impermissible hearsay.
38
The
district court ruled that the statement was admissible under NRS 51.105(1), which provides:
A statement of the declarant's then existing state of mind, emotion, sensation or physical
condition, such as intent, plan, motive, design, mental feeling, pain and bodily health, is not
inadmissible under the hearsay rule.
In Shults v. State, this court held that [i]n order for the state of mind exception to be
applicable, the victim's state of mind must be a relevant issue, the relevance must be weighed
against prejudice, and a proper limiting instruction must be given or objectionable testimony
deleted.
39
The decision to admit or exclude such evidence is within the sound discretion of
the district court and the district court's determination will not be disturbed unless manifestly
wrong.
40
We conclude that the district court manifestly abused its discretion in admitting the
statement without a limiting instruction.
The district court found that Binion's state of mind was a relevant issue because the
defense theories offered at trial included suicide and accidental death.
41
The record shows
that the district court also weighed the relevance of the statement against its prejudicial
impact and ruled the statement to be admissible.
[Headnote 12]
Assuming that the statement was relevant to rebut the defense theories, we conclude that
the district court abused its discretion under Shults in admitting the statement without an
appropriate limiting instruction. The prejudicial impact was great: the statement strongly
implied Murphy killed Binion. Moreover, the relevance of the statement was equivocal, even
though there was little other evidence of Binion's state of mind before his death.
42
But if the
statement was relevant to show Binion's state of mind at the time he made the
statement,
__________

38
Pursuant to our recent holding in Richmond v. State, 118 Nev. 924, 932, 59 P.3d 1249, 1254 (2002),
appellants' argument was adequately preserved for appellate review. The issue was briefed and argued prior to
trial, and the district court made a definitive ruling to admit the statement.

39
96 Nev. 742, 751, 616 P.2d 388, 394 (1980) (citing United States v. Brown, 490 F.2d 758, 773-78 (D.C.
Cir. 1974)).

40
Walker v. State, 116 Nev. 670, 674-75, 6 P.3d 477, 479 (2000).

41
Shults, 96 Nev. at 751, 616 P.2d at 394 (victim's state of mind is at issue when defendant claims
self-defense, accidental death, or suicide); see also Brown, 490 F.2d at 767 (where a defendant claims
self-defense, suicide, or accidental death, the need for admission of such statements overcomes almost any
possible prejudice).

42
See Brown, 490 F.2d at 764 n.17 (in a case where the mental state is provable by other available evidence
and the danger of harm from improper use
the statement was relevant to show Binion's state of mind at the time he made the statement,
the exception still does not allow the statement to be used as evidence of the intent or conduct
of anyone elsein this case, Murphy.
43
The district court did not give a limiting instruction
advising the jury that the statement was only admissible for the limited purpose of showing
Binion's state of mind.
[Headnotes 13, 14]
Harmless error analysis applies to hearsay errors.
44
We are unable to conclude that the
error was harmless beyond a reasonable doubt in this case.
45
In Shults, this court noted that
the evidence against the defendant was incredibly strong, thereby rendering a similar error
harmless.
46
In Downey v. State, on the other hand, this court concluded that such an error
was reversible because the evidence of guilt [was] not overwhelming, and guilt [was] based
solely on circumstantial evidence. The hearsay in this case [was] extremely prejudicial, both
because of its content and because it [was], in effect, testimony from the dead victim.
47
In
this case, as in Downey, the State's evidence on the Binion counts was highly circumstantial
and not overwhelming. The statement is akin to testimony from Binion after his death.
Without a limiting instruction, the risk was unacceptable that the jury would improperly
consider the statement as evidence of appellants' intent or conduct during its eight days of
deliberation, particularly in light of the State's closing argument that truer words were never
spoken. Accordingly, we cannot conclude based on this record that the district court's failure
to give a limiting instruction was harmless beyond a reasonable doubt.
IV. Proof of criminal agency
Appellants argue that, as a matter of law, insufficient evidence was adduced at trial to
establish the corpus delicti for the murder charge, i.e., that Binion died as the result of a
criminal act rather than from some other cause. We disagree.
__________
by the jury of the offered declarations is substantial, the judge's discretion to exclude the declarations has been
recognized (quoting McCormick on Evidence 294, at 696 (2d ed. 1972))).

43
See Graham C. Lilly, An Introduction to the Law of Evidence 7.13, at 287-88 (3d ed. 1996).

44
Shults, 96 Nev. at 751, 616 P.2d at 394.

45
See Brown, 490 F.2d at 777 (Good limiting instructions are vital where the possibility exists that the jury
will consider the testimony for an improper purpose.).

46
96 Nev. at 751, 616 P.2d at 394.

47
103 Nev. 4, 7, 731 P.2d 350, 352 (1987); see also Summers v. State, 102 Nev. 195, 202, 718 P.2d 676, 681
(1986).
[Headnotes 15, 16]
To establish probable cause, the State must show that: (1) a crime has been committed,
and (2) the defendant committed that crime.
48
The first part of this test is known as the
corpus delicti, and to establish it in a murder case, the State must demonstrate: (1) the fact of
death, and (2) that death occurred by the criminal agency of another.
49
The corpus delicti
may be established by circumstantial evidence only,
50
and at trial the State bears the burden
of establishing the corpus delicti beyond a reasonable doubt.
51
This court has stated that the
proper standard [of review for these claims] is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have concluded beyond a
reasonable doubt that [the victim's] death was caused by a criminal agency.
52

[Headnote 17]
As noted above, Dr. Baden testified that he had concluded that Binion had been suffocated
by one or more persons. Although there was conflicting testimony and the question of
whether Binion died as a result of a criminal agency is a close one given his heroin habit, we
conclude that, based on Dr. Baden's testimony, a rational trier of fact could have found
beyond a reasonable doubt that Binion's death was caused by a criminal agency.
53
Accordingly, we reject this contention.
We further note that the district court correctly determined that the jury did not have to
agree unanimously on a single factual theory of criminal agency in order to convict appellants
of murder. As noted, the State presented two expert witnesses, Doctors Simms and Baden, on
the issue of whether a criminal agency was the cause of Binion's death. Doctor Simms
testified that Binion's demise was the result of an induced overdose of a mixture of heroin,
Xanax, and Valium.
__________

48
Frutiger v. State, 111 Nev. 1385, 1389, 907 P.2d 158, 160 (1995).

49
Id.

50
Azbill v. State, 84 Nev. 345, 351, 440 P.2d 1014, 1018 (1968).

51
Middleton, 114 Nev. at 1103-04, 968 P.2d at 306-07; Azbill, 84 Nev. at 352, 440 P.2d at 1018.

52
Frutiger, 111 Nev. at 1391, 907 P.2d at 161 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see
also Sheriff v. Dhadda, 115 Nev. 175, 980 P.2d 1062 (1999).

53
Appellant Murphy filed a motion with this court during the pendency of this appeal to bring new
information to the court's attention. Attached to the motion were affidavits and photographs purporting to set
forth new expert opinion evidence regarding the cause of Binion's death. The appellate court record in this case
consists of the record made and considered in the district court below. This court cannot consider matters not
properly appearing in the record on appeal and therefore cannot consider this new evidence. Therefore, we deny
the motion. See Carson Ready Mix v. First Nat'l Bk., 97 Nev. 474, 635 P.2d 276 (1981); see also NRS 177.165.
Xanax, and Valium. Dr. Baden opined that Binion was suffocated through a process known in
the literature as burking. Both opinions were, to a degree, contradictory.
At trial, appellants did not object to the admissibility of this conflicting body of evidence.
Rather, appellants chose to pit the credibility of the State's witnesses against experts for the
defense who testified that Binion's death was most likely accidental or self-induced.
Appellants also requested the district court to instruct the jury that, to convict, the jurors must
unanimously agree on the factual theory of criminal agency; that is, they must either
unanimously agree that Binion was suffocated or unanimously agree that he was poisoned.
The district court rejected this proposed instruction and concluded that the jury did not have
to be unanimous on the facts or theory of how the appellants committed first-degree murder.
Rather, the district court concluded that the Constitution only required the jury to
unanimously agree that the evidence established appellants' guilt of first-degree murder. We
agree with the district court.
[Headnote 18]
In Schad v. Arizona, the United States Supreme Court observed:
We have never suggested that in returning general verdicts . . . the jurors should be
required to agree upon a single means of commission, any more than the indictments
were required to specify one alone. In these cases, as in litigation generally, different
jurors may be persuaded by different pieces of evidence, even when they agree upon the
bottom line. Plainly there is no general requirement that the jury reach agreement on the
preliminary factual issues which underlie the verdict.
54

Although we have not previously specifically addressed whether jury unanimity on a single
theory of criminal agency is necessary to establish the corpus delicti, we have cited Schad
with approval in rejecting the contention that the State should be required to elect a single
theory of prosecution, i.e., between premeditated or felony-murder.
55
We now conclude, in
accord with the reasoning of the plurality opinion in Schad, that when conflicting or
alternative theories of criminal agency are offered through the medium of competent
evidence, the jury need only achieve unanimity that a criminal agency in evidence was the
cause of death; the jury need not achieve unanimity on a single theory of criminal agency.
__________

54
501 U.S. 624, 631 (1991) (plurality opinion) (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990)
(Blackmun, J., concurring) (footnotes omitted)).

55
See Moore v. State, 116 Nev. 302, 304, 997 P.2d 793, 794 (2000).
CONCLUSION
The failure to sever the Casey counts from the other charges and the admission of the
hearsay statement without a limiting instruction unfairly prejudiced both appellants in their
trial on the Binion and the silver counts. The errors were not harmless beyond a reasonable
doubt. Neither of the errors, however, had the same severely prejudicial impact with regard to
Tabish's conviction on the Casey counts, and in that respect, we conclude the errors were
harmless beyond a reasonable doubt. Accordingly, we reverse appellants' convictions on the
Binion and the silver counts and remand for a new trial on those matters alone. We affirm
Tabish's conviction on the Casey counts.
56

Agosti, C. J., Becker, J., and Young, Sr. J., concur.
Shearing, J., concurring in part and dissenting in part:
I agree with the majority that the convictions of Sandra Murphy and Richard Tabish for
first-degree murder, conspiracy to commit murder and/or robbery, and robbery must be
reversed, but I would affirm the remaining convictions.
I agree with Justices Maupin and Leavitt that the decision not to sever the Casey counts
from the Binion counts was within the district court's discretion and did not constitute an
abuse of discretion.
1
However, I agree with the majority that the admission of a statement
made by Binion prior to his death without any limiting instruction and the emphasis by the
State on the truth of that statement are so prejudicial as to taint the convictions relating to the
Binion murder.
The district court was within its discretion in admitting the testimony of Binion's estate
attorney regarding Binion's statement to him the night before he died. The attorney testified
that Binion said: Take Sandy out of the will if she doesn't kill me tonight. If I'm dead, you'll
know what happened. Even though the statement is hearsay, it was admissible to show
Binion's state of mind to rebut the defense allegation that Binion may have committed
suicide.
2
However, Binion's statement was clearly not admissible for the truthnamely, that
if he were dead the next day, Murphy killed him. The purpose of the hearsay rule is to
preserve the right of confrontation and cross-examination and to allow the jury to judge the
credibility of the witness and the basis for the statements.
__________

56

1
See Honeycutt v. State, 118 Nev. 660, 667, 56 P.3d 362, 367 (2002).

2
NRS 51.105.
the credibility of the witness and the basis for the statements. If Binion had just been
informed of Murphy's affair with Tabish, it is reasonable to infer that he would have wanted
to take Murphy out of his will. However, there is no indication that he had a basis for
thinking she would kill him. In fact, the testimony of the people who talked to Binion,
including Binion's attorney and the attorney's wife, indicates that Binion was casual and not in
fear of his life. And if Binion had really thought he would die that night, it would be logical
to infer that he would have changed his will immediately rather than putting it off to a later
date.
Despite the fact that the hearsay statement was admitted for the purpose of showing
Binion's state of mind, no instruction limiting the use of the statement for that purpose was
ever given. In fact, the State argued at trial that once a statement is admitted under NRS
51.105, it may be considered for its truth. That is wrong. An instruction limiting its use to
consideration of Binion's state of mind was required. In Shults v. State, this court stated: In
order for the state of mind exception to be applicable, the victim's state of mind must be a
relevant issue, the relevance must be weighed against prejudice, and a proper limiting
instruction must be given or objectionable testimony deleted.
3

The district court determined that the statement was more probative than prejudicial. That
determination was within the district court's discretion.
4
However, its failure to give a
limiting instruction was not.
Perhaps the lack of a limiting instruction for the hearsay statement could have been
considered harmless error if the evidence of murder were overwhelming, but it was not. I
cannot find the admission of the hearsay statement without a limiting instruction harmless
error when the State used and emphasized the truth of the statement. In closing argument, the
State repeated the statement, Take Sandy out of the will if she doesn't kill me tonight. If I'm
dead, you'll know what happened. The State then commented to the jury: Truer words were
never spoken.
This use of the hearsay statement of the decedent constitutes plain error and requires
reversal of the convictions for first-degree murder and conspiracy to commit murder and/or
robbery.
I do not agree that the convictions for conspiracy to commit burglary and/or grand larceny,
burglary and grand larceny must be reversed based on the improper admission of the hearsay
statement. As to those counts, the admission of the hearsay statement without a limiting
instruction was harmless error. The evidence regarding these counts relating to the taking of
property was overwhelming, in contrast to the evidence on the homicide counts.
__________

3
96 Nev. 742, 751, 616 P.2d 388, 394 (1980).

4
Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).
in contrast to the evidence on the homicide counts. Furthermore, the hearsay statement related
strictly to a homicide, not theft.
Maupin, J., with whom Leavitt, J., agrees, dissenting:
I would affirm the judgments of conviction entered below against appellants on all counts.
I. Severance of charges
The majority holds that the district court abused its discretion by failing to sever the
Casey counts against Tabish from those filed against appellants in connection with the
murder of Lonnie Theodore Binion. I disagree.
A district court's decision to join charges is governed by NRS 173.115.
1
The decision
to sever is left to the discretion of the trial court, and an appellant has the heavy burden of
showing that the court abused its discretion.'
2
Errors arising from misjoinder are subject to
a harmless error analysis and we will reverse only if the error has a substantial and injurious
effect or influence in determining the jury's verdict.'
3

A. Factual predicate supporting joinder
The district court in my view properly refused to sever the Casey charges from the
Silver and Binion charges because the factual underpinnings of both supported the State's
theory that appellants engaged in a common scheme or plan to kill Theodore Binion for
monetary gain. Substantial evidence in the record in aid of all three sets of charges suggests
that these appellants harbored individual and joint motivations for the fatal attack on Binion.
Proofs generated in support of the Casey charges against Tabish revealed the
circumstances surrounding Tabish's takeover of the Jean Sand Pit, a marginally funded
financial endeavor with the potential for profits in the millions of dollars. The attempts at
acquiring and operating the pit described by trial witnesses demonstrated Tabish's dire
financial circumstances and his need for substantial sums of money that he did not have
available for an investment of that magnitude.
__________

1
NRS 173.115 provides:
Two or more offenses may be charged in the same indictment or information in a separate count for each
offense if the offenses charged, whether felonies or misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting parts of a common
scheme or plan.

2
Honeycutt v. State, 118 Nev. 660, 667, 56 P.3d 362, 367 (2002) (quoting Middleton v. State, 114 Nev. 1089,
1108, 968 P.2d 296, 309 (1998)).

3
Robins v. State, 106 Nev. 611, 619, 798 P.2d 558, 564 (1990) (quoting Mitchell v. State, 105 Nev. 735, 739,
782 P.2d 1340, 1343 (1989) (quoting United States v. Lane, 474 U.S. 438, 450 (1986))).
substantial sums of money that he did not have available for an investment of that magnitude.
A fair reading of the evidence supports the State's theory that his goal was to acquire Binion's
stockpile of silver bars, worth approximately $8 million, and that Murphy, whose relationship
with Theodore Binion had deteriorated and was possibly ending, harbored images of marriage
to Tabish. Trial evidence also strongly suggests that she joined with him in the enterprise to
murder Binion to preserve and secure testamentary gifts of the Binion residence and $300,000
in cash assets, as well as substantial proceeds from a life insurance policy on the life of
Theodore Binion. The jury was thus entitled to conclude that Tabish needed financing for the
sand pit enterprise, that Murphy wanted to preserve her financial well-being via Binion's last
will and testament because her relationship with Binion was about to end, that both Tabish
and Murphy sought to come out of the scheme as a couple, and that none of this could be
successfully accomplished with Binion alive. Certainly, the State was permitted the inference
that Tabish's illicit relationship with Murphy facilitated her complicity in this murder.
The State's evidence also creates a fair inference that, for all of Murphy's developed ill will
towards Binion, she never would have been able to murder him on her own without Tabish's
direct assistance. Therefore, although the joined charges involved separate victims and
separate alleged violations of the State criminal code, the evidence generated in support of all
three sets of charges suggests a consolidated plan to secure substantial portions of Binion's
personal wealth.
I recognize that other trial evidence supported the defense theory that other avenues were
available to Tabish, short of murder, to exploit his commercial interests in the sand pit. For
example, at least one witness indicated that Tabish's trucking business and the Jean Sand Pit
were viable although financially strapped. This was certainly a permissible inference from the
evidence that undermined a portion of the State's overall case based upon the Casey counts.
However, the totality of the evidence introduced at trial entitled the jury to reject the defense
evidence and conclude that the pit was part of the scenario that motivated appellants to
commit murder.
To me, joinder of the Casey and Binion charges provided an explanation as to why Tabish
chose to kill Binion, instead of merely running off with Murphy. Had such an elopement
occurred, Tabish would have been forced to forego his attempt to appropriate Binion's silver;
and Murphy would have forfeited the lifestyle she enjoyed with Theodore Binion, as well as a
substantial portion of the bequests in his last will and testament.
B. Cross-admissibility
Joinder of criminal counts is permissible in situations where the evidence in one count is
cross-admissible between counts.
4
In light of the above, I am of the view that the Casey
evidence was admissible as evidence of motive under NRS 48.045(2),
5
against both
appellants with regard to the remaining counts.
As noted by the majority, admissibility under NRS 48.045(2) of other bad acts as
non-character evidence, i.e., to demonstrate motive, must be analyzed under our decision in
Tinch v. State.
6
In Tinch, prior bad act evidence of motive must be tested under a
three-pronged determination that (1) the incident is relevant to the crime charged; (2) the act
is proven by clear and convincing evidence; and (3) the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice.
7
Although determining that the
Casey evidence was at least marginally relevant and was proved by clear and convincing
evidence, the majority concludes that the probative value of the evidence on the issue of
motive was limited and thus substantially outweighed by the danger of unfair prejudice.
In my view, ample evidence was generated at trial demonstrating the intertwined motives
of these appellants, centering around their desires to join as a couple and effect their joint
financial security via Binion's wealth and the economic potential of the sand pit operation.
Thus, I have concluded that the probative value of the Casey evidence was substantial and not
outweighed in any respect by a potential for unfair prejudice.
C. Prejudicial joinder
As indicated, both appellants argue that the refusal to sever the Casey and Binion counts
mandates reversal. Murphy argues additionally that the case against her should have been
tried separately.
In certain situations, joinder of charges or defendants, although proper, may result in
prejudice to the defendants.
8
However, as also noted, joinder of offenses in a single
indictment or information is allowed under NRS 173.115,
__________

4
See Mitchell, 105 Nev. at 738, 782 P.2d at 1342.

5
NRS 48.045(2) states in part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.

6
113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).

7
Id.

8
NRS 174.165 states in part:
1. If it appears that a defendant or the State of Nevada is prejudiced by a joinder of offenses or of
defendants in an indictment or information,
noted, joinder of offenses in a single indictment or information is allowed under NRS
173.115, where the charges are based upon connected acts or transactions or acts or
transactions constituting parts of a common scheme or plan. To require severance [of
separate counts], the defendant must demonstrate that a joint trial would be manifestly
prejudicial.'
9
Also, the district court may generally reduce the risk of prejudice to joined
defendants through a limiting instruction.
10
Consequently, the ultimate issue [concerning
joined defendants] is whether the jury can reasonably be expected to compartmentalize the
evidence as it relates to [the] separate defendants.'
11
Therefore, the district court is not
required to grant severance of charges or defendants based solely on a defense theory of guilt
by association.
12

The majority concludes that the refusal to sever the Casey and Binion counts requires
reversal in light of the State's closing arguments intertwining the Casey and Binion evidence,
the lack of probative value of the Casey evidence on the question of motive, and the graphic
nature of the Casey evidence. I disagree.
First, as noted above, I am of the view that the Casey evidence was admissible on the issue
of motive as to both defendants and that, accordingly, joinder of the Casey counts as to
Tabish had no prejudicial effect on either appellant.
Second, as to Murphy, the district court repeatedly instructed the jury that it could not in
any way consider the evidence in support of the Casey counts in determining Murphy's guilt
in connection with the Binion-related counts. Here, the majority adopts Murphy's argument
that the State's intertwining of the evidence supporting both sets of charges guarantee[d]
that the jury would violate the admonition. In my view, because the State should have been
free to intertwine the two sets of counts in terms of arguing motive and common scheme, the
cautionary instruction was actually overly broad in its attempts to protect Murphy. To me, the
admonitions should have been narrower in scope, advising the jury that the Casey evidence
was relevant only to the issues of common scheme and motive. Thus, Murphy obtained a
particular benefit to which she was not entitled,
__________
or by such joinder for trial together, the court may order an election or separate trials of counts, grant a
severance of defendants or provide whatever other relief justice requires.

9
Honeycutt, 118 Nev. at 667-68, 56 P.3d at 367 (quoting United States v. Bronco, 597 F.2d 1300, 1302 (9th
Cir. 1979)).

10
Lisle v. State, 113 Nev. 679, 689, 941 P.2d 459, 466 (1997) (Any possible prejudice may be cured by
providing an adequate jury instruction to prevent the jury from associating evidence admissible for one
defendant with the other defendant.), overruled on other grounds by Middleton, 114 Nev. 1089, 968 P.2d 296.

11
Id. (quoting Jones v. State, 111 Nev. 848, 854, 899 P.2d 544, 547 (1995)).

12
Id.
she was not entitled, a cautionary instruction that excluded any consideration of the Casey
evidence against her.
In any event, I believe that the Casey evidence was admissible against both appellants with
regard to the Binion and Silver charges. Thus, I am of the view that the district court
committed no error with regard to its cautionary instruction in connection to Murphy and that
the State properly attempted to intertwine the three sets of criminal charges as to both
appellants.
D. Judicial economy
When determining whether a district court abused its discretion in deciding issues of
joinder, this court must consider not only the possible prejudice to the defendant but also
the possible prejudice to the Government resulting from two time-consuming, expensive and
duplicitous trials.'
13
The majority concludes that the other Casey defendants were granted
separate trials, and thus, the district court should have granted appellants' motions for the
same relief. Several factors contained in the record undermine this conclusion.
First, none of the defendants in these other actions were romantically involved with
Murphy. Second, none of the other Casey defendants had a motive to kill Binion. Third, none
of these other defendants stood to gain anything from Binion's death. Lastly, there is no
evidence that the other Casey defendants conspired with Tabish and Murphy to murder
Binion.
14

II. Criminal agency
I agree with the majority that the State provided sufficient proof at trial of criminal agency
as the cause of Binion's death. I take this opportunity to expand upon the majority analysis.
As noted by the majority, to establish corpus delicti, two elements must be established
(1) the fact of death; and (2) the criminal agency of another responsible for that death.'
15
Corpus delicti may be established by purely direct evidence, partly direct and partly
circumstantial evidence, or entirely circumstantial evidence.
16
At the time of trial, the
presence or existence of the corpus delicti is a question for the jury.
17

__________

13
Lisle, 113 Nev. at 688-89, 941 P.2d at 466 (quoting United States v. Andreadis, 238 F. Supp. 800, 802
(E.D.N.Y. 1965)).

14
In line with my conclusions that no error occurred from the district court's refusal to sever the Casey and
Binion-related charges, I agree with the majority that appellants should be tried together on remand and that the
Casey counts against Tabish be affirmed.

15
Frutiger v. State, 111 Nev. 1385, 1389, 907 P.2d 158, 160 (1995) (quoting Azbill v. State, 84 Nev. 345,
350-51, 440 P.2d 1014, 1017 (1968)).

16
Sheriff v. Middleton, 112 Nev. 956, 962, 921 P.2d 282, 286 (1996).

17
Azbill, 84 Nev. at 352, 440 P.2d at 1018.
In Sheriff v. Middleton, we held:
Although medical evidence as to the cause of death is often critical in establishing that
a death occurred by criminal agency, there is no requirement that there be evidence of a
specific cause of death. The state is required only to show a hypothesis that death
occurred by criminal agency; it is not required to show a hypothesis of a specific cause
of death.
18

Based on our prior holding in Middleton, it was not necessary that the State prove the exact
cause of Binion's death. The State was only required to prove that the victim's death was
directly caused by criminal agency. Although there was conflicting evidence on this issue at
trial, competent expert testimony was admitted that supports the jury's implied finding
through the guilty verdicts that Binion's death was occasioned by a criminal agency.
The State presented testimony from Chief Medical Examiner for Clark County, Dr. Lary
Simms, and forensic pathologist Dr. Michael Baden, who has conducted over 20,000
autopsies. Both Doctors Simms and Baden concluded that Binion's death was caused by
criminal agency. Dr. Baden concluded that Binion's death was the result of burking.
19
Dr.
Simms concluded that Binion's death was the result of an overdose of drugs. Appellants
introduced their own medical experts to contradict the testimony of Doctors Baden and
Simms.
Where conflicting testimony is presented, the jury determines what weight and credibility
to give it,
20
and [t]he jury is the sole and exclusive judge of the credibility of the witnesses
and the weight to be given their testimonies.
21
Appellants did not object to the admissibility
of Doctors Baden's and Simms's testimony, but instead chose the trial tactic of attempting to
undermine their credibility before the jury. Thus, the issue at trial was not whether the State
provided proof of criminal agency; rather, the issue framed by the parties, including these
appellants, was which body of expert evidence was worthy of belief by the jury.
Appellants rely heavily on Azbill v. State
22
in support of their argument that the State
presented insufficient proof of corpus delecti. In Azbill, the State proffered a theory of
criminal agency that the defendant, Azbill, disabled the decedent, his wife,
__________

18
112 Nev. at 962, 921 P.2d at 286.

19
The term burking was named after William Burke, who along with an accomplice in 1815, killed a
number of people and sold their bodies to medical schools in Edinburgh, Scotland. Burke and his accomplice
would follow and kill intoxicated individuals by one of them holding a hand over the victim's nose and mouth,
while the other would sit on the victim's chest until he or she died of asphyxia.

20
Braunstein v. State, 118 Nev. 68, 79, 40 P.3d 413, 421 (2002).

21
Dorsey v. State, 96 Nev. 951, 954, 620 P.2d 1261, 1263 (1980).

22
84 Nev. 345, 440 P.2d 1014.
defendant, Azbill, disabled the decedent, his wife, by starvation and administration of a
mixture of drugs and alcohol, and then killed her by setting fire to her bed. Although an
eyewitness saw Azbill start the fire that engulfed his wife, the State introduced evidence from
two qualified pathologists, both of whom concluded that the decedent died prior to the fire,
most likely from the synergistic effects of alcohol and barbiturates. Neither could
affirmatively opine that a criminal agency caused Mrs. Azbill's demise.
23
The Azbill court
noted that Azbill's attempt to burn the body may have been circumstantial evidence of
criminal agency; but that the introduction of expert testimony to the contrary by the State
factually closed the door on the theory of death by fire. Further, in Azbill, the State also
eliminated the hypothesis that Azbill simply provided a lethal dose of alcohol and drugs to his
wife by indicating at oral argument before this court that it did not rely on such a theory of
criminal agency. Thus, the only evidence of criminal agency relied upon by the State in Azbill
was renounced by its own witnesses; and no other theory was offered for consideration by
this court.
24

Here, as indicated, the State introduced competent expert testimony that Theodore Binion
died as a result of a criminal agency. Thus, Azbill provides no sustenance to appellants' claims
in these proceedings.
25

III. Hearsay statement
At trial, the district court allowed the State to elicit a hearsay statement allegedly made by
Binion to his estate attorney, James Brown, Esq., during a phone conversation the day before
his death: Take Sandy [Murphy] out of the will if she doesn't kill me tonight. If I'm dead,
you'll know what happened. The statement was admitted by the district court under NRS
51.105(1):
A statement of the declarant's then existing state of mind, emotion, sensation or
physical condition, such as intent, plan, motive, design, mental feeling, pain and bodily
health, is not inadmissible under the hearsay rule.
In Shults v. State,
26
we concluded that evidence should only be admitted under this state of
mind exception if relevant, after a weighing of probative value versus prejudice, and with an
instruction outlining its limited probative value.
__________

23
Id. at 353, 440 P.2d at 1019.

24
Id.

25
I agree with the majority that the district court correctly instructed the jury that it need not reach unanimity
on the mode of criminal agency in order to convict appellants on the charges lodged in connection with the
murder of Binion.

26
96 Nev. 742, 751, 616 P.2d 388, 394 (1980).
Appellants placed Binion's state of mind in issue when they contended at trial that he may
have been suicidal or accidentally killed himself through a drug overdose. The Binion hearsay
statement thus took on considerable importance and was highly probative to refute the
alternative theories concerning cause of death proffered by the defense. There was no
question that the evidence was admissible, but only for non-hearsay purposesto prove state
of minda lack of suicidal ideation; not as proof of an accusation from the grave. Thus,
admission under the state of mind exception does not provide a general license to argue the
truth of the content of the statement; again, it is simply admissible for non-hearsay purposes.
27
Accordingly, although agreeing that Binion's hearsay statement was admissible under NRS
51.105(1), the majority concludes that the district court abused its discretion by failing to give
the jury a limiting instruction concerning the statement to his attorney, and that failure to give
the instruction requires reversal. I disagree.
A. Preservation of error for appeal
At the outset, I would observe that the record is somewhat muddled as to whether the
defense perfected and preserved its objections concerning admission of the statement, its use
by the State in closing argument, and the failure of the district court to give the limiting
instruction under Shults. Thus, a brief statement of the procedural history of the litigation of
this issue is in order.
Appellants first submitted written briefs on the admissibility of Brown's statement, in
which they essentially conceded admissibility under the state of mind exception, but
requested a limiting instruction concerning its probative value. The parties also orally argued
the issue in limine on two occasions, once during jury selection and again before opening
statements.
At the first oral argument, defense counsel again agreed that the statement was perhaps
admissible under the so-called state of mind exception to the hearsay rule, and again argued
that the district court give a limiting instruction admonishing the jury that it could not
consider the statement for the truth of its contents. The State, erroneously in my view, argued
that the probative value of Brown's statement was not so limited and that the jury should be
allowed to consider the statement for the proof of the matters asserted in the statement.
Rather than give a final determination on the question of admissibility and the prospect of
giving the limiting instruction, the court deferred ruling pending further study.
At the second oral argument on the issue, heard before opening statements, the defense
argued that the State be prevented from mentioning the Brown hearsay statement because
it was too early to determine whether the defense case would require its admission.
__________

27
See Fed. R. Evid. 803(3) advisory committee's notes.
mentioning the Brown hearsay statement because it was too early to determine whether the
defense case would require its admission. The State reiterated its erroneous position that the
statement was admissible for the truth of its content, and the defense reiterated the correct
position that the probative value of the evidence was limited and that the court should
admonish the jury accordingly. Interestingly, in making a partial ruling at the second hearing,
the district court referred to the Shults decision, performed a weighing analysis in determining
admissibility under NRS 51.105, allowed the State to mention Brown's testimony in its
opening statement, but did not further mention or make any orders concerning the issue of
whether a limiting instruction should be given at any point. Further, in a subsequent written
order, apparently memorializing its ruling on the issue at the second hearing in open court,
the district court simply observed, The State will be allowed to use the Jim Brown
statements which are an exception to the hearsay rule, and found to be admissible evidence.
No comment regarding a limiting instruction is contained within this written order, prepared
by the State for the district court's signature.
At trial, Mr. Brown testified without further objection from the defense and without
further request for a limiting instruction. There is likewise nothing in this record reflecting an
attempt by the defense during final settlement of jury instructions to obtain a limiting
instruction concerning the probative value of the statement.
28
Finally, in this regard, counsel
for the State during its summation to the jury, in a rhetorical flourish, referred to the statement
and argued the truth of the contents of the hearsay statement, first by quoting it: If I'm dead,
you'll know what happened, and then by stating: Truer words were never spoken. Less than
twenty-four hours later Ted Binion was murdered in his house. Again, the defense
interposed no objection or request for a limiting instruction in response to this admittedly
improper argument.
29

It is true that the State erroneously argued in limine that the statement was admissible for
more than a limited purpose and improperly argued a much broader probative value of the
statement to the jury.
__________

28
Trial transcripts confirm that a packet of proposed jury instructions submitted by appellants marked A
through Y were made part of the record below. However, this packet was not included as part of the record in
this appeal. Further, no argument concerning a proposed Shults instruction is reflected in the transcript of the
proceedings during which jury instructions were settled. Finally, no argument was made in the course of this
appeal that the packet of instructions marked A through Y contained any reference to a limiting instruction
concerning the hearsay statement.

29
Murphy's counsel conceded at the oral argument on this appeal that Binion's hearsay statement was at least
theoretically admissible to demonstrate his state of mind, i.e., that he was not suicidal. He correctly stressed,
however, that the State improperly argued the statement for the truth of its content.
the jury. It is also true that the defense correctly advised the court of its obligation to instruct
on the limited probative value of the statement, to rebut the claims of accidental death or
suicide. And it is also true that the district court failed to properly admonish the jury in this
regard. However, under our rules governing preservation of issues for appeal, I conclude that
appellants have waived any issues concerning Brown's testimony.
By way of further history, under the procedural doctrine governing trials at the time of the
trial of this matter, it was incumbent upon the defense to continue to object to admissibility of
the evidence at trial without the required cautionary instruction, and to object to the line of
argument proffered by the State in summation. Until our December 2002 decision in
Richmond v. State,
30
our rule of appellate review was that a motion in limine, without a
contemporaneous objection during trial, is insufficient to preserve an issue for appeal.
31
In
Richmond, we relaxed the preservation rule so that now, an explicit and definitive ruling on a
motion in limine prevents the need of the movant to take further action to preserve an
appellate record.
32
This new rule should apply to this appeal.
Applying Richmond, I first note that the district court definitively ruled that the statement
was admissible under NRS 51.105, a ruling with which neither the appellants or the majority
take basic issue. However, the district court never made a definitive or explicit ruling as to
whether a limiting instruction should be given. Referring to the oral ruling at the second
hearing concerning admissibility of the statement:
The Court finds that the alleged conversation that Jim Brown had with Ted Binion on
September 16th, 1998, does fit under the state of mind exception of NRS 51.105.
Additionally, under Shults versus State, 96 Nev. 742, the Court finds the statements to
be a relevant [sic] issue, weighted against the prejudice. The victim's extrajudicial
declaration to Mr. Brown that day, of his desire to remove Ms. Murphy from his will,
along with his revelation that if I am dead, you will know what happened, are
admissible under the state of mind exception to the hearsay rule, due to its being
relevant to a material issue in the case subject to a motion to strike if something comes
up down the road, the Court is going to allow that and allow Mr.
__________

30
118 Nev. 924, 59 P.3d 1249 (2002).

31
Id. at 929, 59 P.3d at 1253 (citing Daly v. State, 99 Nev. 564, 568, 665 P.2d 798, 801 (1983) (failure to
object to admission of evidence at trial previously excluded by the grant of a motion in limine removes error
from appellate review); Rice v. State, 113 Nev. 1300, 949 P.2d 262 (1997) (same); Staude v. State, 112 Nev. 1,
908 P.2d 1373 (1996) (after denial of pretrial motion in limine, appellant must object at trial to preserve issue
for appeal)).

32
Id. at 932, 59 P.3d at 1254.
the Court is going to allow that and allow Mr. Roger to indicate that in his opening
statement.
This is the last verbal observation of record by the judge in this regard. There is no mention
of the issue of the limiting instruction in the court's oral or written orders, much less a
definitive or final ruling on the giving of a limiting instruction. Going further, no
contemporaneous objections to the testimony or to the rhetorical use of the evidence in the
State's summation were forthcoming. Thus, even under the new preservation rule of
Richmond, appellants' objections to admission of the statement without a limiting instruction
and the expansive use of the hearsay statement in summation have been waived. The question
then becomes whether the failure to give the limiting instruction compels reversal under a
plain error analysis.
33

B. Plain or harmless error
I would not reverse on a plain error analysis because appellants' failure to object can be
defended on tactical grounds. For example, at oral argument before this court, counsel for one
of the appellants argued that the statement was actually consistent with a person with suicidal
ideations. That is, having been recently advised that his paramour was unfaithful and perhaps
was starting a new relationship, the statement that she should be taken out of the will was an
indication of severe despondency and that he would not be alive for very long.
Hearsay errors, including a failure to comply with Shults, are subject to a harmless error
analysis.
34
To me, under any weighing of probative value versus prejudice, the Binion
statement was clearly admissible. In my view, notwithstanding the erroneous failure to give a
cautionary instruction, and notwithstanding the State's improper use of it at closing argument,
it is clear beyond a reasonable doubt that the outcome of the trial was not affected.
It cannot be disputed that, once admitted, this evidence was dramatic and it negatively
affected, i.e., prejudiced, the defense position. As stated, however, the district court could
only reject admissibility based upon unfair prejudice. Because the defense took the
position that Binion's demise may have been occasioned accidentally or by suicide, the
evidence was clearly admissible.
__________

33
See NRS 178.602.

34
See Rowland v. State, 118 Nev. 31, 43, 39 P.3d 114, 122 (2002) (citing Franco v. State, 109 Nev. 1229,
1237, 866 P.2d 247, 252 (1993) (noting that errors concerning hearsay are subject to a harmless error analysis));
see also Schoels v. State, 115 Nev. 33, 35, 975 P.2d 1275, 1276 (1999) (noting that an error is harmless if in
absence of the error the outcome would have been the same).
Notwithstanding my conclusion that the assignment of error concerning this issue was waived, I have
determined to reach the merits of the claim because of the efforts made by the defense concerning this issue and
because of the ambiguous nature of the record of the trial judge's ruling under NRS 51.105.
took the position that Binion's demise may have been occasioned accidentally or by suicide,
the evidence was clearly admissible. While I recognize that our case authority required the
cautionary instruction to reduce the chance of unfair prejudice, the admonition would not
have affected the outcome because an overwhelming body of trial evidence supports these
convictions.
First, although the evidence concerning criminal agency was in conflict, the State provided
a very plausible theory of suffocation as the cause of death. Second, the State introduced a
substantial body of circumstantial evidence in support of appellants' complicity in Theodore
Binion's death. In general, although appellants never actually confessed to murdering
Binion, they made numerous statements to witnesses from which guilt could be inferred,
which were likewise corroborated by additional witnesses. Also, the financial and personal
motives of appellants to conspire together to kill Binion certainly augmented the case against
them.
More specifically, witnesses testified to appellants' suspicious conduct, including Murphy's
discharge of the maid on the day of Binion's demise, the unusual closure of window draperies
at the Binion residence that day, absence of valuables from the premises before police took
control of the residence as a crime scene, and marked differences in the almost incessant
phone activity between appellants on the day of Binion's demise.
Also, a substantial body of evidence was introduced confirming Tabish's severe financial
problems, including previously defaulted debts totaling hundreds of thousands of dollars, a
$200,000 note to Bank West due for payment on September 18, 1998, and federal tax
obligations approximating $1 million, all of which motivated the theft of Binion's silver bars.
Witnesses provided evidence of Tabish's discussions with third parties concerning plans to
kill Binion; particularly, solicitations of witness Kurt Gratzer to come from Montana to Las
Vegas to kill a heroin addict who was dating an ecdysiast. Although subject to attacks on his
own credibility, Casey testified that Tabish bragged about an illicit relationship with Murphy,
that he was using her to get at Binion's valuable silver collection, and that he was going to
accomplish his goals by pump[ing] him [Binion] full of these drugs.
As to Murphy, uncontradicted evidence demonstrated her virtual total economic
dependence on Binion and her desire to maintain her newly acquired lifestyle despite her
deteriorated relationship with him. Murphy was substantially motivated to kill Binion because
the relationship was about to end, thus compromising her perceived status as a beneficiary
under Binion's will and life insurance policy. The rendezvous between Murphy and Tabish in
Beverly Hills, California, shortly before Binion's death confirms her hopes to join Tabish in a
new relationship, the economic viability of which was dependent upon Tabish obtaining
Binion's collection of silver
bility of which was dependent upon Tabish obtaining Binion's collection of silver and
Murphy's inheritance of a substantial portion of his estate.
The State also bolstered its case as follows. First, witnesses testified to Murphy's
questionable statements to third parties prior to Binion's death that Binion would be dead in a
few weeks from an overdose and she would be left with nothing. Second, a videotape of
Murphy at the Binion residence showed her secreting a wine glass in her purse at a time when
investigators were concerned as to whether a mixture of prescription drugs and heroin
poisoned Binion. Third, Tabish gave a preposterous story to law enforcement about his
presence at the Pahrump Valley vault and made inconsistent statements to Nye County law
enforcement at the scene of the vault about the presence of the silver bars in his truck. Finally,
Tabish's instructions to witnesses after his incarceration concerning prospective testimony,
along with the promise of financial rewards, abundantly demonstrated his consciousness of
guilt.
Thus, given proof of criminal agency, the State produced substantial rebuttal to the defense
claims that Binion committed suicide. As pointed out by the State, it seems a wholly unlikely
coincidence that Binion killed himself as he was ending the relationship; on the last day that
appellants could gain access to his wealth; at a time when he was making plans to restore his
gaming license, invest in real property and become involved in a statewide political race via a
substantial monetary contribution to a major gubernatorial candidate; and, most tellingly, on
the very last day before Tabish's $200,000 debt to Bank West was due.
CONCLUSION
First, the State elicited competent evidence establishing criminal agency. Second,
severance was not required because the evidence in support of the Casey counts against
Tabish was admissible on the issue of common scheme and motive against both appellants in
connection with the Binion charges. Third, because of a substantial body of evidence in
support of the guilt of both appellants, the failure to give a limiting instruction with regard to
Binion's hearsay statement did not affect the outcome of the trial.
I again recognize that the parties below provided the jury with conflicting evidence bearing
on the guilt or innocence of these appellants. However, the trial record supports the State's
theory that a helpless benefactor was the victim of a pitiless attack by a pair of mercenary
opportunists. It is also apparent that the financial ambitions of these appellants far exceeded
their capabilities,
bitions of these appellants far exceeded their capabilities, thus providing a motive for taking
what they could not obtain through their own individual or joint resources.
In light of the above, I would affirm the judgments of conviction.
35

____________
119 Nev. 329, 329 (2003) Clark County v. Sun State Properties
COUNTY OF CLARK, a Political Subdivision of the State of Nevada, Appellant, v. SUN
STATE PROPERTIES, LTD., a Nevada Limited Partnership; and RUTH PYLES,
Trustee of the Clarence and Ruth Pyles Trust, Respondents.
No. 35856
July 21, 2003 72 P.3d 954
Appeal from a judgment in an eminent domain action. Eighth Judicial District Court,
Clark County; James C. Mahan, Judge.
County brought condemnation proceeding to acquire two parcels of property that were
separately owned, but one of which was subject to a long-term lease. Over two years after
action was filed, case went to trial, and the district court entered compensation and damages
awards. County appealed. The supreme court, Rose, J., held that: (1) as a matter of first
impression, when condemnation action is not brought to trial within two years of being filed,
condemnee may recover damages for lost profits if condemnee demonstrates that condemnor
caused unreasonable delay in bringing the action to trial; (2) statute providing for a bifurcated
proceeding where there are two or more estates or interests in property sought to be
condemned codified the common-law undivided-fee rule, which requires court to first
determine value of property as a whole, and in a subsequent hearing, to apportion the award
among the various interests; and (3) case would be remanded to provide condemnees an
opportunity to demonstrate unreasonable delay in bringing action to trial.
__________

35
I take this opportunity to separately comment upon appellants' claim that jury misconduct requires reversal
for a new trial. To me, the claims that the jury applied an improper standard for guilt, i.e., depraved indifference,
and a theory of guilt by omission, i.e., that the defendants did nothing to aid Theodore Binion as he lay dying,
improperly require us to delve into the thought processes of the jurors in violation of NRS 50.065(2). As to the
claims of juror misconduct in connection with the use of a palm pilot computer, this improper action did not, in
my view, affect the jury's verdict.
Although I have not provided an analysis of the remaining claims of error, given the overwhelming evidence
of guilt of these appellants, I have concluded that the remaining claims do not compel reversal.
condemnees an opportunity to demonstrate unreasonable delay in bringing action to trial.
Maupin, J., dissented in part. Gibbons, J., with whom Shearing, J., agreed, dissented in
part.
David J. Roger, District Attorney, and Michael L. Foley, Deputy District Attorney, Clark
County, for Appellant.
Carl E. Lovell Jr., Las Vegas, for Respondent Pyles.
Mushkin & Hafer and Mark C. Hafer and Michael R. Mushkin, Las Vegas, for Respondent
Sun State Properties.
Brian Sandoval, Attorney General, and Margaret E. Kerr, Deputy Attorney General,
Carson City, for Amicus Curiae State of Nevada.
District court's findings of fact will not be disturbed on appeal if they are supported by substantial evidence, but its
conclusions of law are reviewed de novo.
Statutory construction involves a question of law that supreme court reviews de novo.
3. Statutes.
Supreme court gives effect to the legislature's intent by looking first to the plain language of the statute.
4. Statutes.
If the statutory language is ambiguous or fails to address issue of legislative intent, supreme court construes the statute
according to that which reason and public policy would indicate the legislature intended.
5. Eminent Domain.
Constitutional principles provide that just compensation for condemned private property is measured by the fair market value
of the property. U.S. Const. amend. 5.
6. Eminent Domain.
Under the undivided-fee rule, requiring the court in eminent domain action involving various interests in condemned property
to first determine the value of the property as a whole and then to apportion the award among the various interests in a subsequent
hearing, the condemnor has no interest in the apportionment hearing because it has met its obligation when it pays the court the
total award.
7. Eminent Domain.
Under undivided-fee rule, as applied in condemnation proceeding involving various interests in the condemned property, the
division of a fee into separate interests cannot increase the amount of compensation that the condemnor has to pay for the taking
of the fee.
8. Eminent Domain.
Eminent domain statute providing for a bifurcated proceeding where there are two or more estates or interests in property
sought to be condemned codified the common-law undivided-fee rule, which requires the court to first determine the value of the
property as a whole, and in a subsequent hearing, to apportion the award among the various interests. NRS 37.115.
9. Eminent Domain.
For purposes of applying undivided-fee rule in eminent domain action involving various interests in the property to be
condemned, existence of an encumbrance on property in the form of a lease is relevant in valuing property as a whole. NRS
37.115.
10. Eminent Domain.
When condemnation action is not brought to trial within two years of being filed, condemnee may recover damages for lost
profits if condemnee demonstrates that condemnor caused unreasonable delay in bringing the action to trial by purposely and in
bad faith pursuing an unconscionable dilatory course of action during litigation. NRS 37.120.
11. Eminent Domain.
Remand was warranted, in condemnation action that was brought to trial over two years after county filed it, in order to allow
condemnees to demonstrate entitlement to lost profits based on an unreasonable delay in bringing action to trial, where trial court
failed to make any findings regarding cause of litigation delay and record did not indicate what caused delay. NRS 37.120.
OPINION
In this appeal, we consider the proper procedure for determining just compensation in an
eminent domain action when there are various interests involved in the condemned property.
We hold that the eminent domain statutes codified the undivided-fee rule, which requires the
court to first determine the value of the property as a whole, and in a subsequent hearing, to
apportion the award among the various interests. Accordingly, we conclude that the district
court erred when it first valued the various interests in order to determine the just
compensation for the condemned property, and therefore, we reverse and remand for a new
trial.
We also consider whether a condemnee is entitled to damages for lost profits resulting
from the condemnor's delay in not bringing the action to trial within two years from when the
action was filed. We hold that the condemnee may recover damages for lost profits when the
condemnee has demonstrated that the condemnor caused unreasonable delay in bringing the
action to trial. Because the record does not indicate what caused the delay, we direct the
district court, on remand, to revisit this issue.
FACTS
On June 7, 1995, the County of Clark filed a complaint in condemnation of real property
to acquire two parcels of land, which contained apartment units, located in downtown Las
Vegas, in order to build a jail facility. Sun State Properties, Ltd., owned one of the parcels in
fee simple. Clarence and Ruth Pyles, trustees of The Clarence and Ruth Pyles Trust (the
Pyles), owned the second parcel in fee simple, but the Pyles leased the parcel to Sun State for
$500 per month.
1
The lease for the second parcel was for fifty-five years, ending on February
1, 2018.
On July 14, 1995, the district court granted the County's motion for immediate occupancy
of the two parcels. The district court also ordered the County to post a cash bond of
$1,640,000. Following the parties' stipulation regarding the funds from the cash bond, several
lenders that held deeds of trust on the parcels were paid in full, Sun State received
$424,724.14, the Pyles received $122,100, and a balance of $77,900 was deposited into an
interest-bearing account in trust for Sun State and the Pyles.
Because trial had not commenced within two years, the district court set the valuation date
at June 22, 1999, the scheduled trial date. However, trial did not commence until November
30, 1999, because the district court granted the Pyles' motion for a continuance.
At trial, several appraisal experts presented various valuations for the acquired parcels.
Shelli Lowe, Sun State's appraisal expert, testified that she valued the whole property, as it
existed prior to the taking, at $6,100,000. She next valued the remaining property after the
taking at $3,915,000. She then valued the parcels acquired by the County at $1,900,000 and
Sun State's severance damages at $285,000the diminished value of Sun State's remaining
parcels that were part of the parcels being taken.
2
Lowe concluded that total just
compensation for the acquired parcels and Sun State's severance damages would be
$2,185,000.
Upon Sun State's request, Lowe provided an addendum to her appraisal report wherein she
valued the leased fee interest and leasehold interest separately. In doing so, Lowe reviewed
the rental value of the lease and the term of the lease. Before testifying to the separate
valuations, Lowe opined that the improvements on the land would have no value at the end of
the lease because, at the end of the term, the improvements would be forty-eight years of age.
Nevertheless, Lowe valued the leased fee at $263,000 and the leasehold at $885,000.
__________

1
Sun State was the successor lessee on a lease that was executed in 1963.

2
See M&R Investment Co. v. State Dep't Transp., 103 Nev. 445, 449, 744 P.2d 531, 534 (1987) (noting that
severance damages are awarded when a partial taking of a landowner's property occurs).
Edward Rothenberg, a real estate appraiser, testified on behalf of Sun State and the Pyles.
He appraised the leased fee interest and the leasehold interest separately, explaining that the
two interests must be valued separately because the fee simple estate does not exist as long as
it is subject to a long-term lease; thus, the fee simple estate cannot be sold. Rothenberg
valued the leased fee at $1,030,000 and the leasehold at $1,000,000, which equates to
$2,030,000 for the second parcel. He also estimated Sun State's damages for lost profits from
immediate occupancy in June 1995 to the valuation date of June 1999 at $465,600.
John Kiehlbauch, the County's appraiser, testified that he valued the whole property before
the taking at $5,940,000. He next valued the remaining property after the taking at
$3,980,000. He then valued the parcels acquired by the County at $1,790,000 and apportioned
the value: the Pyles' interest at $984,000 and Sun State's interest at $805,500. He calculated
Sun State's severance damages at $170,000. Kiehlbauch testified that the total just
compensation for the acquired parcels and Sun State's severance damages equaled
$1,960,000.
Verne Cox, the Pyles' appraiser, did not testify at trial, but his appraisal report was
submitted at trial. He valued the fee simple at $1,050,000 and apportioned this value as
follows: the lease fee at $251,000 and the leasehold at $799,000.
At the conclusion of the trial, the County argued that under NRS 37.115, the district court
was required to use the undivided-fee rule, whereby the property is valued under the statutory
definition of fair market value, and then, in a subsequent hearing, the court is required to
apportion the compensation among the various interests. On the other hand, Sun State and the
Pyles argued that the district court was required to value the aggregate of their various
interests in the first hearing, and in a subsequent hearing, the court was required to apportion
the interests. Thereafter, the district court entered a written decision rejecting the
undivided-fee rule as the law in Nevada, ruling that NRS 37.115 only sets forth the
procedures in a condemnation action. In so ruling, the district court relied on People v.
Lynbar, Inc.,
3
a California appeals court case that construed a statute similar to NRS 37.115.
The district court explained that the Lynbar, Inc. court construed the statute as a procedural
statute, rather than as a substantive rule, such as the undivided-fee rule.
The district court found that Sun State's leasehold interest was a compensable interest and
accepted Sun State's and the Pyles' valuation, stating that it was not contradicted at trial.
Thus, the district court valued their interests at $3,634,000. Following NRS 37.115, the
district court ordered the parties to present additional evidence on February 7, 2000,
__________

3
62 Cal. Rptr. 320 (Ct. App. 1967).
37.115, the district court ordered the parties to present additional evidence on February 7,
2000, regarding the apportionment of Sun State's and the Pyles' interests.
After the apportionment hearing, the district court entered its findings of fact and
conclusions of law. The district court made the following awards: $1,868,000 as just
compensation for Sun State's fee interest in the first parcel and for its leasehold interest in the
second parcel; $250,000 in severance damages to Sun State; $462,000 in damages to Sun
State from the date of immediate occupancy; $1,030,000 as just compensation for the Pyles'
leased fee interest; and $24,000 in damages to the Pyles from the date of immediate
occupancy.
In addition to challenging the district court's procedure in determining the just
compensation, the County challenges the district court's award of damages, which the County
claims were inappropriately awarded as lost profits.
DISCUSSION
Standard of review
[Headnote 1]
This court has consistently provided that the district court's findings of fact will not be
disturbed on appeal if they are supported by substantial evidence.
4
But the district court's
conclusions of law are reviewed de novo.
5

[Headnotes 2-4]
Whether NRS 37.115 codified the undivided-fee rule is an issue of statutory construction.
Statutory construction involves a question of law that this court reviews de novo.
6
This court
gives effect to the legislature's intent by looking first to the plain language of the statute.
7
But if the statutory language is ambiguous or fails to address the issue, this court construes
the statute according to that which reason and public policy would indicate the legislature
intended.
8

__________

4
See, e.g., Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129, 130, 734 P.2d 1236, 1237 (1987);
Hobson v. Bradley & Drendel, Ltd., 98 Nev. 505, 506-07, 654 P.2d 1017, 1018 (1982).

5
See, e.g., Blaich v. Blaich, 114 Nev. 1446, 1447-48, 971 P.2d 822, 823 (1998); Bopp v. Lino, 110 Nev.
1246, 1249, 885 P.2d 559, 561 (1994).

6
See A.F. Constr. Co. v. Virgin River Casino, 118 Nev. 699, 703, 56 P.3d 887, 890 (2002).

7
See id.

8
State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986) (internal quotations
and citation omitted), quoted in Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 514
(2000).
Undivided-fee rule
[Headnote 5]
Under federal and state constitutional law, condemnation of private property requires
the condemnor to pay just compensation.
9
Constitutional principles provide that just
compensation is measured by the fair market value of the condemned property.
10
NRS
37.009(6) defines fair market value as the most probable price, which this court has held is
constitutional.
11

Regarding the evidence that the trier of fact must consider in a condemnation action,
NRS 37.110, which is titled Ascertainment and assessment of damages, provides in
pertinent part:
The court, jury, commissioners or master must hear such legal testimony as may be
offered by any of the parties to the proceedings, and thereupon must ascertain and
assess:
1. The value of the property sought to be condemned and all improvements thereon
pertaining to the realty, and of each and every separate estate or interest therein; if it
consists of different parcels, the value of each parcel and of each estate or interest
therein shall be separately assessed.
Additionally, this court has provided, The determination of market value includes the
consideration of any elements that fairly enter into the question of value which a reasonable
businessman would consider when purchasing.'
12

In determining the fair market value when there are various interests in the
condemned property, NRS 37.115 provides for a bifurcated proceeding:
Where there are two or more estates or divided interests [in] property sought to be
condemned, the plaintiff is entitled to have the amount of the award for such property
first determined as between plaintiff and all defendants claiming any interest therein.
The respective rights of such defendants in and to such award shall be determined by
the court, jury, or master in a later and separate hearing in the same proceeding and the
amount apportioned by order accordingly.
The County and the State, as amicus curiae, contend that the Legislature codified the
undivided-fee rule in NRS 37.115, requiring the court to first determine the fair market
value of the property without any encumbrances,
__________

9
County of Clark v. Buckwalter, 115 Nev. 58, 61-62, 974 P.2d 1162, 1164 (1999).

10
United States v. 50 Acres of Land, 469 U.S. 24, 25 (1984).

11
Buckwalter, 115 Nev. at 62, 974 P.2d at 1164-65.

12
Schwartz v. State, Dep't of Transp., 111 Nev. 998, 1002-03, 900 P.2d 939, 942 (1995) (quoting State ex
rel. Dep't of Hwys. v. Linnecke, 86 Nev. 257, 261-62, 468 P.2d 8, 10-11 (1970)).
quiring the court to first determine the fair market value of the property without any
encumbrances, and then in a subsequent hearing, to apportion the value among the various
interests. The district court, however, rejected the County's argument at trial, and applied the
aggregate-of-interests rule.
[Headnotes 6, 7]
When there are various interests in the condemned property, the majority of the
jurisdictions applies the undivided-fee rule.
13
The undivided-fee rule provides that
condemned property is first valued as though it was unencumbered, and in a subsequent
hearing, the total award is apportioned among the various interests. The reasoning behind the
rule is:
The duty of the public to make payment for the property which it has taken is not
affected by the nature of the title or by the diversity of interests in the property. The
public pays what the land is worth, and the amount so paid is to be divided among the
various claimants, according to the nature of their respective estates.
14

Under the undivided-fee rule, the condemnor has no interest in the apportionment hearing
because it has met its obligation when it pays the court the total award.
15
Furthermore, the
undivided-fee rule provides that the division of a fee into separate interests cannot increase
the amount of compensation that the condemnor has to pay for the taking of the fee.
16

On the other hand, the undivided-fee rule is not universal because a minority of
jurisdictions applies the aggregate-of-interests rule or the summation rule when there are
various interests in the condemned property.
17
Under the aggregate-of-interests rule, each of
the various interests that contribute to the value of the real property are valued
separately,
__________

13
See, e.g., Harco Drug, Inc. v. Notsla, Inc., 382 So. 2d 1, 5-6 (Ala. 1980); Gifford v. City of Colorado
Springs, 815 P.2d 1008, 1011 (Colo. Ct. App. 1991); J.J. Newberry Co. v. City of East Chicago, 441 N.E.2d 39,
43 (Ind. Ct. App. 1982); City of Manhattan v. Kent, 618 P.2d 1180, 1184-85 (Kan. 1980); Department of
Highways v. Hy-Grade Auto Court, 546 P.2d 1050, 1053-54 (Mont. 1976); Great Atlantic & Pacific Tea Co. v.
State, 238 N.E.2d 705, 710 (N.Y. 1968); Urban Renewal Agency, Etc. v. Wieder's Inc., 632 P.2d 1334, 1336
(Or. Ct. App. 1981); Van Asten v. State, 571 N.W.2d 420, 422 (Wis. Ct. App. 1997) (noting that the
undivided-fee rule stems from the common law theory that anything that was attached to a freehold was
annexed to and considered to be a part of it); see also 4 Julius L. Sackman, Nichols on Eminent Domain
12.05[1] (rev. 3d ed. 2002) (cases cited therein).

14
4 Sackman, supra note 13, 12.05[1], at 12-104; see also 1 Lewis Orgel, Valuation Under the Law of
Eminent Domain 109 (2d ed. 1953).

15
Kent, 618 P.2d at 1184.

16
U.S. v. 131.68 Acres of Land, More or Less, Etc., 695 F.2d 872, 875 (5th Cir. 1983).

17
See 4 Sackman, supra note 13, 12.05[2], at 12-112; see also 1 Orgel, supra note 14, 109, at 464 (The
general statement is . . . true in
the various interests that contribute to the value of the real property are valued separately, and
the total represents the market value of the real property.
18
Notably, [u]se of this method
of appraisal has generally been rejected since it fails to relate the separate value of the
improvements to the total market value of the property.'
19

[Headnotes 8, 9]
We hold that NRS 37.115 codified the undivided-fee rule. The plain language of the
statute provides that in the first hearing, the just compensation award is to be determined
between the condemnor and all the condemnees. We note that in this first hearing, the
existence of the encumbrance on the property, i.e., the lease, is relevant in valuing the
property as a whole.
20
The statute further provides that in the second hearing, the court must
apportion the award based on the value of each condemnee's interest. In this hearing, NRS
37.110 becomes relevant because the value of each property must be ascertained and assessed
in order to apportion the total award for the condemned property.
In rejecting the undivided-fee rule as Nevada law, the district court relied on People v.
Lynbar, Inc.,
21
which respondents contend was appropriate. In Lynbar, Inc., the California
Court of Appeal addressed an argument similar to the argument the County raises in this
appealthe bifurcation-of-proceeding statute, which parallels NRS 37.115, required the court
to first determine the fair market value as though the property were unencumbered, regardless
of the fact that on the date of valuation the various interests in the property actually enhanced
the fair market value.
22
The court held that the statute was exclusively a procedural statute
that did not embody either the undivided-fee rule or the aggregate-of-interests rule, but
permitted the condemnor to request that the total award of the property be determined first,
and then in a subsequent proceeding, be apportioned among the various interests.
23

__________
implying that out of every hundred cases in eminent domain, there will probably be only a relatively few in
which the total compensation has not been ostensibly based on a valuation of the land as if it were held in
undivided fee simple.).

18
See Kent, 618 P.2d at 1184.

19
Id. (quoting Matter of Condemnation of Land, Etc., 548 P.2d 756, 760 (Kan. 1976)).

20
See Schwartz v. State, Dep't of Transp., 111 Nev. 998, 1002-03, 900 P.2d 939, 942 (1995) (stating that the
court may consider any element that is relevant in determining the fair market value of the condemned property);
see also Kent, 618 P.2d at 1185; Hy-Grade Auto Court, 546 P.2d at 1053; Van Asten, 571 N.W.2d at 422.

21
62 Cal. Rptr. 320 (Ct. App. 1967).

22
Id. at 324.

23
Id. at 326.
After holding that the statute was procedural, the court addressed the issue of what the
whole embodies when the condemnor elects to bifurcate the proceedings: It seems to us
that this whole must be the total of what the various involuntary sellers have to sell and not
the undivided fee which the condemnor is seeking to acquire.
24
The court stated that even
though the statute provides that the condemnor can seek a total award rather than an award of
the various interests independently, the requirements of the statute do not correlate to a
requirement that the property be valued as though it had a single owner.
25
Moreover, the
court noted that it would be unfair to value the property as unencumbered when it actually is
encumbered.
26

We note that the California Supreme Court has not addressed the issue presented in
Lynbar, Inc., and that cases from the California Court of Appeal have been inconsistent on
this issue
27
whether the undivided-fee rule or aggregate-of-interests rule is California law.
Based on this and because we conclude that the plain language of NRS 37.115 codified the
undivided-fee rule, we decline to follow the Lynbar, Inc. decision and its reasoning. Thus, we
conclude that the district court erroneously applied the aggregate-of-interests rule in reaching
the judgment.
Although noting that the fairness of either the undivided-fee rule or
aggregate-of-interests rule may be debated, the dissent concludes that to withstand
constitutional muster and award just compensation, the aggregate-of-interests rule must be
applied when there are various interests in the condemned property. But, if the undivided-fee
rule fails to withstand constitutional muster, then why is it the majority approach in federal
and state courts?
__________

24
Id. at 327.

25
Id.

26
Id. at 329.

27
See, e.g., New Haven Unified School Dist. v. Taco Bell, 30 Cal. Rptr. 2d 469, 471-72 (Ct. App. 1994)
(Whether or not the lessor and lessee are joined in a single proceeding, these rules will ordinarily result in an
aggregate award to both lessor and lessee equal to market value of the property. (citation omitted)); People,
Department of Public Works v. Amsden Corp., 109 Cal. Rptr. 1, 4 (Ct. App. 1973) (Lynbar simply holds that at
the valuation stage, all existing leases must be considered as the condemnor must take the property in the
condition in which it finds the property on the applicable date.); County of Los Angeles v. American Savings &
Loan Ass'n, 102 Cal. Rptr. 439, 442 (Ct. App. 1972) (noting that Lynbar, Inc. takes the approach contrary to the
undivided-fee rule, and that California case and statutory law support both the undivided-fee and
aggregate-of-interests rules); Costa Mesa Union Sch. Dist. v. Security First Nat. Bank, 62 Cal. Rptr. 113, 117
(Ct. App. 1967) (Where there are separate interests in the land taken, the property is to be valued as if owned
by a single person, regardless of the separate interests therein, subject to apportionment.).
why is it the majority approach in federal
28
and state courts?
29
The commentators that have
responded to the criticism of the undivided-fee rule have noted that such criticism is flawed
because it is based upon faulty valuation techniques and factual patterns examined by the
opponents of the undivided-fee rule.
30
In actuality, the proper application of the
undivided-fee rule results in an eminently fair award.
Similarly, the dissent's criticism of the undivided-fee rule is flawed. The dissent states
that the undivided-fee rule may overlook situations in which there are separate estates, as in
the instant case, thus failing to provide just compensation. However, as the County notes, the
district court's application of the aggregate-of-interests rule resulted in an award that far
exceeded the value of both parcels before the taking occurred. Lowe, Sun State's appraisal
expert, valued the whole property before the taking at $6,100,000, and then valued the
remaining property after the taking at $3,915,000. The district court awarded Sun State and
the Pyles $3,148,000 in just compensation.
31
Adding the award of just compensation and
Lowe's value of the remaining parcels equals $7,063,000. Thus, the district court's just
compensation resulted in an award more than what Sun State and the Pyles lost.
32

The dissent next interprets NRS 37.115 to be a procedural rule. Under the dissent's
interpretation, the various interests must be valued separately in the first hearing. If this is
true, then what is the purpose of the statutorily mandated second hearing? The dissent ignores
the statutory scheme, which clearly provides that in the first hearing the property is valued as
a whole, while considering encumbrances on the property in determining the value of the
property as a whole; and in the second hearing the just compensation award is
apportioned among the various condemnees.
__________

28
See, e.g., U.S. v. 131.68 Acres of Land, More or Less, Etc., 695 F.2d 872, 875 (5th Cir. 1983); Eagle Lake
Improvement Co. v. United States, 160 F.2d 182, 184 (5th Cir. 1947); Meadows v. United States, 144 F.2d 751,
752-53 (4th Cir. 1944); Fain v. United States, 145 F.2d 956, 958 (6th Cir. 1944); Silberman v. United States,
131 F.2d 715, 717 (1st Cir. 1942). See also 4 Sackman, supra note 13, 12.05[1] (cases cited therein).

29

30
See 4 Sackman, supra note 13, 12.05[4][1], at 12-135 to 12-136; Victor P. Goldberg et al., Bargaining in
the Shadow of Eminent Domain: Valuing and Apportioning Condemnation Awards Between Landlord and
Tenant, 34 UCLA L. Rev. 1083, 1093 (1987).

31
The district court actually valued Sun State's and the Pyles' interest at $3,634,000, but the court incorrectly
included the awards of $462,000 and $24,000 for lost profits in the just compensation award. The awards for
lost profits are separate from the just compensation award.

32
See Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910) (noting that the compensation paid
for the condemned property should place the property owner in as good a position as before the taking).
property as a whole; and in the second hearing the just compensation award is apportioned
among the various condemnees. The dissent asserts that our interpretation may fairly apply to
tenancies, but not to separate estates, such as the instant case. However, the dissent fails to
recognize our application of the plain language of NRS 37.115, which clearly states: Where
there are two or more estates or divided interests [in] property sought to be condemned . . . .
If the statute results in unfairness, it is for the Legislature, not this court, to change the
statutory scheme.
Damages for lost profits
The County next contends that the district court erroneously awarded Sun State and
the Pyles damages for lost profits from the date of immediate occupancy until the date of
valuation. We first recognize that the Legislature has not mandated an award for lost profits
within the eminent domain statutes. Regarding the delay in bringing the action to trial, the
Legislature has provided:
[I]f the action is not tried within 2 years after the date of the first service of the
summons, and the court makes a written finding that the delay is caused primarily by
the plaintiff or is caused by congestion or backlog in the calendar of the court, the date
of valuation is the date of the actual commencement of the trial.
33

The Legislature has defined primarily as
the greater amount, quantity or quality of acts of the plaintiff or the defendant or, if
there is more than one defendant, the total delay caused by all the defendants, that
would cause the date of the trial to be continued past 2 years after the date of the first
service of the summons.
34

The issue of whether a condemnee is entitled to damages as a result of the condemnor's delay
in bringing the action to trial within two years is an issue of first impression. We note,
though, that we have stated that in addition to the benefit of the inflated value pursuant to
NRS 37.120(1), the condemnee is entitled to prejudgment interest from the date of the taking
because the condemnee has still been deprived of the use of the proceeds that should have
been paid at the time of the taking.
35

In State, Department of Transportation v. Barsy,
36
this court held that the
condemnor's precondemnation activities may entitle the condemnee to damages in addition
to the compensation for the taking.
__________

33
NRS 37.120(1).

34
NRS 37.120(3).

35
County of Clark v. Alper, 100 Nev. 382, 392-93, 685 P.2d 943, 950 (1984).

36
113 Nev. 712, 719-20, 941 P.2d 971, 976 (1997), overruled on other grounds by GES, Inc. v. Corbitt, 117
Nev. 265, 21 P.3d 11 (2001).
the condemnee to damages in addition to the compensation for the taking. In Barsy, the
Nevada Department of Transportation (NDOT) planned a project which would affect Barsy's
property that he was renting to two tenants.
37
After NDOT decided to implement the project,
an NDOT representative visited the two tenants, informing them of the imminent project and
of the relocation costs and benefits NDOT would pay them.
38
Because NDOT was unable to
provide an accurate time frame for acquisition of the property, the two tenants refused to
renew their leases, and Barsy was unable to attract new tenants.
39

Four years after NDOT announced its decision to implement the project, NDOT filed
a condemnation action to acquire Barsy's property.
40
Thereafter, Barsy filed a counterclaim,
requesting damages for lost rental income caused by the unreasonable delay in commencing
the condemnation action. The district court, however, dismissed Barsy's counterclaim.
On appeal, this court decided to follow the seminal case of Klopping v. City of
Whittier,
41
regarding the rights of property owners who sustain damages as a result of the
condemnor's pre-condemnation activities. This court noted that the California Supreme Court
in Klopping held that where a condemnor acts unreasonably in issuing precondemnation
statements, either by excessively delaying eminent domain action or by other oppressive
conduct, our constitutional concern over property rights requires that the owner be
compensated.'
42
This court further noted that [t]he Klopping court ruled that a condemnee
must demonstrate that the condemnor acted improperly following a precondemnation
announcement by unreasonably delaying action or by other unreasonable precondemnation
conduct and that such acts resulted in a decrease in the market value of the property.
43
Following Klopping, this court concluded that when the condemnee meets the evidentiary
burden, the condemnee must be compensated for loss of income due to precondemnation
action or publicity.
44
Because this issue presented a question of fact, this court reversed the
dismissal of Barsy's claim for precondemnation damages, and remanded the issue to the
district court to determine whether NDOT's precondemnation conduct resulted in a decrease
in the market value of Barsy's property, requiring an award for lost profits.
__________

37
Id. at 715, 941 P.2d at 973.

38
Id. at 715, 941 P.2d at 974.

39
Id. at 715-16, 941 P.2d at 974.

40
Id. at 716, 941 P.2d at 974.

41
500 P.2d 1345 (Cal. 1972).

42
Barsy, 113 Nev. at 720, 941 P.2d at 976 (quoting Klopping, 500 P.2d at 1355).

43
Id.

44
Id.
in the market value of Barsy's property, requiring an award for lost profits.
45

Unlike Barsy, Sun State and the Pyles did not request precondemnation damages;
rather, they had requested damages for lost profits resulting from the County's delay in
bringing the action to trial. If, after filing an action, the condemnor unreasonably delays in
bringing the action to trial within two years, then it would appear consonant with our
concerns shown in Barsy that the condemnee receive damages for lost profits caused by such
litigation delay.
[Headnote 10]
Although NRS 37.120(1) prescribes that the government must bear the burden of the
inflated value when the action has not been brought to trial within two years, it only requires
a finding that the condemnor primarily caused the delay, or that congestion or backlog in the
court calendar caused the delay. Using our reasoning in Barsy, we hold that the condemnee
must meet the more stringent standard set forth in Barsy when there is a claim for lost-profits
damages resulting from the litigation delay. Thus, the condemnee must demonstrate that the
condemnor caused unreasonable delay in bringing the action to trial by purposely and in bad
faith pursuing an unconscionable dilatory course of action during litigation.
[Headnote 11]
Here, the district court failed to make any findings regarding the litigation delay, and
the record does not indicate what caused the delay. Therefore, on remand, the district court
shall provide Sun State and the Pyles an opportunity to demonstrate that they are entitled to
damages because the County unreasonably delayed in bringing the action to trial within two
years.
CONCLUSION
NRS 37.115 codified the undivided-fee rule. Because the district court erroneously
applied the aggregate-of-interests rule, we reverse the district court's judgment and remand
for a new trial.
In addition to receiving the benefit of the inflated value when trial has not commenced
within two years, damages for lost profits are permitted when the condemnee demonstrates
that the condemnor unreasonably delayed in bringing the action to trial. Even if the
condemnee fails to meet this stringent standard, we note that the condemnee is entitled to
prejudgment interest from the date of the taking. Because of the ambiguity regarding the
cause of the litigation delay, we direct the district court, on remand, to allow Sun State and
the Pyles an opportunity to demonstrate that the County unreasonably delayed in
bringing the action to trial.
__________

45
Id. at 720-21, 941 P.2d at 977.
State and the Pyles an opportunity to demonstrate that the County unreasonably delayed in
bringing the action to trial.
46

Agosti, C. J., Becker, J., and Young, Sr. J., concur.
Maupin, J., concurring in part and dissenting in part:
As a general proposition, the undivided-fee rule governs the assessment of damages in
condemnation cases brought under Nevada law. However, in those rare cases where the
district court concludes that application of the undivided-fee rule may frustrate or prevent an
award of just compensation, the district court should have the discretion to utilize the
dissent's aggregate-of-interests rule in either calculating the award in a bench trial or in
crafting instructions in a jury trial. This is one of those rare cases and, as discussed below, we
should affirm the judgment rendered in this matter below.
In my view, the district court correctly concluded that the value of the Pyles' interest
was artificially low based upon the long-term lease rate. For any number of reasons, business
or personal, a landowner may wish to artificially create a low lease rate. The governmental
taking entity should not be able to take an economic advantage of the landowner's decision in
that regard unless the low rate is dictated by some commercial necessity. Utilization of the
aggregate-of-interests formula effected just compensation in this case and the fact finder
could reasonably conclude that the Pyles' lease rate was not truly reflective of the value of the
property.
I appreciate the majority's concern that NRS 37.115 codifies the undivided-fee rule. I
believe it does as a general matter, but agree with Justice Gibbons that the
aggregate-of-interests rule is compatible with the two-tiered approach in the statute and
may be used in situations such as that presented here.
1

Gibbons, J., with whom Shearing, J., agrees, concurring in part and dissenting in part:
While I agree with the majority that damages for lost profits resulting from the
condemnor's unreasonable delay in bringing the action to trial are compensable, I respectfully
dissent from the conclusion that the undivided-fee rule is the only proper means of
determining just compensation.
__________

46
The Honorable Cliff Young, Senior Justice, was appointed by the court to sit in place of the Honorable
Myron E. Leavitt, Justice. Nev. Const. art. 6, 19; SCR 10.

1
I agree with the majority that the damages for lost profits resulting from the condemnor's unreasonable delay
in bringing the action to trial are compensable.
The United States Constitution declares that no private property shall be taken for
public use, without just compensation.
1
The Constitution of the State of Nevada similarly
provides that [p]rivate property shall not be taken for public use without just compensation
having been first made.
2
Both have their origins in James Madison's proposed twelve
amendments to the United States Constitution presented at the first session of Congress.
3
Madison's proposed amendment stated that [n]o person shall . . . be obliged to relinquish his
property, where it may be necessary for public use, without a just compensation.
4

The majority takes no issue with the fundamental principles stated above. Our
divergence begins and ends solely on the issue of how just compensation is determined.
While the undivided-fee rule is constitutional in most instances, I believe fairness dictates the
aggregate-of-interests rule be used to determine just compensation when more than one
estate is being condemned.
The majority cites several federal and state cases concluding the undivided-fee rule
properly compensated the parties involved.
5
I agree that in most cases, the undivided-fee rule
is constitutionally permissible because it produces the same valuation as would the
aggregate-of-interests rule. The majority ignores, however, the premise that in unusual
circumstances, the undivided-fee rule must be set aside to prevent an unfair and distorted
result in favor of the condemnor.
In defense of the undivided-fee rule, the majority implies that commentators suggest
the aggregate-of-interests rule is based upon faulty valuation techniques.
6
The composition
of the commentators consists of one sixteen-year-old law review article.
7
The majority
does not cite a far more recent article concluding the undivided-fee rule is conceptually
flawed in cases like the one now before the court.
8
Further, the article indicates the
undivided-fee rule makes little sense in some applications.
9

The majority's contention notwithstanding, fair market value is not the sole measure
of just compensation.
10
Market value may, or may not, amount to just compensation.
__________

1
U.S. Const. amend. V.

2
Nev. Const. art. 1, 8, cl. 6.

3
1 Annals of Cong. 451-52 (Joseph Gales ed., 1789), available at
http://memory.loc.gov/ammem/amlaw/lwac.html.

4
Id.

5
See majority opinion ante notes 13 and 28.

6

7
See majority opinion ante note 30.

8
Gideon Kramer, What to Do Until the Bulldozers Come? Precondemnation Planning for Landowners, 27
Real Est. L.J. 47, 72 (1998).

9
Id.

10
Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 128 n.10, 379 P.2d 466, 473 n.10 (1963).
may, or may not, amount to just compensation.
11
This court has previously stated that [i]t
is difficult to imagine an unjust compensation; but the word just is used evidently to
intensify the meaning of the word compensation; to convey . . . that the [compensation]
shall be real, substantial, full, ample; and no legislature can diminish by one jot the rotund
expression of the constitution.'
12
Despite these words, in most condemnation proceedings
the most probable price' is the measure for compensation.
13
Value is determined as if
the government project that resulted in the taking was neither contemplated nor carried out.
14

In addition to market value, the court or jury [may] consider[ ] other elements that
can fairly enter into the question of value and which an ordinarily prudent business man
would consider before forming judgment in making a purchase.
15
One such consideration is
the rental value of the property condemned, as well as the actual rent which the property
produces, because such elements of value are material in the determination of just
compensation for the land taken.'
16

Law is not a science, but is essentially empirical.
17
We must compensate an owner
for the loss of property taken from him.
18
In unusual circumstances, this requires using the
aggregate-of-interests formula to adequately reimburse an owner for the taking. In Boston
Chamber of Commerce v. Boston, the United States Supreme Court rejected the
undivided-fee rule precisely because it overlooks scenarios such as the instant case.
19
Apparently, the majority finds this unpersuasive.
__________

11
Id.

12
Id. (quoting Virginia and Truckee R. R. Co. v. Henry, 8 Nev. 165, 171-72 (1873)).

13
County of Clark v. Buckwalter, 115 Nev. 58, 61, 974 P.2d 1162, 1164 (1999) (quoting NRS 37.009(6)).

14
City of Sparks v. Armstrong, 103 Nev. 619, 622, 748 P.2d 7, 9 (1987) (citing County of Clark v. Alper, 100
Nev. 382, 390, 685 P.2d 943, 948 (1984)).

15
State v. Shaddock, 75 Nev. 392, 398, 344 P.2d 191, 194 (1959) (citing In re Bainbridge-Unadilla Part 1,
State Highway, 5 N.Y.S.2d 988 (Chenango County Ct. 1938)).

16
Id. at 398, 344 P.2d at 194 (quoting Welch v. Tennessee Valley Authority, 108 F.2d 95 (6th Cir. 1939)).

17
Oliver Wendell Holmes, Codes, and the Arrangement of the Law, 5 Am. L. Rev. 1 (1870), reprinted in 44
Harv. L. Rev. 725, 728 (1931).

18
See Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910); People v. Lynbar, Inc., 62 Cal.
Rptr. 320, 327 (Ct. App. 1967); Iacometti, 79 Nev. at 128 n.10, 379 P.2d at 473 n.10; Virginia and Truckee R.
R. Co., 8 Nev. at 171-72.

19
Boston Chamber of Commerce, 217 U.S. at 195.
As United States Supreme Court Justice Oliver Wendell Holmes stated, [The
Constitution] does not require a parcel of land to be valued as an unencumbered whole when
it is not held as an unencumbered whole.
20
Perhaps more importantly, Justice Holmes
stated that the Constitution deals with persons, not with tracts of land. And the question is
what has the owner lost, not what has the taker gained.
21
Finally, Justice Holmes points out
that the Constitution merely requires that an owner of property taken should be paid for what
is taken from him.
22
In short, the Constitution mandates that a private property owner be
placed in as good a position after a taking as if the property had not been taken.
23

California appellate courts, relying on identical statutes, have supported both methods
of valuation.
24
The California Court of Appeal, in County of Los Angeles v. American
Savings & Loan Ass'n, discusses a hypothetical identical to the instant case.
25
The court
theorizes that when using the undivided-fee rule, the sum of all the individual interests will
equal what the value of the property would be with only one interest,
26
but notes that the
assumption is not always true. Under the aggregate-of-interests rule, however, the
condemnor pays to the owner of each individual interest its fair market value regardless of
whether the total payment is more or less than the value of the fee if it had been owned by
one person.
27

The aggregate-of-interests rule is therefore sometimes criticized as giving the
condemnor a windfall.
28
For example, a windfall occurs when a developer purchases
several separate parcels that, when combined, result in land worth far more than the sum paid
for the individual parcels.
29
The court in American Savings & Loan Ass'n explains, [T]his
frequently happens in the open market.
30
I agree; however, in this case we are not dealing
with an open market transaction. This is a taking, and just compensation should be paid to
all the interested parties.
__________

20
Id.

21
Id.

22
Id.

23
Lynbar, Inc., 62 Cal. Rptr. at 327.

24
County of Los Angeles v. American Savings & Loan Ass'n, 102 Cal. Rptr. 439, 443 (Ct. App. 1972) (citing
Mike Talley, Note, The Undivided Fee Rule in California, 20 Hastings L.J. 717, 721 (1969)).

25
Id. at 442-43.

26
Id. at 442.

27
Id.

28
Id. at 443.

29
Id.

30
Id.
While the fairness of either rule may be debated, the majority insinuates I ignore or
mistakenly construe NRS 37.115. The majority contends the language of the statute
effectively codifies the undivided-fee rule. I disagree with that interpretation.
NRS 37.115 states: Where there are two or more estates or divided interests [in]
property sought to be condemned, the plaintiff is entitled to have the amount of the award for
such property first determined as between plaintiff and all defendants claiming any interest
therein. The respective rights of such defendants in and to such award shall be determined by
the court, jury, or master in a later and separate hearing in the same proceeding and the
amount apportioned by order accordingly. This terminology is consistent with the idea of
determining the interests of all parties, not just one. For example, the statute may be fairly
applied for condemnation proceedings if there were two or more tenants in common who
share fee ownership. The tenants in common would be entitled to divide the net proceeds
based upon their fee ownership percentages. This is not the case, however, when there are
separate estates such as leasehold interests or a life estate together with fee ownership. Thus,
as in the American Savings & Loan Ass'n hypothetical, the aggregate value of the separate
estates exceeds the fair market value of the fee interest valued by itself. Therefore, to
withstand constitutional muster and award just compensation, the fee and leasehold estates
must be appraised separately and their values aggregated. The interpretation of NRS 37.115
by the majority fails to provide for just compensation. I interpret NRS 37.115 to be a
procedural rule.
Furthermore, the majority places much emphasis on the language of NRS 37.009(6),
which states in part: Value' means the most probable price which a property would bring in
a competitive and open market under the conditions of a fair sale. The statute continues,
however, with the condition that [t]he buyer and seller are typically motivated.
31

Typically motivated sellers are not those whose land is taken away by eminent
domain. We do not have before us a willing seller. It is difficult for me to envision a normal
transaction in which the seller is forced to sell his or her interest in the land whether he or she
likes it or not. This key distinction prevents a forced sale from being a fair sale.
32

The majority confuses valuation with allocation. Under NRS 37.115, the district court
conducts two hearings. At the first hearing, valuation is determined. The undivided-fee rule or
the aggregate-of-interests rule may be used to determine the value of the property. The district
judge, or the jury, considers expert testimony and evidence as to the value of the
condemned property.
__________

31
NRS 37.009(6)(b).

32
NRS 37.009(6).
timony and evidence as to the value of the condemned property. After valuation, the
condemnor is excused from the second proceeding, as no issue remains regarding the amount
to be paid for the property. At the second hearing, however, additional evidence is heard
regarding how the funds should be allocated.
Apparently, the majority assumes whatever determination of value made during the
first hearing binds the court to that allocation at the second hearing. I disagree with that
reasoning. The first hearing is solely to determine value, regardless of the method of
valuation. The second hearing exists to allow the court, or the jury, to consider evidence as to
how the entire sum should be allocated. The aggregate-of-interests rule does not interfere
with the second hearing. To the contrary, the rule ensures the amount to be allocated is
sufficient to compensate all interests justly.
We must remain true to the fundamental principles of the United States and Nevada
Constitutions. [T]he law . . . must jealously guard the rights of individual owners.'
33
We
should not forget John Locke's principle that governments were instituted to protect every
person's property against the depredations of his neighbor.
34
It is unjust to take an
individual property owner's land and refuse to properly compensate him for his loss.
Respectfully, I would affirm the decision of the district court and allow the
aggregate-of-interests rule to determine just compensation when more than one estate is being
condemned.
__________
119 Nev. 348, 348 (2003) Construction Indus. v. Chalue
CONSTRUCTION INDUSTRY WORKERS' COMPENSATION GROUP, on Behalf of its
Member, MOJAVE ELECTRIC, Appellant, v. JOHN CHALUE, Respondent.
No. 39363
August 21, 2003 74 P.3d 595
Appeal from a district court order denying a petition for judicial review and affirming
a decision by an appeals officer that claimant was entitled to workers' compensation benefits.
Eighth Judicial District Court, Clark County; Allan R. Earl, Judge.
Insurer sought judicial review of appeals officer's decision that workers' compensation
claimant rebutted the presumption that marijuana was proximate cause of claimant's
work-related injuries from falling from ladder while working as electrician on construction
project.
__________

33
Iacometti, 79 Nev. at 128 n.10, 379 P.2d at 473 n.10 (quoting Virginia and Truckee R. R. Co., 8 Nev. at
171).

34
Southwestern Ill. Development Auth. v. NCE, 710 N.E.2d 896, 901 (Ill. App. Ct. 1999) (citing William B.
Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 595 (1972) (discussing Locke's
principles of eminent domain)).
from falling from ladder while working as electrician on construction project. The district
court affirmed. Insurer appealed. The supreme court held that: (1) as a matter of first
impression, to rebut the statutory presumption that the controlled substance found in a
workers' compensation claimant's system was a proximate cause of claimant's work-related
injuries, the claimant must establish by a preponderance of the evidence that the controlled
substance did not cause his injuries; and (2) in the case at bar, claimant rebutted the
presumption.
Affirmed.
J. Michael McGroarty, Chtd., and J. Michael McGroarty, Las Vegas, for Appellant.
Nancyann Leeder, Nevada Attorney for Injured Workers, and Gary T. Watson, Deputy
Nevada Attorney for Injured Workers, Carson City, for Respondent.
Statutory interpretation is a question of law reviewed de novo.
The court reviews an administrative body's decision for clear error or an arbitrary abuse of discretion. Thus, the central inquiry is
whether substantial evidence in the record supports the agency decision.
Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.
Although the court will not substitute its judgment for that of the agency as to the weight of the evidence, the court will reverse
an agency decision that is clearly erroneous in light of reliable, probative, and substantial evidence on the whole record.
The legislative intent of the workers' compensation statute creating a rebuttable presumption that a controlled substance in a
claimant's system proximately caused the work-related injuries was to create a drug-free workplace. NRS 616C.230(1)(d).
To rebut the statutory presumption that the controlled substance found in a workers' compensation claimant's system was a
proximate cause of claimant's work-related injuries, the claimant must establish by a preponderance of the evidence that the
controlled substance did not cause his injuries. NRS 47.180(1), (2), 616C.230(1)(d).
Workers' compensation claimant rebutted the statutory presumption that the marijuana in his system proximately caused his
work-related injuries from falling from ladder while working as electrician on construction project. Claimant testified he was
suffering no effects from marijuana ingestion when injuries occurred and that he did not use drugs habitually. Claimant's foreman
similarly testified as to claimant's apparent sobriety on day of injuries.
sobriety on day of injuries. And initial treatment report from hospital emergency room's attending physician stated there was no
evidence claimant was under influence of controlled substance at time of accident. NRS 616C.230(1)(d).
Expert medical testimony is not necessarily required to rebut the statutory presumption that the controlled substance found in a
workers' compensation claimant's system was a proximate cause of claimant's work-related injuries. NRS 616C.230(1)(d).
OPINION
Per Curiam:
This is an appeal from a district court order upholding the decision of an appeals
officer that respondent John Chalue provided sufficient evidence to rebut the presumption
that marijuana was a proximate cause of his work-related injuries pursuant to NRS 616C.230.
1
We agree with the district court that a preponderance of the evidence is the proper
evidentiary standard required to rebut the presumption. Substantial evidence existed to
support the decision of the appeals officer; therefore, Chalue is entitled to the appropriate
workers' compensation benefits provided by Construction Industry Workers' Compensation
Group (Construction Industry), on behalf of its member, Mojave Electric.
FACTS
Chalue, an electrician employed by Mojave Electric, worked on a construction project
in Las Vegas at the time of his accident. Chalue arrived at the job site at 6 a.m. on the day of
the accident. Paul Tinman, Chalue's foreman, observed no unusual behavior from Chalue
when he gave him his daily assignment.
Chalue's assignment entailed adjusting light fixtures while standing on an eight-foot
ladder. The adjustments required Chalue to extend his arms into the ceiling. Chalue moved
the ladder from fixture to fixture on a concrete floor. The floor's surface had channels cut
approximately two inches wide and one and one-half inches deep. One of these channels was
located near Chalue's work area.
__________

1
NRS 616C.230(1)(d) states a denial of benefits is proper if the injury was
[p]roximately caused by the employee's use of a controlled substance. If the emp loyee had any amount of
a controlled substance in his system at the time of his injury for which the employee did not have a
current and lawful prescription issued in his name or that he was not using in accordance with the
provisions of chapter 453A of NRS, the controlled substance must be presumed to be a proximate cause
unless rebutted by evidence to the contrary.
At approximately 11:30 a.m., Chalue's weight and movement apparently caused him
to fall from the eight-foot ladder onto the concrete floor. Chalue testified that the ladder
might have shifted into a channel, causing his fall. He suffered injuries to his head, wrists,
and shoulder. Tinman saw Chalue falling and ran to assist him. An ambulance transported
Chalue to University Medical Center (UMC).
The attending physician at UMC filled out an initial treatment report. The doctor
checked a box marked No in response to the question whether Chalue appeared under the
influence of alcohol or a controlled substance. A drug test performed at a laboratory indicated
Chalue had THC, the active ingredient of marijuana, in his system. Dr. Borland, a doctor at
the testing laboratory, confirmed the presence of marijuana in Chalue's system.
Chalue testified he accidentally ingested marijuana in some brownies he ate sometime
in the week preceding the accident. Dr. Borland's report supported Chalue's assertion that
ingestion occurred sometime in the week before the accident. Chalue indicated he initially felt
high after eating the brownies but felt fine on the day of the accident.
Construction Industry denied Chalue benefits for his job-related injuries because of
the positive drug test. A hearing officer affirmed the denial of benefits. Chalue timely
appealed the hearing officer's decision.
The appeals officer conducted an evidentiary hearing regarding Chalue's accident. The
evidence supported Chalue's claim of sobriety at the time of the accident. The evidence
consisted of Chalue's testimony, Tinman's testimony, and the initial treatment report prepared
by the UMC physician. The appeals officer found that Chalue presented sufficient evidence to
rebut the presumption that marijuana was a proximate cause of his accident.
Construction Industry filed a petition for judicial review with the district court. The
district court affirmed the decision of the appeals officer, deciding that the proper evidentiary
standard to rebut the presumption created under NRS 616C.230(1)(d) was by a preponderance
of the evidence and that Chalue had met that standard. This appeal followed.
DISCUSSION
Standard of review
[Headnote 1]
Statutory interpretation is a question of law reviewed de novo.
2
We have long held
that statutes should be given their plain meaning.' "
__________

2
Birth Mother v. Adoptive Parents, 118 Nev. 972, 974, 59 P.3d 1233, 1235 (2002), cert. denied, 538 U.S.
965 (2003).
meaning.'
3
Further, we have consistently upheld the plain meaning of the statutory
scheme in workers' compensation laws.'
4

[Headnotes 2-4]
We review an administrative body's decision for clear error or an arbitrary abuse of
discretion.
5
Thus, [t]he central inquiry is whether substantial evidence in the record
supports the agency decision.'
6
Substantial evidence is that which a reasonable mind
might accept as adequate to support a conclusion.'
7
Although this court will not substitute
its judgment for that of the agency as to the weight of the evidence, this court will reverse an
agency decision that is clearly erroneous in light of reliable, probative, and substantial
evidence on the whole record.
8

Rebuttable presumption
[Headnote 5]
NRS 616C.230(1)(d) provides that any amount of a controlled substance creates a
rebuttable presumption that the controlled substance was a proximate cause of a claimant's
injuries. The statute is unequivocal: if an employee has marijuana in his system when injured,
then marijuana caused the accident unless proven otherwise. The legislative intent of NRS
616C.230 was to create a drug-free workplace.
9
Notably, NRS 616C.230(1)(d) contains the
words any amount in establishing the rebuttable presumption. The presence of the
controlled substance does not have to be the proximate cause, only a proximate cause.
Construction Industry introduced toxicological evidence proving Chalue had
marijuana in his system. In fact, Chalue never disputed the report indicating a positive test for
marijuana. To the contrary, he admitted to accidental ingestion in explaining the positive drug
test.
__________

3
Barrick Goldstrike Mine v. Peterson, 116 Nev. 541, 545, 2 P.3d 850, 852 (2000) (quoting Alsenz v. Clark
Co. School Dist., 109 Nev. 1062, 1065, 864 P.2d 285, 286 (1993)).

4
Id. (quoting SIIS v. Prewitt, 113 Nev. 616, 619, 939 P.2d 1053, 1055 (1997)).

5
Riverboat Hotel Casino v. Harold's Club, 113 Nev. 1025, 1029, 944 P.2d 819, 822 (1997).

6
Barrick Goldstrike Mine, 116 Nev. at 547, 2 P.3d at 853 (quoting Brocas v. Mirage Hotel & Casino, 109
Nev. 579, 583, 854 P.2d 862, 865 (1993)).

7
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Edison Co. v. Labor Board, 305 U.S. 197, 229
(1938)), quoted in State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986).

8
United Exposition Service Co. v. SIIS, 109 Nev. 421, 425, 851 P.2d 423, 425 (1993); see also Barrick
Goldstrike Mine, 116 Nev. at 547, 2 P.3d at 854 (explaining a decision lacking substantial evidentiary support
will be reversed).

9
Journal S., 68th Sess. 670-71 (Nev. 1995)
test. Under NRS 616C.230(1)(d), therefore, a rebuttable presumption existed that marijuana
was a proximate cause of Chalue's injuries. Thus, the pertinent issue here is what evidence
was required to rebut the presumption.
Standard of proof necessary
[Headnote 6]
The type of testimony required by the claimant to rebut the presumption in NRS
616C.230(1)(d) is a question of first impression in Nevada. Generally, [a] presumption . . .
imposes on the party against whom it is directed the burden of proving that the nonexistence
of the presumed fact is more probable than its existence.
10
This burden requires evidence
which tends to establish the existence or nonexistence of the presumed fact independently of
the basic facts.
11
In short, this standard requires Chalue to establish by a preponderance of
the evidence that marijuana did not cause his injuries.
Construction Industry argues lay testimony was insufficient to overcome the
presumption that marijuana was a proximate cause of Chalue's injuries. Further, Construction
Industry contends the presumption cannot be overcome without demonstrating the injury was
caused without the claimant's involvement.
Opinion testimony by a lay witness is limited to those opinions or inferences which
are . . . [r]ationally based on the perception of the witness[ ] and . . . [h]elpful to a clear
understanding of his testimony or the determination of a fact in issue.
12
Conversely, an
opinion as to the cause of a non-demonstrable injury should be given by one qualified as a
medical expert.
13

The evidence Chalue presented at the hearing to overcome the presumption of
intoxication consisted of (1) his testimony, (2) his foreman's testimony, and (3) an emergency
room admittance form indicating Chalue did not appear intoxicated. Chalue contends this
evidence is sufficient to rebut the presumption created under NRS 616C.230(1)(d).
[Headnote 7]
Chalue testified that when the injury occurred, he suffered no effects from the
marijuana ingestion. Further, Chalue stated he did not use drugs habitually. Although he is an
interested party, his testimony as to his intoxication is admissible. Chalue's testimony meets
the standard of "reliable, probative, and substantial evidence" necessary to overcome the
presumption.
__________

10
NRS 47.180(1).

11
NRS 47.180(2).

12
NRS 50.265.

13
See Lerner Shops v. Marin, 83 Nev. 75, 79-80, 423 P.2d 398, 401 (1967); see also NRS 50.275
meets the standard of reliable, probative, and substantial evidence necessary to overcome
the presumption.
14

Tinman, Chalue's foreman, testified similarly as to Chalue's apparent sobriety.
Although the record reveals that Tinman knew Chalue for only a short time, he spoke with
Chalue on the day of the injury. They had a brief conversation in the morning when Tinman
instructed Chalue on his daily assignment. Tinman testified that Chalue appeared no different
from any other time during his employment. Tinman observed Chalue fall and ran to render
aid. He noticed no visible signs of intoxication as he assisted Chalue.
Finally, Chalue introduced the initial treatment report from the emergency room as
proof he was not intoxicated. A question on the form asks, Is there evidence that the injured
employee was under the influence of alcohol and/or any other controlled substance at the time
of the accident? The attending physician checked the box marked No.
[Headnote 8]
Construction Industry argues that expert medical testimony should be required to
rebut the presumption and cites authority from another state. But, NRS 616C.230 does not
require expert testimony to rebut the presumption, and the Legislature could have made the
presence of a controlled substance a conclusive presumption. We must apply the same
evidentiary standard applicable generally. That is, a claimant can rebut the presumption of
causation by a preponderance of the evidence.
Here, the appeals officer determined that Chalue presented sufficient evidence to
overcome the presumption. As stated previously, NRS 233B.135(3) precludes us from
weighing evidence or determining the credibility of witnesses in an administrative hearing.
15
The record does not suggest the decision of the appeals officer was against the manifest
weight of the evidence.
16

CONCLUSION
Expert testimony is not required to overcome the presumption created by NRS
616C.230(1)(d). The proper evidentiary standard to overcome the presumption is by a
preponderance of the evidence. Here, the appeals officer determined Chalue presented
sufficient evidence to rebut the presumption. Because substantial evidence supports the
determination of the appeals officer, we affirm the order of the district court.
__________

14
United Exposition Service Co., 109 Nev. at 425, 851 P.2d at 425.

15
NRS 233B.135(3).

16
Swinney, 103 Nev. at 20, 731 P.2d at 361.
__________
119 Nev. 355, 355 (2003) Huntington v. MILA, Inc.
DAVID L. HUNTINGTON, Appellant, v. MILA, INC., a Washington Corporation,
Respondent.
No. 38707
August 27, 2003 75 P.3d 354
Appeal from a district court order, certified as final under NRCP 54(b), that granted
partial summary judgment in a quiet title action. Eighth Judicial District Court, Clark County;
Jeffrey D. Sobel, Judge.
Property owner brought quiet title action against lender, lender filed third-party
complaint against holder of title under real estate holding agreement, and holder of title filed
complaint against owner. The district court granted partial summary judgment for lender, and
owner appealed. The supreme court held that title company's constructive notice of
encumbrance could not be imputed to lender.
Affirmed.
Levine, Garfinkel & Katz and Louis E. Garfinkel, Las Vegas, for Appellant.
Gerrard, Cox & Larsen and Douglas D. Gerrard, Las Vegas, for Respondent.
1. Principal and Agent.
Title insurance company that conducted a title search on lender's behalf was not lender's agent, and thus, title company's
constructive notice of encumbrance could not be imputed to lender. Commitment to insure was not the equivalent of an abstract
and, thus, did not provide constructive notice of encumbrances. NRS 692A.023.
2. Vendor and Purchaser.
A subsequent purchaser with notice, actual or constructive, of an interest in property superior to that which he is purchasing is
not a purchaser in good faith and is not entitled to the protection of the recording act. NRS 111.325.
3. Vendor and Purchaser.
A duty of inquiry arises when the circumstances are such that a purchaser is in possession of facts which would lead a
reasonable man in his position to make an investigation that would advise him of the existence of prior unrecorded rights.
Purchaser is said to have constructive notice of their existence whether he does or does not make the investigation.
OPINION
Per Curiam:
In this appeal, we consider whether a title insurance company, conducting a title
search on behalf of a lender for the purpose of issuing a title policy, is the lender's agent.
issuing a title policy, is the lender's agent. We conclude that a title company is not the lender's
agent and, thus, the title company's constructive notice may not be imputed to the lender.
On May 18, 1998, The Donald J. Adams Trust conveyed real property to Tanner
Song. On the same day, Song conveyed the property to appellant David L. Huntington,
simultaneously executing an unrecorded Real Estate Holding Agreement (Agreement), signed
by Song and Huntington. The Agreement states, referring to Song as nominee,
WHEREAS, HUNTINGTON desires that title to real estate be held by NOMINEE in
accordance with this Agreement, and
WHEREAS, NOMINEE is willing to hold title to said real estate in accordance, with
the terms hereof,
. . . .
1. HUNTINGTON shall cause to be transferred and delivered to NOMINEE legal
title to the [property]
. . . .
. . . .
C. NOMINEE shall not convey or encumber the [p]roperty except pursuant to the
written instructions of HUNTINGTON.
On May 18, 1998, Song signed a Memorandum of Real Estate Holding Agreement
(Memorandum), which states, Notice is hereby given that Tanner Song holds title to the
[p]roperty . . . as NOMINEE pursuant to an unrecorded Real Estate Holding Agreement. The
Memorandum was recorded on August 5, 1998, and rerecorded on April 21, 1999.
In July 1999, Song applied for a home equity loan from respondent MILA, Inc. As
security for the loan, Song executed a deed of trust against the property in the amount of
$100,000.00. Prior to the loan execution, Stewart Title conducted a title search on the
property. During the title search, a computer printout was generated, which listed the
recording and rerecording of the Memorandum. On or about July 27, 1999, the loan was
executed.
Huntington filed a quiet title action against MILA. MILA filed an answer and a third
party complaint against Song. Song filed an answer and a complaint against Huntington.
MILA filed a motion for summary judgment, seeking to dismiss Huntington's claims. The
district court granted MILA's motion for summary judgment, determining MILA was a bona
fide lender that took an interest in the property without notice of the prior encumbrance. The
district court certified its order as final under NRCP 54(b), and this appeal followed.
[Headnote 1]
We will uphold a district court's grant of summary judgment only if a review of the
record in the light most favorable to the nonmoving party demonstrates that there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of
law.
1
Questions of law are reviewed de novo.
2
In this case, the propriety of the district
court's summary judgment depends on a question of law, i.e., whether a title insurance
company, conducting a title search on behalf of a lender, is considered the lender's agent.
NRS 111.325, Nevada's statutory recording act, provides:
Every conveyance of real property within this state hereafter made, which shall not be
recorded as provided in this chapter, shall be void as against any subsequent purchaser,
in good faith and for a valuable consideration, of the same real property, or any portion
thereof, where his own conveyance shall be first duly recorded.
[Headnotes 2, 3]
A subsequent purchaser with notice, actual or constructive, of an interest in property
superior to that which he is purchasing is not a purchaser in good faith, and is not entitled to
the protection of the recording act.
3
A duty of inquiry arises
when the circumstances are such that a purchaser is in possession of facts which
would lead a reasonable man in his position to make an investigation that would advise
him of the existence of prior unrecorded rights. He is said to have constructive notice of
their existence whether he does or does not make the investigation. The authorities are
unanimous in holding that he has notice of whatever the search would disclose.
4

During Stewart Title's title search, the computer printout listed the recording and
rerecording of the Memorandum. Because the Memorandum states that Song held title to the
property as nominee pursuant to an unrecorded Real Estate Holding Agreement, we
conclude Stewart Title, acting as a reasonable title company, should have reviewed the
Agreement. Therefore, we conclude Stewart Title had constructive notice of Huntington's
interest.
__________

1
Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 538 (1996).

2
SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993).

3
Allison Steel Mfg. Co. v. Bentonite, Inc., 86 Nev. 494, 499, 471 P.2d 666, 669 (1970).

4
Id. at 498, 471 P.2d at 668 (quoting 4 American Law of Property 17.11, at 565-66 (1952)).
Huntington argues that a title insurance company, conducting a title search on behalf
of a lender, is the lender's agent and, thus, a title company's constructive notice should be
imputed to the lender.
5
We disagree.
6

In order to address this question of law, we must look closely at the distinction
between an abstract of title and title insurance. Jurisdictions are split in dealing with whether
a distinction exists for an abstract of title and title insurance.
7
While some states consider a
preliminary title report to be the equivalent of an abstract,
8
other states do not.
9
Nevada has
gone even further with a statutory distinction between an abstract of title and title insurance.
Specifically, NRS 692A.015, which defines abstract of title, states that [t]he term does not
include a binder, commitment to insure or preliminary report of title. A commitment to
insure or preliminary report of title is a report furnished in connection with an application
for title insurance.
10
NRS 692A.023, which defines commitment to insure or
preliminary report of title, states that [t]he term does not include an abstract of title.
Other states, including California and Washington, have similar statutes distinguishing an
abstract of title from a commitment to insure or preliminary report of title.
11

In Rice v. Taylor,
12
the California Supreme Court considered whether a title
insurance company, in tendering a title policy, acts as a lender's agent. In Rice, a property
owner applied for a loan to refund the indebtedness of two prior encumbrances on the
property and failed to disclose the first encumbrance to the lender.
__________

5
Whether MILA had constructive notice of the Memorandum of Real Estate Holding Agreement, and a duty
to investigate, based upon the recording of the Memorandum is not at issue in this case. Below, in its motion for
summary judgment, MILA asserted that the document was not properly recorded and constructive notice based
on recordation did not apply. Huntington did not present any evidence or argument to the contrary in its
opposition to the motion.

6
Nothing in this opinion is intended to affect the ongoing litigation between Song and Huntington.

7
See 1 Am. Jur. 2d Abstracts of Title 2 (1994).

8
Id.; see also Hall v. World Sav. and Loan Ass'n, 943 P.2d 855, 861 (Ariz. Ct. App. 1997) (concluding that a
title company was a lender's agent for the purpose of a title report and that the lender was bound by whatever
notice the title company had).

9
1 Abstracts of Title, supra note 7, 2; see also Culp Const. Co. v. Buildmart Mall, 795 P.2d 650, 654 (Utah
1990) (concluding that the function, form, and character of a title insurer is different from that of an abstractor);
Anderson v. Title Ins. Co., 655 P.2d 82, 86 (Idaho 1982) (refusing to impose the liabilities of an abstractor upon
a title insurance company merely because it issued a preliminary title report).

10
NRS 692A.023.

11
Cal. Ins. Code 12340.10 (West 1988) (An abstract of title is not a title policy . . . .); Wash. Rev. Code
Ann. 48.29.010(3)(b) (West 1999) (An abstract of title is not a title policy . . . .).

12
32 P.2d 381, 383 (Cal. 1934).
and failed to disclose the first encumbrance to the lender. The property owner applied for a
preliminary title report, revealing the first encumbrance. Without actual knowledge of the
first encumbrance, the lender executed the loan. The court stated, Title insurance is quite a
different contract to that of the abstractor of titles.
13
The court concluded that, unlike an
abstract of title, a title insurance policy is an indemnity agreement of an independent
contractor and contains no elements of agency.
14

Like California, Nevada defines an abstract of title as any written representation
listing all recorded conveyances, instruments and documents which, under the laws of this
state, impart constructive notice with respect to the chain of title of the real property
described therein.
15
Title insurance is defined as:
[I]nsuring, guaranteeing or indemnifying owners of property or holders of liens,
encumbrances or security interests on the property, and others interested therein, against
loss or damage suffered by reason of:
1. Liens, encumbrances, security interests and defects in, or the unmarketability of,
the title to the property; or
2. Invalidity or unenforceability of liens, encumbrances or security interests on the
property,
and any other activity substantially equivalent to these activities.
16

We conclude that a title insurance company is not required to disclose every
encumbrance in a title policy because a title policy, unlike an abstract of title, does not impart
constructive notice of encumbrances. Instead, a title company must disclose the
encumbrances it is not willing to insure or indemnify against in a title policy.
Although there is no legislative history indicating that NRS 692A.023 is based on
California Insurance Code 12340.10, California's statutory distinction between an abstract
of title and title insurance is identical to Nevada's. We are persuaded that the Rice opinion's
analysis is correct. Because a clear statutory distinction exists between an abstract of title and
title insurance, we conclude that a title insurance company, conducting a title search on behalf
of a lender, is not the lender's agent. Therefore, a title company's constructive notice may not
be imputed to the lender.
Because Stewart Title was not MILA's agent as a matter of law, we refuse to impute
Stewart Title's constructive notice to MILA. Accordingly, we affirm the judgment of the
district court.
__________

13
Id.

14
Id.

15
NRS 692A.015; accord Cal. Ins. Code 12340.10 (West 1988).

16
NRS 681A.080.
__________
119 Nev. 360, 360 (2003) City of Las Vegas v. Bustos
CITY OF LAS VEGAS, NEVADA, Appellant, v. AUGUSTINE C. BUSTOS, JR., and
VAUGHNIE L. BUSTOS, as Trustees of the ACVLB Family Trust, Respondents.
No. 39252
August 27, 2003 75 P.3d 351
Appeal from a final judgment of condemnation. Eighth Judicial District Court, Clark
County; Gene T. Porter, Judge.
The supreme court held that possible future rezoning could be considered in
calculating value.
Affirmed.
Bradford R. Jerbic, City Attorney, and Philip R. Byrnes Jr., Deputy City Attorney,
Las Vegas, for Appellant.
Netzorg & Caschette and John M. Netzorg, Las Vegas, for Respondents.
1. Eminent Domain.
Valuation of condemned residential property could be based on both current zoning and likelihood of zoning change based on
evidence that most of surrounding land had been converted to commercial use, area was designated as gateway to downtown in
master plan, and City had allowed commercial uses for other properties.
2. Eminent Domain.
A landowner has the burden of establishing the value of land taken in condemnation.
3. Eminent Domain.
Just compensation for condemnation is determined by the property's market value by reference to the highest and best use for
which the land is available and for which it is plainly adaptable; however, such use must be reasonably probable.
4. Eminent Domain.
The trier of fact may consider the effect of future rezoning or variances on the highest and best use of the condemned property
when determining its value.
Before Shearing, Leavitt and Becker JJ.
OPINION
Per Curiam:
This is an appeal by the City of Las Vegas (City) from the district court's valuation of
a house and residential lot (the property) owned by the ACVLB Family Trust. The City
condemned the property in an eminent domain proceeding for the purpose of widening Alta
Drive. After a bench trial, the district court ordered the City to compensate the ACVLB
Family Trust, in the amount of $190,000.
At the time of condemnation, the property was classified under the Las Vegas general
plan as R-4, medium to low density residential, and was located in an area north of Alta Drive
that was zoned R-1, single family residential. Although the property was located on the edge
of a small residential neighborhood, the Las Vegas medical district was located just across the
street on the south side of Alta Drive. Also, a number of residences in the medical district had
already been converted into professional offices.
After viewing the property and hearing conflicting testimony regarding the likelihood
of a zoning change and the value of the property, both as a residence and as a professional
office, the district court determined that obtaining a zoning change for use as an office was
reasonably possible. Therefore, the district court determined that the property should be
valued as if it were zoned for commercial use as a professional office because that would
represent the highest and best use of the property. The district court set that value at
$190,000, after taking into account the costs of converting the property from a residence to an
office.
[Headnote 1]
On appeal, the City argues that the district court erred in its valuation. The City
contends that the district court was required to value the property based on the highest and
best use that was legally permissible, and that use as a professional office was not legally
permissible. The City asserts that the district court's finding that the City would probably
grant a zoning change was erroneous because: (1) this court has held that the local
government must defer to the general or master plan in making zoning changes and failure to
do so has resulted in reversible error;
1
(2) the district court could not reasonably conclude
that the City would grant a zoning change in noncompliance with its master plan;
2
and (3)
the City's planner testified that such a change was extremely unlikely.
The Bustoses respond that the cases cited by the City are inapposite because they
address enforcement of a master plan, not whether the district court may take into account the
reasonable probability of rezoning in an eminent domain case. They argue that the very
purpose of eminent domain proceedings is to provide the landowner with just compensation,
premised on the highest and best use of the property, rather than the actual use, and that
refusal to consider potential zoning changes has resulted in reversible error.
3
Further, given
the neighborhood's evolution from a sleepy residential neighborhood to a busy thoroughfare
and entrance to the downtown business district,
__________

1
Enterprise Citizens v. Clark Co. Comm'rs, 112 Nev. 649, 661-62, 918 P.2d 305, 312-13 (1996); Nova
Horizon v. City Council, Reno, 105 Nev. 92, 96, 769 P.2d 721, 723-24 (1989).

2
Enterprise Citizens, 112 Nev. at 661-62, 918 P.2d at 312.

3
See Sorenson v. State ex rel. Dep't of Hwys., 92 Nev. 445, 446-47, 552 P.2d 487, 488 (1976).
downtown business district, it was proper for the district court to consider the probability of a
zoning change. Finally, the Bustoses assert that, at the very least, there was competing
evidence as to the probability of a zoning change, and that it was within the district court's
discretion to weigh the evidence and determine the credibility of the witnesses.
[Headnotes 2, 3]
The landowner is entitled to just compensation for the government's taking of private
property
4
and has the burden of establishing the value of land so taken.
5
Just compensation
is determined by the property's market value by reference to the highest and best use for
which the land is available and for which it is plainly adaptable.
6
However, such use must
be reasonably probable.
7
In general, the trier of fact may consider zoning restrictions
permitting a viable economic use of the property in determining the property's value.
8
In
fact, the district court should give due consideration . . . to those zoning ordinances that
would be taken into account by a prudent and willing buyer.
9

[Headnote 4]
We conclude that the district court properly considered the current zoning of the
property, as well as the likelihood of a zoning change. The trier of fact may consider the
effect of future rezoning or variances on the highest and best use of the condemned property
when determining its value.
10

__________

4

5
State v. Pinson, 66 Nev. 227, 237-38, 207 P.2d 1105, 1110 (1949).

6
County of Clark v. Alper, 100 Nev. 382, 386-87, 685 P.2d 943, 946 (1984).

7
See County of Clark v. Buckwalter, 115 Nev. 58, 63, 974 P.2d 1162, 1165 (1999) (stating that the highest
price standard based on a condemned parcel's use as a casino was significantly different from the legislatively
mandated most probable price standard because it was unlikely that the parcel could be used for a casino, and
the most probable price was based on the probable use of the parcel as a retail or restaurant facility).

8
Alper, 100 Nev. at 389, 685 P.2d at 948.

9
Id. at 390, 685 P.2d at 948.

10
We note that this is in accord with several other jurisdictions. See, e.g., Martens v. State, 554 P.2d 407,
409 (Alaska 1976) (stating that if a zoning change would convert the land to its highest and best use, then the
jury should consider the probability of such a change in its determination of whether the more profitable use was
likely at the time of valuation); Greene v. Burns, 607 A.2d 402, 407 (Conn. 1992) (stating that a reasonably
probable change in zoning is a proper element to be considered in determining the value of condemned
property); Broward County v. Patel, 641 So. 2d 40, 42 (Fla. 1994) (stating that the condemnee must demonstrate
a reasonable probability that rezoning or a variance would be granted in the near future for it to be considered in
the valuation of the condemned property); Unified Govt. of Athens-Clarke v. Watson, 577 S.E.2d 769, 770 (Ga.
2003) (stating that evidence of a
We note that there was undisputed evidence that most of the land surrounding the
property had been converted to commercial use except for the area eight hundred feet from
Tonopah Avenue to Deauville Drive, where the Bustoses' house was located. Augustine
Bustos testified that, as of September 1996, Alta Drive was designated as the
office-court-core gateway from the west in the downtown urban design master plan. Bustos
also testified that the City had allowed commercial uses for other properties on the north side
of Alta Drive. Bustos further testified that he bought the property with the intent of
converting it to an office, despite the risk of condemnation proceedings. He thought he could
convince the City to straighten Alta Drive through vacant land rather than simply widen it,
__________
highest and best use of the property that is precluded by current zoning is inadmissible unless the condemnee
show[s] that a change in zoning to allow the usage is probable, not remote or speculative, and is so sufficiently
likely as to have an appreciable influence on the present market value of the property); Lombard Park District
v. Chicago Title and Trust Co., 242 N.E.2d 440, 444 (Ill. App. Ct. 1968) (holding that it was proper for the trier
of fact to consider the highest and best use of the property based on future zoning, where there was a reasonable
probability of obtaining such zoning in the near future); West Jefferson Levee D. v. Coast Quality, 640 So. 2d
1258, 1274 (La. 1994) (Another major factor . . . affecting the probability land could be put to a certain use in
the not-too-distant future, is the requirement of a permit for or the impact of a zoning ordinance on the
development of the property into its asserted highest and best use. Where there is no reasonable probability a
permit for the necessary development could be obtained or that a change to a zoning classification allowing such
development could occur in the reasonably foreseeable future, the asserted higher use may not be considered as
the highest and best use of the property for purposes of market valuation because such use would be illegal.);
Stewart v. City of Baltimore, 244 A.2d 231, 236-37 (Md. 1968) (holding that evidence of a reasonable
probability of approval of a change in use of the realty by the planning commission was similar to evidence of a
reasonable probability of a zoning change, and therefore, it was admissible); Union Electric Company v. Saale,
377 S.W.2d 427, 429 (Mo. 1964) (stating that, in an eminent domain proceeding, [w]hen the land is not
available for a certain use by reason of a zoning restriction, its suitability or adaptability for such use may be
shown as affecting its value as of the time of the taking if, but only if, the evidence indicates a reasonable
probability of a change in the zoning restriction in the reasonably near future); State by Com'r of Transp. v.
Caoili, 639 A.2d 275, 281 (N.J. 1994) (holding that evidence of zoning changes that a reasonable buyer and
seller would take into consideration in an arm's length transaction was admissible after the trial court had
determined that there was sufficient evidence that a zoning change was probable); Masheter v. Kebe, 359 N.E.2d
74, 77 (Ohio 1976) (Although existing zoning restrictions necessarily constitute an important factor for the
appraisal witnesses to consider in connection with the market value of the land, it must be recognized that, as a
practical matter, the existing zoning regulation does not and may not control that market value of the property
involved. If, in the opinion of an expert appraisal witness, an informed, willing purchaser would be presently
agreeable to pay more than an amount justified under existing zoning, such evidence is admissible because it
reflects upon the fair market value of the property.); see also Mark S. Dennison, Probable Zoning Change as
Bearing on Proof of Market Value in Eminent Domain Proceeding, 40 Am. Jur. Proof of Facts 3d 396, 421-22
(1997); 4 Julius L. Sackman, Nichols on Eminent Domain 12C.03[2] (rev. 3d ed. 2003).
straighten Alta Drive through vacant land rather than simply widen it, which would have
required the City to condemn only seven properties instead of sixteen and would have
bypassed his house. Bustos testified that he had experience with obtaining zoning variances in
the area and that he thought he could obtain one for the subject property.
Gary Kent, the Bustoses' appraiser, testified that he appraised the property as an office
conversion because he had concluded that that was the highest and best use of the property.
He testified that he reached his conclusion because of the property's access to downtown Las
Vegas; the reclassification of properties surrounding it as professional, commercial or high
density residential; Alta Drive's high traffic volume; and Alta Drive's designated entry into
the Union Pacific Development Area. Kent testified that, in his opinion, a buyer would
reasonably assume that he could get professional zoning on the property. Kent further
testified that although the government would not be willing to rezone the property once
condemnation proceedings had been initiated, he could not take into account the depreciation
in value due to the condemnation proceedings under NRS 37.112(1).
11

On the other hand, Chris Glore, a planning supervisor for the planning and
development department, testified that several factors militated against rezoning the property
for office use. First, he testified that the property faced a residential street and that it was the
City's planning practice that nonresidential traffic not be introduced to residential streets to
avoid disruption of the residents' quality of life. He further testified that, if rezoned, the
property would be considered spot zoning because no other consistent zoning existed on that
side of the street surrounding the property. He stated that the small lot size would not
accommodate the parking requirements for office use. Finally, he testified that, to change the
zoning, it would be necessary to amend the general plan. However, he conceded that spot
zoning is fairly common and that, while the planning department may support one position,
the city council frequently proceeds contrarily. Further testimony from Steve Anderson, an
appraiser employed exclusively by the City, indicated that the consensus of four individual
planners was that the property would be very difficult to rezone.
__________

11
NRS 37.112(1) provides:
1. Except as otherwise provided in subsection 2, if the property is subject to condemnation as a result
of a public work or public improvement, any decrease or increase in the fair market value of the property
before the date of valuation which is caused by:
(a) The public work or public improvement for which the property is acquired; or
(b) The likelihood that the property would be acquired for such a purpose,
must be disregarded when assessing the value of the property pursuant to NRS 37.110.
would be very difficult to rezone. Anderson stated that he would value the property as
residential at $91,500.
This court has consistently held that the district court's findings of fact will not be
disturbed on appeal if they are supported by substantial evidence.
12
The district court
determined that a reasonable and prudent buyer would conclude that he or she could likely
obtain a zoning change, given the character of the neighborhood, the high volume of traffic
on Alta Drive, and the surrounding properties. We conclude that substantial evidence
supported the district court's finding of fact.
Accordingly, we affirm the judgment of the district court.
__________
119 Nev. 365, 365 (2003) Crestline Inv. Group v. Lewis
CRESTLINE INVESTMENT GROUP, INC., Appellant, v. GLEN J. LEWIS, Respondent.
No. 37380
August 28, 2003 75 P.3d 363
Appeal from a district court order approving a mechanic's lien. Seventh Judicial
District Court, Lincoln County; Dan L. Papez, Judge.
The supreme court held that: (1) employee's services did not enhance value of
employer's property, (2) employee waived any lien claim by failing to timely file a statement
of facts, and (3) trial court could not increase lien during proceeding to expunge lien.
Michael H. Singer, Ltd., and Christopher L. Birkin and Michael H. Singer, Las Vegas,
for Appellant.
Allf & Associates and Steven J. Szostek, Las Vegas, for Respondent.
The construction of a statute is a question of law that the supreme court reviews de novo.
2. Statutes.
In construing a statute, the supreme court first looks to the plain language of the statute. If the statutory language fails to address
the issue, this court construes the statute according to that which reason and public policy would indicate the legislature intended.
3. Mechanics' Lien.
Absent evidence as to specific duties performed by employee of solid waste landfill, evidence did not support contention that
employee's duties contributed to improvement of property,
__________

12
See Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129, 130, 734 P.2d 1236, 1237 (1987); Hobson
v. Bradley & Drendel, Ltd., 98 Nev. 505, 506-07, 654 P.2d 1017, 1018 (1982).
duties contributed to improvement of property, as required to support mechanic's lien for unpaid wages. NRS 108.223.
4. Mechanics' Lien.
The object of the mechanic's lien statutes is to secure payment to those who perform labor or furnish material to improve the
property of the owner. Lien claimants are required substantially to comply with the provisions in order to obtain the security that
they afford. NRS 108.223.
5. Mechanics' Lien.
The recording, by an employee, of a mechanic's lien upon real property is proper only if the employer is the owner of the
property. NRS 108.223.
6. Mechanics' Lien.
Failure of employee of solid waste landfill to file written lien statement in support of his claim for mechanic's lien for unpaid
wages, as required by statute, waived his lien claim. NRS 108.239(2)(b).
7. Mechanics' Lien.
Trial court abused its discretion in increasing mechanic's lien claim by employee in employer's proceeding to expunge lien as
frivolous, where employee had not initiated foreclosure proceedings. NRS 108.2275.
8. Mechanics' Lien.
A proceeding to expunge a lien claim cannot be used to increase a lien. NRS 108.2275.
9. Mechanics' Lien.
A district court can amend a lien claim to conform to the proof only after lien foreclosure proceedings. NRS 108.229(1).
Before Agosti, C. J., Rose and Gibbons, JJ.
OPINION
Per Curiam:
This is an appeal from a district court order approving employee Glen J. Lewis'
amended mechanic's lien claim against his employer, Crestline Investment Group, Inc. After
first determining that Lewis waived his lien claim by failing to timely file a statement of facts
as required by NRS 108.239(2)(b), the district court reversed its earlier decision and
concluded that Lewis could include mileage payments and insurance premiums as wages for
lien purposes. The court then approved Lewis' amended mechanic's lien claim.
We conclude that (1) Lewis' services as an employee did not enhance the value of
Crestline's property, thus he could not record an enforceable mechanic's lien under NRS
108.223; (2) Lewis waived any lien claim by failing to timely file a statement of facts under
NRS 108.239(2)(b); and (3) the district court abused its discretion by increasing the lien
during a proceeding to expunge Lewis' lien claim as frivolous. We therefore reverse the
district court's order and remand with instructions to expunge Lewis' lien.
FACTS
Crestline owned and operated a solid waste landfill site in Lincoln County. Operation
of a solid waste landfill includes the following: soil excavation, insertion of solid waste into
the excavated property, refilling and grading soil, landscaping, seeding, planting, and
irrigation of the soil.
Crestline and Lewis executed an employment contract under which Crestline would
pay Lewis a salary of $3,000 per month, insurance premium payments of $505 per month,
and a mileage allowance of $0.36 per mile. There was conflicting evidence as to the extent of
Lewis' duties. An affidavit from Crestline's General Manager indicates Crestline hired Lewis
to drive a garbage truck. At some point, the employment relationship deteriorated, and
Crestline failed to pay Lewis monies to which he claims entitlement under the employment
agreement.
Lewis recorded a mechanic's lien against Crestline's landfill for unpaid wages,
including insurance premium payments and mileage payments, claiming that his work
enhanced the value of the landfill under NRS 108.223. In a separate lien foreclosure
proceeding instituted by Acme Sand & Gravel, Inc., against Crestline, the district court
deemed Lewis' lien claim waived for failure to timely file a statement of facts as required by
NRS 108.239(2)(b). Thus, the district court did not determine whether an employee could file
a mechanic's lien under NRS 108.223.
Lewis filed a motion to amend the judgment regarding his lien claim, asserting that
Acme provided insufficient notice of foreclosure proceedings as required by NRS 108.239(3).
On January 14, 2000, the district court reversed its order deeming Lewis' lien claim waived
and allowed Lewis to proceed. The district court's order provided Lewis with an additional
twenty days to file an NRS 108.239(2)(b) lien statement. Lewis failed to comply.
After reinstating Lewis' lien claim, the district court allowed Lewis to amend the
claim to include insurance premium payments and mileage reimbursement as part of his
claim.
Crestline then sought to have Lewis' lien expunged as frivolous under NRS 108.2275.
On December 18, 2000, the district court determined the lien was not frivolous and
unilaterally increased Lewis' lien during the proceedings.
On January 12, 2001, Lewis' counsel sent a demand letter to Crestline's counsel. The
letter indicated that Lewis had authorized his counsel to begin foreclosure proceedings
immediately on the lien claims. Lewis, however, failed to institute foreclosure proceedings
against Crestline. Acme and Crestline dismissed the original foreclosure proceeding by
stipulation of all parties involved on June 14, 2002.
June 14, 2002. Crestline appeals from the December 18, 2000, order increasing the lien.
1

DISCUSSION
Standard of review
[Headnotes 1, 2]
Lien claims are statutory; thus, this dispute is primarily one of statutory construction.
The construction of a statute is a question of law that this court reviews de novo.
2
The
court first looks to the plain language of the statute.
3
[I]f the statutory language . . . fails
to address the issue, this court construes the statute according to that which reason and
public policy would indicate the legislature intended. '
4

Applicability of NRS 108.223 to employees
[Headnotes 3, 4]
Mechanic's liens are statutorily created.
5
Generally, there is no statutory protection
for ordinary repairs or maintenance.
6
The object of the lien statutes is to secure payment to
those who perform labor or furnish material to improve the property of the owner.
7

__________

1
NRS 108.2275 governs the procedure in proceedings challenging a lien as frivolous or excessive.
Subsection 6 provides for a direct appeal by either party from an order made pursuant to subsection 4.
Subsection 4 provides that if the district court determines that the lien is frivolous, the court may release the lien
and award attorney fees and costs; that if the court determines that the lien is excessive, it may reduce the lien
and award costs and attorney fees; and that if the court concludes that the lien is not frivolous or excessive, it
may award costs and attorney fees. The appealability of these orders does not turn on whether costs and attorney
fees are awarded; instead, the Legislature has simply indicated that the district court has discretion to award
costs and fees in any of these orders. Subsection 4 fails to specifically address the situation here. We have
jurisdiction, however, because in its order, the district court necessarily found the lien neither frivolous nor
excessive.

2
A.F. Constr. Co. v. Virgin River Casino, 118 Nev. 699, 703, 56 P.3d 887, 890 (2002).

3
Id.

4
Id. (quoting State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986) (quoting
Cannon v. Taylor, 87 Nev. 285, 288, 486 P.2d 493, 495 (1971), modified on other grounds, 88 Nev. 89, 493
P.2d 1313 (1972))).

5
Schofield v. Copeland Lumber, 101 Nev. 83, 84, 692 P.2d 519, 520 (1985).

6
Id. at 84-85, 692 P.2d at 520; see also Peccole v. Luce & Goodfellow, 66 Nev. 360, 373, 212 P.2d 718, 725
(1949) (explaining that [t]he theory upon which all labor liens are based is that they are remedial in their nature
and intended to assist the laborer to obtain a just price for his services); Didier v. Webster Mines Corporation,
49 Nev. 5, 17, 234 P. 520, 524 (1925) (concluding [t]he general theory upon which liens . . . are given is that
by the labor . . . the property has been enhanced in value).

7
Schofield, 101 Nev. at 85, 692 P.2d at 520.
[L]ien claimants are required substantially to comply with [the] provisions in order to obtain
the security which [they] afford[ ].
8

[Headnote 5]
An employee may record a mechanic's lien for unpaid wages as provided in NRS
108.221 to 108.246, inclusive.
9
NRS 108.223 states:
Any person who, at the request of the owner of any lot or tract of land, or his agent,
grades, fills in, installs a system for irrigation, seeds, plants, lays sod, landscapes or
otherwise improves the lot or tract of land, or the street in front of or adjoining it, has a
lien upon it for the work done and materials furnished.
The recording of a mechanic's lien upon real property is proper only if the employer is the
owner of the property.
10
The protection provided by a mechanic's lien applies only to
employee services intended to improve the property.
11
In Didier v. Webster Mines
Corporation,
12
this court concluded that the services of a cook and his helper at a mine were
not intended to improve the property; thus, a lien could not be used to secure payment for the
services rendered. The claims are not such as to entitle the claimants to a lien against the
appellant's property.
13

Here, Crestline contends that it hired Lewis as a garbage truck driver. Lewis counters
that his duties included excavating, filling in soil, grading, landscaping, irrigating, and
seeding and planting at the landfill. These latter duties are consistent with the services
enumerated in NRS 108.223; however, the evidence fails to support Lewis' claim. The
employment agreement is silent as to the duties required of Lewis. Lewis' affidavit is also
silent as to specific duties performed. Conversely, an affidavit from Crestline's General
Manager stated Lewis was a garbage truck driver whose employment contributed nothing to
improving the landfill. Thus, in this instance, the record does not contain substantial evidence
to support Lewis' contention. Therefore, while employees can seek the protection of NRS
108.223, Lewis may not do so because his services did not improve the property.
__________

8
Skyrme v. Occidental Mill and Mining Co., 8 Nev. 219, 239 (1873).

9
NRS 608.050(2).

10
See Eldorado-R. Co. v. Thompson, 57 Nev. 407, 413, 65 P.2d 878, 880 (1937).

11
Didier, 49 Nev. at 17, 234 P. at 524.

12
Id.

13
Id.; see also Holtzman v. Bennett, Et Al., 48 Nev. 274, 281, 229 P. 1095, 1097 (1924) (concluding [t]he
cook did no work in connection with the operation of the mine, and can assert no lien).
Failure to timely file lien statements
[Headnote 6]
Crestline argues that Lewis waived his lien claim by failing to file a written statement
of lien. After the filing of a complaint to enforce a lien, all lien claimants are required to
serve on the plaintiff and also on the defendant . . . written statements of the facts
constituting their liens, together with the dates and amounts thereof.
14
The written
statement must be filed within 10 days after the last publication of the notice.
15
If a lien
claimant fails to file a statement of facts within ten days, the lien claim is deemed waived.
16

In its November 18, 1999, order stemming from the Acme foreclosure proceedings,
the district court found that Lewis waived his claim by failing to comply with NRS
108.239(2)(b). Lewis failed to respond to Acme's notice to file and serve a statement of facts.
That order was amended on March 21, 2000, however, to allow Lewis to proceed with his
lien claim. The district court gave Lewis twenty days to file his lien statement with the court.
The district court, in its amended order, extended Lewis' time for compliance with NRS
108.239(2)(b). Despite the extension, Lewis did not file a written statement.
Lewis contends that the district court did not require a written statement to be filed
and that it was unnecessary to do so because of the pendency of this appeal. Lewis further
argues his pleadings include the same information that would be contained in a written
statement; thus, it would have been duplicative to submit a written statement of facts.
The district court's amended order stated that Lewis had twenty days to file his lien
statement with the court. Lewis failed at every stage of this litigation to file a written
statement as required by statute and the district court. Therefore, we conclude Lewis waived
his lien claim and the lien must be expunged on this basis as well.
Additur under NRS 108.2275
[Headnote 7]
Crestline maintains that the district court erred by increasing Lewis' lien claim during
its proceeding to expunge the lien as frivolous. Specifically, Crestline contends additur is not
an option available to the district court during a hearing under NRS 108.2275.
17

__________

14
NRS 108.239(2)(b).

15
Id.

16
S & S Carpets v. Valley Bank of Nevada, 94 Nev. 165, 166, 576 P.2d 750, 751 (1978).

17
The debtor of the lien claimant or a party in interest in the premises subject to the lien who believes
the notice of lien is frivolous and was made without reasonable cause, or that the amount of the lien is
exces-
After a hearing under NRS 108.2275, the district court may make one of three
determinations.
18
First, if the court determines a lien is frivolous, it may release the lien and
award costs and attorney fees to the applicant.
19
Second, if the court finds the lien to be
excessive, it may reduce the lien and award costs and attorney fees to the applicant.
20
Third,
if the lien is not frivolous or excessive, the court may award costs and reasonable attorney
fees to the lien claimant.
21
Proceedings conducted pursuant to this section do not affect any
other rights and remedies otherwise available to the parties.
22

[Headnotes 8, 9]
No statutory language permits a district court to increase a lien claim at a hearing
under NRS 108.2275. Thus, a proceeding to expunge a lien claim cannot be used to increase a
lien. A district court can amend a lien claim to conform to the proof only after foreclosure
proceedings.
23
Foreclosure proceedings must be commenced through the filing of a
complaint within six months after recordation of the lien unless the parties agree to extend the
time period.
24
Alternatively, a lien claimant must file a statement of facts within the ten-day
statutory period to preserve the claim.
25

Here, the district court erred by increasing the lien claim prior to the initiation of
foreclosure proceedings. Lewis' failure to commence foreclosure proceedings precludes any
attempt by the district court to amend the lien to conform to proof adduced at trial.
CONCLUSION
Lewis' duties did not improve Crestline's property and therefore he could not establish
a valid lien claim under NRS 108.223. Notwithstanding the issue of validity, Lewis waived
any lien claims by failing to institute timely foreclosure proceedings and file written lien
statements within the statutory period. We also conclude the district court erred by increasing
Lewis' lien claim during a proceeding to expunge a frivolous lien claim.
__________
sive, may apply by motion to the district court for the county where the property or some part thereof is
situated for an order directing the lien claimant to appear before the court to show cause why the relief
requested should not be granted.

18
NRS 108.2275(4).

19
NRS 108.2275(4)(a).

20
NRS 108.2275(4)(b).

21
NRS 108.2275(4)(c).

22
NRS 108.2275(5).

23
NRS 108.229(1).

24
NRS 108.233.

25
NRS 108.239(2)(b).
Accordingly, we reverse the district court's order and remand with instructions to
expunge the lien against Crestline. Expunging Lewis' lien does not prejudice either party
regarding any other claims or remedies available. As this was an issue of first impression, we
deny attorney fees to both parties for these proceedings.
__________
119 Nev. 372, 372 (2003) Keife v. Logan
PAUL J. KEIFE, Appellant, v. NOLAN WINSTON LOGAN, ELAINE M. LOGAN, and
LOGAN FAMILY TRUST DATED SEPTEMBER 4, 1990, Respondents.
No. 38029
August 28, 2003 75 P.3d 357
Appeal from a judgment in a quiet title action. Second Judicial District Court, Washoe
County; Jerome Polaha, Judge.
Owner of land adjacent to abandoned railroad right-of-way brought action against
owner of land underlying right-of-way to quiet title. The district court entered judgment for
underlying owner. Adjacent owner appealed. The supreme court held that reversionary
interest in right-of-way belonged to underlying owner.
Affirmed.
Douglas K. Fermoile, Reno, for Appellant.
Linda A. Bowman, Reno, for Respondents.
1. Railroads.
Under statute governing disposition of abandoned railway grants, reversionary interest in abandoned railroad right-of-way
belonged to owner of underlying land, not to adjacent landowner. 43 U.S.C. 912.
On appeal, the supreme court will not disturb a district court's findings of fact if they are supported by substantial evidence;
however, the district court's conclusions of law are reviewed de novo.
OPINION
Per Curiam:
This case involves the issue of whether, after a railroad company abandons a
right-of-way, the adjacent landowner or the underlying landowner is entitled to the
reversionary interest in the right-of-way. We hold that the reversionary interest in the
right-of-way vests in the landowner who establishes title to the land underlying the
right-of-way.
119 Nev. 372, 373 (2003) Keife v. Logan
vests in the landowner who establishes title to the land underlying the right-of-way.
FACTS
In 1971, Paul J. Keife purchased real property located in Wadsworth, Nevada. Keife's
property is adjacent to the disputed property, the railroad right-of-way.
In 1989, Nolan Logan purchased twenty-seven acres of land, which included the
right-of-way, from Southern Pacific Transportation Company (Southern Pacific). Shortly
thereafter, Logan quitclaimed the property to the Logan Family Trust.
On November 16, 1998, Keife filed a complaint against the respondents seeking to
quiet title to the right-of-way, a declaratory judgment that Keife is the rightful owner of the
right-of-way, and ejection of the respondents from the right-of-way. Following a one-day
bench trial, the district court entered a written decision in favor of the respondents.
The district court made the following findings of fact. Under the Congressional Acts
of July 1, 1862,
1
as amended by the Act of July 2, 1864,
2
the United States granted several
lands, including the right-of-way, to the Central Pacific Railroad Company (Central Pacific).
The right-of-way consists of 5.7 acres of land, which is a 400-foot wide strip of land
including approximately 3000 feet of railroad trackage, and [t]he tracks were originally part
of Central Pacific's mainline.
The chain of title to Keife's property, which is adjacent to the right-of-way, was traced
back to the original United States patent that granted the lands to Central Pacific. Keife
admitted that he did not own the land underlying the railroad right-of-way. Logan purchased
the right-of-way and the underlying land from Southern Pacific, Central Pacific's successor in
interest.
The district court found that the right-of-way was conveyed as a limited fee with the
right of reverter. The district court also found that Southern Pacific's physical nonuse and
removal of the tracks on the right-of-way, its clear intention to dispose of the right-of-way,
and its negotiations to sell the right-of-way established that Southern Pacific ceased using and
occupying the right-of-way. As such, the district court declared that Southern Pacific had
abandoned the right-of-way by 1987.
Because the district court declared that Southern Pacific abandoned the right-of-way,
it was required to determine who was entitled to the reversionary interest in the right-of-way
pursuant to 43 U.S.C. 912 (1994), which governs the disposition of abandoned railroad
grants.
__________

1
Act of July 1, 1862, ch. 120, 12 Stat. 489.

2
Act of July 2, 1864, ch. 220, 13 Stat. 373.
119 Nev. 372, 374 (2003) Keife v. Logan
railroad grants. The district court rejected Keife's argument that the right-of-way reverted to
him as the adjacent landowner. Therefore, the district court concluded that, pursuant to 912,
Logan acquired title to the right-of-way through Southern Pacific's purported conveyance to
him of the entire subdivision, consisting of the right-of-way and the underlying land.
DISCUSSION
[Headnote 1]
Keife contends that the district court misapplied 912. According to Keife, upon
Southern Pacific's abandonment of the right-of-way in 1987, the reversionary interest in the
right-of-way vested in Keife as the adjacent landowner. Keife also contends that the district
court's finding that Southern Pacific purported to convey the entire subdivision is
erroneous.
[Headnote 2]
On appeal, this court will not disturb a district court's findings of fact if they are
supported by substantial evidence.
3
However, the district court's conclusions of law are
reviewed de novo.
4

43 U.S.C. 912 provides in pertinent part:
Whenever public lands of the United States have been or may be granted to any
railroad company for use as a right of way for its railroad or as sites for railroad
structures of any kind, and use and occupancy of said lands for such purposes has
ceased or shall hereafter cease, whether by forfeiture or by abandonment by said
railroad company declared or decreed by a court of competent jurisdiction or by Act of
Congress, then and thereupon all right, title, interest, and estate of the United States in
said lands shall, except such part thereof as may be embraced in a public highway
legally established within one year after the date of said decree or forfeiture or
abandonment be transferred to and vested in any person, firm, or corporation, assigns,
or successors in title and interest to whom or to which title of the United States may
have been or may be granted, conveying or purporting to convey the whole of the legal
subdivision or subdivisions traversed or occupied by such railroad or railroad
structures of any kind as aforesaid, except lands within a municipality the title to which,
upon forfeiture or abandonment, as herein provided, shall vest in such municipality, and
this by virtue of the patent thereto and without the necessity of any other or further
conveyance or assurance of any kind or nature whatsoever . . . .
5

__________

3
See Gepford v. Gepford, 116 Nev. 1033, 1036, 13 P.3d 47, 49 (2000).

4
See Birth Mother v. Adoptive Parents, 118 Nev. 972, 974, 59 P.3d 1233, 1235 (2002), cert. denied, 538
U.S. 965 (2003).

5
Emphasis added.
119 Nev. 372, 375 (2003) Keife v. Logan
The Ninth Circuit has noted that the United States Congress enacted 912 to ensure that
railroad rights-of-way would continue to be used for transportation purposes.
6

Many courts have provided that before 1871, the right-of-way that the railroads
received was a limited fee with the right of reverter, but after 1871, it was an exclusive-use
easement because in 1871 Congress discontinued conveying the land outright.
7
Notwithstanding, 912 applies regardless of whether the railroad has a limited fee with right
of reverter or an exclusive easement.
8
Here, the district court concluded that Southern
Pacific's right-of-way was a limited fee with the right of reverter because its predecessor in
interest, Central Pacific, received the right-of-way before 1871.
In rejecting Keife's argument that the right-of-way reverted to him as the adjacent
landowner, the district court relied exclusively on Marlow v. Malone.
9
In Marlow, the same
issue was presented to the Appellate Court of Illinois as in the present casewhether the
district court misinterpreted 912 by denying the appellants the abandoned railroad
right-of-way as adjacent landowners. Likewise, the facts of Marlow are similar to the instant
case.
10
In 1850, the United States granted the State of Illinois a 200-foot-wide right-of-way
and various sections of land on each side of the right-of-way. Thereafter, Illinois deeded the
land to the Illinois Central Railroad Company (ICR). In 1967, appellants acquired the land
lying west of the right-of-way. In 1986, the Interstate Commerce Commission issued a
certificate of abandonment, and ICR ceased its use and occupancy of the right-of-way. ICR
then quitclaimed all its right, title and interest in the right-of-way to the respondent.
The Appellate Court of Illinois concluded that, based on the plain language of 912,
appellants' argument that the right-of-way vested in them merely by virtue of their adjacency
to the right-of-way lacked merit.
11
The court stated that title is imperative to a claim for the
reversionary interest in a right-of-way because 912 passes title to abandoned rights-of-way
to persons, entities, or their successors in title who have received paper title or can establish
title to the land underlying the right-of-way, independent from the operation of section 912.
12
The court acknowledged that other jurisdictions agree that a person claiming the
reversionary interest under 912 must establish that they have title to the land underlying the
right-of-way.
__________

6
Vieux v. East Bay Regional Park Dist., 906 F.2d 1330, 1335 (9th Cir. 1990).

7
See City of Maroa v. Illinois Cent. R.R., 592 N.E.2d 660, 664 (Ill. App. Ct. 1992) (cases cited therein).

8
Id.

9
734 N.E.2d 195 (Ill. App. Ct. 2000).

10
Id. at 199.

11
Id. at 200.

12
Id. at 201.
119 Nev. 372, 376 (2003) Keife v. Logan
derlying the right-of-way.
13
The court further acknowledged that the legislative history of
912 supported its interpretation because proponents of 912 stated that [t]he only person
who would get [the right-of-way] is some one [sic] who has received the [underlying]
property . . . subject to right-of-way [sic] of the easement of the railroad company.'
14
And
[t]he proponents further explained that [t]he person who gets [the right-of-way] is the
person to whom the title . . . may have been or may be granted.'
15

Accordingly, the Appellate Court of Illinois held that under 912, a plaintiff must
establish title to the land underlying the right-of-way, and [t]he plaintiff need only establish
this title by showing a chain of title leading back to the United States.
16
The court explained
that title is sufficient if based upon a railroad company's purported fee conveyance of the
entire subdivision, including the land underlying the right-of-way, which the railroad
company originally received as part of a United States railroad grant.
17

Applying its reasoning to the appellants' claim, the Appellate Court of Illinois
concluded that the appellants failed to establish title to the land underlying the right-of-way.
18
The court noted that the appellants' deed specifically excluded the land underlying the
right-of-way.
19
The court concluded that ICR's purported conveyance of the right-of-way,
including the land underlying the right-of-way, was sufficient to vest the reversionary interest
in the right-of-way in the respondent.
20

Here, Keife argues that Marlow is inapposite because the appellants in Marlow could
not trace their title in the land underlying the right-of-way to a United States patent, whereas
Keife traced his land, which is adjacent to the right-of-way, to the original United States
patent that granted the land to Central Pacific. However, Keife's argument is unavailing
because he specifically admitted at trial that he did not own the land underlying the
right-of-way.
Alternatively, Keife urges us to adopt the Marlow dissent's interpretation of 912
because the dissent's interpretation supports his position that an abandoned railroad
right-of-way reverts to the adjacent landowner.
__________

13
Id. (citing City of Buckley v. Burlington Northern, 723 P.2d 434, 437 (Wash. 1986); City of Aberdeen v.
Chicago & North Transp., 602 F. Supp. 589, 592 (D.S.D. 1984)).

14
Id. (alterations in original) (quoting 59 Cong. Rec. 6474 (1920)).

15
Id. (alterations in original) (quoting 59 Cong. Rec. 6474 (1920)).

16
Id. at 202.

17
Id.

18
Id. at 205.

19
Id. at 203.

20
Id.
119 Nev. 372, 377 (2003) Keife v. Logan
adjacent landowner. We decline Keife's suggestion. Because the plain language and
legislative history of 912 support the majority's interpretation, we adopt it. Thus, we hold
that upon abandonment by the railroad, the right-of-way reverts to the underlying landowner.
Notably, as the majority in Marlow noted, other jurisdictions are in accord with this
interpretation of 912. For instance, in City of Buckley v. Burlington Northern,
21
the
Supreme Court of Washington similarly interpreted 912: If a person, firm or corporation
has title to the underlying fee, the reversion vests automatically, unless the right-of-way runs
through a municipality. Moreover, in Scott v. Union Pacific Railroad Co.,
22
we stated:
Upon effective abandonment, the right-of-way or easement reverted to the underlying fee
owner . . . . Although Scott did not address the issue presented in the instant case,
23
our
statement of law regarding the ownership of the underlying fee is in harmony with our
interpretation of 912.
Keife contends that the Ninth Circuit's interpretation of 912 in Vieux v. East Bay
Regional Park District
24
supports his argument that the right-of-way reverted to him as the
adjacent landowner. We disagree. In its decision, the district court acknowledged Keife's
reliance on Vieux, but noted that the Ninth Circuit did not explain the landowners' rights, if
any, to the land underlying the right-of-way. Indeed, the landowners' rights to the reversionary
interest in the right-of-way were not at issue in Vieux.
25

Finally, Keife argues that the record shows that Southern Pacific only conveyed the
right-of-way, not any land adjacent to the right-of-way, to Logan, and thus, Southern Pacific
did not purport to convey the entire subdivision, as the district court found. We conclude
that Keife's argument lacks merit because it is based on his erroneous interpretation of 912.
Thus, we conclude that the district court's finding that Southern Pacific purported to convey
the right-of-way and the land underlying the right-of-way to Logan is supported by substantial
evidence.
__________

21
723 P.2d at 437.

22
109 Nev. 729, 732, 857 P.2d 10, 13 (1993).

23
In that case, Scott filed an action alleging that Union Pacific, the State of Nevada, or Lincoln County
owned the railroad right-of-way, which had been abandoned by Union Pacific, and that the defendants breached
the duty to maintain the right-of-way in a reasonably safe condition because Scott was injured when he rode his
motorcycle on the right-of-way. Id. at 731, 857 P.2d at 12.

24
906 F.2d 1330 (9th Cir. 1990).

25
See id. at 1341-42 (concluding that the landowners lost their non-vested reversionary rights pursuant to the
public-highway exception under 912, without addressing whether the landowners were adjacent or underlying
landowners).
119 Nev. 372, 378 (2003) Keife v. Logan
CONCLUSION
We hold that when a railroad company abandons a right-of-way, the reversionary
interest in the right-of-way vests in the underlying landowner. Because the district court's
finding that the right-of-way reverted to Logan, as the underlying landowner, is supported by
substantial evidence, we affirm the district court's judgment.
__________
119 Nev. 378, 378 (2003) Evans v. Samuels
JOY R. EVANS, Appellant, v. TAYLOR SAMUELS and BRITTA SAMUELS, Individually,
and as Trustees of the SAMUELS 1999 FAMILY TRUST DATED JANUARY 5, 1999,
Respondents.
No. 38758
August 28, 2003 75 P.3d 361
Appeal from a district court order granting summary judgment in a quiet title action.
Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Owners of real property filed quiet title action and requested permanent injunction
barring judgment creditor from executing judgment. The district court granted summary
judgment for property owners, and judgment creditor appealed. The supreme court held that
judgment lien that was not renewed within six-year period expired.
Affirmed.
Margaret S. Evans, Reno, for Appellant.
Judith A. Otto and Carole Pope, Reno, for Respondents.
David A. Rahm, Las Vegas; Reinhart Boerner Van Deuren and J. Bushnell Nielsen,
Milwaukee, Wisconsin, for Amicus Curiae Nevada Land Title Association.
The supreme court reviews a district court's order granting summary judgment de novo.
On appeal from summary judgment, the supreme court may be required to determine whether the law has been correctly
perceived and applied by the district court.
3. Judgment.
Judgment lien expires after six years if the judgment is not renewed. Thus, lien on real property expired when judgment creditor
failed to renew it within six-year period. NRS 17.150(2).
OPINION
Per Curiam:
In this appeal, we consider whether a lien expires if the judgment is not renewed
within six years. We conclude that NRS 17.150(2) plainly requires that a judgment be
renewed within six years from the date it was docketed in order to continue a lien.
FACTS
Ingrid Sievert obtained title to the subject property on September 2, 1964. On
September 23, 1983, she sold the property to Kenneth Swanson. In the meantime, Sievert
apparently left Nevada. On June 15, 1984, Joy R. Evans obtained a judgment against Sievert,
which was recorded on August 3, 1984. On August 12, 1987, Swanson deeded the property
back to Sievert, and on January 14, 1988, Sievert transferred her interest in the property to her
daughter.
Taylor and Britta Samuels (the Samuels), along with David and Kathleen Johnson (the
Johnsons), purchased the property from Sievert's daughter on October 30, 1991. At the time
of the purchase, a title company performed a title search using the most recent preliminary
title report of the property, dated August 8, 1988. This report listed Evans' judgment.
However, the title company concluded that the lien had expired since Evans failed to renew
the judgment within the six-year period set forth in NRS 17.150(2). In 1997, the Johnsons
transferred their interest in the property to the Samuels.
On April 10, 2000, Evans filed a request for issuance of renewed judgment, which
was issued on May 11, 2000. After receiving notice that Evans intended to file a writ of
execution against their property pursuant to the renewed judgment, the Samuels filed a
complaint seeking quiet title and requesting a permanent injunction. Thereafter, the Samuels
moved for summary judgment arguing, among other things, that the lien on the property
expired when Evans failed to renew the judgment within the six-year period prescribed in
NRS 17.150(2). The district court agreed, granting summary judgment and quieting title in
favor of the Samuels.
DISCUSSION
Evans argues that the district court erred in granting summary judgment and quieting
title in favor of the Samuels because the lien was continued when Evans renewed the
judgment in 2000. Evans contends that there is no requirement that a judgment be renewed
within six years from the date it was docketed in order to prevent a lien from expiring.
[Headnotes 1, 2]
This court reviews a district court's order granting summary judgment de novo.
1
Summary judgment is only appropriate when, after a review of the record viewed in a light
most favorable to the non-moving party, there remain no genuine issues of material fact, and
the moving party is entitled to judgment as a matter of law.
2
On appeal from summary
judgment, this court may be required to determine whether the law has been correctly
perceived and applied by the district court.'
3

[Headnote 3]
In this instance, the parties do not argue the existence of genuine issues of material
fact. Instead, they dispute whether, under NRS 17.150(2), a lien expires after six years if the
judgment is not renewed.
NRS 17.150(2) states, in part, that a lien continues for six years after the date the
judgment was docketed, and is continued each time the judgment is renewed. Although NRS
17.150(2) provides that a lien is continued when the judgment is renewed, the six-year period
would be meaningless if, as Evans argues, a lien were continued upon the renewal of the
judgment after the six-year period.
4
NRS 17.150(2) plainly provides that a lien will last for
six years from the date the judgment was docketed, but will expire if the judgment is not
renewed within the six-year period.
5
Because Evans failed to renew the judgment within the
six-year period, the lien on the Samuels' property expired.
6

CONCLUSION
We conclude that under NRS 17.150(2), a lien expires after six years from the date the
judgment was docketed if the judgment is not renewed within such time frame. Given this
conclusion, we need not address Evans' remaining arguments on appeal. Accordingly, we
affirm the district court's order granting summary judgment and quieting title in favor of the
Samuels.
__________

1
Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).

2
Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985).

3
Calloway v. City of Reno, 116 Nev. 250, 256, 993 P.2d 1259, 1263 (2000) (quoting Mullis v. Nevada
National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982)).

4
See State v. Allen, 119 Nev. 166, 170, 69 P.3d 232, 235 (2003) (observing that this court reviews a statute
to determine its plain meaning, which is intended to reflect legislative intent).

5
See City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989) (When the
language of a statute is plain and unambiguous, a court should give that language its ordinary meaning and not
go beyond it.).

6
We note that our disposition does not affect Evans' renewed judgment.
__________
119 Nev. 381, 381 (2003) Schneider v. County of Elko
TERRY L. SCHNEIDER and JANA M. SCHNEIDER, Husband and Wife, Jointly and
Severally, Appellants, v. THE COUNTY OF ELKO, a Political Subdivision of the
State of Nevada ex rel. its Elko County Recorder, Respondent.
No. 38958
August 28, 2003 75 P.3d 368
Appeal from a district court order granting a motion to dismiss. Fourth Judicial
District Court, Elko County; Robert E. Estes, Judge.
Owners of lot in subdivision brought action against county alleging that improper
recordation of a record of survey caused them to incur attorney fees and costs in lawsuit. The
district court granted motion to dismiss lot owners' complaint. Lot owners appealed. The
supreme court held that county recorder was not liable for recording record of survey.
Affirmed.
Hansen & Hall, LLC, and Glade L. Hall, Reno, for Appellants.
Gary D. Woodbury, District Attorney, and Kristin A. McQueary, Chief Deputy
District Attorney, Elko County, for Respondent.
1. Registers of Deeds.
Survey satisfied statutory requirements for a record of survey. Thus, county recorder was not liable for recording it because
recorder had no duty to determine whether record of survey served its intended purpose to create subdivision. NRS 247.110,
247.410(2).
In reviewing whether a dismissal was proper, the supreme court must regard all factual allegations in the complaint as true, and
all inferences must be drawn in favor of the plaintiff. NRCP 12(b)(5).
A complaint should only be dismissed if it appears beyond a reasonable doubt that the plaintiff could prove no set of facts,
which, if true, would entitle him to relief. NRCP 12(b)(5).
4. Registers of Deeds.
A county recorder has no duty to determine whether a document serves its intended purpose, given that recording a document is
a purely ministerial task.
OPINION
Per Curiam:
Terry and Jana Schneider (the Schneiders) appeal a district court order dismissing
their complaint wherein they alleged that they were entitled to damages resulting from the
Elko County Recorder's recordation of a record of survey.
Recorder's recordation of a record of survey. We conclude that the district court did not err
when it determined that the county recorder properly recorded the record of survey because
the survey satisfied the statutory requirements for a record of survey. Therefore, we affirm the
district court's order dismissing the Schneiders' complaint for failure to state a claim.
FACTS
In 1971, Spring Creek Association filed a subdivision map of Spring Creek Tract 102,
depicting eighty lots located in Spring Creek, Elko County, Nevada. In 1976, Spring Creek
Association had a record of survey prepared, which depicted Lot 80 of Tract 102 as divided
into twelve separate parcels with an access road circling through the parcels. In 1983, the
Elko County Recorder recorded the record of survey at Spring Creek Association's request.
In 1995, the Schneiders purchased Parcel 2 of Lot 80. In 1999, Spring Creek
Association sued the Schneiders to determine whether an easementthe access road depicted
in the record of surveyexisted across the Schneiders' property. The district court found that
the record of survey did not meet the statutory requirements for a parcel or subdivision map,
as required to create an express easement. Because no other means of creating an easement
were present, the district court concluded that Spring Creek Association did not have an
easement across the Schneiders' property. Furthermore, the district court concluded that the
lawsuit was brought in good faith and was well based in law and fact, and thus, did not award
attorney fees or costs.
Thereafter, the Schneiders filed a complaint against Elko County. Although Elko
County was not a party in the lawsuit between the Schneiders and Spring Creek Association,
the Schneiders claimed that Elko County was liable for their attorney fees and costs
associated with the lawsuit because they would not have incurred the fees and costs but for
the county recorder's recordation of the record of survey. Essentially, the Schneiders argued
that Elko County was liable to them for recording the record of survey because the county
recorder should have known that the record of survey was intended to serve as a subdivision
map, yet failed to meet the statutory requirements for such a map. The Schneiders also
claimed that they were entitled to damages associated with the loss of advantageous sale of
their property because they owned an illegally created parcel.
Elko County filed a motion to dismiss, arguing that the Schneiders' complaint was
barred by the statute of limitations; the record of survey was properly recorded because it met
the statutory requirements for a record of survey; and the record of survey did not affect the
description of the Schneiders' property, so the Schneiders did not own an illegally created
parcel.
did not own an illegally created parcel. The district court agreed, and thus, dismissed the
Schneiders' complaint for failure to state a claim.
DISCUSSION
[Headnotes 1-3]
The Schneiders argue that the district court erred when it granted Elko County's
motion to dismiss. We rigorously review a district court's dismissal of an action under NRCP
12(b)(5) for failure to state a claim.
1
In reviewing whether dismissal was proper, we must
regard all factual allegations in the complaint as true, and all inferences must be drawn in
favor of the plaintiff.
2
A complaint should only be dismissed if it appears beyond a
reasonable doubt that the plaintiff could prove no set of facts, which, if true, would entitle
him to relief.
3

The district court concluded that NRS 247.110 authorized the filing of the record of
survey. NRS 247.110(3) states: A county recorder shall not refuse to record a document on
the grounds that the document is not legally effective to accomplish the purposes stated
therein.
The Schneiders do not specifically argue that the record of survey did not meet the
statutory requirements for a record of survey. Instead, the Schneiders argue that the record of
survey was intended to create a subdivision, and thus, had to meet the statutory requirements
for a subdivision map. Because the record of survey failed to meet the requirements for a
subdivision map, the Schneiders argue that the county recorder is liable for recording the
document, pursuant to NRS 247.410. NRS 247.410(2) provides that a county recorder is
liable to an aggrieved party for three times the amount of the damages that may be caused if
the recorder willfully, negligently, or untruly records a document in any manner other than as
directed in NRS chapter 247.
[Headnote 4]
We conclude that NRS 247.410(2) is not applicable in this instance. A county
recorder has no duty to determine whether a document serves its intended purpose, given that
recording a document is a purely ministerial task.
4
Moreover, NRS 247.110(3) provides that
a county recorder cannot refuse to record a document on the grounds that it is not legally
effective to accomplish its purpose.
__________

1
Hampe v. Foote, 118 Nev. 405, 408, 47 P.3d 438, 439 (2002).

2
Id.

3
Id.

4
See, e.g., Bionomic Church of Rhode Island v. Gerardi, 414 A.2d 474, 476 (R.I. 1980) (observing that a
recorder of deeds is a purely ministerial officer who, when presented with a deed executed in compliance with
controlling statutes, must receive and record the instrument).
grounds that it is not legally effective to accomplish its purpose. Thus, we conclude that the
county recorder is not liable for recording the record of survey because it satisfied the
statutory requirements for a record of survey.
CONCLUSION
Given our conclusion that the county recorder properly recorded the record of survey,
we need not address the Schneiders' remaining arguments on appeal. Accordingly, we affirm
the district court's order dismissing the Schneiders' complaint for failure to state a claim.
__________
119 Nev. 384, 384 (2003) Preferred Equities v. State Engineer
PREFERRED EQUITIES CORPORATION, Appellant, v. STATE ENGINEER, STATE OF
NEVADA, Respondent.
No. 38037
August 29, 2003 75 P.3d 380
Appeal from a district court order denying a petition for judicial review of a ruling by
the State Engineer. Fifth Judicial District Court, Nye County; John P. Davis, Judge.
Water rights holder petitioned for judicial review of State Engineer rulings that denied
application to change the diversion point and usage of water rights. The district court
dismissed the petition. Water rights holder appealed. The supreme court held that: (1)
application was moot, as holder had forfeited water rights in time between application and
ruling; (2) application to change place and manner of use did not toll forfeiture period; and
(3) holder was not entitled to equitable relief.
Affirmed.
Lionel Sawyer & Collins and F. Harvey Whittemore and Jeffrey D. Menicucci, Reno,
for Appellant.
Brian Sandoval, Attorney General, and Michael L. Wolz, Deputy Attorney General,
Carson City, for Respondent.
1. Waters and Water Courses.
Water rights holder's application to change diversion point was moot as it dealt with water rights which holder no longer owned,
where State Engineer determined rights forfeited due to nonuse for five years, forfeiture became final upon holder's failure to
appeal that ruling within thirty days, and reversion became final during the intervening period between application to change
diversion point and final determination denying that application. NRS 534.090(1).
Water rights holder's application to change the place and manner of use of water rights did not toll forfeiture period by
implication, despite argument that it would be wasteful to require continuing use of water if it could not
make beneficial use of the water.
argument that it would be wasteful to require continuing use of water if it could not make beneficial use of the water. Proper
process was to either request an extension or file timely appeal. NRS 533.040(2), 534.090(2).
Water rights holder was not entitled to equitable relief from forfeiture of water rights, as holder did not demonstrate beneficial
use of rights within prescriptive period. NRS 533.450(1).
The supreme court strictly construes statutes dealing with mandatory filing dates in water rights actions.
The water law and all proceedings thereunder are special in character, and the provisions of such law not only lay down the
method of procedure but strictly limit the method to that provided.
Preeminent public policy concern in state regarding water rights is beneficial use.
OPINION
1

Per Curiam:
This is an appeal from a district court order denying a petition for judicial review of
State Engineer Ruling No. 4499,
2
which rejected appellant Preferred Equities Corporation's
(PEC) application to change the diversion point and usage of certain water rights it held in
Nye County, Nevada. We affirm the district court's order denying PEC's petition for judicial
review. Although the district court improperly ruled that it lacked subject matter jurisdiction
to hear PEC's appeal of Ruling No. 4499, we conclude that the district court properly denied
relief on mootness grounds.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal concerns Nevada State Engineer Ruling No. 4499, referred to above, and
a prior State Engineer Ruling, No. 4481, both made in connection with the same water rights.
In 1988, PEC filed an application with the Nevada State Engineer to change the
diversion point and usage of the water rights in question here. For reasons that are not entirely
clear, the State Engineer did not immediately act on that application and, in 1992,
commenced separate forfeiture proceedings on the same water rights.
__________

1
We previously disposed of this case in an unpublished order that affirmed the district court's order.
Respondent State Engineer then filed a motion to publish the decision as an opinion. Cause appearing, we grant
the motion and issue this opinion in place of the prior order that was entered on April 18, 2003.

2
See NRAP 3A(b)(1).
commenced separate forfeiture proceedings on the same water rights. In Ruling No. 4481,
dated December 20, 1996, the State Engineer concluded that PEC did not utilize the subject
water rights for a period exceeding five years, and thus, he declared the rights in forfeit. PEC
chose not to appeal this ruling. Thereafter, on February 25, 1997, the State Engineer issued
Ruling No. 4499, denying the 1988 application to change the point of diversion and the usage
of the rights that were declared forfeited in Ruling No. 4481.
In May of 1997, PEC filed a petition for judicial review of Ruling No. 4499 in the
district court. The State Engineer moved to dismiss the petition with respect to Ruling No.
4499.
3
In his motion, the State Engineer argued that PEC's failure to appeal Ruling No. 4481
within thirty days
4
rendered that ruling final and that, accordingly, PEC's appeal of Ruling
No. 4499 was an impermissible attempt to review the finally adjudicated forfeiture stemming
from Ruling No. 4481. The State Engineer also argued that the denial of PEC's application to
change the point of diversion and usage was correct on substantive grounds because PEC
failed to make beneficial use of the water rights during the prescriptive time period. The
district court agreed with the State Engineer and dismissed PEC's petition in connection with
Ruling No. 4499. PEC appeals.
DISCUSSION
The State Engineer's Ruling No. 4481 became final thirty days after it was rendered,
and PEC elected not to appeal that determination.
5
PEC does not contest the finality of
Ruling No. 4481, or that it failed to make beneficial use of its water for a period of at least
five years. Instead, PEC seeks an independent review of the diversion and usage decision,
claiming on statutory and equitable grounds that the diversion and usage application tolled
the running of the five-year divestiture time period.
__________

3
NRCP 12(b) states, in relevant part:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim,
cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required,
except that the following defenses may at the option of the pleader be made by motion: (1) lack of
jurisdiction over the subject matter . . . .

4
See NRS 534.090(1).

5
NRS 533.450(1) states, in relevant part:
Any person feeling himself aggrieved by any order or decision of the state engineer, . . . when such
order or decision relates to the administration of determined rights or is made pursuant to NRS 533.270
to 533.445, inclusive, may have the same reviewed by a proceeding for that purpose, insofar as may be in
the nature of an appeal . . . . Such order or decision of the state engineer shall be and remain in full force
and effect unless proceedings to review the same are commenced in the proper court within 30 days
following the rendition of the order or decision in question and notice thereof is given to the state
engineer as provided in subsection 3.
Mootness
The State Engineer contends that PEC is barred from bringing the petition in
connection with Ruling No. 4499.
6
We agree.
[Headnote 1]
To explain, under NRS 534.090(1), PEC's water rights reverted to the public once the
State Engineer determined them forfeited in 1996, and the forfeiture became final upon PEC's
failure to appeal that ruling within thirty days.
7
This reversion became final during the
intervening period between PEC's application to change the diversion point of its water rights
in 1988 and the final determination denying that application in 1997. Thus, after Ruling No.
4481 became final, PEC's application to change the diversion point no longer dealt with a
water right that it owned. Consequently, PEC's application became moot,
8
and the district
court properly denied the application to modify finally forfeited water rights.
The claim of tolling under NRS 533.040(2)
[Headnote 2]
PEC argues that an application to change the place and manner of use of water rights
tolled the forfeiture period by implication under NRS 533.040(2):
If at any time it is impracticable to use water beneficially or economically at the place
to which it is appurtenant, the right may be severed from the place of use and be
simultaneously transferred and become appurtenant to another place of use, in the
manner provided in this chapter, without losing priority of right.
PEC contends that, if it could not make beneficial use of the water in one location, it would
be wasteful to require continuing use of the water while awaiting a decision of the State
Engineer. While PEC's argument is compelling, it does not overcome the overriding public
policy that any failure of beneficial use for five years results in forfeiture
__________

6
See LaForge v. State, University System, 116 Nev. 415, 997 P.2d 130 (2000) (discussing issue preclusion).

7
Upon the forfeiture of a right to the use of ground water, the water reverts to the public and is available
for further appropriation, subject to existing rights. If, upon notice by registered or certified mail to the
owner of record whose right has been declared forfeited, the owner of record fails to appeal the ruling in
the manner provided for in NRS 533.450, and within the time provided for therein, the forfeiture
becomes final.

8
Applebaum v. Applebaum, 97 Nev. 11, 12, 621 P.2d 1110, 1110 (1981) (citing Nev. Const. art. 6, 4;
Boulet v. City of Las Vegas, 96 Nev. 611, 614 P.2d 8 (1980)); State v. Teeter, 65 Nev. 584, 653-54, 200 P.2d
657, 691 (1948) (McKnight, D. J., dissenting) (collecting cases); Pac. L. Co. v. Mason Val. M. Co., 39 Nev.
105, 111, 153 P. 431, 433 (1915) (Cases presenting real controversies at the time of their institution may
become moot by the happening of subsequent events.); see also NCAA v. University of Nevada, 97 Nev. 56, 57,
624 P.2d 10, 11 (1981).
overriding public policy that any failure of beneficial use for five years results in forfeiture
and does not address the failure to appeal Ruling No. 4481 within the thirty-day window.
PEC does not contend that it made beneficial use of its water; that was the reason why
it applied to change the diversion point of its rights. However, if PEC could not make use of
its water, the proper process was to request an extension under NRS 534.090(2),
9
or to file a
timely appeal after issuance of Ruling No. 4481, arguing that the application tolled the
forfeiture proceedings. We therefore reject PEC's interpretation of NRS 533.040(2).
Equitable relief
[Headnote 3]
PEC requests that this court grant it equitable relief from the forfeiture. However,
PEC's reliance on cases in which we granted such relief is misplaced.
[Headnotes 4, 5]
As previously noted, NRS 533.450(1) allows a person aggrieved by a decision or
order of the State Engineer to appeal within thirty days following the rendition of the order
or decision in question. This court strictly construes statutes dealing with mandatory filing
dates in water rights actions,
10
and [i]t is . . . settled in this state that the water law and all
proceedings thereunder are special in character, and the provisions of such law not only lay
down the method of procedure but strictly limit[ ] [the method] to that provided.
11

__________

9
The state engineer may, upon the request of the holder of any right described in subsection 1, extend the
time necessary to work a forfeiture under that subsection if the request is made before the expiration of
the time necessary to work a forfeiture. The state engineer may grant, upon request and for good cause
shown, any number of extensions, but a single extension must not exceed 1 year. In determining whether
to grant or deny a request, the state engineer shall, among other reasons, consider:
(a) Whether the holder has shown good cause for his failure to use all or any part of the water
beneficially for the purpose for which his right is acquired or claimed . . . .

10
Bailey v. State of Nevada, 95 Nev. 378, 594 P.2d 734 (1979) (stating that the water rights holder had no
notice of cancellation; equitable relief granted); G. & M. Properties v. District Court, 95 Nev. 301, 594 P.2d 714
(1979). Cf. Engelmann v. Westergard, 98 Nev. 348, 351-53, 647 P.2d 385, 388-89 (1982) (holding that the
district court had equitable power to consider appeal; question of whether diligent protection of water rights
occurred was properly before district court when water rights holder had no notice of cancellation); State
Engineer v. American Nat'l Ins. Co., 88 Nev. 424, 498 P.2d 1329 (1972) (holding that the district court properly
granted equitable relief notwithstanding right holder's failure to file timely proof of beneficial use).

11
Application of Filippini, 66 Nev. 17, 27, 202 P.2d 535, 540 (1949); see also Ruddell v. District Court, 54
Nev. 363, 367, 17 P.2d 693, 693-96 (1933) (purpose of water rights law is to have the water rights adjudicated .
. . in such a proceeding as to terminate for all time litigation between all such water users).
This case is dissimilar from the few water rights cases in which this court has granted
equitable relief from the termination of water rights, notwithstanding the failure of a water
rights holder to timely file an appeal from the State Engineer's termination decision.
12
In
those cases, the water rights holders were able to demonstrate beneficial use of their rights
within the prescriptive period.
13
Because PEC has conceded lack of beneficial use for a
period in excess of five years, these cases provide no support for appellant's request for
equitable relief.
[Headnote 6]
Appellant relies upon Town of Eureka v. State Engineer,
14
for the proposition that
forfeiture does not occur automatically at the end of five years, because a water rights holder
may cure the forfeiture by putting his water to use before the beginning of forfeiture
proceedings. PEC implies that its application to change the diversion point of its water is
similar to the use of water prior to the initiation of forfeiture proceedings, which would cure
the forfeiture. We disagree. The preeminent public policy concern in Nevada regarding water
rights is beneficial use.
15
Appellant did not make beneficial use of its water while it held its
rights. The legislature has recognized that water is a limited resource in Nevada and it
belongs to the public;
16
therefore, one who does not put it to a beneficial use should not be
allowed to hold it hostage. Because PEC did not use its rights, we will not grant it equitable
relief.
CONCLUSION
We conclude that the district court properly refused to hear PEC's petition for judicial
review of Ruling No. 4499 because the basis of that petition was rendered moot by virtue of
the prior final forfeiture ruling in No. 4481. Additionally, we reject PEC's tolling claim under
NRS 533.040(2). Finally, we decline to grant PEC equitable relief because (1) we have
restricted such relief in such matters to parties who have made beneficial use of their water
rights;
__________

12
See Bailey, 95 Nev. 378, 594 P.2d 734; American Nat'l Ins. Co., 88 Nev. 424, 498 P.2d 1329.

13
Bailey, 95 Nev. at 383, 594 P.2d at 737 (holding that judicial review not precluded and equitable relief
granted where the rights holder substantially complied with water law but had no knowledge of water rights
cancellation until after expiration of thirty-day appeal period); Amer. Nat'l Ins. Co., 88 Nev. at 425-26, 498 P.2d
at 1330 (stating that failure to file proof of beneficial use when rights holder made substantial use of water did
not preclude equitable relief from rights cancellation); cf. Engelmann, 98 Nev. 348, 647 P.2d 385 (remanding
for district court determination whether appellant exercised diligence in protecting water rights).

14
108 Nev. 163, 826 P.2d 948 (1992).

15
Desert Irrigation, Ltd. v. State of Nevada, 113 Nev. 1049, 1059, 944 P.2d 835, 842 (1997); see also NRS
533.035.

16
See NRS 533.025.
and (2) we have consistently held that statutes concerning Nevada water rights will be strictly
construed.
17
Accordingly, we affirm the district court's order denying PEC's petition for
judicial review.
__________
119 Nev. 390, 390 (2003) Maki v. Chong
CHARLES JOSEPH MAKI, Appellant, v. ESTHER FAYE CHONG, Respondent.
No. 39041
August 29, 2003 75 P.3d 376
Proper person appeal from a district court order applying the statutory homestead
exemption to respondent's real property. Seventh Judicial District Court, White Pine County;
Steve L. Dobrescu, Judge.
Judgment creditor sought writ of execution on judgment debtor's real property
purchased from funds obtained from judgment creditor by fraudulent means. The district
court upheld the homestead declaration. Judgment creditor appealed. The supreme court held
as a matter of first impression that the exemption did not apply and was invalid against the
judgment.
Charles Joseph Maki, Indian Springs, in Proper Person.
Stephens Knight & Edwards and Sandra Newmark, Reno, for Respondent.
1. Homestead.
A debtor is not shielded by the homestead exemption to further a fraud or similar tortious conduct. NRS 115.010.
2. Homestead.
The homestead exemption does not apply to transactions involving fraud or similar tortious conduct. NRS 115.010.
3. Homestead.
The purpose of the homestead exemption is to preserve the family home despite financial distress, insolvency, or calamitous
circumstances. NRS 115.010.
4. Replevin.
He who keeps property that he knows belongs to another must restore that property.
5. Liens; Trusts.
One who has purchased real property with funds of another, under circumstances that ordinarily would entitle such other person
to enforce a constructive trust in or an equitable lien against the property, cannot defeat the right to enforce such trust or lien on
the ground that the homestead exemption applies. NRS 115.010.
__________

17
We have carefully considered the parties' other arguments and conclude that they are without merit in light
of our holding that PEC's application to change the diversion point of its water rights was moot.
119 Nev. 390, 391 (2003) Maki v. Chong
6. Homestead.
The homestead exemption statute cannot be used as an instrument of fraud and imposition. NRS 115.010.
7. Homestead.
An individual using fraudulently obtained funds to purchase real property should not be protected by the homestead exemption
because the exemption's purpose is to provide protection to individuals who file the homestead exemption in good faith. NRS
115.010.
8. Liens.
Under equitable lien principles, the homestead exemption did not apply to judgment debtor's real property purchased from funds
obtained from judgment creditor by fraudulent means. Thus, the exemption was invalid against default judgment to recover the
funds. NRS 115.010(1).
9. Liens.
Under equitable lien principles, the homestead exemption is inapplicable when the proceeds used to purchase real property can
be traced directly to funds obtained through fraud or similar tortious conduct. NRS 115.010.
10. Homestead.
Debtors who fraudulently acquire funds are not the type of debtor whom the legislature sought to protect by the homestead
exemption. NRS 115.010.
OPINION
Per Curiam:
Appellant Charles Maki has appealed in proper person from a district court order
declaring that real property owned by Maki's sister, respondent Esther Chong, was not subject
to execution because of a properly filed homestead declaration under NRS 115.010. Maki
previously obtained a default judgment against Chong on his complaint for breach of
contract, fraud, and conversion. The complaint alleged that Chong converted Maki's
settlement check and used the funds to purchase the real property at issue.
[Headnotes 1, 2]
Although public policy favors homestead exemptions in all but a few situations, we
cannot allow a debtor to be shielded by the homestead exemption to further a fraud or similar
tortious conduct. We therefore conclude that the homestead exemption does not apply to
transactions involving fraud or similar tortious conduct. Under the doctrine of equitable liens,
Chong's homestead exemption does not extend to process of the court regarding enforcement
of Maki's default judgment.
FACTS
Maki, an Ely State Prison inmate, signed a limited power of attorney allowing Chong
to cash his State Industrial Insurance System {SIIS) settlement check.
119 Nev. 390, 392 (2003) Maki v. Chong
tem (SIIS) settlement check. The settlement check represented a permanent partial disability
benefit award of $37,974.62. Chong allegedly agreed to open a savings account and deposit
the check. She was to use the money to obtain a criminal defense attorney to assist Maki in
his appeal.
Chong cashed the check; however, she did not open an account for Maki. Instead,
Chong used Maki's money to purchase a home in Washoe County. Chong also informed Maki
that each month, she cashed his $100 SIIS benefit check. Chong told Maki she would not be
returning any of his funds.
Maki filed a complaint for breach of contract, fraud, and conversion in which he
sought declaratory and injunctive relief, compensatory damages, and court costs. Chong
failed to file a response, and Maki ultimately obtained a default judgment.
Maki recorded a purported property lien in Washoe County against any and all
property Chong owned on March 10, 1998. Chong recorded a homestead declaration on
December 31, 1998. Maki then filed a motion asking the district court to issue a writ of
execution pursuant to NRS Chapter 21, which the district court granted. Maki mailed a notice
of execution to Chong and filed a copy with the Seventh Judicial District Court. In
compliance with NRS 21.112, Chong mailed an affidavit setting out a claim of exemption,
1
asserting that her home was exempt from execution because her equity did not exceed
$125,000 and she had previously filed a homestead declaration.
After Chong filed her notice of claim of exempt property, Maki filed a motion for a
hearing on the exemption issue. The district court granted the motion and found Chong's
affidavit for exemption null and void. Maki proceeded with execution against Chong's
property, and the district court scheduled a sheriff's sale of the property.
Eleven days before the scheduled sale and after obtaining counsel, Chong filed a
motion for relief from the district court's order. The district court ordered a stay of the
execution sale and conducted a hearing, with Maki's presence waived due to his incarceration.
After the hearing, the district court found that Chong had filed a valid homestead declaration
on the property in issue and the equity in that property was less than $125,000. Based upon
these findings, the district court concluded that the property was exempt from execution. The
district court vacated the initial order regarding the issue of exemption. This appeal followed.
__________

1
NRS 21.112(1) provides that
[i]n order to claim exemption of any property levied on, the judgment debtor must, within 8 days after the
notice prescribed in NRS 21.075 is mailed, serve on the sheriff and judgment creditor and file with the
clerk of the court issuing the writ of execution an affidavit setting out his claim of exemption.
119 Nev. 390, 393 (2003) Maki v. Chong
DISCUSSION
[Headnote 3]
The purpose of the homestead exemption is to preserve the family home despite
financial distress, insolvency or calamitous circumstances . . . .
2
Thus, a homestead
exemption prohibits a forced sale, subject to several statutory exceptions, none of which
apply here.
3
Specifically, the homestead exemption is inapplicable to legal tax liens,
mortgages, deeds of trust, and homeowner's association liens.
4
We have also allowed the
homestead exemption to be disregarded to satisfy child support obligations.
5
In Breedlove v.
Breedlove,
6
we concluded the homestead exemption did not apply because the debtor, a
parent who owed child support arrearages, was not the type of debtor whom the legislature
sought to protect.
[Headnotes 4, 5]
There is a time-honored principle that states that he who keeps property that he knows
belongs to another must restore that property.
7
This idea, manifested in the doctrine of
equitable liens, permeates our entire system of justice regarding equity. [O]ne who has
purchased real property with funds of another, under circumstances which ordinarily would
entitle such other person to enforce a constructive trust in, or an equitable lien against, the
property, cannot defeat the right to enforce such trust or lien on the ground that [the
homestead exemption applies].
8

Although none of our previous decisions is directly on point, other jurisdictions have
squarely addressed this issue.
9
In Webster v. Rodrick,
10
the Washington Supreme Court
concluded that the doctrine of equitable liens provided the proper relief for a creditor when
a debtor fraudulently obtained the money used to purchase real property.
__________

2
Jackman v. Nance, 109 Nev. 716, 718, 857 P.2d 7, 8 (1993).

3
NRS 115.010(1).

4
NRS 115.010(3).

5
Phillips v. Morrow, 104 Nev. 384, 385-86, 760 P.2d 115, 116 (1988); Breedlove v. Breedlove, 100 Nev.
606, 608, 691 P.2d 426, 427 (1984).

6
100 Nev. at 609, 691 P.2d at 428.

7
See Blackstone's Commentaries on the Law 577 (Bernard C. Gavit ed., 1941).

8
Annotation, Remedy of One Whose Money Is Fraudulently Used in the Purchase or Improvement of Real
Property, 43 A.L.R. 1415, 1446 (1926).

9
See, e.g., Mack v. Marvin, 202 S.W.2d 590, 594 (Ark. 1947); Duhart v. O'Rourke, 221 P.2d 767, 769 (Cal.
Ct. App. 1950); Jones v. Carpenter, 106 So. 127, 130 (Fla. 1925); In re Munsell's Guardianship, 31 N.W.2d
360, 367 (Iowa 1948); Long v. Earle, 269 N.W. 577, 582 (Mich. 1936); American Ry. Express Co. v. Houle,
210 N.W. 889, 890 (Minn. 1926); Wells Fargo Bank Intern. v. Binabdulaziz, 478 N.Y.S.2d 580, 582 (Sup. Ct.
1984); Curtis Sharp Custom Homes, Inc. v. Glover, 701 S.W.2d 24, 25-26 (Tex. App. 1985); Webster v.
Rodrick, 394 P.2d 689, 691-92 (Wash. 1964); Warsco v. Oshkosh Savings & Trust Co., 208 N.W. 886, 887
(Wis. 1926).

10
394 P.2d at 691.
119 Nev. 390, 394 (2003) Maki v. Chong
doctrine of equitable liens provided the proper relief for a creditor when a debtor fraudulently
obtained the money used to purchase real property. Equitable liens become necessary on
account of the absence of similar remedies at law.'
11
The court in Webster refused to let the
debtor use the statutes as a sword to protect a theft.
12
Likewise, Chong is undeserving of
protection under the homestead exemption if she fraudulently obtained the funds to purchase
her home.
[Headnotes 6, 7]
The homestead exemption statute cannot be used as an instrument of fraud and
imposition.
13
Public policy supports our application of an exception to homestead
exemptions for victims of fraud or similar tortious conduct. An individual using fraudulently
obtained funds to purchase real property should not be protected by the homestead exemption
because the exemption's purpose is to provide protection to individuals who file the
homestead exemption in good faith.
[Headnote 8]
Chong obtained Maki's funds by fraudulent means; therefore, the homestead
exemption does not protect her. Chong never responded to Maki's complaint, and the district
court entered a default judgment. Based upon our opinion today, Chong's homestead
exemption is invalid.
CONCLUSION
[Headnotes 9, 10]
Under equitable lien principles, the homestead exemption is inapplicable when the
proceeds used to purchase real property can be traced directly to funds obtained through fraud
or similar tortious conduct. We conclude that, as in the case of a debtor owing child support
obligations, debtors who fraudulently acquire funds are not the type of debtor whom the
legislature sought to protect.
14
Chong's homestead exemption cannot apply to prevent a
forced sale on execution of Maki's judgment. We reverse the district court's order and remand
with instructions for the district court to enter an order consistent with this opinion that
Chong's homestead exemption is invalid against Maki's default judgment.
__________

11
Id. (quoting Jones, 106 So. at 128-29).

12
Id.

13
Id. at 692.

14
Breedlove, 100 Nev. at 609, 691 P.2d at 428.
__________
119 Nev. 395, 395 (2003) Camacho v. State
RUBEN CAMACHO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 39765
August 29, 2003 75 P.3d 370
Appeal from a judgment of conviction entered after a guilty plea. Second Judicial
District Court, Washoe County; James W. Hardesty, Judge.
The supreme court, Rose, J., held that: (1) under Nevada Constitution, there must
exist both probable cause and exigent circumstances for police to conduct warrantless search
of an automobile incident to lawful custodial arrest; and (2) search incident to arrest
exception to warrant requirement did not apply under State Constitution to search conducted
of defendant's vehicle after he had been removed from vicinity of car and handcuffed, despite
existence of probable cause to suspect that defendant was carrying drugs in vehicle; but (3)
drugs discovered in that search were admissible under inevitable discovery rule because they
would have been recovered during a later inventory search.
Affirmed.
[En banc reconsideration denied December 17, 2003]
Maupin, J., dissented in part.
Dennis A. Cameron, Reno, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
Warrantless searches are per se unreasonable under the Fourth Amendment subject only to a few specifically established and
well delineated exceptions. Const. art. 1, 18; U.S. Const. amend. 4.
2. Criminal Law.
Suppression issues present mixed questions of law and fact, and while the appellate court reviews the legal questions de novo, it
reviews the district court's factual determinations for sufficient evidence.
3. Arrest.
Search incident to arrest exception to warrant requirement did not apply under State Constitution to search conducted of
defendant's vehicle several minutes after he had been removed from vicinity of car and handcuffed in anticipation of transporting
him to police station for booking, despite the existence of probable cause to suspect that defendant was carrying drugs in vehicle.
Const. art. 1, 18.
4. Arrest.
Under Nevada Constitution, there must exist both probable cause and exigent circumstances for police to conduct a warrantless
search of an automobile incident to a lawful custodial arrest. Const. art. 1, 18.
5. Controlled Substances.
Police had probable cause to believe defendant's vehicle was subject to forfeiture, such that warrantless seizure of vehicle at time
of defendant's arrest was permissible under governing statute, where police had observed defendant sell drugs to informant three
times, and on at least two of those occasions, defendant arrived in his vehicle with the drugs in the vehicle with him. NRS
179.1165(2)(d).
6. Criminal Law.
Inevitable discovery rule provides that evidence obtained in violation of the Constitution can still be admitted at trial if the
government can prove by a preponderance of the evidence that the information ultimately or inevitably would have been
discovered by lawful means.
7. Criminal Law.
Drugs seized from defendant's vehicle during search that was not authorized under State Constitution's search incident to
arrest exception to warrant requirement were admissible under inevitable discovery rule. The evidence would have been recovered
when police performed inventory search of vehicle pursuant to established police policy following valid seizure of vehicle based
on probable cause to believe it was subject to forfeiture. Const. art. 1, 18; NRS 179.1165(2)(d).
OPINION
This is an appeal from a district court's judgment of conviction and sentence following
appellant Ruben Camacho's guilty plea.
1
Camacho argues on appeal that the district court
erred by denying his motion to suppress evidence seized from his vehicle following his arrest.
Specifically, he asserts that neither the search incident to arrest nor the inevitable discovery
exceptions excuses the police's warrantless search of his vehicle. We disagree and affirm
Camacho's conviction. The district court correctly denied Camacho's motion to suppress since
police would have discovered the evidence in a later inventory search of Camacho's vehicle,
and thus, the inevitable discovery exception applied.
FACTUAL HISTORY
The facts of this case are uncontested. From April 26, 2001, through May 16, 2001,
police conducted three undercover methamphetamine purchases from Camacho using a
confidential informant.
2
In each of the drug deals, the informant or police officers paged
Camacho and left a telephone number. Each time, Camacho called the number and negotiated
with the informant the purchase price and amount of drugs. Thereafter, the informant met
Camacho in a public place and exchanged money for the drugs.
__________

1
See NRS 177.015; NRS 174.035.

2
The drug purchases occurred on April 26, May 2, and May 16, 2001.
Camacho in a public place and exchanged money for the drugs. On at least two of the drug
purchases, Camacho arrived in his own vehicle with the drugs in his possession.
On May 17, 2001, police, through the informant, arranged to purchase one pound of
methamphetamine from Camacho at a Wal-Mart parking lot in Reno. Police planned to arrest
Camacho as soon as he entered the parking lot, to search and seize his vehicle, and institute
forfeiture proceedings against the vehicle. Police did not seek or obtain a search warrant for
the vehicle.
Camacho entered the parking lot in his vehicle at approximately 10:30 p.m. on May
17, 2001. He was alone. As planned, two marked police units stopped Camacho's vehicle as
he pulled into a marked parking space for Wal-Mart customers. Police removed him from his
vehicle, handcuffed him, and escorted him away from the car.
3

A few minutes later, Detective Timothy Kuzanek briefly searched the immediate
area of Camacho's vehicle without Camacho's consent. Detective Kuzanek recovered a white
plastic grocery bag beneath the driver's seat containing three smaller plastic bags filled with
an off-white, rocky, powdery substance. Later tests revealed the substance to be
methamphetamine. Following the search, police placed Camacho into a police vehicle and
transported him to jail. Police also seized Camacho's vehicle as planned and towed it away.
The next day, pursuant to department policy, Detective Richard Ayala conducted an
inventory search. Detective Ayala did not find any contraband in his search, but he included
all of the items found in the vehicle on an inventory search form.
PROCEDURAL HISTORY
Camacho waived his preliminary hearing and was bound over to answer in the district
court on four felony charges of trafficking in a controlled substance: three violations of NRS
453.3385(2) and one violation of NRS 453.3385(3). In the district court, Camacho filed a
motion to suppress the drugs seized from his car, which formed the basis for count four of the
information, the violation of NRS 453.3385(3).
In his motion, Camacho argued that a warrantless search of an automobile is justified
in Nevada only when (1) police have probable cause to believe the automobile contains
contraband, and (2) exigent circumstances exist to justify the search.
The State asserted that four separate exceptions to the warrant requirement obviated
the need for a warrant: (1) the automobile exception since there was probable cause to believe
contraband was in Camacho's vehicle and exigent circumstances existed; (2) the search
incident to arrest exception, based upon New York v. Belton;
__________

3
Camacho does not contest there was probable cause for his arrest.
ton;
4
(3) the inventory search exception;
5
and (4) the inevitable discovery exception, since
pursuant to the seizure of the vehicle for forfeiture, it would have been impounded and
subsequently searched.
On December 3, 2001, the district court held a hearing on Camacho's motion and
heard testimony from several police officers, as well as argument by counsel. Following the
hearing, the district court made several findings of fact: (1) police had probable cause to
arrest Camacho on May 17, 2001; (2) prior to the arrest, police could have obtained either an
anticipatory search warrant or a search warrant for Camacho's vehicle; and (3) police intended
to seize the vehicle for forfeiture when they arrested Camacho, based upon Camacho's prior
drug deals with the informant.
On the State's arguments, the district court concluded that: (1) the automobile
exception did not apply because there were no exigent circumstances which would excuse the
police's failure to obtain a search warrant;
6
(2) relying upon Belton, the State proved by clear
and convincing evidence that the police's search was properly conducted incident to a lawful
custodial arrest;
7
(3) the State proved by clear and convincing evidence that because the
vehicle was to be seized and inventoried, the contraband would have been inevitably
discovered, albeit the next day; and (4) the State proved by a preponderance of the evidence
that the inevitable discovery doctrine applied. The district court denied Camacho's motion to
suppress on the latter three grounds.
Following the suppression hearing, Camacho entered a negotiated plea to three counts
of trafficking in a controlled substance.
8
He reserved his right to appellate review of the
district court's rulings on his motion to suppress, which dealt only with count four of the
information.
The district court accepted the guilty plea and sentenced Camacho to concurrent
maximum prison terms of 84 months with minimum parole eligibility of 24 months for the
first two counts and a consecutive maximum prison term of 300 months with a minimum
parole eligibility of 120 months for the third count.
__________

4
453 U.S. 454 (1981).

5
The State argued this exception applied because police prepared an inventory, the search was pursuant to
police policy, and no evidence supported a conclusion that the police searched the car simply to circumvent
Camacho's rights.

6
The State has not argued on appeal that the district court erred in concluding that the automobile exception
does not apply to this case.

7
The district court concluded that the dicta in State v. Greenwald, 109 Nev. 808, 858 P.2d 36 (1993), stating
that the justification for a search incident to arrest evaporates when an arrestee is in handcuffs and away from the
place searched, was not controlling. The district court also concluded that because this court has never explicitly
rejected Belton's search warrant exception, Belton controlled and established a permissible exception to the
warrant requirement.

8
Camacho pleaded guilty to two counts of violating NRS 453.3385(2) and one count of violating NRS
453.3385(3).
mum parole eligibility of 120 months for the third count. Additionally, the court directed
Camacho to submit to DNA analysis testing and ordered him to pay: (1) a $2,000 fine; (2) a
$25 administrative assessment fee; (3) a $60 chemical analysis fee; and (4) a $150 DNA
testing fee. Camacho appeals his conviction, arguing that the district court erred in denying
the motion to suppress the drugs discovered in Camacho's vehicle.
DISCUSSION
[Headnotes 1, 2]
The Fourth Amendment to the United States Constitution and the Nevada
Constitution proscribe all unreasonable searches and seizures.
9
Warrantless searches are
per se unreasonable under the Fourth Amendment subject only to a few specifically
established and well delineated exceptions. '
10
Suppression issues present mixed
questions of law and fact. While this court reviews the legal questions de novo, it reviews the
district court's factual determinations for sufficient evidence.
11

On appeal, Camacho contends that the district court erred when it concluded that: (1)
the search incident to arrest exception applied pursuant to Belton; and (2) the inevitable
discovery exception applied because his vehicle was subject to forfeiture, and therefore, the
drugs would have been discovered during an inventory search.
Search incident to arrest
[Headnote 3]
Camacho contends that the search incident to arrest exception did not excuse the
police's failure to obtain a search warrant to search his vehicle. Specifically, he argues that
because police removed him from his vehicle several minutes before the search and he was
handcuffed and disarmed, he could neither destroy nor conceal evidence and police could not
rely on the search incident to arrest exception. The State contends that Belton authorized the
police's contemporaneous search of Camacho's vehicle.
[Headnote 4]
We agree with Camacho and elect to follow our previous cases where we rejected
Belton's reasoning
12
and followed the earlier United States Supreme Court case of Chimel
v. California.
__________

9
U.S. Const. amend. IV; Nev. Const. art. 1, 18; McMorran v. State, 118 Nev. 379, 382, 46 P.3d 81, 83
(2002).

10
Hughes v. State, 116 Nev. 975, 979, 12 P.3d 948, 951 (2000) (quoting Barrios-Lomeli v. State, 113 Nev.
952, 957, 944 P.2d 791, 793 (1997) (quoting Katz v. United States, 389 U.S. 347, 357 (1967))).

11
Johnson v. State, 118 Nev. 787, 794, 59 P.3d 450, 455 (2002).

12
See, e.g., State v. Harnisch, 113 Nev. 214, 223, 931 P.2d 1359, 1365-66 (1997) (Harnisch I) (stating that
search incident to arrest exception evolves from need to disarm and prevent destruction of evidence and, thus,
does not apply where person in custody and removed from vehicle); Greenwald, 109 Nev. at 809-10, 858 P.2d at
37 (same).
United States Supreme Court case of Chimel v. California.
13
We now conclude that, under
the Nevada Constitution, there must exist both probable cause and exigent circumstances for
police to conduct a warrantless search of an automobile incident to a lawful custodial arrest.
In light of our prior decisions holding that under the Nevada Constitution police may
not conduct a warrantless search of a vehicle, even if police may have probable cause to
believe that contraband is located therein, absent exigent circumstances,
14
it would be
inconsistent to now hold that police may, without a warrant, search a vehicle incident to a
lawful custodial arrest without exigent circumstances. Police might even be tempted to arrest
a person simply to conduct a warrantless search of that person's vehicle. The legislature has
provided an expedited procedure whereby police may obtain a warrant telephonically.
15
In
situations where no exigent circumstances exist, it is certainly reasonable to require that
police obtain a warrant prior to searching a vehicle. We have defined exigent circumstances
as those circumstances that would cause a reasonable person to believe that entry (or
other relevant prompt action) was necessary to prevent physical harm to the officers and other
persons, the destruction of relevant evidence, the escape of the suspect, or some other
consequence improperly frustrating legitimate law enforcement efforts. '
16

In the present case, the district court concluded that no exigent circumstances were
present. We will not disturb a district court's findings of fact in a suppression hearing if they
are supported by substantial evidence.
17
The record reveals that police removed Camacho
from the vicinity of his car, arrested him, placed him in handcuffs, and intended to transport
him to the police station for booking. Police then searched the car. It was extremely unlikely
that when the search occurred, Camacho could have reached a weapon in his vehicle or
destroyed or concealed evidence in his vehicle. Additionally, because police planned to seize
Camacho's vehicle, it was equally unlikely that an unknown third person could have either
removed the vehicle or removed evidence from within the vehicle.
__________

13
395 U.S. 752 (1969) (lawful custodial arrest justified contemporaneous warrantless search of arrestee and
immediate area; justification for warrantless search based upon need to remove weapons from arrestee and
prevent concealment or destruction of evidence, but that justification evaporates when police extend their search
to other areas).

14
See, e.g., State v. Harnisch, 114 Nev. 225, 227-29, 954 P.2d 1180, 1182-83 (1998) (Harnisch II) (while
federal law does not require exigent circumstances for application of automobile exception, Nevada Constitution
requires both probable cause and exigent circumstances).

15
See NRS 179.045.

16
Howe v. State, 112 Nev. 458, 466, 916 P.2d 153, 159 (1996) (quoting Doleman v. State, 107 Nev. 409,
414, 812 P.2d 1287, 1290 (1991) (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984))).

17
State v. McKellips, 118 Nev. 465, 469, 49 P.3d 655, 658-59 (2002).
the vehicle. Thus, we conclude that while police certainly had probable cause to suspect that
Camacho was carrying drugs in his vehicle when he was arrested, absent exigent
circumstances, they were not permitted to search his vehicle incident to his arrest without a
warrant.
18
Therefore, we conclude that the district court erred by applying the search incident
to arrest exception to admit the evidence seized from Camacho's car. However, this
conclusion does not end our analysis.
Seizure and inevitable discovery
Camacho argues that NRS 179.1165 (the civil forfeiture statute) does not provide an
exception to the warrant requirement. He further argues that because police knew from the
time of the first undercover drug deal they would eventually seize his vehicle, they should
have obtained a seizure warrant in the interim twenty-one days. Thus, the seizure of the
vehicle was infirm since there were no exigent circumstances to excuse the failure to obtain a
warrant. Because the initial seizure was invalid, argues Camacho, and therefore police would
not have conducted an inventory of his car, the State could not rely upon the inevitable
discovery rule to admit the evidence. The State contends that the seizure was proper because
Camacho used his vehicle to traffic a controlled substance and the drugs would have
inevitably been discovered in a later inventory search pursuant to established police policy.
NRS 179.1165(1) states that property that is subject to forfeiture may only be seized
by a law enforcement agency upon process issued by a magistrate having jurisdiction over the
property. However, section two of that statute delineates several exceptions to the
requirement of process. NRS 179.1165(2)(d) permits a seizure of property without process if
the law enforcement agency has probable cause to believe that the property is subject to
forfeiture. And NRS 453.301(5) provides for the forfeiture of vehicles used to transport
illegal substances.
19
Accordingly, in A 1983 Volkswagen v. County of Washoe,
__________

18
We expressly limit the scope of this opinion to whether police may, without a warrant, search a vehicle
incident to a lawful custodial arrest. This holding does not affect police's ability to search an arrestee's person
incident to arrest; this area is obviously within the arrestee's control. See, e.g., Carstairs v. State, 94 Nev. 125,
575 P.2d 927 (1978); Thomas v. Sheriff, 85 Nev. 551, 459 P.2d 219 (1969); Arabia v. State, 82 Nev. 453, 421
P.2d 952 (1966).

19
The following are subject to forfeiture pursuant to NRS 179.1156 to 179.119, inclusive:
. . . .
5. All conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to
transport, or in any manner to facilitate the transportation, concealment, manufacture or protection, for
the purpose of sale, possession for sale or receipt of property described in subsection 1 or 2.
v. County of Washoe,
20
this court examined NRS 453.306(2)(d) (the predecessor statute to
NRS 179.1165(2)(d)) and concluded that the warrantless seizure of a vehicle was proper
because police had probable cause to believe that the defendant used his vehicle to transport a
controlled substance.
[Headnote 5]
In the present case, police conducted a warrantless seizure of Camacho's vehicle
because they had probable cause to believe that Camacho used the vehicle to transport illegal
drugs. Police observed Camacho sell drugs to their informant three times. Camacho arrived in
his vehicle with the drugs in the vehicle with him. Therefore, the conduct of the police fell
within the language of NRS 179.1165(2)(d).
Additionally, police conducted a legitimate inventory search of Camacho's vehicle
following its seizure. Police towed the vehicle from the Wal-Mart parking lot and conducted
an inventory search the next day pursuant to police policy.
21

[Headnote 6]
The inevitable discovery rule provides that evidence obtained in violation of the
Constitution [can] still be admitted at trial if the government [can] prove by a preponderance
of the evidence that the information ultimately or inevitably would have been discovered by
lawful means. '
22
In Carlisle v. State,
23
this court concluded that, even assuming an
initial search of a vehicle was illegal, the evidence obtained from the search was nevertheless
admissible under the inevitable discovery rule.
24
We reasoned that because police arranged
to tow the vehicle from the place where they arrested the defendant, they would have been
justified in conducting a later legitimate inventory search during which they would have
found the same evidence.
25

[Headnote 7]
Here, if police did not recover the contraband in their initial search, they would have
recovered it during their later inventory search. Thus, the drugs seized from Camacho's car
would have been admissible under the inevitable discovery rule. Since police would have
inevitably discovered the drugs when they performed an inventory search of Camacho's
vehicle pursuant to established police policy following seizures,
__________

20
101 Nev. 222, 699 P.2d 108 (1985).

21
See Weintraub v. State, 110 Nev. 287, 288, 871 P.2d 339, 340 (1994) ([I]nventory search must be carried
out pursuant to standardized official department procedures and must be administered in good faith in order to
pass constitutional muster.).

22
Proferes v. State, 116 Nev. 1136, 1141, 13 P.3d 955, 958 (2000) (quoting United States v. Lang, 149 F.3d
1044, 1047 (9th Cir. 1998) (quoting Nix v. Williams, 467 U.S. 431, 444 (1984))).

23
98 Nev. 128, 642 P.2d 596 (1982).

24
Id. at 130, 642 P.2d at 598.

25
Id.
an inventory search of Camacho's vehicle pursuant to established police policy following
seizures, the district court did not err by admitting the evidence under this exception to the
warrant requirement.
CONCLUSION
We conclude that the district court erred by relying upon Belton to justify a
warrantless search incident to arrest. Consistent with our prior decisions, we hold that the
Nevada Constitution requires both probable cause and exigent circumstances to justify a
warrantless search of an automobile incident to a lawful custodial arrest. However, the district
court properly concluded that the evidence seized from the vehicle was admissible under the
inevitable discovery exception to the warrant requirement. Therefore, we affirm Camacho's
conviction and sentence.
Gibbons, J., concurs.
Maupin, J., concurring in part and dissenting in part:
The majority correctly concludes under this court's Harnisch decisions
1
that the
district court improperly applied New York v. Belton.
2
However, consistent with my dissent
in Barrios-Lomeli v. State,
3
I would adopt Belton as the rule in Nevada and dispense with
the exigent circumstances prong for warrantless searches of automobiles incident to lawful
arrest. Belton provides a bright-line guidance for police conduct, simply that police may
search the passenger compartment of a vehicle incident to a lawful custodial arrest. As the
Belton Court noted:
[T]he protection of the Fourth and Fourteenth Amendments can only be realized if the
police are acting under a set of rules which, in most instances, makes it possible to
reach a correct determination beforehand as to whether an invasion of privacy is
justified in the interest of law enforcement.
4

Notwithstanding my belief that this court should adopt Belton, I reach the same result
as the majority. The district court properly ruled that the evidence seized from Camacho's
vehicle was admissible under the inevitable discovery doctrine.
__________

1
State v. Harnisch, 113 Nev. 214, 931 P.2d 1359 (1997), clarified on rehearing, 114 Nev. 225, 954 P.2d
1180 (1998).

2
453 U.S. 454 (1981).

3
113 Nev. 952, 959, 944 P.2d 791, 795 (1997) (Maupin, J., dissenting), rehearing denied, 114 Nev. 779, 961
P.2d 750 (1998).

4
Belton, 453 U.S. at 458 (quoting Wayne R. LaFave, Case-By-Case Adjudication Versus Standardized
Procedures: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142).
__________
119 Nev. 404, 404 (2003) Dayside Inc. v. Dist. Ct.
DAYSIDE INC., a Nevada Corporation, Petitioner, v. THE FIRST JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for CARSON CITY, and THE
HONORABLE WILLIAM A. MADDOX, District Judge, Respondents, and
PARKWAY MANOR INC., a Nevada Corporation, Real Party in Interest.
No. 40580
August 29, 2003 75 P.3d 384
Original petition for a writ of mandamus or certiorari challenging a district court order
that granted partial summary judgment and dismissed petitioner's mechanic's lien.
General contractor brought action against property owner to foreclose mechanic's lien
despite contractual waiver of lien rights. The district court granted partial summary judgment
dismissing the lien. Contractor filed petition for writ of mandamus or certiorari. The supreme
court held that: (1) as a matter of first impression, the waiver did not violate public policy;
and (2) consideration supported it.
Petition denied.
Richard G. Hill, Reno, for Petitioner.
Hale Lane Peek Dennison & Howard and Jerry M. Snyder, Reno, for Real Party in
Interest.
1. Mandamus.
A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office,
trust, or station or to remedy a manifest abuse of discretion. NRS 34.160.
2. Administrative Law and Procedure; Certiorari.
A writ of certiorari serves to remedy jurisdictional excesses committed by an inferior tribunal, board, or officer, exercising
judicial functions. NRS 34.020(2).
3. Certiorari; Mandamus.
Writs of mandamus and certiorari are extraordinary remedies generally unavailable if the petitioner has a plain, speedy and
adequate legal remedy, such as an appeal from a final judgment. NRS 34.020(2), 34.160.
4. Certiorari; Mandamus.
Even when an appeal is an adequate remedy, the supreme court may nevertheless exercise its discretion to consider issuing a
writ of mandamus or certiorari if an important issue of law needs clarification, and public policy will be served by court's
invocation of its original jurisdiction.
General contractor's waiver of rights to mechanic's lien or materialman's lien did not violate public policy where legislature was
silent on validity of waiver.
Absent a prohibitive legislative proclamation, a waiver of mechanic's lien rights is not contrary to public policy.
Property owner's failure to make the final payments was not a failure of consideration and did not make general contractor's
waiver of mechanic's lien rights unenforceable.
Property owner's alleged breach of contract by failing to pay for work performed had no effect on validity of general contractor's
waiver of mechanic's lien rights.
A mechanic's lien, once waived, cannot be revived by the owner's failure to abide by other independent covenants in the
contract.
10. Contracts.
A project owner's inadequate payment to a general contractor is an event anticipated by the parties to the contract, rather than a
failure of consideration.
Mutual promises of general contractor and property owner regarding construction of building and payment were consideration
supporting contractor's waiver of its mechanic's lien rights.
The real consideration which moves a contractor to waive its lien rights is the expectation that the property owner will be put in
funds out of which the contractor hopes to be paid.
OPINION
1

Per Curiam:
This original petition for a writ of mandamus or certiorari challenges a district court
order that granted the real party in interest partial summary judgment on petitioner's
mechanic's lien foreclosure claim for relief and dismissed the accompanying lien. The district
court ruled that a construction contract executed by petitioner and the real party in interest
contained an enforceable mechanic's lien waiver provision. Petitioner now seeks a writ of
mandamus or certiorari directing the district court to reverse the partial summary judgment
and restore the mechanic's lien.
We conclude that contractual lien waiver provisions do not violate public policy, that
the waiver present in this case was supported by the contract's terms, and that the
voluntariness of petitioner's waiver is beyond our review.
__________

1
In January 2003, we resolved this case in an unpublished order denying writ relief. Subsequently, petitioner
Dayside Inc. moved to publish the decision as an opinion. We grant the unopposed motion and issue this opinion
in place of our unpublished order.
ported by the contract's terms, and that the voluntariness of petitioner's waiver is beyond our
review. Therefore, we deny the petition, as the district court did not abuse its discretion in
entering partial summary judgment and dismissing the lien.
FACTS
In May 1999, petitioner Dayside Inc. and real party in interest Parkway Manor Inc.
executed a pre-printed form contract requiring Dayside to construct an apartment building on
Parkway's real property. Parkway agreed to pay Dayside a total of $9,165,226 in monthly
installments, and Dayside agreed, among other things, that it would
not file a mechanic's or materialman's lien or maintain any claim against [Parkway's]
real estate or improvements . . . on account of any work done, labor performed or
materials furnished under this Contract . . . .
The parties crossed out language imposing the lien waiver on subcontractors, and then wrote
that Dayside's waiver of lien rights was valid to the extent such waiver is in accordance with
Nevada law.
According to Dayside, after Parkway refused to pay Dayside large sums of money
owed, Dayside recorded a mechanic's lien and later joined a subcontractor in litigation
already underway against Parkway. Dayside apparently pleaded various contract and tort
claims for relief against Parkway, including one seeking to foreclose the mechanic's lien.
In June 2002, the district court granted Parkway partial summary judgment, ruling that
the contract's lien-waiver provision was clear and not contrary to Nevada law. The district
court then ordered Dayside's mechanic's lien dismissed. In December 2002, Dayside filed in
this court the instant petition for a writ of mandamus or certiorari, challenging the partial
summary judgment and dismissal.
DISCUSSION
[Headnotes 1-4]
A writ of mandamus is available to compel the performance of an act that the law
requires as a duty resulting from an office, trust or station,
2
or to remedy a manifest abuse of
discretion.
3
A writ of certiorari, on the other hand, serves to remedy jurisdictional excesses
committed by an inferior tribunal, board, or officer, exercising judicial functions.
__________

2
NRS 34.160.

3
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981).
cising judicial functions.
4
Writs of mandamus and certiorari are extraordinary remedies
generally unavailable if the petitioner has a plain, speedy and adequate legal remedy, such as
an appeal from a final judgment.
5
Here, Dayside could challenge the partial summary
judgment and the dismissal of its mechanic's lien following the entry of a final judgment that
resolves all of the parties' claims for relief.
6
But even when an appeal is an adequate remedy,
this court may nevertheless exercise its discretion to consider issuing a writ of mandamus or
certiorari if an important issue of law needs clarification, and public policy will be served by
this court's invocation of its original jurisdiction.
7

Dayside argues that this court should consider the instant writ petition because
whether a contractor may waive its mechanic's lien rights is an issue of first impression in
Nevada. Dayside elaborates that the issue involves an important public policy of this state,
specifically, the protection of materialmen and laborers. Because this petition raises an issue
of first impression involving the public policy of this state, we shall exercise our discretion to
consider the petition.
Dayside does not complain that the district court lacked jurisdiction to dismiss its lien
by partial summary judgment. Thus, we review the dismissal for a manifest abuse of
discretion.
8

[Headnotes 5, 6]
The district court dismissed Dayside's lien based on the lien-waiver provision
contained in its construction contract with Parkway. Dayside argues that any provision in a
contract waiving a contractor's mechanic's lien rights is void as against public policy. It is
well settled in other states, though, that a clear and unambiguous provision in a contract
whereby a contractor waives his rights to a mechanic's lien or agrees not to file a lien is valid
and binding and will preclude the contractor from asserting a right to a lien.
__________

4
NRS 34.020(2).

5
NRS 34.020(2); NRS 34.170; State of Nevada v. Dist. Ct. (Ducharm), 118 Nev. 609, 614, 55 P.3d 420, 423
(2002) (mandamus); Dangberg Holdings v. Douglas Co., 115 Nev. 129, 137-38, 978 P.2d 311, 316 (1999)
(certiorari); Karow v. Mitchell, 110 Nev. 958, 962, 878 P.2d 978, 981 (1994) (denying a petition for a writ of
mandamus or prohibition because the petitioner had taken an appeal from the challenged order).

6
See Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998).

7
See Diaz v. Dist. Ct., 116 Nev. 88, 93, 993 P.2d 50, 54 (2000).

8
Dangberg Holdings, 115 Nev. at 138, 978 P.2d at 316 (observing that, on a petition for writ of certiorari, if
the challenged act was within the tribunal's jurisdiction, this court's review ends even if the act was erroneous);
Round Hill, 97 Nev. at 603-04, 637 P.2d at 536 (stating that mandamus relief is not available absent a manifest
abuse of discretion).
a lien.
9
Some state legislatures have declared a lien waiver to be against public policy.
10
But other state legislatures have expressly permitted waivers.
11
Nevada's legislative
enactments are silent on the subject.
12
Absent a prohibitive legislative proclamation, a
waiver of mechanic's lien rights is not contrary to public policy.
13

[Headnotes 7-10]
Dayside further argues that the waiver here is unenforceable because there was a
failure of consideration when Parkway failed to make the final payments. But even if
Parkway breached the contract in regard to payment for work performed, that has no effect on
the lien-waiver provision because a mechanic's lien, once waived, cannot be revived by the
owner's failure to abide by other independent covenants in the contract.
14
A waiver
provision merely limits the avenues available to a contractor to collect for expended materials
or labor in the event the owner fails to pay.
15
Thus, an owner's inadequate payment is an
event anticipated by the parties to the contract, rather than a failure of consideration.
16

__________

9
J. A. Bock, Annotation, Validity and Effect of Provision in Contract Against Mechanic's Lien, 76 A.L.R.2d
1087, 1089 (1961); see, e.g., Durant Const., Inc. v. Gourley, 336 N.W.2d 856 (Mich. Ct. App. 1983); see also
Landvatter Ready Mix, Inc. v. Buckey, 963 S.W.2d 298, 301 (Mo. Ct. App. 1997) (recognizing that [i]t has
long been the rule that a mechanic's lien claim may be waived).

10
See, e.g., 770 Ill. Comp. Stat. Ann. 60/1.1 (West 2001) (An agreement to waive any right to enforce or
claim any lien under this Act where the agreement is in anticipation of and in consideration for the awarding of a
contract or subcontract, either express or implied, to perform work or supply materials for an improvement upon
real property is against public policy and unenforceable.).

11
See, e.g., 49 Pa. Cons. Stat. Ann. 1401 (West 2001) (A contractor or subcontractor may waive his right
to file a claim by a written instrument signed by him or by any conduct which operates equitably to estop such
contractor or subcontractor from filing a claim.).

12
Senate Bill 206 was enacted on June 10, 2003, and strictly circumscribes attempts to waive or impair the
lien rights of a contractor, subcontractor or supplier. See S.B. 206, 26, 72d Leg. (Nev. 2003). This provision
applies, however, only to agreements consummated on or after October 1, 2003. Id. 59.

13
53 Am. Jur. 2d Mechanics' Liens 331 (1996); see, e.g., Port City Construction Co. v. Adams &
Douglass, Inc., 273 A.2d 121, 122 (Md. 1971).

14
Bock, supra note 9, at 1089; see also 56 C.J.S. Mechanics' Liens 254, at 291 (1992) (stating that where
the right to a mechanic's lien is absolutely waived by the contract, the binding effect of such waiver is not
defeated by the owner's failure to comply with his own independent covenants and agreements).

15
Pero Bldg. Co., Inc. v. Smith, 504 A.2d 524, 527 (Conn. App. Ct. 1986); see also 56 C.J.S. Mechanic's
Liens 252, at 288 (1992) (When a contractor waives his right to a lien, he agrees not to rely on the statutory
remedy, but to rely only on his common-law remedies against the owner of the property.).

16
See Pero, 504 A.2d at 527.
[Headnotes 11, 12]
Additionally, Dayside seems to contend that there was no consideration to support the
waiver in the first place. But the contract between Dayside and Parkway involved promises by
both partiesDayside promised to construct the apartment building and Parkway promised to
pay for that constructionand mutual promises have long been held sufficient consideration
to support a contract.
17
The waiver provision was a bargained for part of that contract.
18
And, as explained by the Connecticut Supreme Court, the real consideration which moves a
contractor to waive its lien rights is the expectation that [the property owner] will be put in
funds out of which [the contractor] hopes to be paid.
19
Thus, consideration supported
Dayside's waiver of its mechanic's lien rights.
Dayside finally argues that its waiver of lien rights was involuntary because the
resulting risk was unknown, unquantified and . . . potentially the price of the entire job. But
the waiver provision appears clear in its prohibition against mechanic's liens for any labor
or materials expended on the project. Further, the parties acknowledged the lien waiver when
they wrote into the preprinted form contract that the waiver is valid to the extent permitted by
Nevada law. In any event, Dayside did not make its argument to the district court, and did not
proffer any testimony from Dayside's president, who signed the contract, regarding his
understanding of the waiver provision. This court is ill-equipped to determine in the first
instance whether the waiver was knowingly and voluntarily granted.
20

CONCLUSION
Dayside has not demonstrated that the partial summary judgment dismissing its
mechanic's lien was an extra-jurisdictional act or a manifest abuse of discretion warranting
extraordinary relief. Accordingly, we deny Dayside's petition for a writ of mandamus or
certiorari.
__________

17
See Pink v. Busch, 100 Nev. 684, 688, 691 P.2d 456, 459 (1984).

18
See G. R. Sponaugle & Sons, Inc. v. McKnight Const. Co., 304 A.2d 339, 344 (Del. Super. Ct. 1973)
(observing that the consideration underlying a provision waiving lien rights in a construction contract is the same
consideration supporting the entire contract, and stating that [n]o single clause of the contract should be tested
separately to determine whether an item of consideration can be identified specially with that clause); Torres v.
Meyer Paving Co., 423 N.E.2d 692, 696 (Ind. Ct. App. 1981) (finding a no-lien agreement supported by the
consideration underlying the parties' contemporaneous construction contract).

19
Bialowans v. Minor, 550 A.2d 637, 639 (Conn. 1988) (quotation and emphasis omitted).

20
See Round Hill, 97 Nev. at 604, 637 P.2d at 536 (stating that an appellate court is not an appropriate forum
in which to resolve factual issues).
__________
119 Nev. 410, 410 (2003) West v. State
BROOKEY LEE WEST, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38696
September 8, 2003 75 P.3d 808
Appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree
murder. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
The supreme court held that: (1) circumstantial evidence that victim died as result of
criminal act was sufficient to support conviction, (2) charging information provided
defendant with adequate notice of State's theory of murder, and (3) admission of photographs
was not abuse of trial court's discretion.
Affirmed.
Marcus D. Cooper, Public Defender, and Scott L. Coffee, Deputy Public Defender,
Clark County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney,
and Frank J. Coumou and James Tufteland, Chief Deputy District Attorneys, Clark County,
for Respondent.
1. Homicide.
Circumstantial evidence creating reasonable inference that victim died as result of criminal act rather than natural causes was
sufficient to support murder conviction, despite inability to determine actual cause of victim's death; victim disappeared without
notice to friends or neighbors, victim's body was discovered in a garbage can sealed with great effort to make it airtight and
located in storage unit that defendant rented, defendant admitted to putting victim's body in garbage can, and plastic bag covered
victim's nose and mouth.
2. Homicide.
To prove that a murder has been committed, the State must demonstrate: (1) the fact of death, and (2) that death occurred by
criminal agency of another.
3. Homicide.
At trial in a murder prosecution, the State bears the burden of establishing the corpus delicti beyond a reasonable doubt, based
on direct or circumstantial evidence.
4. Homicide.
State may establish corpus delicti in a murder prosecution solely with circumstantial evidence, notwithstanding the lack of a
body or lack of evidence of the actual cause of death due to decomposition or dismemberment of the body.
5. Homicide.
Charging document providing that charged murder occurred sometime in specified year and by means of suffocation,
asphyxiation, or manner or means unknown provided defendant with adequate notice of State's theory of murder, where victim's
body was severely decomposed when discovered.
119 Nev. 410, 411 (2003) West v. State
6. Indictment and Information.
Under the Sixth Amendment to the United States Constitution, the State is required to inform a defendant of the nature and
cause of the accusation against the defendant. U.S. Const. amend. 6.
7. Indictment and Information.
Information must specify the means by which the charged offense was committed or allege that the means are unknown. NRS
173.075(2).
8. Criminal Law.
The supreme court will not disturb a district court's decision to admit photographic evidence unless the district court abused its
discretion.
9. Criminal Law.
Admission in murder prosecution of two photographs of murder victim's head was not abuse of trial court's discretion;
photographs only showed victim's head, and were shown to aid jury in understanding how plastic bag was tied around victim's
face and what parts of victim's face were covered by bag. NRS 48.035(1).
10. Criminal Law.
Admission in murder prosecution of photograph of victim while alive was not abuse of trial court's discretion. Although
relevance was questionable, it was reasonable for jury to see victim alive because her body was severely decomposed at time it was
found. NRS 48.035(1).
OPINION
Per Curiam:
Brookey West was charged with and convicted of murdering her mother, Christine
Smith. West was sentenced to life in prison without the possibility of parole. West contends
that (1) there was insufficient evidence of criminal agency, (2) the charging information was
vague, (3) the district court erroneously admitted gruesome photographic evidence, and (4)
the prosecutor committed misconduct during closing argument. We conclude that West's
contentions lack merit and therefore affirm.
FACTS
On February 5, 2001, Bill Unruh, general manager of Canyon Gate Mini Storage in
Las Vegas, sensed a foul smell emanating from storage unit 317. After opening the unit,
Unruh observed a garbage can with a substance oozing out. Based on the foul smell and his
observations, Unruh called the police. When the police arrived, Unruh informed them that
West and Smith rented unit 317 on June 26, 1998.
Joseph Matvay, a crime scene analyst, described the foul smell emanating from unit
317 as the unmistakable smell of death. Inside unit 317, Matvay observed a substance
seeping out from the side of a green garbage can and a wet stain underneath the garbage
can.
119 Nev. 410, 412 (2003) West v. State
side of a green garbage can and a wet stain underneath the garbage can. Matvay conducted a
presumptive blood test on the wet stain, and the test was positive. Based on the test results,
Detective Todd Rosenberg secured a telephonic search warrant for unit 317. Thereafter,
Matvay opened the garbage can, which was secured with several strips of duct tape, garbage
bags and cellophane wrap. Matvay opined that the garbage can was sealed with great effort to
make it airtight.
Upon cutting the duct tape and wrapping from the garbage can, fluid began seeping
out, along with dead maggots. Once the garbage can was open, Matvay observed a human
form in advanced stages of decomposition at the bottom of the garbage can. He also observed
a white plastic bag covering the face, which was knotted at the back of the head. Matvay
impounded the wrapping and duct tape, while the garbage can containing the human form
was transported to the coroner's office. The wrapping and duct tape were processed for
fingerprints; Joel Geller, latent print examiner, found a fingerprint on the cellophane wrap,
which matched West's fingerprints.
In searching unit 317, Detective David Mesinar found Smith's wallet containing her
identification, prescription information, and a document regarding authorization of social
security payments. Based on dental records, the coroner confirmed that Smith's body was in
the garbage can.
Shortly thereafter, Detective Mesinar obtained a search warrant for West's apartment.
In searching West's apartment, Detective Mesinar found Smith's bank statements. During his
investigation, Detective Mesinar determined that there were numerous ATM withdrawals on
Smith's bank account after February 1998, when Smith was last seen alive.
West was arrested on the evening of February 5, 2001. On April 26, 2001, West was
charged with murdering Smith, her 64-year-old mother, sometime in 1998 by asphyxiation,
suffocation, or manner or means unknown.
Before trial, the district court held a Petrocelli
1
hearing. After the hearing, the district
court ruled that evidence that West had accessed Smith's bank account was admissible
because it was relevant to prove motive. The district court also ruled that the State could not
present evidence that West possibly accessed her brother's and father's bank accounts.
However, the district court allowed the admission of a letter that West sent to the Social
Security Administration requesting that the social security checks of Travis Smith Jr., West's
brother, be directly deposited into his bank account for the limited purpose of showing that
West knew her brother was a recluse.
__________

1
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
119 Nev. 410, 413 (2003) West v. State
Also before trial, West filed several motions in limine, including among other things,
a motion to exclude photographs of the decomposed body and to strike the language in the
charging information, manner and means unknown. The district court denied both motions.
A jury trial commenced on July 3, 2001. Gary Telgenhoff, M.D., a forensic
pathologist, testified that he conducted Smith's autopsy. Dr. Telgenhoff testified that Smith's
body was so decomposed that the majority of it was covered with a waxy, cheese-like
material, which is known as adipocere. He explained that adipocere is decomposition material
produced from the breakdown of body fats and fatty acid. He maintained that the finding of
adipocere was consistent with Smith's body being kept in a sealed container. He explained
that it takes a minimum of six months to produce adipocere and opined that Smith's body had
been in the garbage can for longer than six months. Notably, based on the maggots found
inside the garbage can, Neal Haskell, Ph.D., a forensic entomologist, opined that Smith's
body was placed inside the garbage can within eight hours of death.
Dr. Telgenhoff testified that when he removed the clothing from Smith's body, he
observed that the clothing was not ripped or damaged. After removing the clothing, Dr.
Telgenhoff took x-rays, which revealed that Smith had osteoporosis.
Dr. Telgenhoff testified that a white plastic bag covered Smith's nose and mouth.
Robbie Dahn, a crime scene analyst, testified that the plastic bag covered Smith's face from
the bridge of her nose to her chin. Dahn explained that the plastic bag was tied in a knot
behind Smith's head at the base of her neck. Dr. Telgenhoff recovered a long hair within the
knot, which according to Dr. Telgenhoff, possibly indicated that the knot was tied in haste.
Dr. Telgenhoff testified that the plastic bag was tightly tied and that it would have been even
tighter before decomposition. He could not testify whether the plastic bag was placed on
Smith's face before or after her death, and he could not rule out the possibility that the plastic
bag originally covered Smith's eyes and slipped down because of decomposition.
John Haitt testified that he tested Smith's brain for drugs, and the test was negative.
However, Haitt explained that the sample was in poor condition for testing purposes because
Smith's brain was liquid.
Dr. Telgenhoff opined that the cause and manner of Smith's death were undetermined.
He explained that there were no remaining physical findings to suggest why or how Smith
died. However, regarding the State's theory of suffocation, Dr. Telgenhoff opined that the
finding of the plastic bag covering Smith's face was consistent with suffocation. Dr.
Telgenhoff explained that it is difficult to prove suffocation,
119 Nev. 410, 414 (2003) West v. State
difficult to prove suffocation, but in doing so, he looks for petechial hemorrhage in the
eyesred dots on the whites of the eyesor for pressure marks on the skin or bruising.
Because Smith's body was severely decomposed, with no details of her eyes remaining and no
tissue on Smith's body, Dr. Telgenhoff stated that he could not make the determination of
cause of death by suffocation. Additionally, regarding the State's theory of asphyxiation, Dr.
Telgenhoff stated that it was possible that Smith was placed in the airtight garbage can alive.
Because the cause and manner of death were undetermined, Dr. Telgenhoff opined
that Smith's death was also consistent with natural causes. Dr. Telgenhoff testified that after
Smith was identified, he reviewed her medical records; however, he did not study them in
detail. He explained that nothing in Smith's medical records provided any reason for a
possible cause of death. He stated that there was nothing that indicated heart disease, but he
maintained that he could not rule out a possible heart attack. Dr. Telgenhoff acknowledged
that Smith had asthma and that she had a lung age of 132 years.
Judy Zito-Pry, a nurse practitioner, testified regarding Smith's medical history.
Zito-Pry treated Smith on several occasions, beginning on April 1, 1997. During Smith's first
visit, Smith informed Zito-Pry that she had a history of asthma; a past history of smoking; and
currently was having memory problems. Zito-Pry explained that in January 1997, Smith had a
lung age of 132 years, and in April 1997, Smith's lung age improved to 102 years. Zito-Pry
testified that she prescribed Smith two inhalers for her asthma, Maxair and Vanceril. Zito-Pry
acknowledged that Maxair can cause heart irregularities and death, but maintained that those
are the worst-case scenarios. Zito-Pry opined that based on Smith's last visit, January 5, 1998,
Smith was basically in good health.
James Anthony, M.D., a local physician, testified on behalf of West as an expert in the
area of asthma. Dr. Anthony reviewed Smith's medical records, observing that Smith had a
moderate obstruction in her lungs. However, because Smith's medical records were deficient,
Dr. Anthony could not opine with certainty the condition of Smith's health, but indicated that
Smith was not in good health. Dr. Anthony explained that asthma is a serious disease, as
5,000 people die every year from asthma. He also testified regarding the side effects of
Maxair, explaining that it is very rare that asthma patients die from Maxair.
Several witnesses testified regarding West's interactions with Smith. Gwen Reese,
former manager of the apartments where Smith lived, testified that West lived with Smith a
few months out of the year. She testified that West and Smith had a good mother-daughter
relationship. She testified that her records indicated that Smith moved out of her apartment in
June 1998. Reese stated that West informed her that she had taken Smith to California to
live with Travis Smith Jr.
119 Nev. 410, 415 (2003) West v. State
West informed her that she had taken Smith to California to live with Travis Smith Jr.
Judy Chang, Smith's former neighbor, testified that she last saw Smith in February
1998. Based on her observations, Chang opined that Smith and West had a close relationship.
Chang testified that three days after she last saw Smith, West informed her that Smith went to
live with Travis Jr. in California. Chang stated that when she helped West move out of
Smith's apartment after Smith was gone, she observed that Smith left behind a valuable ring
and her wool cap that she wore every day.
Another former neighbor, Tyra Teber, testified that she talked to West regarding
Smith's absence. Teber told West that Smith's friends were worried, and asked West why
Smith had not written or called. West informed Teber that Smith was fine and that she did not
know why her mother had not written or called. Teber testified that she never observed any
problems between Smith and West. Notably, other witnesses testified that West had a strained
relationship with Smith, calling her mother controlling and a sociopath.
Alice Wilsey, Smith's friend and neighbor, testified that she last saw Smith in
February 1998. Wilsey testified that when she last saw Smith, Smith was very ill and
lethargic. She explained that during her visit, West gave Smith several pills, calling them
aspirin. Also, during her visit, Smith told Wilsey that she was going to live with her son
Travis Jr. in California, and according to Smith, Travis Jr. lived with a girlfriend in an
apartment. Wilsey recalled that Smith previously informed her that Travis Jr. was a homeless
drug addict. Several investigators of the Clark County District Attorney's Office testified that
they could not locate Travis Jr.
West did not testify at trial. However, West's counsel stipulated that West admitted to
placing her mother's body in the garbage can.
On July 19, 2001, the jury found West guilty of first-degree murder. Thereafter, West
was sentenced to life in prison without the possibility of parole.
DISCUSSION
Sufficient evidence of criminal agency
[Headnote 1]
West contends that there was insufficient evidence adduced at trial to establish that
Smith died as the result of a criminal act rather than natural causes. Accordingly, West asserts
that her murder conviction must be reversed. We disagree.
[Headnotes 2, 3]
The corpus delicti rule in Nevada is well established. To prove that a murder has been
committed, the State must demonstrate: (1) the fact of death, and (2) that death occurred by
criminal agency of another.
119 Nev. 410, 416 (2003) West v. State
agency of another.
2
At trial, the State bears the burden of establishing the corpus delicti
beyond a reasonable doubt, based on direct or circumstantial evidence.
3
When reviewing the
sufficiency of the evidence, we consider whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.'
4
West argues that there was less proof of
death by criminal agency in her case than in the previous cases in which this court reversed
based on insufficient evidence of corpus delicti, namely, Frutiger v. State,
5
Hicks v. Sheriff,
6
and Azbill v. State.
7

In Frutiger, the State presented the following evidence to demonstrate corpus delicti.
8
A motel manager, Linda Walker, received a complaint from a tenant regarding a foul odor
emanating from Peggy Poulter's motel room. Walker knocked on Poulter's door and Frutiger
answered. In response to Walker's request to investigate the source of the foul odor, Frutiger
stated that Peggy was in the shower.
9
After Frutiger left Poulter's motel room, Walker
entered the room, observing a putrid smell.
10
Walker also observed that the shower was
running, but no one was in the shower, and further observed that the room was filled with
garbage bags and flies. Walker opened the closet door, observing a large object with garbage
bags at each end. Following this discovery, Walker called the police. Inside the closet, the
police found Poulter's nude body, which had been wrapped in a blanket and garbage bags,
along with a dead cat. The police also found Poulter's purse, noticing that her driver's license,
credit cards and checks were missing. At trial, the pathologist could not determine the cause
of death because of the advanced state of decomposition of the body. Medical evidence
revealed that Poulter had hardened arteries, a fatty liver, and a blood alcohol level of .341.
The pathologist opined that Poulter could have died from the blood alcohol level, heart
disease, cirrhotic liver, or strangulation. The pathologist noted, however, that specific signs of
strangulation could not be found because the body was severely decomposed.
On appeal, we noted that if evidence showed that Poulter's death was caused by the
criminal agency of another, there was sufficient circumstantial evidence that Frutiger
committed the criminal act,
__________

2
Tabish v. State, 119 Nev. 293, 312, 72 P.3d 584, 596 (2003).

3
Id.

4
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).

5
111 Nev. 1385, 907 P.2d 158 (1995).

6
86 Nev. 67, 464 P.2d 462 (1970).

7
84 Nev. 345, 440 P.2d 1014 (1968).

8
Frutiger, 111 Nev. at 1386-88, 907 P.2d at 158-60.

9
Id. at 1386, 907 P.2d at 159.

10
Id.
119 Nev. 410, 417 (2003) West v. State
circumstantial evidence that Frutiger committed the criminal act, namely, hiding Poulter's
body, driving her car, and using her ATM card to withdraw money from her bank account.
11
However, we stated that the issue of whether there was sufficient evidence linking Frutiger to
Poulter's death should never have been reached by the jury because the issue of whether
Poulter's death was caused by the criminal agency of another was not established beyond a
reasonable doubt in light of the medical evidence adduced at trial.
12

In Hicks, Harvey Hicks was charged with the murder of Glen Christiernsson, but after
a preliminary hearing, the charge was dismissed because the State failed to present sufficient
evidence of the corpus delicti to sustain the charge.
13
Thereafter, the State filed a petition for
leave to file an information against Hicks, supporting its petition with the testimony from the
preliminary hearing and an affidavit from a cellmate to whom Hicks allegedly confessed the
crime.
14
The district court granted the State's petition, but we reversed on appeal.
We first noted that the corpus delicti must be established before evidence of a
confession or admission may be considered to prove that the accused was the criminal agency
that caused the victim's death.
15
Recognizing this, we concluded that, although Hicks
allegedly confessed to his cellmate, the following evidence was insufficient to establish that a
criminal agency caused Christiernsson's death: Christiernsson and Hicks were seen together
shortly before Christiernsson disappeared; Christiernsson's partially clothed body was later
discovered in the desert; Hicks' behavior at the time of his arrest; and Hicks was driving
Christiernsson's car when Hicks was arrested.
16

In Azbill, we evaluated the pretrial evidence of death by criminal agency, and
concluded that the State failed to prove the corpus delicti; thus, there was no probable cause
to hold Sylvester Azbill over for trial on a charge of murdering his wife.
17
The State
presented evidence that Azbill set his wife's bed on fire while she was in it, yet the corpus
delicti was not proven in light of the medical testimony, which demonstrated that Azbill's
wife was dead before the fire, likely from alcohol or drugs, as she had not inhaled smoke.
18

__________

11
Id. at 1390, 907 P.2d at 161.

12
Id. at 1390-91, 907 P.2d at 161.

13
86 Nev. at 67-68, 464 P.2d at 463.

14
Id. at 68, 464 P.2d at 463.

15
Id. at 69, 464 P.2d at 464.

16
Id.

17
84 Nev. at 352-53, 440 P.2d at 1019.

18
Id. at 353, 440 P.2d at 1019.
119 Nev. 410, 418 (2003) West v. State
[Headnote 4]
We disagree with West that the above cases support her contention that there was
insufficient evidence of corpus delicti in the instant case, especially in light of our recent
decision in Middleton v. State.
19
In Middleton, we noted that there is no requirement that
there be evidence of a specific cause of death.'
20
And, [t]he court must consider and
weigh all the evidence offered which bears on the question of death by criminal agency.'
21
Using this standard, we upheld David Stephen Middleton's murder convictions, concluding
that although the victims' actual causes of death could not be determined from examination of
the bodies due to decomposition, the circumstances of the disappearances of the women,
the discoveries of their bodies in remote locations, tied with rope, wrapped in garbage bags,
bitten severely, clearly creates a reasonable inference of their deaths by criminal agency.'
22
Accordingly, the State may establish corpus delicti solely with circumstantial evidence,
notwithstanding the lack of a body or lack of evidence of the actual cause of death due to
decomposition or dismemberment of the body.
23

In considering the weight of the evidence in the present case, we conclude that there
was sufficient evidence of corpus delicti, notwithstanding the fact that the actual cause of
Smith's death could not be determined. Similar to Middleton, the circumstances of Smith's
disappearance, the discovery of her body in a garbage can that was sealed with great effort to
make it airtight and located in a storage unit that West rented, the admission that West put
Smith in the garbage can, and the discovery of the plastic bag that covered Smith's nose and
mouth, clearly created a reasonable inference of Smith's death by criminal agency. Although
Smith and West informed Smith's friends and neighbors that West was taking Smith to
California to live with Travis Jr., several witnesses testified that Smith left behind several
personal items when she disappeared, and there was evidence that Travis Jr. was a recluse.
Finally, even though West presented medical evidence that Smith may have died by natural
causes, the jury was at liberty to weigh this evidence along with the evidence that Smith died
by criminal agency.
24

__________

19
114 Nev. 1089, 968 P.2d 296 (1998).

20
Id. at 1103, 968 P.2d at 306 (quoting Sheriff v. Middleton, 112 Nev. 956, 962, 921 P.2d 282, 286 (1996)).

21
Id. (quoting Middleton, 112 Nev. at 964, 921 P.2d at 287).

22
Id. (quoting Middleton, 112 Nev. at 964, 921 P.2d at 287).

23
Tabish, 119 Nev. at 312, 72 P.3d at 596-97.

24
See Middleton, 114 Nev. at 1102-03, 968 P.2d at 306 (noting that when there is conflicting testimony at
trial, the jury, and not this court, determines the weight and credibility of the testimony).
119 Nev. 410, 419 (2003) West v. State
Charging document
[Headnote 5]
West next challenges the charging document, arguing that it failed to provide her
adequate notice of the State's theory of murder. Because this challenge involves a
constitutional issue,
25
we review de novo whether the charging document complied with
constitutional requirements.
26

[Headnotes 6, 7]
Under the Sixth Amendment to the United States Constitution, the State is required to
inform the defendant of the nature and cause of the accusation against the defendant.
27
In
accordance with the Sixth Amendment, the Legislature has provided that an information
must be a plain, concise and definite written statement of the essential facts constituting the
offense charged.
28
Conclusory allegations are insufficient.
29
The Legislature has also
provided that an information must specify the means by which the charged offense was
committed or allege that the means are unknown.
30
The purpose of these requirements is to
prevent prosecutors from changing theories mid-trial, which in effect prejudices the defendant
in his or her defense.
31

On April 26, 2001, the State charged West by information with open murder:
That BROOKEY LEE WEST, the Defendant(s) above named, having committed the
crime of MURDER (Open Murder) (FelonyNRS 200.010, 200.030), on or during
the year 1998, within the County of Clark, State of Nevada, contrary to the form, force
and effect of statutes in such cases made and provided, and against the peace and
dignity of the State of Nevada, did then and there wilfully, [sic] feloniously, without
authority of law, and with premeditation and deliberation, and with malice
aforethought, kill CHRISTINE SMITH, a human being, by asphyxiation by suffocation
and/or manner or means unknown.
__________

25
See Alford v. State, 111 Nev. 1409, 1415, 906 P.2d 714, 717 (1995).

26
See Givens v. Housewright, 786 F.2d 1378, 1380 (9th Cir. 1986); see also Sheriff v. Burdg, 118 Nev. 853,
857, 59 P.3d 484, 486 (2002), cert. denied, 539 U.S. 915 (2003).

27
U.S. Const. amend. VI; Simpson v. District Court, 88 Nev. 654, 656, 503 P.2d 1225, 1227 (1972).

28
NRS 173.075(1).

29
Sheriff v. Standal, 95 Nev. 914, 916, 604 P.2d 111, 112 (1979).

30
NRS 173.075(2); see also Evans v. State, 117 Nev. 609, 640, 28 P.3d 498, 519 (2001).

31
See Simpson, 88 Nev. at 660-61, 503 P.2d at 1230.
119 Nev. 410, 420 (2003) West v. State
Considering that Smith's body was severely decomposed, we conclude that the State provided
West adequate notice in the charging information regarding its theory of murder. The
charging information provided that the murder occurred sometime in 1998 and by means of
suffocation, asphyxiation, or manner or means unknown. We are not concerned with
whether the information could have been more artfully drafted, but only whether as a
practical matter, the information provides adequate notice to the accused.
32
Moreover,
contrary to West's contention, the State did not change theories mid-trial.
Photographic evidence
[Headnote 8]
West next contends that the district court erred in admitting photographic evidence.
The district court admitted three photographs: two photographs of Smith's head, which
showed how the plastic bag was tied and what parts of Smith's face the plastic bag covered,
and a photograph of Smith alive. We will not disturb a district court's decision to admit
photographic evidence unless the district court abused its discretion.
33

NRS 48.025(1) provides that all relevant evidence is admissible. However, relevant
evidence is not admissible if its probative value is substantially outweighed by the danger of
unfair prejudice.
34
We have repeatedly held that [d]espite gruesomeness, photographic
evidence has been held admissible when . . . utilized to show the cause of death and when it
reflects the severity of wounds and the manner of their infliction.'
35
Accordingly,
gruesome photos will be admitted if they aid in ascertaining the truth.
36

[Headnotes 9, 10]
We conclude that the district court did not abuse its discretion in admitting the
gruesome photographs. The photographs only showed Smith's head and were shown to aid
the jury in understanding how the plastic bag was tied on Smith's head and what parts of
Smith's face the plastic bag covered. Also, we conclude that the district court did not abuse its
discretion in admitting the photograph of Smith alive. Although the district court noted that
the relevance was questionable, the court also noted that it was reasonable for the jury to see
Smith alive because her body was severely decomposed.
__________

32
Sheriff v. Levinson, 95 Nev. 436, 437, 596 P.2d 232, 234 (1979).

33
See Browne v. State, 113 Nev. 305, 314, 933 P.2d 187, 192 (1997).

34
NRS 48.035(1).

35
Browne, 113 Nev. at 314, 933 P.2d at 192 (quoting Theriault v. State, 92 Nev. 185, 193, 547 P.2d 668,
674 (1976) (citations omitted)).

36
Id.
119 Nev. 410, 421 (2003) West v. State
Prosecutorial misconduct
West contends that during closing argument, the prosecutor engaged in several
instances of misconduct. In particular, West argues that the prosecutor invited speculation,
shifted the burden, misstated the law and facts, and appealed to religious bias. We disagree
and therefore conclude that West's contention lacks merit.
CONCLUSION
Because West's contentions lack merit, we affirm her judgment of conviction.
__________
119 Nev. 421, 421 (2003) Mack v. State
DARYL LINNIE MACK, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 40167
September 8, 2003 75 P.3d 803
This is an appeal from a judgment of conviction, pursuant to a bench trial, of
first-degree murder and a sentence of death. Second Judicial District Court, Washoe County;
James W. Hardesty, Judge.
The supreme court held that: (1) defendant's right to jury trial on penalty was not
implicated by three-judge panel's determination of his death sentence, (2) defendant's waiver
of right to jury trial as to both guilt and penalty was intentional and voluntary, and (3) death
sentence was not excessive.
Affirmed.
Defender, Washoe County, for Appellant.
1. Jury.
Capital murder defendant's right to jury trial on penalty was not implicated by three-judge panel's determination of his death
sentence, where defendant requested bench trial, validly waived his right to jury trial, expressly indicated his understanding that
three-judge panel, rather than jury, would determine his sentence, and made no attempt to limit or condition his waiver of right to
jury trial. U.S. Const. amend. 6.
2. Jury.
Capital murder defendant's waiver of right to jury trial as to both guilt and penalty was intentional and voluntary, where
defendant was aware of his right to jury trial, consulted with his attorneys about his decision, and had ample time to consider his
decision. U.S. Const. amend. 6.
119 Nev. 421, 422 (2003) Mack v. State
Evidence supported aggravators found by three-judge panel in penalty phase of capital murder prosecution, namely, commission
of murder while under sentence of imprisonment and commission of murder while committing or fleeing after committing sexual
assault, and neither passion, prejudice, nor any arbitrary factor influenced imposition of sentence. NRS 177.055(2).
Death sentence imposed upon capital murder defendant, with respect to whom three-judge panel gave weight to only one of two
aggravating factors and found numerous mitigating circumstances, was not excessive, where defendant had extensive and ongoing
criminal history, including another murder similar to that of which he was convicted. NRS 177.055(2)(d).
OPINION
1

Per Curiam:
Appellant Daryl Linnie Mack does not challenge his conviction of first-degree murder
but claims that his death sentence was determined by a three-judge panel in violation of his
constitutional right to a jury trial. We conclude that Mack's claim lacks merit because he
requested a bench trial and waived his right to a jury trial.
FACTS
On the night of October 28, 1988, Betty May was found dead in her basement room at
a boarding house in Reno. Steven Floyd lived in the house next door with the managers of the
boarding house, Jim and Kelly Bassett. Floyd had been drinking at a nearby bar that night and
was returning home to try to borrow some money. He knew May and saw that her light was
on, so he went to her room to ask for money. He knocked on her door, which was slightly
open, but there was no response. He opened the door and saw May kneeling by her bed with
her upper body facedown on the bed. He turned her over and realized that she was dead.
Floyd immediately went home and told the Bassetts, and the police were called.
An autopsy was performed the next morning. Fingernail scrapings and evidentiary
swabs from May's vagina and left foot were collected. The swabs tested positive for semen.
There were abrasions on May's neck, bruises on her inner thighs, lacerations of her fingertips,
lips, and nose, blood in her vagina, and a hemorrhage within her cervix. May was wearing a
blue blouse, which was bloodstained.
__________

1
Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.
119 Nev. 421, 423 (2003) Mack v. State
bloodstained. The medical experts at trial all agreed that she had been manually strangled to
death. An expert for the State testified that May had suffered forceful traumatic sexual
penetration not long before her death.
Almost twelve years later, Detective David Jenkins took over investigation of the case
and requested DNA testing of the evidence. Police had taken a blood sample from Mack in
1994. In February 2001, Jenkins also obtained a saliva sample from Mack pursuant to a
seizure order. A criminalist for the Washoe County Sheriff testified that the semen taken from
May's body and the blood stains on her blouse matched Mack's DNA profile. The blood and
tissue found under May's fingertips was consistent with Mack's DNA. The State charged
Mack with the first-degree murder of May: with deliberation and premeditation and/or during
the perpetration or attempted perpetration of a sexual assault. The State sought the death
penalty, alleging two aggravating circumstances: Mack committed the murder while under
sentence of imprisonment, and he committed the murder while committing or fleeing after
committing a sexual assault.
Before trial, Mack personally informed the district court that he would like to waive
the jury trial and have a judge trial alone. The court continued the matter to allow Mack to
discuss it with his counsel. Mack repeated his request at the subsequent hearing. When the
court asked him if he understood what would happen if he were found guilty, Mack said he
understood that there would be another phase where a three-judge panel would decide, you
just won't solely decide the sentencing phase of it. The court again continued the matter to
allow Mack to look at the jury questionnaires before making his decision. At the next hearing,
the court canvassed Mack and determined that he had reviewed the questionnaires and had
considered and discussed the consequences of waiving a jury trial with his counsel. The court
then granted Mack's request. Mack also signed a statement acknowledging that his attorneys
had advised him
on the potential benefits and detriments involved in waiving my right to have my case
heard before a jury. I understand that by choosing to have my trial heard by a judge,
and if I am convicted of first-degree murder, my sentence will be decided by a
three-judge panel. I have discussed these matters with my counsel and I have decided to
waive my right to a jury trial.
2

At the guilt phase, the State basically presented the evidence of the crime summarized
above. The only evidence presented by the defense was aimed at attacking the credibility of
Floyd, who had discovered May's body.
__________

2
Emphasis added.
119 Nev. 421, 424 (2003) Mack v. State
discovered May's body. The district court found Mack guilty of first-degree murder under
both theories advanced by the State. A three-judge panel was convened, and a penalty hearing
was held.
The State relied on the guilt phase evidence to establish the sexual assault aggravator.
For the other aggravator, it showed that Mack committed the instant murder while under
sentence of imprisonment for a burglary conviction in California in June 1988. In addition,
the State introduced evidence that Mack had numerous other convictions. These included
battery causing substantial bodily harm in 1980, burglary and two counts of possession of
stolen property in 1980, burglary and possession of stolen property in 1983, and conspiracy to
commit larceny from the person in 1991. Most notably, the State showed that Mack was
convicted of first-degree murder and sentenced to life in prison without possibility of parole
for strangling a woman to death in 1994.
3
Evidence of Mack's prison disciplinary violations
since his incarceration in 1994 was presented. Finally, a daughter and a son of May testified
about the loss of their mother.
The defense presented several witnesses who expressed their belief that Mack's life
was worth saving: Mack's uncle, two childhood friends, the mother of a childhood friend, and
Mack's older brother. The brother also testified that their father had been violent to their
mother. Mack's mother and sister and several friends of the family also submitted letters on
his behalf. A correctional casework specialist from Ely State Prison testified that she did not
consider Mack to be a violent inmate and that any disciplinary problems appeared related to
changes in medication he was taking to maintain his mental stability. She found that Mack
was helpful with other inmates, and she believed that his life was worth saving. Mack spoke
in allocution. He offered condolences to May's family and apologized to his own family. He
said that he could not find words to express his shame. Mack asked the panel for the
opportunity to continue his rehabilitation in prison.
The panel found both aggravators beyond a reasonable doubt, and it found the
following mitigating circumstances. Mack suffered from anxiety and psychotic disorders
since his incarceration in 1994, though there was no evidence that he had a mental disorder at
the time of the murder. Mack had demonstrated a satisfactory adjustment to a maximum
security setting and had been cooperative with institutional personnel. He had also been
cooperative with court personnel. He was able to provide assistance to other inmates for their
adjustment and rehabilitation. Although there was no evidence of drug usage in committing
the murder, Mack had abused controlled substances from high school at least up to 1990. He
had demonstrated rehabilitation from such abuse during his incarceration. He had expressed
regret that May was dead. He currently had a stable family, some of whom had limited
contact with him.
__________

3
See infra note 20.
119 Nev. 421, 425 (2003) Mack v. State
a stable family, some of whom had limited contact with him. He witnessed some acts of
male-on-female violence as a child, but there was no evidence he was subjected to violence
himself. Though he made threatening remarks on at least one occasion, he had not committed
any acts of violence during his incarceration.
The panel did not consider the under-sentence-of-imprisonment aggravator in the
weighing process, concluding that it deserved little weight. But it found that all the mitigating
circumstances did not outweigh the sexual assault aggravating circumstance alone.
Accordingly, the panel imposed a sentence of death.
On June 24, 2002, after the penalty hearing was concluded, the United States Supreme
Court issued an opinion in Ring v. Arizona,
4
holding that a capital sentencing scheme
requiring a judge to determine aggravating circumstances violates the Sixth Amendment right
to a jury trial. Mack filed a post-trial motion arguing that Ring required that he receive a new
penalty hearing before a jury. The district court held a hearing on the motion and denied it.
DISCUSSION
The three-judge panel's determination of appellant's death sentence after he requested a
bench trial did not violate his right to a jury trial
[Headnote 1]
Mack asserts that the death penalty imposed by the three-judge panel is
unconstitutional and must be reversed and this matter must be remanded for a new penalty
hearing before a jury. He relies on the holding in Ring that a capital sentencing scheme
requiring a judge to determine aggravating circumstances violates the Sixth Amendment right
to a jury trial. If apposite, Ring would apply here because this is a direct appeal and Mack's
conviction is not yet final.
5
Applying Ring in Johnson v. State, this court held that a
three-judge panel's finding of aggravating circumstances and imposition of death after the
jury was unable to agree on a sentence violated the defendant's right to a jury trial.
6
However, Ring and Johnson concerned defendants who pleaded not guilty and initially had
jury trials; the opinions did not address a defendant's waiver of the right to a jury trial.
7
In
Colwell v. State, this court concluded that Ring did not apply where a defendant pleaded
guilty and waived his right to a jury trial.
8

__________

4
536 U.S. 584 (2002).

5
See Johnson v. State, 118 Nev. 787, 802, 59 P.3d 450, 460 (2002).

6
Id.

7
Id. at 802 n.33, 59 P.3d at 460 n.33.

8
118 Nev. 807, 822, 59 P.3d 463, 473 (2002), cert. denied, ___ U.S. ___, 124 S. Ct. 462 (2003).
119 Nev. 421, 426 (2003) Mack v. State
Mack claims that he wanted a bench trial only in regard to the guilt phase of his trial,
not the penalty phase. In Colwell, this court determined that the record belied Colwell's claim
that he only waived his right to have a jury determine his guilt, not his right to have a jury
determine aggravating circumstances.
9
The record showed that Colwell was aware that if
he pleaded guilty a three-judge panel would determine his sentence. He did not object to this,
nor did he try to limit or condition in any way his waiver of his right to a jury trial.
10
Similarly, the record here shows that Mack was aware that if his request for a bench trial was
granted, a three-judge panel would determine his sentence. Like Colwell, he did not object to
such a determination and did not try to limit or condition his waiver of his right to a jury trial.
Mack concedes that he did not request a jury determination of his sentence but argues
that he had no choice but to accept determination of his sentence by the three-judge panel.
Because the relevant statute, NRS 175.558,
11
does not provide the option of having a jury
determine the sentence following a finding of guilt by the district court, Mack contends that
he was unconstitutionally forced to forgo his right to a jury trial. As just noted, however, the
record repels Mack's claim that he actually wanted a jury to decide his sentence. So does
logic: he fails to explain why he did not want a jury to decide his guilt but did want a jury to
decide his sentence. Further, Mack did have a choicebetween an entire trial before a jury or
one without a jury. He was informed that this was his choice, and no one forced him to waive
his right to a jury trial. Offering a defendant the choice of having his entire trial before a jury
or entirely without one does not appear to offend any of the reasoning in Ring, and the
Supreme Court has stated elsewhere that not every burden on the exercise of a constitutional
right, and not every pressure or encouragement to waive such a right, is invalid.
12

__________

9
Id. at 822, 59 P.3d at 474.

10
Id.

11
NRS 175.558 provides in relevant part:
When any person is convicted of murder of the first degree upon . . . . a trial without a jury, and the death
penalty is sought, the supreme court shall appoint two district judges from judicial districts other than the
district in which the plea is made, who shall with the district judge before whom the plea is made, or his
successor in office, conduct the required penalty hearing to determine the presence of aggravating and
mitigating circumstances, and give sentence accordingly.

12
Corbitt v. New Jersey, 439 U.S. 212, 218 (1978) (rejecting a claim that offering a lower sentence in
exchange for a guilty plea places an unconstitutional burden on the right to a jury trial and the right against
compelled self-incrimination).
119 Nev. 421, 427 (2003) Mack v. State
[Headnote 2]
[T]he accused has the ultimate authority to make certain fundamental decisions
regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf,
or take an appeal.
13
A valid waiver of a fundamental constitutional right ordinarily requires
an intentional relinquishment or abandonment of a known right or privilege.
14
Here, Mack
exercised his authority to make the decision to waive a jury. The record shows that he was
well aware of his right to a jury trial, consulted with his attorneys about the decision, had
ample time to consider the decision, and intentionally and voluntarily relinquished that right.
We conclude that Mack validly waived his right to have his sentence determined by a
jury and that the three-judge panel's determination of his sentence was constitutional.
The death sentence is not excessive in this case
[Headnote 3]
NRS 177.055(2) requires this court to review every death sentence and consider in
addition to any issues raised on appeal:
(b) Whether the evidence supports the finding of an aggravating circumstance or
circumstances;
(c) Whether the sentence of death was imposed under the influence of passion,
prejudice or any arbitrary factor; and
(d) Whether the sentence of death is excessive, considering both the crime and the
defendant.
Mack does not raise any claims in regard to the first two issues. We conclude that the
evidence supports the two aggravators found by the panel and that there is no indication that
passion, prejudice, or any arbitrary factor influenced the imposition of the sentence.
[Headnote 4]
Mack does contend that his death sentence is excessive. He cites Haynes v. State,
where this court quoted the Supreme Court's observation that under contemporary
standards of decency death is viewed as an inappropriate punishment for a substantial portion
of convicted first-degree murderers' and concluded that death was not appropriate.
15
He
also cites two other opinions by this court in which it determined that death sentences were
inappropriate.
16
Mack points out that the panel gave weight to only one of the two
aggravators,
__________

13
Jones v. Barnes, 463 U.S. 745, 751 (1983).

14
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

15
103 Nev. 309, 319-20, 739 P.2d 497, 504 (1987) (quoting Woodson v. North Carolina, 428 U.S. 280, 296
(1976)).

16
Biondi v. State, 101 Nev. 252, 699 P.2d 1062 (1985); Chambers v. State, 113 Nev. 974, 944 P.2d 805
(1997).
119 Nev. 421, 428 (2003) Mack v. State
the two aggravators, found numerous mitigating circumstances, and yet found that those
circumstances cumulatively did not outweigh the one aggravating circumstance relied on. He
asserts that the weight of the mitigators together simply overwhelmed the sole aggravator.
In analyzing excessiveness under NRS 177.055(2)(d), this court has defined the
crucial question as: are the crime and defendant before us on appeal of the class or kind that
warrants the imposition of death?
17
This inquiry may involve a consideration of whether
various objective factors, which we have previously considered relevant to whether the death
penalty is excessive in other cases, are present and suggest the death sentence under
consideration is excessive.
18
Mack fails to marshal the kind of objective factors which have
persuaded this court that death sentences are excessive: in Haynes, a mentally disturbed
defendant irrationally attacking a stranger and a single aggravating circumstance based on a
fifteen-year-old armed robbery committed when the defendant was only eighteen; in Biondi v.
State, a killing in an emotionally charged barroom confrontation and a single aggravating
circumstance of a prior armed robbery; in Chambers v. State, an emotionally charged
confrontation in which the defendant, who was drunk, was wounded and his professional
tools were being ruined and a single aggravating factor based on eighteen-year-old robberies
committed when the defendant himself was only eighteen.
19

Here, by contrast, two aggravating circumstances exist, and Mack had an extensive,
ongoing criminal history, including another strangulation murder of a female victim.
20
There
is no evidence of an emotionally charged confrontation, nor is there evidence that Mack
lacked rational capacity. The panel recognized a number of mitigating circumstances but did
not find them particularly weighty. We consider that finding reasonable and conclude that the
death sentence is not excessive under NRS 177.055(2)(d).
CONCLUSION
We affirm the judgment of conviction and sentence of death.
__________

17
Dennis v. State, 116 Nev. 1075, 1085, 13 P.3d 434, 440 (2000).

18
Id.

19
Id. at 1085-86, 13 P.3d at 441.

20
This 1994 murder conviction was grounds for a third aggravating circumstance under NRS 200.033(2). It
is not clear why the State did not offer it as such.
__________
119 Nev. 429, 429 (2003) Las Vegas Downtown Redev. Agency v. Pappas
CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY; FREMONT
STREET EXPERIENCE LIMITED LIABILITY COMPANY, and FREMONT
STREET EXPERIENCE PARKING CORP., Appellants/Cross-Respondents, v.
CAROL PAPPAS; JOHN H. PAPPAS, JR.; and HARRY J. PAPPAS,
Respondents/Cross-Appellants.
No. 39255
September 8, 2003 76 P.3d 1
Appeal and cross-appeal from a district court judgment in an eminent domain action.
Eighth Judicial District Court, Clark County; Don P. Chairez, Judge, and Stephen L.
Huffaker, Judge.
City redevelopment agency brought eminent domain action against property owners to
obtain parcels of a city block for redevelopment project. After agency's motion for immediate
occupancy was granted, owners brought counterclaims. Agency's motion for summary
judgment was granted as to all but one of the counterclaims, and owners' appeal was
dismissed. After owners moved to dismiss agency's action, the district court dismissed the
action and, later, owners' remaining counterclaim. Agency and owners appealed. The supreme
court, BECKER, J., held that: (1) owners did not waive their challenge to taking on grounds
of lack of public use and necessity; (2) project constituted public purpose under Federal and
State Constitutions; (3) judicial review was barred as to whether substantial evidence
supported agency's determination that project area suffered from blight; (4) fact that owners'
property did not itself suffer from blight did not prohibit agency from taking property; (5)
agency's taking of property, rather than leasing it, did not constitute bad faith, and thus trial
court erred by determining that taking was not necessary; (6) owners did not show any basis
for their counterclaims based on inverse condemnation, just compensation, or due process;
(7) agency was not required to accept owners' proposed participation in project by entering
into ground leases; but (8) genuine issues of material fact existed as to counterclaims based
on lost rent and interference.
Affirmed in part, reversed in part, and remanded with instructions.
Leavitt and Maupin, JJ., dissented.
Beckley Singleton, Chtd., and Rex A. Jemison and Daniel F. Polsenberg, Las Vegas;
Bradford R. Jerbic, City Attorney, William P. Henry, Senior Litigation Counsel, and Philip R.
Byrnes Jr., Deputy City Attorney, Las Vegas, for Appellant/Cross-Respondent City of Las
Vegas Downtown Redevelopment Agency.
Lionel Sawyer & Collins and Samuel S. Lionel, Las Vegas, for
Appellants/Cross-Respondents Fremont Street Experience and Fremont Street Experience
Parking Corp.
A. Grant Gerber & Associates and A. Grant Gerber, Elko; Glade L. Hall, Reno, for
Respondents/Cross-Appellants.
Kolesar & Leatham, Chtd., and James B. MacRobbie, Las Vegas; Institute for Justice
and Dana Berliner, Washington, D.C., for Amicus Curiae Institute for Justice.
Wilson & Barrows and Stewart R. Wilson, Elko; Pacific Legal Foundation and James
S. Burling and Harold E. Johnson, Sacramento, California, for Amicus Curiae Pacific Legal
Foundation.
1. Eminent Domain.
When substantial evidence supports an agency's determination, for purpose of taking private property for public use, that a
specific project furthers economic redevelopment under Community Redevelopment Law, the project is for a public purpose. The
sole remaining issue for a jury to determine in eminent domain proceeding is just compensation. Const. art. 1, 8, cl. 6; U.S.
Const. amend. 5; NRS 279.382 et seq.
2. Eminent Domain.
Appropriate vehicle for challenging an order granting a motion for immediate occupancy in eminent domain proceeding is a
petition for writ relief, as an appeal of this interlocutory order is unavailable under rule. NRAP 3A(b).
3. Eminent Domain.
Property owners were not procedurally barred, based on doctrines of estoppel or waiver, from challenging city redevelopment
agency's eminent domain proceeding on grounds of lack of necessity and lack of public purpose, even though owners failed to
oppose agency's motion for immediate occupancy, failed to assert such issues in their motion for reconsideration, and failed to
seek extraordinary writ directing trial court to vacate its orders granting motion for immediate occupancy and denying motion for
reconsideration, where supreme court had not held otherwise. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
4. Eminent Domain.
Issues regarding whether a proposed taking of private property constitutes a public use under State and Federal Constitutions
and whether the taking is necessary to accomplish that public purpose are issues to be addressed at the early stages of an eminent
domain proceeding. Such issues need to be resolved before the existing property is substantially altered. Const. art. 1, 8, cl. 6;
5. Eminent Domain.
In all eminent domain cases, challenges to taking of private property on grounds of lack of public use and necessity must be
raised prior to occupancy and material demolition, alteration or construction on the subject property. Failure to timely assert lack
of public use or necessity constitutes a waiver of these issues. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
6. Eminent Domain.
If a legislature determines there are substantial reasons for an exercise of the taking power, courts must defer to its determination
that the taking will serve a public use.
taking will serve a public use. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
7. Eminent Domain.
So long as a redevelopment plan, or any individual redevelopment project, bears a rational relationship to the eradication of
physical, social or economic blight, it serves a public purpose within the power of eminent domain. The focus of the inquiry is
whether the plan or project serves the public purpose, not whether the condemned property is eventually owned by a public or
private entity. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5; NRS 279.382 et seq.
8. Eminent Domain.
Focus of city redevelopment agency's project to construct public pedestrian mall, entertainment center, and parking garage was
to combat economic, social, and physical blight, and thus project constituted public purpose under Takings Clauses of Federal and
State Constitutions, even though parking garage would benefit consortium of businesses that agreed to finance project, where
legislature defined combating blight as public purpose, agency intended to construct safe entertainment street mall to attract
visitors and businesses to area, and garage was planned to ensure adequate off-street parking for patrons of businesses and was not
built to service single business. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5; NRS 279.382 et seq.
9. Eminent Domain.
When a project is intended to attack blight, such as creating a significant increase in jobs in an area suffering from high
unemployment, even the relocation of one business through condemnation to make way for a new business is still considered a
public purpose under Takings Clauses of Federal and State Constitutions. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
District court lacked authority, when deciding whether to dismiss city redevelopment agency's eminent domain action, to
consider whether substantial evidence supported agency's determination that redevelopment project area suffered from physical,
social, or economic blight, where validity of agency's redevelopment plan was not challenged within statutory ninety-day period
for challenges. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5; NRS 279.609.
For purpose of including area in redevelopment plan, blight is a term used to describe physical, social or economic conditions
that affect the health, safety or welfare of a community. NRS 279.382 et seq.
For purpose of including area in redevelopment plan, physical blight refers to a community's infrastructure, such as poorly
designed streets, inadequate public facilities, building code violations, and substandard housing. NRS 279.382 et seq.
For purpose of including area in redevelopment plan, economic blight involves downward trends in the business community,
relocation of existing business outside of the community, business failures, and loss of sales or visitor volumes. NRS 279.382 et
seq.
For an area to be included in a redevelopment plan, there must be a finding that the general area suffers from some form of
blight and that redevelopment is necessary to eliminate that blight. NRS 279.382 et seq.
If an agency's finding that an area has suffered from physical, social, or economic blight, for purpose of including area in
redevelopment plan, is supported by substantial evidence, it is not subject to judicial review. NRS 279.382 et seq.
Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.
Substantial evidence supported city redevelopment agency's determination that redevelopment project area suffered from
physical, social, or economic blight. Area had higher crime rates than rest of city, vacant lots, vacant buildings, and burnt out
buildings, visitor volume in area had been consistently declining, businesses were relocating out of area, and building renovations
would require substantial upgrades to comply with existing building codes. NRS 279.382 et seq.
18. Eminent Domain.
Fact that property located in redevelopment project area that suffered from physical, social, or economic blight did not itself
suffer from blight did not prohibit city redevelopment agency from taking property through eminent domain proceedings.
Redevelopment encompassed entire area, and removal of individual structures that were offensive would be only palliative. Const.
art. 1, 8, cl. 6; U.S. Const. amend. 5.
19. Eminent Domain.
While a property owner may not challenge a redevelopment plan's finding that an area suffers from physical, social, or economic
blight beyond statutory ninety-day period for such challenges, the issue of blight may still be raised as it relates to the specific
project involved in a condemnation proceeding. A property owner may raise, as an affirmative defense to the taking, that blight
originally identified in the plan or project no longer exists, that the particular project is the product of fraud or collusion between
the governmental agency and the private entities who will develop the project, or that the avowed public purpose is merely a
pretext or used in bad faith. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5; NRS 279.609.
20. Eminent Domain.
Property owners did not show, as affirmative defense to taking of their property, that redevelopment project area ceased to suffer
physical, social, and economic blight between city redevelopment agency's approval of project and its commencement of eminent
domain proceedings. Tourism and visitor volume to area continued to decline, more businesses had left area, crime rates continued
to be problem, and inadequate parking had increased. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
21. Eminent Domain.
Property owners did not show, as affirmative defense to taking of their property, that city redevelopment agency's project to
redevelop area was product of fraud or collusion with private entities or that City's avowed purpose of eliminating area's blight was
mere pretext or used in bad faith. Record contained no evidence that property was acquired for some purpose other than
redevelopment of blighted area. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
22. Eminent Domain.
In an eminent domain proceeding, issue of necessity is usually raised in the context of challenging whether a project furthers a
public purpose and therefore constitutes a public use.
and therefore constitutes a public use. It involves whether the property to be taken is necessary to accomplish the public purpose
and encompasses the selection of the location of the condemned land. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
23. Eminent Domain.
Standard for challenging a taking of property on ground of lack of necessity is even greater than that for challenging its public
purpose. Courts may not question the wisdom of how to accomplish the public purpose absent a showing of fraud or bad faith.
Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
24. Eminent Domain.
It is up to legislative body to determine how to accomplish the public purpose asserted in support of eminent domain
proceeding. Thus, courts may not substitute their own judgment or dismiss an eminent domain action simply because the
legislative branch has methods at its disposal other than taking of property to accomplish a public purpose.
25. Eminent Domain.
City redevelopment agency's taking of property, rather than entering into long-term ground leases with property owners, to build
parking garage as part of redevelopment project to eliminate blight did not constitute bad faith, where agency rejected leasing
approach because it would have severely affected financing for parking garage, and no evidence suggested any other reason for the
rejection. Thus, trial court erred in determining that taking was not necessary. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
26. Eminent Domain.
Property owners could not maintain counterclaims against city redevelopment agency, in eminent domain proceeding, based on
inverse condemnation and taking without just compensation, as issues of inverse condemnation and just compensation were
subsumed within agency's original condemnation complaint. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
27. Constitutional Law; Eminent Domain.
Property owners' right to procedural due process was satisfied with respect to city redevelopment agency's motion for immediate
occupation of property in eminent domain proceeding. Agency correctly followed procedures for gaining immediate occupancy,
any alleged confusion generated by the pleadings was addressed in owners' motion for reconsideration of occupancy, and owners
were given notice and opportunity to be heard. Const. art. 1, 8, cl. 6; U.S. Const. amends. 5, 14.
Whether to allow property owner participation in a given redevelopment project, and under what circumstances, are matters left
to the discretion of redevelopment agency. NRS 279.382 et seq.
City redevelopment agency was not required to accept property owners' proposed participation in redevelopment plan, which
included construction of parking garage, by entering into long-term ground lease. Owners did not have absolute right under plan or
community redevelopment statute to participate in plan, and agency's rejection of owners' proposal was not done in bad faith. NRS
279.566(1).
30. Judgment.
Genuine issues of material fact as to whether city redevelopment agency, in course of eminent domain proceedings, caused
property owners to lose rent or interfered with owners' relationship with their tenants precluded summary
judgment on owners' counterclaims based on lost rent and interference.
ers to lose rent or interfered with owners' relationship with their tenants precluded summary judgment on owners' counterclaims
based on lost rent and interference. Const. art. 1, 8, cl. 6; U.S. Const. amend. 5.
1

OPINION
This is an appeal from a district court order granting respondents' motion to dismiss in
an eminent domain action and a cross-appeal from a district court order dismissing
respondents' counterclaims in the same action.
2
Appellants/cross-respondents, the City of
Las Vegas Downtown Redevelopment Agency (Agency), Fremont Street Experience Limited
Liability Company, and Fremont Street Experience Parking Corp. (collectively Fremont
Street Experience), argue the district court erred in entering an order dismissing the Agency's
eminent domain complaint. Respondents/cross-appellants Carol Pappas, John H. Pappas, Jr.,
and Harry J. Pappas (collectively the Pappases) contend that the district court erred in
entering an order dismissing their counterclaims. We conclude the district court erred in
dismissing the eminent domain complaint and those portions of the counterclaims that seek
damages for alleged pre-condemnation interference with the Pappases' tenants. We further
conclude that the district court did not err in dismissing the remaining counterclaims.
[Headnote 1]
Both the United States and Nevada Constitutions allow the taking of private property
for public use provided just compensation is paid to the private property owner.
3
The
Nevada Legislature has clearly defined economic redevelopment as a public purpose.
4
And,
the United States Supreme Court has concluded that when a legislative body decides that a
need for redevelopment serves the public, its decision is well-nigh conclusive.
5
There is
no exception to the rule because the power of eminent domain is involved.
6
When
substantial evidence supports an agency's determination that a specific project furthers
economic redevelopment under NRS Chapter 279, the project is for a public purpose. The
sole remaining issue for a jury to determine is just compensation.
__________

1
The Honorable Mark Gibbons, Justice, voluntarily recused himself from participation in the decision of this
matter.

2
Judge Chairez dismissed the eminent domain action; Judge Huffaker and Judge Mark Denton dismissed the
counterclaims.

3
See U.S. Const. amend. V; Nev. Const. art. 1, 8, cl. 6.

4
NRS 37.010(17).

5
Berman v. Parker, 348 U.S. 26, 32 (1954).

6
Id.
sole remaining issue for a jury to determine is just compensation. We conclude that in this
case, substantial evidence supports the Agency's determination that the project in issue
facilitates redevelopment. Thus, we conclude that the Agency's use of eminent domain was
constitutionally permissible and the district court therefore erred in dismissing the Agency's
eminent domain complaint.
FACTS
On November 6, 1985, the Las Vegas City Council (Council) created the Agency to
tackle redevelopment issues under NRS Chapter 279.
7
The Agency's board is comprised
solely of Council members.
NRS Chapter 279 identifies redevelopment to eliminate blight as a public purpose.
The Council identified various sections of the city, including the area commonly known as
downtown Las Vegas, for the Agency to evaluate and determine whether redevelopment was
necessary to combat physical, social, or economic blight. The downtown section identified
included property owned by the Pappases. The Agency directed its staff and the City's
Planning Commission to evaluate the identified area and prepare a report on any conditions
showing physical, social, and economic blight in the area. The ensuing report identified
various physical, economic, and social conditions within the area constituting blight within
the definition set forth in NRS 279.388.
8
These conditions included increased crime rates
and requests for police assistance,
__________

7
NRS 279.428 states, An agency shall not transact any business or exercise any powers under NRS 279.382
to 279.685, inclusive, unless, by resolution, the legislative body declares that there is need for an agency to
function in the community.

8
Blighted area means an area which is characterized by one or more of the following factors:
1. The existence of buildings and structures, used or intended to be used for residential, commercial,
industrial or other purposes, or any combination thereof, which are unfit or unsafe for those purposes and
are conducive to ill health, transmission of disease, infant mortality, juvenile delinquency or crime
because of one or more of the following factors:
(a) Defective design and character of physical construction.
(b) Faulty arrangement of the interior and spacing of buildings.
(c) Overcrowding.
(d) Inadequate provision for ventilation, light, sanitation, open spaces and recreational facilities.
(e) Age, obsolescence, deterioration, dilapidation, mixed character or shifting of uses.
2. An economic dislocation, deterioration or disuse, resulting from faulty planning.
3. The subdividing and sale of lots of irregular form and shape and inadequate size for proper
usefulness and development.
4. The laying out of lots in disregard of the contours and other physical characteristics of the ground
and surrounding conditions.
creased crime rates and requests for police assistance, business flight from the downtown
area, decline in tourism, lack of parking, visitor and residents' perceptions of lack of safety in
the area, and increases in vacant and aging buildings.
Based upon this evidence, the Planning Commission submitted a redevelopment plan
(Plan) to the Agency. The Agency accepted the proposed Plan, reviewed the information
submitted to the Planning Commission, and decided to consider adopting the Plan. Pursuant
to statute, the Agency then provided notice of a public hearing to landowners affected by the
proposed Plan. At the hearing, members of the public acknowledged that significant problems
existed in the downtown area. Some individuals disagreed, however, with the adoption of a
redevelopment plan. Instead, they urged the Agency to work with individual landowners and
businesses, and to provide money for renovations, promotions, and other methods for
cleaning up and bringing people back to the downtown area.
After considering the public comments, the Agency approved the Plan. The Agency
determined that blight was causing a serious physical, social, and economic burden on the
City in all applicable downtown areas. The Agency concluded that working with individuals
on a piecemeal basis would not stem the decline of the downtown area. The Agency also
concluded that neither the City, nor the private sector, acting alone, had the resources to
accomplish the redevelopment goal. The Agency found that only the combined
redevelopment efforts of the City and the private sector would improve the area.
The Plan provided a framework for all future redevelopment. It was intentionally
general; it included no specific projects. The purpose, however, was to eliminate physical,
social, and economic blight and to encourage businesses and individuals to return to a safe
downtown area with adequate parking and facilities. The Plan provided business and property
owners in the area an opportunity to propose and participate in projects that would eliminate
physical, social, and economic blight as well as mechanisms for encouraging investors to
develop new projects in the area.
__________
5. The existence of inadequate streets, open spaces and utilities.
6. The existence of lots or other areas which may be submerged.
7. Prevalence of depreciated values, impaired investments and social and economic maladjustment to
such an extent that the capacity to pay taxes is reduced and tax receipts are inadequate for the cost of
public services rendered.
8. A growing or total lack of proper utilization of some parts of the area, resulting in a stagnant and
unproductive condition of land which is potentially useful and valuable for contributing to the public
health, safety and welfare.
9. A loss of population and a reduction of proper use of some parts of the area, resulting in its further
deterioration and added costs to the taxpayer for the creation of new public facilities and services
elsewhere.
The Legislature adopted this provision in 1959. See 1959 Nev. Stat., ch. 418, 7, at 648-49. It has been
amended only once, in 1985. See 1985 Nev. Stat., ch. 639, 11, at 2068-69.
cal, social, and economic blight as well as mechanisms for encouraging investors to develop
new projects in the area. The Agency could also use its power of eminent domain to acquire
private property for projects designed to eliminate social and economic blight.
Neither the Pappases nor any other person challenged the Plan within the ninety-day
period following its adoption, as required by statute.
9
The Plan created a conclusive
presumption that the area encompassing the Pappases' property was blighted under the
Community Redevelopment Law.
10

Several years passed between the adoption of the Plan and the events that led to the
present action. Over that period, the Agency approved several projects. Some succeeded and
some did not. The downtown area continued to lose ground. Finally, to accomplish
redevelopment and eliminate physical, social, and economic blight in the core downtown
area, the Agency considered various proposals for an anchor project. The Agency sought a
concept that would be a feature attraction in downtown Las Vegas. The ideal project would
create a safer, cleaner environment designed to draw visitors and businesses back to the
downtown area. This increase in activity would then encourage additional businesses to
relocate to areas outside of, but adjacent to the core. As businesses returned, improvement of
residential areas would follow. Thus, in conjunction with the feature attraction, the City also
considered creating new business or shopping venues in the area.
Eventually, the concept known as the Fremont Street Experience surfaced as the
anchor project to accomplish the Agency's redevelopment goals. Several components
comprised the Fremont Street Experience, including a sculpted steel mesh canopy stretching
across Fremont Street from Main to Fourth Streets. The canopy would allow light and air
flow during daylight hours but would provide shade for tourists. At night, however, the
Fremont Street Experience would present a sound and light show. In addition, the Fremont
Street Experience would create a pedestrian plaza by closing Fremont Street to vehicular
traffic from Main Street to Las Vegas Boulevard. Finally, because of a lack of adequate
public parking, plans for the Fremont Street Experience included a five-story public parking
structure with some retail and office space.
Because the Agency lacked the financial resources to construct the project alone, it
entered into an agreement with a consortium of downtown casinos. The consortium would
finance and cover any operating losses of the feature attraction as well as the construction of
the parking garage. The City would authorize the creation of the pedestrian mall,
__________

9
NRS 279.609 states in part, Any action questioning the validity of . . . [t]he adoption or approval of that
plan . . . may only be brought after the adoption of the plan . . . or within 90 days after the date of adoption of the
ordinance adopting . . . the plan.

10
See NRS 279.589.
pedestrian mall, and the Agency would provide funds to acquire the land needed to construct
the garage. In return for the risk taken by the consortium in absorbing all of the construction
costs, startup losses, and possible operating losses, the consortium would control the
operation and revenues of the garage as well as the operation of the feature attraction. The
Council approved the Fremont Street Experience project in Bill No. 93-55.
Under the project's plans, the parking garage would occupy an entire city block. The
chosen block was composed of thirty-two individual parcels in multiple ownerships. The
Pappases owned three of these parcels, composing a small portion of the block. The Agency
sent the Pappases an offer to purchase their property. The Pappases refused but indicated their
willingness to enter into a ground lease with the Agency. Although the Agency initially
indicated its willingness to enter into a ground lease, it determined that a ground lease was
not feasible, as financing for the garage would not permit such an arrangement. The Agency
therefore rejected this proposal and adopted a resolution to acquire the Pappases' land, if
necessary, by eminent domain.
After further negotiations to purchase failed, on November 19, 1993, the Agency filed
the eminent domain complaint to acquire the Pappases' property. The Agency moved for
immediate occupancy pending entry of judgment. The Pappases failed to oppose the motion,
which the district court granted. The Agency gained possession of the Pappases' land
effective January 15, 1994.
The Pappases filed an answer and counterclaim, alleging six causes of action: (1) the
Agency violated the Pappases' procedural due process rights in its initial motion for
occupancy, (2) the Agency improperly took the Pappases' property through inverse
condemnation by its initial motion for occupancy, (3) the Agency encouraged the Pappases'
tenants to vacate and not pay rent because of the impending condemnation, (4) the Agency
engaged in intentional interference with business opportunities, (5) the Agency violated the
Pappases' substantive due process rights by failing to adequately compensate them for the
taking, and (6) the Agency failed to allow the Pappases to participate in the redevelopment
project as statutorily required.
[Headnote 2]
The Pappases then filed a motion for rehearing regarding the Agency's immediate
occupancy. The district court denied the motion. The Agency took possession of the property,
began demolishing the existing building, and commenced construction of the parking garage.
11

__________

11
We note that the appropriate vehicle for challenging an order granting a motion for immediate occupancy
is a petition for writ relief, as an appeal of this interlocutory order is unavailable under NRAP 3A(b).
Thereafter, the Agency filed a summary judgment motion on all of the Pappases'
counterclaims. The district court found no genuine issue of material fact as to the first five
counterclaims, noting that they were subsumed within the original eminent domain
complaint, and the counterclaims for monetary damages could be pursued as a part of the just
compensation in the eminent domain action. The district court denied the summary judgment
motion regarding the Pappases' right of participation in the redevelopment project. The
Pappases appealed the dismissal of their counterclaims, but because the district court's
decision was not a final judgment resolving all of the claims between the parties, this court
dismissed the appeal for lack of jurisdiction.
Over three years after the district court had granted the motion for occupancy and the
garage had been constructed, the Pappases filed a motion to dismiss the Agency's eminent
domain complaint.
12
The Pappases alleged the following: (1) the exercise of the power of
eminent domain was without legal justification because the redevelopment plan was fatally
deficient, (2) the district court lacked jurisdiction because the Agency improperly invoked the
power of eminent domain, (3) the Agency negotiated with the Pappases in bad faith, and (4)
the Agency violated the Pappases' procedural due process rights by violating the Nevada
Rules of Civil Procedure. Shortly thereafter, Fremont Street Experience moved, and was
granted permission to intervene in the pending litigation.
In their motion to dismiss, the Pappases attached minutes from the City Council
meetings regarding the Fremont Street Experience, the Fremont Street Experience agreement,
and various other affidavits and records regarding the project. In addition, the district court
ordered the Agency to prepare a record of the administrative proceedings that led to the
eminent domain complaint. Thus, the motion to dismiss was converted into one for summary
judgment.
After considering the evidence and conducting a hearing, the district court dismissed
the Agency's complaint. The district court concluded: (1) the construction of the garage did
not preclude the Pappases from contesting the project's public purpose; (2) the ninety-day
statute of limitations in NRS 279.609 did not preclude judicial review of the taking; (3) the
Agency lacked authority to condemn the property because it failed to amend the
redevelopment plan, and the district court lacked jurisdiction to hear the Agency's eminent
domain complaint; (4) the Agency lacked authority to use eminent domain because there
were other less restrictive means to obtain the property;
__________

12
The motion was also filed shortly before a trial was to begin on the value of the Pappases' property. The
appraiser for the City valued the property at approximately $500,000, while the Pappases' appraiser valued the
property at $1,400,000. The Pappases disagreed with their own appraiser and believed their property was worth
$7,000,000.
eminent domain because there were other less restrictive means to obtain the property; (5) the
Agency acted in bad faith regarding owner participation in the project; (6) despite finding
redevelopment a statutorily valid public use, the Agency's taking of the Pappases' property
was not a public use because of the above statutory violations; and (7) the Agency failed to
act in good faith regarding negotiations for the property. The district court eventually
dismissed the one remaining counterclaim, finalizing the judgment by resolving all of the
pending claims. This appeal and cross-appeal followed.
DISCUSSION
The district court's findings in support of dismissing the eminent domain complaint
encompass four primary issues: (1) whether the Pappases are procedurally barred from
challenging the legality of the eminent domain proceedings based on the doctrines of estoppel
or waiver, (2) whether the taking constitutes a public use under the Nevada and Federal
Constitutions, (3) whether the Project furthers the purpose of eliminating blight under the
community redevelopment statutes, and (4) whether the taking was necessary to further a
public use.
13

Estoppel/waiver
[Headnotes 3, 4]
Appellants contend that the district court erred in permitting the Pappases to challenge
whether the parking structure constituted a public use and the necessity of the taking three
years after the motion for occupancy was granted. Appellants argue that the Pappases should
have opposed the original motion for occupancy or asserted such issues in their motion for
reconsideration. Moreover, appellants allege that the Pappases should have sought an
extraordinary writ in this court directing the district court to vacate its orders granting the
motion for occupancy and denying the motion for reconsideration. We agree that issues
regarding whether the proposed taking constitutes a public use under the Nevada and
Federal Constitutions and whether the taking is necessary to accomplish that public purpose
are issues to be addressed at the early stages of an eminent domain proceeding. Such issues
need to be resolved before the existing property is substantially altered.
[Headnote 5]
However, we have never held that a party seeking dismissal of an eminent domain
complaint based on lack of public use or necessity grounds must raise the issues in
opposition to a motion for occupancy or in a motion to dismiss filed before the subject
property is significantly altered.
__________

13
The district court's remaining findings in support of the dismissal deal with challenges to the scope of the
Plan and the need to amend the Plan whenever a particular project is undertaken. We recently rejected similar
challenges in Las Vegas Downtown Redevelopment v. Crockett, 117 Nev. 816, 34 P.3d 553 (2001).
grounds must raise the issues in opposition to a motion for occupancy or in a motion to
dismiss filed before the subject property is significantly altered. Nor have we indicated that
the failure to file a petition for extraordinary relief from an order granting a motion for
occupancy or denying a motion to dismiss implicates the doctrines of waiver or estoppel.
Therefore, we decline to apply these doctrines to the facts of this case. However, for all
eminent domain cases filed after the date of this opinion, such challenges must be raised prior
to occupancy and material demolition, alteration or construction on the subject property.
Failure to timely assert lack of public use or necessity will constitute a waiver of these issues.
Public use
The United States Constitution declares that no private property shall be taken for
14
15

As the Illinois Court of Appeals eloquently acknowledged, What constitutes a
public purpose' . . . has plagued the American judiciary ever since it arrogated to itself the
[prerogative] of interpreting constitutions.
16
A narrow interpretation requires actual use by
the public.
17
A broad interpretation includes any use [that] concerns the whole
community or promotes the general interest in its relation to any legitimate object of
government. '
18

When construing the Federal Constitution, the United States Supreme Court broadly
interprets the term public use and has rejected the concept that the Constitution requires
actual use of the condemned property by the public.
19
Historically, this court has also
broadly interpreted public use to include public utility, benefit, and advantage.
20
In fact,
the majority of courts that have considered this issue, under state constitutions with language
similar to Nevada's, have adopted broad interpretations of public use.
21

__________

14

15

16
Lake Louise Imp. v. Multimedia Cablevision, 510 N.E.2d 982, 984 (Ill. App. Ct. 1987).

17
See Thornton Development Authority v. Upah, 640 F. Supp. 1071, 1077 (D. Colo. 1986) (actual use like
parks or streets).

18
Southern California Edison Co. v. Rice, 685 F.2d 354, 356 (9th Cir. 1982) (quoting City of Oakland v.
Oakland Raiders, 646 P.2d 835, 841 (Cal. 1982) (quoting Bauer v. County of Ventura, 289 P.2d 1, 6 (Cal.
1955))).

19
Rindge Co. v. Los Angeles, 262 U.S. 700, 707 (1923); Fallbrook Irrigation District v. Bradley, 164 U.S.
112, 159-62 (1896).

20
Dayton Mining Co. v. Seawell, 11 Nev. 394, 408 (1876); see also Milchem Inc. v. District Court, 84 Nev.
541, 548, 445 P.2d 148, 152 (1968).

21
2A Julius L. Sackman, Nichols on Eminent Domain 7.01[1], 7.02[3] (rev. 3d ed. 2003).
Appellants contend that the district court used too narrow an interpretation in finding
that accomplishing redevelopment through the construction of the parking garage was not a
public use subject to the exercise of eminent domain. The Pappases claim that the garage is
not a proper public use, even under the broader definition of public use, because the garage
will be owned and operated by a private entity. The Pappases assert that whenever eminent
domain involves the transfer of land from one private individual to another private individual,
such a transfer is not for a public purpose.
The United States Supreme Court has soundly rejected the notion that transfer of land
ownership from one private individual to another automatically falls outside the power of
eminent domain. In Hawaii Housing Authority v. Midkiff,
22
the High Court considered this
issue in the context of a Hawaii statute designed to diversify land ownership in Hawaii. The
Hawaii Legislature enacted the Land Reform Act of 1967 (Act) to break up a land oligopoly
that had been in existence for hundreds of years.
23
To accomplish this goal, the Act allowed
certain land to be condemned and then transferred from the landowner to other individuals
who had previously leased the land from the landowner.
24
Under the Act, taking private
property from the oligopoly of landowners and distributing the land to existing tenants was
deemed to be a public purpose.
25

The Midkiff Court held that deference to the legislature's public use' determination is
required until it is shown to involve an impossibility.'
26
Continuing, the Court pointed out
that it would not substitute its judgment for a legislature's judgment as to what constitutes a
public use unless the use be palpably without reasonable foundation.'
27

[Headnote 6]
The Court held that controlling the oligopoly was a reasonable exercise of Hawaii's
police power.
28
Although the Court recognized that the Act might not correct the problem, it
concluded that the [constitutional requirement] is satisfied if . . . the . . . [state] Legislature
rationally could have believed that the [Act] would promote its objective.'
29
In this respect,
the Court observed that the courts are not the place for "empirical debates over the
wisdom of takings.
__________

22
467 U.S. 229 (1984).

23
Id. at 232-33.

24
Id. at 233.

25
Id. at 233-34.

26
Id. at 240 (quoting Old Dominion Co. v. United States, 269 U.S. 55, 66 (1925)).

27
Id. at 241 (quoting United States v. Gettysburg Electric R'Y., 160 U.S. 668, 680 (1896)).

28
Id. at 242.

29
Id. (quoting Western & Southern L. I. Co. v. Bd. of Equalization, 451 U.S. 648, 671-72 (1981) (alteration
in original)).
the courts are not the place for empirical debates over the wisdom of takings.
30
Accordingly, if a legislature . . . determines there are substantial reasons for an exercise of
the taking power, courts must defer to its determination that the taking will serve a public
use.
31

We have also rejected the concept that public ownership of the condemned property is
essential to public use. In Urban Renewal Agency v. Iacometti,
32
we indicated that
[p]ossesory use by the public is not an indispensable prerequisite to the lawful exercise of
the power of eminent domain.
33
We further explained that [t]he rights of the [property
owners] will be constitutionally satisfied when they receive just compensation for their
properties.
34

The Nevada Legislature, by enacting the Community Redevelopment Law, has
declared that physical, social, and economic blight constitute a serious and growing menace
which is condemned as injurious and inimical to the public health, safety and welfare of the
people.
35
Further, the Legislature has specifically found that blight decreases property
values
36
and increases crime, which necessarily causes a disproportionate allocation of
public services such as police, fire and accident protection in blighted areas.
37
The
Legislature has declared that a community can exercise the power of eminent domain
whenever the redevelopment of blighted areas cannot be accomplished by private enterprise
alone.
38
More importantly, NRS 279.424(3) specifically provides that the redevelopment
of blighted areas and the provision for appropriate continuing land use . . . constitute public
uses and purposes . . . and are governmental functions of state concern in the interests of
health, safety and welfare of the people.
[Headnote 7]
Thus, so long as a redevelopment plan, or any individual redevelopment project, bears
a rational relationship to the eradication of physical, social or economic blight, it serves a
public purpose within the power of eminent domain. The focus of the inquiry is whether the
plan or project serves the public purpose, not whether the condemned property is eventually
owned by a public or private entity.
__________

30
Id. at 243.

31
Id. at 244.

32
79 Nev. 113, 379 P.2d 466 (1963).

33
Id. at 126, 379 P.2d at 472-73.

34
Id. at 127, 379 P.2d at 473.

35
NRS 279.418(1).

36
NRS 279.420.

37
NRS 279.418(3).

38
NRS 279.424(2).
[Headnote 8]
In this case, there is a rational relationship that justifies the exercise of the power of
eminent domain. The determination that the project would serve a public use is not
palpably without reasonable foundation.'
39
To the contrary, the record indicates the
Agency's purpose for entering into a redevelopment agreement with Fremont Street
Experience was to construct a safe entertainment street mall to attract visitors and businesses
back to the downtown area. The garage was planned to ensure that adequate off-street public
parking would be available for patrons of the downtown businesses. The entire project was
designed to encourage additional revitalization projects spreading out from the central core of
the downtown area. Thus, the project's central focus was to combat economic, social, and
physical blight, a public purpose as defined by the Legislature.
[Headnote 9]
It is this feature that distinguishes the anchor attraction and garage from cases where
courts have dismissed eminent domain complaints because the taking was not for a public
use.
40
In those cases, the courts found that eminent domain proceedings were not instituted
to accomplish a public purpose, such as the elimination of blight. Rather, the courts indicated
that the sole purpose for acquiring the property through condemnation proceedings was to
benefit another private entity.
41
Although, in these cases, the property to be condemned in
each case was located in an area designated for redevelopment, the individual projects did not
further redevelopment goals. Instead, the projects were simply expansions of existing
business concerns. The businesses needed more parking or larger retail space and they wanted
to acquire their neighbors' land to accomplish those purposes. When the neighbors did not
agree, the businesses sought to use the redevelopment acts and eminent domain to acquire
the property.
__________

39
Midkiff, 467 U.S. at 241 (quoting Gettysburg Electric R'Y., 160 U.S. at 680).

40
Cf. Armendariz v. Penman, 75 F.3d 1311, 1320-21 (9th Cir. 1996); 99 Cents Only Stores v. Lancaster
Redevelopment, 237 F. Supp. 2d 1123, 1128-31 (C.D. Cal. 2001); Wilmington Pkg. Auth. v. Land
W/Improvements, 521 A.2d 227 (Del. 1986); Southwestern Ill. Development Auth. v. NCE, 710 N.E.2d 896 (Ill.
App. Ct. 1999), aff'd, 768 N.E.2d 1 (Ill.), cert. denied, 537 U.S. 880 (2002).

41
99 Cents Stores Only, 237 F. Supp. 2d at 1129-31 (eminent domain cannot be used solely to permit
expansion of large retail store at expense of small retail business); Wilmington Parking Auth., 521 A.2d at
234-35 (eminent domain improper where sole purpose was to permit newspaper to expand physical plant);
Southwestern Ill. Development Auth., 710 N.E.2d at 904 (no public purpose found where sole reason for
eminent domain was expansion of raceway parking facilities).
inent domain to acquire the property.
42
The courts found a lack of substantial evidence to
support the government's assertion that the project expansions were designed to combat
physical, economic or social blight. There was no evidence that the areas in question suffered
from high crime, unemployment, vacant business or other components of blight that would be
addressed by the proposed projects.
43
In contrast, when a project is intended to attack blight,
such as creating a significant increase in jobs in an area suffering from high unemployment,
even the relocation of one business through condemnation to make way for a new business is
still considered a public purpose.
44

The creation of a public pedestrian mall and entertainment attraction is not the
expansion of a business entity. The record reflects that the garage was not built to service a
single business, but to address inadequate public parking in the downtown area and the need
for new parking as visitor volume increased in response to the attraction. Although the
attraction benefits the casino consortium that was willing to finance the project, its focus is to
provide a safe, clean, and friendly environment for visitors and businesses in general and an
anchor for revitalization of the entire downtown area. This constitutes a public purpose under
the United States and Nevada Constitutions.
Blight
[Headnote 10]
The district court found that substantial evidence did not support the Agency's finding
that the area in which the Pappases' property was located was blighted; therefore, the
inclusion of this area in the redevelopment plan was improper and the property was not
subject to eminent domain proceedings. Appellants contend that the district court lacked
authority to consider this issue because all challenges to a redevelopment plan must be
brought within ninety days of the plan's adoption.
[Headnotes 11-13]
Blight is a term used to describe physical, social or economic conditions that affect
the health, safety or welfare of a community.
__________

42

43

44
Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455, 458-59 (Mich. 1981) (taking of
property to facilitate construction of automobile plant permitted where area suffered from severe economic
conditions and new industrial development was necessary to combat social and economic blight resulting from
high unemployment).
nity.
45
There is no question that blight takes on many forms. Physical blight refers to a
community's infrastructure, such as poorly designed streets, inadequate public facilities,
building code violations, and substandard housing.
46
Slums are a common example of
physical blight. Social blight incorporates such aspects as high crime or unemployment rates.
47
Economic blight involves downward trends in the business community, relocation of
existing business outside of the community, business failures, and loss of sales or visitor
volumes.
48

[Headnotes 14-16]
For an area to be included in a redevelopment plan, there must be a finding that the
general area suffers from some form of blight and that redevelopment is necessary to
eliminate that blight.
49
If an agency's finding of blight is supported by substantial evidence, it
is not subject to judicial review.
50
Substantial evidence is that which a reasonable mind
might accept as adequate to support a conclusion.
51

In addition, judicial review of a redevelopment plan must be conducted within the
timelines required by statute. NRS 279.609 provides that any challenge to the validity of a
redevelopment plan must be raised within ninety days after the adoption of the ordinance
adopting . . . the plan. NRS 279.589(1) reinforces the finality of NRS 279.609, stating, The
decision of the legislative body concerning a redevelopment area is final and conclusive, and
it is thereafter conclusively presumed that the redevelopment area is a blighted area and that
all prior proceedings have been properly and regularly taken.
This language is taken from similar California redevelopment statutes, and we may
therefore look to California's interpretations for guidance.
52
The California Supreme Court,
interpreting a statute that provides for a sixty-day period to contest a redevelopment plan, has
stated that judicial review of a finding of blight (and therefore public use) must be
commenced within the statutory period.
53
Once the sixty-day period expires, no new action
to challenge the findings may be filed, and a conclusive presumption of blight applies.
__________

45
Berman, 348 U.S. at 31; Sweetwater Valley Civic Ass'n v. National City, 555 P.2d 1099, 1103 (Cal. 1976).

46
Beach-Courchesne v. City of Diamond Bar, 95 Cal. Rptr. 2d 265, 270-71 (Ct. App. 2000).

47
Id. at 271.

48
Id.

49
Sweetwater Valley Civic Ass'n, 555 P.2d at 1103.

50
In re Bunker Hill Urban Renewal Project 1B, 389 P.2d 538 (Cal. 1964).

51
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (internal quotation
marks and citation omitted).

52
Crockett, 117 Nev. at 824, 34 P.3d at 559.

53
Sweetwater Valley Civic Ass'n, 555 P.2d at 1102-03.
lenge the findings may be filed, and a conclusive presumption of blight applies.
54

[Headnote 17]
The Plan in this case was not challenged within the ninety-day period provided by
Nevada statutes; therefore, the district court erred in considering whether substantial evidence
supported the determination that the downtown area suffered from physical, social or
economic blight. Moreover, even if such a challenge had been timely made, the record
reflects substantial evidence in support of the Agency's determination of blight. Specifically,
evidence was presented to the Agency indicating that the downtown area, including the area
in the immediate vicinity of the Pappases' property, suffered from higher crime rates than the
rest of the City of Las Vegas. Vacant lots, burnt out buildings, and vacant buildings were
present on many of the downtown blocks. Visitor volume had been consistently decreasing.
Businesses were relocating outside of the downtown area. Most of the buildings in the area
were over thirty years old and renovations would require substantial upgrades to comply with
existing building codes. While the surveys and investigation may not have been as intensive
as in some of the reported cases, they certainly provide substantial evidence of blight. Thus,
the district court erred in finding the area was not blighted.
[Headnote 18]
The Pappases further contend that even if the area in general can be considered
blighted, their particular property was not blighted; therefore, it could not be subject to
eminent domain. The United States Supreme Court rejected this type of argument in the
seminal case of Berman v. Parker.
55
In Berman, the High Court stated, Property may of
course be taken for this redevelopment which, standing by itself, is innocuous and
unoffending.
56
The Court further concluded, If owner after owner were permitted to resist
these redevelopment programs on the ground that his particular property was not [blighted] . .
. integrated plans for redevelopment would suffer greatly.
57

Although the area in Berman involved slums and an urban renewal statute, rather than
a community redevelopment statute, its rationale still applies. The specific building at issue in
Berman was not itself blighted.
58
The building was to be taken from a private owner and
managed by a private agency.
__________

54
Id. at 1103.

55
348 U.S. 26 (1954).

56
Id. at 35.

57
Id.

58
Id. at 31.
owner and managed by a private agency.
59
The Court concluded, however, that
redevelopment encompasses an entire area, not just individually blighted sections.
60
The
Court observed that the piecemeal approach, the removal of individual structures that were
offensive, would be only a palliative.
61
Through redevelopment it was hoped that the cycle
of decay of the area could be controlled.
62
Consistent with Berman, the fact that the
Pappases' property itself was not blighted does not prohibit its taking through eminent domain
proceedings.
[Headnote 19]
We note, however, that while a property owner may not challenge a redevelopment
plan's finding of blight beyond the ninety-day statutory deadlines, the issue of blight may still
be raised as it relates to the specific project involved in a condemnation proceeding. A
property owner may raise, as an affirmative defense to the taking, that blight originally
identified in the plan or project no longer exists
63
or that the particular project is the product
of fraud or collusion between the governmental agency and the private entities who will
develop the project
64
or the avowed public purpose is merely a pretext
65
or used in bad
faith.
66

[Headnote 20]
The record reflects no basis for any conclusion that economic, social or physical
blight was eradicated between the date the Plan was adopted in 1988 and the date the Fremont
Street Experience project was approved in 1993. To the contrary, tourism and visitor volume
continued to decline in downtown Las Vegas during those years. More businesses had left the
area or closed down. Crime rates, particularly drug- and prostitution-related crimes, continued
to be a problem. Inadequate parking had increased. Thus, the Pappases failed to establish that
downtown Las Vegas no longer suffered from physical, social, or economic blight at the
time of the eminent domain proceedings.
__________

59
Id.

60
Id. at 34.

61
Id.

62
Id. at 35.

63
See 99 Cents Only Stores, 237 F. Supp. 2d at 1130-31; Aposporos v. Urban Redevelopment Com'n, 790
A.2d 1167, 1175-77 (Conn. 2002).

64
See 99 Cents Only Stores, 237 F. Supp. 2d at 1130-31; Aposporos, 790 A.2d at 1175-77; see also
Southwestern Ill. Development Auth., 710 N.E.2d at 896.

65
Earth Management, Inc. v. Heard County, 283 S.E.2d 455, 459-61 (Ga. 1981) (condemnation was pretext
to stop construction of hazardous waste disposal plant); Armendariz, 75 F.3d at 1320-21.

66
Pheasant Ridge Assoc. v. Burlington Town, 506 N.E.2d 1152 (Mass. 1987) (eminent domain proceedings
designed to block construction of low and moderate income housing); Denver West Metro. Dist. v. Geudner, 786
P.2d 434, 436 (Colo. Ct. App. 1989).
suffered from physical, social, or economic blight at the time of the eminent domain
proceedings.
[Headnote 21]
The same conclusion applies to any allegation of fraud, collusion, bad faith or pretext.
The record contains no evidence that the Pappases' property was being acquired for some
purpose other than a public parking facility and community redevelopment of a blighted
downtown area. Because the record does not support the district court's finding of bad faith,
we conclude the district court erred in basing its dismissal on this theory and relying on bad
faith or pretext cases.
Necessity
[Headnotes 22-24]
In an eminent domain proceeding, necessity is usually raised in the context of
challenging whether a project furthers a public purpose and therefore constitutes a public use.
It involves whether the property to be taken is necessary to accomplish the public purpose
67
and it encompasses the selection of the location of the condemned land.
68
However, the
standard for challenging a taking for lack of necessity is even greater than that for challenging
its public purpose. Courts may not question the wisdom of how to accomplish the public
purpose absent a showing of fraud or bad faith.
69
It is up to the legislative body (in this case,
the Agency) to determine how to accomplish the public purpose. Thus, the courts may not
substitute their own judgment or dismiss an eminent domain action simply because the
legislative branch has other methods at its disposal to accomplish the public purpose.
70

[Headnote 25]
The district court found that the Agency acted in bad faith because it could have
entered into long-term ground leases with all of the owners of property on the block needed to
construct the parking garage rather than acquire the property through condemnation.
However, the record contains no evidence to support such a finding. The record reflects that
the Agency rejected this approach because it would severely affect the financing for the
garage. There is no evidence to suggest any other reason for the decision. The Agency's
condemnation decision does not constitute bad faith, and the district court erred by
substituting its judgment for that of the Agency as to the appropriate method for
acquiring the property.
__________

67
Denver West Metro. Dist., 786 P.2d at 436.

68
Thornton Development Authority, 640 F. Supp. at 1076.

69
Port of Umatilla v. Richmond, 321 P.2d 338, 350-51 (Or. 1958); Denver West Metro. Dist., 786 P.2d at
436; Thornton Development Authority, 640 F. Supp. at 1076.

70
Port of Umatilla, 321 P.2d at 350-51; Denver West Metro. Dist., 786 P.2d at 436; Thornton Development
Authority, 640 F. Supp. at 1076.
the district court erred by substituting its judgment for that of the Agency as to the
appropriate method for acquiring the property.
Pappases' counterclaims
[Headnotes 26, 27]
The Pappases' counterclaims involved several concepts. They claimed that the
Agency's inclusion of their property in the Fremont Street Experience project constituted
inverse condemnation, that the Agency violated their due process rights during the initial
motion for occupancy, and that their property was taken without just compensation. The
record indicates no basis for these claims, and the district court correctly granted summary
judgment on them. Issues of inverse condemnation and just compensation were subsumed
within the original condemnation complaint. The Agency correctly followed the procedures
for gaining immediate occupancy, and any alleged confusion generated by the pleadings was
addressed in the Pappases' motion for reconsideration. Since they were given notice and an
opportunity to be heard, due process was satisfied. Thus, the district court did not err in
dismissing these counterclaims.
The Pappases also asserted a counterclaim seeking declaratory relief or damages for
the Agency's alleged failure to permit them to participate in the project through a long-term
ground lease. They base this assertion upon NRS 279.566(1).
71

Pursuant to the statute, the Agency has enacted rules establishing guidelines for owner
participation. The rules provide that the owners and tenants of real property in the
redevelopment area are eligible to participate in the redevelopment of property within the area
subject to certain factors, such as changes in zoning or land use regulations, street
realignments, the ability of participants to finance acquisition, development or rehabilitation
of their project, reduction in total number of individual parcels in the area, and construction
of public facilities.
72
The rules also provide that the owners have a reasonable opportunity to
retain their properties, acquire adjacent properties, sell and relocate, rehabilitate or participate
in new development.
73
The Plan mirrors the rules by indicating that participation
opportunities are necessarily subject to and limited by the same factors cited in the rules.
74

__________

71
Every redevelopment plan must provide for the participation and assistance in the redevelopment of
property in the redevelopment area by the owners of all or part of that property if the owners agree to
participate in conformity with the redevelopment plan adopted by the legislative body for the area.

72
City of Las Vegas Downtown Redevelopment Agency, Rules Governing Participation 300.

73
Id. 400.

74
Redevelopment Plan for the Downtown Las Vegas Redevelopment Area 410.2 (Jan. 22, 1986).
[Headnote 28]
The plain language of the statute, rules and Plan does not give the Pappases an
absolute right to participate in a particular project. It does permit landowners to propose a
development project involving their property or to combine with other landowners on a
project. It also mandates that such proposals be evaluated fairly. It does not, however, require
the Agency to approve any proposal. California courts, when interpreting similar statutes and
rules, have come to the same conclusion. The California Supreme Court has determined that
there is no absolute right of owner participation in the redevelopment of any individual parcel
in a redevelopment area.
75
Whether to allow owner participation in a given project, and
under what circumstances, are matters left to the discretion of the agency.
76

[Headnote 29]
In this case, from the time their property was included in the redevelopment area until
the approval of the Fremont Street Experience consistency project, the Pappases did not seek
to participate in any redevelopment project utilizing their property. Once the property was
identified as necessary for the parking garage, the Pappases did propose a long-term ground
lease as an alternative to acquiring their property. Although initially inclined to consider this
idea, the Agency rejected the long-term lease proposal when it became apparent that
long-term leases would affect financing of the garage construction. No evidence was
presented in opposition to the Agency's motion for summary judgment, indicating that the
Agency's decision to forgo ground leases for the garage was the product of fraud or was not
supported by substantial evidence. To the contrary, the only evidence presented on the issue
demonstrated the need to have single ownership of the land to obtain favorable financing. The
district court correctly concluded that no genuine issue of material fact existed as to this claim
because no evidence was presented to indicate the Agency acted in bad faith when it rejected
the ground-lease proposal.
[Headnote 30]
Finally, the Pappases asserted causes of action relating to alleged rent losses incurred
by them prior to the condemnation proceedings. The Pappases claimed that they lost rent
from the time the Agency announced that the Pappases' property would be part of the
Fremont Street Experience and that City or Agency employees interfered with the relationship
between the Pappases and their tenants.
__________

75
In Re Bunker Hill, 389 P.2d at 563.

76
Sanguinetti v. City Council of City of Stockton, 42 Cal. Rptr. 268, 275 (Ct. App. 1965); see also Fellom v.
Redevelopment Agency, 320 P.2d 884, 888-89 (Cal. Ct. App. 1958) (property owner has no right to participate
where agency condemns property for redevelopment project).
ants. While much of the evidence presented by the Pappases in opposition to the Agency's
motion for summary judgment consisted of inadmissible hearsay (what tenants allegedly told
Carol Pappas), sufficient admissible evidence was submitted on this claim to raise a genuine
issue regarding material questions of fact to survive a motion for summary judgment. Thus,
we conclude the district court erred in dismissing these counterclaims.
CONCLUSION
Substantial evidence supports the Agency's findings that the construction of the
Fremont Street Experience, including the parking garage, furthers the public purpose of
eliminating blight in downtown Las Vegas. Therefore, the Agency's use of eminent domain
proceedings to acquire the Pappases' property for that purpose does not violate the Nevada or
Federal Constitutions. The district court erred in dismissing the eminent domain action. With
the exception of the claims involving pre-condemnation interference with tenants or rental
opportunities, the district court did not err in dismissing the Pappases' counterclaims.
Accordingly, we reverse the judgment of the district court dismissing the complaint in
eminent domain and that portion of the district court's subsequent order pertaining to the lost
rent claims and remand the matter to the district court for further proceedings in accordance
with this opinion. The remaining portion of the district court's order dismissing the
counterclaims is affirmed.
Agosti, C. J., Shearing and Rose, JJ., concur.
Leavitt, J., dissenting:
The Agency's taking of the Pappases' property by eminent domain violates both the
United States Constitution and the Constitution of the State of Nevada.
The United States Constitution states that no private property shall be taken for
1
2

The appropriation of a private citizen's property by eminent domain proceedings must
be for a public use within the meaning of those words in the Constitution. The
government's taking of property and giving it to another for a private use is unconstitutional
and void.
The United States Supreme Court, in Berman v. Parker, upheld the transfer of
property taken by eminent domain from one private party to another private party;
__________

1

2
party to another private party; however, the taking in that case involved a public use.
3
The
Court permitted the transfer of privately owned property to other private parties because the
redevelopment area involved slums in Washington, D.C., and the conditions in the area were
injurious to the public health, safety, morals and welfare.
4
This court, relying on Berman,
previously upheld a redevelopment plan that was attempting to eradicate blight.
5

Under Nevada law, a redevelopment area must include a blighted area, the
redevelopment of which is necessary to effectuate the public purposes.
6
The Pappases'
property was not a slum. The City's survey gave no indication that the property was blighted
in any way. There certainly were no conditions injurious to the public health, safety, morals
and welfare. The property was adjacent to a savings and loan building and across the street
from a bank. The redevelopment statute requires [a]ll noncontiguous areas of a
redevelopment area [to be] blighted or necessary for effective redevelopment before
adopting a redevelopment plan.
7
The Agency failed to demonstrate that the taking of the
Pappases' property was necessary for effective redevelopment; it demonstrated only that it
was desirable.
The California Supreme Court has concluded that [a] finding of blight requires (1)
that the area suffer either social or economic liabilities, or both, requiring redevelopment in
the interest of the health, safety, and general welfare' and (2) the existence of one of the
characteristics of blight.
8
In Sweetwater Valley Civic Ass'n v. National City, a
redevelopment agency sought to take a golf course it considered blighted so that a private
party could construct a shopping center.
9
The court concluded the agency lacked evidence of
social blight and that the golf course was economically profitable; therefore, it was neither an
economic nor social liability.
10

Here, there was no evidence of blight in or around the Pappases' property; thus, the
goal of eliminating blight, which in some cases may be a legitimate public use, is not
applicable in this case. The Supreme Judicial Court of Massachusetts considered limitations
on the acquisition of private lands and the definition of public use in a 1955 decision
involving facts similar to these.
__________

3
348 U.S. 26, 32-36 (1954) (transfer of property permissible to eradicate slums or blight).

4
Id. at 32-33.

5
Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 121-22, 379 P.2d 466, 467 (1963).

6
NRS 279.586(1)(a).

7
NRS 279.586(1)(f).

8
Sweetwater Valley Civic Ass'n v. National City, 555 P.2d 1099, 1103 (Cal. 1976) (quoting California statute
governing redevelopment of blighted areas).

9
Id. at 1100.

10
Id. at 1104.
the acquisition of private lands and the definition of public use in a 1955 decision involving
facts similar to these.
11
There, the Massachusetts Legislature proposed an act that would
authorize the use of public funds to acquire private lands, to be followed by redevelopment of
some portions for public use and the sale of the remainder to the highest bidder for private
use.
12
The court held that the expectation that adjacent areas and the city as a whole would
benefit from the taking did not constitute a public use.
13
The court further noted,
[I]n dealing with this difficult subject one proposition is thoroughly established
practically everywhere, and so far as we are aware without substantial dissent, and that
is that public money cannot be used for the primary purpose of acquiring either by
eminent domain or by purchase private lands to be turned over or sold to private
persons for private use.
14

Federal courts have agreed, particularly when the claimed public use is pretextual:
If officials could take private property, even with adequate compensation, simply by
deciding behind closed doors that some other use of the property would be a public
use,' and if those officials could later justify their decisions in court merely by positing
a conceivable public purpose' to which the taking is rationally related, the public use'
provision of the Takings Clause would lose all power to restrain government takings.
15

The taking of the Pappases' property by the City of Las Vegas Downtown
Redevelopment Agency under the pretextual guise of a public use is unconstitutional and
void, since the plan was to give the property to the Fremont Street Experience, a private
limited liability company, which would receive all revenues from the parking garage and
retail space leases.
I would affirm the district court's dismissal of the case.
Maupin, J., dissenting:
I would affirm the result reached by the district court based upon my dissent in Las
Vegas Downtown Redevelopment v. Crockett.
1

__________

11
In re Opinion of the Justices, 126 N.E.2d 795 (Mass. 1955).

12
Id. at 796-97.

13
Id. at 803.

14
Id. at 802.

15
99 Cents Only Stores v. Lancaster Redevelopment, 237 F. Supp. 2d 1123, 1129 (C.D. Cal. 2001) (quoting
Armendariz v. Penman, 75 F.3d 1311, 1321 (9th Cir. 1996)).

1
117 Nev. 816, 34 P.3d 553 (2001).
Amendment of the Plan
The Fremont Street Experience, the redevelopment project in this matter, is subject to
the same redevelopment plan and is within the same redevelopment area with which we were
concerned in Crockett. Because I conclude that the signal feature of the project, the vacation
of the oldest and one of the most traveled public boulevards in the city, effected a material
change to or deviation from the governing redevelopment plan, I also conclude that the
Agency improperly failed to seek formal amendment of the Plan before taking properties via
eminent domain.
The Crockett majority held that the vacation of four streets and the relocation of a
public park did not constitute a material deviation from or change to the redevelopment plan
involved in this case. A fair reading of the majority opinion in Crockett supports the implied
ruling by the majority in this case that resort to the formal amendment process provided for
under NRS 279.608 was legally unnecessary. This notwithstanding, I remain of the view that
Crockett was wrongly decided on its facts and should be revisited.
The redevelopment area in this case encompasses virtually the entirety of old
downtown Las Vegas, bounded on the west by Martin Luther King Boulevard, on the east by
Bruce Avenue, on the north by Washington Avenue, and on the south by Sahara Avenue. As
noted by the majority in Crockett, the plan was approved to eliminate and prevent the spread
of blight and deterioration, contemplating acquisition of real property by purchase and by
eminent domain, transfer of acquired real property to public or private entities, and the
demolition of buildings . . . construction of parks, development and construction of hotel and
tourism/recreational' facilities, and the widening, closure and vacation of streets and alleys
in the redevelopment area.
2
Although I agreed with the Crockett majority that redevelopment
plan amendments are only necessitated when a proposed project entails a material deviation
from the redevelopment plan, and although I agreed that formal amendment of a plan is not
per se necessary to commence any project, I concluded that the vacation of parks and streets
without formal plan amendment ran afoul of NRS 279.572 and NRS 279.608:
The ability to amend under NRS 279.608 is quite specific in terms of the procedure to
be followed. However, there are no stated criteria in this statute governing when the
amendment process is required, other than the statement in subsection (3) that
substantial changes must be submitted in a written recommendation for consideration
by a city or county government to amend the plan.
__________

2
Id. at 819, 34 P.3d at 555.
government to amend the plan. Thus, I believe NRS 279.608 and NRS 279.572 must be
read together to determine legislative intent. As noted, NRS 279.572 requires that
redevelopment plans show open spaces, layout of streets, size, height, number and
proposed use of buildings, number of dwelling units, property to be devoted to public
purposes, other covenants, conditions, and restrictions, etc. While changes in the use of
individual dwelling units and building sizes may involve mere details not requiring
resort to the formal amendment process, vacation of streets and relocations of public
parks depicted on the approved map are entirely different matters. Certainly, vacation
of streets and relocation of parks are not details . . . .
3

Thus, while the plan in Crockett and in this case empowers the Agency to vacate
public streets, as well as take other actions without resort to formal amendment of the plan, I
am of the view that such powers are beyond those sanctioned in the statutory framework
governing redevelopment unless the plan itself has been approved with the material changes
sought. In Crockett, I also commented upon the Agency's need to promote flexibility and
quick response to changing conditions. In doing so, I noted that the vacation of streets was
not a measure that interfered with the need for expeditious action in response to changing
economic conditions. I would also note that the assemblage of multiple parcels, as was done
in this case to build the garage that now occupies the properties owned by the Pappas family,
was likewise not done as a quick response to changing conditions. No one in this controversy
has seriously suggested that the economic blight the City and the Agency sought to alleviate
was anything other than a long-term developmental problem.
My vote to affirm is not based upon agreement with the district court's myriad
justifications for dismissing the eminent domain action below, including its ruling that all
redevelopment projects implicate the formal amendment process under NRS 279.608. Rather,
it is based upon my view that, while there is no absolute requirement that redevelopment
plans be formally amended to accommodate any redevelopment project, the nature of the
project in question here mandated that the Agency submit to an amendment process prior to
utilizing the power of condemnation to consolidate and assemble the affected parcels. In this,
I note that the district court did not have the benefit of the Crockett decision when it
determined that formal amendment of the Plan was a condition precedent to the exercise of
eminent domain in this instance. However, as discussed below, because plans such as the
1986 Plan at issue here must of necessity be drafted in general terms,
__________

3
Id. at 834, 34 P.3d at 565 (Maupin, C. J., dissenting).
here must of necessity be drafted in general terms, the requirement to amend should be fairly
broad.
4

Blight issues and the amendment process
Appellants claim that any issue of blight was conclusively resolved at the termination
of the ninety-day protest period under NRS 279.609 following the adoption of the Plan in
1986, during which respondents took no action concerning the findings of blight within the
redevelopment area. Respondents claim that evidence in support of the original determination
of blight in the redevelopment area was flawed and insufficient. This, in fact, was one of the
primary underpinnings of the district court's decision. To me, neither side has completely
analyzed the procedural framework within which blight issues may be raised.
Appellants correctly argue that any questions regarding the problem of potential or
existing generalized blight in the redevelopment area was conclusively established after
expiration of the protest period following adoption of the original Plan. In my view, the
district court relied too heavily upon the documentation it ordered produced concerning blight
studies prior to the adoption of the Plan and the delineation of the redevelopment area in
1986. As noted by the Agency, the development of elaborate or comprehensive written
documentation of blight was even unnecessary to a valid determination by the City that the
redevelopment area as a whole contained widespread physical, social and economic blight.
This was a decision that could be properly drawn from individualized knowledge of members
of the Council who were in a position to judge the merits of the blight issue. Because no one
lodged objection to the blight findings within the ninety-day period, any judicial tribunal must
give deference to those findings. This deference, however, does not end the matter. Here,
respondents could have reasonably concluded at the time that such a protest was unnecessary
because the Plan did not establish that the Plan area suffered from blight in its entirety and
that they could protest at a later time whether a particular project would meet the objectives
of the Plan, i.e., the alleviation of blight in their particular neighborhood and its environs.
Going further, it is quite understandable that no individual landowner lodged formal
objections either administratively or within the judicial system because of the daunting and
probably prohibitively expensive task of challenging the validity of the entire Plan. Also,
because ample justification existed to support the establishment of the downtown
redevelopment area, and because the mayor, city manager, members of the Council and at
least one attorney representing the City made public assurances that the utilization of
eminent domain to effect redevelopment projects would only come as a last resort,
__________

4
Projects such as the Fremont Street Experience are extensive enough to require material changes to a
redevelopment plan beyond simple vacation of streets, thus implicating the formal amendment process.
and because the mayor, city manager, members of the Council and at least one attorney
representing the City made public assurances that the utilization of eminent domain to effect
redevelopment projects would only come as a last resort, landowners in the area cannot be
criticized or deprived of more discrete protest rights for not taking action against the Plan
during the initial ninety-day period. Accordingly, while the respondents in this case have
given up the right to contest the general resolution adopting the Plan and the blight findings
inherent in it, they should still have been able to lodge objections in the context of a formal
plan amendment concerning the Fremont Street Experience project on the grounds that
takings pursuant to the amendment would not serve to alleviate blight in the neighborhood,
i.e., were inconsistent with the goals of the original Plan, or were not effected for public use.
Whether they would have been successful may be doubtful, but they were still entitled to that
forum. From there, these landowners could have sought administrative review in district court
and litigated the issues they are trying to litigate now, long after the demolition of their
property and the construction of the parking garage.
5
For these reasons, I feel Crockett too
narrowly defines a redevelopment agency's duty to seek plan amendments to accommodate
specific projects.
General issues concerning redevelopment
The majority correctly concludes that a redevelopment plan or project serves a public
purpose when the plan or project bears a rational relationship to the eradication of physical,
social or economic blight, and that ultimate ownership of taken properties may be eventually
assumed by other private interests if in aid of the public use. The majority also correctly
concludes that non-blighted properties may be taken in support of an integrated plan of
redevelopment to alleviate blight in a particular neighborhood or area.
6
The respondents
agree with these propositions
7
but cling to the arguments that there was insufficient
showing of blight in the first instance,
__________

5
See Redevelopment Agency, Etc. v. Herrold, 150 Cal. Rptr. 621, 625 (Ct. App. 1978).

6
See Berman v. Parker, 348 U.S. 26, 32 (1954).

7
The majority apparently misconstrues respondents' arguments in its recitation that respondents claim that the
takings were illegal because their individual properties were not blighted and that eminent domain can never be
used where the taking involves transfer of land from one private owner to another. My reading of respondents'
arguments is that the project area, including their properties, was not blighted and that the taking here was not an
integrated plan to alleviate blight in the area directly affected by the project; and that the transfers of property
taken via eminent domain in this case were not consistent with the furtherance of a public use through
redevelopment. Counsel for the respondents concedes that the utilization of eminent domain to effect
redevelopment where taken properties are ultimately transferred to private entities is not per se violative of the
Fifth Amendment to the Federal Constitution.
guments that there was insufficient showing of blight in the first instance, that the Fremont
Street Experience was not redevelopment, and that the transfer of the taken properties to
the private entity here was a private benefit, not a public use.
In light of the above, I agree with the proposition that generalized blight issues and
concerns in connection with the redevelopment area were conclusively established in 1986,
that economic blight may be the subject of redevelopment effected via the use of eminent
domain, and that, in Nevada, private entities comprised of hotel/casino properties may
participate in a redevelopment project and therefore take title to redevelopment property
acquired through the use of eminent domain. Thus, I disagree with the district court's findings
below that this type of redevelopment cannot embody a public use or constitute
redevelopment as a matter of law.
CONCLUSION
While the district court erred in its conclusion of law that formal amendment is a
condition precedent for any plan of redevelopment, the profound nature of this Plan required
that this particular project go through the scrutiny of a formal amendment process. In this
way, the affected landowners would have had a full opportunity to administratively air their
views and have those views considered by the Agency prior to undertaking the
projectviews including whether the project was consistent with the elimination of physical
and economic blight within the immediately affected area.
I would therefore affirm the result reached below.
8

__________

8
I note that the traditional measure of damages prohibits the landowner from receiving damages based upon a
post-taking evaluation or appraisal. Although we have never reached this issue, because this unique type of
condemnation proceeding involves redevelopment and the transfer of private property to another private
enterprise entity, it would be reasonable that the respondents be awarded damages based upon the upgraded
value of the property caused by the redevelopment. To that degree, they would be receiving a fair benefit for
their contribution to the redevelopment area. I urge the parties to explore this possibility on remand.
__________
HONORABLE KENNY GUINN, Governor of the State of Nevada, Petitioner, v. THE
LEGISLATURE OF THE STATE OF NEVADA; HONORABLE LORRAINE T.
HUNT, President of the Senate; HONORABLE RICHARD D. PERKINS, Speaker of
the Assembly; MARK E. AMODEI, Senator; TERRY CARE, Senator; MAGGIE
CARLTON, Senator; BARBARA CEGAVSKE, Senator; BOB COFFIN, Senator;
WARREN B. HARDY, Senator; BERNICE MATHEWS, Senator; MIKE
McGINNESS, Senator; JOSEPH M. NEAL, JR., Senator; DENNIS NOLAN, Senator;
ANN O'CONNELL, Senator; WILLIAM J. RAGGIO, Senator; RAYMOND D.
RAWSON, Senator; DEAN A. RHOADS, Senator; MICHAEL SCHNEIDER,
Senator; RAYMOND C. SHAFFER, Senator; SANDRA TIFFANY, Senator; DINA
TITUS, Senator; RANDOLPH TOWNSEND, Senator; MAURICE WASHINGTON,
Senator; VALERIE WIENER, Senator; BERNIE ANDERSON, Assemblyman;
WALTER ANDONOV, Assemblyman; SHARRON E. ANGLE, Assemblywoman;
MORSE ARBERRY, JR., Assemblyman; KELVIN D. ATKINSON, Assemblyman;
BOB BEERS, Assemblyman; DAVID BROWN, Assemblyman; BARBARA E.
BUCKLEY, Assemblywoman; JOHN C. CARPENTER, Assemblyman; VONNE S.
CHOWNING, Assemblywoman; CHAD CHRISTENSEN, Assemblyman; JERRY D.
CLABORN, Assemblyman; TOM COLLINS, Assemblyman; MARCUS CONKLIN,
Assemblyman; JASON GEDDES, Assemblyman; DAWN GIBBONS,
Assemblywoman; CHRIS GIUNCHIGLIANI, Assemblywoman; PETE
GOICOECHEA, Assemblyman; DAVID GOLDWATER, Assemblyman; TOM
GRADY, Assemblyman; JOSH GRIFFIN, Assemblyman; DON GUSTAVSON,
Assemblyman; JOE HARDY, Assemblyman; LYNN C. HETTRICK, Assemblyman;
WILLIAM C. HORNE, Assemblyman; RON KNECHT, Assemblyman; ELLEN M.
KOIVISTO, Assemblywoman; SHEILA LESLIE, Assemblywoman; R. GARN
MABEY, JR., Assemblyman; MARK A. MANENDO, Assemblyman; JOHN A.
MARVEL, Assemblyman; KATHY McCLAIN, Assemblywoman; BOB
McCLEARY, Assemblyman; HARRY MORTENSON, Assemblyman; JOHN
OCEGUERA, Assemblyman; GENIE OHRENSCHALL, Assemblywoman; DAVID
R. PARKS, Assemblyman; PEGGY PIERCE, Assemblywoman; ROD SHERER,
Assemblyman; VALERIE WEBER, Assemblywoman; and WENDELL P.
WILLIAMS, Assemblyman, Respondents.
LYNN HETTRICK; GARN MABEY; BOB BEERS; VALERIE WEBER; CHAD
CHRISTENSEN; WALTER ANDONOV; DAVID BROWN; SHARRON ANGLE;
DON GUSTAVSON; JOHN MARVEL; JOHN CARPENTER; PETE
GOICOECHEA; ROD SHERER; TOM GRADY; RON KNECHT; BARBARA
CEGAVSKE; MIKE McGINNESS; ANN O'CONNELL; SANDRA TIFFANY, AND
MAURICE WASHINGTON, Members of the Legislature of Nevada,
Counter-Petitioners, v. HONORABLE KENNY GUINN, Governor of the State of
Nevada, and THE LEGISLATURE OF THE STATE OF NEVADA,
Counter-Respondents.
No. 41679
September 17, 2003 76 P.3d 22
Petition for rehearing of Governor v. Nevada State Legislature, 119 Nev. 277, 71 P.3d
1269 (2003).
Governor petitioned for writ of mandamus to compel Legislature to fulfill its
constitutional duty to approve balanced budget by time certain and to fund K-12 public
education. The supreme court, 119 Nev. 277, 71 P.3d 1269 (2003), granted the petition in part
and denied it in part. On legislators' petition for rehearing, the supreme court held that the
petition for rehearing was moot.
Petition dismissed; opinion clarified.
Maupin, J., dissented.
Brian Sandoval, Attorney General, and Jeff E. Parker, Solicitor General, Carson City,
for Petitioner and Counter-Respondent.
Brenda J. Erdoes, Legislative Counsel, Carson City; Hale Lane Peek Dennison &
Howard and N. Patrick Flanagan III, Reno, for Respondent Nevada State Legislature.
Allison, MacKenzie, Russell, Pavlakis, Wright & Fagan, Ltd., and Mark E. Amodei,
Carson City, for Respondents Terry Care and Mark E. Amodei.
Kathleen J. England, Las Vegas, for Respondent Morse Arberry, Jr.
Barbara E. Buckley, Carson City, in Proper Person.
Beckley Singleton, Chtd., and Daniel F. Polsenberg and Beau Sterling, Las Vegas, for
Counter-Petitioners.
Jeffrey S. Blanck, General Counsel, Washoe County School District, Reno; Walther
Key Maupin Oats Cox & LeGoy and Michael E. Malloy, Reno, for Amicus Curiae Washoe
County School District.
Michael E. Malloy, Reno, for Amicus Curiae Washoe County School District.
Dyer, Lawrence, Penrose, Flaherty & Donaldson and Michael W. Dyer, Carson City,
for Amici Curiae Nevada State Education Association, Clark County Education Association,
Education Support Employees Association of Clark County, and Washoe Education
Association.
Ellsworth Moody & Bennion, Chtd., and Keen L. Ellsworth, Las Vegas, for Amicus
Curiae Nevada Congress of Parents and Teachers Association.
C. W. Hoffman Jr., General Counsel, Las Vegas, for Amicus Curiae Clark County
School District.
Law Offices of Thomas D. Beatty and Thomas D. Beatty, Las Vegas, for Amici Curiae
Clark County Association of School Administrators, Washoe County Education
Administrators, and Nevada Association of School Administrators.
McCracken Stemerman Bowen & Holsberry and Richard G. McCracken, Las Vegas,
for Amici Curiae Nevada State AFL-CIO and Nevada State Employees Association,
AFSCME, Local 4041.
McDonald Carano Wilson LLP and John J. Laxague, Michael A. T. Pagni, Jeffrey A.
Silvestri and Thomas R. C. Wilson II, Reno, for Amici Curiae Nevada Taxpayers Association,
Associated Builders and ContractorsSierra Nevada Chapter, AGC Nevada, Nevada
Association of Mechanical Contractors, Sierra Chemical Company, Polymer Plastics
Corporation, Barth Electronics, EDAWN/Western Nevada Development Authority, Nevada
Consumer Finance Corporation, Nevada Petroleum Marketers and Convenience Store
Association, Cal-Neva Franchise Owners Association, 7-Eleven Franchise Owners
Association of Southern Nevada, Nevada Resident Agents Association, Monte L. Miller and
Joshua C. Miller, Nevada Bankers Association, Nevada Manufacturers Association, Nevada
Motor Transport Association, Retail Association of Nevada, Tiberti Fence Company, Carson
City Chamber of Commerce, Las Vegas Chamber of Commerce, Nevada Franchised Auto
Dealers Association, Nevadans for Real Tax Fairness, Household International, Nevada
Corporate HeadquartersCort Christie, Robert List, Henderson Chamber of Commerce,
Thomas Powell, Pic-Mount Imaging Corp., Phoenix Holdings of Nevada, Inc., Nevada
Association of Independent Businesses, Chain Drug Council of Nevada, and Grocery Industry
Council of Nevada.
Thomas J. Ray, General Counsel, Las Vegas, for Amicus Curiae University and
Community College System of Nevada.
James T. Richardson, Reno, for Amicus Curiae Nevada Faculty Alliance.
Layne T. Rushforth, Las Vegas, for Amicus Curiae Nevada Concerned Citizens.
Wilson & Barrows and Stewart R. Wilson, Elko; Gregory T. Broderick, Sacramento,
California, for Amicus Curiae Pacific Legal Foundation.
In construing the Constitution, the court's primary objective is to discern the intent of those who enacted the provisions at issue,
and to fashion an interpretation consistent with that objective.
When the enactors' intent cannot be determined, rules of constitutional construction require the court to attempt to harmonize
differing constitutional provisions so as to give as much effect as possible to each provision.
The court looks beyond the plain language of constitutional provisions to ascertain the enactors' intent when a construction is
urged which would result in an absurd situation or when provisions are subject to conflicting interpretations.
Under the separation of powers doctrine, individual legislators cannot be subject to fines or other penalties from a court for
voting in a particular way. Const. art. 3, 1.
When a court is faced with conflicting policies arising out of multiple constitutional provisions in a specific factual situation, it
must, if it can, strike a balance between the provisions.
Legislators' petition for rehearing by supreme court, as to the court's ruling that constitutional two-thirds legislative
supermajority requirement for increases in public revenue could not be improperly used to avoid majority rule on budget
appropriations to fulfill the Legislature's constitutional duty to approve a balanced budget and to fund K-12 public education, was
moot, where Legislature passed revenue-generating bills by the requisite two-thirds vote. Const. art. 4, 18(1), (2); Const. art. 9,
2(1); Const. art. 11, 6.
7. Action.
The supreme court's duty is to decide actual controversies by a judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions, or to declare principles of law which cannot affect the matter in issue
before the court.
The moot issues raised by legislators' petition for rehearing by supreme court, as to the court's ruling that constitutional
two-thirds legislative supermajority requirement for increases in public revenue could not be improperly used to avoid majority
rule on budget appropriations to fulfill the Legislature's constitutional duty to approve a balanced budget and
to fund K-12 public education,
fulfill the Legislature's constitutional duty to approve a balanced budget and to fund K-12 public education, were not issues
capable of repetition yet evading review, as exception to mootness doctrine. If the Legislature were to increase taxes in the future
under simple majority rule, the supreme court would have ample opportunity to review that action. Const. art. 4, 18(1), (2);
Const. art. 9, 2(1); Const. art. 11, 6.
OPINION
Per Curiam:
On July 10, 2003, we entered an opinion in this matter partially granting the
Governor's petition for a writ of mandamus and denying the counter-petition filed by twenty
Legislators. Our opinion directed this court's clerk to issue a writ directing the Legislature to
proceed expeditiously with the 20th Special Session under simple majority rule. The impetus
for the writ petition, and our opinion, was the Nevada Legislature's continued failure to
appropriate funds for the K-12 school system and to balance the state's budget by providing
an adequate revenue plan to defray the state's estimated expenses for the biennium beginning
July 1, 2003.
On July 21, 2003, the counter-petitioners filed a rehearing petition, asking us to recall
our writ of mandamus, reconsider our opinion, and grant one of the remedies suggested in the
counterpetition. Later that same day, the Legislature fulfilled its constitutional duties to fund
the public school system and balance the budget, and it adopted the revenue-raising
legislation required to balance the budget by a two-thirds supermajority. According to the
Legislature,
The Court's ruling in this case facilitated a shift from the tension that was caused by an
externally-imposed requirement to achieve a 2/3 consensus, to a situation where the
legislators were internally motivated to achieve a 2/3 consensus voluntarily. This shift
in perception allowed reevaluation of fixed positions which led expeditiously to the
passage of Senate Bill No. 8 . . . .
The counter-petitioners then supplemented their rehearing petition and moved this
court to withdraw its opinion. At our direction, the Governor and Legislature responded to the
rehearing petition. Assemblyman Arberry filed a supplemental response. Amici Curiae
Education Associations
1
and the Pacific Legal Foundation also filed responses.
Counter-petitioners filed a reply.
__________

1
Nevada State Education Association, Clark County Education Association, Education Support Employees
Association of Clark County and Washoe Education Association.
The Legislative stalemate that was thrust upon us was the result of a recent Nevada
constitutional amendment requiring a two-thirds majority to pass legislation that creates,
generates or increases any public revenue, including taxes. The Senate had passed legislation
that would have completed the budget process, but the Assembly had deadlocked and could
not garner the necessary two-thirds vote because of a difference of opinion among Assembly
members over the role the two-thirds provision played in the budget process. The deadlock
prevented the Assembly from funding the K-12 appropriations bill and balancing the budget.
We concluded, based on the calamitous circumstances facing our state, that the
Legislature could proceed with the 20th Special Session under a simple majority requirement,
given that the dispute over the two-thirds majority requirement's applicability to the budget
process had prevented the Legislature during one regular and two special sessions from
fulfilling its constitutional duties to appropriate funds and to maintain the public school
system while balancing the budget. Accordingly, we granted the petition as to the Legislature
as a body, but denied the petition as to the individual legislators and the Lieutenant Governor.
We also denied the counter-petition, which requested us to determine that the two-thirds
supermajority provision applied not only to increases in revenue, but to the budget itself.
BACKGROUND
The Nevada Constitution has, since it was enacted, required that bills and joint
resolutions be passed by a simple majority of each house. Article 4, Section 18(1) originally
provided that a majority of all the members elected to each house is necessary to pass every
bill or joint resolution.
2
In 1993, a member of the Legislature sponsored a resolution that
proposed amending the Constitution to require a two-thirds majority of each house to increase
certain existing taxes or impose new taxes.
At a hearing on the proposed resolution, legislators asked one of the main proponents
if the other states with similar provisions required a supermajority to approve the state budget
as well as new taxes, or if these states retained a simple majority for budget approval and a
supermajority for funding.
3
Legislative members pointed out to the proponent that the
proposed amendment did not address the budget, only changes in revenue. Thus the
Constitution, if amended, would require a two-thirds majority to change the existing
revenue structure, but only a simple majority to approve the budget.
__________

2
Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 837 (Andrew J. Marsh
off. rep., 1866) [hereinafter Debates & Proceedings].

3
Hearing on A.J.R. 21 Before the Assembly Comm. on Taxation, 67th Leg. (Nev., May 4, 1993) (discussions
involving Assembly members James A. Gibbons, Larry L. Spitler and Myrna T. Williams).
if amended, would require a two-thirds majority to change the existing revenue structure, but
only a simple majority to approve the budget.
4

The members noted that once the budget is approved, the Nevada Constitution
requires that revenue be increased to balance the budget where the cost of services exceeds
projected revenue.
5
Finally, the legislators expressed their concerns that the proposed
language would create the potential for a constitutional crisis because a minority of legislators
might disagree with the majority's lawfully approved budget and therefore refuse to consider
any revenue increases until their budgetary concerns were met, thus creating a deadlock. The
amendment, according to one legislator, was actually empowering a smaller group of people
not to fund the budget.
6
The legislators were concerned that the process would allow a
minority of the Legislature, representing a minority of this State's citizens, to control public
services, contrary to the wishes of a majority of the Legislature, representing a majority of the
citizens.
7

The proponent did not answer the questions posed by other legislators, but indicated
that the issues would be researched and additional information would be provided to
committee members.
8
The record does not reflect whether additional information was
provided, and the Legislature declined to approve the proposal.
9
The proponents then took
the proposal directly to Nevada's voters through the initiative process.
Unfortunately, the initiative petition and proposed amendment did not resolve the
conflict discussed in the legislative hearings. Although the initiative's proponents were aware
of the potential conflict that could result from requiring a simple majority for appropriations
and a supermajority for new or increased public revenue, they did not specifically address this
problem in the initiative's language.
__________

4
Id.

5
Id.

6
Id.

7
Id.

8
Id.

9
In answer to the question concerning minority control, at least one state, Florida, has adopted some
flexibility in its supermajority tax provision. Florida does not include money necessary to support state bonds in
the supermajority requirement and permits increases when necessary to offset changes in federal laws, such as
Medicare, that impact the state. Fla. Const. art. VII, 1(e). Oregon, with a legislature that also meets biennially,
allows its equivalent of Nevada's Interim Finance Committee to approve new programs and revenue to support
those programs when the legislature is not in session, subject to retroactive approval at the next session. Or.
Const. art. III, 3.
tive's language. Nor did the arguments for and against passage, presented in the voter
information and sample ballot pamphlet, discuss the issue or the effect the proposal could
have on other constitutional rights or the state's overall fiscal integrity.
10
Nevada's voters
passed the constitutional amendment in the 1994 and 1996 general elections.
11
Consequently, Nevada's Constitution, in Article 4, Section 18(2), now requires a two-thirds
vote of each house to pass a bill or joint resolution 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. But the initiative did
nothing to the constitutional mechanism for passing the underlying appropriations bills,
12
which requires only a simple majority vote under Article 4, Section 18(1). Thus, the stage
was set for legislative impasse.
As noted in our prior opinion, the Nevada Legislature, which currently meets only
every other year for an abbreviated 120-day regular session,
13
adequately functioned within
the new constraints in the 1997, 1999 and 2001 sessions. Then, the state had a budget surplus
and the budget could be balanced without major tax increases. By 2003, however, the state's
economic situation had changed drastically.
The impact of terrorism, economic recession and increases in population caused the
Governor to begin the 2003 legislative session with a $980 million request for new revenue to
balance his proposed budget for the 2003-2005 biennium. The revenue request was based on
the need to cover revenue shortfalls caused by the downward trend in Nevada's economy after
the terrorist attacks of September 11, 2001, and increased expenses relating to terrorism,
growth and changes mandated by federal laws. Over the four-month regular session, the
proposed budget was reduced by approximately $135 million.
__________

10
Compare Compilation of Ballot Questions 1996, Question No. 11, Arguments for Passage (stating that [i]t
may be more difficult for special interest groups to get increases they favor, and that it may require state
government to prioritize and economize), with Id. Arguments Against Passage (stating that Nevada must remain
flexible to change the tax base).

11
See Nev. Const. art. 19, 2(4) (providing that a constitutional amendment requires approval of a majority
of the voters at two general elections).

12
Nevada's budget is composed of several separate bills: the General Appropriations Act (funds most state
government); the Authorized Expenditure Act; the bill appropriating funds to the State Distributive School
Account (funding K-12 education); the Class-Size Reduction Act; the Capital Improvement Bill (authorizing
construction, maintenance and repair of state buildings); and the Unclassified Pay Bill.

13
Nev. Const. art. 4, 2(1), 2(2). The 1997 session was not subject to the 120-day limitation, as the limit
was not approved by the voters until 1998.
proximately $135 million. However, philosophical differences still permeated the final days
of the regular legislative session. Consequently, by the June 3 conclusion of the 2003 regular
session, the Legislature did not complete its constitutional duty to approve a balanced budget,
but it appropriated $3,264,269,361 for various government functions and the Governor signed
these appropriations into law.
14

The Legislature further failed in its constitutional duty to appropriate funds for
Nevada's public school system.
15
This funding dilemma apparently resulted from a
confluence of factors, including the abbreviated nature of the regular legislative session; the
need to address the comprehensive mandates of the new Federal No Child Left Behind Act;
16
and policy disagreements between the Senate and Assembly in regard to consolidating certain
childhood educational programs, implementing class-size reduction programs, earmarking
money for textbooks and other instructional materials, and encouraging experienced teachers
to work in at-risk schools or schools designated as needing improvement and, of course, the
revenue shortfalls.
On June 3, 2003, the Governor convened the 19th Special Session of the Legislature
to appropriate funds for public education and to provide a tax plan sufficient to pay for the
state's services and balance the final budget.
17
On June 6, 2003, the Senate passed Senate
Bill 2 to authorize and appropriate the State Distributive School Account (SDSA) in the
general fund for the fiscal years beginning July 1, 2003, and July 1, 2004. But Senate Bill 2
lacked the votes necessary to pass the Assembly, because the passage of the bill, without a
revenue plan, would violate the balanced budget provisions of the Constitution. Certain
Assembly members insisted that the two-thirds requirement applied to the budget as well as
the tax structure. These individuals argued that the Governor should expand the special
session to include all components of the budget and that the budget process be reopened so
cuts in services as well as tax increases could be considered in reaching a balanced budget.
Because the majority of the Legislature did not agree with this interpretation and the
request to reopen the budget process, no progress on finalizing and balancing the budget was
made and public schools remained unfunded. Consequently, on June 12, 2003, the Governor
adjourned the 19th Special Session as requested by the Senate Majority Leader and the
Speaker of the Assembly.
__________

14
All but three sections of this law took effect on July 1, 2003. Two provisions took effect on June 3, 2003,
and one other will take effect on July 1, 2004. 2003 Nev. Stat., chs. 327, 328 and 441.

15
Nev. Const. art. 11, 6. Because the State Distributive School Account is such a large component of the
general fund, difficulties concerning the super-majority provision's application were certain to arise with respect
to public school funding, no matter when addressed.

16
20 U.S.C. 6301-7014.

17
Nev. Const. art. 5, 9; id. art. 4, 2(2).
the Governor adjourned the 19th Special Session as requested by the Senate Majority Leader
and the Speaker of the Assembly.
With no end to the stalemate in sight, the Governor convened the Legislature that
same day for a second special session (the 20th Special Session) to begin on June 25, 2003.
18
On the first day of that session, the Senate unanimously passed Senate Bill 5 to authorize and
appropriate the SDSA, and transmitted the legislation to the Assembly. In addition, the
Senate, by the constitutionally mandated two-thirds majority, passed tax measures that
provided a balanced budget for the 2003-2005 biennium, Senate Bills 2 and 6. Once again,
Senate Bill 2 was not passed out of the Assembly. Assembly members sought, however, to
amend Senate Bill 6 to incorporate the SDSA authorization and appropriations and provide
sufficient taxes to balance the budget. But faced with renewed demands that the budget be
reopened for cuts in spending, the Assembly twice failed to pass the amended bill by the
required two-thirds majority; both votes were 27 to 15, one vote shy of the constitutionally
mandated supermajority.
The Governor, who is responsible for ensuring that Nevada's laws are faithfully
executed
19
and for submitting a proposed state budget to the Legislature,
20
filed a petition
for a writ of mandamus at the start of the fiscal year, July 1, 2003, seeking to compel the
Legislature to fulfill its constitutional duties by funding K-12 public education and passing a
balanced budget. The Legislature, in its official response to the petition, asserted that a writ
should not issue because no dispute existed over the interpretation of the Constitution and the
Legislature simply needed more time to come to a consensus. The Legislature indicated,
through counsel, that the plain language of the Constitution required a simple majority to pass
the budget, while the supermajority provisions only applied to a specific proposal to increase,
change or create taxes, not the total amount of revenue to be generated.
The Legislature reached this conclusion using standard rules of constitutional
construction. In its answer, the Legislature indicated that its construction was the only way to
harmonize the simple majority provision for the budget with the supermajority provision for
taxes and the constitutional requirement that revenues shall be raised to balance a budget.
According to the Legislature, when a legislative majority approves a budget, it does so with
full knowledge of the revenue projections and the Constitution's mandatory balanced budget
provisions. As the Legislature noted, when an approved budget exceeds the projected
revenues, the Constitution requires that revenues be raised to balance the budget.
__________

18
At this point, the special sessions were reportedly costing the taxpayers $50,000 per day.

19

20
Id. art. 4, 2(3).
quires that revenues be raised to balance the budget. By approving the budget, the majority
has already decided that the expenditures for services embodied in the budget are necessary
and that revenue must be increased to provide for them. Thus, the majority decides whether
additional revenue is necessary and the total amount of revenue that needs to be raised to
balance the budget. The manner in which revenues will be raised, that is, the specific changes
in the tax structure, then requires supermajority approval.
However, a minority of legislators disagreed with the official response. They filed a
separate answer and counter-petition. The counter-petition sought to compel the Governor to
call a special session to consider and make cuts to the entire state budget and requested this
court to hold the supermajority provision applies to the budget process whenever a budget
requires revenue increases. The counter-petitioners acknowledged that a substantial tax
increase was necessary; however, they disagreed on the gross amount of the increase. The
issue, according to these legislators, was not whether there would be a tax increase, but the
necessity of a particular amount. Each scenario envisioned a several hundred million dollar
tax increase. The impasse continued even though the writ petition was pending. The
Legislature recessed at the call of the majority leaders of both houses.
With the beginning of the new fiscal year came an imminent and grave crisis, caused
by the Legislature's failure to complete its constitutional duties. Particularly at risk was
Nevada's K-12 public education system. The school districts' window for recruiting high
quality teachers to comply with the No Child Left Behind Act was closing. Anticipating
vacant teaching positions, school districts were eliminating special education programs. Both
prospective and current teachers began to question their employment in Nevada. The lack of a
balanced budget was also not without serious consequences, as it threatened Nevada's bond
rating.
This unprecedented crisis arose because of the two antagonistic constitutional
provisions with which the Legislature is saddled. Article 4, Section 18(1) requires only a
simple majority to enact appropriations bills, but Article 4, Section 18(2) requires a
super-majority to generate or increase public revenue to fund those appropriations. That these
provisions occupy antagonistic positions was apparent from the various respondents'
conflicting interpretations. The counter-petitioners argued that the supermajority provision for
generating public revenue trumps Section 18(1)'s requirement that all other bills, including
appropriations, be passed by a simple majority whenever the appropriations call for a tax
increase. According to these legislators, the general appropriations bill, passed by a majority
of the Legislature, was void because it was not passed by a two-thirds supermajority. The
respondent Legislature, on the other hand, asserted that the minority legislators'
interpretation frustrates the plain language of Section 1S{1).
tors' interpretation frustrates the plain language of Section 18(1). According to the
Legislature, it is evident that [the supermajority] provision does not require a two-thirds vote
in regard to a legislative measure which appropriates money, but which does not actually
create, generate, or increase public revenue. Faced with these differing views on the
supermajority requirement's application, it became our task, as the ultimate custodians of
constitutional meaning, to balance Sections 18(1) and 18(2) so as to preserve and credit both
clauses to the maximum extent possible.
21

[Headnotes 1-3]
In construing the Constitution, our primary objective is to discern the intent of those
who enacted the provisions at issue, and to fashion an interpretation consistent with that
objective.
22
However, when the enactors' intent cannot be determined, rules of constitutional
construction require us to attempt to harmonize differing provisions so as to give as much
effect as possible to each provision.
23
We look beyond the plain language of constitutional
provisions to ascertain intent when a construction is urged which would result in an absurd
situation
24
or when provisions are subject to conflicting interpretations.
25

The language of Article 4, Section 18(1) and Article 4, Section 18(2) is clear on its
face. But in operation, the two provisions resulted in legislative paralysis in one general and
two special sessions. The parties advanced conflicting interpretations of the provisions'
requirements. We thus looked to extrinsic evidence surrounding the supermajority provision's
enactment to determine its intended effect.
As mentioned earlier, Article 4, Section 18(2) originated as Ballot Question 11 during
the 1994 and 1996 general elections. The supermajority requirement was intended to make it
more difficult for the Legislature to pass new taxes, hopefully encouraging efficiency and
effectiveness in government. Its proponents argued that the tax restriction might also
encourage state government to prioritize its spending and economize rather than explore new
sources of revenue. But neither the ballot question nor its explanation in the voter pamphlet
informed voters of the likelihood of legislative paralysis and its effect on the state's fiscal
and educational integrity.
__________

21
See Marbury v. Madison, 5 U.S. 137, 178 (1803); State v. Rosenthal, 93 Nev. 36, 41, 559 P.2d 830, 834
(1977); Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996); Denish v. Johnson, 910 P.2d 914, 922 (N.M.
1996).

22
Nevada Mining Ass'n v. Erdoes, 117 Nev. 531, 538, 26 P.3d 753, 757 (2001); accord In re Anthony R.,
201 Cal. Rptr. 299, 302 (Ct. App. 1984).

23
Bowyer v. Taack, 107 Nev. 625, 627, 817 P.2d 1176, 1177 (1991); Ex parte Shelor, 33 Nev. 361, 375, 111
P. 291, 293 (1910).

24
Bussanich v. Douglas, 733 P.2d 644, 647 (Ariz. Ct. App. 1986).

25
See Soto v. Superior Court, 949 P.2d 539, 544 (Ariz. Ct. App. 1997); Utah School Boards v. State Bd. of
Educ., 17 P.3d 1125, 1129 (Utah 2001); cf. Cook v. Maher, 108 Nev. 1024, 842 P.2d 729 (1992) (resolving
conflicting constitutional interpretations).
nation in the voter pamphlet informed voters of the likelihood of legislative paralysis and its
effect on the state's fiscal and educational integrity. Indeed, even the initiative's prime sponsor
was unsure of the consequences of reposing within a small group of legislators the power to
block majority-approved appropriations. And, in 1993, he represented to the Assembly that
the supermajority requirement would not hamstring state government or prevent state
government from responding to legitimate fiscal emergencies.
26

The voters were not privy to the Assembly's concerns that culminated in the
requirement's legislative rejection, and the requirement's proponents failed to address those
concerns when presenting the initiative. Because the voters were not informed of the
problems the amendment would cause if a minority of legislators disagreed with the majority
over the level of services to be provided to Nevada citizens, we could not determine how the
voters intended to resolve such a conflict.
27

We were persuaded that the Legislature's view of the Constitution's plain language
was correct. A simple majority is necessary to approve the budget and determine the need for
raising revenue. A two-thirds supermajority is needed to determine what specific changes
would be made to the existing tax structure to increase revenue. Consequently we rejected the
counter-petitioners' interpretation and dismissed the counter-petition.
[Headnote 4]
However, our dismissal of the counter-petition could not, standing alone, resolve the
impasse. While we could direct the legislators to proceed with their constitutional duties to
pass a balanced budget and fund education, we had no ability to enforce the order. Under the
separation of powers doctrine, individual legislators cannot, nor should they, be subject to
fines or other penalties for voting in a particular way.
28
Additionally, we could not, nor did
we, direct the Legislature to approve any particular funding amount or tax structure.
29
This
does not mean, however, that no other remedy exists to resolve a constitutional crisis
created by the Legislature's inability, as a whole, to fulfill its constitutional obligations.
__________

26
Hearing on A.J.R. 21 Before the Assembly Comm. on Taxation, 67th Leg. (Nev., May 4, 1993).

27
As we noted in our prior opinion, the initiative measure included a provision that permits a majority of the
Legislature to refer any proposed new or increased taxes for a vote at the next general election. The voter
information, however, did not indicate that this language was included to resolve a budget impasse. Nor could
this provision, Article 4, Section 18(3), realistically resolve a budget impasse. As the Legislature meets every
other year in odd-numbered years for only 120 days, and general elections are held only every other year in
even-numbered years, the voters could not intervene for sixteen months. See Nev. Const. art. 4, 2(1), 2(2);
NRS 293.12755.

28
See Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731 (1980); Gravel v. United States, 408
U.S. 606, 616-18 (1972); Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1062 (11th Cir. 1992).

29
Annotation, Mandamus to Members or Officer of Legislature, 136 A.L.R. 677 (1942).
exists to resolve a constitutional crisis created by the Legislature's inability, as a whole, to
fulfill its constitutional obligations. In this instance, the minority's refusal to accept the
majority's duly passed budget decisions meant that the constitutional requirements to fund
public education and balance the budget remained unfulfilled.
In his initial pleadings, the Governor cited to law in other jurisdictions with similar
educational constitutional provisions. Courts of those states had assigned high priority to
these provisions when their legislatures failed to fulfill their constitutional duties to fund
public education. Some amicus briefs urged us to declare the two-thirds majority requirement
unconstitutional, as it interfered with the Legislature's ability to fulfill its duty to fund
education and balance the budget. At the very least, those amici urged the court to suspend
operation of the two-thirds requirement in this session. Other amicus briefs argued against
this proposition. Because the impasse was substantial, impairing educational functions, and
because we discerned that the supermajority requirement was not created to avoid the
Legislature's constitutional duties to fund public education and balance the budget, we
considered these arguments.
[Headnote 5]
When a court is faced with conflicting policies arising out of multiple constitutional
provisions in a specific factual situation, it must, if it can, strike a balance between the
provisions. Conflict avoidance and resolution measures employed in First and Sixth
Amendment jurisprudence demonstrate this fact. For instance, tension is continually present
between the Establishment Clause and the Free Exercise Clause of the First Amendment.
30
One clause prohibits actions that might constitute the establishment of religion, while the
other clause guarantees the right of all to be free to follow their religious preferences. Rather
than rigidly enforce either provision, the United States Supreme Court has found in the
constitutional machinery play in the joints in an effort to strike a balance between them.
31
This rejection of rigid constitutional doctrine is necessary to honor the transcendent value of
free religious exercise in our constitutional scheme, and extends, for example, to the extent
of cautiously delineated secular governmental assistance to religious schools, despite the fact
that such assistance touches on the conflicting values of the Establishment Clause by
indirectly benefiting the religious schools and their sponsors.
32

__________

30
See Tilton v. Richardson, 403 U.S. 672, 677 (1971) (plurality opinion). A tension exists because, as Justice
Brennan once noted, There are certain practices, conceivably violative of the Establishment Clause, the striking
down of which might seriously interfere with certain religious liberties also protected by the [Free Exercise
Clause]. Abington School Dist. v. Schempp, 374 U.S. 203, 296 (1963) (Brennan, J., concurring).

31
Norwood v. Harrison, 413 U.S. 455, 469 (1973); Walz v. Tax Commission, 397 U.S. 664, 669 (1970).

32
Norwood, 413 U.S. at 469.
Similarly, where freedom of the press
33
may jeopardize a criminal defendant's right
to a fair trial,
34
the High Court permits restrictions on trial publicity.
35
The Supreme Court
has stated that the right to an open trial may give way in certain cases to other rights or
interests, such as the defendant's right to a fair trial or the government's interest in inhibiting
disclosure of sensitive information.
36

In reconciling the competing provisions of Nevada's constitutional requirements to
fund education and balance the budget with the supermajority requirements for changing the
tax structure, we believed that the appropriate analysis required weighing the interests
protected by each provision, under the specific facts of this case, to determine whether the net
benefit that accrued to one of those interests exceeded the net harm done to the other.
37
The
essential issue was whether the supermajority requirement could be improperly used by a few
to challenge the majority's budget decisions, thereby preventing the Legislature from
performing its other constitutional duties.
The primary interest supported by permitting the Legislature to suspend the
supermajority requirement in this case was nothing less than the constitutional mandate to
fund public education. The United States Supreme Court fifty years ago stated:
[E]ducation is perhaps the most important function of state and local governments . . . .
[Education] is the very foundation of good citizenship. Today it is a principal
instrument in awakening the child to cultural values, in preparing him for later
professional training, and in helping him to adjust normally to his environment. In these
days, it is doubtful that any child may reasonably be expected to succeed in life if he is
denied the opportunity of an education.
38

This statement is equally pertinent today. No other governmental service plays such a
seminal role in developing and maintaining a citizenry capable of furthering the economic,
political, and social viability of the State.
39
Our State Constitution's framers explicitly and
extensively addressed education,
__________

33
U.S. Const. amend. I.

34
Id. amend. VI.

35
Nebraska Press Assn. v. Stuart, 427 U.S. 539, 562 (1976) (quoting United States v. Dennis, 183 F.2d 201,
212 (2d Cir. 1950) (internal quotation marks omitted)).

36
Waller v. Georgia, 467 U.S. 39, 45 (1984).

37
See Bender v. Williamsport Area School Dist., 741 F.2d 538, 559 (3d Cir. 1984), vacated on other
grounds, 475 U.S. 534 (1986).

38
Brown v. Board of Education, 347 U.S. 483, 493 (1954).

39
Claremont School Dist. v. Governor, 703 A.2d 1353, 1356 (N.H. 1997).
and extensively addressed education,
40
believing strongly that each child should have the
opportunity to receive a basic education.
41

In addition, we were necessarily concerned with the interest of preserving the
democratic process. A majority of legislators, representing a majority of the citizens of this
state, make decisions on the services to be provided and the future of the state. These include
what programs to provide for children, the disabled and senior citizens; the construction and
repair of roads and streets; funding of agencies to protect our citizens from telemarketing
schemes or fraudulent transactions; costs associated with law enforcement activities; and
staffing and location of state offices to avoid delays or long distance travel to obtain
necessary documents such as drivers' licenses, vehicle or corporate registrations. Where these
matters have been discussed and duly voted upon, the Constitution requires that the decision
of the majority be respected.
Against public education, the democratic process and fiscal interests, we balanced the
interests fostered by the supermajority requirement. The two-thirds requirement was intended,
according to the information supplied to the voters in the 1994 and 1996 elections, to limit
the influence of special interest groups, ensuring that one group would not control changes in
the tax structure. The voter pamphlet also indicated that the amendment might promote more
efficiency in government. These interests are legitimate and important, but they do not
outweigh the need to fund education or abide by the majority rule mandated by Article 4,
Section 18(1). To avoid an impasse harmful to public education, we determined that the
supermajority provision could not be improperly used to avoid majority rule on budget
appropriations. Accordingly, we held that the Legislature could suspend the supermajority
rule in favor of a vote by a legislative majority, in this very narrow circumstance, in order to
fulfill its obligations to fund education and balance the budget.
Resolution of the impasse was entirely in the hands of the Legislature. If the minority
abided by the Constitution and recognized that majority rule controlled budget appropriations
issues and thus the need to generate an amount of revenue,
__________

40
See Nev. Const. art. 11, 1 (The legislature shall encourage by all suitable means the promotion of
intellectual, literary, scientific, mining, mechanical, agricultural, and moral improvements, and also provide for a
superintendent of public instruction and by law prescribe the manner of appointment, term of office and the
duties thereof.); id. art. 11, 2 (The legislature shall provide for a uniform system of common schools, by
which a school shall be established and maintained in each school district at least six months in every year . . .
and the legislature may pass such laws as will tend to secure a general attendance of the children in each school
district upon said public schools.); id. art. 11, 6 (In addition to other means provided for the support and
maintenance of said university and common schools, the legislature shall provide for their support and
maintenance by direct legislative appropriation from the general fund . . . .).

41
See Debates & Proceedings, supra note 2, at 567-72.
thus the need to generate an amount of revenue, the impasse would end and the only issue
remaining, what changes to make in the revenue structure to achieve a balanced budget,
would proceed by the two-thirds supermajority. This is, in fact, what happened. After our
decision, the majority made concessions on the budget. Although some legislators would still
have preferred additional cuts, they recognized that the Constitution required them to abide
by the majority's decision and move on to determine how to balance the budget. Two-thirds
of the members of both houses of the Legislature then approved the tax changes necessary to
balance the budget. Our opinion did not eliminate the two-thirds requirement, but it did
indicate that the supermajority provision could not be used to avoid other constitutional
duties.
In the petition for rehearing, counter-petitioners take an abrupt about-face on
interpreting the Nevada Constitution. For, although they strenuously argued in their
counter-petition that the two-thirds supermajority provision necessarily predominated over
the simple majority provision governing appropriations, and that the legislative
appropriations made during the regular session were therefore void, they now argue, for the
first time, that a construction permitting one provision to yield to another necessarily results
in vote dilution. Yet counter-petitioners' proffered construction of the Constitution, if
followed, would also result in vote dilution, according to counter-petitioners' own reasoning.
[Headnotes 6, 7]
We do not reach these issues, however, because we determine that the petition for
rehearing became moot when the Legislature passed the revenue-generating bills by the
requisite two-thirds vote. We have consistently iterated that our duty is to decide actual
controversies by a judgment which can be carried into effect, and not to give opinions upon
moot questions or abstract propositions, or to declare principles of law which cannot affect
the matter in issue before [us].
42

[Headnote 8]
In this case, once the Legislature adopted revenue-raising legislation by a two-thirds
supermajority in order to fund the public school system and balance the state's budget, the
rehearing petition became moot. And, although we recognize an exception to the mootness
doctrine for issues capable of repetition yet evading review, the issues raised in the rehearing
petition are not subject to this narrow exception.
43
As the United States Supreme Court has
noted, to evade review, the challenged action must be too short in its duration to be fully
litigated before its cessation or expiration.
__________

42
NCAA v. University of Nevada, 97 Nev. 56, 57, 624 P.2d 10, 10 (1981).

43
See, e.g., Langston v. Nevada, 110 Nev. 342, 344, 871 P.2d 362, 363 (1994).
its duration to be fully litigated before its cessation or expiration.
44
If the Legislature were to
increase or raise taxes in the future under simple majority rule, this court would have ample
opportunity to review that action.
45

The two-thirds supermajority provision, as passed, created the potential for an
absolute budgetary stalemate in the Legislature; that potential was realized this year and has
done significant damage to public education. A judicial resolution of the constitutional
conflict was necessary, so that the Legislature could perform its constitutionally mandated
duties. Our prior opinion did just that. We dismiss the rehearing petition.
46

Shearing, J., concurring:
I would simply deny the petition for rehearing.
Rule 40(c) of the Nevada Rules of Appellate Procedure sets forth the standards for the
content of a petition for rehearing as follows:
(1) Matters presented in the briefs and oral arguments may not be reargued in the
petition for rehearing, and no point may be raised for the first time on rehearing.
(2) The court may consider rehearings in the following circumstances:
(i) When the court has overlooked or misapprehended a material fact in the
record or a material question of law in the case, or
(ii) When the court has overlooked, misapplied or failed to consider a statute,
procedural rule, regulation or decision directly controlling a dispositive issue in the
case.
This petition for rehearing is not appropriate under any of these provisions. The
petition reargues matter previously considered and presents new matter not previously argued.
Petitioners have not demonstrated to the court that the court has overlooked or
misapprehended any material fact or material question of law. Neither have the petitioners
demonstrated that the court has overlooked, misapplied or failed to consider a statute,
procedural rule, regulation or decision directly controlling a dispositive issue in this case.
__________

44
Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

45
We reject counter-petitioners' attempt to avoid the mootness bar under the exception that voluntary
cessation of unconstitutional conduct will not prevent review. To the extent that counter-petitioners suggest that
the Legislature's passage of revenue-raising legislation constitutes unconstitutional conduct, that suggestion is
absurd. And to the extent counter-petitioners assert that the Legislature's voluntarily ceased unconstitutional
conduct was passing revenue-raising legislation by a simple majority vote, there was no such conduct.

46
We deny counter-petitioners' motion to vacate as well as their emergency stay motion.
The petitioners are additionally requesting new relief. Since the petition for rehearing does
not conform to the appropriate standards, it must be denied.
I do not agree that it is appropriate, in responding to a petition for rehearing, for this
court to attempt to answer public criticism of this court's decision or to criticize the
Constitution or laws of this state. We must accept the duly enacted Constitution and laws of
this state, whether they are well advised or ill advised; the court's duty is to decide the cases
brought before it. Often that duty involves trying to reconcile provisions that, in practical
application, produce results that are incompatible with one another. The court has
accomplished that reconciliation in this case. That should end the matter.
Maupin, J., dissenting:
The rehearing petition in this matter should be granted, the writ of mandamus
dissolved and the prior majority opinion vacated. First, the Nevada State Legislature
completed its work without resort to the remedy afforded by this court in the writ. It
ultimately complied with the Nevada Constitution as written by appropriating funds for the
state educational system and creating the new revenue sources to pay for the appropriations
by a two-thirds vote.
1
Second, the perceived crisis the majority sought to address in the writ
was averted by the legislative action just mentioned. Third, the majority now indicates that
the original decision had discrete application to the limited circumstances of the 2003
legislative sessions; thus a need for precedent for future sessions does not exist. Accordingly,
the entire matter is moot.
I most strongly take issue with the court's comments on rehearing that the
supermajority initiative was flawed from its inception and that the Nevada electorate twice
approved it without an understanding that a stalemate between appropriations and taxes could
eventuate. The initiative was vetted through two elections and we should not from this
vantage point presume to say what the voters of this state knew or did not know. In any case,
the potential for such a conflict was inherent in the proposal and the people of this state had
every right to make it more onerous for the Legislature to create new revenue streams for the
operation of government. Nothing in this constitutional construct prevents the Legislature
from crafting a balanced budget and, as noted, the Legislature ultimately complied with
the supermajority requirement.
__________

1
The Nevada State Constitution requires that the State Legislature appropriate sufficient funds to support and
maintain the public school system; that it provide for sufficient revenues to balance the state budget; and that any
increases in taxes to fund the state budget be approved by a supermajority of both houses of the legislature. See
Nev. Const. art. 11, 6; id. art. 9, 2(1); id. art. 4, 18(2). The writ, as noted by the majority on rehearing,
allowed the 2003 Legislature, in special session, to create new funding sources by a simple majority rather than a
supermajority to resolve an impasse in arriving at a balanced budget that existed as of July 10, 2003.
from crafting a balanced budget and, as noted, the Legislature ultimately complied with the
supermajority requirement.
We need look no further than the second paragraph of the Declaration of American
Independence for sustenance in any judicial analysis of initiative petitions passed by a vote of
the people:
We hold these truths to be self-evident, . . . [t]hat . . . governments are instituted . . . ,
deriving their just powers from the consent of the governed . . . .
This court did not invalidate the tax initiative as somehow being unconstitutional. Having
thus affirmed its basic validity, we must recognize that such initiatives, however inconvenient
to the operatives of government they may be at times, represent the ultimate form of citizen
consent to government. Accordingly, it is not for us, the supreme court of this state, to
criticize the wisdom of a valid initiative embraced by an overwhelming majority of
Nevadans.
I am therefore of the belief that we should, in response to the petition for rehearing,
vacate the writ of mandamus and the prior opinion issued in aid of it.
__________
119 Nev. 479, 479 (2003) Hodges v. State
STEVEN BRADLEY HODGES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 41067
STEVEN BRADLEY HODGES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 41070
October 15, 2003 78 P.3d 67
These are consolidated appeals from an order of the district court denying
post-conviction petitions for writs of habeas corpus. Second Judicial District Court, Washoe
County; Steven P. Elliott, Judge.
After pleading guilty to possession of stolen property and being sentenced as a
habitual offender, defendant petitioned for habeas relief. The district court dismissed claim
without an evidentiary hearing. Defendant appealed. The supreme court held that: (1)
defendant was not entitled to an evidentiary hearing on his claim of ineffective assistance; (2)
for purposes of being sentenced as a habitual criminal, a defendant could stipulate to or waive
proof of prior convictions; and (3) defendant effectively stipulated to his prior convictions so
as to be sentenced as a habitual criminal.
Affirmed.
Mary Lou Wilson, Reno, for Appellant.
1. Habeas Corpus.
A petitioner for habeas relief is entitled to an evidentiary hearing only if he supports his claims with specific factual allegations
that if true would entitle him to relief. The petitioner is not entitled to an evidentiary hearing if the factual allegations are belied or
repelled by the record.
2. Habeas Corpus.
Petitioner failed to allege any specific factual allegations regarding his counsel's alleged insufficient performance or the alleged
involuntary nature of his guilty plea in his petition for habeas relief, and thus, he was not entitled to an evidentiary hearing on his
petition.
For purposes of being sentenced as a habitual criminal, a defendant may stipulate to or waive proof of prior convictions.
However, stipulating simply to the status of a habitual criminal by itself does not allow for sentencing as a habitual criminal. NRS
207.016(6).
Defendant effectively stipulated to his prior convictions so as to be adjudicated as a habitual criminal, even if in his plea
memorandum, defendant simply stipulated to being a habitual criminal, where the State specified the two prior felony convictions
in the amended information, the presentence reports described the prior convictions, the court reminded defendant he was
stipulating to being a habitual criminal and was liable for a prison term of five to twenty years, and in the sentencing hearing, the
court referred specifically to the two prior convictions that served as the basis to adjudicate defendant as a habitual criminal. NRS
207.016(6).
Before Rose, Leavitt and Maupin, JJ.
OPINION
Per Curiam:
The primary issue in these appeals is whether appellant Steven Bradley Hodges
stipulated to prior convictions that provided the basis for his adjudication as a habitual
criminal. We conclude that he did.
FACTS
In April 2002, pursuant to plea negotiations, Hodges agreed to plead guilty to one
count of possession of stolen property in district court case CR01-0742 and another count of
possession of stolen property in case CR01-0743. In return, the State agreed to dismiss all
other charges in these cases and a third case. In the plea memorandum in CR01-0742, Hodges
stipulated, I am a habitual criminal. He and the State agreed in that case to request a prison
term of five to twenty years and in CR01-0743 to request a concurrent sentence.
of five to twenty years and in CR01-0743 to request a concurrent sentence.
Hodges entered his pleas on the same day that he executed a plea memorandum in
each case. Hodges initially told the district court that he was not satisfied with his counsel and
was not guilty of the offenses. The court then set the matter for trial. About an hour later, after
speaking to family members, Hodges indicated that he wanted to plead guilty pursuant to the
plea negotiations. The court asked Hodges if he was being compelled against his will to plead
guilty, and he said, No. The court canvassed Hodges and asked him, among other things:
Do you understand that for this charge, being a habitual criminal, which you are stipulating
that you are a habitual criminal, you can receive a sentence of not less than five years and up
to twenty years in the State prison? He answered, Yes, sir. The court accepted his guilty
pleas.
The State based its charge that Hodges was a habitual criminal on two prior Nevada
felony convictions of possession of stolen property in 1990 and in 1996, which were alleged
in an amended information. These convictions, as well as others, were reflected in both
presentence reports. At the sentencing hearing in June 2002, defense counsel told the district
court that he had provided copies of the presentence reports to Hodges and that there were
no major factual corrections. In pronouncing sentence, the court noted that Hodges had
numerous prior felony convictions, including the two specifically alleged by the State as the
basis for the habitual criminal charge. The court found that Hodges was a habitual criminal
and, following the parties' requests, sentenced him to a prison term of five to twenty years and
to a concurrent term of twenty-four to sixty months for possession of stolen property.
1

A month after judgment was entered in both cases, defense counsel and the Deputy
District Attorney filed a written stipulation that Hodges was entitled to credit for 342 days
served in case CR01-0742; they also stipulated to the admission of Hodges' prior convictions
alleged in the Amended Information in this case. The original judgment of conviction gave
credit for only 153 days, and an amended judgment was eventually filed reflecting the correct
number of days.
Hodges did not file a direct appeal but timely petitioned the district court for habeas
relief. He asserted three claims: he was denied effective assistance of counsel because his
counsel coerced him to plead guilty; he never received a hearing to adjudicate him a habitual
criminal; and his sentence was cruel and unusual punishment. The district court dismissed his
petition. It concluded that the record repelled his claims that his plea was coerced and that
he did not receive a hearing.
__________

1
The district court also sentenced Hodges to a concurrent prison term for assault with a deadly weapon in
another case, which is not at issue in this appeal.
the record repelled his claims that his plea was coerced and that he did not receive a hearing.
It also concluded that Hodges waived such a hearing when he stipulated that he was a
habitual criminal. The court also rejected his claim of cruel and unusual punishment, but
Hodges has not raised this on appeal.
DISCUSSION
[Headnote 1]
NRS 34.810(1)(a) provides that a court shall dismiss a post-conviction habeas petition
challenging a conviction based on a guilty plea unless the petition alleges that the plea was
involuntarily or unknowingly entered or that the plea was entered without effective assistance
of counsel. A petitioner is entitled to an evidentiary hearing only if he supports his claims
with specific factual allegations that if true would entitle him to relief.
2
The petitioner is not
entitled to an evidentiary hearing if the factual allegations are belied or repelled by the record.
3

[Headnote 2]
Hodges claims first that his plea was involuntary and his counsel ineffective because
his counsel coerced him into pleading guilty. The only specific factual allegation that Hodges
makes is that his guilty plea came barely an hour after he told the district court that he was not
guilty and was not satisfied with his counsel. Hodges speculates, based on this, that he was
somehow improperly forced to change his mind. But he makes no specific factual allegations
to support this speculation, and the plea memoranda and transcript of the plea canvass belie
this claim. The district court did not err in dismissing this claim without an evidentiary
hearing.
Hodges also contends that the sentencing court erred in not requiring the State to
produce certified copies of his prior convictions before adjudicating him a habitual criminal.
Hodges has not clearly articulated how this claim is cognizable under NRS 34.810(1)(a),
4
but he implies that his guilty plea was unknowing. We consider the merits of the claim on this
basis, but a review of the relevant law demonstrates that the claim fails.
In Staley v. State in 1990, this court held that adjudicating a defendant a habitual
criminal based on the defendant's stipulation to that status was improper.
5
Our opinion
stated: A person cannot stipulate to a status.
__________

2
Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).

3
Id. at 503, 686 P.2d at 225.

4
The State suggests that this claim is procedurally barred because the issue could have been raised on direct
appeal and Hodges has not shown cause for failing to do so or prejudice. However, NRS 34.810 does not impose
such requirements on a first post-conviction habeas petition challenging a conviction based on a guilty plea.

5
106 Nev. 75, 78, 787 P.2d 396, 397 (1990).
stipulate to a status. The question of the validity of the prior convictions must be determined
by the district court as a matter of law . . . .
6
In McAnulty v. State in 1992, this court held
that under Staley a defendant also could not be adjudicated a habitual criminal based solely
on the defendant's stipulation that he had prior felony convictions.
7
McAnulty suggested that
in finding prior convictions, a district court could rely only on certified copies of prior
judgments of conviction, which by statute were prima facie evidence of such convictions.
8
The next year in Robertson v. State, citing Staley, this court indicated in dictum that district
courts also could not rely on stipulations regarding prior convictions to enhance a DUI
conviction to a felony.
9

In 1997, however, the Legislature made clear that statutory law does not prohibit the
use of a stipulation as a basis for an adjudication of habitual criminality. NRS 207.016(6) was
enacted, providing: Nothing in the provisions of this section, NRS 207.010, 207.012 or
207.014 prohibits a court from imposing an adjudication of habitual criminality, adjudication
of habitual felon or adjudication of habitually fraudulent felon based upon a stipulation of the
parties.
10
This court apparently has not addressed NRS 207.016(6) before, but in 2000 we
issued Krauss v. State, which overrules Robertson to the extent that the opinion suggests that
a defendant may not stipulate to or waive proof of prior DUI convictions.
11
Krauss explains
that such a stipulation or waiver is consistent with other decisions a defendant can properly
make.
Generally, a defendant is entitled to enter into agreements that waive or otherwise
affect his or her fundamental rights. For example, a defendant may waive a preliminary
hearing even though NRS 484.3792(2) indicates that, if a felony DUI offense is alleged,
the facts of the prior convictions must also be shown at the preliminary examination or
presented to the grand jury. Further, by pleading guilty a defendant may waive the trial
itself, thereby relieving the State of its obligation to prove the substantive offense. It
follows that a defendant should be able to stipulate to or waive proof of the prior
convictions at sentencing.
12

__________

6
Id.

7
108 Nev. 179, 181, 826 P.2d 567, 568-69 (1992); see also Crutcher v. District Court, 111 Nev. 1286, 903
P.2d 823 (1995).

8
See 108 Nev. at 181, 826 P.2d at 569.

9
109 Nev. 1086, 1089, 863 P.2d 1040, 1042 (1993).

10
1997 Nev. Stat., ch. 314, 11, at 1187.

11
116 Nev. 307, 310, 998 P.2d 163, 165 (2000).

12
Id. at 310-11, 998 P.2d at 165 (citation omitted).
More recently, we have also indicated that defendants may stipulate to or waive proof of
prior convictions to enhance an offense of unlawful possession of a controlled substance.
13

[Headnote 3]
This court has not explicitly overruled Staley and McAnulty and held that a defendant
can stipulate to the existence of prior convictions as a basis for habitual criminal adjudication,
but given NRS 207.016(6) and our reasoning in Krauss, we now do so. Hodges concedes that
this is the state of the law. However, he distinguishes between stipulating to specific prior
convictions and stipulating simply to the status of habitual criminal, as he did, and argues that
the latter is not a sufficient basis for habitual criminal adjudication. The State agrees that our
caselaw has made this distinction. We also agree: Krauss holds only that a defendant may
stipulate to or waive proof of the prior convictions and does not endorse stipulations to
status alone.
However, the State argues that under NRS 207.016(6) stipulations to status alone
should be a sufficient basis for habitual criminal adjudication. We reject this argument. We
are concerned not only with statutory requirements but also constitutional guarantees of due
process.
14
There is less chance for mistakes or abuse of the stipulation process as long as a
defendant must at least admit that he received specific prior convictions, not just that he is a
habitual criminal, before a district court can consider adjudicating the defendant a habitual
criminal. As explained below, under the circumstances of this case, we conclude that Hodges
did more than just stipulate to habitual criminal status.
Hodges tries to distinguish his case from Krauss. In Krauss, the appellant did not
dispute the validity of his two prior DUI convictions and in response to questions from the
district court indicated that he had been represented by counsel in both cases.
15
Hodges says
that in his case no such colloquy with the district court occurred and that nothing in the record
shows that he stipulated to or waived proof of his prior convictions. We disagree.
[Headnote 4]
In the amended information in this case, the State specified the two prior felony
convictions that it was relying on in charging that Hodges was a habitual criminal. In his plea
memorandum, Hodges stipulated that he was a habitual criminal. The presentence reports
described the two prior convictions, and defense counsel informed the court that there were
no significant errors in the reports.
__________

13
Hudson v. Warden, 117 Nev. 387, 395, 22 P.3d 1154, 1159 (2001) (citing Krauss, 116 Nev. 307, 998 P.2d
163).

14
See id. at 394-95, 22 P.3d at 1159 (In order to satisfy the requirements of due process when seeking to
enhance an offense, the State must prove the prior convictions at or anytime before sentencing.).

15
116 Nev. at 309, 998 P.2d at 164-65.
the court that there were no significant errors in the reports. Before accepting the guilty plea,
the district court reminded Hodges that he was stipulating to being a habitual criminal and
was liable for a prison term of five to twenty years, and Hodges said that he understood. In
the sentencing hearing, the court referred specifically to the two prior convictions that served
as the basis to adjudicate Hodges a habitual criminal. Finally, in seeking an amended
judgment to reflect credit for time served, Hodges stipulated to the admission of the prior
convictions alleged in the amended information. At no point did Hodges disputenor has he
now disputedthe existence or validity of the prior convictions. Given these circumstances,
we conclude that Hodges effectively stipulated to his prior convictions. Therefore, the district
court did not err in dismissing this claim without an evidentiary hearing.
CONCLUSION
We conclude that the claims that Hodges raises are without merit and affirm the
district court's order dismissing his post-conviction petitions for habeas relief.
__________
119 Nev. 485, 485 (2003) Houston v. Bank of America
EDWARD R. HOUSTON and REGINA HOUSTON, Appellants, v. BANK OF AMERICA
FEDERAL SAVINGS BANK, Respondent.
No. 36564
October 28, 2003 78 P.3d 71
Appeal from a district court order granting summary judgment in a dispute over the
priority of liens on real property. Eighth Judicial District Court, Clark County; Stephen L.
Huffaker, Judge.
Mortgagee intervened in lien holders' action to enforce a judgment against property
owner's former husband by writ of execution and sale of the property. The district court
entered order enjoining the sale and granted summary judgment in favor of the mortgagee on
its claim that it held the priority lien on the property because it succeeded to the rights of
former lender. Lien holders appealed. The supreme court held that: (1) a subsequent lender
who pays off a prior note succeeds to the prior lender's priority lien position and, thus, is
equitably subrogated to the former lender's priority lien position, as long as an intervening
lien holder is not prejudiced, adopting Restatement (Third) of Property: Mortgages 7.6; and
(2) the mortgagee was equitably subrogated to the former lender's priority lien position.
Affirmed.
Robison Belaustegui Sharp & Low and F. De Armond Sharp and Natalie J. Reed,
Reno, for Appellants.
McDonald Carano Wilson McCune Bergin Frankovich & Hicks LLP and Andrew P.
Gordon and Jeffrey A. Silvestri, Las Vegas, for Respondent.
Charles T. Cook, Las Vegas; Reinhart Boerner Van Deuren and J. Bushnell Nielsen,
Milwaukee, Wisconsin, for Amicus Curiae Nevada Land Title Association.
The supreme court reviews summary judgment orders de novo.
2. Judgment.
Summary judgment is warranted when the record, viewed in a light most favorable to the non-moving party, indicates no triable
issues of material fact and that the moving party is entitled to judgment as a matter of law.
3. Mortgages; Subrogation.
The supreme court would adopt subsection in Restatement (Third) of Property: Mortgages, providing that a lender who pays off
a prior note succeeds to the prior lender's priority lien position and, thus, is equitably subrogated to the former lender's priority lien
position, as long as the lender was promised repayment and reasonably expected to receive a security interest in the real estate with
the priority of the mortgage being discharged and if subrogation will not materially prejudice the holders of intervening interests in
the real estate. Restatement (Third) of Property: Mortgages 7.6(a)(4).
4. Subrogation.
Equitable subrogation permits a person who pays off an encumbrance to assume the same priority position as the holder of the
previous encumbrance. If there were no subrogation, a junior lien holder would be promoted in priority, giving that creditor/lien
holder an unwarranted and unjust windfall.
5. Subrogation.
Equitable subrogation is an equitable remedy to avoid a person's receiving an unearned windfall at the expense of another.
6. Subrogation.
For purposes of equitable subrogation, neither negligence nor constructive notice of an existing lien is relevant as to whether the
junior lien holder will be unjustly enriched or prejudiced when a lender pays off a prior note.
For purposes of determining whether a refinancing mortgagee is equitably subrogated to a former lender's priority lien position,
on basis that the mortgagee reasonably expected to receive a security interest in the real estate with the priority of the mortgage
being discharged when it paid off the prior, the mortgagee should be found to lack such expectation only where there is affirmative
proof that the mortgagee intended to subordinate its mortgage to the intervening interest. Restatement (Third) of Property:
Mortgages 7.6 cmt. e.
Judgment creditors, as intervening lien holders, failed to produce any evidence that they would be in a worse position than if the
mortgagee had not paid off the former lender's deed of trust on the property or to show that the mortgagee intended to
subordinate its mortgage to the lien holders.
that the mortgagee intended to subordinate its mortgage to the lien holders. Thus, mortgagee succeeded to the rights of former
lender and was equitably subrogated to the former lender's priority lien position.
OPINION
Per Curiam:
This appeal raises the issue of whether a lender who pays off a prior note is equitably
subrogated to the former lender's priority lien position. We conclude that the subsequent
lender succeeds to the prior lender's priority lien position as long as an intervening lien holder
is not prejudiced. Therefore, we affirm the district court's order granting summary judgment
to Bank of America.
FACTS
Appellants, Edward R. Houston and Regina Houston, paid David Boone $740,000 for
investment services. Boone converted the $740,000 to his own use. Shortly thereafter, on
May 13, 1998, Boone and his wife Donna divorced. Pursuant to their property settlement
agreement, Boone quitclaimed to Donna the real property located at 2100 Marina Bay Court,
Las Vegas, Nevada (the property). At the time of the divorce, Norwest Mortgage, Bank of
America's predecessor, held a deed of trust on the property for approximately $342,000.
On May 14, 1998, the Houstons filed a complaint against Boone to recover their
$740,000.
1
On June 1, 1998, the Houstons filed a notice of lis pendens on the property in the
Clark County Recorder's Office. The Houstons also filed an ex parte motion for an order
directing the issuance of a prejudgment writ of attachment, which the district court granted.
Early on June 26, 1998, the writ of attachment was filed in the Clark County Recorder's
Office. Ultimately, the Houstons obtained a judgment against Boone for $740,000. Boone
filed for bankruptcy, but eventually stipulated that the money he owed the Houstons was a
nondischargeable debt. The district court granted the Houstons a writ of execution on the
property and scheduled a sale of the property. Bank of America intervened and the sale was
enjoined.
Bank of America had refinanced the property for Donna on June 26, 1998, after the
Houstons' writ of attachment was recorded. Bank of America had hired Nevada Title
Company to perform a title search of the property, which was conducted on May 29, 1998,
over a month before the refinancing.
__________

1
Later, the Houstons amended their complaint and added Donna Boone as a defendant.
After the district court enjoined the sale, both Bank of America and the Houstons filed
motions for summary judgment. Bank of America argued that it held the priority lien on the
property because it succeeded to the rights of Norwest. The Houstons contended, among other
things, that Bank of America was negligent in failing to discover their interest in the property
and that they would suffer an injury if the district court allowed Bank of America to succeed
to Norwest's priority position. However, the Houstons did not provide the district court with
the terms of the former deed of trust or any other evidence of prejudice. The district court
granted summary judgment in favor of Bank of America and denied the Houstons' motion for
summary judgment.
The Houstons appeal.
DISCUSSION
[Headnotes 1, 2]
This court reviews summary judgment orders de novo.
2
Summary judgment is
warranted when the record, viewed in a light most favorable to the non-moving party,
indicates no triable issues of material fact and that the moving party is entitled to judgment as
a matter of law.
3
The principal issue in this case is whether the district court properly applied
the doctrine of equitable subrogation.
[Headnotes 3, 4]
Equitable subrogation permits a person who pays off an encumbrance to assume the
same priority position as the holder of the previous encumbrance.
4
We have previously
applied the doctrine of equitable subrogation, but not in the context presented by this case.
5
Other jurisdictions have adopted three different approaches
6
in determining whether to apply
equitable subrogation under circumstances in which a third party held a lien on the property at
the time the second lender paid off the former encumbrance.
7

__________

2
University of Nevada, Reno v. Stacey, 116 Nev. 428, 431, 997 P.2d 812, 814 (2000).

3
NRCP 56(c); Auckenthaler v. Grundmeyer, 110 Nev. 682, 684, 877 P.2d 1039, 1040 (1994).

4
Mort v. U.S., 86 F.3d 890, 893 (9th Cir. 1996).

5
See, e.g., Laffranchini v. Clark, 39 Nev. 48, 55-56, 153 P. 250, 251-52 (1915) (concluding that the holder
of an invalid mortgage was not a volunteer, and thus, entitled to be equitably subrogated to the priority position
of the lender whose loan it had paid).

6
Although there are generally three approaches the courts have adopted, some courts refuse to adopt a
bright-line rule and simply consider constructive or actual knowledge as a factor in weighing the equities. See,
e.g., East Boston Sav. Bank v. Ogan, 701 N.E.2d 331, 335 (Mass. 1998) (refusing to adopt a bright-line rule
regarding subrogee knowledge).

7
Id. (recognizing the three approaches the courts have adopted in examining whether a subrogee's knowledge
of an existing lien precludes equitable subrogation).
The first approach, which a majority of states follow, is that actual knowledge of an
existing lien precludes the application of equitable subrogation, but constructive knowledge
does not.
8
The reasoning underlying this approach is that if a mortgagee did not possess
actual notice of a junior lien holder, the mortgagee expected to step into the shoes of the
previous creditor it had paid off.
9
In our view, however, this rule promotes willful ignorance;
it encourages prospective mortgagees to avoid conducting title searches. Under this approach,
if a prospective mortgagee performs a title search and discovers a junior lien holder, it will be
barred from being subrogated. However, if a prospective mortgagee forgoes conducting a
search, which would have uncovered a junior lien holder, and puts on blinders, it nevertheless
will be subrogated. Thus, we decline to adopt this approach.
[Headnotes 5, 6]
The second approach bars the application of equitable subrogation when a lien holder
possesses either actual or constructive notice of an existing lien.
10
However, precluding
equitable subrogation when a mortgagee discovered or could have discovered a junior lien
holder runs contrary to the purposes underlying the doctrine.
__________

8
Osterman v. Baber, 714 N.E.2d 735, 739 (Ind. Ct. App. 1999) (recognizing that the majority of jurisdictions
hold that actual knowledge bars equitable subrogation, but constructive notice does not, but declining to adopt
the majority view); Rusher v. Bunker, 782 P.2d 170, 172 (Or. Ct. App. 1989) (acknowledging that the weight of
authority is that constructive knowledge alone does not preclude equitable subrogation); Restatement (Third) of
Property: Mortgages 7.6 cmt. e (1997); see, e.g., U.S. v. Baran, 996 F.2d 25, 29 (2d Cir. 1993) (applying New
York law); Dietrich Industries, Inc. v. U.S., 988 F.2d 568, 572 (5th Cir. 1993) (applying Texas law); Brooks v.
Resolution Trust Corp., 599 So. 2d 1163, 1165 (Ala. 1992); Smith v. State S & L Ass'n, 223 Cal. Rptr. 298, 301
(Ct. App. 1985); United Carolina Bank v. Beesley, 663 A.2d 574, 576 (Me. 1995); Enterprise Bank v. Federal
Land Bank, 138 S.E. 146, 148-50 (S.C. 1927).

9
George E. Osborne, Mortgages 282, at 573 (2d ed. 1970).

10
See Harms v. Burt, 40 P.3d 329, 332 (Kan. Ct. App. 2002); see also Independence One Mortg. v.
Katsaros, 681 A.2d 1005, 1007-08 (Conn. App. Ct. 1996). Additionally, some courts hold a sophisticated party
to a higher standard in determining whether to apply equitable subrogation. See, e.g., Universal Title Ins. Co. v.
U.S., 942 F.2d 1311, 1317 (8th Cir. 1991) (noting that Minnesota courts impose stricter standards on
professionals than lay persons in assessing whether mistakes are excusable' for purposes of the doctrine of legal
subrogation). Also, other courts hold that negligence in discovering an existing encumbrance bars equitable
subrogation or at least consider a party's negligence in determining whether to apply equitable subrogation. See
Bankers Trust Co. v. U.S., 25 P.3d 877, 882 (Kan. Ct. App. 2001); Landmark Bank v. Ciaravino, 752 S.W.2d
923, 929 (Mo. Ct. App. 1988); Uslife Title Ins. Co. of Dallas v. Romero, 652 P.2d 249, 252 (N.M. Ct. App.
1982); Kim v. Lee, 31 P.3d 665, 671-72 (Wash.), as corrected, 43 P.3d 1222 (Wash. 2001). However, in a
number of these cases negligence merely appears to be another rationale for holding that constructive notice bars
equitable subrogation. See, e.g., Kim, 31 P.3d at 671-72.
Equitable subrogation is an equitable remedy to avoid a person's receiving an unearned
windfall at the expense of another.
11
If there were no subrogation, a junior lien holder would
be promoted in priority, giving that creditor/lien holder an unwarranted and unjust windfall.
12
Neither negligence nor constructive notice of an existing lien is relevant as to whether the
junior lien holder will be unjustly enriched or prejudiced. The basis for subrogation in [the
mortgage] context is the lender's justified expectation of receiving [a] security interest in
the property.
13
Even a lender with knowledge of an existing lien on the property ordinarily
expects to step into the shoes of the creditor it paid off.
14
Therefore, we also decline to adopt
this approach.
The third approach, the view adopted by section 7.6 of the Restatement (Third) of
Property: Mortgages, disregards actual or constructive notice if the junior lien holder is not
prejudiced.
15
Under the Restatement, a mortgagee will be subrogated when it pays the entire
loan of another as long as the mortgagee was promised repayment and reasonably expected
to receive a security interest in the real estate with the priority of the mortgage being
discharged, and if subrogation will not materially prejudice the holders of intervening
interests in the real estate.
16
Because the Restatement approach is the most persuasive, we
adopt the view expressed by it.
[Headnote 7]
Under the Restatement, notice of an intervening lien is not necessarily pertinent to
whether a party should be subrogated, and a party can be subrogated even if the party
possessed actual knowledge of the other lien holder.
17
Pursuant to the Restatement, [t]he
question in such cases is whether the payor reasonably expected to get security with a
priority equal to the mortgage being paid.
__________

11
Restatement (Third) of Property: Mortgages 7.6 cmt. a; Baran, 996 F.2d at 29.

12
Restatement (Third) of Property: Mortgages 7.6 cmt. a.

13
2 Grant S. Nelson & Dale A. Whitman, Real Estate Finance Law 10.6, at 15-16 (4th ed. 2002).

14
Restatement (Third) of Property: Mortgages 7.6 cmt. e.

15
See Suntrust Bank v. Riverside Nat. Bank, 792 So. 2d 1222, 1227 n.3 (Fla. Dist. Ct. App. 2001) (citing
section 7.6 of the Restatement to support its decision that negligence in failing to discover an existing lien does
not preclude the application of equitable subrogation as long as the existing interest does not suffer prejudice);
see also Trus Joist Corp. v. Nat'l Union Fire Ins. Co., 462 A.2d 603, 609 (N.J. Super. Ct. App. Div. 1983)
(subrogating mortgagee notwithstanding its possessing actual knowledge of an existing intervening interest),
overruled on other grounds by Trus Joist Corp. v. Treetop Associates, Inc., 477 A.2d 817 (N.J. 1984); Klotz v.
Klotz, 440 N.W.2d 406, 407-10 (Iowa Ct. App. 1989) (subrogating party to senior lien position despite party's
having actual knowledge of junior lien holder). These latter two cases do not adopt the Restatement, but their
holdings are similar to the Restatement view.

16
Restatement (Third) of Property: Mortgages 7.6(a)(4).

17
Id. 7.6 cmt. e.
question in such cases is whether the payor reasonably expected to get security with a priority
equal to the mortgage being paid.
18
Further, [a] refinancing mortgagee should be found to
lack such an expectation only where there is affirmative proof that the mortgagee intended to
subordinate its mortgage to the intervening interest.
19

The Restatement reasons that an intervening lien holder will not be materially
prejudiced by the application of equitable subrogation because the intervening lien holder will
remain in the same position.
20
The Restatement notes that [t]he holders of intervening
interests can hardly complain about this result, for they are no worse off than before the
senior obligation was discharged.
21
Subrogation will not be granted if it would result in
injustice or prejudice to an intervening lienor.
22

[Headnote 8]
In this case, Bank of America fully paid off the former deed of trust on the property
held by Norwest. In the district court's order granting Bank of America's motion for a
preliminary injunction, it found that Bank of America paid off the entire former mortgage
with the intention and belief that it would acquire Norwest Mortgage's first-position deed of
trust lien on the Property. Further, the record does not contain any evidence that Bank of
America intended to subordinate its mortgage to the Houstons.
23

The Houstons argue that there are issues of fact as to whether they will be prejudiced
by the equitable subrogation of Bank of America to the priority lien position. Yet the
Houstons did not produce any evidence that they would be prejudiced by equitably
subrogating Bank of America, nor did they request time to produce such evidence. Both
parties agree that Bank of America's loan is $5,000 more than the Norwest deed of trust, and
therefore Bank of America is not entitled to equitable subrogation with regard to the $5,000
increase in its loan.
The mortgagor changed from Boone and Donna, to Donna alone, but the Houstons did
not offer any evidence that this change prejudiced them. The Houstons did not show that
Donna has a poor credit rating, makes so little money, or has so few assets that Bank of
America will likely have to foreclose on the property, resulting in the Houstons' loss of
their interest in the property.
__________

18
Id.

19
Id.

20
Id.

21
Id. 7.6 cmt. a.

22
2 Nelson & Whitman, supra note 13, 10.6, at 19.

23
The Houstons maintain that Bank of America should not be equitably subrogated to the priority position
because it negligently failed to discover the lis pendens and writ of attachment the Houstons filed. Alternatively,
they contend that there are issues of fact as to whether Bank of America was reasonable in relying on a
twenty-seven day old title report. However, since we adopt the Restatement view, Bank of America's negligence
in discovering the lis pendens and writ of attachment or its knowledge thereof is irrelevant.
poor credit rating, makes so little money, or has so few assets that Bank of America will
likely have to foreclose on the property, resulting in the Houstons' loss of their interest in the
property. The Houstons did not provide the district court with the previous loan's terms to
compare with the new loan's terms to determine if there were modifications that materially
prejudice the Houstons. Because there is no evidence in the record that the Houstons will be
in a worse position than if Bank of America did not pay off the Norwest deed of trust, the
district court did not err by granting Bank of America's motion for summary judgment and
denying the Houstons' motion.
We affirm the judgment of the district court.
__________
119 Nev. 492, 492 (2003) Shelton v. Shelton
MARYANN C. SHELTON, nka MARYANN C. MITCHELL, Appellant, v. ROLAND A.
SHELTON, Respondent.
No. 37483
October 29, 2003 78 P.3d 507
Appeal from a district court order denying wife's motion to enforce provision in
divorce decree awarding her a portion of husband's pension. Eighth Judicial District Court,
Family Court Division, Clark County; Robert E. Gaston, Judge.
Former wife brought motion to enforce divorce decree providing her with half of
former husband's military pension after former husband waived pension in order to receive
disability benefits. The district court denied motion, and former wife appealed. The supreme
court, Shearing, J., held that former husband was contractually obligated by divorce
settlement agreement to continue to pay former wife $577 per month.
Amesbury & Schutt and David C. Amesbury, Las Vegas, for Appellant.
Leavitt Law Firm and Glenn C. Schepps, Las Vegas, for Respondent.
1. Husband And Wife.
Former husband was contractually obligated by divorce settlement agreement to continue to pay former wife $577 per month,
even though agreement stated that payment represented half of former husband's military pension and former husband had waived
pension in order to receive disability benefits, which were not covered by agreement and were precluded from classification as
community property by federal law. Agreement was ambiguous in that $577 award was more than half of former husband's
pension, and thus, agreement of parties was for former wife to receive $577 each month for her portion of
community asset,
wife to receive $577 each month for her portion of community asset, rather than pay her one-half of his retirement pay, since $577
was more specific than one-half. 38 U.S.C. 5305.
2. States.
Domestic relations are generally within the purview of state courts.
3. Divorce; Husband and Wife; States.
Although states cannot divide military disability payments as community property, states are not preempted from enforcing
orders that are res judicata or from enforcing contracts or from reconsidering divorce decrees, even when disability pay is
involved.
4. Contracts.
The question of the interpretation of a contract when the facts are not in dispute is a question of law.
5. Contracts.
A contract is ambiguous if it is reasonably susceptible to more than one interpretation.
6. Contracts.
The best approach for interpreting an ambiguous contract is to delve beyond its express terms and examine the circumstances
surrounding the parties' agreement in order to determine the true mutual intentions of the parties. Such an examination includes
not only the circumstances surrounding the contract's execution, but also subsequent acts and declarations of the parties.
7. Contracts.
A specific provision of a contract will qualify the meaning of a general provision.
8. Contracts.
An interpretation that results in a fair and reasonable contract is preferable to one that results in a harsh and unreasonable
contract.
Before Agosti, C. J., Shearing and Becker, JJ.
OPINION
The principal issue in this appeal is whether relief is available to a former spouse
when a veteran unilaterally waives his military pension in order to receive disability benefits,
resulting in the former spouse's loss of her community share in the pension. We conclude
that, although courts are prohibited by federal law from determining veterans' disability pay to
be community property, state law of contracts is not preempted by federal law. Thus,
respondent must satisfy his contractual obligations to his former spouse, and the district court
erred in denying former spouse's motion solely on the basis that federal law does not permit
disability pay to be divided as community property.
FACTS
Respondent Roland Shelton and appellant Maryann Shelton were married on
September 6, 1980, in San Diego, California. Roland served in the United States Navy for
more than ten years during the marriage.
served in the United States Navy for more than ten years during the marriage. On January 17,
1997, the Sheltons jointly petitioned for a summary decree of divorce in Clark County
District Court. On January 29, 1997, the district court entered a decree of divorce
incorporating the parties' joint petition.
Under the terms of the agreement, the parties designated both Roland's military
retirement pay and military disability pay as community property, although the agreement
awarded all of the disability pay to Roland. The parties, who negotiated the terms without the
aid of counsel, agreed that Roland, individually, would be allotted half of [his] military
retirement pay in the amount of $500 and military disability pay in the amount of $174.
Maryann would be allotted the other half of HUSBAND'S military retirement pay in the
amount of $577, until her demise.
1
At the time of the divorce, Roland had an outstanding
military pension of $1,000 per month, and a disability payment of $174 per month based upon
a determination that he was ten percent disabled. Both Roland and Maryann waived any right
to spousal support; however, Maryann remained as beneficiary under Roland's military
retirement insurance.
Beginning in January 1997, Roland regularly made his required payments to Maryann.
In 1999, the Department of Veterans Affairs reevaluated Roland's disability status and
concluded that Roland was 100 percent disabled, effective May 1, 1998. Roland elected to
waive all his military retirement benefits for an equivalent amount of tax-exempt disability
pay as federal law allows.
2
Upon receiving notice of an increased disability rating on
February 26, 1999, Roland ceased his payments to Maryann.
Thereafter, Maryann moved the district court for an order enforcing the decree of
divorce. Maryann asked for half of Roland's military pension, or $577, as had been agreed
upon before the divorce and as was incorporated in the divorce decree. Roland opposed
Maryann's motion on the grounds that the divorce decree did not allocate disability pay to
Maryann, and that federal law prohibited community property division of veterans' disability
benefits. The district court denied Maryann's motion on the basis of the United States
Supreme Court's decision in Mansell v. Mansell (Mansell I),
3
despite repeatedly stating how
unfair the result was to Maryann. In Mansell I, the Supreme Court held that federal law
prevents states from treating military disability pay as divisible community property.
4
The
district court also refused to grant Maryann equitable relief for the loss of her $577 monthly
income on the basis that it lacked jurisdiction to hear a request for alimony when alimony
had been waived in the final divorce decree.
__________

1
Despite the purported equal division, the numerical disparity between the respective portions of military
retirement pay was never addressed.

2
38 U.S.C. 5305 (2000).

3
490 U.S. 581 (1989).

4
Id. at 594-95.
Maryann equitable relief for the loss of her $577 monthly income on the basis that it lacked
jurisdiction to hear a request for alimony when alimony had been waived in the final divorce
decree.
DISCUSSION
[Headnotes 1, 2]
Domestic relations are generally within the purview of state courts.
5
However, in
McCarty v. McCarty, a 1981 decision, the United States Supreme Court construed federal
statutes to prevent state courts from treating military retirement pay as community property.
6
The United States Supreme Court reasoned that federal preemption was necessary as the
federal government was interested in maintaining military retirement schemes as an
inducement for enlistment and re-enlistment and for effective military personnel
management.
7
In response to the broad preemption ruling in McCarty, Congress enacted the
Uniformed Services Former Spouses' Protection Act (USFSPA) in 1982.
8
The USFSPA
authorizes state courts to divide disposable retired pay among spouses in accordance with
community property law.
9
Although the USFSPA clearly subjected military retirement pay
to community property laws, it did not clearly address whether disability benefits were also
subject to state community property or equitable distribution laws.
Subsequently, in Mansell I, the Supreme Court considered whether state courts may
treat veterans' disability benefits as community property. The Court initially noted that [i]n
order to prevent double dipping, a military retiree may receive disability benefits only to the
extent that he waives a corresponding amount of his military retirement pay.
10
The Court
then held that under USFSPA's plain and precise language, state courts have been granted
the authority to treat disposable retired pay as community property; they have not been
granted the authority to treat total retired pay [which includes disability pay] as community
property.
11
Because Roland elected to receive full disability pay in lieu of his retirement
pay,
__________

5
Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979).

6
453 U.S. 210, 232-35 (1981); see also Mansell I, 490 U.S. at 584 (discussing McCarty).

7
McCarty, 453 U.S. at 213, 234.

8
Pub. L. No. 97-252, 96 Stat. 730 (codified as amended at 10 U.S.C. 1408). The parties refer to the 1982
version of the statute; however, the relevant parts of the statute have not changed since 1982.

9
10 U.S.C. 1408(c)(1) (2000). Disposable retired pay refers to monthly retired pay minus statutory
exceptions. Id. 1408(a)(4).

10
Mansell I, 490 U.S. at 583; see also 38 U.S.C. 5305 (2000) (previously codified at 38 U.S.C. 3105
(1988)).

11
490 U.S. at 589.
retirement pay, he argues that Mansell I prevents any payments to Maryann, thus depriving
her of her community property interest in Roland's pension. Based on the cases decided after
Mansell I, we do not agree.
[Headnote 3]
Many courts have determined that a recipient of military disability payments may not
deprive a former spouse of marital property.
12
The courts proceed under various theories, but
the underlying theme is that it is unfair for a veteran spouse to unilaterally deprive a former
spouse of a community property interest simply by making an election to take disability pay
in lieu of retirement pay.
13
Although states cannot divide disability payments as community
property, states are not preempted from enforcing orders that are res judicata
14
or from
enforcing contracts
15
or from reconsidering divorce decrees,
16
even when disability pay is
involved.
In Poullard v. Poullard, the Louisiana Court of Appeal held that the husband had
stipulated to give his former wife one half of his retirement pay in consideration of her
alimony waiver.
17
The court held that [n]othing in either the state or federal law prevents a
person from agreeing to give a part of his disability benefit to another. . . . [T]he
re-designation of pay cannot defeat the prior agreement of the parties.
18

In Hisgen v. Hisgen, the Supreme Court of South Dakota enforced a property
settlement agreement, stating:
That case [Mansell I], however, does not preclude state courts from interpreting divorce
settlements to allow a spouse to receive property or money equivalent to half a veteran's
retirement entitlement. [T]he source of the payments need not come from his exempt
disability pay; the husband is free to satisfy his obligations to his former wife by using
other available assets.
__________

12
In re Marriage of Mansell, 265 Cal. Rptr. 227 (Ct. App. 1989) (Mansell II), cert. denied, 498 U.S. 806
(1990); Ford v. Ford, 783 S.W.2d 879 (Ark. Ct. App. 1990); McHugh v. McHugh, 861 P.2d 113 (Idaho Ct.
App. 1993); Adams v. Adams, 725 A.2d 824 (Pa. Super. Ct. 1999); Trahan v. Trahan, 894 S.W.2d 113 (Tex.
App. 1995); Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992); In re Marriage of Jennings, 980 P.2d 1248
(Wash. 1999).

13
Virtually any military retiree eligible for disability will elect to receive disability pay rather than retirement
pay since disability pay is not subject to federal, state and local taxation, and thus increases the recipient's
after-tax income. 38 U.S.C. 5301(a) (2000) (previously codified at 38 U.S.C. 3101(a) (1988)); Mansell I,
490 U.S. at 583-84.

14
Mansell II, 265 Cal. Rptr. at 227; Ford, 783 S.W.2d at 879; Trahan, 894 S.W.2d at 113.

15
Adams, 725 A.2d at 824; McHugh, 861 P.2d at 113; Owen, 419 S.E.2d at 267.

16
Marriage of Jennings, 980 P.2d at 1248.

17
780 So. 2d 498, 499-500 (La. Ct. App. 2001).

18
Id. at 500 (internal quotation marks omitted).
satisfy his obligations to his former wife by using other available assets.
19

[Headnotes 4-8]
The question of the interpretation of a contract when the facts are not in dispute is a
question of law.
20
A contract is ambiguous if it is reasonably susceptible to more than one
interpretation.
21
The best approach for interpreting an ambiguous contract is to delve
beyond its express terms and examine the circumstances surrounding the parties' agreement
in order to determine the true mutual intentions of the parties.
22
This examination includes
not only the circumstances surrounding the contract's execution, but also subsequent acts and
declarations of the parties.
23
Also, a specific provision will qualify the meaning of a general
provision.
24
Finally, [a]n interpretation which results in a fair and reasonable contract is
preferable to one that results in a harsh and unreasonable contract.
25

The property settlement agreement between Roland and Maryann is ambiguous. The
agreement states that Roland's military disability is community property, but it awards the
entire amount to Roland. The award of military retirement pay to Maryann describes the
award as [o]ne half of HUSBAND'S military retirement in the amount of $577, until her
demise, but the amount designated is more than one-half the amount of Roland's retirement
pay at the time. Roland paid Maryann $577 until the time he elected to take disability pay in
lieu of retirement pay.
It appears, therefore, that the agreement of the parties was that Roland pay Maryann
$577 each month for her portion of the community asset, rather than pay her one-half of his
retirement pay, since $577 is more specific than one-half. Moreover, the parties' subsequent
conduct reinforces this conclusion, in that Roland ratified the terms of the agreement by
performing his obligations under the decree for a period of two years.
__________

19
554 N.W.2d 494, 498 (S.D. 1996) (quoting Holmes v. Holmes, 375 S.E.2d 387, 395 (Va. Ct. App. 1988)).

20
Grand Hotel Gift Shop v. Granite St. Ins., 108 Nev. 811, 815, 839 P.2d 599, 602 (1992).

21
Margrave v. Dermody Properties, 110 Nev. 824, 827, 878 P.2d 291, 293 (1994); see also Pressler v. City
of Reno, 118 Nev. 506, 509-10, 50 P.3d 1096, 1098 (2002).

22
Hilton Hotels v. Butch Lewis Productions, 107 Nev. 226, 231, 808 P.2d 919, 921 (1991).

23
See Trans Western Leasing v. Corrao Constr. Co., 98 Nev. 445, 447, 652 P.2d 1181, 1183 (1982).

24
See Mayer v. Pierce County Medical Bureau, 909 P.2d 1323, 1327 (Wash. Ct. App. 1995).

25
Dickenson v. State, Dep't of Wildlife, 110 Nev. 934, 937, 877 P.2d 1059, 1061 (1994).
under the decree for a period of two years.
26
In addition, this interpretation yields a fair and
reasonable result, as opposed to a harsh and unfair result. Roland cannot escape his
contractual obligation by voluntarily choosing to forfeit his retirement pay.
27
It appears that
Roland possesses ample other assets from which to pay his obligation without even touching
his disability pay. Even if he lacks these assets, nothing prevents him from using his disability
payments to satisfy his contractual obligation.
28

CONCLUSION
Although states are precluded by federal law from treating disability benefits as
community property, states are not precluded from applying state contract law, even when
disability benefits are involved. The district court's order is reversed and this matter is
remanded to the district court for further proceedings consistent with this opinion.
Agosti, C. J., and Becker, J., concur.
__________
119 Nev. 498, 498 (2003) Daniel v. State
DORION DANIEL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38857
November 3, 2003 78 P.3d 890
Appeal from a judgment of conviction, pursuant to a jury trial, of two counts of
first-degree murder, two counts of attempted murder with use of a deadly weapon, and one
count of burglary while in possession of a firearm, and from a death sentence. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
The supreme court held that: (1) trial court erred in meeting privately with a reluctant
State witness in capital case without making a record of the meeting; (2) trial court erred by
failing to notify counsel in capital case before communicating to the jury on a substantive
matter; (3) court abused its discretion in unduly limiting defendant's cross-examination of
the surviving victims and in completely excluding testimony by defense witnesses
regarding prior violent conduct by the victims known to defendant;
__________

26
Hoskins v. Skojec, 696 N.Y.S.2d 303, 304 (App. Div. 1999).

27
Dexter v. Dexter, 661 A.2d 171, 174-75 (Md. Ct. Spec. App. 1995) (holding that under Maryland contract
law, the pensioned party may not hinder the ability of the party's spouse to receive the payments she has
bargained for, by voluntarily . . . waiving . . . the pension benefits); Johnson v. Johnson, 37 S.W.3d 892, 897
(Tenn. 2001) (holding that the spouse's vested interest cannot thereafter be unilaterally diminished by an act of
the military spouse, and that the trial court must enforce the decree to provide the spouse with guaranteed
monthly payment).

28
Poullard, 780 So. 2d at 500 (holding that [n]othing in either state or federal law prevents a person from
agreeing to give part of his disability benefit to another).
ing defendant's cross-examination of the surviving victims and in completely excluding
testimony by defense witnesses regarding prior violent conduct by the victims known to
defendant; (4) defendant's right to an impartial jury was violated when trial court refused to
question juror about juror's comment to bailiff, asking why defendant was not in shackles; (5)
as matter of apparent first impression, prosecutors are prohibited from asking a defendant
whether other witnesses have lied or from goading a defendant to accuse other witnesses of
lying, except where the defendant during direct examination has directly challenged the
truthfulness of those witnesses; (6) as matter of apparent first impression, since defendant did
not directly challenge the veracity of other witnesses during his direct examination,
prosecutor's cross-examination questions asking defendant whether other witnesses had lied
were inappropriate; and (7) these cumulative errors were not harmless.
JoNell Thomas, Las Vegas, for Appellant.
Clark A. Peterson, Chief Deputy District Attorney, and Christopher J. Lalli, Deputy District
Attorney, Clark County, for Respondent.
1. Criminal Law.
Cumulative effect of trial court's numerous errors in capital case, such as meeting privately with State witness without making a
record of meeting, answering questions from jury without notifying counsel and without making record of the answers given, and
limiting defendant's presentation of evidence regarding the violent character of the victims, constituted reversible error due to the
quantity and character of these errors and the gravity of the crime charged and the penalty sought.
2. Criminal Law.
Only rarely should a proceeding in a capital case go unrecorded. SCR 250(5)(a).
3. Criminal Law.
Meaningful, effective appellate review depends upon the availability of an accurate record covering lower court proceedings
relevant to the issues on appeal, and failure to provide an adequate record on appeal handicaps appellate review and triggers
possible due process violations. U.S. Const. amend. 14.
4. Criminal Law.
A capital defendant has a right to have proceedings reported and transcribed; however, this right is not absolute. SCR 250(5)(a).
5. Constitutional Law; Criminal Law.
Rule requiring district courts to ensure that all proceedings in a capital case are reported and transcribed, but with the consent of
each party's counsel the court may conduct proceedings outside the presence of the court reporter, and due process do not require
the presence of the court reporter at every sidebar conference, but the court must make a record of the contents of such conferences
at the next break in the trial and allow the attorneys to comment for the record.
the attorneys to comment for the record. U.S. Const. amend. 14; SCR 250.
6. Criminal Law.
While potential jury instructions can be discussed off the record preliminarily in capital case, the instructions must be settled on
the record with each party given the opportunity to state its objection to any instruction and explain any requested instruction.
Absent objection to or request for an instruction, appellate consideration of the issue is precluded.
7. Criminal Law.
The mere failure to make a record of a portion of the proceedings, standing alone, is not grounds for reversal. Rather, an
appellant must demonstrate that the subject matter of the missing portions of the record was so significant that the appellate court
cannot meaningfully review an appellant's contentions of error and the prejudicial effect of any error.
8. Criminal Law.
Portions of the capital proceedings that were not, or were only partially, reported were not significant enough, in and of
themselves, to prevent a meaningful review of the appeal, and thus, district court's failure to comply with rule, requiring district
courts to ensure that all proceedings in a capital case are reported and transcribed, did not deny murder defendant a meaningful
review of his conviction. SCR 250.
9. Criminal Law.
Trial court erred in meeting privately with a reluctant State witness in capital case without making a record of the meeting; as a
result of the meeting, the witness withdrew his decision not to testify, and because meeting was not recorded, appellate court could
not know whether the substance of the witness's testimony was discussed.
10. Criminal Law.
Ex parte communications on matters of substance are normally impermissible.
District court erred by failing to notify counsel in capital case before communicating to the jury on a substantive matter. After
the jury had begun penalty deliberations, court answered jury's questions regarding what would happen if the jury was a hung jury
and whether 40 years really meant 40 years, alluding to the possibility of parole.
12. Criminal Law.
Trial court's error in failing to notify counsel before communicating to the jury on a substantive matter is harmless when the
instructions given are correct.
13. Criminal Law.
Because defendant testified on direct examination regarding his reputation, the State was entitled to cross-examine defendant on
relevant specific acts, but prosecutor's questions asking about defendant's prior arrests did not relate to specific instances of
conduct, and thus, trial court erred in permitting the State to cross-examine defendant on mere arrests, and court compounded the
error when it refused to allow defendant to present evidence on the circumstances of the arrests and why no prosecutions were
pursued. NRS 48.045(1)(a).
14. Criminal Law.
Statute that prohibits the admission of evidence of other crimes, wrongs, or acts to prove a person's character was not applicable
because defendant placed his character in issue on direct examination. Instead, statute providing that once a criminal defendant
presents evidence of his character or a trait of his character, the prosecution may offer similar evidence in rebuttal governed
whether prosecutor's cross-examination of defendant regarding his prior arrests was proper.
idence in rebuttal governed whether prosecutor's cross-examination of defendant regarding his prior arrests was proper. NRS
48.045(1)(a), (2).
15. Criminal Law; Witnesses.
Although arrest alone is not adequate basis to cross-examine witness about reputation or opinion testimony, questions about the
specific acts and circumstances that culminated in the arrest may be proper. However, before allowing inquiry into facts harmful to
defendant's character that are not otherwise in evidence, trial court must determine, outside presence of jury, whether the
prosecution has a reasonable, good-faith basis for its belief that the defendant committed the acts subject to the inquiry, and both
sides may present evidence regarding acts underlying arrest and reasons no conviction was obtained.
16. Criminal Law.
Appellate court overturns a trial court's decision to admit or exclude evidence only in the case of abuse of discretion.
17. Homicide.
Defendant may present evidence of a victim's character when it tends to prove that the victim was the likely aggressor,
regardless of the defendant's knowledge of the victim's character. NRS 48.045(1).
Pursuant to statute providing that, in all cases in which evidence of character or a trait of character of a person is admissible,
proof may be made by testimony as to reputation or in the form of an opinion, evidence of specific instances of conduct is
generally not admissible because it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume
time. However, a party can test reputation or opinion evidence on cross-examination by inquiry into the witness's knowledge of
relevant specific acts. NRS 48.055(1).
Use of specific acts is confined to cases in which character is, in the strict sense, in issue and hence deserving of a searching
inquiry with respect to statute providing that, in cases in which character or a trait of character of a person is an essential element
of a charge, claim or defense, proof of specific instances of his conduct may be made on direct or cross-examination. NRS
48.055(2).
20. Homicide.
The character of a murder victim is not an essential element of self-defenseunlike the defense of entrapment, for example,
which makes a defendant's predisposition to commit the charged crime an essential element of the prosecution's case.
21. Homicide.
Even if a defendant proves that murder victim was a violent person, it does not establish an element of self-defense, nor does
lack of proof that a victim had a violent character constitute a failure to prove self-defense.
22. Homicide.
Statute providing that, in cases in which a person's character or a trait of character is an essential element of a charge, claim or
defense, proof of specific instances of that person's conduct may be made on direct or cross-examination was not a basis for the
admission of evidence of murder victim's specific acts, given that victim's character was not an essential element of defendant's
claim of self-defense. NRS 48.055(2).
23. Homicide.
Extrinsic evidence of a victim's specific conduct known to the defendant is admissible in the form of prior convictions, and
extrinsic evidence of such conduct is also admissible in the form of corroborating testimony.
24. Homicide.
Defendant should be allowed to produce supporting evidence to prove the particular acts of which the accused claims
knowledge, thereby proving the reasonableness of the accused's knowledge and apprehension of the victim and the credibility of
his assertions about his state of mind, and self-serving nature of an accused's testimony about prior violent acts of the victim
makes corroborating evidence of those acts particularly important for an accused's claim of self-defense.
25. Homicide.
Admission of evidence of a victim's specific acts, regardless of its source, is within the sound and reasonable discretion of the
trial court and is limited to the purpose of establishing what the defendant believed about the character of the victim, and trial
court should exercise care that the evidence of specific violent acts of the victim not be allowed to extend to the point that it is
being offered to prove that the victim acted in conformity with his violent tendencies.
26. Homicide.
When a defendant claims self-defense and knew of relevant specific acts by a victim, evidence of the acts can be presented
through the defendant's own testimony, through cross-examination of a surviving victim, and through extrinsic proof.
27. Homicide; Witnesses.
District court abused its discretion in unduly limiting defendant's cross-examination of the surviving victims and in completely
excluding testimony by defense witnesses regarding prior violent conduct by the victims known to murder defendant, who claimed
self-defense.
28. Jury.
Defendant's right to an impartial jury was violated when trial court refused to question juror about juror's comment to bailiff,
asking why defendant was not in shackles. To ensure that this right was not violated, the court should have allowed an inquiry to
establish whether the juror was biased. U.S. Const. amend. 6.
29. Criminal Law.
A criminal defendant is entitled to appear before the jury clad as an innocent person, and generally it is error to allow the jury to
see a defendant shackled.
30. Constitutional Law; Jury.
Under the Sixth Amendmentapplicable to the states through the Fourteenth Amendmentand principles of due process, a
defendant has the right to an impartial jury. U.S. Const. amends. 6, 14.
31. Criminal Law.
Since defendant did not directly challenge the veracity of other witnesses during his direct examination, prosecutor's
cross-examination questions asking defendant whether other witnesses had lied were inappropriate, but since supreme court had
not expressly ruled on this issue before, prosecutor did not act with wrongful intent.
32. Criminal Law.
Where erroneous questioning occurs, courts review to determine whether the error was prejudicial.
33. Criminal Law.
Prosecutors are prohibited from asking a defendant whether other witnesses have lied or from goading a defendant to accuse
other witnesses of lying, except where the defendant during direct examination has directly challenged the truthfulness of those
witnesses. Because it can be difficult to say whether lying is the only possible explanation for inconsistent testimony, there is no
exception to this principle on that ground. Violations of this principle are subject to harmless-error review. NRS 178.598.
34. Criminal Law.
Murder defendant did not show that he was prejudiced because crime scene analyst for the State removed the blood on the gun
without first documenting and photographing it. Defendant did not show that the lost evidence was critical or buttressed the State's
case, and analyst did test for blood and fingerprints, and it was not obvious that the form of the apparent blood spot had any
probative value.
Loss or destruction of evidence by the State violates due process only if the defendant shows either that the State acted in bad
faith or that the defendant suffered undue prejudice and the exculpatory value of the evidence was apparent before it was lost or
destroyed. U.S. Const. amend. 14.
36. Criminal Law.
To establish prejudice as a result of the State's loss or destruction of evidence, the defendant must show that it could be
reasonably anticipated that the evidence would have been exculpatory and material to the defense. It is not sufficient that the
showing disclose merely a hoped-for conclusion from examination of the destroyed evidence or that examination of the evidence
would be helpful in preparing defense.
37. Criminal Law.
The defense bar and prosecutors alike are not to explain, elaborate on, or offer analogies or examples based on the statutory
definition of reasonable doubt.
38. Criminal Law.
Counsel may argue that evidence and theories in the case before the jury either amount to or fall short of definition of reasonable
doubtnothing more.
39. Criminal Law.
Trial court did not abuse its discretion by limiting murder defendant's closing argument regarding reasonable doubt. Defense bar
and prosecutors alike were not to explain, elaborate on, or offer analogies or examples based on the statutory definition of
reasonable doubt.
Trial court did not abuse its discretion in capital case when it allowed defense counsel to argue that death was an inappropriate
punishment for a substantial portion of convicted first-degree murderers, but refused to instruct the jury on this proposition or to
allow counsel to cite its source.
Trial court was not required, before dismissing jurors in capital case, to poll the jurors to determine whether they had
unanimously rejected death and were deadlocked over a lesser sentence.
OPINION
Per Curiam:
Appellant Dorion Daniel
1
was accused and tried in connection with the shooting
deaths of two men and the non-fatal shootings of two others in an apartment in Las Vegas.
__________

1
We direct the clerk of this court to amend the caption on this court's docket to conform with the caption on
this opinion.
two others in an apartment in Las Vegas. He was convicted, pursuant to a jury trial, of two
counts of first-degree murder, two counts of attempted murder with use of a deadly weapon,
and one count of burglary while in possession of a firearm. After the jury deadlocked over the
proper penalty, a three-judge panel imposed two death sentences for the murders.
2

A number of trial errors occurred in this case. The district court erred in meeting
privately with a State witness without making a record of the meeting, in answering questions
from the jury without notifying counsel and without making a record of the answers given, in
allowing questioning regarding appellant's prior arrests, in limiting appellant's presentation of
evidence regarding the violent character of the victims, and in not allowing questioning of a
juror about possible prejudice against appellant. Due to the quantity and character of this
cumulative error and the gravity of the crime charged and the penalty sought,
3
we reverse
appellant's judgment of conviction and remand for further proceedings consistent with this
opinion.
FACTS
Appellant shot and killed Frederick Washington and Mark Payne early in the morning
on July 28, 1997. Appellant also shot Terhain Woods and Antione Hall; however, they
survived their wounds. Woods and Hall testified that they, appellant, Payne, and a fifth
person, Sadie Parker, were in Washington's apartment along with Washington when the
crimes occurred. Appellant, Woods, Hall, Washington, and Payne were in the front room
while Parker was in the kitchen. Woods stated he heard a gunshot and as he turned to his left,
he was shot three times by appellant. Hall testified that appellant shot him after appellant shot
Washington and Woods. Both Woods and Hall pretended to be dead. They both testified that
Payne ran from the living room into the kitchen with appellant in pursuit and that they heard
gunshots from the kitchen. Woods indicated appellant walked back into the living room and
out the front door.
Woods then dialed 911 while Hall went to lock the back door of the apartment.
Because Woods' injuries interfered with his speech, Hall took the phone from Woods and
spoke to the 911 operator. Woods and Hall testified that Woods motioned towards a closet for
Hall to retrieve Washington's handgun from the closet. Hall understood Woods' gesture,
obtained the weapon, cocked it, and sat on the floor.
__________

2
The State concedes that the death sentences must be reversed pursuant to the recent decisions in Ring v.
Arizona, 536 U.S. 584 (2002), and Johnson v. State, 118 Nev. 787, 59 P.3d 450 (2002).

3
See Leonard v. State, 114 Nev. 1196, 1216, 969 P.2d 288, 301 (1998) (noting that factors relevant to a
claim of cumulative error include whether the issue of innocence or guilt is close, the quantity and character of
the error, and the gravity of the crime charged).
derstood Woods' gesture, obtained the weapon, cocked it, and sat on the floor. Woods and
Hall indicated that Hall placed the gun on the floor near Washington when they heard the
police arriving.
Woods and Hall indicated that Woods and Washington had argued with appellant
earlier in the day over a refusal to give appellant ten dollars. At the time of the shooting,
Woods and Washington had just arrived at the apartment and Washington was watching
television when he was shot. According to Woods and Hall, Washington did not argue with
or threaten appellant before appellant began shooting.
Parker testified that she was in the kitchen cooking when Woods and another man
entered the apartment through the front door. Less than a minute went by, during which she
heard some talking, and then gunfire erupted. Parker ran out the back door. She stated she did
not hear any arguing, yelling, or threatening words before the shooting began, and she had not
seen any of the men in the apartment with a gun.
LVMPD Officers John Segura and Mark Perry arrived at the apartment at 1:19 a.m.,
about four minutes after the 911 call was received. Woods opened the door and gargled
something to the effect he had been shot. Payne was found dead in the kitchen. A gun was
on the floor near Washington's body.
In addition to the testimony of Woods, Hall, Parker, and the responding officers, the
prosecution presented evidence suggesting that appellant may have shot Washington because
appellant believed that Washington was involved in the murder of a person named John Lee
Davis. The State also presented evidence of appellant's drug usage, suggesting the argument
over the ten dollars involved appellant's desire to buy drugs. Finally, the State presented
testimony that the day after the shootings, appellant appeared in an angry state at the hospital
where Hall and Woods were receiving treatment and that appellant tried to get to Hall and
Woods.
About twelve hours after the crimes, Detectives Brent Becker and Mike Frank
questioned appellant after informing him of his Miranda
4
rights. Initially appellant denied
any involvement, but after the detectives mentioned the possibility of self-defense, appellant
changed his story and claimed he shot the victims in self-defense. Appellant told the
detectives that he knew that Washington had killed John Lee Davis.
5
An analysis of
appellant's blood after he was arrested showed the presence of phencyclidine (PCP or angel
dust).
An autopsy showed that Payne sustained two gunshot wounds: one to the back of his
head, above and behind the right ear, and the other to the back of the right thigh.
__________

4
Miranda v. Arizona, 384 U.S. 436 (1966).

5
Testimony was presented indicating that the police had not identified Washington as a suspect in the Davis
shooting.
other to the back of the right thigh. He also had lacerations on his face. Washington suffered a
single gunshot to the top of his head.
Testifying in his defense, appellant admitted to the shootings but claimed that he acted
in self-defense. Appellant testified that Washington, Woods, and Hall all had reputations for
being violent. Appellant knew that Hall usually carried a gun and had seen him shoot at
people on two occasions. As to Woods, appellant stated that Woods claimed to have shot and
killed four people. Appellant also indicated that he saw Woods beat up one police officer and
that Woods bragged about beating up several others. Finally, appellant said he saw
Washington shoot at people on two occasions and that Washington had said that he once
attempted to rob a Church's Chicken. Appellant also stated that Washington claimed that Hall
and Washington had shot a man in the head.
According to appellant, he, Washington, Woods, and Hall sold drugs out of
Washington's apartment. On the afternoon before the shootings, Washington and Woods
pressed him to set up the robbery of a drug dealer that appellant knew. Appellant refused.
When he went to Washington's apartment for the final time that night, he had a gun because
he was carrying $3,000 to buy drugs from that dealer. They again asked him to set up the
dealer, and he again refused. He then went upstairs to use the bathroom, and when he
returned Washington started an argument with him. As the confrontation intensified,
Washington pulled out a gun while still sitting on the couch. Appellant pulled his own gun,
and when Washington rose up and got ready to cock his gun, appellant stepped to the side and
shot Washington. Appellant testified that Hall then jumped up and came towards appellant so
appellant shot him twice. Woods was reaching for the gun on the floor so appellant shot him.
Appellant ran to the kitchen, saw Payne reaching up above the refrigerator, and shot him.
Appellant then ran out the back door. He stated he did not shoot Parker because he did not
think she was a threat.
Appellant admitted that he went to the hospital, but indicated he was only there to talk
with a friend about what had happened. No one was there so he went to his federal parole
supervisor. His supervisor called the police, and two officers soon arrived. Appellant
explained that the PCP found in his blood was the result of smoking marijuana and PCP after
the shooting. Appellant denied that he thought Washington was responsible for killing John
Lee Davis.
Several other witnesses testified for the defense. An LVMPD detective and a fast-food
restaurant employee testified that in their opinion Washington was a violent person. Another
detective and a parole officer testified that in their opinion Payne was a violent person.
The jury returned guilty verdicts on all five counts. The jury was unable to reach a
unanimous verdict during the penalty phase, and a mistrial was declared.
a mistrial was declared. Appellant opposed convening a three-judge panel to decide on a
penalty, arguing that the procedure was unconstitutional. The district court rejected
appellant's argument, and a three-judge panel was convened. The panel found two
aggravating circumstances for each murder: the murder was committed by a person who was
convicted in the immediate proceeding of more than one offense of murder, and the murder
was committed to avoid or prevent a lawful arrest or to effect an escape from custody. The
panel also found mitigating circumstances existed but that the aggravating circumstances
were not outweighed by the mitigating circumstances. The panel returned death sentences for
both murders.
DISCUSSION
[Headnote 1]
Appellant claims multiple incidents of error. Appellant contends the district court
erred by: (1) conducting numerous conferences off the record in violation of SCR 250, thus
denying appellant meaningful appellate review; (2) interviewing a witness outside the
presence of the defendant, his counsel, and counsel for the State; (3) responding to juror
questions without consulting with counsel; (4) permitting the State to cross-examine
appellant about arrests that did not result in criminal prosecutions; (5) excluding extrinsic
evidence of violent acts committed by the victims; (6) refusing to allow defense counsel to
examine a juror regarding possible bias for the State or prejudice towards appellant; (7)
allowing the State to ask appellant if witnesses were lying; (8) refusing to give a jury
instruction on lost evidence; (9) limiting appellant's closing argument; (10) refusing various
jury instructions; and (11) refusing to poll the jury to determine if the jury had unanimously
rejected death and had deadlocked on a lesser sentence.
I. Unrecorded conferences and appellate review
Appellant complains that he has been denied meaningful appellate review because the
district court conducted numerous conferences without having them reported, or recorded,
and transcribed. Before trial, appellant moved the district court to have all the proceedings of
his case reported and transcribed, citing SCR 250 among other authorities. The district court
denied the motion.
[Headnotes 2-6]
Only rarely should a proceeding in a capital case go unrecorded. SCR 250(5)(a)
expressly requires the district courts to
ensure that all proceedings in a capital case are reported and transcribed, but with the
consent of each party's counsel the court may conduct proceedings outside the presence
of . . . the court reporter. If any objection is made or any issue is resolved in an
unreported proceeding,
issue is resolved in an unreported proceeding, the court shall ensure that the objection
and resolution are made part of the record at the next reported proceeding.
Moreover, meaningful, effective appellate review depends upon the availability of an
accurate record covering lower court proceedings relevant to the issues on appeal. Failure to
provide an adequate record on appeal handicaps appellate review and triggers possible due
process clause violations.
6
A capital defendant therefore has a right to have proceedings
reported and transcribed. We recognize, however, that this right is not absolute. SCR 250 and
due process do not require the presence of the court reporter at every sidebar conference, but
the court must make a record of the contents of such conferences at the next break in the trial
and allow the attorneys to comment for the record. Similarly, while potential jury instructions
can be discussed off the record preliminarily, the instructions must be settled on the record
with each party given the opportunity to state its objection to any instruction and explain any
requested instruction. Absent objection to or request for an instruction, appellate
consideration of the issue is precluded.
7

[Headnotes 7, 8]
The mere failure to make a record of a portion of the proceedings, however, standing
alone, is not grounds for reversal. Rather, an appellant must demonstrate that the subject
matter of the missing portions of the record was so significant that the appellate court cannot
meaningfully review an appellant's contentions of error and the prejudicial effect of any error.
Here, the portions of the proceedings that were not, or were only partially, reported were not
significant enough, in and of themselves, to prevent a meaningful review of the appeal. Thus,
we reject appellant's contention that failure to comply with SCR 250 denied him a meaningful
review of his conviction.
II. Unrecorded ex parte witness interview
[Headnote 9]
Appellant contends that the district court committed serious error when it held an
unrecorded ex parte meeting with a witness for the State after the witness initially declined to
testify. Woods, a key witness for the State, invoked his Fifth Amendment right to remain
silent soon after being called to testify. The jury was excused so that the district court could
inquire into the basis for Woods' assertion of the Fifth Amendment. After the jury exited the
courtroom, the district court asked Woods if he wanted an attorney appointed for him, and he
declined. The prosecutor informed the court he did not intend to ask Woods any questions
that might lead to an incriminating response, but defense counsel indicated she did intend
to ask such questions.
__________

6
Lopez v. State, 105 Nev. 68, 84-85, 769 P.2d 1276, 1287 (1989).

7
Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350, 351 (1991).
court he did not intend to ask Woods any questions that might lead to an incriminating
response, but defense counsel indicated she did intend to ask such questions. Woods told the
court that he did not want to speak to the prosecutors about his decision to remain silent and
was reluctant to identify the basis for his assertion of the right.
Sua sponte, the district court then announced that it would take the matter up in
camera. The court stated: I'm going to inquire of Mr. Woods what his concerns are and make
a determination if, in fact, he has a legitimate right to refuse to testify. Neither counsel
objected to this procedure. The district court met with Woods in chambers without counsel
and without recording the discussion. Returning to the courtroom without Woods, the district
court told both parties that it had informed Woods that the Fifth Amendment gave him the
right to avoid self-incrimination. According to the district court, Woods said that he was not
afraid of self-incrimination but of retaliation from appellant's family or friends, though he
did not indicate any specific threats made to him by the defendant or anyone else.
Woods returned to the courtroom, and the prosecutor informed him that the State was
willing to provide him with protection if necessary. The district court informed Woods that if
he refused to answer questions it could find him in contempt and sentence him to 25 days in
jail for each refusal. Woods then said, If I have no choice, then I'll testify, if I can't invoke
this Fifth Amendment. The jury returned, and Woods testified without further incident.
The district court's decision to conduct an ex parte interview with Woods off the
record involves two distinct issues. First, may a judge conduct an interview with a witness
outside the presence of the parties and counsel, and, if ex parte interviews are permissible,
must they be recorded? Second, was Woods coerced into testifying?
[Headnote 10]
Ex parte communications on matters of substance are normally impermissible.
8
The
district court met with a reluctant witness crucial to the State's case, and as a result of that
meeting, the witness withdrew his decision not to testify. This action involved a substantive
matter and qualified as an ex parte communication. However, at least one federal court has
indicated that an interview conducted outside of the parties' presence, but with the parties'
knowledge, may be permissible in extraordinary situations.
In United States v. Adams,
9
the Eleventh Circuit Court of Appeals recognized that
in very rare circumstances' a trial judge may confer with a witness or juror outside the
defendant's presence,
__________

8
See NCJC Canon 3(B)(7).

9
785 F.2d 917, 920 (11th Cir. 1986) (quoting LaChappelle v. Moran, 699 F.2d 560, 565 (1st Cir. 1983)).
judge may confer with a witness or juror outside the defendant's presence, e.g., to discuss
threats against a witness. However, Adams requires the trial judge to ensure that the
conference is carefully conducted so that no rights of the defendant are threatened.
10
The
Eleventh Circuit concluded that the conference at issue in that case was fairly conducted
because the substance of the witness's testimony was not discussed and the entire conference
was transcribed.
11
Here, by contrast, the district court failed to record its meeting with the
witness, and we cannot know whether the substance of the witness's testimony was discussed.
Moreover, although the State asserts that [t]here is no evidence that the judge employed
coercive or intimidating language or tactics that would have substantially interfered with
Woods' decision to testify, we cannot conduct a meaningful review of the issue for error since
we have no record of the meeting itself. The district court erred in failing to record its
conversation with the witness. This error alone might not warrant reversal but it is a
significant part of the cumulative error leading to our conclusion that reversal is necessary.
12

III. Jury questions
[Headnote 11]
Appellant contends that the district court violated his rights when it answered two
questions from the jury without first consulting with counsel. After the jury had begun
penalty deliberations, the district court spoke to both parties about questions from the jury.
I would like the record to reflect the fact that Thursday, near the end of the day, the
court received a note from the foreman of the jury, Mr. Smith, which contained two
questions . . . . First question: What if we're a hung jury, does everything we've done
not count? . . . The second question: Does 40 years really, underline really, mean
40 years? No doubt he's alluding to the eligibility of parole.
This morning, Friday morning, when the jury reconvened . . . , I had sent my bailiff in
with very brief answers to these questions. As to the first, . . . I had my bailiff indicate
to the jurors that if they were a hung jury on the penalty phase that there would be a
three-judge panel appointed to resolve the question of penalty, but the determination of
guilt would stand. As to the second question, . . . the answer was yes.
__________

10
Id.

11
Id.

12
Because appellant requested that all proceedings be reported under SCR 250(5)(a), the failure to
contemporaneously request that the interview with Woods be reported does not require a plain error analysis
under NRS 178.602.
was yes. I asked the bailiff to commend them to the jury instructions . . . .
That afternoon the jurors informed the court that they were deadlocked.
According to appellant, the district court's improper communication deprived him of
the right to a fair verdict from the jury and requires the imposition of a sentence less than
death. He reasons, in part, that by telling the jury that a three-judge panel would decide the
penalty if the jury did not, the court minimized to the jury the gravity of its decision. He cites
the Supreme Court decision in Caldwell v. Mississippi, which held that it is constitutionally
impermissible to rest a death sentence on a determination made by a sentencer who has been
led to believe that the responsibility for determining the appropriateness of the defendant's
death rests elsewhere.
13
However, the holding in Caldwell is not controlling because it is
concerned with a jury returning a death sentence under the misimpression that the
responsibility for the sentence ultimately lies elsewhere.
14
The jury here did not return a
sentence at all.
[Headnote 12]
The district court did err, however, by failing to notify counsel before communicating
to the jury on a substantive matter.
15
Such error is harmless when the instructions given are
correct.
16
However, we cannot determine whether the error was harmless here because again
the district court failed to make an adequate record for appellate review. The court improperly
instructed the jurors orally through the bailiff, rather than in writing or directly in the
courtroom on the record. Therefore, the record before us does not reveal the instructions
received by the jury, only the district court's rendition of what it told the bailiff. And most
important, exactly what the bailiff said to the jury is unknown.
We do not decide whether this error alone would be reversible but do consider it as
part of the cumulative error requiring reversal.
IV. Use of prior arrests on cross-examination
[Headnote 13]
Appellant contends that the district court improperly permitted questioning regarding
his prior arrests. We agree.
__________

13
472 U.S. 320, 328-29 (1985).

14
Cf. Geary v. State, 112 Nev. 1434, 1451, 930 P.2d 719, 730 (1996), clarified on other grounds on
rehearing, 114 Nev. 100, 952 P.2d 431 (1998).

15
See NRS 175.451; Cavanaugh v. State, 102 Nev. 478, 484, 729 P.2d 481, 484-85 (1986).

16
Cavanaugh, 102 Nev. at 484, 729 P.2d at 484-85.
On direct examination, defense counsel asked appellant, So you didn't necessarily at
that point [July 1997] have a great reputation for violence, as far as you knew? Appellant
answered, No, no, not that I knew of. On cross-examination, the State asked appellant if he
had been arrested in 1989 and 1990 for battery, five counts of attempted murder, obstructing a
police officer, false imprisonment, battery with substantial bodily harm, battery with a deadly
weapon, and first-degree kidnapping. He admitted that he had. On redirect, defense counsel
elicited that appellant was not prosecuted for any of these arrests. The district court refused to
allow appellant to present evidence on the circumstances of the arrests and the reasons
prosecutions were not pursued.
[Headnote 14]
Appellant argues that questions about his prior arrests constituted improper character
evidence under NRS 48.045(2), which prohibits the admission of evidence of other crimes,
wrongs, or acts to prove a person's character. However, NRS 48.045(2) is not the pertinent
provision in this case because appellant placed his character in issue on direct examination.
Thus NRS 48.045(1)(a) is controlling. It provides that once a criminal defendant presents
[e]vidence of his character or a trait of his character the prosecution may offer similar
evidence in rebuttal.
NRS 48.055(1) provides that this evidence must be in the form of reputation or
opinion testimony and allows a party to test such testimony on cross-examination by inquiry
into the witness's knowledge of specific instances of conduct. Therefore, because appellant
testified regarding his reputation, the State was entitled to cross-examine him on relevant
specific acts. However, questions asking whether or not someone has been arrested do not
relate to specific instances of conduct.
The Eighth Circuit Court of Appeals concluded that questioning about arrests was
improper in United States v. Bruguier.
17
In that case, after a witness testified that the
defendant was a good father, the government asked on cross-examination, [D]o you think it
is a good father to be arrested 36 times?'
18
The Eighth Circuit rejected the government's
contention that arrests prove anything.
19

An arrest shows only that the arresting officer thought the person apprehended had
committed a crime, assuming that the officer acted in good faith, which will usually but
not always be the case. An arrest does not show that a crime in fact has been
committed, or even that there is probable cause for believing that a crime has been
committed.
__________

17
161 F.3d 1145 (8th Cir. 1998).

18
Id. at 1150.

19
Id.
lieving that a crime has been committed. The question, accordingly, should not have
been asked.
20

[Headnote 15]
Although an arrest alone is not an adequate basis to cross-examine a witness about
reputation or opinion testimony, questions about the specific acts and circumstances that
culminated in the arrest may be proper.
21
However, before allowing inquiry into facts
harmful to the defendant's character that are not otherwise in evidence, the trial court must
determine, outside the presence of the jury, whether the prosecution has a reasonable,
good-faith basis for its belief that the defendant committed the acts subject to the inquiry.
22
Both sides may present evidence regarding the acts underlying the arrest and the reasons no
conviction was obtained. The mere fact of an arrest is not a basis for inquiry.
23

Assuming the State had a good-faith basis for believing appellant committed any of
the violent acts leading to the arrests in 1989 and 1990, then the cross-examination should
focus on the acts, not the fact of an arrest. The State could have asked appellant, for example,
if he had been involved in attempted murder.
The district court erred in permitting the State to cross-examine appellant on mere
arrests. The district court compounded the error when it refused to allow appellant to present
evidence on the circumstances of the arrests and why no prosecutions were pursued. We do
not decide if the error, standing alone, warrants reversal given the cumulative error in this
case.
V. Victim character evidence
Appellant contends that the district court improperly excluded independent evidence
of specific violent acts committed by the victims and known to appellant prior to the
shootings. The district court allowed appellant to relate his knowledge of specific violent acts
by the victims, and it allowed other witnesses to give their opinion as to the victims' violent
character. Appellant wanted to present additional evidence to corroborate his own testimony
regarding specific acts by the victims, but the court did not allow that.
[Headnotes 16, 17]
This court overturns a district court's decision to admit or exclude evidence only in the
case of abuse of discretion.
24
NRS 4S.045{1) sets forth the rule that character evidence is
normally not admissible to show that persons have acted in conformity with their
character.
__________

20
Id.

21
Cf. U.S. v. Robinson, 978 F.2d 1554, 1560-61 (10th Cir. 1992).

22
Bruguier, 161 F.3d at 1149.

23
Cf. U.S. v. Wilson, 244 F.3d 1208, 1217-18 (10th Cir. 2001).

24
Petty v. State, 116 Nev. 321, 325, 997 P.2d 800, 802 (2000).
48.045(1) sets forth the rule that character evidence is normally not admissible to show that
persons have acted in conformity with their character. NRS 48.045(1) also provides three
exceptions to the rule, and one is pertinent to the issue at hand: (b) Evidence of the character
or a trait of character of the victim of the crime offered by an accused . . . and similar
evidence offered by the prosecution to rebut such evidence . . . . This exception permits a
defendant to present evidence of a victim's character when it tends to prove that the victim
was the likely aggressor, regardless of the defendant's knowledge of the victim's character.
25

[Headnote 18]
As previously explained, under NRS 48.055(1), when character evidence is
admissible, proof may be made by testimony as to reputation or in the form of an opinion.
Evidence of specific instances of conduct is generally not admissible because it possesses
the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time.'
26
However, a party can test reputation or opinion evidence on cross-examination by inquiry into
the witness's knowledge of relevant specific acts.
27

[Headnote 19]
In addition, NRS 48.055(2) provides: In cases in which character or a trait of
character of a person is an essential element of a charge, claim or defense, proof of specific
instances of his conduct may be made on direct or cross-examination. However, the use of
specific acts under NRS 48.055(2) is confined to cases in which character is, in the strict
sense, in issue and hence deserving of a searching inquiry.'
28

[Headnote 20]
Appellant invokes this provision, asserting that a victim's propensity for violence is an
element of the claim of self-defense and therefore that the district court should have allowed
evidence of specific acts on this ground. He provides no analysis and cites no other authority
to support this assertion. We conclude that the character of the victim is not an essential
element of self-defenseunlike the defense of entrapment, for example, which makes a
defendant's predisposition to commit the charged crime an essential element of the
prosecution's case.
__________

25
Id.

26
Foster v. State, 116 Nev. 1088, 1095, 13 P.3d 61, 65 (2000) (quoting Fed. R. Evid. 405 advisory
committee's note (1975)) (stating that NRS 48.055 is based on Fed. R. Evid. 405).

27
NRS 48.055(1).

28
See Foster, 116 Nev. at 1095, 13 P.3d at 65 (quoting Fed. R. Evid. 405 advisory committee's note).
element of the prosecution's case.
29
As the Ninth Circuit Court of Appeals has explained, to
determine whether character constitutes an essential element, the relevant question is: would
proof, or failure of proof, of the character trait by itself actually satisfy an element of the
charge, claim, or defense?
30

[Headnotes 21, 22]
Even if a defendant proves that a victim was a violent person, it does not establish an
element of self-defense: proving that a person has a violent character does not prove that the
person was the assailant or acted in such a way that the defendant reasonably believed it was
necessary to use force against the person.
31
Nor does lack of proof that a victim had a violent
character constitute a failure to prove self-defense: a victim's violent character is relevant but
not required to establish self-defense.
32
Therefore, NRS 48.055(2) was not a basis for the
admission of evidence of specific acts by the victims.
However, this court has held that evidence of specific acts showing that the victim
was a violent person is admissible if a defendant seeks to establish self-defense and was
aware of those acts.
33
This evidence is relevant to the defendant's state of mind, i.e., whether
the defendant's belief in the need to use force in self-defense was reasonable.
34
In this case,
the district court allowed appellant to testify concerning the victims' specific acts within his
knowledge, but did not allow extrinsic evidence of those acts and limited appellant's
cross-examination of the surviving victims. To corroborate his testimony regarding violent
acts by the victims, appellant believes he should have been allowed to cross-examine the
surviving victims on their violent conduct and to call witnesses to testify to being robbed
or assaulted by the victims.
__________

29
See id. at 1095, 13 P.3d at 66 (explaining that the defense of entrapment places a defendant's character, his
predisposition to commit the charged crime, directly in issue and entitles the State pursuant to NRS 48.055(2)
to offer evidence of specific instances of the defendant's conduct).

30
U.S. v. Keiser, 57 F.3d 847, 856 (9th Cir. 1995).

31
If a person kills another in self-defense, it must appear that:
1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his
receiving great bodily harm, the killing of the other was absolutely necessary; and
2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to
decline any further struggle before the mortal blow was given.
See also Hill v. State, 98 Nev. 295, 296, 647 P.2d 370, 370-71 (1982) ([T]he defendant's belief in the necessity
of using force in self-defense must be reasonable.); NRS 200.130.

32
See Keiser, 57 F.3d at 857.

33
Burgeon v. State, 102 Nev. 43, 45-46, 714 P.2d 576, 578 (1986).

34
Id.
lieves he should have been allowed to cross-examine the surviving victims on their violent
conduct and to call witnesses to testify to being robbed or assaulted by the victims. We agree.
[Headnotes 23-25]
In Petty v. State,
35
this court held that the district court abused its discretion in
excluding evidence of the victim's prior conviction where the defendant claimed self-defense.
The evidence of the victim's prior conviction for robbery was admissible because the
defendant was aware that the victim had committed robberies.
36
Therefore, under Petty,
extrinsic evidence of a victim's specific conduct known to the defendant is admissible in the
form of prior convictions. We conclude that extrinsic evidence of such conduct is also
admissible in the form of corroborating testimony. We agree with the Wisconsin Supreme
Court, which has held that a defendant should be allowed
to produce supporting evidence to prove the particular acts of which the accused claims
knowledge, thereby proving the reasonableness of the accused's knowledge and
apprehension of the victim and the credibility of his assertions about his state of mind. .
. . [T]he self-serving nature of an accused's testimony about prior violent acts of the
victim makes corroborating evidence of those acts particularly important for an
accused's claim of self-defense.
37

We also agree that the admission of evidence of a victim's specific acts, regardless of its
source, is within the sound and reasonable discretion of the trial court and is limited to the
purpose of establishing what the defendant believed about the character of the victim.
38
The
trial court should exercise care that the evidence of specific violent acts of the victim not be
allowed to extend to the point that it is being offered to prove that the victim acted in
conformity with his violent tendencies.
39

[Headnotes 26, 27]
Thus, when a defendant claims self-defense and knew of relevant specific acts by a
victim, evidence of the acts can be presented through the defendant's own testimony, through
cross-examination of a surviving victim, and through extrinsic proof. Here, the district court
abused its discretion in unduly limiting appellant's cross-examination of the surviving victims
and in completely excluding testimony by defense witnesses regarding prior violent
conduct by the victims known to appellant.
__________

35
116 Nev. 321, 997 P.2d 800.

36
Id. at 326-27, 997 P.2d at 803.

37
State v. Daniels, 465 N.W.2d 633, 636 (Wis. 1991).

38
Id. at 636-37.

39
Id. at 637.
testimony by defense witnesses regarding prior violent conduct by the victims known to
appellant.
This error alone was not so prejudicial that it requires reversal, but it contributes to the
cumulative error, which does.
VI. Juror impartiality
[Headnote 28]
Appellant claims that his right to an impartial jury was violated when the district court
refused to question a juror on a comment she made. We agree that the court erred in not
permitting questioning of the juror.
During the trial as the jurors entered the courtroom, one asked the bailiff in a whisper,
Why isn't the defendant in shackles? The bailiff told her he could not answer that question
and that she should not worry. Defense counsel did not move to dismiss the juror but
requested the district court to question her to determine whether she was prejudiced due to
fear of appellant or biased in favor of the prosecution. The prosecutor opposed the request,
and the district court did not allow the juror to be questioned.
[Headnotes 29, 30]
A criminal defendant is entitled to appear before the jury clad as an innocent person,
and generally it is error to allow the jury to see a defendant shackled.
40
More broadly, under
the Sixth Amendmentapplicable to the states through the Fourteenth Amendmentand
principles of due process, a defendant has the right to an impartial jury.
41
To ensure that this
right was not violated, the district court should have allowed an inquiry to establish whether
the juror was biased. This error alone was not reversible but contributes to the cumulative
error in this case.
VII. Cross-examination of appellant on other witnesses' credibility
[Headnote 31]
On cross-examination, the prosecutor asked appellant several times if other witnesses
had lied or were mistaken. Defense counsel objected unsuccessfully. Appellant responded
that some witnesses had lied, and in closing argument, the prosecutor attacked that response.
Appellant asserts that the prosecutor's line of questioning was error.
[Headnote 32]
This court has never addressed this precise issue. However, we have held that it is the
exclusive province of the trier of fact to pass on the credibility of witnesses:
__________

40
Dickson v. State, 108 Nev. 1, 3, 822 P.2d 1122, 1123 (1992).

41
Bishop v. State, 92 Nev. 510, 515 n.2, 554 P.2d 266, 270 n.2 (1976).
on the credibility of witnesses: Thus, a lay witness's opinion concerning the veracity of the
statement of another is inadmissible.
42
Review of the cases cited by both appellant and the
State reveals that courts generally disapprove of prosecutors asking defendants whether other
witnesses have lied. Some consider it erroneous regardless of circumstance, while others
permit it only under certain circumstances. Where erroneous questioning occurs, courts
review to determine whether the error was prejudicial.
For example, People v. Overlee,
43
an opinion by a New York appellate court, states:
While this Court has cautioned prosecutors to avoid goading a testifying defendant into
characterizing the People's witnesses as liars, especially when the defendant, by his
testimony, has not impugned the truthfulness of those witnesses, such conduct does not
always require reversal.
44
Overlee distinguishes
between a defendant's testimony that conflicts with that of the People's witnesses and
yet is susceptible to the suggestion that the witnesses spoke out of mistake or hazy
recollection and the situation where . . . the defendant's testimony leaves open only the
suggestion that the People's witnesses have lied. In the latter circumstance, the
prosecution has the right to ask whether the witnesses are liars.
45

Other courts maintain an unconditional rule against asking a defendant whether other
witnesses have lied. A New Mexico appellate court acknowledged that a prosecutor may
engage in good-faith attempts . . . to clarify a defendant's testimony on cross-examination by
inquiring about apparent inconsistencies with testimony of another witness or to determine
if the defendant . . . has an explanation for apparent discrepancies between the testimony of
the witness and the testimony of the defendant.
46
However, it imposed a strict prohibition
upon asking the defendant if another witness is mistaken' or lying.'
47

In asking whether other witnesses were mistaken, the impression communicated to the
jury may be that either the witness or the defendant is lying. This is especially true in a
criminal case where the defendant is forced to characterize numerous witnesses,
including police officers, as incorrect or mistaken in order for his or her testimony
to be credible.
48

__________

42
DeChant v. State, 116 Nev. 918, 924, 10 P.3d 108, 112 (2000).

43
666 N.Y.S.2d 572 (App. Div. 1997).

44
Id. at 576 (citations omitted).

45
Id.; accord State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999); State v. Morales, 10 P.3d 630, 633 (Ariz.
Ct. App. 2000).

46
State v. Flanagan, 801 P.2d 675, 679 (N.M. Ct. App. 1990).

47
Id.

48
Id. (citation omitted).
The court explained:
One rationale behind this rule is that it is the role of the jury to determine the credibility
of witnesses. Whether the defendant believes the other witnesses were truthful or lying
is simply irrelevant. In addition, such questions can constitute in effect a misleading
argument to the jury that the only alternatives are that the defendant or the witnesses are
liars.
49

The New Mexico court concluded that in the case before it the improper questions had not
prejudiced the defendant because they did not amount to jury argument and did not coax the
defendant into accusing other witnesses of lying.
50
Many courts, including the Ninth Circuit
Court of Appeals, have reasoned similarly and held that such questioning is improper but may
be harmless error.
51

[Headnote 33]
We adopt a rule prohibiting prosecutors from asking a defendant whether other
witnesses have lied or from goading a defendant to accuse other witnesses of lying, except
where the defendant during direct examination has directly challenged the truthfulness of
those witnesses. Violations of the rule are subject to harmless-error review under NRS
178.598.
52
Because it can be difficult to say whether lying is the only possible explanation
for inconsistent testimony, we reject an exception to the rule on that ground.
Appellant did not directly challenge the veracity of other witnesses during his direct
examination, so asking him whether other witnesses had lied was inappropriate. Since this
court had not expressly ruled on this issue before, we recognize that the prosecutor did not act
with wrongful intent. We conclude that this error, standing alone, was not prejudicial.
VIII. Jury instruction on alleged loss of evidence
[Headnote 34]
Appellant complains that the police investigator lost valuable evidence and that the
district court improperly denied his motion for a jury instruction on lost evidence.
A crime scene analyst testified for the State. In investigating the murders, the analyst
noticed a small spot of apparent blood on the Ruger pistol found near Washington's body.
Using distilled water and a cotton swab, he collected a sample at the scene to test for the
presence of blood.
__________

49
Id. (citations omitted).

50
Id. at 679-80.

51
See U.S. v. Sanchez, 176 F.3d 1214, 1219-20 (9th Cir. 1999); U.S. v. Sullivan, 85 F.3d 743, 749-50 (1st
Cir. 1996); U.S. v. Boyd, 54 F.3d 868, 871-72 (D.C. Cir. 1995); State v. Casteneda-Perez, 810 P.2d 74, 77-80
(Wash. Ct. App. 1991).

52
NRS 178.598 provides: Any error, defect, irregularity or variance which does not affect substantial rights
shall be disregarded.
and a cotton swab, he collected a sample at the scene to test for the presence of blood. He did
not recall what the spot looked like. The amount of blood was insufficient to conduct DNA
analysis.
A forensic expert testified for the defense. He examined the Ruger and found no blood
but was able to detect low levels of DNA, which could come from ordinary handling of the
gun. The expert determined that the DNA did not come from Woods, Washington, Payne,
Hall, or appellant. However, he indicated that did not rule out the possibility that any of them
had handled it. He testified that if an object appears to have blood on it, it should be
photographed and a diagram should be drawn before a sample is taken. After a sample is
taken, another photograph should be taken. He stated that much information could be gained
by examining a blood spatter or smear. According to the defense expert, when possible, it was
better to collect blood in a laboratory environment rather than at the scene of a crime. In this
case, he was unable to find any blood spatter to analyze on the gun or in any photograph.
Appellant contends that the existence or nonexistence of blood spatter on the gun was
essential to establishing whether Washington was holding the gun when he was shot.
Appellant maintains that his right to a fair trial and to confront the State's evidence was
denied when the analyst removed the blood on the gun without first documenting and
photographing it. He believes that he was entitled to instruct the jury on a conclusive
presumption that the pistol had blood spatter on it consistent with being near Washington
when he was shot.
[Headnotes 35, 36]
Loss or destruction of evidence by the State violates due process only if the
defendant shows either that the State acted in bad faith or that the defendant suffered undue
prejudice and the exculpatory value of the evidence was apparent before it was lost or
destroyed.
53
To establish prejudice, the defendant must show that it could be reasonably
anticipated that the evidence would have been exculpatory and material to the defense.
54
It
is not sufficient that the showing disclose merely a hoped-for conclusion from examination of
the destroyed evidence or that examination of the evidence would be helpful in preparing
[a] defense.
55
Appellant has shown neither bad faith nor that it could be reasonably
anticipated the evidence in question would have been exculpatory and material. He has at best
a hoped-for conclusion that the evidence would have supported his case.
__________

53
Leonard v. State, 117 Nev. 53, 68, 17 P.3d 397, 407 (2001).

54
Cook v. State, 114 Nev. 120, 125, 953 P.2d 712, 715 (1998).

55
Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979).
This case is quite different from Sanborn v. State,
56
cited by appellant. In that case,
Sanborn was convicted of murder. He claimed that he acted in self-defense after the victim
shot him, while the State theorized that Sanborn had shot himself. Mishandling of the gun
[that was used to shoot Sanborn] resulted in a loss of evidence of blood and fingerprints, and
there were no witnesses, other than the accused, to [the] homicide.
57
[E]vidence of blood
or fingerprints on the weapon could have been critical, corroborative evidence of
self-defense. The state's case was buttressed by the absence of this evidence.
58
This court
concluded that the mishandling of the evidence had prejudiced Sanborn, entitling him to a
jury instruction setting forth the conclusive presumption that the victim had held and fired the
gun.
59

Here, by contrast, any mishandling of the evidence was minimal: in Sanborn, blood
and fingerprint tests were not done even though the need for them was obvious, whereas here
the analyst did test for blood and fingerprints, and it was not obvious that the form of the
apparent blood spot had any probative value. Also, here we have three witnesses to the crimes
other than the accused, and appellant has not shown that the lost evidence was critical or
buttressed the State's case.
IX. Closing argument and reasonable doubt instruction
[Headnotes 37-39]
Appellant claims that the district court improperly limited his closing argument
regarding reasonable doubt. He maintains that as long as his counsel did not quantify or
analogize reasonable doubt, counsel had a right to explain its meaning and to quote case law
from this court discussing it. This claim is patently meritless: appellant ignores long-standing
and unequivocal case law to the contrary. This court has repeatedly cautioned the district
courts and attorneys not to attempt to quantify, supplement, or clarify the statutorily
prescribed standard . . . .
60
[T]he defense bar and prosecutors alike [are] not to explain,
elaborate on, or offer analogies or examples based on the statutory definition of reasonable
doubt. Counsel may argue that evidence and theories in the case before the jury either amount
to or fall short of that definitionnothing more.
__________

56
107 Nev. 399, 812 P.2d 1279 (1991).

57
Id. at 408, 812 P.2d at 1285.

58
Id. at 408, 812 P.2d at 1285-86.

59
Id. at 408, 812 P.2d at 1286.

60
Evans v. State, 117 Nev. 609, 631, 28 P.3d 498, 514 (2001) (emphasis added); see also NRS 175.211
(setting forth the only definition of reasonable doubt that may be given to Nevada juries in criminal cases).
nothing more.
61
This stricture is unqualified and cannot be avoided by offering
explanations of reasonable doubt taken from judicial opinions.
[Headnote 40]
Appellant also contends that the district court erred in refusing to give a proposed jury
instruction quoting from cited cases discussing the propriety of the death penalty. The district
court allowed defense counsel to argue that death is an inappropriate punishment for a
substantial portion of convicted first-degree murderers, but the court refused to instruct the
jury on this proposition or to allow counsel to cite its source, the United States Supreme
Court.
62
We conclude that the district court did not abuse its discretion to determine which
jury instructions are necessary and pertinent
63
and to limit argument by counsel.
64

X. Other jury instructions
Appellant challenges a number of jury instructions. We conclude that the challenges
are without merit. He claims that the instructions defining malice were unconstitutional but
concedes that this court has repeatedly affirmed the constitutionality of the instructions given.
He claims that the instructions on voluntary manslaughter and self-defense lessened the
State's burden of proving the elements of murder and criticizes this court's rejection of the
doctrine of imperfect self-defense. We conclude that the instructions as a whole properly
informed the jury of the State's burden to prove all the elements of murder. Appellant argues
that the instructions on reasonable doubt and on equal and exact justice were
unconstitutional but concedes that this court has repeatedly rejected such arguments.
XI. Jury polling
[Headnote 41]
Appellant asserts that before dismissing the jurors the district court should have
granted his request to poll them to determine whether they had unanimously rejected death
and were deadlocked over a lesser sentence.
__________

61
Evans, 117 Nev. at 632, 28 P.3d at 514 (emphasis added).

62
The source is Woodson v. North Carolina, 428 U.S. 280, 296 (1976) (plurality opinion).

63
See NRS 175.161(2), (3); see also Vallery v. State, 118 Nev. 357, 372, 46 P.3d 66, 77 (2002) (stating that
a district court may refuse a jury instruction on the defendant's theory of the case that is substantially covered
by other instructions).

64
See Manley v. State, 115 Nev. 114, 125, 979 P.2d 703, 709-10 (1999) (recognizing that district courts can
limit argument by counsel but cannot impose undue limits).
whether they had unanimously rejected death and were deadlocked over a lesser sentence.
Because appellant argues that imposition of the death penalty after remand and retrial would
violate the Double Jeopardy Clause, we reach this issue and conclude that the district court
was not required to poll the jurors.
65

CONCLUSION
We reverse appellant's judgment of conviction due to cumulative error and remand for a new
trial.
__________
119 Nev. 523, 523 (2003) Leibowitz v. Dist. Ct.
STEVEN LEIBOWITZ; THOMAS STANDISH; and ECKER & STANDISH,
CHARTERED, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE WILLIAM O. VOY, District Judge, Family Court Division,
Respondents, and DEENA LEIBOWITZ, Real Party in Interest.
No. 39683
November 3, 2003 78 P.3d 515
Original petition for a writ of mandamus challenging an order of the district court
disqualifying the law firm of Ecker & Standish from representing petitioner Steven
Leibowitz.
Husband brought motion for determination whether law firm representing wife in
divorce action should be disqualified based on its hiring of legal assistant who had previously
worked for law firm representing husband, and whether law firm representing husband should
be disqualified based on its hiring of legal assistant who had previously worked for law firm
representing wife. The district court disqualified law firm representing husband but not law
firm representing wife. Husband and law firm representing him petitioned for writ of
mandamus. The supreme court, Becker, J., held that: (1) the imputed attorney disqualification
standards do not apply simply because a nonlawyer employee, during previous employment,
was exposed to or had access to the files of an adversary of the hiring law firm's client; (2)
screening of a nonlawyer employee may allow the hiring law firm to avoid imputed attorney
disqualification based on the employee's acquisition, in the former employment, of
confidences of the adversary of the hiring law firm's client,
__________

65
Cf. People v. Hickey, 303 N.W.2d 19, 21 (Mich. Ct. App. 1981); A Juvenile v. Com., 465 N.E.2d 240
(Mass. 1984).
employment, of confidences of the adversary of the hiring law firm's client, overruling
Ciaffone v. District Court, 113 Nev. 1165, 945 P.2d 950 (1997); and (3) imputed
disqualification was not required, as to law firms representing husband and wife, respectively.
Petition granted.
Leavitt, J., with whom Agosti, C. J., agreed, dissented.
Ecker & Standish and Thomas J. Standish, Las Vegas; Lemons Grundy & Eisenberg
and Robert L. Eisenberg, Reno, for Petitioners.
Dickerson, Dickerson, Consul & Pocker and Robert P. Dickerson, Las Vegas, for
Real Party in Interest.
Molof & Vohl and Robert C. Vohl, Reno, for Amici Curiae Sierra Nevada Association
of Paralegals, National Association of Legal Assistants, and National Association of Legal
Secretaries of Washoe County.
1. Mandamus.
Whether to consider a petition for mandamus is entirely within the discretion of the supreme court. NRS 34.160, 34.170.
Parties should not be allowed to misuse motions for attorney disqualification as instruments of harassment or delay.
The imputed attorney disqualification standards do not apply simply because a nonlawyer employee, during the employee's
former employment, was exposed to or had access to the files of an adversary of the hiring law firm's client. Imputed
disqualification applies only when the nonlawyer employee acquired privileged, confidential information. SCR 160(2), 187.
Screening of a nonlawyer employee may allow the hiring law firm to avoid imputed attorney disqualification based on the
employee's acquisition, during the employee's former employment, of confidences of an adversary of the hiring law firm's client;
overruling Ciaffone v. District Court, 113 Nev. 1165, 945 P.2d 950 (1997). Restatement (Third) of the Law Governing Lawyers
123 cmt. f.
Imputed disqualification of an attorney is considered a harsh remedy that should be invoked if, and only if, the court is satisfied
that real harm is likely to result from failing to invoke it. SCR 160.
When a law firm hires a nonlawyer employee, the firm has an affirmative duty to determine whether the employee previously
had access to adversarial client files. If the hiring law firm determines that the employee had such access, the hiring law firm has
an absolute duty to screen the nonlawyer employee from the adversarial cases irrespective of the nonlawyer employee's actual
knowledge of privileged or confidential information. SCR 160(2), 187.
If a nonlawyer employee hired by a law firm acquired, during the employee's former employment, confidences of an adversary of
the hiring law firm's client, the hiring law firm must, at a minimum: (1) caution the employee not to disclose any information
relating to the representation of the adversary; (2) instruct the employee not to work on any matter on which she worked during the
prior employment or regarding which she has information relating to the former employer's representation; and (3) take reasonable
steps to ensure that the employee does not work in connection with matters on which she worked during the prior employment,
absent the adversary's consent, i.e., unconditional waiver after consultation. SCR 160(2), 187.
If a nonlawyer employee hired by a law firm acquired, during the employee's former employment, confidences of an adversary of
the hiring law firm's client, the hiring law firm must inform the adversarial party, or their counsel, regarding the hiring of the
nonlawyer employee and the screening mechanisms utilized, and the adversarial party may then: (1) make a conditional waiver of
imputed attorney disqualification, i.e., agree to the screening mechanisms; (2) make an unconditional waiver, which would
eliminate the screening mechanisms; or (3) file a motion to disqualify counsel. SCR 160(2), 187.
Even when the hiring law firm uses a screening process for a nonlawyer employee who acquired, during the employee's former
employment, confidences of an adversary of the hiring law firm's client, imputed attorney disqualification will always be required,
absent unconditional waiver by the adversary, under the following circumstances: (1) when information relating to the
representation of the adversary has in fact been disclosed to the hiring law firm, or (2) when screening would be ineffective or the
employee necessarily would be required to work on the other side of a matter that is the same as or substantially related to a matter
on which the employee has previously worked. SCR 160(2), 187.
Once a district court determines that a law firm's nonlawyer employee acquired confidential information, during the employee's
former employment, regarding an adversary of the hiring law firm's client, the district court should grant a motion for imputed
attorney disqualification unless the district court determines that screening is sufficient to safeguard the adversarial party from
disclosure of the confidential information. SCR 160(2), 187.
When determining whether imputed attorney disqualification is required, based on a law firm's hiring of a nonlawyer employee
who, during the employee's former employment, acquired confidences of an adversary of the hiring law firm's client, the district
court is faced with the delicate task of balancing competing interests, including: (1) the individual right to be represented by
counsel of one's choice, (2) each party's right to be free from the risk of even inadvertent disclosure of confidential information, (3)
the public's interest in the scrupulous administration of justice, and (4) the prejudices that will inure to the parties as a result of the
district court's decision. SCR 160(2), 187.
To determine whether screening, by the hiring law firm, of a nonlawyer employee who, during the employee's former
employment, acquired confidences of an adversary of the hiring law firm's client has been or may be effective,
or may be effective, the district court should consider: (1) the substantiality of the relationship between the former and current
matters; (2) the time elapsed between the matters; (3) the size of the hiring law firm; (4) the number of individuals presumed to
have confidential information; (5) the nature of their involvement in the former matter; (6) the timing and features of any measures
taken to reduce the danger of disclosure; and (7) whether the old employer and the hiring law firm represent adverse parties in the
same proceeding, rather than in different proceedings, because inadvertent disclosure by the nonlawyer employee is more likely in
the former situation. SCR 160(2), 187.
Imputed disqualification of law firm representing wife in divorce action was not required, though law firm hired legal assistant
who had worked for law firm representing husband, where the legal assistant merely had access to husband's files during the prior
employment and she might have typed something for an attorney when he performed some services for husband. SCR 160(2), 187.
Imputed disqualification of law firm representing husband in divorce action was not required, though law firm hired legal
assistant who had worked for law firm representing wife, and during the prior employment the legal assistant may have acquired
confidential information regarding wife. The hiring law firm had represented husband for over two years, there was no evidence
the legal assistant would be forced to work on the divorce matter at the hiring law firm, and a final judgment, which was being
appealed, had been issued in the divorce action. SCR 160(2), 187.
OPINION
The law firm of Ecker & Standish was disqualified from representing petitioner
Steven Leibowitz pursuant to our decision in Ciaffone v. District Court,
1
which addressed
imputed disqualification based upon employment of a nonlawyer employee who had access to
confidential or privileged information of an adverse party during the course of the employee's
prior employment. For the reasons set forth below, we determine that screening is permissible
for nonlawyer employees, clarify in part and overrule in part our decision in Ciaffone and
grant the petition.
FACTS
This petition for a writ of mandamus arises out of a divorce proceeding. Steven and
Deena Leibowitz were married in 1986. The parties later separated, and Deena filed a
complaint for divorce in February 2000. Deena hired the law firm of Dickerson, Dickerson,
Consul & Pocker {DDCP) to represent her.
__________

1
113 Nev. 1165, 945 P.2d 950 (1997).
Consul & Pocker (DDCP) to represent her. Steven retained the law firm of Ecker & Standish
(ES) to represent him in the divorce proceedings.
After a number of contested hearings, the district court entered a final judgment
resolving all the parties' property, custody, and other divorce issues. The final judgment was
entered on July 26, 2001. Both Steven and Deena appealed the final judgment and the appeal
is pending in this court.
Later in the summer of 2001, while the appeal was pending, Steven filed a motion
seeking to modify child custody and visitation. The district court certified its inclination to
consider the motion. On December 13, 2001, Steven filed a motion to remand the issue to the
district court.
2
Deena opposed the motion.
After filing the motion to remand, ES advised DDCP that ES had hired Haunani
Magalianes, a former DDCP employee, as a legal assistant. Magalianes had performed
limited work on Deena's file while employed at DDCP. During discussions regarding possible
disqualification, ES discovered that one of its former employees, Pollie J. Baker, worked at
DDCP for periods of time between June 2001 and April 2002.
Magalianes evidence
On February 14, 2002, attorney Howard Ecker advised DDCP via letter that ES had
hired Magalianes. With respect to the Leibowitz case, Ecker indicated that Magalianes told
him she might have revised the initial complaint in the divorce proceedings while working at
DDCP. However, Magalianes advised Ecker that she did not believe she had obtained any
privileged information as a result of her work in the Leibowitz matter.
DDCP employed Haunani Magalianes in its domestic division until May 26, 2000.
Thereafter, Magalianes transferred to DDCP's civil division until approximately April 2001.
According to Magalianes, during her employment in DDCP's domestic division, she had three
contacts with the Leibowitz case. First, Magalianes took the initial phone call from Deena
regarding potential representation by DDCP (i.e., name, phone number, basic facts, and type
of case). Second, Magalianes prepared a short memorandum to attorney Robert P. Dickerson
that contained the initial information obtained by Magalianes. Lastly, Magalianes prepared a
substitution of attorneys form and a transmittal letter to Deena's former attorney regarding the
substitution. DDCP asserts Magalianes also participated in a meeting involving a child
custody dispute on May 26, 2000. Magalianes denies participating in this meeting. DDCP's
billing records do not reflect Magalianes' attendance at the meeting,
__________

2
See Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978).
dance at the meeting, although one of the attorneys present filed an affidavit indicating
Magalianes was present during a phone call with opposing counsel and at a conference
among Deena's counsel after the telephone conversation. The telephone call and conference
involved a dispute between Deena and Steven over who would be entitled to have custody
during the Memorial Day weekend.
As a condition of her employment, and in the course of her employment with ES,
Magalianes was screened from any contact with the Leibowitz case. Specifically, Magalianes
had no access to actual or computer files and was prohibited from conversing with law firm
personnel regarding the Leibowitz matter.
Baker evidence
ES employed legal assistant Pollie J. Baker from October 2000 until mid-January
2001. Baker worked primarily for ES attorney Ed Kainen. During the period of Baker's
employment, ES represented Steven in the divorce proceedings. Attorney Thomas J. Standish
testified that he did the majority of work on the Leibowitz divorce, but he had some help from
Kainen. Baker had access to the Leibowitz files, but Baker averred that she did not have any
contact with the Leibowitz case while employed at ES. ES presented evidence that Baker had
actual involvement with the case.
Around June 2001, Baker went to work for DDCP and Baker worked there for several
months. She left DDCP for a short period of time and returned in late 2001. Baker ended her
relationship with DDCP on April 24, 2002. DDCP indicated that it did not inform ES about
Baker's employment at the time because it was unaware of Baker's previous employment with
ES. Baker's resume did not disclose her employment with ES.
ES filed a motion asking the district court to determine the disqualification issues.
According to ES, it indicated if Ciaffone mandated disqualification whenever a nonlawyer
employee had mere access to privileged or confidential information, then both firms should
be disqualified. However, ES argued that Ciaffone only required disqualification when an
employee actually obtained privileged or confidential information. Under this interpretation
of Ciaffone, ES asserted that neither firm should be disqualified. DDCP's response argued
that Ciaffone required disqualification of both firms.
The district court concluded that Ciaffone mandated automatic disqualification
whenever a nonlawyer employee had access to an adverse party's privileged or confidential
information during employment by that party's attorneys. The district court also found that
Magalianes had actual communication with Deena during her employment with DDCP,
inferring that Magalianes may have obtained privileged or confidential information. As to
Baker, the district court concluded that she did not view or have access to any of the
Leibowitz files while employed at ES.
the Leibowitz files while employed at ES.
3
The district court disqualified ES but declined to
disqualify DDCP. This writ petition was then filed.
DISCUSSION
[Headnote 1]
Petitioners seek a writ of mandamus compelling the district court to vacate its order
disqualifying the law firm of ES from further representation of Steven. A writ of mandamus
is an extraordinary remedy that will not issue if the petitioner has a plain, speedy, and
adequate remedy at law.
4
Whether to consider a petition for mandamus is entirely within the
discretion of this court.
5
The writ is generally issued to compel the performance of an act
that the law requires as a duty resulting from an office, trust or station, or to control an
arbitrary or capricious exercise of discretion.
6

[Headnote 2]
This court has previously concluded that mandamus is an appropriate remedy in
lawyer disqualification matters.
7
In addition, we have said that [d]istrict courts are
responsible for controlling the conduct of attorneys practicing before them, and have broad
discretion in determining whether disqualification is required in a particular case.
8
However, parties should not be allowed to misuse motions for disqualification as
instruments of harassment or delay.
9

Ciaffone clarified in part
First, petitioners contend the district court misapplied this court's decision in Ciaffone.
They assert that Ciaffone does not automatically require disqualification of lawyers whenever
they hire a nonlawyer who had access to an adverse party's privileged or confidential
information during previous employment. Petitioners argue that Ciaffone stands for the
proposition that the disqualification remedy is only available if the district court first
determines that a lawyer's employee gained privileged and confidential information about
an adverse party as a result of former employment.
__________

3
The district court apparently overlooked the parties' undisputed statements that Baker had access to the
Leibowitz files.

4
See NRS 34.170.

5
Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).

6
NRS 34.160; see Wardleigh v. District Court, 111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995); Round Hill
Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981).

7
Cronin v. District Court, 105 Nev. 635, 639 n.4, 781 P.2d 1150, 1152 n.4 (1989).

8
Brown v. Dist. Ct., 116 Nev. 1200, 1205, 14 P.3d 1266, 1269 (2000); Cronin, 105 Nev. at 640, 781 P.2d at
1153.

9
Brown, 116 Nev. at 1205, 14 P.3d at 1270.
that a lawyer's employee gained privileged and confidential information about an adverse
party as a result of former employment. Petitioners contend that mere access to the adverse
party's file during the former employment is insufficient to warrant disqualification. We
agree.
Ciaffone recognized that the prohibitions against the unauthorized disclosure of
confidential information encompassed in SCR 156 and 159(2) apply to an attorney's
nonlawyer employees through SCR 187, which requires lawyers to hold their nonlawyer
employees to the same professional standards applicable to attorneys.
10
We held that the
imputed disqualification requirements for attorneys and firms under SCR 160 apply to
nonlawyer employees of an attorney or firm.
11
Thus, if a nonlawyer possesses privileged
information, imputed disqualification should apply whenever the nonlawyer accepts
employment with a firm or attorney who represents a client with a materially adverse interest
to the former client.
[Headnote 3]
However, despite the statements in the opinion indicating that imputed
disqualification does not apply if the nonlawyer employee did not obtain confidential
information in the prior employment,
12
the facts in Ciaffone infer that mere exposure to a
client's file is sufficient to warrant disqualification. In Ciaffone, the nonlawyer's involvement
with the prior client's case was limited to some work in a secretarial, word processor capacity.
13
The opinion is silent on whether or not this exposure related to privileged or confidential
information. Instead, the opinion seems to suggest that any exposure to a client's file is
sufficient to invoke imputed disqualification. We therefore take this opportunity to clarify
that the imputed disqualification standards of SCR 160(2) do not apply simply because a
nonlawyer employee was exposed, or had access to, a former client's file. The rule only
applies when the nonlawyer employee acquires privileged, confidential information.
Ciaffone overruled in partscreening permitted
[Headnote 4]
In addition to holding that the imputed disqualification standards of SCR 160(2) apply
to nonlawyer employees of attorneys, Ciaffone also addressed whether disqualification could
be avoided by the use of screening procedures. We concluded that screening was not
permitted under the rule for attorneys, and therefore, it should not be permitted for
nonlawyers.
__________

10
Ciaffone, 113 Nev. at 1168, 945 P.2d at 952-53.

11
Id. at 1169-70, 945 P.2d at 953.

12
Id. at 1169 n.3, 945 P.2d at 953 n.3.

13
Id. at 1166-67, 945 P.2d at 951-52.
Petitioners and amici
14
urge us to overrule that portion of Ciaffone and permit
nonlawyer screening. They respectfully assert that this court misapprehended the weight of
authority on this issue. We agree.
In Ciaffone, we were asked to adopt screening for nonattorney employees based upon
the rationale of an American Bar Association interpretation of the ABA Model Rules of
Professional Conduct.
15
The ABA opinion reasoned that screening should be permitted for
nonlawyer employees because their employment opportunities and mobility are more
substantially impacted by imputed disqualification than that of attorneys.
16
We rejected this
argument and said it was roundly criticized. We also inferred that a majority of courts had
rejected nonlawyer screening and cited to a law review article by M. Peter Moser in support
of these statements.
17
In fact, Mr. Moser did not criticize nonlawyer screening. He pointed
out that a majority of jurisdictions permit nonlawyer screening and argued that screening
should also be permitted for lawyers.
18

As pointed out by the amici's brief, the majority of professional legal ethics
commentators, ethics tribunals, and courts have concluded that nonlawyer screening is a
permissible method to protect confidences held by nonlawyer employees who change
employment.
19
Nevada is in a minority of jurisdictions that do not allow screening for
nonlawyers moving from private firm to private firm.
20

__________

14
Amici are the Sierra Nevada Association of Paralegals, the National Association of Legal Assistants, and
the National Association of Legal Secretaries of Washoe County.

15
113 Nev. at 1169, 945 P.2d at 953.

16
See ABA Comm. on Ethics and Prof'l Responsibility, Informal Op. 1526 (1988) [hereinafter Informal Op.
1526] (imputed disqualification arising from change in employment by a nonlawyer).

17
Ciaffone, 113 Nev. at 1169-70, 945 P.2d at 953.

18
M. Peter Moser, Chinese Walls: A Means of Avoiding Law Firm Disqualification When a Personally
Disqualified Lawyer Joins the Firm, 3 Geo. J. Legal Ethics 399, 406-07 (1990).

19
Restatement (Third) of the Law Governing Lawyers 123 cmt. f (2000) (approving screening for
nonlawyer employees to protect client confidences); 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of
Lawyering 14.11 (3d ed. 2003) (observing the imputation rules do not strictly apply to nonlawyer employees
to the extent of allowing screening); Model Rules of Prof'l Conduct R. 1.10 cmt. 4 (2002) (stating that imputed
disqualification does not apply to nonlawyer employees, who may be screened to protect client's interests).

20
See, e.g., Zimmerman v. Mahaska Bottling Co., 19 P.3d 784 (Kan. 2001) (adopting this court's reasoning in
Ciaffone in concluding that professional conduct rules apply to nonlawyer employees and screening devices,
inapplicable to lawyers, are equally inapplicable to nonlawyer employees). See generally J. Anthony McLain,
Imputed Disqualification of Law Firms When Nonlawyer Employees Change Firms, 63 Ala. Law. 94, 95 (2002).
[Headnote 5]
Imputed disqualification is considered a harsh remedy that should be invoked if, and
only if, the [c]ourt is satisfied that real harm is likely to result from failing to invoke it.
21
This stringent standard is based on a client's right to counsel of the client's choosing and the
likelihood of prejudice and economic harm to the client when severance of the attorney-client
relationship is ordered.
22
It is for this reason that the ABA opined in 1988 that screening is
permitted for nonlawyer employees, while conversely concluding, through the Model Rules
of Professional Conduct, that screening is not permitted for lawyers.
23
The ABA explained
that additional considerations exist justifying application of screening to nonlawyer
employees (i.e., mobility in employment opportunities which function to serve both legal
clients and the legal profession) versus the Model Rule's proscription against screening where
lawyers move from private firm to private firm.
24
In essence, a lawyer may always practice
his or her profession regardless of an affiliation to a law firm. Paralegals, legal secretaries,
and other employees of attorneys do not have that option.
We are persuaded that Ciaffone misapprehended the state of the law regarding
nonlawyer imputed disqualification. We therefore overrule Ciaffone to the extent it prohibits
screening of nonlawyer employees.
[Headnote 6]
When a law firm hires a nonlawyer employee, the firm has an affirmative duty to
determine whether the employee previously had access to adversarial client files. If the hiring
law firm determines that the employee had such access, the hiring law firm has an absolute
duty to screen the nonlawyer employee from the adversarial cases irrespective of the
nonlawyer employee's actual knowledge of privileged or confidential information.
[Headnote 7]
Although we decline to mandate an exhaustive list of screening requirements, the
following provides an instructive minimum:
__________

21
Hayes v. Central States Orthopedic, 51 P.3d 562, 565 (Okla. 2002).

22
See Cronin, 105 Nev. at 642, 781 P.2d at 1154; see also Hayes, 51 P.3d at 565.

23
Informal Op. 1526, supra note 16 (imputed disqualification arising from change in employment by a
nonlawyer); see also Restatement (Third) of the Law Governing Lawyers 123 cmt. f (2000) (approving
screening for nonlawyer employees to protect client confidences); 1 Hazard & Hodes, supra note 19, 14.11
(observing the imputation rules do not strictly apply to nonlawyer employees to the extent of allowing
screening); Arthur Garwin, Confidentially Speaking: Paralegal Hired from Opposing Firm May Need to be
Isolated to Avoid Conflicts, A.B.A. J., Oct. 1998, at 78.

24
Informal Op. 1526, supra note 16.
1. The newly hired nonlawyer [employee] must be cautioned not to disclose any
information relating to the representation of a client of the former employer.
2. The nonlawyer [employee] must be instructed not to work on any matter on which
[he or] she worked during the prior employment, or regarding which [he or] she has
information relating to the former employer's representation.
3. The new firm should take . . . reasonable steps to ensure that the nonlawyer
[employee] does not work in connection with matters on which [he or] she worked
during the prior employment, absent client consent [i.e., unconditional waiver] after
consultation.
25

[Headnote 8]
In addition, the hiring law firm must inform the adversarial party, or their counsel,
regarding the hiring of the nonlawyer employee and the screening mechanisms utilized. The
adversarial party may then: (1) make a conditional waiver (i.e., agree to the screening
mechanisms); (2) make an unconditional waiver (eliminate the screening mechanisms); or (3)
file a motion to disqualify counsel.
[Headnote 9]
However, even if the new employer uses a screening process, disqualification will
always be requiredabsent unconditional waiver by the affected clientunder the following
circumstances:
1. [W]hen information relating to the representation of an adverse client has in fact
been disclosed [to the new employer];
26
or, in the absence of disclosure to the new
employer,
2. [W]hen screening would be ineffective or the nonlawyer [employee] necessarily
would be required to work on the other side of a matter that is the same as or
substantially related to a matter on which the nonlawyer [employee] has previously
worked.
27

[Headnotes 10, 11]
Once a district court determines that a nonlawyer employee acquired confidential
information about a former client, the district court should grant a motion for disqualification
unless the district court determines that the screening is sufficient to safeguard the former
client from disclosure of the confidential information. The district court is faced with the
delicate task of balancing competing interests, including:
__________

25
In re Bell Helicopter Textron, Inc., 87 S.W.3d 139, 145-46 (Tex. App. 2002); see also Informal Op. 1526,
supra note 16.

26
In re Bell Helicopter, 87 S.W.3d at 146; see also Informal Op. 1526, supra note 16.

27
In re Bell Helicopter, 87 S.W.3d at 146; see also Informal Op. 1526, supra note 16.
district court is faced with the delicate task of balancing competing interests, including: (1)
the individual right to be represented by counsel of one's choice, (2) each party's right to
be free from the risk of even inadvertent disclosure of confidential information, (3) the
public's interest in the scrupulous administration of justice, and (4) the prejudices that will
inure to the parties as a result of the [district court's] decision.
28

[Headnote 12]
To determine whether screening has been or may be effective, the district court should
consider: (1) the substantiality of the relationship between the former and current matters,
(2) the time elapsed between the matters, (3) the size of the firm, (4) the number of
individuals presumed to have confidential information, (5) the nature of their involvement
in the former matter, (6) the timing and features of any measures taken to reduce the danger
of disclosure, and (7) whether the old firm and the new firm represent adverse parties in the
same proceeding, rather than in different proceedings because inadvertent disclosure by the
nonlawyer employee is more likely in the former situation.
29

Application to case at bar
[Headnote 13]
As to Baker, the record supports the district court's finding that she did not obtain
confidential information about Steven's case while employed by ES. At most, the record
reflects she had access to Steven's files because she worked in the ES office and she could
have typed something for attorney Kainen when he performed some services for Steven.
Given our clarification of Ciaffone, we conclude the district court did not err in refusing to
disqualify DDCP.
[Headnote 14]
Turning to Magalianes and applying the factors identified above, the record reflects
that Magalianes worked in the domestic division of DDCP for approximately one month of
the time that DDCP handled the Leibowitz matter. During that period, she did perform work
on Deena's case. She spoke with Deena, and the district court findings infer that she may have
received some confidential information during the conversation. The district court did not
resolve the factual dispute over Magalianes' presence at the Memorial Day custody
conference; however, for purposes of our analysis, we assume that she was present. The
affidavits of Deena's counsel however, do not clearly establish that Magalianes was privy to
any confidential information.
__________

28
Brown, 116 Nev. at 1205, 14 P.3d at 1269-70.

29
In re Bell Helicopter, 87 S.W.3d at 146.
privy to any confidential information. It appears that much of the conference involved
telephone conversations with opposing counsel as the attorneys attempted to reach a
resolution on visitation that both parties could accept. It is clear that the only subject of the
conference was the Memorial Day visitation. Almost two years elapsed between the
conclusion of Magalianes' involvement with the Leibowitz case until the time of her
employment by ES. ES is a small firm, and, finally, the old and new firms represent adverse
parties in the same proceeding.
Balancing Deena's interest in preventing possible disclosure of confidential
information
30
with Steven's interest in retaining the attorney who has represented him for
over two years, and the entirety of the divorce proceedings, we conclude that ES should not
be disqualified. Magalianes' contacts with Deena were brief and, according to the record,
consisted mainly of routine information with some possible confidential information. The
issues relating to the Memorial Day weekend have long since been resolved, and there is no
indication in the record that any confidential information discussed at that conference related
to anything but the weekend custody dispute. Although ES is a small firm, there is no
evidence that Magalianes would be, by the nature of the firm, forced to work on the
Leibowitz matter. Moreover, given the length of time ES represented Steven, the fact that a
final judgment has been issued and Magalianes' involvement occurred early in the
proceedings, the public's interest in the administration of justice is not significantly impacted
in this case. Finally, Steven would suffer extreme prejudice if he had to retain a new attorney
this late in the proceedings, and disqualification is not merited given Magalianes' marginal
involvement with the matter while employed with DDCP.
31

CONCLUSION
Based on the foregoing, we overrule Ciaffone's prohibition against screening for
nonlawyer employees, clarify that mere opportunity to access confidential information does
not merit disqualification and conclude that the district court erred in disqualifying the law
firm of ES from representing Steven Leibowitz. Accordingly, we grant the petition for a writ
of mandamus. The clerk of this court shall issue a writ of mandamus directing the district
court to vacate its order disqualifying the law firm of ES.
__________

30
There are no allegations that any confidential information was actually disclosed.

31
Because both parties acknowledged that a strict interpretation of Ciaffone requires disqualification of both
firms, we do not conclude that the district court abused its discretion. We grant the writ because, given our
clarification of Ciaffone and our decision to permit nonlawyer screening, disqualification is not warranted in this
case.
clerk of this court shall issue a writ of mandamus directing the district court to vacate its
order disqualifying the law firm of ES.
Shearing, Rose and Maupin, JJ., concur.
Gibbons, J., concurring:
I concur with the majority that the petition should be granted. However, I disagree that
the hiring law firm must inform the adversarial party, or their counsel, regarding the hiring of
the nonlawyer employee and the screening mechanisms utilized. The three instructive
minimum screening requirements set forth by the majority are sufficient.
Leavitt, J., with whom Agosti, C. J., agrees, dissenting:
I would deny the petition because the district court properly disqualified the law firm
of Ecker & Standish.
I would follow the reasoning in Ciaffone v. District Court.
1
In Ciaffone, we held that
screening was ineffective to prevent disqualification.
2
Additionally, we noted:
The reasoning [is] . . . that a nonlawyer's employment opportunities or mobility must
be weighed against client confidentiality before disqualification occurs. While this
approach may appear fairer to the paralegal/secretary, it has been roundly criticized for
ignoring the realities of effective screening and litigating that issue should it ever arise.
For example, one commentator explained that a majority of courts have rejected
screening because of the uncertainty regarding the effectiveness of the screen, the
monetary incentive involved in breaching the screen, the fear of disclosing privileged
information in the course of proving an effective screen, and the possibility of
accidental disclosures.
3

I would deny the petition because the district court simply followed our decision in
Ciaffone.
__________

1
113 Nev. 1165, 945 P.2d 950 (1997).

2
Id. at 1169, 945 P.2d at 953.

3
Id. at 1169-70, 945 P.2d at 954 (citing M. Peter Moser, Chinese Walls: A Means of Avoiding Law Firm
Disqualification When a Personally Disqualified Lawyer Joins the Firm, 3 Geo. J. Legal Ethics 399, 403, 407
(1990)).
__________
119 Nev. 537, 537 (2003) State v. Gameros-Perez
THE STATE OF NEVADA, Appellant, v. JOSE SIMON GAMEROS-PEREZ and ISIDRO
BENITEZ-MEDINA, Respondents.
No. 41061
November 3, 2003 78 P.3d 511
Appeal from an order of the district court granting a pretrial motion to suppress
evidence obtained during the execution of a telephonic search warrant. Second Judicial
District Court, Washoe County; Janet J. Berry, Judge.
The supreme court, Rose, J., held that a telephonic search warrant need not contain a
statement of probable cause on the face of the warrant or physically attached to the warrant,
and instead, the warrant may incorporate by reference an affidavit or oral statement of
probable cause.
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
Law Office of David R. Houston and David R. Houston, Reno, for Respondent
Gameros-Perez.
Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public
Defender, and Mary Pat Barry, Deputy Public Defender, Washoe County, for Respondent
Benitez-Medina.
A telephonic search warrant need not contain a statement of probable cause on the face of the warrant or physically attached to
the warrant. Rather, the warrant may incorporate by reference an affidavit or oral statement of probable cause. NRS 179.045(2).
It is unnecessary for police authorities and judicial officers to recite a statement of probable cause on the face of search warrants
issued pursuant to a sealed affidavit or oral statement of probable cause. Rather, the sealed affidavit or oral statement of probable
cause must be incorporated by reference without being attached to the warrant, and will remain sealed until some future time. NRS
179.045(3).
Warrants issued upon unsealed affidavits of probable cause must either state the probable cause for issuance and the names of
persons whose affidavits support the application for the warrant on the face thereof, or the affidavit must be incorporated into the
warrant by reference, physically attached to the warrant, and left at the premises where the warrant is served. NRS 179.045.
OPINION
This is an appeal by the State of Nevada from an order of the district court granting a
pretrial motion brought by respondents, Jose Simon Gameros-Perez and Isidro
Benitez-Medina, to suppress evidence obtained during the execution of a telephonic search
warrant. We reverse and remand with instructions.
FACTS
On October 30, 2002, as part of an investigation into possible illicit drug activity,
Washoe County Sheriff's Detective David Kuzemchak telephonically applied for and
obtained a warrant to search respondents' apartment pursuant to NRS 179.045(2).
1
Accordingly, the magistrate issued the warrant based upon sworn oral representations later
reduced to writing. Although the warrant contained a statement that probable cause existed to
believe respondents were in possession of illegal narcotics and paraphernalia at their
apartment, it did not contain an actual recitation of the probable cause for the search.
Sheriff's deputies located heroin during the search and placed respondents under
arrest. Thereafter, a justice of the peace bound respondents over for trial in district court on
charges of narcotics trafficking and conspiracy to sell a controlled substance. The district
court ultimately granted respondents' motion to suppress the evidence because the warrant
served upon respondents did not contain a statement of probable cause. In this, the district
court relied upon our decision in State v. Allen
2
(Allen I), in which we discussed and applied
the requirements for search warrants issued pursuant to NRS 179.045(5).
3
As noted, the
State appeals from that order.
__________

1
In lieu of the affidavit required by subsection 1, the magistrate may take an oral statement given under
oath, which must be recorded in the presence of the magistrate or in his immediate vicinity by a certified
court reporter or by electronic means, transcribed, certified by the reporter if he recorded it, and certified
by the magistrate. The statement must be filed with the clerk of the court.

2
118 Nev. 842, 60 P.3d 475 (2002).

3
The warrant must be directed to a peace officer in the county where the warrant is to be executed. It must:
(a) State the grounds or probable cause for its issuance and the names of the persons whose affidavits
have been taken in support thereof; or
The warrant must command the officer to search forthwith the person or place named for the property
specified.
DISCUSSION
Allen II
[Headnote 1]
The State argues that our en banc reconsideration of Allen I in State v. Allen
4
(Allen
II) undercuts the basis for the district court's suppression order. We agree.
5
Although not
dealing with a telephonic search warrant in Allen I and II, we clearly stated in Allen II that
[t]his opinion does not address and should not affect search warrants issued pursuant to NRS
179.045(2), the telephonic warrant subsection.
6
Unfortunately, the district court did not
have this language before it when it rendered its decision. Now presented with a warrant
issued pursuant to NRS 179.045(2), we hold that a warrant issued pursuant to this subsection
need not contain a statement of probable cause on the face of the warrant. However, because
of a degree of confusion surrounding our statements concerning the requirements of NRS
179.045 in both Allen I and Allen II, we now take this further opportunity to clarify the two
decisions.
The Allen decisions did not concern a search warrant issued pursuant to NRS
179.045(2). In Allen I and II, police authorities obtained a search warrant based upon an
affidavit that was not sealed. No statement of probable cause appeared on the face of the
warrant, the warrant did not explicitly incorporate the affidavit by reference, and police
officials did not attach a copy of the affidavit to the warrant or leave a copy of the affidavit at
the searched premises. In Allen I, we upheld the district court's order suppressing evidence
seized pursuant to the warrant:
The Nevada Legislature amended NRS 179.045 in 1997 to permit a magistrate to seal
the affidavit of probable cause upon a showing of good cause. This now appears as
NRS 179.045(3). The section at issue here, NRS 179.045(5)(b), was proposed in the
same amendment and was designed to facilitate the magistrate's ability to seal
affidavits.
If a magistrate, for good cause, seals an affidavit of probable cause under NRS
179.045(3), then the search warrant may incorporate that affidavit by reference under
NRS 179.045(5)(b). However, the incorporation by reference provision does not
eliminate the requirement that the warrant itself contain a statement of probable cause.
Underpinning search warrant law is the requirement that search warrants be issued
upon a showing of probable cause.
__________

4
119 Nev. 166, 69 P.3d 232 (2003).

5
The State also argues that the warrant contained a sufficient statement of probable cause, but we reject this
argument. However, as noted infra, we conclude in our clarification of Allen II, that warrants issued pursuant to
NRS 179.045(2) do not require a statement of probable cause on the face of the warrant itself.

6
119 Nev. at 171 n.16, 69 P.3d at 235 n.16.
issued upon a showing of probable cause. Thus, the option provided under NRS
179.045 is to make a statement of probable cause and (1) state the names of the
persons whose affidavits had been taken, or (2) incorporate the affidavit by reference in
the warrant. Implicit in NRS 179.045(5)(b) is that a statement of probable cause be
included in the warrant. Simply because an affidavit is incorporated by reference does
not eliminate the need to include a statement of probable cause in the warrant.
In cases where a magistrate has not sealed an affidavit and it is incorporated by
reference in the warrant, that affidavit must accompany the warrant and be provided to
the target of the search or left at the residence.
7

Because the emphasized language created a degree of uncertainty concerning the interplay
between NRS 179.045(2) and (5), we issued the opinion in Allen II, changing the emphasized
portion of the opinion as follows:
However, the incorporation by reference provision does not eliminate the requirement
that the warrant itself contain a statement of probable cause if the affidavit is not sealed
or issued upon a recorded oral statement pursuant to section 2 of NRS 179.045.
8

The emphasized language quoted above from Allen II is not meant to suggest that telephonic
warrants are subject to the requirements of NRS 179.045(5), other than to incorporate by
reference the affidavit or oral statement. The preface to our opinion in Allen II stipulates that
search warrants supported by sealed affidavits and those issued under NRS 179.045(2) need
not contain a statement of probable cause or have the probable cause statement physically
attached to the warrant. As previously indicated, a footnote to the decision states that the
attachment requirement does not apply to warrants issued under NRS 179.045(2).
9

[Headnotes 2, 3]
We also now clarify our statement regarding the two options for the issuance of
warrants under NRS 179.045(5)(a) and (b) in Allen I, quoted above. NRS 179.045(5)(a) and
(b) state:
The warrant must be directed to a peace officer in the county where the warrant is to be
executed. It must:
(a) State the grounds or probable cause for its issuance and the names of the persons
whose affidavits have been taken in support thereof; or
__________

7
Allen I, 118 Nev. at 847-48, 60 P.3d at 478-79 (footnotes omitted) (emphasis added).

8
Allen II, 119 Nev. at 171, 69 P.3d at 235 (emphasis added).

9
Id. at 171 n.16, 69 P.3d at 235 n.16.
We therefore restate the options under NRS 179.045 as follows. First, it is unnecessary for
police authorities and judicial officers to recite a statement of probable cause on the face of
search warrants issued pursuant to NRS 179.045(3), upon sealed affidavits and warrants
issued pursuant to NRS 179.045(2). Under subsection 3, statements of probable cause in
sealed affidavits must be incorporated by reference without being attached to the warrant, but
remain sealed until some future time. Statements of probable cause in support of warrants
issued under subsection 2 may be later accessed via the court clerk. Second, warrants issued
upon unsealed affidavits must either state the probable cause for issuance and the names of
persons whose affidavits support the application for the warrant on the face thereof, or the
affidavit must be incorporated into the warrant by reference, physically attached to the
warrant and left at the premises where the warrant is served. We reiterate that Allen I
correctly affirmed a district court order suppressing evidence seized pursuant to a search
warrant with no facial statement of probable cause, and based upon an unsealed,
unincorporated and unattached affidavit.
Here, however, the district court applied the ruling of Allen I to a warrant issued
telephonically under NRS 179.045(2), a warrant process which Allen I and subsequent
clarifications of it do not govern. Accordingly, any examination of probable cause in aid of
the warrant in this case must be undertaken in connection with the transcribed sworn
statement upon which the warrant was issued.
Probable cause
The relevant portions of the search warrant read as follows:
Proof . . . having been made this date before me by Detective Kuzemchak of the
WCNU, Washoe County, Nevada, that there is probable cause to believe that the
crime(s) of possession of a controlled substance, felony violations of NRS 453.336
has/have been committed by Simon ULN and/or Isidro Benitez and that evidence of the
crime(s) controlled substances: namely, heroin and cocaine, packaging materials,
scales, ledgers, cell phones, pagers and indicia of rental for 3125 S. Virginia St. #79
is/are presently located, concealed and/or hidden on or within a residence and its
surrounding premises and curtilage including sheds, outbuildings and areas appurtenant
thereto, described as 3125 S. Virginia St. #79, Reno (Southwest Village Apts.), in
Washoe County, Nevada.
As noted at the outset, the warrant only states a suspicion of criminal activity, not the grounds
or probable cause for that suspicion. As also noted, we reject respondents' contention that
NRS 179.045{2) telephonic search warrants require a statement of probable cause on the
face of the warrant or attached to it.
179.045(2) telephonic search warrants require a statement of probable cause on the face of the
warrant or attached to it.
Because the district court erroneously relied on our decision in Allen I, it did not
properly determine whether the State obtained the telephonic search warrant upon sufficient
probable cause. Therefore, we remand this issue to the district court for further proceedings to
determine whether the transcribed oral statement made under NRS 179.045(2) established
sufficient probable cause for issuance of the search warrant.
CONCLUSION
We reverse the district court's order suppressing the evidence based on our holding in
Allen II. Additionally, we remand the issue of whether the transcribed oral statement
establishes sufficient probable cause to the district court.
Agosti, C. J., Shearing, Leavitt, Becker, Maupin and Gibbons, JJ., concur.
__________
119 Nev. 542, 542 (2003) Green v. State
FREDERICK GREEN aka FREDERIC GREEN, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 39198
December 11, 2003 80 P.3d 93
Appeal from a judgment of conviction following a jury verdict of one count of sexual
assault and one count of aggravated stalking. Second Judicial District Court, Washoe County;
Janet J. Berry, Judge.
The supreme court held that: (1) error in giving acquittal-first jury instruction
providing that jury must first unanimously acquit defendant of primary aggravated stalking
charge before considering lesser-included offense of misdemeanor stalking did not affect
defendant's substantial rights, and thus, defendant was not entitled to relief under plain error
rule, and (2) as matter of first impression, supreme court would adopt unable-to-agree jury
instruction as proper method of instructing juries on consideration of lesser-included offenses
and reject giving of acquittal-first instruction.
Affirmed.
Scott W. Edwards, Reno, for Appellant.
119 Nev. 542, 543 (2003) Green v. State
1. Criminal Law.
Generally, failure to clearly object on record to jury instruction precludes appellate review; however, supreme court has
discretion to address error if it was plain and affected defendant's substantial rights.
2. Criminal Law.
In conducting plain error review, supreme court must examine whether there was error, whether error was plain or clear, and
whether error affected defendant's substantial rights. The burden is on the defendant to show actual prejudice or miscarriage of
justice.
3. Criminal Law.
Error in instructing jury that it must first unanimously acquit defendant of primary aggravated stalking charge before
considering lesser-included offense of misdemeanor stalking did not affect defendant's substantial rights because evidence of
defendant's guilt of aggravated stalking was overwhelming, and thus, defendant, who failed to object to instructions at issue, was
not entitled to relief under plain error rule.
4. Criminal Law.
Transition jury instruction guides jurors in proceeding from consideration of primary charged offense to consideration of
lesser-included offense.
5. Criminal Law.
Supreme court would adopt unable-to-agree jury instruction, under which jury is instructed that they may consider
lesser-included offense if they have reasonably tried but failed to reach verdict on primary charge, as proper method of instructing
juries on consideration of lesser-included offenses and reject giving of acquittal-first instruction, under which jury is required to
unanimously agree on acquittal as to primary charged offense before jury may proceed to deliberations on lesser-included offense.
6. Criminal Law.
Trial court's failure in prosecution for aggravated stalking to instruct jury that it should regard defendant's admissions to police
with caution did not constitute plain error.
Before Rose, Leavitt and Maupin, JJ.
OPINION
Per Curiam:
Frederick Green appeals from a judgment of conviction
1
entered upon jury verdicts
of guilt on separate charges of sexual assault
2
and aggravated stalking.
3
Green argues that
the district court improperly instructed the jury concerning its deliberative choices between
the charge of aggravated stalking and the lesser-included offense of misdemeanor stalking
and that the district court failed to instruct the jury that it should view Green's oral admissions
with caution. We conclude that Green has failed to demonstrate that these unpreserved
errors warrant relief and therefore affirm the judgment entered below.
__________

1
See NRS 177.015(3).

2
See NRS 200.366.

3
See NRS 200.575(2).
119 Nev. 542, 544 (2003) Green v. State
these unpreserved errors warrant relief and therefore affirm the judgment entered below.
FACTUAL AND PROCEDURAL HISTORY
Green was married to the victim in this case, Ms. Camisha Linzie. The couple moved
to Sparks, Nevada, in August of 2000 to live with Ms. Linzie's mother, Mona Linzie.
Problems and disputes concerning money and their minor children quickly led to a very
serious estrangement. Matters were also complicated by an alleged meretricious relationship
between Green and Mona Linzie.
Ms. Linzie accused Green of sexual assault and repeated incidents of stalking. Police
ultimately arrested him following an eight-hour standoff, which was resolved with the
assistance of a professional hostage negotiator. The Washoe County District Attorney
ultimately took Green to trial on two counts of sexual assault and one count of aggravated
stalking.
The trial record is replete with evidence of various degrees of harassment and physical
violence perpetrated by Green against Ms. Linzie. The primary incident took place on the
evening of September 23, 2000. Ms. Linzie testified that Green entered her home, threatened
her, demanded to know her whereabouts earlier in the evening, expressed suspicions of her
infidelity, and proceeded to sexually assault her. When Ms. Linzie attempted an escape,
Green administered a very serious physical beating upon her person interrupted only by Ms.
Linzie's mother. Green fled when Ms. Linzie summoned the police. After treatment at a local
hospital, Ms. Linzie found refuge with a friend by the name of Debra Stoen. Later that
evening, Green left six to eight threatening messages at Ms. Stoen's residence.
Evidence at trial supported prosecution claims that Green repeatedly threatened Ms.
Linzie by calling her places of residence and employment, including threats that he would
beat her, burn her alive, and place bombs. He also repeatedly threatened Ms. Linzie's
co-workers. Police investigators obtained statements from Green, in which he justified his
communications to Ms. Linzie's friends and co-workers, claiming that he thought they were
hiding Ms. Linzie and wanted them to know his side of the story. He also denied striking Ms.
Linzie but confirmed his allegations of her infidelity.
As noted, the jury convicted Green of aggravated stalking and one of the two counts
of sexual assault. The district court sentenced Green to consecutive terms of life
imprisonment with parole eligibility in 10 years for sexual assault and 35 months to 156
months for the aggravated stalking. The district court granted Green credit of 88 days for time
served, imposed lifetime supervision, a $25 administrative fee, a $150 DNA testing fee, $900
for a psychosexual evaluation, and $750 for reimbursement to Washoe County for legal
representation.
119 Nev. 542, 545 (2003) Green v. State
DISCUSSION
Preservation of error on appeal
The central issue raised in this appeal involves the deliberative responsibilities of
jurors concerning primary and lesser-included offenses. The district court advised the jury in
two separate transition instructions that it must first unanimously acquit Green of the
primary aggravated stalking charge before considering the lesser-included offense of
misdemeanor stalking.
[Headnotes 1, 2]
Green failed to object to either instruction on the ground he now asserts as error.
4
He
also failed to offer an alternative instruction on the record concerning the issue. Generally, the
failure to clearly object on the record to a jury instruction precludes appellate review.
5
However, this court has the discretion to address an error if it was plain and affected the
defendant's substantial rights.
6
In conducting plain error review, we must examine whether
there was error, whether the error was plain or clear, and whether the error affected the
defendant's substantial rights.
7
Additionally, the burden is on the defendant to show actual
prejudice or a miscarriage of justice.
8

Here, we conclude that the district court erred in its instructions to the jury regarding
its consideration of the lesser-included offense. But we also conclude that the error did not
affect Green's substantial rights. We therefore hold that this error did not constitute plain
error under NRS 178.602, and we affirm Green's conviction.
Transition instructions
[Headnotes 3, 4]
A transition instruction guides jurors in proceeding from the consideration of a
primary charged offense to the consideration of a lesser-included offense. Other jurisdictions
are split on the appropriate form of a transition instruction. There are four different
approaches. The first approach is to give an acquittal first instruction, requiring unanimous
agreement on acquittal as to the primary charged offense before the jurors may proceed to
deliberations on the lesser-included offense.
__________

4
Green objected to one of the transition instructions based upon a failure to describe the lesser-included
offense as a misdemeanor, but on no other ground. The district court modified the instruction based upon his
objection.

5
Walker v. State, 116 Nev. 670, 673, 6 P.3d 477, 479 (2000).

6
Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001); see also NRS 178.602 (Plain errors or
defects affecting substantial rights may be noticed although they were not brought to the attention of the court.).

7
See United States v. Olano, 507 U.S. 725, 732-35 (1993) (discussing appellate court's role in applying Fed.
R. Crim. P. 52(b), which is identical to NRS 178.602, in deciding whether to overturn a judgment below).

8
Phenix v. State, 114 Nev. 116, 119, 954 P.2d 739, 740 (1998).
119 Nev. 542, 546 (2003) Green v. State
tions on the lesser-included offense.
9
This was the approach utilized by the district court
below. The second approach is to give a modified acquittal first instruction, permitting the
jurors to consider both the greater and lesser offenses in whichever order they choose, but
requiring that they unanimously acquit the defendant of the charged offense before returning a
verdict on a lesser-included offense.
10
The third approach is to instruct the jurors that they
may consider a lesser-included offense if they have reasonably tried, but failed, to reach a
verdict on the primary charge.
11
This involves a so-called unable to agree instruction.
12
The fourth approach is an amalgam of the acquittal first and unable to agree approaches.
This optional approach permits the defendant to choose between the acquittal first and
the unable to agree instructions. However, if the defendant does not affirmatively choose
one of those instructions, the trial court may properly use either transition instruction.
13

The district court in the present case used the following two acquittal first
instructions. Jury instruction thirty stated in part:
In order to find the defendant guilty of the lesser crime of misdemeanor stalking, you
must unanimously agree that the accused did not threaten the victim with death or
substantial bodily harm, and did not intend to cause her to be placed in reasonable fear
of death or substantial bodily harm.
Jury instruction thirty-seven stated in part:
After you have unanimously agreed that the defendant is not guilty of [aggravated
stalking], you then must determine whether or not the defendant is guilty of the lesser
included crime of Misdemeanor Stalking.
__________

9
See, e.g., State v. Taylor, 677 A.2d 1093, 1097 (N.H. 1996); State v. Sawyer, 630 A.2d 1064, 1073 (Conn.
1993); State v. Townsend, 865 P.2d 972, 979 (Idaho 1993); State v. Van Dyken, 791 P.2d 1350, 1361 (Mont.
1990); People v. Boettcher, 513 N.Y.S.2d 83 (Ct. App. 1987); Lindsey v. State, 456 So. 2d 383, 387-88 (Ala.
Crim. App. 1983); Lamar v. State, 254 S.E.2d 353, 355 (Ga. 1979).

10
See, e.g., People v. Berryman, 864 P.2d 40, 57 (Cal. 1993), overruled on other grounds by People v. Hill,
952 P.2d 673 (Cal. 1998); Dresnek v. State, 697 P.2d 1059, 1063-64 (Alaska Ct. App. 1985); see also California
Jury Instruction, Criminal 17.10 (the jury may consider both the greater and lesser offenses in whatever order it
chooses, but the district court cannot accept a guilty verdict on a lesser crime unless the jury unanimously finds
the defendant not guilty of the charged greater crime).

11
See, e.g., State v. LeBlanc, 924 P.2d 441, 443-44 (Ariz. 1996); State v. Ferreira, 791 P.2d 407, 409 (Haw.
Ct. App. 1990); State v. Allen, 717 P.2d 1178 (Or. 1986); People v. Handley, 329 N.W.2d 710, 712 (Mich.
1982).

12
Courts also identify this type of instruction as the reasonable efforts instruction. See, e.g., LeBlanc, 924
P.2d at 442.

13
See, e.g., Jones v. U.S., 620 A.2d 249, 251-52 (D.C. 1993); State v. Powell, 608 A.2d 45, 46-47 (Vt.
1992); United States v. Jackson, 726 F.2d 1466, 1469-70 (9th Cir. 1984); United States v. Tsanas, 572 F.2d
340, 346-47 (2d Cir. 1978).
119 Nev. 542, 547 (2003) Green v. State
crime of Misdemeanor Stalking. If you unanimously agree that the defendant is guilty
of Misdemeanor Stalking, you will sign and date the verdict form provided and present
it, and your not guilty verdict for the Aggravated Stalking charge to the court.
. . . .
You will note from this instruction that you must unanimously agree that the defendant
is not guilty of the charged crime before you may find the defendant guilty or not guilty
of any lesser charge.
14

[Headnote 5]
We have not yet had an occasion to review a criminal conviction based upon the use
of an acquittal first instruction as a guideline for jury deliberations on lesser-included
offenses. In our view, use of an acquittal first instruction improperly invites compromise
verdicts. If members of a jury believe that the defendant is guilty of some offense, an inability
to unanimously agree to convict or acquit manifestly increases the likelihood that the jury will
compromise by convicting the defendant of the primary or charged offense, rather than risk a
mistrial and free a guilty defendant by returning no verdict at all. As one court has stated:
When the jury is instructed in accordance with the acquittal first instruction, a juror
voting in the minority probably is limited to three options upon deadlock: (1) try to
persuade the majority to change its opinion; (2) change his or her vote; or(3) hold out
and create a hung jury.
15

Thus, given these choices, it is possible a jury would return a verdict even though not all
members of the jury were convinced beyond a reasonable doubt that the evidence supported
their verdict.
We adopt the unable to agree instruction embraced by Arizona, Hawaii and Oregon
as the correct transition instruction. Use of the unable to agree instruction reduces the risk
of compromise verdicts by enabling the finders of fact to better gauge the fit between the
evidence adduced at trial and the offenses being considered.
__________

14
As noted, Green asserts that the district court committed reversible error in its use of the acquittal first
approach. As also noted, Green lodged no objection to these instructions, other than as described supra note 4.
Green also urges us to adopt the optional approach instruction as the proper method of transition instruction in
Nevada. He contends that he proposed a jury instruction that did not require unanimity with respect to acquittal
on the charged offense before proceeding to the lesser-included offense, but concedes that this instruction does
not appear in the record. He asks us to infer from his proposed jury instruction on attempted sexual assault,
which did not require unanimity and does appear in the record, that he chose to have the jury instructed with an
unable to agree instruction and thus the district court should have used his choice of transition instruction. This
is likewise insufficient to preserve this latter argument.

15
Allen, 717 P.2d at 1180.
119 Nev. 542, 548 (2003) Green v. State
considered. The instruction also reduces the risk of hung juries and the significant costs
involved with retrial. While Green urges us to adopt the optional approach, we decline to
do so because, in the absence of an affirmative choice by the defendant, the optional
approach would give the district court discretionary power to choose the acquittal first
instruction. The district court should not have the discretion to use that instruction and the
unable to agree instruction should be the only transition instruction given in Nevada. We
therefore adopt the unable to agree instruction as the proper method of instructing juries on
the consideration of lesser-included offenses. Consistent with this approach, when a transition
instruction is warranted, the district court must instruct the jury that it may consider a
lesser-included offense if, after first fully and carefully considering the primary or charged
offense, it either (1) finds the defendant not guilty, or (2) is unable to agree whether to acquit
or convict on that charge.
16

Given our rejection of the acquittal first instruction, we hold that the district court
erred in taking the acquittal first approach. But we further conclude that this error did not
affect Green's substantial rights because there is overwhelming evidence of Green's guilt of
aggravated stalking.
17

To explain, for the jury to convict Green of aggravated stalking, rather than
misdemeanor stalking, it must have found that Green placed Ms. Linzie in reasonable fear of
death or substantial bodily harm.
18
Ms. Linzie, her friends and co-workers testified to
Green's continuing telephone calls and threats of violence, including threats to douse Ms.
Linzie in gasoline, set her on fire and to bomb her place of residence, all of which placed her
in reasonable fear of death or substantial bodily harm.
19
Green's own statements did little to
rebut the overwhelming evidence of his guilt on both of the charges upon which the jury
found him guilty. Thus, while the district court erred in using an acquittal first jury
instruction, we are convinced that the result at trial would not have been different had the jury
been properly instructed and therefore this error did not affect Green's substantial rights.
Because this error did not affect Green's substantial rights, it does not warrant relief under the
plain error rule.
__________

16
See LeBlanc, 924 P.2d at 442.

17
Because this error clearly did not affect Green's substantial rights, we need not address what would
normally be the second inquiry under the plain error rulewhether the error is plain.

18
NRS 200.575(2).

19
See Rossana v. State, 113 Nev. 375, 383, 934 P.2d 1045, 1050 (1997) (for a conviction of aggravated
rather than misdemeanor stalking to stand, the jury must have found that a defendant threatened the victim with
the intent to cause the victim to be placed in reasonable fear of death or substantial bodily harm, and the victim
thereby was placed in reasonable fear as a result).
119 Nev. 542, 549 (2003) Green v. State
Failure to instruct concerning statements made to police
[Headnote 6]
Green also claims that the district court failed to instruct the jury that it should regard
Green's admissions to the police with caution. Green failed at trial to offer an instruction to
that effect. Accordingly, this claim is likewise unpreserved. We therefore review this claim
for plain error. We conclude that there was no error.
20

CONCLUSION
Green failed to preserve his claim concerning the transition instructions governing
jury deliberations over the primary and lesser-included stalking charges. Although we
conclude that the district court should have given an unable to agree instruction rather than
an acquittal first instruction, we further conclude that this error does not constitute plain
error as it did not affect Green's substantial rights. We have considered Green's remaining
claim on appeal and have rejected it.
Accordingly, we affirm Green's judgment of conviction.
__________
119 Nev. 549, 549 (2003) Vermef v. City of Boulder City
PAUL VERMEF, Appellant, v. CITY OF BOULDER CITY, Respondent.
No. 39559
December 16, 2003 80 P.3d 445
Appeal from a district court order granting summary judgment on behalf of
respondent in a negligence action. Eighth Judicial District Court, Clark County; Nancy M.
Saitta, Judge.
Homeowner filed complaint against City following extensive flooding which
damaged his house, alleging that faulty construction of drainage channel adjacent to his
residence was proximate cause of the flooding. The City moved for summary judgment. The
district court granted the motion. Homeowner appealed. The supreme court held that City was
not immune from liability, since damage was allegedly due solely to pre-emergency
installation of the drainage channel.
Nersesian & Sankiewicz and Robert A. Nersesian and Thea Marie Sankiewicz, Las
Vegas, for Appellant.
__________

20
See Ford v. State, 99 Nev. 209, 212, 660 P.2d 992, 993 (1983) (lack of instruction to the jury to view oral
admission with caution was not error).
Skinner Sutton Watson & Rounds and Gloria M. Howryla, Rachel M. Lewis, and Kelly
G. Watson, Las Vegas, for Respondent.
The supreme court's review of an order granting summary judgment is de novo.
2. Judgment.
A genuine issue of material fact, for summary judgment purposes, is one where the evidence is such that a reasonable jury
could return a verdict for the non-moving party. NRCP 56(c).
A government entity is afforded immunity for pre-emergency negligence when the damage caused by the negligent emergency
management was exacerbated by the pre-emergency negligence.
City was not entitled to governmental immunity for damages occurring to homeowner's property during flood allegedly caused
by faulty construction of drainage channel adjacent to homeowner's residence under statute immunizing government entities from
liability arising out of emergency management activities, where, although damage occurred during emergency, it was not result of
negligent emergency management on City's part, but rather, damage was allegedly due solely to pre-emergency installation of the
drainage channel. The City's allegedly negligent acts were not committed during or intertwined with emergency actions. NRS
414.110.
A government entity is not immune from liability for its pre-emergency negligence that is not intertwined with damage caused
by later negligent emergency management activities.
Purpose of statute immunizing government entities from liability arising out of emergency management activities is to grant
immunity to government entities for actions taken during a sudden and unforeseen crisis. NRS 414.110.
Before Becker, Shearing and Gibbons, JJ.
OPINION
Per Curiam:
In 1997, extensive flooding occurred in Boulder City, resulting in Boulder City and
the State of Nevada declaring a state of emergency. Appellant Paul Vermef claims that his
property flooded during the 1997 floods and that the floodwaters caused damage to his front
yard, driveway, and garage. Vermef filed a complaint against respondent City of Boulder
City, alleging that faulty construction of the drainage channel adjacent to his residence was
the proximate cause of the flooding.
Boulder City filed a motion for summary judgment, contending that it is immune from
liability under NRS 414.110, as interpreted by this court in Nylund v. Carson City.
by this court in Nylund v. Carson City.
1
According to Boulder City, the Nylund court
interpreted NRS 414.110 to grant immunity to municipalities for pre-emergency negligence,
as well as emergency management activities.
2
Vermef opposed the motion for summary
judgment, explaining that NRS 414.110 is inapplicable because Boulder City's installation of
the drainage channel did not occur during an emergency and did not comply with its own
flood plan. The district court granted Boulder City's motion for summary judgment,
concluding that Boulder City was entitled to governmental immunity under NRS 414.110 and
this court's decision in Nylund.
[Headnotes 1, 2]
This court's review of an order granting summary judgment is de novo.
3
Summary
judgment is appropriate where the pleadings, depositions, answers to interrogatories,
admissions, and affidavits on file show that no genuine issue exists as to any material fact and
that the moving party is entitled to judgment as a matter of law.
4
A genuine issue of
material fact is one where the evidence is such that a reasonable jury could return a verdict for
the non-moving party.
5

NRS 414.110(1) immunizes government entities from liability arising out of
emergency management activities:
All functions under this chapter and all other activities relating to emergency
management are hereby declared to be governmental functions. Neither the state nor
any political subdivision thereof nor other agencies of the state or political subdivision
thereof . . . is liable for the death of or injury to persons, or for damage to property, as a
result of any such activity.
In Nylund, this court considered the scope of statutory immunity granted to
governmental entities for emergency management activities.
6
In particular, Nylund
determined whether a government entity can claim immunity under [NRS 414.110] for its
preemergency negligence that contributed to damage caused by later emergency
management activities.
__________

1
117 Nev. 913, 34 P.3d 578 (2001).

2
Below, Boulder City only raised the issue of whether NRS 414.110 immunized it from suit in these specific
circumstances. Therefore, we do not consider whether Vermef has established, as he must, that Boulder City's
construction of the flood channel caused his property to be flooded, as opposed to the failure of Boulder City to
prevent the flooding.

3
Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).

4
NRCP 56(c); see also Great American Ins. v. General Builders, 113 Nev. 346, 350-51, 934 P.2d 257, 260
(1997).

5

6
See generally Nylund, 117 Nev. at 913, 34 P.3d at 578.
emergency negligence that contributed to damage caused by later emergency management
activities.
7

Nylund involved a flood in Carson City during the winter of 1996-1997.
8
Carson
City's manager declared an emergency and requested State assistance.
9
Carson City
employees determined that the best way to control the floodwaters was to channel the water
down East Fifth Street.
10
However, on January 1, 1997, the floodwaters on East Fifth Street
overflowed storm drains and flooded the Nylunds' condominium.
11
The Nylunds sued
Carson City for the damage to their condominium.
12
According to them, design defects in
the storm drain system and Carson City's decision to channel the waters down East Fifth
Street caused the flooding on their property.
13

In affirming the district court's grant of summary judgment on Carson City's behalf,
we broadly construed NRS 414.110 to cover not only negligent emergency management, but
also any previous negligence that contributed to the damage caused by the emergency
management activities (i.e., any negligent pre-flood design, operation, or maintenance
activities that are causally related to damage caused by the emergency management
activities).
14
We reasoned that this interpretation was a natural extension of the policy
underlying NRS 414.110. Because emergencies are sudden and unexpected, the response
authority does not have time to assess whether unknown or unforeseen obstacles created by
past negligence will hinder its course of action.
15

[Headnote 3]
We take this opportunity to clarify our opinion in Nylund. Nylund affords immunity to
government entities for negligent emergency management and for pre-emergency negligence
that contributed to the damage caused by the emergency management activities.
16
Therefore,
a government entity is afforded immunity for pre-emergency negligence when the damage
caused by the negligent emergency management was exacerbated by the pre-emergency
negligence.
17

__________

7
Id. at 916, 34 P.3d at 581.

8
Id. at 914, 34 P.3d at 579.

9
Id.

10
Id.

11
Id.

12
Id. at 914-15, 34 P.3d at 580.

13
Id. at 915, 34 P.3d at 580.

14
Id. at 917, 34 P.3d at 581.

15
Id.

16
Id.

17
See id.
[Headnotes 4-6]
A government entity, however, is not immune from liability for its pre-emergency
negligence that is not intertwined with damage caused by later negligent emergency
management activities. The purpose of NRS 414.110 is to grant immunity to government
entities for actions taken during a sudden and unforeseen crisis.
18
In Nylund, this court
explained that immunity is granted for negligent emergency management activities because in
an emergency, the government entity leading the response operation does not have time to
deliberate and chart a course calculated to provide the customary degree of due care.
19
To
grant immunity for pre-emergency negligence, which is wholly independent from negligent
emergency management, would not comport with the policy underlying NRS 414.110.
In this case, although the damage to Vermef's property occurred during an emergency,
it was not a result of negligent emergency management on Boulder City's part. Vermef does
not allege that the damage to his property resulted from an emergency management decision;
rather, Vermef asserts that the damage is due solely to pre-emergency installation of the
drainage channel adjacent to his home. Boulder City's actions in this case resulted from
ongoing flood retention planning occurring within Clark County as a result of community
growth and continued seasonal flooding within the Las Vegas Valley.
Therefore, we conclude that since Boulder City's allegedly negligent acts were not
committed during or intertwined with emergency actions, Boulder City is not immune from
liability under NRS 414.110. Consequently, the district court erred in granting summary
judgment on Boulder City's behalf. We reverse the district court's order granting summary
judgment on behalf of Boulder City and remand this matter for further proceedings.
__________

18
Id.

19
Id.
__________
119 Nev. 554, 554 (2003) Meyer v. State
ADAM RAY MEYER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36820
December 19, 2003 80 P.3d 447
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count
of sexual assault. Second Judicial District Court, Washoe County; Jerome M. Polaha, Judge.
The supreme court, Agosti, C. J., held that: (1) district court did not abuse its
discretion, for purposes of juror misconduct claim, in striking portion of juror affidavits that
included references regarding side effects of victim's Accutane medication, which had been
told to jury by juror who researched the medication, and references regarding the effect
sentencing discussions had on mental process of two of the jurors; (2) juror's statement during
deliberations that small bumps on victim's head could have been caused by hair pulling did
not constitute misconduct; and (3) juror misconduct occurring when juror conducted
independent research on the side effects of Accutane medication taken by victim and shared
such findings with fellow jurors resulted in prejudice to defendant.
Becker, J., with whom Shearing, J., and Young, Sr. J., agreed, dissented in part.
Law Office of David R. Houston and David R. Houston, Reno; Kenneth E. Lyon III,
Reno, for Appellant.
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
A denial of a motion for a new trial based upon juror misconduct will be upheld absent an abuse of discretion by the district
court.
2. Criminal Law.
Absent clear error, a district court's findings of fact in regard to a claim of jury misconduct will not be disturbed. However,
where a claim of jury misconduct involves allegations that the jury was exposed to extrinsic evidence in violation of the
Confrontation Clause, de novo review of a trial court's conclusions regarding the prejudicial effect of any misconduct is
appropriate. U.S. Const. amend. 6.
3. Criminal Law.
Not every incidence of juror misconduct requires the granting of a motion for a new trial, since each case turns on its own facts,
and on the degree and pervasiveness of the prejudicial influence possibly resulting.
4. Criminal Law.
The district court is vested with broad discretion in resolving allegations of juror misconduct.
119 Nev. 554, 555 (2003) Meyer v. State
5. Criminal Law.
Where a claim of juror misconduct involves extrinsic information or contact with the jury, juror affidavits or testimony
establishing the fact that the jury received the information or was contacted are permitted. NRS 50.065.
6. Criminal Law.
An extraneous influence on a jury, for purposes of claim of juror misconduct, includes, among other things, publicity or media
reports received and discussed among jurors during deliberations, consideration by jurors of extrinsic evidence, and third-party
communications with sitting jurors.
7. Criminal Law.
Intra-jury or intrinsic influences on a jury, for purposes of claim of juror misconduct, involve improper discussions among
jurors, such as considering a defendant's failure to testify, intimidation or harassment of one juror by another, or other similar
situations that are generally not admissible to impeach a verdict. NRS 50.065.
8. Criminal Law.
Proof of juror misconduct must be based on objective facts and not the state of mind or deliberative process of the jury. NRS
50.065.
9. Criminal Law.
Juror affidavits that delve into a juror's thought process cannot be used to impeach a jury verdict based on misconduct and must
be stricken. NRS 50.065.
10. Criminal Law.
Before a defendant can prevail on a motion for a new trial based on a claim of juror misconduct, the defendant must present
admissible evidence sufficient to establish: (1) the occurrence of juror misconduct, and (2) a showing that the misconduct was
prejudicial.
11. Criminal Law.
Once a defendant has established occurrence of juror misconduct and a showing that the misconduct was prejudicial, the trial
court should grant a motion for new trial. Prejudice is shown whenever there is a reasonable probability or likelihood that the juror
misconduct affected the verdict.
12. Criminal Law.
In some cases involving a claim of juror misconduct, an extraneous influence, such as jury tampering, is so egregious that
prejudice sufficient to warrant a new trial is presumed.
13. Criminal Law.
A conclusive presumption of prejudice resulting from juror misconduct applies only in the most egregious cases of extraneous
influence on a juror, such as jury tampering.
14. Criminal Law.
For purposes of claim of juror misconduct, any extrinsic influence will not be found to be automatically prejudicial; rather, the
nature of the extrinsic influence will be examined in determining whether such influence is presumptively prejudicial.
15. Criminal Law.
Direct third-party communications with a sitting juror relating to an element of the crime charged or exposure to significant
extraneous information concerning the defendant or the charged crime are types of extrinsic influences that are, by their nature,
more likely to be prejudicial for purposes of a claim of juror misconduct.
119 Nev. 554, 556 (2003) Meyer v. State
16. Criminal Law.
Extrinsic material such as media reports, including television stories or newspaper articles, generally do not raise a presumption
of prejudice for purposes of a claim of juror misconduct.
17. Criminal Law.
In claims of jury misconduct based on intrinsic influences and extrinsic material that does not generally raise a presumption of
prejudice, the defendant must, through admissible evidence, demonstrate the nature of the juror misconduct and that there is a
reasonable probability that it affected the verdict.
18. Criminal Law.
Because claims of juror misconduct based on intrinsic influences can rarely be proven without resort to inadmissible juror
affidavits that delve into the jury's deliberative process, only in extreme circumstances will intrinsic influences justify a new trial.
NRS 50.065.
19. Criminal Law.
To determine whether there is a reasonable probability that juror misconduct affected a verdict, a court may consider a number
of factors, which include how the extraneous information was introduced to the jury, the length of time it was discussed by the
jury, the timing of its introduction, whether the information was ambiguous, vague, or specific in content, whether the information
was cumulative of other evidence adduced at trial, whether the information involved a material or collateral issue, whether the
information involved inadmissible evidence. In addition, the trial court must consider the extrinsic influence in light of the trial as
a whole and the weight of the evidence.
20. Criminal Law.
The factors used to determine whether there is a reasonable probability that juror misconduct affected a verdict are instructive
only and not dispositive.
21. Criminal Law.
The district court's factual inquiry for purposes of a claim of juror misconduct is limited to determining the extent to
which jurors were exposed to the extrinsic or intrinsic evidence.
22. Criminal Law.
The district court, for purposes of a claim of juror misconduct, must apply an objective test in evaluating the impact of the
extrinsic material or intrinsic misconduct on the verdict and should not investigate the subjective effects of any extrinsic evidence
or misconduct on the jurors.
23. Criminal Law.
The district court, for purposes of a claim of juror misconduct, must determine whether the average, hypothetical juror would be
influenced by the juror misconduct.
24. Criminal Law.
Affidavits or statements by jurors about the actual effect of juror misconduct on the deliberations or their individual decisions
are not admissible to determine the impact of the misconduct upon a verdict. NRS 50.065.
25. Criminal Law.
District court did not abuse its discretion, for purposes of claim of juror misconduct brought by sexual assault defendant, in
striking portion of juror affidavits that included references regarding side effects of victim's Accutane medication, which had been
told to jury by juror who researched the medication, and references regarding the effect sentencing discussions had on
mental process of two of the jurors,
119 Nev. 554, 557 (2003) Meyer v. State
discussions had on mental process of two of the jurors, even though defendant claimed excluded portions were determinative of
misconduct claim, as defendant alleged at trial that physical marks on victim's body were caused by a reaction to victim's
Accutane medication or falling. The record revealed that the stricken portions of the juror affidavits outlined the effect that the
alleged misconduct had upon some of the jurors, or how the jury conducted its deliberations. NRS 50.065.
26. Criminal Law.
Juror's statement during deliberations of sexual assault prosecution, in which juror stated that hair pulling could have caused
small bumps on victim's head, did not constitute misconduct. The statement of juror, who was a nurse, did not impose specialized
knowledge from an outside source, as juror made statement based on her experience and the evidence.
27. Criminal Law.
In reaching their verdict, jurors are confined to the facts and evidence regularly elicited in the course of the trial proceedings.
28. Criminal Law.
A juror is prohibited from declaring to fellow jurors any fact relating to the case as of the juror's own knowledge; however,
jurors may rely on their common sense and experience.
29. Criminal Law.
If a juror has personal knowledge of the parties or of the issues involved in the trial that might affect the verdict, the
communication of that knowledge to other jurors is considered extrinsic evidence and a form of misconduct.
30. Criminal Law.
If a juror considers and communicates a past personal experience during deliberations that introduces totally new information
about a fact not found in the record or the evidence, this would constitute extrinsic evidence and improper conduct.
31. Criminal Law.
Personal experiences are to be used by a juror only to interpret the exhibits and testimony, not as independent evidence.
32. Criminal Law.
While a juror is prohibited from relating specific information to fellow jurors from an outside source during deliberations, a
juror who has specialized knowledge or expertise may convey an opinion based upon such knowledge to fellow jurors, and the
opinion, even if based upon information not admitted into evidence, is not extrinsic evidence and does not constitute juror
misconduct.
33. Criminal Law.
Jurors who fail to disclose information or give false information during voir dire commit juror misconduct, which, if discovered
after the verdict, may be grounds for a new trial under the standards established for juror misconduct.
34. Criminal Law.
Jurors are prohibited from conducting an independent investigation and informing other jurors of the results of that
investigation.
35. Criminal Law.
Juror's act of conducting independent research on the effects of Accutane medication taken by victim and discussing her
findings with fellow jurors during deliberations constituted misconduct in sexual assault prosecution. The juror admitted in her
affidavit that she consulted a research book during trial and then reported her findings to fellow jurors.
119 Nev. 554, 558 (2003) Meyer v. State
36. Criminal Law.
Juror misconduct occurring when juror conducted independent research on the side effects of Accutane medication taken by
victim and shared such findings with fellow jurors resulted in prejudice to defendant in sexual assault prosecution because side
effects of Accutane was a material issue in the case, as the information tended to undermine defendant's theory that the physical
marks on victim's body were caused by a reaction to her Accutane medication or falling.
1

OPINION
Appellant Adam Ray Meyer was sentenced to a minimum term of ten years in Nevada
State Prison after a jury convicted him of one count of sexual assault. Meyer alleges several
errors on appeal, including juror misconduct.
2
Having considered his assignments of error,
we reverse Meyer's sexual assault conviction. We specifically address his arguments
regarding juror misconduct in order to clarify the standard of review in cases involving jury
tampering or juror misconduct during deliberations.
3

FACTS
On October 19, 1999, Meyer's estranged wife Catrina contacted Reno police about
serving a temporary protective order (TPO) upon Meyer. Catrina called the police because
Meyer damaged her car earlier in the day. After talking with the police, Catrina called Meyer
and told him to meet her at Sneakers Bar. Catrina testified that she intended to call the police
again to serve the TPO once Meyer arrived at Sneakers. Catrina consumed a considerable
amount of alcoholic beverages while waiting for Meyer, and after he arrived, the two drank
and talked for a few hours.
At approximately 10:00 p.m., a call was made from Sneakers to the police about a
domestic disturbance. Officer Plumb responded and came into contact with Catrina and
Meyer. Meyer falsely identified himself as Catrina's boyfriend and gave his name as "Eric"
to Officer Plumb.
__________

1

2
Meyer also contends his conviction should be overturned due to failure to preserve evidence and/or the
insufficiency of the evidence. After reviewing the record on appeal and the briefs filed herein, we conclude that
these remaining contentions lack merit.

3
Other instances of juror misconduct, such as failing to disclose material information during voir dire, are
governed by different standards and are not addressed in this opinion.
119 Nev. 554, 559 (2003) Meyer v. State
identified himself as Catrina's boyfriend and gave his name as Eric to Officer Plumb.
Because Officer Plumb had no knowledge of Catrina's earlier calls regarding domestic
violence, he allowed an intoxicated Catrina to leave Sneakers with Meyer.
Just before midnight, Robert Hunt, Catrina's boyfriend, received a call from Meyer.
Hunt testified that Meyer was hostile and threatening and asked about Hunt's sexual
relationship with Catrina. Hunt indicated Meyer told him that Meyer had his fingers inside of
Catrina and Hunt could hear Catrina saying please don't do this, please stop over the phone.
As a result of what he heard, Hunt called the police. Officers were dispatched to
Catrina's residence. Prior to their arrival, Meyer was contacted at the residence by telephone,
however, he hung up and refused to talk to the police. When the police arrived at the
residence at approximately 2:00 a.m., no one answered the door. The police broke down the
front door and officers found Catrina wrapped in a blanket in her bedroom. She appeared
frightened, had blood on her hands, various scratches and bruises over her body, as well as
significant injuries to her mouth and lips. Catrina also had a series of little raised bumps all
over her scalp. Catrina told officers that she had been forced to leave the bar with Meyer and
that he had beaten her and shoved his hand up her ass. Catrina indicated that Meyer had left
the residence before the police arrived. Catrina also gave the police written statements that
night.
A sexual assault examination revealed injuries to Catrina's anus consistent with forced
digital penetration. Meyer's semen was found in Catrina's vagina. Catrina indicated she
couldn't remember vaginal sex with Meyer, but she did not consent to anal penetration.
The police were unable to immediately locate Meyer. He was arrested nine weeks
later near the Arizona/Mexico border. Meyer was charged with one count of kidnapping (for
forcing Catrina to leave Sneakers with him) and one count of anal sexual assault.
Catrina's grand jury testimony mirrored her oral and written statements to the police.
After the grand jury indictment, Catrina spoke to Meyer while he was incarcerated awaiting
trial. In April 2000, Catrina contacted defense counsel and indicated that she wished to recant
her previous testimony. Catrina now indicated that she was grossly intoxicated on the day of
the event, she remembered consenting to vaginal sex, and that she could have consented to
anal sex.
At trial, Catrina indicated that she did not remember calling the police from the bar
and that she asked Meyer to take her home because she was drunk. She remembered throwing
up at some point, but she did not remember any other details, including whether she and
Meyer had sex or how she received her numerous injuries.
119 Nev. 554, 560 (2003) Meyer v. State
Catrina denied that she told the officers she was raped and said that even if she did make such
a statement, it was a lie. Catrina also suggested that her injuries were the result of falling
down while intoxicated and that she bruised easily because she was taking the prescription
medicine Accutane. Finally, on cross-examination, Catrina indicated that she and Meyer had
previously engaged in rough sex, including anal sex.
In addition to Catrina's testimony and prior statements, the State presented evidence
regarding Battered Woman Syndrome, Catrina's 911 calls to police, photographs of her
injuries, a videotaped interview that Catrina gave to the police the day after the incident,
medical testimony regarding the sexual assault examination and findings, Hunt's testimony
about his phone call with Meyer, and the responding officers' observations. The State also
presented expert medical testimony from Dr. Ellen Clark, who indicated that Catrina's
injuries were consistent with being punched and kicked and were not consistent with falling
down due to intoxication. Dr. Clark also indicated that the injuries were not the result of
Accutane side effects. On cross-examination, Dr. Clark agreed that someone hitting the toilet
bowl while vomiting might cause the lip injury and that bumping into a door jam could have
caused a shoulder injury.
Meyer testified and indicated that he went to Sneakers at Catrina's request. She was
intoxicated and left with him voluntarily. He admitted that he gave the police false
information because he feared that he might be taken to jail. Meyer indicated that falling
down and bumping into various items that night caused Catrina's injuries. He admitted to
having vaginal intercourse with Catrina and digitally penetrating her anus, however, he stated
both acts were consensual. Meyer also disputed Hunt's version of the phone call. Finally,
Meyer testified that he was not fleeing the country when he was arrested but was on vacation
for seven weeks with his girlfriend, although he admitted that he knew at least two days after
the incident that the police were looking for him.
Meyer presented testimony from three experts. Dr. Donald Henrikson indicated that
Catrina's injuries were consistent with falling down or bumping into items. He indicated the
anal injuries were minor and that the small bumps on Catrina's head could be acne, though
they were more likely to have been caused by minor blunt force injury. Dr. Thomas Turner
testified about alcoholism and alcoholic blackouts. He opined that Catrina suffered such a
blackout on the night in question and that her statements were probably the result of
conversations with others rather than a true memory of what happened. Finally, Diane
Faugno, a registered nurse and sexual assault examiner, testified that Catrina's injuries were
inconsistent with being hit and kicked in the head, though the lip injuries were consistent with
being hit. Faugno had no opinion regarding the source of the small bumps on Catrina's
head.
119 Nev. 554, 561 (2003) Meyer v. State
regarding the source of the small bumps on Catrina's head. Faugno indicated she saw nothing
in the evidence she reviewed that suggested a violent, nonconsensual sexual assault, but she
admitted she could not rule out sexual assault. Meyer's expert witnesses did not attribute
Catrina's bruises to the side effects of Accutane.
The State and Meyer produced additional witnesses who presented conflicting
evidence about Catrina's appearance, statements, or attitude before and after the incident.
Finally, the State introduced evidence of a prior domestic violence incident involving Meyer.
The jury acquitted Meyer of first-degree kidnapping but found him guilty of sexual
assault. After speaking with jurors, Meyer filed a motion for a new trial based upon alleged
jury misconduct. The district court denied the motion, and Meyer timely filed this appeal
from the conviction and the order denying the new trial.
DISCUSSION
I. Standard of review
Juror misconduct falls into two categories: (1) conduct by jurors contrary to their
instructions or oaths, and (2) attempts by third parties to influence the jury process.
4
The first
category includes jurors failing to follow standard admonitions not to discuss the case prior to
deliberations, accessing media reports about the case, conducting independent research or
investigation, discussing the case with nonjurors, basing their decision on evidence not
admitted, discussing sentencing or the defendant's failure to testify, making a decision on the
basis of bias or prejudice, and lying during voir dire.
5
It also includes juror incompetence
issues such as intoxication.
6
The second category involves attempts to influence the jury's
decision through improper contact with jurors, threats, or bribery.
7

[Headnotes 1, 2]
A denial of a motion for a new trial based upon juror misconduct will be upheld
absent an abuse of discretion by the district court.
8
Absent clear error, the district court's
findings of fact will not be disturbed.
9
However, where the misconduct involves allegations
that the jury was exposed to extrinsic evidence in violation of the Confrontation Clause,
__________

4
5 Wayne R. LaFave et al., Criminal Procedure 24.9(f), at 601 (2d ed. 1999).

5
Id. at 601-02.

6
Id. at 602.

7
Id.

8
U.S. v. Saya, 247 F.3d 929, 935 (9th Cir. 2001); Tanksley v. State, 113 Nev. 997, 1003, 946 P.2d 148, 151
(1997).

9
Saya, 247 F.3d at 935.
119 Nev. 554, 562 (2003) Meyer v. State
gations that the jury was exposed to extrinsic evidence in violation of the Confrontation
Clause, de novo review of a trial court's conclusions regarding the prejudicial effect of any
misconduct is appropriate.
10

[Headnotes 3, 4]
Nonetheless, [n]ot every incidence of juror misconduct requires the granting of a
motion for [a] new trial.
11
Each case turns on its own facts, and on the degree and
pervasiveness of the prejudicial influence possibly resulting.
12
The district court is vested
with broad discretion in resolving allegations of juror misconduct.
13

II. Proving misconduct
[Headnotes 5-7]
The general rule at common law was that jurors may not impeach their own verdict.
14
However, common law also recognized an exception to that general rule.
15
Where the
misconduct involves extrinsic information or contact with the jury, juror affidavits or
testimony establishing the fact that the jury received the information or was contacted are
permitted. An extraneous influence includes, among other things, publicity or media reports
received and discussed among jurors during deliberations, consideration by jurors of extrinsic
evidence, and third-party communications with sitting jurors.
16
In contrast, intra-jury or
intrinsic influences involve improper discussions among jurors (such as considering a
defendant's failure to testify), intimidation or harassment of one juror by another, or other
similar situations that are generally not admissible to impeach a verdict.
17

__________

10
Id. at 937.

11
Barker v. State, 95 Nev. 309, 313, 594 P.2d 719, 721 (1979); see also Tanksley, 113 Nev. at 1003, 946
P.2d at 151.

12
U.S. v. Paneras, 222 F.3d 406, 411 (7th Cir. 2000) (internal quotation marks and citation omitted).

13
Tanksley, 113 Nev. at 1003, 946 P.2d at 151; see also U.S. v. Dominguez, 226 F.3d 1235, 1246 (11th Cir.
2000) (discussing breadth of discretion given to district court judges).

14
Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785).

15
See Government of Virgin Islands v. Gereau, 523 F.2d 140, 149-50 (3d Cir. 1975).

16
See, e.g., Saya, 247 F.3d at 937-38 (discussing jurors' exposure to extraneous information about earlier
shooting involving the defendant and his girlfriend); U.S. v. Lloyd, 269 F.3d 228, 237-39 (3d Cir. 2001)
(discussing jurors' exposure to extraneous influences via third-party contacts and media reports); U.S. v.
Williams-Davis, 90 F.3d 490, 495-502 (D.C. Cir. 1996) (discussing third-party communications with jurors,
juror exposure to extra-judicial information via media reports, and jurors' use of a dictionary).

17
See Government of Virgin Islands, 523 F.2d at 149-50 (noting that intrinsic misconduct is rarely the
grounds for a mistrial because such misconduct
119 Nev. 554, 563 (2003) Meyer v. State
The Federal Rules of Evidence recognize this distinction, and the general rule and
exception are embodied in Rule 606(b):
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to
any matter or statement occurring during the course of the jury's deliberations or to the
effect of anything upon that or any other juror's mind or emotions as influencing the
juror to assent to or dissent from the verdict or indictment or concerning the juror's
mental processes in connection therewith, except that a juror may testify on the
question whether extraneous prejudicial information was improperly brought to the
jury's attention or whether any outside influence was improperly brought to bear upon
any juror. Nor may a juror's affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded from testifying be
received for these purposes.
[Headnotes 8, 9]
Thus, proof of misconduct must be based on objective facts and not the state of mind
or deliberative process of the jury.
18
Juror affidavits that delve into a juror's thought process
cannot be used to impeach a jury verdict and must be stricken.
19

The Nevada Legislature codified the common-law rules regarding admission of jury
testimony to impeach a verdict in NRS 50.065. This court, interpreting NRS 50.065, has
stated that a motion for a new trial may only be premised upon juror misconduct where such
misconduct is readily ascertainable from objective facts and overt conduct without regard to
the state of mind and mental processes of any juror.
20

III. Burden of proof
[Headnotes 10, 11]
Before a defendant can prevail on a motion for a new trial based on juror misconduct,
the defendant must present admissible evidence sufficient to establish: (1) the occurrence of
juror misconduct, and (2) a showing that the misconduct was prejudicial.
__________
cannot generally be proven without use of inadmissible juror statements). Some courts established additional
exceptions to the rule prohibiting juror statements to impeach a verdict in situations involving quotient or
racially motivated verdicts. See 5 LaFave, supra note 4, 24.9(q), at 608. Neither of these issues are implicated
in this opinion.

18
Government of Virgin Islands, 523 F.2d at 148-49.

19
Id.

20
See Barker, 95 Nev. at 312, 594 P.2d at 721 (noting that NRS 50.065 was substantially the same as
predecessor to Federal Rule of Evidence 606(b)); see also Tanner v. United States, 483 U.S. 107, 121 (1987)
(recognizing that Federal Rule of Evidence 606(b) is based on the long-standing common-law rule against
admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous
influences).
119 Nev. 554, 564 (2003) Meyer v. State
cial.
21
Once such a showing is made, the trial court should grant the motion. Prejudice is
shown whenever there is a reasonable probability or likelihood that the juror misconduct
affected the verdict.
22

A. Prejudice
[Headnote 12]
In some cases, an extraneous influence, such as jury tampering, is so egregious that
prejudice sufficient to warrant a new trial is presumed.
23
In addition to jury tampering,
certain federal circuit courts of appeal have concluded that exposure to any extrinsic influence
establishes a reasonable likelihood that the information affected the verdict and prejudice is
assumed.
24
In contrast, other circuit courts look to the nature of the extrinsic influence in
determining whether the influence presents a particular likelihood of affecting the verdict.
25

[Headnotes 13, 14]
We conclude that a conclusive presumption of prejudice applies only in the most
egregious cases of extraneous influence on a juror, such as jury tampering. We reject the
position that any extrinsic influence is automatically prejudicial. Instead, we adopt the
position of the circuit courts that examine the nature of the extrinsic influence in determining
whether such influence is presumptively prejudicial.
__________

21
See U.S. v. Kelley, 140 F.3d 596, 608 (5th Cir. 1998); U.S. v. Williams-Davis, 90 F.3d 490, 496-97 (D.C.
Cir. 1996).

22
Williams-Davis, 90 F.3d at 496; People v. Brown, 399 N.E.2d 51, 53 (N.Y. 1979); see also U.S. v.
Keating, 147 F.3d 895, 900 (9th Cir. 1998); U.S. v. Berry, 64 F.3d 305, 307 (7th Cir. 1995) (reasonable
possibility misconduct affected verdict); State v. Smith, 573 N.W.2d 14, 18 (Iowa 1997) (reasonable probability
misconduct affected verdict).

23
Remmer v. United States, 347 U.S. 227 (1954) (Remmer I); Remmer v. United States, 350 U.S. 377 (1956)
(Remmer II) (holding that jury tampering is presumptively prejudicial).

24
See, e.g., Keating, 147 F.3d at 900-02 (prejudice is presumed in cases involving juror exposure to extrinsic
evidence); see also Kelley, 140 F.3d at 608 (upon showing that extrinsic factual matter tainted jury deliberations,
defendant enjoys rebuttable presumption of prejudice); Williams-Davis, 90 F.3d at 495-96 (discussing
application of Remmer presumption of prejudice in juror misconduct cases).

25
See, e.g., Lloyd, 269 F.3d at 238 (presumption of prejudice in juror misconduct cases is applied only when
the extraneous information is of a considerably serious nature); U.S. v. Caldwell, 83 F.3d 954, 956 (8th Cir.
1996) (presumption of prejudice in juror misconduct cases limited to improper third-party communications
regarding the substance of the trial); Williams-Davis, 90 F.3d at 497 (presumption of prejudice applies when
extraneous influence or information has a likelihood of prejudice); U.S. v. Boylan, 898 F.2d 230, 261 (1st Cir.
1990) (presumption of prejudice applies in cases of significant third-party contacts with sitting jurors or those
involving aggravated circumstances).
119 Nev. 554, 565 (2003) Meyer v. State
[Headnote 15]
Of course, some types of extrinsic influences are, by their very nature, more likely to
be prejudicial. Direct third-party communications with a sitting juror relating to an element of
the crime charged or exposure to significant extraneous information concerning the defendant
or the charged crime fall into this category.
26
This is because the nature of the extrinsic
information alone establishes a reasonable probability that the extrinsic contact affected the
verdict.
[Headnotes 16, 17]
However, other types of extrinsic material, such as media reports, including television
stories or newspaper articles, generally do not raise a presumption of prejudice.
27
Jurors'
exposure to extraneous information via independent research or improper experiment is
likewise unlikely to raise a presumption of prejudice.
28
In these cases, the extrinsic
information must be analyzed in the context of the trial as a whole to determine if there is a
reasonable probability that the information affected the verdict.
[Headnote 18]
The same standard applies to cases involving intrinsic jury misconduct. The defendant
must, through admissible evidence, demonstrate the nature of the juror misconduct and that
there is a reasonable probability that it affected the verdict. Because intrinsic misconduct can
rarely be proven without resort to inadmissible juror affidavits that delve into the jury's
deliberative process, only in extreme circumstances will intrinsic misconduct justify a new
trial.
29

__________

26
See, e.g., Remmer I, 347 U.S. at 229 ([A]ny private communication, contact, or tampering, directly or
indirectly, with a juror during a trial about the matter pending before the jury is . . . presumptively prejudicial. . .
.); U.S. v. Brooks, 161 F.3d 1240, 1246 (10th Cir. 1998) (presumption of prejudice in juror misconduct cases
limited to improper third-party communication or contact about the matter pending before the jury); U.S. v.
Frost, 125 F.3d 346, 377 (6th Cir. 1997) (presumption of prejudice in juror misconduct cases limited to
unauthorized third-party communication with a juror which presents a likelihood of affecting the verdict).

27
See, e.g., Lloyd, 269 F.3d at 239 (stating that presumption of prejudice does not apply in cases involving
juror exposure to media reports unless the publicity is fundamentally prejudicial).

28
See, e.g., U.S. v. Rogers, 121 F.3d 12, 17 n.5 (1st Cir. 1997) (noting that juror use of a dictionary is not
generally considered prejudicial per se); Williams-Davis, 90 F.3d at 502 (presumption of prejudice does not
apply where jurors used a dictionary); U.S. v. Gillespie, 61 F.3d 457, 460 (6th Cir. 1995) (prejudice is not
automatically presumed if jurors studied a dictionary definition).

29
See generally Tanner, 483 U.S. at 110-26 (discussing intra-jury misconduct); Dominguez, 226 F.3d at
1246-47; Caldwell, 83 F.3d at 956; see also U.S. v. Brito, 136 F.3d 397, 414 (5th Cir. 1998) (noting juror
misconduct was the discussion, based on extrinsic evidence, of possible sentences and appeals in contravention
of jury instructions).
119 Nev. 554, 566 (2003) Meyer v. State
B. Evaluating misconduct
[Headnotes 19, 20]
To determine whether there is a reasonable probability that juror misconduct affected
a verdict, a court may consider a number of factors. For example, a court may look at how the
material was introduced to the jury (third-party contact, media source, independent research,
etc.), the length of time it was discussed by the jury, and the timing of its introduction
(beginning, shortly before verdict, after verdict, etc.).
30
Other factors include whether the
information was ambiguous, vague, or specific in content; whether it was cumulative of other
evidence adduced at trial; whether it involved a material or collateral issue; or whether it
involved inadmissible evidence (background of the parties, insurance, prior bad acts, etc.). In
addition, a court must consider the extrinsic influence in light of the trial as a whole and the
weight of the evidence.
31
These factors are instructive only and not dispositive.
32

[Headnotes 21-24]
Finally, the district court's factual inquiry is limited to determining the extent to which
jurors were exposed to the extrinsic or intrinsic evidence.
33
The district court must apply an
objective test in evaluating the impact of the extrinsic material or intrinsic misconduct on the
verdict and should not investigate the subjective effects of any extrinsic evidence or
misconduct on the jurors.
34
That is, the district court must determine whether the average,
hypothetical juror would be influenced by the juror misconduct.
35
Affidavits or statements
by jurors about the actual effect of the misconduct on the deliberations or their individual
decisions are not admissible to determine the impact of the misconduct upon a verdict.
Mindful of these factors, we turn to the record in this case.
IV. Admissibility of juror affidavits
One of the issues at trial involved the source of the small bruises, marks, or bumps on
Catrina's scalp. The State argued they were caused by Meyer's violent actions. Meyer
contended they were caused by Catrina's medication, Accutane. Meyer filed a motion for a
new trial based on juror misconduct involving, in part, this issue. Meyer submitted two juror
affidavits and one affidavit from defense investigator Michael Johnson, concerning his
conversations with a third juror.
__________

30
Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986); see also Saya, 247 F.3d at 937; Paz v. United
States, 462 F.2d 740, 746 (5th Cir. 1972).

31
Jeffries v. Wood, 114 F.3d 1484, 1491-92 (9th Cir. 1997).

32
See Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993).

33
See id. at 1191.

34
Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir. 1988).

35
Lloyd, 269 F.3d at 238.
119 Nev. 554, 567 (2003) Meyer v. State
The affidavits established that one juror, who worked in a nursing capacity at Washoe
Medical Center, opined that the small bumps found on Catrina's scalp were similar to those
she had observed in domestic violence hair-pulling situations. In addition, another juror, who
was employed in a dermatologist's office, consulted a Physicians' Desk Reference (PDR) on
the side effects of Accutane and then advised the jury that Accutane only causes easy bruising
in one percent of the population. Finally, one of the affidavits indicated that the jury had
discussed penalties in its deliberations.
The State opposed the motion and moved to strike portions of the affidavits that
violated NRS 50.065. Attached to the State's opposition was an affidavit signed by the juror
interviewed by investigator Johnson, who stated that she only consulted the PDR to insure
that her memories regarding Accutane were correct.
In a written order denying Meyer's motion for a new trial, the district court struck
substantial portions of the juror affidavits, determining those portions to be statements
reflecting the juror's mental process and deliberations, rather than statements of objective
facts regarding whether jurors reviewed information not admitted into evidence in their
deliberations. The deleted portions of the affidavits included references regarding the side
effects of the Accutane and the effect that sentencing discussions had on the mental process
of two of the jurors.
Meyer contends that the district court erred by striking these portions of the juror
affidavits. Meyer argues that the stricken portions of the affidavits were determinative of
whether his trial was prejudiced by juror misconduct. We disagree.
[Headnote 25]
The record reveals that the stricken portions of the juror affidavits outline the effect
that the alleged misconduct had upon some of the jurors, or how the jury conducted its
deliberations. This information involved the jurors' or jury's thought processes. Thus, the
district court did not abuse its discretion in striking those portions of the juror affidavits that
violated NRS 50.065 and only considering objective facts of extrinsic information in the
affidavits. We also note that the district court should not have considered those portions of
the juror affidavits relating to the discussion of sentencing as this is also an intrinsic matter
that is not subject to the exceptions for jury affidavits incorporated in NRS 50.065 or the rare
case where sentencing discussions are accompanied by extrinsic information.
36
Accordingly,
we conclude that Meyer's contention regarding the admissibility of the affidavits lacks merit.
__________

36
Brito, 136 F.3d at 414 (holding that the defendant was not entitled to a new trial where jury had general
discussion of penalty during deliberations but there was no evidence that jury learned of information from an
outside source).
119 Nev. 554, 568 (2003) Meyer v. State
V. Alleged misconductmotion for new trial
Meyer alleges that two instances of juror misconduct properly evidenced by the juror
affidavits denied him a fair trial: (1) the juror's statement during deliberations that the small
bumps on the victim's head could have been caused by hair pulling; and (2) the second juror's
independent research on the side effects of Accutane, and her report of the same to the other
jurors.
37

[Headnote 26]
As to the hair-pulling incident, the district court found the juror's actions were not
misconduct because she used her everyday experience as a nurse, not extrinsic information, to
evaluate Catrina's testimony. We agree.
[Headnotes 27, 28]
In reaching their verdict, jurors are confined to the facts and evidence regularly
elicited in the course of the trial proceedings.
38
A juror is prohibited from declaring to his
fellow jurors any fact relating to the case as of his own knowledge.
39
However, jurors may
rely on their common sense and experience.
40

[Headnotes 29-31]
If a juror has personal knowledge of the parties or of the issues involved in the trial
that might affect the verdict, the communication of that knowledge to other jurors is
considered extrinsic evidence and a form of misconduct.
41
Likewise, if a juror considers and
communicates a past personal experience that introduces totally new information about a fact
not found in the record or the evidence, this would constitute extrinsic evidence and improper
conduct.
42
Personal experiences are to be used only to interpret the exhibits and testimony,
not as independent evidence.
43

Here, the juror's statements are not the product of everyday common experience, that
is, an observation based on matters generally experienced by people in their everyday lives.
Her statements are more akin to a form of expert opinion.
__________

37
Meyer also contends that the jury's discussion of possible sentence warrants a new trial. However, as noted
above, this is the type of intra-jury or intrinsic misconduct that falls outside the exception on the use of juror
affidavits. Since the only evidence of misconduct on this issue is through the use of inadmissible affidavits,
Meyer did not meet his burden of establishing misconduct. We therefore decline to consider this issue.

38
State v. Thacker, 95 Nev. 500, 501, 596 P.2d 508, 509 (1979).

39
NRS 175.121(1)(a).

40
U.S. v. Navarro-Garcia, 926 F.2d 818, 821-22 (9th Cir. 1991) (past personal experiences may be an
appropriate part of a jury's deliberations).

41
Hard v. Burlington Northern R.R., 812 F.2d 482, 486 (9th Cir. 1987) (former employee of railroad related
his knowledge of railroad practices to other jurors).

42
Navarro-Garcia, 926 F.2d at 821-22.

43
United States v. Jones, 580 F.2d 219, 222 (6th Cir. 1978).
119 Nev. 554, 569 (2003) Meyer v. State
are more akin to a form of expert opinion. Analysis of the evidence by a juror with
professional expertise does not fall squarely within the prohibitions against considering facts
or evidence not in the record. Courts that have considered this issue are split on whether
quasi-expert opinion statements by a juror constitute misconduct.
In People v. Maragh,
44
the New York Court of Appeals held that the defendant was
entitled to a new trial where a nurse expressed her expert opinion on a material issue in the
case, and that opinion was distinct from and in addition to the medical evidence introduced at
trial. The court noted that recent jury reform measures were designed to eliminate exemptions
for professionals and broaden the jury pool. Thus, it was expected that such individuals
would bring a certain amount of their professional experience to the deliberative process.
45
Nevertheless, the court held that substituting a juror's professional opinion for that of the
experts who testified at trial violates the right of a litigant to have the case decided only upon
the evidence adduced at trial.
46
The New York court did note, however, that jurors who are
professionals could still use their expertise in arriving at their own decisions regarding
credibility or their vote on a verdict.
47
Finally, the court suggested that trial courts modify
their standard preliminary instructions so that jurors who are professionals would be advised
that they could not use their professional expertise to supplement the record on material
issues.
48

In contrast, the Supreme Court of New Mexico, in State v. Mann,
49
has held that
jurors can rely on their professional experience and educational experiences when
deliberating, and that the communication of their opinions based upon those experiences does
not constitute extrinsic evidence. The New Mexico court expressed concern at trying to
distinguish between a juror's opinions and experiences as improper extraneous information
and permissible deliberation based on life experiences.
50
The court further noted that any
problems related to this issue could be addressed on voir dire. Prospective jurors who
expressed that their education or professional background would affect their ability to be
unbiased could be removed for cause. Otherwise, such jurors would still be subject to
strategic removal through the peremptory challenge process.
51

__________

44
729 N.E.2d 701 (N.Y. 2000).

45
Id. at 704-05.

46
Id. at 705.

47
Id.

48
Id.

49
39 P.3d 124, 132 (N.M. 2002).

50
Id. at 132-34.

51
Id. at 135.
119 Nev. 554, 570 (2003) Meyer v. State
California has taken an approach that seems to be a middle ground between the
Maragh and Mann cases. In the case of In re Malone, the California Supreme Court stated
that:
It is not improper for a juror, regardless of his or her educational or employment
background, to express an opinion on a technical subject, so long as the opinion is
based on the evidence at trial. Jurors' views of the evidence, moreover, are necessarily
informed by their life experiences, including their education and professional work.
52

The California High Court stressed, however, that an opinion could not be based on
specialized information not admitted into evidence. If the juror introduced information from
an outside source, rather than relying on the evidence or testimony elicited during trial, this
would constitute misconduct.
53

[Headnote 32]
Having considered the views expressed by these and other courts,
54
we adopt the
approach taken by the New Mexico Supreme Court in Mann.
__________

52
911 P.2d 468, 486 (Cal. 1996).

53
Id.

54
E.g., State v. Jordan, 481 P.2d 383, 387-88 (Alaska 1971) (denying new trial where defendant testified
regarding trolling spoons, and three fisherman jurors opined, based on their experiences, that scrap metal
admitted into evidence resembled parts of homemade trolling spoons because jurors' comments did not inject
extraneous information into deliberation, but instead relied on personal experiences to evaluate evidence); State
v. Graham, 422 So. 2d 123, 132 (La. 1982) (discussing difference between information within experience and
practical knowledge of all jurors with esoteric or special knowledge pertaining directly to a case); State v.
Coburn, 724 A.2d 1239, 1241-42 (Me. 1999) (discussing difference between juror knowledge based on juror's
life experiences and information received from outside source during jury service); State v. Lawlor, 56 P.3d 863,
866-67 (Mont. 2002) (where juror told remaining panel members that defendant must have prior DUI
convictions since defendant was charged with felony DUI, court denied new trial because information was
considered general knowledge of juror, not extrinsic evidence); Hankins v. State, 213 N.W. 344, 347 (Neb.
1927) (denying new trial where juror indicated, based on his experience with cash registers, that the register
could not make a mistake because juror was using life experience to evaluate evidence and basis for his beliefs
on trial issues); State v. Aguilar, 818 P.2d 165, 167 (Ariz. Ct. App. 1991) (denying new trial where juror with
medical degree disagreed with defendant's expert's opinion on material issue and conveyed juror's own expert
opinion to rest of jury panel because jurors permitted to use own knowledge and experience to deliberate); State
v. Miller, 1 P.3d 1047, 1050-51 (Or. Ct. App. 2000) (denying new trial where juror employed as prison guard
commented on her experiences with prisoners and prison life when evaluating credibility of witnesses because
use of previous knowledge and experiences to evaluate evidence is not extrinsic information); Saenz v. State,
976 S.W.2d 314, 322-23 (Tex. App. 1998) (denying new trial where jurors with generalized knowledge of
firearms discussed their experience with shell ejections in evaluating evidence because information represented
119 Nev. 554, 571 (2003) Meyer v. State
Court in Mann. A juror who has specialized knowledge or expertise may convey their opinion
based upon such knowledge to fellow jurors. The opinion, even if based upon information not
admitted into evidence, is not extrinsic evidence and does not constitute juror misconduct.
However, a juror is still prohibited from relating specific information from an outside source,
such as quoting from a treatise, textbook, research results, etc.
[Headnote 33]
During voir dire, prospective jurors may be questioned regarding any knowledge or
expertise they may have on an issue to be tried and, based upon their responses, may be the
subject of peremptory or for cause challenges. Jurors who fail to disclose information or give
false information during voir dire commit juror misconduct, which, if discovered after the
verdict, may be grounds for a new trial under the standards established for juror misconduct
during voir dire as opposed to misconduct that occurs during deliberations.
Turning now to the issue of the nurse's statements regarding hair pulling in this case,
we conclude that the juror's statements did not constitute the imposition of specialized
knowledge from an outside source. The juror did not refer to any texts, treatises, or other facts
in conveying her observations about the source of the scalp bumps. She analyzed the evidence
presented in court regarding Catrina's injuries, domestic violence, and Meyer's proffered
explanations for the injuries and concluded, based on her professional experience, that such
bumps were caused by violence, possibly hair pulling. This is a permissible inference based
upon her experience and the evidence. Accordingly, we conclude that the juror did not bring
extrinsic evidence into the jury deliberations. Thus, the district court did not abuse its
discretion in finding that the juror's actions were not misconduct.
We now address the second instance of alleged misconduct, the independent research,
and the introduction of that research to the jury, on the effects of Accutane. A juror told
fellow jurors during deliberations that she worked in a dermatologist's office and that
Accutane only causes easy bruising in one percent of users. According to the affidavit, she
consulted the Physicians' Desk Reference (PDR) on the side effects of Accutane during trial
and then discussed it with other jurors at the beginning of deliberations. The district court
found that this juror's actions constituted juror misconduct because this was the
introduction of extrinsic evidence.
__________
generalized knowledge, not specialized expertise, and use of life experiences to evaluate evidence is
permissible); State v. Briggs, 776 P.2d 1347, 1355-56 (Wash. Ct. App. 1989) (granting new trial where juror's
personal knowledge of speech impediments constituted extrinsic evidence not within realm of typical juror's life
experience).
119 Nev. 554, 572 (2003) Meyer v. State
misconduct because this was the introduction of extrinsic evidence.
55
We agree.
[Headnotes 34, 35]
Jurors are prohibited from conducting an independent investigation and informing
other jurors of the results of that investigation.
56
Here, the juror admitted in her affidavit that
she consulted the PDR during trial and then reported her findings to fellow jurors during
deliberations. Even if she had simply relied on her own memory, this would be outside
information beyond the scope of the evidence. This clearly amounted to an extraneous
influence upon the jury, and the district court correctly concluded that the second juror's
actions constituted misconduct. Having concluded that the PDR incident introduced
impermissible extrinsic evidence and constituted independent research, we also conclude that
Meyer has established that misconduct occurred.
We now consider whether Meyer established prejudice. To demonstrate prejudice,
Meyer must prove that there is a reasonable probability that the PDR reference affected the
jury's verdict. Because the misconduct involves extrinsic evidence, the Confrontation Clause
is implicated and de novo review of the district court's findings relating to prejudice is
appropriate.
57

[Headnote 36]
Applying some of the factors cited above, we note that the misconduct involved both
extrinsic information as well as intrinsic communications (disregard of jury instruction
prohibiting independent research). The jury's exposure to the information was brief and it
occurred at the beginning of the deliberations. We do not know the length of time it was
discussed. However, the side effects of Accutane was a material issue in the case, and the
information tended to undermine Meyer's theory that the victim's physical marks were caused
by a reaction to medication or falling.
Considering all of the circumstances, we conclude that the average, hypothetical juror
could have been affected by this extraneous information, and there is a reasonable probability
that the PDR information affected the verdict. Thus, Meyer met his burden of establishing
prejudice.
Accordingly, we conclude that the district court erred in denying the motion for a new
trial. We therefore reverse the judgment of conviction and remand this matter for a new trial.
__________

55
It is also intrinsic misconduct as the juror disregarded jury instructions prohibiting independent research.
Since the affidavit was admissible to show an extraneous influence, it could be considered as well on the issue of
intrinsic misconduct.

56
See Tanksley, 113 Nev. at 1002-03, 946 P.2d at 151-52; see also NRS 175.121.

57
Saya, 247 F.3d at 937.
119 Nev. 554, 573 (2003) Meyer v. State
Rose, J., with whom Leavitt, J., agrees, concurring:
I generally agree with the court's method in determining claims of juror misconduct.
However, I would prefer to adopt the California approach when dealing with a juror who has
specialized knowledge or training, and I believe that the court should have considered the
juror affidavits of improper discussions concerning the possible sentence Meyer might
receive.
The jurors improperly discussed the sentence Meyer would receive if convicted of
sexual assault. I do not agree with the court's prohibition on scrutinizing intra-jury or intrinsic
misconduct when it concerns jurors applying an improper legal standard or jurors considering
evidence or facts they were instructed not to consider. Instead, I would apply the same
standard in reviewing instances of this type of intrinsic misconduct as we do with extrinsic
misconduct.
Jurors are specifically instructed to disregard the sentence to be assessed for any
verdict returned, as it is solely the province of the court to assess such punishment.
1
The
affidavit of one juror stated that she was the last holdout juror and that another juror advised
her not to worry about convicting Meyer because the punishment for sexual assault was only
a couple of years. This information, which was apparently accepted as true, was patently
false.
Sexual assault is a non-probationable offense that carries a sentence of ten years to
life, with a mandatory minimum of ten years in the state penitentiary.
2
Upon receiving this
information, the holdout juror changed her mind, resulting in a guilty verdict of sexual
assault. I consider this misinformation on the law, given in violation of the jury instructions,
to be every bit as harmful as consulting a reference book about the effects of a medication.
Thus, I conclude that the penalty discussion constituted intra-jury misconduct that also could
justify a new trial.
3

In prohibiting a district court from considering any intra-jury misconduct presented in
a juror affidavit, the court logically concludes that intra-jury misconduct will rarely justify a
new trial. Certainly, the district court will not be aware of many instances of jury misconduct
if it is unable to consider the jurors' statements or discussions in the jury room. As in this
case, the court holds that information about sentencing was improperly contained in a juror's
affidavit. But what if the jurors all acknowledge that they returned a first-degree murder
conviction primarily because they believed the mandatory sentence was five years instead of
twenty years; or if the jurors admitted that they considered "beyond a reasonable doubt"
to be the same as "a preponderance of the evidence," and returned a conviction on that
faulty basis.
__________

1
Here, Jury Instruction No. 9 instructed the jurors not to consider the penalty in arriving at a verdict.

2
See NRS 200.366(2)(b).

3
See U.S. v. Keating, 147 F.3d 895, 902 (9th Cir. 1998) (noting that intrajury communications may
constitute prejudicial extrinsic evidence sufficient to require a new trial).
119 Nev. 554, 574 (2003) Meyer v. State
if the jurors admitted that they considered beyond a reasonable doubt to be the same as a
preponderance of the evidence, and returned a conviction on that faulty basis.
There are some instances of intrinsic juror misconduct that should be considered in a
juror's affidavit even without extrinsic influences being involved, but the rule that the court
adopts prevents the consideration of this type of misconduct, even though it can be every bit
as harmful as extrinsic misconduct, and effectively denies a defendant a fair trial. I would not
limit this court's ability to review juror misconduct simply because it involves only intra-jury
activity.
I concur in the reversal of Meyer's conviction, with only the reservations as expressed.
Maupin, J., concurring:
I agree that the juror affidavits concerning outside juror research from the Physicians'
Desk Reference (PDR) and discussion of the research with the juror's colleagues established a
reasonable probability that the research materials affected the verdict, thus mandating reversal
for a new trial.
I write separately to note that our embrace of the New Mexico approach to claims of
juror misconduct based upon consideration of extrinsic evidence will substantially and
beneficially reduce the scope of post-trial attacks upon jury verdicts.
The New Mexico approach, set forth in State v. Mann,
1
allows jurors to consider
their specialized knowledge and to communicate views based upon that knowledge. This
approach holds that the communication of such views does not constitute the transmission of
extrinsic evidence, but does prohibit reliance upon or discussion of information from outside
sources such as treatises, textbooks or research not in evidence. Thus, the New Mexico
method will eliminate the vast majority of post-verdict relitigation of cases based upon claims
of misconduct through reliance on extrinsic evidence where, as here, a juror is possessed of
specialized knowledge that may bear on an issue in the case. Also, the New Mexico approach
implicitly acknowledges the policy that parties that leave such jurors in place during jury
selection take their chances with the use of the specialized knowledge. However, I remain of
the view that a doctor, lawyer, engineer or any other person with particularized special
knowledge that is relevant to the case is subject to a challenge for cause.
I therefore agree that the specialized knowledge concerning Accutane imparted to the
jury does not require reversal. However, I conclude with the majority the PDR research
constituted extrinsic research prohibited under the New Mexico approach.
__________

1
39 P.3d 124, 131 (N.M. 2002).
119 Nev. 554, 575 (2003) Meyer v. State
extrinsic research prohibited under the New Mexico approach. Accordingly, in my view, the
use of the PDR research by the jury mandates reversal in this very close case of guilt or
innocence.
2

Becker, J., with whom Shearing, J., and Young, Sr. J., agree, concurring in part and
dissenting in part:
I concur in the court's adoption of the reasonable probability test for determining when
juror misconduct warrants a new trial. I also concur in the court's adoption of the New
Mexico standard concluding that expert or quasi-expert opinions given by a juror during
deliberations are not misconduct. I dissent, however, from the court's conclusions that Meyer
established a reasonable probability that the introduction of the PDR materials regarding
Accutane affected the jury's verdict and that a new trial is warranted.
In my opinion, the court places too much emphasis on the inclusion of the PDR
materials in the deliberation. While it did tend to undermine Meyer's theory that Catrina's
bruises or bumps could have been side effects of Accutane use, other admissible evidence
already cast doubts on this contention. The PDR reference was, in part, cumulative of other
evidence at trial; namely, experts indicated Accutane was not responsible for the bruises
visible on Catrina's body when the police arrived and/or when the sexual assault evaluation
was performed. The jury carefully considered the evidence as demonstrated by the questions
to the district court on at least two occasions during deliberations and its ultimate decision to
convict Meyer of sexual assault and acquit him of kidnapping.
The fractured verdict suggests that the jury carefully delineated between the offenses
and undertook its duties with care and diligence.
1
The fractured verdict does not, as
suggested by Meyer, indicate the jurors had reservations about the prosecution's case as a
whole; there was substantially less evidence to support the kidnapping charge than the sexual
assault charge. Thus, even if the jury accepted all of the State's evidence regarding
kidnapping, the jury could still conclude that the State had not met its burden of proving
kidnapping beyond a reasonable doubt. The same cannot be said of the sexual assault charge.
The evidence of Meyer's guilt as to sexual assault was substantial. In particular,
Catrina's boyfriend testified that Meyer called him and told him that he was digitally
penetrating Catrina's anus as it occurred.
__________

2
I also agree that the portions of juror affidavits concerning sentence of necessity involved intrinsic matter
and were properly excluded from the district court's consideration of the juror misconduct claims.

1
See U.S. v. Lloyd, 269 F.3d 228, 241 (3d Cir. 2001) (length of jury's deliberations and the structure of the
verdict are relevant to determining the likelihood of prejudice).
119 Nev. 554, 576 (2003) Meyer v. State
him and told him that he was digitally penetrating Catrina's anus as it occurred. The boyfriend
could hear Catrina pleading for Meyer to stop. A police officer testified that Catrina told him
shortly after the alleged incident that Meyer had digitally penetrated her anus without her
consent. Additionally, the officer testified to seeing Catrina's emotional state and various
bruises on her person.
Although Meyer testified that the incident was consensual, and his expert
characterized Catrina's recantation as consistent with an alcohol blackout, a sexual assault
nurse testified that Catrina's anal injuries were consistent with sexual assault. Additionally,
the State offered an explanation via expert testimony on Battered Woman Syndrome for
Catrina's recantation of her initial allegation of sexual assault.
In addition, while Meyer attempted to attribute some of Catrina's bruises to the side
effects of Accutane, he conceded that many of her injuries could not be explained by the
medication. As to these other injuries, Meyer's experts testified that falls, acne, or minor blunt
force trauma could have caused the injuries. Thus, the importance of the PDR reference
diminishes when compared to the other significant injuries Catrina sustained. Finally, none of
Meyer's experts attributed Catrina's bruising to Accutane. The only evidence admitted to
support this theory was Catrina's statements. In contrast, the State produced expert testimony
indicating that the bruising was not caused by minor injuries or side effects of Accutane.
Moreover, the jury's finding of guilt suggests that it rejected Meyer's expert testimony
on all of the issues, not just the side effects of Accutane. In light of the totality of the State's
evidence that the jury must have accepted as true to sustain a verdict of guilty, and the
relatively minor role the bruises played in comparison to Catrina's other injuries, I conclude
Meyer did not demonstrate that there was a reasonable probability that the misconduct
contributed to the verdict, and the district court did not err in denying the motion for a new
trial. I would affirm the conviction.
__________
119 Nev. 577, 577 (2003) Edgington v. Edgington
JANICE L. EDGINGTON, Appellant, v. DONALD R. EDGINGTON, Respondent.
No. 38880
December 30, 2003 80 P.3d 1282
Appeal from a district court order denying a motion to modify a divorce decree and
denying a motion for attorney fees. First Judicial District Court, Carson City; William A.
Maddox, Judge.
Former wife brought motion to increase former husband's child support obligation,
and sought extension of such obligation until child reached age twenty-one, alleging child
was special needs child. The district court denied the motion. Former wife appealed. The
supreme court held that substantial gainful activity, within meaning of Nevada's
handicapped child support statute, means work activity that results in the child being
financially self-supporting.
Allison W. Joffee, Carson City, for Appellant.
Peter B. Jaquette, Carson City, for Respondent.
1. Child Support.
The child support statute presumes that once a child reaches the age of majority, the child is capable of self-support. NRS
125.510(9)(b).
2. Statutes.
The construction of a statute is a question of law.
3. Statutes.
In interpreting a statute, words should be given their plain meaning unless this violates the spirit of the act.
4. Statutes.
When a statute's language is clear and unambiguous, the apparent intent must be given effect, as there is no room for
construction.
5. Statutes.
If a statute is susceptible to more than one reasonable meaning, it is ambiguous, and the plain meaning rule does not apply;
instead, the legislative intent must be ascertained from the statute's terms, objectives, and purpose, in line with what reason and
public policy dictate.
6. Statutes.
Statutory interpretation should avoid meaningless or unreasonable results.
7. Statutes.
Statutes with a protective purpose should be liberally construed in order to effectuate the benefits intended to be obtained.
8. Statutes.
When construing a specific portion of a statute, the statute should be read as a whole, and where possible, the statute should be
read to give meaning to all of its parts.
9. Statutes.
When a federal statute is adopted in a Nevada statute, a presumption arises that the Nevada Legislature knew and intended to
adopt the construction placed on the federal statute by federal courts,
struction placed on the federal statute by federal courts, but this rule of statutory construction is applicable only if the state and
federal acts are substantially similar and the state statute does not reflect a contrary legislative intent.
10. Child Support.
The Nevada handicapped child support statute's definition of handicapped was almost identical to the Federal Social Security
Act's definition of disabled, and thus, the Nevada Supreme Court would presume that the Nevada Legislature knew and intended
to adopt the federal interpretation of the definition. 42 U.S.C. 1382c(a)(3)(A); NRS 125B.110(4); 20 C.F.R. 404.1505(a),
404.1572.
11. Child Support.
Substantial gainful activity, within meaning of Nevada's handicapped child support statute, which requires a parent to provide
support beyond the age of majority for a child who is handicapped until the child is no longer handicapped, and which defines
handicapped as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment, means work activity that results in the child being financially self-supporting. NRS 125B.110(4).
12. Child Support.
Medically determinable physical or mental impairment, within meaning of Nevada's handicapped child support statute, which
requires a parent to provide support beyond the age of majority for a child who is handicapped until the child is no longer
handicapped, and which defines handicapped as the inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment, means any physical or mental structural or functional limitation that can be
determined by medically accepted diagnostic techniques. NRS 125B.110(4).
13. Child Support.
If a child is impaired, but the impairment is not the cause of that child's inability to be self-supporting, then the child is not
considered handicapped under Nevada's handicapped child support statute, which requires a parent to provide support beyond the
age of majority for a child who is handicapped, until the child is no longer handicapped, and which defines handicapped as the
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. NRS
125B.110(4).
14. Child Support.
If a child has a qualifying impairment, but is able to support himself or herself, then that child is not handicapped under
Nevada's handicapped child support statute, which requires a parent to provide support beyond the age of majority for a child who
is handicapped, until the child is no longer handicapped, and which defines handicapped as the inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment. NRS 125B.110(4).
15. Child Support.
The supreme court reviews a district court child support order for abuse of discretion.
16. Child Support.
The supreme court will not disturb the district court's decision regarding an award of attorney fees in a proceeding to enforce a
child support obligation, absent an abuse of discretion. NRS 125B.140(2)(c)(2).
17. Costs.
Former wife's appellate claim that child was handicapped, and that former husband's child support obligation therefore should
be extended until child reached age twenty-one, was not "frivolous," and former husband thus was not
entitled to attorney fees on appeal,
until child reached age twenty-one, was not frivolous, and former husband thus was not entitled to attorney fees on appeal,
where former wife presented an issue of first impression regarding the interpretation of handicapped under Nevada's
handicapped child support statute.
OPINION
Per Curiam:
The primary issue in this appeal is whether the district court erred when it concluded
that the parties' son is not handicapped within the meaning of NRS 125B.110(4), Nevada's
handicapped child support statute. We conclude that a child is handicapped under the
statute if he or she is incapable of being self-supporting because of a qualifying physical or
mental impairment.
In the proceedings below, the district court did not focus on the child's ability to be
self-supporting in determining whether the child was handicapped. Additionally, the record is
not sufficiently developed with respect to whether the child is capable of self-support and, if
not, whether any qualifying impairments are the cause. Consequently, we reverse that portion
of the district court's order concerning prolonged child support, and remand the matter to the
district court for further proceedings consistent with this opinion. We also reverse that portion
of the order pertaining to appellant's request for attorney fees and remand for further
consideration. Finally, we affirm that portion of the district court's order concerning
appellant's request to increase the child support amount.
Appellant Janice Edgington and respondent Donald Edgington were divorced in 1995.
They have one son, Matthew, who was born in March 1983 and is now approximately twenty
years old. At the time of the divorce, the parties entered into a stipulation concerning child
custody and support, among other things. The parties agreed that Janice would have primary
physical custody of Matthew and that Donald would have liberal visitation. Donald also
agreed to pay child support at the statutory maximum of $500 per month until Matthew
reached the age of nineteen or graduated from high school, whichever occurred first. Further,
under the agreement, neither party was precluded from seeking to modify the child support
arrangement in the future. The agreement was incorporated and merged by the district court
into the final divorce decree.
In October 2000, when Matthew was approximately seventeen years old, Janice
moved the district court to increase Donald's child support obligation.
child support obligation. In particular, Janice sought an increase in child support to $600 per
month, $100 more than the statutory child support cap at that time, and she requested that the
district court extend Donald's support obligation until June 2004, because Matthew is a
special needs child. According to Janice, Matthew is severely hearing impaired, has
[attention deficit disorder] and is Bipolar. She insisted that after graduation from high
school, Matthew would be unable to live on his own since he requires special job training
because of his health problems. Janice felt that with specific training, Matthew could become
self-supporting. Janice also sought attorney fees on the basis that she was forced to move the
district court to recover a portion of Matthew's unpaid medical expenses from Donald. On the
eve of the hearing, Donald reimbursed Janice for past medical expenses, but according to
Janice, he still owed her approximately $900 in outstanding medical expenses.
Donald opposed Janice's motion. He insisted that Matthew is a far cry from the
severely disabled child portrayed by Janice. More specifically, Donald stated that Matthew
has a moderate hearing loss, and wears a hearing aid. Donald acknowledged, however, that
Matthew was diagnosed with attention deficit disorder and has received medication since the
diagnosis. Overall, Donald described Matthew as a normal kid and a good kid with a
perfectly normal and productive life ahead of him. As for Janice's attorney fees request,
Donald challenged the amount sought, claiming that Janice's counsel could not possibly have
spent as much time preparing the case as counsel claimed. Thus, Donald argued that the
parties should pay their own fees.
A hearing was conducted on Janice's motion. During the hearing, Dr. Edward Lynn,
Matthew's psychiatrist, testified telephonically. According to Dr. Lynn, in addition to
Matthew's hearing impairment, Matthew suffers from depression, anxiety, and social phobia.
The doctor also explained that at the time, Matthew was taking several medications to address
his disorders. Further, Dr. Lynn testified that Matthew also suffers from a sleep disorder.
At the onset of Dr. Lynn's testimony, a letter from Dr. Lynn to Janice's counsel was
offered into evidence without objection. The letter explained that Dr. Lynn's clinical opinion
concerning Matthew's medical conditions is based on a review of Matthew's pediatrician's
records, and implementation and evaluation of Zung Measures of Depression and Anxiety,
The Liebowitz Social Anxiety Scale, The Social Phobia Inventory, DSM IV Criteria of
ADHD, and Owens Behavior Rating Scale for Attention Deficit Hyperactivity Disorder
(ADHD). The letter also states that Matthew was evaluated in a face-to-face interview.
When asked if he thought that Matthew could lead an independent life after high
school graduation, Dr. Lynn replied, I do not believe he will be able to be independent after
high school graduation. I think in many ways he's socially retarded. Moreover, the doctor
testified that it was his opinion that Matthew could not attend college full-time and support
himself. The district court asked Dr. Lynn if he thought Matthew was handicapped within
the meaning of the statute. Dr. Lynn stated that he thought Matthew was handicapped in
terms of his hearing impairment and social anxiety. The court then asked if Matthew was
incapable of engaging in any substantial gainful activity, and the doctor responded, Not in
any but in many. The court did not define the phrase substantial gainful activity for Dr.
Lynn, and Dr. Lynn did not explain his answer further.
Janice testified as to the financial hardships she has faced in light of Matthew's
monthly medical expenses. She further testified that for a period, Matthew was not
appropriately medicated and was extremely difficult to deal with. Janice explained, however,
that once Matthew was prescribed bipolar medication, his behavior improved significantly.
Matthew testified that he received special assistance as a disabled student during high
school. According to Matthew, as a result of his disabled student status, he was allowed to
use a calculator during school when other students could not, he was given more time to take
tests, and he was provided with a note taker to assist him. The record fails to disclose in
what capacity Matthew was assisted with note taking while attending school, however.
Matthew also testified that while at school, even with hearing aids, he had trouble hearing
people speak and understanding what they were saying. Additional testimony revealed that
Matthew volunteered for a 4-H program, and one summer through the high school he
participated in a job training course and supervised a group of mentally challenged children.
On November 2, 2001, the district court entered a written order denying Janice's
motion to modify the divorce decree and for attorney fees. The order reiterated that Donald
still had an obligation under the parties' agreement to pay $500 per month in support until
Matthew graduates from high school or turns nineteen, whichever occurs first. The order
further provided that there were no changed circumstances that would warrant increasing the
child support obligation by $100 per month. Finally, the district court concluded that the
handicapped child support statute does not apply, as the evidence did not establish that
Matthew is handicapped within the statutory definition.
DISCUSSION
Nevada's handicapped child support statute
[Headnote 1]
As a general rule, court ordered support obligations cease [w]hen the child reaches
18 years of age if he is no longer enrolled in high school, otherwise, when he reaches 19 years
of age.
1
The law presumes that once a child reaches majority, the child is capable of
self-support.
2
Nevada's Legislature has created a statutory exception to this general rule;
under NRS 125B.110, Nevada's handicapped child support statute, parents must support a
handicapped child beyond majority if the child cannot support himself or herself because of a
qualifying disability. The statute, with emphasis added, creates a duty of continued support
under the following circumstances:
1. A parent shall support beyond the age of majority his child who is handicapped
until the child is no longer handicapped or until the child becomes self-supporting. The
handicap of the child must have occurred before the age of majority for this duty to
apply.
2. For the purposes of this section, a child is self-supporting if he receives public
assistance beyond the age of majority and that assistance is sufficient to meet his needs.
3. This section does not impair or otherwise affect the eligibility of a handicapped
person to receive benefits from a source other than his parents.
4. As used in this section, handicapped means the inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.
3

[Headnotes 2-8]
As we have recognized, [t]he construction of a statute is a question of law.
4
In
interpreting a statute, words . . . should be given their plain meaning unless this violates the
spirit of the act.
5
Thus, when a statute's language is clear and unambiguous, the apparent
intent must be given effect, as there is no room for construction.
__________

1
NRS 125.510(9)(b).

2
See generally Noralyn O. Harlow, Annotation, Postmajority Disability as Reviving Parental Duty to
Support Child, 48 A.L.R. 4th 919, 923 (1986).

3
NRS 125B.110.

4
General Motors v. Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 348 (1995).

5
McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986).
construction.
6
If, however, a statute is susceptible to more than one reasonable meaning, it is
ambiguous, and the plain meaning rule does not apply.
7
Instead, the legislative intent must
be ascertained from the statute's terms, the objectives and purpose, in line with what reason
and public policy' dictate.
8
Statutory interpretation should avoid meaningless or
unreasonable results,
9
and [s]tatutes with a protective purpose should be liberally construed
in order to effectuate the benefits intended to be obtained.
10
Additionally, [w]hen
construing a specific portion of a statute, the statute should be read as a whole, and, where
possible, the statute should be read to give meaning to all of its parts.
11

In this case, our focus is on the meaning of handicapped. As set forth above, the
statute's definition of handicapped involves two considerations: (1) the child must be
unable to engage in any substantial gainful activity, and (2) the inability to engage in the
activity must be by reason of any medically determinable physical or mental impairment
that may lead to death or that has lasted or is expected to last at least twelve consecutive
months. Thus, in interpreting the statute, we must examine the language substantial gainful
activity and medically determinable physical or mental impairment.
With respect to the phrase substantial gainful activity, the parties offer differing
dictionary definitions of the word gainful to support their interpretations of this phrase.
Janice contends that gainful refers to employment
12
and that attending school is not
gainful as provided under the statute. Donald asserts that gainful refers to any
advantageous activity.
13
He contends that it is advantageous for Matthew to attend college.
Further, Donald insists that the evidence established that Matthew was in the top half of his
class in school and was capable of employment or college. Since, in Donald's view, Matthew
can hold a job or go to college, Donald asserts that Matthew is not handicapped under the
statute.
__________

6
Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990), overruled on
other grounds by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000).

7
McKay, 102 Nev. at 649, 730 P.2d at 442.

8
Id. (quoting Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983)).

9
See, e.g., General Motors, 111 Nev. at 1029, 900 P.2d at 348; Las Vegas Sun v. District Court, 104 Nev.
508, 511, 761 P.2d 849, 851 (1988), overruled on other grounds by Diaz v. Dist. Ct., 116 Nev. 88, 993 P.2d 5
(2000).

10
Colello v. Administrator, Real Est. Div., 100 Nev. 344, 347, 683 P.2d 15, 17 (1984).

11
Building & Constr. Trades v. Public Works, 108 Nev. 605, 610, 836 P.2d 633, 636 (1992).

12
See Webster's Third New International Dictionary 928 (1976) (defining gainful as productive of gain:
profitable, . . . providing an income).

13
Black's Law Dictionary 678 (6th ed. 1990).
Because the parties' differing definitions of gainful could plausibly refer to working,
attending school, or both, we conclude that the portion of the statute referring to substantial
gainful activity is ambiguous. We therefore turn to legislative intent, public policy and other
parts of the statute to construe the meaning of the ambiguous language.
Nevada's handicapped child support statute was enacted in 1987.
14
The original
provision was part of a more comprehensive child support statute that did not include a
definition of handicapped. Then, in 1991, the Legislature amended the statute by adding a
definition of handicapped.
15
The legislative history reveals that the Legislature was
concerned that courts were interpreting the statute too broadly. During a hearing before the
Senate Judiciary Committee, it was suggested that the Social Security Administration's
definition of disabled be adopted to define the term handicapped.
16

[Headnotes 9, 10]
At the time, the term disabled, as used by the Social Security Administration, was
defined by the Social Security Act as follows:
An individual shall be considered to be disabled for purposes of this subchapter if he is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than
twelve months (or, in the case of a child under the age of 18, if he suffers from any
medically determinable physical or mental impairment of comparable severity).
17

Thus, the Nevada Legislature adopted the federal definition of disabled to define
handicapped under Nevada's handicapped child support statute. This court has recognized
that
[w]hen a federal statute is adopted in a statute of this state, a presumption arises that
the legislature knew and intended to adopt the construction placed on the federal statute
by federal courts. This rule of [statutory] construction is applicable, however, only if
the state and federal acts are substantially similar and the state statute does not reflect a
contrary legislative intent.
18

__________

14
1987 Nev. Stat., ch. 813, 4, at 2268-69.

15
1991 Nev. Stat., ch. 448, 3, at 1336.

16
See Hearing on S.B. 280 Before the Senate Comm. on Judiciary, 66th Leg. (Nev., May 9, 1991).

17
42 U.S.C. 1382c(a)(3)(A) (1988).

18
State, Bus. & Indus. v. Granite Constr., 118 Nev. 83, 88, 40 P.3d 423, 426 (2002) (quoting Sharifi v.
Young Bros., Inc., 835 S.W.2d 221, 223 (Tex. App. 1992) (citation omitted)).
Here, the handicapped child support statute's definition of the term handicapped is almost
identical to the Social Security Act's 1991 definition of disabled. We therefore presume that
the Nevada Legislature knew and intended to adopt the federal interpretation of the definition.
The Social Security Administration's interpretation of disability is set forth in the
Code of Federal Regulations (CFR). Under the CFR, the applicant must have an impairment
that makes the applicant unable to do previous work or any other substantial gainful activity
[that] exists in the national economy.
19
The CFR also explains that [s]ubstantial gainful
activity is work activity that is both substantial and gainful.
20
According to the CFR,
[s]ubstantial work activity refers to work activity that involves doing significant physical
and mental activities,
21
whereas [g]ainful work activity refers to work activities done for
pay or profit.
22
In addition, the CFR provides that activities like taking care of [oneself],
household tasks, hobbies, therapy, school attendance, club activities, or social programs are
generally not considered to be substantial gainful activities.
23
Thus, under the CFR, the term
substantial gainful activity necessarily means an activity that results in significant economic
gain and does not generally include school attendance.
[Headnote 11]
With the CFR definitions in mind, we conclude that the term substantial gainful
activity in Nevada's handicapped child support statute means work activity that results in the
child being financially self-supporting. Our conclusion also necessarily flows from reading
the statute as a whole. If substantial gainful activity included activities that did not result in
the child's ability to be self-supporting, then the statute's requirement that support payments
continue until the child is self-supporting or no longer handicapped would not make sense. In
other words, parents would have no duty to support a child who could engage in
noneconomic activities but could not be self-supporting because the child would not be
considered handicapped under the statute.
The handicapped child support statute is designed to ensure that handicapped children
have adequate ongoing financial support from their parents, if needed. Our construction of
substantial gainful activity" comports with this purpose.
__________

19
20 C.F.R. 404.1505(a) (2003).

20
Id. 404.1572 (emphasis added).

21
Id. 404.1572(a).

22
Id. 404.1572(b).

23
Id. 404.1572(c) (emphasis added); see also Parish v. Califano, 642 F.2d 188 (6th Cir. 1981)
(recognizing that plaintiff's attempts to attend school part-time did not establish her ability to engage in
substantial gainful activity nor did it negate her multiple sclerosis disability).
activity comports with this purpose. Additionally, Nevada's more general public policies
concerning child support and disabled persons support our conclusion that substantial
gainful activity means work activity that results in the child being self-supporting. NRS
125.460(2) declares that Nevada's policy is to encourage parents to share the rights and
responsibilities of child rearing. Moreover, [s]tate efforts to improve the circumstances of
disabled citizens are indicative of the highest social charactera society attuned to the worth
of an individual irrespective of physical or mental handicap.
24
In short, all rules of statutory
construction point in the same direction: substantial gainful activity means economic
activity resulting in self-support.
[Headnote 12]
The second part of our definitional analysis concerns the statutory language
medically determinable physical or mental impairment. We conclude that this phrase is
plain and unambiguous; therefore, we need go no further than the language itself. The term
impairment is defined as a limitation that results in [a]ny loss or abnormality of
psychological, physiological, or anatomical structure or function.
25
When the term
impairment is read in conjunction with its modifier, medically determinable physical or
mental, it is clear that impairment means any physical or mental structural or functional
limitation that can be determined by medically accepted diagnostic techniques.
[Headnotes 13, 14]
We have concluded that substantial gainful activity means work activity that results
in the child being self-supporting. Additionally, we have noted that impairment means any
physical or mental limitation that can be medically established by accepted diagnostic
techniques. A nexus must exist between these two terms, however. The statute requires that a
handicapped child be incapable of engaging in substantial gainful activity by reason of the
qualifying impairment.
26
Thus, if a child is impaired, but the impairment is not the cause of
that child's inability to be self-supporting, then the child is not considered handicapped under
the statute.
__________

24
McKay v. Bergstedt, 106 Nev. 808, 825, 801 P.2d 617, 628 (1990).

25
Taber's Cyclopedic Medical Dictionary 897 (Clayton L. Thomas ed., 16th ed. 1989).

26
See, e.g., State ex rel. Albert v. Sauer, 869 S.W.2d 853, 855 (Mo. Ct. App. 1994) (holding that despite
evidence indicating that child had brain damage and learning difficulties, no evidence established that due to his
mental incapacities the child was unable to support himself); Ulery v. Ulery, 620 N.E.2d 933, 934 (Ohio Ct.
App. 1993) (reversing a lower court decision requiring extended support for child who had mild brain
dysfunction and educational and behavioral problems, because lower court failed to find a causal connection
between the child's inability to support himself and his disability).
the statute. Similarly, if a child has a qualifying impairment but is able to support himself or
herself, then that child is not handicapped under the statute's definition.
In the present case, the district court did not define substantial gainful activity for
Dr. Lynn when eliciting his testimony. Although Dr. Lynn undoubtedly believed that
Matthew's hearing impairment and his social limitations restricted the type of activity, either
school or work, in which Matthew could engage, Dr. Lynn's testimony did not focus on
whether Matthew could be self-supporting. Additionally, neither Janice nor Donald testified
with respect to Matthew's job prospects and ability to live independently. Consequently, the
record does not disclose whether, at the time of the hearing, Matthew was capable of
supporting himself, and if not, whether a qualifying impairment was the cause. And, although
the record includes testimony suggesting that Matthew may have a qualifying impairment, the
district court made no findings in this regard. From the record, it appears that Matthew will
have limitations in the type of work he can perform because of his hearing loss and social
limitations. But limitations do not equate to an inability to be self-supporting.
27
Whether
Matthew can or cannot be self-supporting is unclear from the record, as is the impact of his
impairments on any inability to support himself. Therefore, we reverse that portion of the
district court's order concluding that Matthew is not handicapped and remand for further
proceedings in accordance with our construction of the statute.
Increased child support and attorney fees
Also on appeal, Janice contends that the district court abused its discretion when it
denied her motion to increase child support and for attorney fees. Janice asserts that the
district court failed to give weight to Donald's standard of living and the circumstances of
each parent when deciding whether to increase the child support obligation. Moreover, she
contends that Donald's child support obligation should be adjusted upward from the statutory
maximum because Matthew has considerable medical expenses and additional school
expenses. Further, Janice insists that the district court was required to determine Donald's
gross monthly income because the parties disagreed as to the amount.
28

__________

27
See NRS 125B.110(2) (providing that if a child receives public assistance beyond majority to meet his or
her needs, the child is self-supporting).

28
Janice asserts that under NRS 125B.080(3), the district court had a mandatory duty to investigate the
alleged financial discrepancy concerning Donald's income once the issue was raised. The November 2001 order
did not mention Donald's income. The record reveals that Janice failed to offer any evidence in the district court
regarding Donald's income. Nor did Janice argue in the dis-
[Headnote 15]
This court reviews a district court child support order for abuse of discretion.
29
The
record shows that the district court considered Janice's assertions and concluded that there
were no changes in the parties' circumstances since they entered into their child support
agreement that would warrant an increase in Donald's child support obligation. Donald was
already paying the statutory maximum under the parties' agreement. The record further
reveals that at the time of the proceedings, Donald was current with his child support
obligation. Thus, we conclude that the district court did not abuse its discretion when it
denied Janice's motion for an increase in the amount of child support, and we affirm that
portion of the district court's order.
[Headnotes 16, 17]
Finally, with respect to Janice's request for attorney fees, the district court must award
reasonable attorney fees in a proceeding to enforce a child support obligation, unless the
court finds that the responsible parent would experience an undue hardship if required to pay
such fees.
30
This court will not disturb the district court's decision regarding attorney fees
absent an abuse of discretion.
31
Here, Janice sought fees, in part, because she had to move
the district court to recover unpaid medical expenses for which Donald was responsible under
the divorce decree.
32
On the eve of the hearing, Donald reimbursed Janice for past medical
expenses, but according to Janice, he still owed her approximately $900 in outstanding
medical expenses. The district court summarily denied Janice's request for fees without
citation to authority. We conclude that the district court abused its discretion in failing to
either award Janice fees or expressly find that the fee award would cause Donald an undue
hardship. Accordingly, we reverse that portion of the district court order and remand this
issue to the district court for further consideration.
33

__________
trict court that a parent must be compelled to furnish financial information or other documents under NRS
125B.080(3). Thus, Janice has waived this issue on appeal. See State of Washington v. Bagley, 114 Nev. 788,
792, 963 P.2d 498, 501 (1998) (providing that parties cannot raise issues for the first time on appeal). Janice
also raises for the first time on appeal an argument that Donald is willfully underemployed. This argument is also
waived.

29
Wallace v. Wallace, 112 Nev. 1015, 922 P.2d 541 (1996).

30
NRS 125B.140(2)(c)(2).

31
Sprenger v. Sprenger, 110 Nev. 855, 878 P.2d 284 (1994) (concluding that an award of attorney fees in
divorce proceedings lies within the sound discretion of the district court).

32
Janice failed to cite below any legal authority to support her request for fees.

33
Donald argues that Janice should be subjected to NRAP 38 sanctions because Matthew is not handicapped
under NRS 125B.110. As we have indi-
CONCLUSION
For the reasons stated above, we reverse the portions of the district court order
concerning the application of the handicapped child support statute and the denial of attorney
fees, and we remand this matter to the district court for further proceedings. We affirm the
portion of the district court order that denied Janice's motion to increase Donald's child
support obligation.
__________
119 Nev. 589, 589 (2003) State v. Bennett
THE STATE OF NEVADA, Appellant/Cross-Respondent, v. EDWARD GORDON
BENNETT, Respondent/Cross-Appellant.
No. 38934
December 30, 2003 81 P.3d 1
Appeal and cross-appeal from an order of the district court granting in part and
denying in part a post-conviction petition for a writ of habeas corpus in a capital case. Eighth
Judicial District Court, Clark County; John S. McGroarty, Judge.
After the affirmance of defendant's murder conviction and death sentence, 106 Nev.
135, 787 P.2d 797 (1990), and a denial of his first petition for post-conviction relief, 111
Nev. 1099, 901 P.2d 676 (1995), defendant filed a second petition for post-conviction relief.
The district court vacated death sentence and granted a new penalty hearing. State appealed.
The supreme court, Agosti, C. J., held that: (1) law of the case doctrine did not preclude
defendant from making argument regarding invalid aggravating factor; (2) defendant was
entitled to raise claims in an untimely post-conviction habeas petition; (3) evidence was
insufficient to support jury's finding of aggravating factor in penalty phase of trial that
defendant killed store clerk at random and without motive; (4) state committed Brady
violations by not disclosing to defendant statement by jailhouse informant, accomplice's
juvenile criminal history, and witness's history as a paid informant; and (5) death sentence,
which was based on invalid aggravating factor, was required to be vacated.
Affirmed.
Gibbons, J., dissented in part. Becker, J., dissented.
and Clark A. Peterson, Lynn M.
__________
cated, this case raises an issue of first impression. Janice's argument that Matthew is handicapped under the
statute is certainly not frivolous. Therefore, we deny Donald's request for sanctions.
Robinson, and James Tufteland, Chief Deputy District Attorneys, Clark County, for
Appellant/Cross-Respondent.
Franny A. Forsman, Federal Public Defender, and Michael L. Pescetta, Assistant
Federal Public Defender, Las Vegas, for Respondent/Cross-Appellant.
1. Criminal Law.
Law of the case doctrine did not apply to defendant's petition for post-conviction relief so as to preclude defendant from making
argument regarding invalid aggravating factor used by jury in penalty phase of capital murder trial because, even though the
argument raised in the petition was rejected in defendant's direct appeal of his murder conviction and death sentence, a subsequent
supreme court ruling in an unrelated case overruled the issue decided in defendant's direct appeal.
2. Habeas Corpus.
Application of procedural bars to preclude consideration of defendant's claim in post-conviction habeas petition amounted to a
fundamental miscarriage of justice where jury improperly found during penalty phase of capital murder trial the aggravating factor
that defendant had committed murder during robbery at random and without apparent motive, and State committed Brady
violations by failing to disclose certain mitigating evidence during penalty phase of trial. Thus, defendant was entitled to raise
claim in an untimely and successive petition.
Evidence was insufficient to support jury's finding of aggravating factor in penalty phase of capital murder trial that defendant
killed store clerk at random and without apparent motive where defendant and his accomplice chose their victim for the specific
purpose to rob her, and the motive to kill was to complete the robbery and leave no witnesses, and thus, defendant's behavior was
purposeful and not random.
4. Criminal Law.
Brady and its progeny require a prosecutor to disclose evidence favorable to the defense when that evidence is material either to
guilt or to punishment.
5. Criminal Law.
There are three components to a Brady violation: (1) the evidence at issue is favorable to the accused; (2) the evidence was
withheld by the State, either intentionally or inadvertently; and (3) prejudice ensued, i.e., the evidence was material.
6. Habeas Corpus.
To raise a claim in an untimely and/or successive post-conviction habeas petition, the petitioner has the burden of pleading and
proving specific facts that demonstrate good cause and prejudice to overcome the procedural bars.
7. Habeas Corpus.
Proving that the State withheld evidence in violation of Brady, which case requires a prosecutor to disclose evidence favorable
to the defense when that evidence is material either to guilt or to punishment, generally establishes cause to bring an untimely
post-conviction habeas petition, and proving that the withheld evidence was material establishes the necessary
prejudice to bring an untimely petition.
proving that the withheld evidence was material establishes the necessary prejudice to bring an untimely petition.
8. Criminal Law.
For purposes of a Brady claim, if a defendant makes no request or only a general request for information, the evidence is
material when a reasonable probability exists that the result would have been different had it been disclosed; however, if the
defense request is specific, the evidence is material upon the lesser showing that a reasonable possibility exists of a different result
had there been disclosure.
9. Criminal Law.
For the purposes of a Brady claim, in determining the materiality of undisclosed evidence, the undisclosed evidence is
considered collectively and not item-by-item.
10. Criminal Law.
State violated Brady by not disclosing to defendant a statement made by jailhouse informant that defendant's accomplice during
robbery told him that he had planned the murder of the people in the store, even if statement included inadmissible hearsay;
statement was favorable to defendant in regards to the penalty phase of capital murder trial in that it provided mitigating evidence
characterizing defendant as a follower, the State failed to disclose statement after defendant specifically requested statements from
jailhouse informant while conducting discovery on direct appeal of his murder conviction and death sentence, and statement could
have been crucial to the jury's decision-making process in penalty phase given that it corroborated defendant's testimony that he
had fallen under accomplice's influence and that accomplice had instigated the crimes.
Evidence is generally admissible at a capital penalty hearing on any matter that the court deems relevant to sentence, whether or
not the evidence is ordinarily admissible.
12. Criminal Law.
State violated Brady by failing to disclose to capital murder defendant the prior criminal history contained in accomplice's
juvenile records because such history constituted mitigating evidence in that accomplice's extensive juvenile records showed his
criminal sophistication and lent credibility to defendant's theory that accomplice acted as the leader in committing the robbery and
murder.
13. Criminal Law.
For purposes of a Brady claim, the prosecution is charged with constructive knowledge and possession of evidence withheld by
other state agents, such as law enforcement officers.
14. Criminal Law.
For the purposes of defendant's Brady claim, State had constructive knowledge that witness at capital murder trial had a history
as a paid informant for the Utah police given that Utah police assisted in the investigation of the murder and initially supplied
information received from witness to the Las Vegas police; such history was material to the jurors' penalty determination in that
they might have given less weight to witness's testimony that defendant claimed to have gone on a killing spree, and thus, State
violated Brady by not disclosing evidence.
The Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an
invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by
harmless error review.
In reweighing a death sentence that was based in part on invalid aggravating circumstances, the supreme court disregards the
invalid aggravating circumstances and reweighs the remaining permissible aggravating and mitigating circumstances.
A harmless error analysis of a death sentence involves performing a new sentencing calculus to determine whether the error of
the invalid aggravating circumstance was harmless beyond a reasonable doubt.
Capital murder defendant's death sentence was required to be vacated and defendant was entitled to a new penalty hearing; jury
based death sentence in part on invalid aggravator that murder during robbery was committed at random and without motive, and
it was not clear beyond a reasonable doubt that jury would have imposed death penalty considering the remaining aggravators, the
mitigating evidence the jury heard, and the undisclosed mitigating evidence that the jury did not hear, which included evidence
that defendant's accomplice played a dominant role in the murder.
19. Criminal Law.
Capital murder defendant's claims in his second post-conviction relief petition, which should have been raised on his direct
appeal, were waived due to his failure to demonstrate good cause and prejudice for failing to raise them earlier. NRS 34.810(3).
20. Criminal Law.
Capital murder defendant's claim that his counsel on direct appeal was ineffective should have been raised in his first
post-conviction relief petition, and thus, defendant waived claim in his second petition. NRS 34.810.
21. Criminal Law.
Capital murder defendant was not statutorily entitled to post-conviction counsel at the time that he was convicted; thus, he was
not entitled to the effective assistance of post-conviction counsel. U.S. Const. amend. 6.
22. Criminal Law.
Capital murder defendant did not have a constitutional right to be present at his accomplice's trial proceedings after the cases
were severed.
23. Criminal Law.
Defendant was barred from raising claim in his reply brief regarding argument that supreme court did not apply its procedural
bars consistently in post-conviction relief petitions, where defendant did not raise issue in his opening brief and the State did not
raise issue in its answering brief. NRAP 28(c).
OPINION
In 1988, Edward Gordon Bennett and his accomplice Joseph Beeson attempted to rob
a clerk at a Stop N' Go Market in Las Vegas. Bennett shot and killed the clerk, and Beeson
shot but did not kill a customer. Bennett was convicted of murder and sentenced to death.
Bennett unsuccessfully sought relief on direct appeal and in a prior post-conviction
proceeding. In this second post-conviction proceeding, the district court granted Bennett's
petition in part by vacating his death sentence and granting him a new penalty hearing. The
State appeals from that part of the district court's order, and Bennett cross-appeals from that
part of the district court's order denying his remaining claims.
The district court concluded that Bennett did overcome the procedural bars to his
untimely, successive petition by demonstrating that the State violated the requirements of
Brady v. Maryland
1
and by further demonstrating that the district court in the first
post-conviction proceeding prevented Bennett's counsel from adequately investigating the
case. We conclude that the district court properly determined that the State violated Brady. In
addition, we conclude that the at random and without apparent motive aggravator is invalid
in this case. In our view, these combined errors seriously undermine the reliability of the
jury's sentencing determination. Therefore, we affirm that portion of the district court's order
directing a new penalty hearing. We also conclude that the district court properly declined to
grant relief on any of the remaining claims in Bennett's petition.
FACTS
On February 8, 1988, Edward Bennett purchased a handgun from a pawn shop in
Provo, Utah, and traveled to Las Vegas with Joseph Beeson. The next day, Bennett and
Beeson entered a Stop N' Go Market in Las Vegas. A customer, Derrick Franklin, entered
soon thereafter and went to the back of the store. Beeson placed a piece of candy on the
counter, as if he were making a purchase. As Michelle Moore, the store clerk, rang up the
candy, Bennett pulled out his gun and shot her in the face. She was killed instantly. Bennett
then gave the gun to Beeson. While Bennett jumped over the counter and unsuccessfully
attempted to open the cash register, Beeson approached Franklin.
__________

1
373 U.S. 83 (1963).
Beeson approached Franklin. Franklin pleaded for his life and then ran from the store as
Beeson shot at him. Franklin was struck in the leg. Bennett and Beeson chased him out on to
Maryland Parkway and then finally retreated. Franklin survived his wound.
On March 5, 1988, Bennett, who had returned to Utah, told his friend, Jeffrey
Chidester, about the murder. According to Chidester, Bennett bragged about his and Beeson's
killing spree. Chidester reported this to the Utah police, who contacted the Las Vegas
Metropolitan Police Department (LVMPD). Chidester was then told that he was entitled to a
reward for providing the information. He received a total of $32,000.
The Utah police obtained a warrant to search Bennett's house in Utah, where they
seized clothing and various writings. In Las Vegas, Bennett's fingerprints were found on the
Stop N' Go Market door and cash register counter. Police also determined that the gun used to
kill Michelle Moore was purchased by Bennett at a pawn shop in Utah.
Bennett was subsequently arrested and charged with attempted robbery with the use of
a deadly weapon, murder with the use of a deadly weapon, and attempted murder with the use
of a deadly weapon. Bennett was tried by a jury and was convicted of all counts.
At his penalty hearing, Bennett presented many witnesses, including a social worker
from an outpatient substance abuse center that Bennett had attended. She testified that
Bennett had problems with alcohol and drugs, including marijuana, LSD, and cocaine. She
further testified that he was influenced by his peers, suffered from depression, had suicidal
tendencies, and suffered from dyslexia. Bennett's former employer testified that Bennett was
hardworking, smart, nonproblematic, and dependable and that Bennett looked up to and
bragged about Beeson. The principal of Bennett's school testified that Bennett entered an
alternative program after ninth grade due to his dyslexia, that heavy metal music seemed to
lead Bennett in the wrong direction due to its hypnotic effect, that this music may have led
him to drugs, and that Bennett now wanted to be an example to other kids so they would not
make his same mistakes. Bennett's seminary school principal testified that Bennett was a
good student, had turned his life to God after his arrest, and wanted the principal to tell
Bennett's story to others to save them from the evils of hell. Bennett's brother testified that
Bennett had always been a very caring person but changed about a year before his arrest and
became distant, unkempt, and withdrawn. An expert in satanism and heavy metal music
analyzed songs that Bennett listened to before committing the crimes and testified that the
writings found in Bennett's room were not satanic in nature but similar to heavy metal lyrics.
Bennett stated in allocution that he had many problems in school which led him to
drugs. He said he was very influenced by Beeson and changed during their friendship.
and changed during their friendship. He listened to heavy metal songs and wrote similar
lyrics. He was not a devil worshiper but did toy with it on occasion, and he dealt drugs and
robbed to support his drug habit. He described the day of the crimes and stated that his plan
was to rob but not to kill, that he went to one store but moved on because it had bulletproof
glass and that he then decided on the Stop N' Go. He also claimed that he blacked out once
they reached the store. He apologized for what happened and stated that if he lived he could
help others.
Finally, Bennett's father testified that Bennett was an active, happy, and helpful youth.
Bennett had problems in school because of his dyslexia and dropped out after the tenth grade.
He always treated his family nicely and was never in any trouble until a year before his arrest
when he became friends with Beeson and his appearance and attitude changed. Bennett's
father also stated that his family was religious and that Bennett wanted to help others.
The State also presented many witnesses at the penalty hearing. Utah police detective
Gary Caldwell testified about his previous arrest of Bennett for possession of drugs and
paraphernalia. Two Utah police officers and two boys testified about an incident when
Bennett and Beeson were driving and Bennett shot a pellet gun at the two boys as they
walked on the street. The State also presented testimony of the officers who had executed the
search warrants in the instant case and recovered witchcraft books, handwritten poetry or
song lyrics discussing death and killing, and heavy metal music cassettes. A handwriting
expert testified that the poetry or lyrics were in Bennett's handwriting. He read some of the
writings, such as As I kill and kill again. Last, Jeffrey Chidester testified to what Bennett
told him about the crimes. Chidester admitted that he had ingested drugs after Bennett
confessed to him.
At the conclusion of the penalty hearing, the jury found four aggravating
circumstances: (1) in committing the murder, Bennett knowingly created a great risk of death
to more than one person; (2) the murder was committed while Bennett was engaged in the
commission of a burglary; (3) the murder was committed while Bennett was engaged in
attempted robbery; and (4) the murder was committed at random and without apparent
motive. The jury found three mitigating circumstances: (1) Bennett's lack of a criminal
history, (2) Bennett's youth, and (3) Bennett's alcohol and drug usage. The jury determined
that the aggravating circumstances outweighed the mitigating circumstances and rendered a
verdict of death.
On direct appeal, this court affirmed Bennett's judgment of conviction and death
sentence.
2
In November 1990, Bennett, in proper person, filed a timely petition for
post-conviction relief.
__________

2
See Bennett v. State, 106 Nev. 135, 787 P.2d 797 (1990) (Bennett I), overruled in part by Leslie v. Warden,
118 Nev. 773, 59 P.3d 440 (2002).
The district court appointed counsel to represent Bennett, but no further proceedings were
calendared. More than three years passed before Bennett's counsel filed a second document
raising additional claims. The district court dismissed Bennett's petition, he appealed, and this
court affirmed the district court's dismissal.
3

On July 7, 1998, Bennett filed a second post-conviction petition for a writ of habeas
corpus in the district court. The district court appointed the Federal Public Defender to
represent Bennett. The State opposed the petition on the grounds that it was successive and
untimely. The district court conducted several evidentiary hearings to determine if Bennett
could demonstrate good cause and prejudice to overcome the procedural bars. Bennett
claimed that the State had violated Brady, that his first post-conviction counsel was
ineffective in failing to assert an absence of mitigating evidence at his penalty hearing, and
that the district court erred in preventing first post-conviction counsel from investigating the
case.
The district court determined that Bennett had demonstrated good cause and prejudice
to overcome the procedural bars due to violations of Brady and due as well to the district
court's denial of his request for an investigator to assist prior post-conviction counsel. The
district court vacated Bennett's death sentence, granted a new penalty hearing, and
presumably dismissed the remainder of Bennett's claims. The State appeals the district court's
decision vacating Bennett's death sentence and ordering a new penalty hearing. Bennett
cross-appeals the denial of the remainder of his claims.
DISCUSSION
1. The invalid at random and without apparent motive aggravator
The jury found four aggravating circumstances: (1) in committing the murder, Bennett
knowingly created a great risk of death to more than one person; (2) the murder was
committed while Bennett was engaged in the commission of a burglary; (3) the murder was
committed while Bennett was engaged in attempted robbery; and (4) the murder was
committed at random and without apparent motive. On direct appeal, Bennett unsuccessfully
challenged the last three aggravators.
4
Bennett again challenges these aggravators, and we
conclude that the challenge to the at random and without apparent motive aggravator has
merit.
Bennett claims, based upon this court's recent ruling in Leslie v. Warden, that the
jury's finding of this aggravator was erroneous.
5

__________

3
Bennett v. State, 111 Nev. 1099, 901 P.2d 676 (1995).

4
See Bennett I, 106 Nev. at 141-43, 787 P.2d at 801-02.

5
118 Nev. 773, 59 P.3d 440.
The State relies, in response, upon the doctrine of the law of the case, noting that this court
considered and rejected this identical claim in Bennett's direct appeal. At oral argument
before this court, the State also argued that this aggravator was valid because Bennett and
Beeson were on a killing spree, which the State contends constitutes random, motiveless
conduct.
[Headnote 1]
Although Bennett challenged this aggravator on direct appeal, this court more recently
held in Leslie that our 1990 opinion affirming Bennett's conviction and sentence overstated
the applicability of this aggravator
6
to robbery-related killings.
7
We held in Leslie that the
at random and without apparent motive' aggravator is inappropriate when it is solely based
upon the fact that the killing was unnecessary to complete the robbery.
8
Our primary
concern was that such broad application ignored the plain meaning of the key words of the
aggravating circumstance: Typically, the victim is not selected randomly. And often a robber
has a discernible motive for killing someone who can identify him or who attempts to impede
the robbery.
9
Leslie consequently overruled our 1990 decision in Bennett's case on this
issue.
10
Under these circumstances, the doctrine of the law of the case cannot be applied; to
do so would unfairly impose a legal application upon Bennett which we expressly overruled,
citing to our published opinion disposing of his direct appeal.
11

[Headnote 2]
Bennett raises this claim in an untimely and successive post-conviction habeas
petition.
12
Therefore, he must demonstrate that good cause exists for raising this claim again
and that prejudice would result if the claim is not considered, or absent good cause, he must
show that a fundamental miscarriage of justice would result from this court's failure to
consider the claim.
13
In Leslie, we concluded that Leslie demonstrated a fundamental
miscarriage of justice because he was actually innocent of the at random and without
apparent motive' aggravator and a reasonable probability existed that absent the aggravator
the jury would not have imposed death.
__________

6
NRS 200.033(9).

7
See Leslie, 118 Nev. at 780, 59 P.3d at 445.

8
Id.

9
Id. at 781, 59 P.3d at 446.

10
See id.

11
See Pellegrini v. State, 117 Nev. 860, 885, 34 P.3d 519, 535-36 (2001) (recognizing this court's discretion
to revisit the wisdom of its legal conclusions when it determines that further discussion is warranted).

12
See NRS 34.726; NRS 34.810.

13
See NRS 34.810; Pellegrini, 117 Nev. at 886-87, 34 P.3d at 537; see also Mazzan v. Warden, 112 Nev.
838, 842, 921 P.2d 920, 922 (1996).
death.
14
Similarly, we conclude that the finding of the improper aggravator in this case,
combined with the prejudicial impact of the Brady violations identified below, so undermined
the reliability of the jury's sentencing determination that the application of procedural bars to
preclude consideration of Bennett's claim would amount to a fundamental miscarriage of
justice.
[Headnote 3]
The facts of this case do not support the finding that Bennett killed the store clerk at
random and without apparent motive. The State has shown only that Bennett unnecessarily
killed the clerk in connection with the attempted robbery. This is insufficient to prove that the
murder was committed at random and without apparent motive.
15
It is undisputed that
Bennett and Beeson chose their victim for a specific purposeto rob her. And the motive to
kill was apparentto complete the robbery and leave no witnesses. After shooting the clerk,
Bennett jumped over the counter and attempted to open the cash register. By shooting her, he
eliminated any resistance or obstruction on her part. The motive to eliminate witnesses is also
apparent. In addition to killing the clerk, Bennett and Beeson attempted to kill the only other
person in the store. The State also had evidence of this motive from a jailhouse informant,
discussed below, who reported that Beeson said he and Bennett intended to kill all witnesses.
16

At oral argument before this court, the State asserted that because Jeffrey Chidester
said that Bennett later claimed that he and Beeson were on a killing spree, the two indulged
in mindless violence and thus committed the murder at random and without apparent motive.
Considering the record as a whole, Bennett's boast to Chidester carries little weight. In
addition to the facts discussed above, the record shows that Beeson and Bennett cased other
stores prior to the Stop N' Go. They entered one of the stores but left because bulletproof
glass surrounded the cash register. This reflects purposeful, considerednot
randombehavior. And although, according to Chidester, Bennett also claimed that after the
crimes at the Stop N' Go he and Beeson went to other stores to shoot somebody, another
shooting never occurred. Thus, Bennett's subsequent boasting about a killing spree lacks
any specific facts to support it and falls far short of overcoming the facts establishing that he
and Beeson acted deliberately and with motive in murdering the store clerk.
Consequently, the record does not support the finding of this aggravator based upon
our reasoning in Leslie.
17
As we discuss below, we are unable to conclude beyond a
reasonable doubt that the jury would have returned a sentence of death without this
aggravating circumstance
__________

14
Leslie, 118 Nev. at 780, 59 P.3d at 445.

15
See id. at 780, 59 P.3d at 446.

16
See infra note 27 and accompanying text.

17
We are not asked to decide the validity of this aggravator under all circumstances, but it is conceivable that
a murder associated with a robbery or
we are unable to conclude beyond a reasonable doubt that the jury would have returned a
sentence of death without this aggravating circumstance and in the absence of the State's
Brady violationsviolations that prevented Bennett from presenting significant mitigating
evidence to the jury.
2. The State's appeal: Brady claims
The State contends that the district court erred in granting Bennett's petition based
upon the State's alleged violations of the disclosure requirements of Brady v. Maryland.
18
Because these issues involve both questions of fact and law, we have conducted a de novo
review of the district court's decision.
19

Bennett claims that the State violated Brady by failing to disclose to the defense
various exculpatory items of evidence. The district court found that the State violated Brady
by withholding evidence of a statement made by a jailhouse informant, but the district court's
order is not clear as to whether it found violations relating to any other items of evidence. We
conclude that violations occurred in regard to three items: the statement made by the jailhouse
informant, Beeson's criminal records, and information that a witness was a paid informant.
[Headnotes 4-7]
Brady and its progeny require a prosecutor to disclose evidence favorable to the
defense when that evidence is material either to guilt or to punishment.
20
[T]here are three
components to a Brady violation: the evidence at issue is favorable to the accused; the
evidence was withheld by the state, either intentionally or inadvertently; and prejudice
ensued, i.e., the evidence was material.
21
To raise a claim in an untimely and/or successive
post-conviction habeas petition, the petitioner has the burden of pleading and proving specific
facts that demonstrate good cause and prejudice to overcome the procedural bars.
22
Good
cause and prejudice parallel the second and third Brady components; in other words, proving
that the State withheld the evidence generally establishes cause, and proving that the withheld
evidence was material establishes prejudice.
23

__________
burglary could be committed at random and without apparent motive. For example, the inexplicable killing of
one of several robbery or burglary victims might qualify as a murder committed at random and without
apparent motive.

18
373 U.S. 83.

19
See Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000) (Mazzan II).

20
Id.

21
Id. at 67, 993 P.2d at 37.

22
See id.; see also NRS 34.726(1); NRS 34.810(3).

23
See Mazzan II, 116 Nev. at 66-67, 993 P.2d at 36-37.
[Headnotes 8, 9]
If a defendant makes no request or only a general request for information, the
evidence is material when a reasonable probability exists that the result would have been
different had it been disclosed.
24
However, if the defense request is specific, the evidence is
material upon the lesser showing that a reasonable possibility exists of a different result had
there been disclosure.
25
In addition, in determining its materiality, the undisclosed evidence
is considered collectively and not item by item.
26

A. Failure to disclose a jailhouse informant's statement, the accomplice's juvenile
record, and information that a witness was a paid informant
We consider first the State's claim that the district court erred in concluding that the
State had a duty, pursuant to Brady, to disclose the statement of Richard Perkins, a jailhouse
informant. The State argues that Perkins' statement was not favorable to the defense and
would not have changed the result. Bennett claims that the statement would have aided him
during the penalty hearing to show that Beeson was the leader and instigator and, in turn, to
persuade the jury to return a verdict less than death. We agree.
[Headnote 10]
In 1988, Perkins was an inmate in the Clark County Detention Center along with
Beeson. On October 3, 1988, after both the guilt and penalty phase of Bennett's trial had been
completed, but before Bennett's formal sentencing, the LVMPD interviewed Perkins
regarding information he had received from Beeson about the crimes at the Stop N' Go
Market. According to Perkins, Beeson said that he and Bennett were on drugs; they went into
the store with the intention to rob the clerk and had agreed to kill all witnesses in the store;
27
Bennett shot and killed the clerk; and Beeson shot the customer but did not kill him.
According to Perkins, Beeson also admitted that he planned the murder of the people in the
store and convinced Bennett to do the killing.
Under Brady, the first question is whether the evidence at issue is favorable to the
defense. In regard to the guilt phase of the trial, Perkins' statement was not favorable to the
defense because it indicated that Bennett killed the store clerk. However, in regard to the
penalty phase, the statement was favorable to Bennett. It provided mitigating evidence
characterizing Bennett as a follower with Beeson planning and instigating the murder and
convincing Bennett to participate.
__________

24
See id. at 66, 993 P.2d at 36.

25
See id.

26
See id. at 71, 993 P.2d at 39.

27
The State should also have disclosed this evidence because it was relevant to refute the aggravating
circumstance that the murder was random and without apparent motive.
Beeson planning and instigating the murder and convincing Bennett to participate.
The second question is whether the State withheld the evidence. The statement was
made after the trial was concluded and the jury had rendered its verdict of death, but before
Bennett was formally sentenced. If disclosed then, the fact of the statement would have
provided grounds for a new penalty hearing.
28
In 1990, after Bennett filed his direct appeal,
he specifically moved for discovery of statements made by an informant who, while in jail in
1988, received information from Beeson. The district court granted the discovery motion, but
the State never produced Perkins' statement. If it had been disclosed when this request was
made, the statement would have provided grounds for post-conviction habeas relief, as it does
now.
29
The State, of course, has an affirmative duty to provide favorable evidence, if
material, to a defendant even absent a request for the evidence.
30
Moreover, that duty exists
regardless of whether the State uncovers the evidence before trial, during trial, or after the
defendant has been convicted.
31

Bennett only discovered Perkins' statement in 1999 when he conducted an
investigation for his federal habeas petition. Therefore, the answer to the second question
under Brady is affirmative: the State did withhold the evidence from the defense. And as
explained above, the nondisclosure of the evidence also provides good cause for Bennett's
raising this issue for the first time in his instant habeas petition.
The third question is whether the withheld evidence was material. Because Bennett
made a specific request for this evidence, materiality is demonstrated if there is merely a
reasonable possibility that the jury would not have returned a verdict of death had it been
disclosed.
32
We conclude that this evidence was significant,
__________

28
See NRS 176.515 (providing that a new trial may be granted based on the ground of newly discovered
evidence).

29
It is not clear why Bennett moved for discovery in the district court during the direct appeal or whether that
court had the authority to grant the motion. But the operative fact is that Bennett communicated a specific
request for Brady evidence to the State at that time, regardless of whether formal discovery in the district court
was available.

30
See Lisle v. State, 113 Nev. 540, 547, 937 P.2d 473, 478 (1997), decision clarified on other grounds on
denial of rehearing, 114 Nev. 221, 954 P.2d 744 (1998); People v. Gonzalez, 800 P.2d 1159, 1206 (Cal. 1990).

31
See Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976) (stating that a prosecutor has the duty to bring to
the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At
trial this duty is enforced by the requirements of due process, but after a conviction the prosecutor also is bound
by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts
doubt upon the correctness of the conviction); accord Gonzalez, 800 P.2d at 1206.

32
See Mazzan II, 116 Nev. at 66, 993 P.2d at 36.
significant, and that there is not only a reasonable possibility, but there is also a reasonable
probability of a different result if it had been disclosed, particularly when it is considered
collectively with the other undisclosed evidence discussed below. Bennett argued in
mitigation that he was young and had fallen under Beeson's influence and that Beeson had
instigated the crimes. Absent Perkins' testimony, this claim rested mainly on Bennett's own
self-serving statement in allocution which the jurors were apt to easily disregard as nothing
more than an attempt to evade responsibility. Perkins' testimony as to Beeson's admission
would have corroborated Bennett and shown that Beeson himself acknowledged that he had
been the leader and Bennett the follower, lending Bennett much needed credibility. This
evidence could have been crucial in the jury's decision-making process.
[Headnote 11]
The State claims that Perkins' statement contains inadmissible hearsay and therefore
cannot be material. Because the declarant, Beeson, is dead and Perkins gave an inconsistent
statement in 1999 and no longer recalls some circumstances of Beeson's admissions, the State
argues that the original statement lacks corroborating circumstances clearly indicating its
trustworthiness. The State cites NRS 51.345(1), which requires such circumstances for the
admission of a statement tending to expose the declarant to criminal liability and offered to
exculpate the accused in a criminal case. We are unpersuaded by this argument. First,
evidence is generally admissible at a capital penalty hearing on any matter which the court
deems relevant to sentence, whether or not the evidence is ordinarily admissible.
33
But
more importantly, in attacking the statement's trustworthiness, the State relies on facts that
did not exist in 1988 when the LVMPD obtained it and when the State should have provided
it to Bennett. The State cannot now be heard to complain that since then Beeson has died and
Perkins has partially contradicted his original statement and forgotten some facts. The State's
failure in 1988 to disclose the statement deprived Bennett of an important opportunity now
lost to him to question Perkins, and possibly Beeson's other fellow jail inmates, if not Beeson
himself, regarding Beeson's admissions.
We therefore conclude that a reasonable probability exists that a jury would not have
imposed a penalty of death had it been able to consider this evidence. This is particularly so
when we consider that, as well, the jury relied upon an aggravator which was improper.
Consequently, Bennett has also established the prejudice required to overcome procedural
default.
__________

33
NRS 175.552(3); see also, e.g., Leonard v. State, 114 Nev. 1196, 1214, 969 P.2d 288, 299 (1998).
[Headnote 12]
The State also violated Brady when it failed to disclose the prior criminal history
contained in Beeson's juvenile records from Colorado, where he used the alias of Cass
Goodman, and from Utah. This was mitigating evidence, favorable to the defense. Beeson's
extensive juvenile records showed his criminal sophistication and lent credibility to Bennett's
theory that Beeson acted as the leader in committing the crimes. This evidence was also
material. As noted, undisclosed evidence is considered collectively and not item by item.
34
Had the jury learned of Beeson's juvenile record, as well as Perkins' statement, there is a
reasonable probability that the jury would not have imposed death.
Finally, the State failed to disclose to the defense that the Utah police had paid a
witness for the State, Jeffrey Chidester, $50 on each of four or five occasions for informant
work. After the murder, Bennett returned to Utah where he admitted the murder and robbery
to Chidester. Chidester relayed this information to the Utah police and testified at the guilt
and penalty phases of Bennett's trial, but the jury was never told that Chidester had a history
as a paid informant. After Bennett filed his federal habeas petition, he discovered that a Utah
police detective, Jerry Caldwell, had paid Chidester for prior informant work.
[Headnotes 13, 14]
The State argues that it lacked actual knowledge of the evidence, but the state
attorney is charged with constructive knowledge and possession of evidence withheld by
other state agents, such as law enforcement officers.'
35
In this case, a Utah police detective
was aware of the evidence. We conclude that it is appropriate to charge the State with
constructive knowledge of the evidence because the Utah police assisted in the investigation
of this crime and initially supplied the information received from Chidester to the LVMPD.
Moreover, Detective Caldwell, who knew of the payments to Chidester, testified at the guilt
and penalty phases of the trial but denied that Chidester was paid.
That Chidester was paid small amounts is not material in regard to the jury's finding
of guilt, and standing alone it would not be material in regard to the penalty phase. However,
we have considered this evidence along with the other undisclosed evidence in concluding
that the State withheld evidence material to the jurors' penalty determination. For example,
the jury might have given less weight to Chidester's testimony regarding the claimed "killing
spree" if the jury had information supporting the inference that Chidester could have been
tempted to give police exaggerated information
__________

34
See Mazzan II, 116 Nev. at 71, 993 P.2d at 39.

35
Jimenez v. State, 112 Nev. 610, 620, 918 P.2d 687, 693 (1996) (quoting Gorham v. State, 597 So. 2d 782,
784 (Fla. 1992)); see also Wade v. State, 115 Nev. 290, 986 P.2d 438 (1999).
claimed killing spree if the jury had information supporting the inference that Chidester
could have been tempted to give police exaggerated information in order to ingratiate himself
to the police and obtain benefits, monetary or otherwise.
In sum, under Brady these three instances of undisclosed evidence were collectively
material to Bennett's case in mitigation. Considering this undisclosed mitigating evidence in
conjunction with the invalid aggravating circumstance, we conclude that the district court
correctly vacated Bennett's death sentence and ordered a new penalty hearing.
B. The remaining Brady claims
Bennett also claims that the State violated Brady with respect to other items of
evidence, including: (1) Beeson's medical records, (2) Beeson's refusal to take a polygraph
test, (3) the prosecutor's conversations with an eyewitness, (4) a crime lab report regarding
gunpowder burns, and (5) a picture of a shoeprint. We conclude that the State did not violate
Brady in these respects. Bennett either fails to show that the State had a duty to disclose the
evidence or that he was prejudiced by the nondisclosure.
3. Reweighing/harmless error
[Headnotes 15-17]
[T]he Federal Constitution does not prevent a state appellate court from upholding a
death sentence that is based in part on an invalid or improperly defined aggravating
circumstance either by reweighing of the aggravating and mitigating evidence or by harmless
error review . . . .
36
In reweighing, this court disregards the invalid aggravating
circumstances and reweighs the remaining permissible aggravating and mitigating
circumstances.
37
A harmless error analysis involves performing a new sentencing calculus to
determine whether the error of the invalid aggravating circumstance was harmless beyond a
reasonable doubt.
38
Either analysis should produce the same result because both ask the
same question: Is it clear that absent the erroneous aggravator the jury would have imposed
death?
39

As addressed above, the at random and without apparent motive aggravator is
invalid. Remaining are three valid aggravators and three mitigating circumstances that the
jury specifically found. The remaining aggravators are: Bennett knowingly created a great risk
of death to more than one person; the murder was committed while Bennett was engaged in
the commission of a burglary; and the murder was committed while Bennett was engaged
in the attempted commission of a robbery.
__________

36
Clemons v. Mississippi, 494 U.S. 738, 741 (1990).

37
See State v. Haberstroh, 119 Nev. 173, 183, 69 P.3d 676, 683 (2003).

38
See id.

39
See id. at 183, 69 P.3d at 682-83; Leslie, 118 Nev. at 783, 59 P.3d at 447.
the murder was committed while Bennett was engaged in the attempted commission of a
robbery. The first aggravator is supported by sufficient evidence. The last two aggravators are
also supported by sufficient evidence but are essentially based on the same aspect of this
felony murder. The three mitigating circumstances are: no previous criminal history;
Bennett's youtheighteen at the time of the murder; and alcohol and drug usage. Also during
the penalty hearing, the jury heard testimony that Bennett was led in the wrong direction by
his fascination with heavy metal music and was influenced by Beeson as well as his other
peers. Evidence also showed he had dyslexia and other problems in school, exhibited a
potential for suicide, and showed signs of depression.
[Headnote 18]
Considering the remaining aggravators, the mitigating evidence that the jury heard,
and the undisclosed mitigating evidence that the jury did not hear, particularly the evidence
regarding Beeson's dominant role in the crimes, we cannot conclude beyond a reasonable
doubt that the jury would have imposed the death penalty in the absence of the erroneous
aggravator and the State's Brady violations. For this reason, we affirm the district court's
order vacating Bennett's sentence of death and ordering a new penalty hearing.
4. Bennett's cross-appeal: other claims
Bennett raises many other claims in his petition. Because Bennett's petition is
untimely filed and successive, he must demonstrate good cause to excuse his procedural
defaults and prejudice with respect to these claims, or he must show that failure to consider
these claims will result in a fundamental miscarriage of justice. Although the district court
stated in its order that Bennett's petition should be considered on the merits due to Brady
violations, it failed to specifically address or expressly deny Bennett's additional claims. For
our review, we assume that the district court denied those claims.
40

Bennett's petition below improperly raised claims previously addressed and rejected
on direct appeal. The doctrine of the law of the case prevents relitigation of these claims.
41
This doctrine cannot be avoided by a more detailed and precisely focused argument upon
reflection.
__________

40
We note that a district court's failure to address and specifically resolve in its written judgment each and
every claim presented in a petition can often present subsequent reviewing courts, both state and federal, with
unintended difficulties. Pursuant to NRS 34.830(1) and NRAP 4(b)(2), judgments or orders of the district courts
in post-conviction matters must contain specific findings of fact and conclusions of law supporting the
decision.

41
See Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975); cf. NRS 34.810(3).
upon reflection.
42
Bennett's claims in this respect are that the trial court improperly admitted
Bennett's writings and music into evidence, the State improperly provided money and other
inducements to a witness whose testimony was inherently incredible and prejudicial, the trial
court improperly instructed the jury at sentencing, the death penalty as administered in
Nevada does not satisfy constitutional standards, and the felony aggravators are
unconstitutional. Bennett has failed to demonstrate that we should reconsider these issues.
[Headnote 19]
Bennett's petition below also raised a number of claims that should have been raised
on direct appeal. These claims are waived pursuant to NRS 34.810(3) because Bennett failed
to demonstrate good cause and prejudice for failing to raise them earlier. These claims
include that the aggravating circumstance that Bennett knowingly created a great risk of death
to more than one person is invalid, that prosecutorial misconduct violated Bennett's right to a
fair trial, that the prosecutor improperly delegated his charging discretion to the victim's
family and police, that the district court erroneously failed to change the venue of the trial,
that the jury instructions failed to properly delineate the elements of the capital offense and
unconstitutionally minimized the State's burden of proof, that the jury instruction on
reasonable doubt was unconstitutional, that the trial court failed to make a constitutionally
reliable determination as to whether Bennett possessed the mental state of reckless
indifference to human life necessary to impose a death sentence, that the trial court
improperly admitted Beeson's writings into evidence, that the trial court improperly failed to
remove jurors for cause and failed to prevent the removal of a juror for cause, that Bennett
was deprived of an impartial trial tribunal, and that Bennett's conviction and sentence are
invalid due to the inadequacy of the charging documents. Bennett also claims that this court's
review on direct appeal and on appeal from his first petition for post-conviction relief was
inadequate. We do not address these claims because Bennett has not demonstrated good cause
and prejudice for failing to raise them earlier.
43

[Headnote 20]
Bennett claims that his counsel on direct appeal was ineffective for failing to raise the
above-mentioned claims. Bennett should have raised this claim in his first post-conviction
petition and has not demonstrated good cause or prejudice for his failure to do so.
44

__________

42
See Hall, 91 Nev. at 316, 535 P.2d at 799.

43
See NRS 34.810(3); NRAP 40(a).

44
See NRS 34.810.
Bennett claims that the district court prevented him from investigating his claims in
the first habeas proceeding when it granted his motion to hire an investigator but then denied
his habeas petition the next day. Bennett claims that the district court's actions amounted to
an impediment external to the defense and prejudiced him because an investigator would
have discovered additional mitigating evidence, namely, Bennett's neuropsychological
impairments, a head injury he sustained, physical and mental abuse he suffered as a child
from his parents and siblings, his attention deficit hyperactivity disorder, a family history of
alcoholism, explosiveness, violence, depression, and substance abuse, that Bennett once
saved a life, and other medical and psychological records of Bennett's family and of Beeson.
Bennett claims that had this mitigating evidence been presented to the jury he would not have
received a death sentence. Because Bennett's first post-conviction counsel waited over three
years before making a motion for funds to hire an investigator, we conclude that the district
court did not create an impediment external to the defense that would excuse the procedural
bars. Moreover, we express no opinion on the materiality of this evidence because Bennett
will have an opportunity to present relevant mitigating evidence at the new penalty hearing.
[Headnote 21]
Bennett claims that his first post-conviction counsel was ineffective for a multitude of
reasons. Bennett was not statutorily entitled to post-conviction counsel at the time that he was
convicted;
45
thus, he was not entitled to the effective assistance of post-conviction counsel.
46

[Headnote 22]
Bennett claims that he was denied his right to be present at critical stages of his trial
proceedings in violation of Gebers v. State.
47
First, Bennett claims that after his trial, several
hearings were conducted in his absence concerning the State's potential failure to disclose
material exculpatory evidence. In support of this claim, Bennett cites to a transcript of a
hearing conducted in Beeson's case. Bennett did not have a constitutional right to be present
at his accomplice's trial proceedings after the cases were severed.
__________

45
See 1991 Nev. Stat., ch. 556, 19, at 1754 (providing that the court may appoint counsel for an indigent
petitioner (emphasis added)).

46
See McKague v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996); Crump v. Warden, 113
Nev. 293, 303, 934 P.2d 247, 253 (1997); see also Bejarano v. Warden, 112 Nev. 1466, 1470 & n.1, 929 P.2d
922, 925 & n.1 (1996).

47
118 Nev. 500, 50 P.3d 1092 (2002) (holding that it is a violation of the post-conviction habeas statutes to
conduct an evidentiary hearing on the merits of a petition when the petitioner is not present).
Second, Bennett claims that he was not allowed to be present during post-conviction
proceedings where evidence was taken by the district court on whether his petition was
procedurally barred. Bennett cites to two 1994 hearings. At neither hearing did the district
court receive any evidence regarding the claims in Bennett's petition; thus, no Gebers
violation occurred. Next, Bennett cites to the district court's written order dismissing his first
petition in 1994. Again, Bennett fails to demonstrate that a Gebers violation occurred.
[Headnote 23]
Last, Bennett claims that this court has not applied its procedural bars consistently and
that applying the bars to him would violate his equal protection and due process rights.
Bennett did not make this argument in his opening brief, and the State did not raise the issue
in its answering brief. Bennett is therefore barred from raising this claim in his reply brief,
pursuant to NRAP 28(c), which requires reply briefs to be limited to new matters in the
answering brief. Consequently, we will not consider this claim.
48

CONCLUSION
We conclude that the finding of the at random and without apparent motive
aggravator was erroneous in this case. When considered in combination with the State's
Brady violations, particularly the State's failure to disclose evidence that Bennett's accomplice
played a dominant role in the crimes, we are unable to conclude beyond a reasonable doubt
that the jury would have returned a verdict of death in the absence of these errors. We
therefore affirm the district court's order vacating Bennett's sentence of death and ordering a
new penalty hearing.
49

Rose, Leavitt and Maupin, JJ., concur.
Gibbons, J., concurring in part and dissenting in part:
I concur that the majority's decision may be appropriate based upon the holding of this
court in Leslie v. Warden.
1
However, I respectfully dissent from the majority's conclusion
that we should address the merits of this case and affirm the district court's grant of a new
penalty hearing. It is undisputed that the petition before the court is successive, raising the
same grounds as the prior petition.
2
It is undisputed that the petition before the court comes
eight years after the statutory deadline set by the Legislature elapsed.
__________

48
We note, however, that the claim appears to be without merit. See Pellegrini, 117 Nev. 860, 34 P.3d 519.

49
The Honorable Miriam Shearing, Justice, did not participate in the decision of this matter.

1
118 Nev. 773, 59 P.3d 440 (2002).

2
NRS 34.810(2).
eight years after the statutory deadline set by the Legislature elapsed.
3
It is undisputed that
[o]ur determinations on direct appeal are the law of the case.
4

Despite these undisputed procedural bars, the majority desires to address the merits of
this appeal. I dissent as to those conclusions as well. Substantial evidence supported the at
random and without apparent motive aggravator and the jury's finding of a murder
independent from the robbery.
5
Bennett intended to go on a killing spree in addition to a
robbery spree.
6
His actions were premeditated and atypical of murders incidental to robbery.
Thus, I would reinstate the death penalty.
Successive petitions
NRS 34.810(2) requires dismissal of a petition that fails to allege new or different
grounds for relief. An exception to dismissal applies only if the district court determines
good cause and actual prejudice exist.
7

To show good cause,' a petitioner must demonstrate that an impediment external to
the defense prevented him from raising his claims earlier.
8
A petitioner must show that the
factual or legal basis for a claim was not reasonably available . . . or that some interference
by officials' made compliance impracticable.
9

Bennett claims that the State's numerous Brady v. Maryland
10
violations, combined
with ineffective assistance of post-conviction counsel, demonstrate good cause for excusing
the procedural defects. I disagree with the majority that the State violated Brady. Although
the district court may have failed to allow Bennett's first post-conviction counsel proper time
to investigate, I do not consider the failure an impediment external to the defense.
11
Bennett's counsel delayed three years before filing a supplemental petition.
__________

3
NRS 34.726.

4
Leslie, 118 Nev. at 784, 59 P.3d at 447-48.

5
See NRS 200.033(9).

6
The poetry seized at Bennett's home included the following: My thirst for blood is now calm, but it shall
rise again. My power is so strong I need to cause some death. I'm so [expletive omitted] powerful and my
reigning just begun as I kill and kill again. Death is rising from the air as the thunderbolts strike. Blood is
dripping from the wall. Someone gonna, someone's gonna die.' Bennett v. State, 106 Nev. 135, 138 n.1, 787
P.2d 797, 799 n.1 (1990).

7
NRS 34.810(3).

8
Pellegrini v. State, 117 Nev. 860, 886, 34 P.3d 519, 537 (2001).

9
Murray v. Carrier, 477 U.S. 478, 488 (1986) (quoting Brown v. Allen, 344 U.S. 443, 486 (1953)) (internal
citation omitted), quoted in Harris v. Warden, 114 Nev. 956, 960 n.4, 964 P.2d 785, 787 n.4 (1998).

10
373 U.S. 83 (1963).

11
Pellegrini, 117 Nev. at 886, 34 P.3d at 537.
petition. Despite filing the supplemental petition, Bennett's counsel did not request an
investigator until several months later.
Brady violations
[T]here are three components to a Brady violation: the evidence at issue is favorable
to the accused; the evidence was withheld by the state, either intentionally or inadvertently;
and prejudice ensued, i.e., the evidence was material.
12
A petitioner raising a Brady claim
in a successive post-conviction petition must prove good cause and prejudice to overcome the
procedural bars.
13

Bennett raised eight pieces of evidence the State allegedly withheld. However, he
presented specific evidence of the State's withholding on only four pieces. Of those, only two
pieces of evidence had potential to assist Bennett at his sentencing hearing. Neither of these
pieces of evidence, Richard Perkins' statement and the payment to Jeffrey Chidester, would
have changed the outcome of the penalty hearing. Bennett's failure to demonstrate how this
evidence would have changed the result of the penalty hearing makes his assertion of Brady
violations meritless.
Leslie v. Warden
14

The majority affirms the grant of a new penalty hearing for Bennett in part because of
the conclusion in Leslie that the at random and without apparent motive' aggravator is
misapplied to situations where the defendant unnecessarily kills another person in the course
of a robbery.
15
I disagree with the contention that the facts of this case are so analogous to
Leslie that the result must also be the same.
This court concluded in Leslie that to use the at random and without apparent
motive aggravator, the State must demonstrate that the defendant selected his victim
without a specific purpose or objective and his reasons for the killing are not obvious or
easily understood.
16
It is insufficient to merely show the defendant unnecessarily murdered
someone during a robbery.
17

Despite a jury's finding to the contrary, the court in Leslie held that insufficient
evidence existed to support the at random and without apparent motive aggravator.
18
Instead, the Leslie majority discerned that Leslie had motives that were not even
mentioned at trial.
__________

12
Mazzan v. Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000).

13
Id.; see also NRS 34.726(1); NRS 34.810(3).

14
118 Nev. 773, 59 P.3d 440 (2002) (4-3 decision).

15
Id. at 781, 59 P.3d at 446.

16
Id. at 782, 59 P.3d at 446.

17
Id. at 781-82, 59 P.3d at 446.

18
Id. at 782, 59 P.3d at 446.
ity discerned that Leslie had motives that were not even mentioned at trial.
19

I prefer the reasoning of the dissent in Leslie.
20
The Leslie dissent reviewed the
decision from the direct appeal that [e]vidence indicated that Leslie had received the
money and could have left the store unfettered, but killed [the clerk] anyway.'
21
The Leslie
dissent concluded that [n]othing has changed to warrant overturning that conclusion. If the
Legislature's intent were as clear as the majority suggests, it could have amended the statute
to invalidate the use of the at-random aggravator in robbery situations.
22

Here, Bennett's poetry indicates his need to cause some death.'
23
He also told a
friend about the killing spree' he and Joe Beeson were on.
24
Bennett was convicted of
murdering Michelle Moore without a specific purpose or objective and his reasons for the
killing are not obvious or easily understood.
25
Without any communication, Bennett simply
pulled out a .45 caliber handgun and shot Michelle Moore in the face. I cannot find a reason
for this murder that is obvious or easily understood.
26

Perhaps more importantly, the Leslie dissent recognized the lack of authority to
expand the fundamental miscarriage of justice standard to encompass invalidation of
aggravators.
27
We have recognized only two situations which meet this standard, where a
petitioner makes a colorable showing that he is actually either innocent or ineligible for the
death penalty.
28

The jury found four aggravating circumstances. Assuming, arguendo, that we
eliminated the at random and without apparent motive aggravator, three valid aggravating
circumstances remain. Thus, as the Leslie dissent concluded, no fundamental miscarriage of
justice exists which would permit this court to disregard procedural bars required by statute.
29

__________

19
See id.

20
Justice Shearing authored the dissent, with then-Chief Justice Young and Justice Agosti concurring.

21
Id. (Shearing, J., dissenting) (quoting Leslie v. State, 114 Nev. 8, 22, 952 P.2d 966, 976 (1998)).

22
Id. (Shearing, J., dissenting).

23
Bennett v. State, 106 Nev. 135, 138 n.1, 787 P.2d 797, 799 n.1 (1990).

24
Id. at 138, 787 P.2d at 798.

25
Leslie, 118 Nev. at 782, 59 P.3d at 446.

26
Id.

27
Id. at 786-87, 59 P.3d at 449 (Shearing, J., dissenting).

28
Id. (Shearing, J., dissenting).

29
Id. at 787, 59 P.3d at 449 (Shearing, J., dissenting).
Law of the case
The majority affirms the grant of a new penalty hearing based upon Leslie. Ironically,
the issues Bennett raises in his petition are identical to the ones rejected on direct appeal. In
Leslie, we stated that [o]ur determinations on direct appeal are the law of the case.
30
The
doctrine of the law of the case cannot be avoided by a more detailed and precisely focused
argument subsequently made after reflection upon the previous proceedings.
31

Bennett first filed a petition for post-conviction relief in 1990, alleging ineffective
assistance of counsel. After the district court appointed counsel for Bennett, no further
activity relative to this petition occurred for more than three years. In 1993, Bennett filed a
new petition alleging ineffective assistance of counsel and cumulative and prejudicial error.
This new petition was allegedly a supplement to the first petition.
The district court properly dismissed the new petition. We then allowed review of the
merits, despite agreeing with the State that the petition was procedurally barred, and affirmed
the district court's dismissal.
32
The majority concludes that Leslie applies here and that the
procedural bars do not. I dissent from that conclusion.
Becker, J., dissenting:
I respectfully dissent from the majority's conclusion that Bennett's second petition for
post-conviction relief was not successive and procedurally barred. Moreover, while I agree
with the majority's conclusion that Bennett is factually innocent of the at random and
without apparent motive aggravator pursuant to Leslie v. Warden,
1
Bennett has not met the
second prong of Leslie. In addition to demonstrating that the aggravator is inapplicable, Leslie
requires a finding that there is a reasonable probability that, absent the invalid aggravator, the
jury would not have imposed death.
2
I do not believe that the absence of the at random and
without apparent motive aggravator would have affected the jury's decision to impose a
sentence of death. Because I conclude that the petition is procedurally barred and does not fall
within the parameters of Leslie, I would reverse the judgment of the district court and
reinstate the death penalty.
Brady violations
I concur with the majority's conclusion that the State failed to disclose the 1988 signed
statement of informant Perkins and that the State can be charged with failing to disclose
that the Utah police paid Jeffery Chidester $50 as an informant on four or five occasions
that were unrelated to the Nevada crimes.
__________

30
Id. at 784, 59 P.3d at 447-48.

31
Hall v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975).

32
Bennett v. State, 111 Nev. 1099, 1103, 901 P.2d 676, 679 (1995).

1
118 Nev. 773, 59 P.3d 440 (2002).

2
Id. at 780, 59 P.3d at 445.
the State can be charged with failing to disclose that the Utah police paid Jeffery Chidester
$50 as an informant on four or five occasions that were unrelated to the Nevada crimes.
However, I disagree with the conclusion that the State violated Brady v. Maryland
3
by not
disclosing the co-defendant's juvenile records.
As to the Perkins statement, the issue is whether there is a reasonable possibility that
Bennett would have been granted a new penalty hearing on the basis of the statement because
a specific request for information was made under Brady. As to the informant payments, no
specific discovery request was made, so the standard is whether there is a reasonable
probability that a new penalty hearing would have been granted.
I conclude that a request for a new penalty hearing based on newly discovered
evidence is identical to the standard used for analyzing a motion to grant a new trial based
upon newly discovered evidence. In Sanborn v. State,
4
we set forth the standard for granting
a new trial based upon newly discovered evidence. The evidence must be:
[N]ewly discovered; material to the defense; such that even with the exercise of
reasonable diligence it could not have been discovered and produced for trial;
non-cumulative; such as to render a different result probable upon retrial; not only an
attempt to contradict, impeach, or discredit a former witness, unless the witness is so
important that a different result would be reasonably probable; and the best evidence
the case admits.
5

Even assuming that the Perkins statement meets all of the other criteria, it is
cumulative, and I conclude that there is not a reasonable possibility that a new penalty hearing
would have been granted as a result of its discovery. As to the informant payments, that
evidence would have been used for impeachment or to discredit a witness. In light of the fact
that the jury already heard that Chidester was an informant and was paid $32,000 in reward
money, I cannot conclude that a different result would be reasonably probable and a new trial
granted if the jury also learned he was paid approximately $250 as an informant in the past.
This is particularly true in light of the fact that Chidester's information regarding the crime
and the location of the murder weapon was corroborated by Bennett's fingerprints at the scene
of the crime and the identification of Bennett as the individual who returned the murder
weapon to a pawn shop after the murder. The same rationale applies to use of the information
to impeach Officer Caldwell. For these reasons, I conclude that a new penalty hearing would
not have been granted and materiality was not shown under Brady.
__________

3
373 U.S. 83 (1963).

4
107 Nev. 399, 812 P.2d 1279 (1991).

5
Id. at 406, 812 P.2d at 1284-85 (footnote omitted).
would not have been granted and materiality was not shown under Brady.
Fundamental miscarriage of justiceLeslie
This case is distinguishable from Leslie. In Leslie, there was no evidence that the
defendant entered the convenience store with the intent to shoot anyone. Moreover, although
Leslie shot and killed the clerk, he made no attempt to kill any of the other occupants and
witnesses to the robbery. Finally, unlike the instant case, this court, either on direct appeal or
on post-conviction relief, struck two of the four aggravators.
In contrast, Bennett is only factually innocent of one of the four aggravators. The
remaining aggravators, including that he endangered more than one person, remain valid. The
evidence supporting the stricken aggravator would also be admissible to support the other
three aggravators. Thus, in weighing mitigating versus aggravating circumstances, the jury
would still have heard evidence that Bennett and the co-defendant planned to commit
robberies because they were running low on funds and that they intended to kill any
witnesses. They would still have been able to consider the fact that Bennett and the
co-defendant chased after a witness in the attempt to eliminate him. Since the essential
evidence remains the same, I cannot conclude that there is a reasonable probability that the
jury, with the same aggravating and mitigating evidence, would not have imposed death
simply because the at random and without apparent motive aggravator was stricken.
Accordingly, for the reasons set forth above, I would reverse the judgment of the
district court and reinstate the death penalty.
__________
119 Nev. 615, 615 (2003) Clem v. State
JOSEPH CLEM, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 40008
KENNETH BRIDGEWATER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 40009
GERALD BRIDGEWATER and JAMES PLAYER, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 40028
December 30, 2003 81 P.3d 521
Consolidated appeals from orders of the district court denying post-conviction
petitions for writs of habeas corpus. Eighth Judicial District Court, Clark County; Lee A.
Gates, Judge.
Following affirmance of their convictions for first-degree kidnapping, extortion, and
mayhem, with sentence enhancement for use of deadly weapons, 104 Nev. 351, 760 P.2d 103
(1988), and the affirmance of the denial of petitions for writs of habeas corpus, 109 Nev.
1159, 865 P.2d 1166 (1993), petitioners again sought writs of habeas corpus. The district
court denied the petitions. Petitioners appealed. The supreme court held that due process did
not require the supreme court's decision in Zgombic v. State, 106 Nev. 571, 798 P.2d 548
(1990), which overruled a prior supreme court decision and thereby announced a new
non-constitutional rule narrowing the definition of deadly weapon, to be applied retroactively
to petitioners, whose convictions became final before Zgombic changed the law.
Affirmed.
Rehearing denied. 120 Nev. ___, 91 P.3d 35 (2004).
JoNell Thomas, Las Vegas, for Appellant Joseph Clem.
Christopher R. Oram, Las Vegas, for Appellant Kenneth Bridgewater.
J. Chip Siegel, Chtd., and Jay L. Siegel, Las Vegas, for Appellants Gerald
Bridgewater and James Player.
and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
119 Nev. 615, 616 (2003) Clem v. State
1. Criminal Law.
The law of the case doctrine holds that the law of a first appeal is the law of the case on all subsequent appeals in which the
facts are substantially the same.
2. Courts.
The supreme court will depart from its prior holdings only where it determines that they are so clearly erroneous that continued
adherence to them would work a manifest injustice.
3. Habeas Corpus.
A petitioner for writ of habeas corpus may overcome the one-year time bar, and the successive petition bar, with a sufficient
showing of good cause and actual prejudice. NRS 34.726(1), 34.810(2).
4. Habeas Corpus.
To establish good cause, as element for overcoming the one-year time bar and the successive petition bar, the petitioner for
writ of habeas corpus must show that an impediment external to the defense prevented his compliance with the applicable
procedural rules for petitioning for writ of habeas corpus. NRS 34.726(1), 34.810(2).
5. Habeas Corpus.
An allegation that the factual or legal basis for a claim was not reasonably available at the time of the procedural default may
establish good cause, as element for overcoming the one-year time bar and the successive petition bar to a petition for writ of
habeas corpus. NRS 34.726(1), 34.810(2).
6. Habeas Corpus.
Proper respect for the finality of convictions demands that the existence of new state-law claims, as basis for satisfying the good
cause element for overcoming the one-year time bar and the successive petition bar to a petition for writ of habeas corpus, must be
limited to previously unavailable constitutional claims. NRS 34.726(1), 34.810(2).
7. Habeas Corpus.
A petitioner for writ of habeas corpus cannot manufacture good cause, as element for overcoming one-year time bar and
successive petition bar, by arguing that supreme court's prior decisions were erroneous under the law that existed at the time of
those decisions. NRS 34.726(1), 34.810(2).
8. Habeas Corpus.
Absent good cause, a petitioner for writ of habeas corpus may defeat the one-year time bar and the successive petition bar only
by showing that he has suffered a fundamental miscarriage of justice, which requires a colorable showing that constitutional
error has resulted in the conviction of one who is actually innocent. NRS 34.726(1), 34.810(2).
Constitutional due process requires the availability of habeas relief when a state's highest court interprets for the first time and
clarifies the provisions of a state criminal statute to exclude a defendant's acts from the statute's reach at the time the defendant's
conviction became final. U.S. Const. amend. 14.
10. Criminal Law.
A change of law does not invalidate a conviction obtained under an earlier law.
11. Courts.
Supreme court's decision in Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990), which overruled supreme court's decision in
Clem v. State,
119 Nev. 615, 617 (2003) Clem v. State
State, 104 Nev. 351, 760 P.2d 103 (1988), and thereby replaced the functional test with the inherently dangerous test for
determining whether a weapon qualifies as a deadly weapon for purposes of sentence enhancement, announced a new
nonconstitutional rule of law rather than clarifying the law. Thus, due process did not require Zgombic to be applied retroactively
to defendants whose convictions became final before Zgombic changed the law by narrowing the definition of deadly weapon.
U.S. Const. amend. 14; NRS 193.165 (1994).
12. Courts.
A state court is free to choose the degree of retroactivity or prospectivity which it believes appropriate to its newly-announced
rule, so long as it gives federal constitutional rights at least as broad a scope as the United States Supreme Court requires.
13. Courts.
A state court is not required to make retroactive its new rules of state law that do not implicate constitutional rights, even where
its decisions overrule or reverse prior decisions and thereby narrow the reach of a substantive criminal statute.
14. Courts.
When a constitutional rule qualifies as new, it will apply retroactively in only two instances: (1) if the rule establishes that it is
unconstitutional to proscribe certain conduct as criminal or to impose a type of punishment on certain defendants because of their
status or offense, or (2) if it establishes a procedure without which the likelihood of an accurate conviction is seriously diminished.
OPINION
Per Curiam:
These are consolidated appeals from orders of the district court denying appellants'
post-conviction petitions for writs of habeas corpus. Appellants challenge their sentence
enhancements for the use of deadly weapons on the ground that they are entitled to the benefit
of the deadly-weapon definition set forth in Zgombic v. State.
1
Appellants rely primarily on
the United States Supreme Court decision of Fiore v. White
2
and the distinction in Bousley v.
United States
3
between the retroactivity rules applicable to decisions interpreting federal
criminal statutes and those applicable to decisions announcing constitutional rules of criminal
procedure. We conclude that appellants cannot avoid the law of the case, which upholds the
validity of appellants' sentence enhancements, and have failed to overcome the procedural
bars of NRS Chapter 34.
__________

1
106 Nev. 571, 798 P.2d 548 (1990).

2
531 U.S. 225 (2001).

3
523 U.S. 614 (1998).
119 Nev. 615, 618 (2003) Clem v. State
FACTS
On September 26, 1986, appellants Joseph Clem, Gerald and Kenneth Bridgewater,
and James Player were convicted pursuant to a jury trial of first-degree kidnapping, extortion
and mayhem.
4
The sentences for the crimes were enhanced, consistent with NRS 193.165,
for appellants' use of deadly weapons, i.e., a red-hot table fork and heated electric iron, to
burn the victim during the commission of the crimes.
5
At the time of appellants' crimes,
NRS 193.165 did not define deadly weapon, but required imposition of a sentence equal
and consecutive to the term of imprisonment prescribed by statute for the crime being
committed with the use of a firearm or other deadly weapon.
6

Appellants appealed to this court from their judgments of conviction, arguing, in part,
that simple household items not proven capable of inflicting death could not qualify as deadly
weapons under NRS 193.165.
7

On August 25, 1988, we affirmed appellants' convictions and sentences. In rejecting
their argument on the enhancement issue, we interpreted for the first time the meaning of
deadly weapon as that term is employed at NRS 193.165. We then adopted a functional
test, which considers how an instrument is used and the facts and circumstances of its use to
determine whether the instrument is a deadly weapon. Applying this test, we concluded that
appellants' use of the red-hot table fork and heated electric iron constituted the use of deadly
weapons.
8
We issued remittiturs in the direct appeals on September 13, 1988.
On May 15, 1989, appellants filed identical proper person petitions for
post-conviction relief, which the district court denied. We summarily dismissed the appeals
from the denials of these petitions.
9

On September 13, 1990, in Zgombic v. State,
10
we reexamined our decision in Clem
v. State and overruled its functional test, replacing it with a narrower test that required the
instrument used to be inherently dangerous to qualify as a deadly weapon under NRS
193.165.
11
We defined inherently dangerous to mean that the instrumentality itself, if
used in the ordinary manner contemplated by its design and construction, will, or is likely
to, cause a life-threatening injury or death.
__________

4
Codefendant James Cook was likewise convicted, but Cook is not a party to the instant proceedings and
warrants no further mention.

5
Clem v. State, 104 Nev. 351, 353-54, 760 P.2d 103, 104-05 (1988), overruled in part by Zgombic v. State,
106 Nev. 571, 798 P.2d 548 (1990).

6
See 1981 Nev. Stat., ch. 780, 1, at 2050.

7
Clem, 104 Nev. at 356, 760 P.2d at 106.

8
Id. at 356-57, 760 P.2d at 106-07.

9
Clem v. State, Docket No. 21422 (Order Dismissing Appeal, October 29, 1990).

10
106 Nev. 571, 798 P.2d 548.

11
Id. at 574, 798 P.2d at 549-50.
119 Nev. 615, 619 (2003) Clem v. State
the instrumentality itself, if used in the ordinary manner contemplated by its design and
construction, will, or is likely to, cause a life-threatening injury or death.
12

On December 13, 1990, appellants filed a proper person post-conviction petition for a
writ of habeas corpus in the Seventh Judicial District Court, claiming that Zgombic's
inherently dangerous test must be applied retroactively to their cases. On September 16,
1991, appellant Gerald Bridgewater also raised the same claim in an individually filed proper
person petition for a writ of habeas corpus in the First Judicial District Court. The district
courts denied the petitions, and on appeal to this court, the cases were consolidated.
13
On
December 23, 1993, in Bridgewater v. Warden,
14
we affirmed the denials of appellants'
petitions. We rejected their retroactivity argument on the merits, concluding that Zgombic
created a new, unforeseeable definition of deadly weapon' which is not of constitutional
moment.
15

In 1995, Zgombic's narrow definition of deadly weapon was superseded by
legislative amendment to NRS 193.165.
16
The amendment added a statutory definition of
deadly weapon, which incorporates both Clem's functional test and Zgombic's inherently
dangerous test. However, as we have recognized, the amendment applies only to crimes
committed on or after October 1, 1995.
17

It appears that after the legislative amendment, appellants, with the possible exception
of Kenneth Bridgewater, continued, unsuccessfully, to seek relief from federal courts as well
as from this court.
18

__________

12
Id. at 576-77, 798 P.2d at 551.

13
Bridgewater v. Warden, 109 Nev. 1159, 1161, 865 P.2d 1166, 1167 (1993).

14
Id. at 1159, 865 P.2d at 1166.

15
Id. at 1161, 865 P.2d at 1167 (citing Gier v. District Court, 106 Nev. 208, 789 P.2d 1245 (1990)).

16
1995 Nev. Stat., ch. 455, 1-2, at 1431. Prior to the 1995 amendment, the Legislature had made only
technical amendments to NRS 193.165, effective June 20, 1991, but made no substantive amendment in
response to Zgombic. See 1991 Nev. Stat., ch. 403, 6, 10, at 1059, 1061.

17
See 1995 Nev. Stat., ch. 455, 1-2, at 1431; Buff v. State, 114 Nev. 1237, 1242-43 n.2, 970 P.2d 564,
567 n.2 (1998); Thomas v. State, 114 Nev. 1127, 1146 n.4, 967 P.2d 1111, 1123 n.4 (1998).

18
Appellants have not provided this court with a full record of relevant litigation. We are aware of the
proceedings addressed at: Bridgewater v. Hardison, 100 F.3d 961, 1996 WL 640473 (9th Cir. 1996)
(unpublished decision), cert. denied, 520 U.S. 1172 (1997); Clem v. Angelone, 100 F.3d 961, 1996 WL 640474
(9th Cir. 1996) (unpublished decision), cert. denied, 520 U.S. 1172 (1997); Player v. State, Docket No. 28796
(Order Dismissing Appeal, July 26, 1996); and Player v. State, Docket No. 36724 (Order of Affirmance,
December 18, 2001).
119 Nev. 615, 620 (2003) Clem v. State
Finally, on October 9, 2001, appellants filed in the Eighth Judicial District Court the
post-conviction petitions for writs of habeas corpus at issue here. Each petition raised the
issue of whether appellants are entitled to the benefit of Zgombic's narrowed definition of
deadly weapon. The State opposed the petitions and asserted the law of the case doctrine,
laches, the time bar at NRS 34.726, and the successive petition bar at NRS 34.810(2). The
district court heard argument on the petitions and denied relief. The court entered its final
orders on October 11, 2002. Appellants now appeal from these orders.
19

DISCUSSION
[Headnotes 1, 2]
The law of the case doctrine holds that the law of a first appeal is the law of the case
on all subsequent appeals in which the facts are substantially the same.
20
In Clem, we ruled
that appellants' sentence enhancements for the use of a deadly weapon were valid. In
Bridgewater, we decided that Zgombic's new, narrower definition of deadly weapon was
not retroactive. These prior decisions now stand as the law of the case. We will depart from
our prior holdings only where we determine that they are so clearly erroneous that continued
adherence to them would work a manifest injustice.
21

[Headnote 3]
Additionally, appellants filed the petitions at hand more than thirteen years after this
court issued its remittiturs in the direct appeals, and they have previously raised and received
determinations on the merits of the claim that Zgombic's definition applies retroactively to
their cases. Thus, the one-year time bar at NRS 34.726 and the successive petition bar at NRS
34.810(2) apply here.
22
Appellants may overcome these procedural bars with a sufficient
showing of good cause and actual prejudice.
23

__________

19
Although appellants' notices of appeal were filed before the final orders were entered on October 11, 2002,
we conclude that we have jurisdiction to consider the correctness of these orders. See NRAP 4(b).

20
Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975).

21
See Arizona v. California, 460 U.S. 605, 618 n.8 (1983); cf. Leslie v. Warden, 118 Nev. 773, 779-80, 59
P.3d 440, 445-46 (2002) (recognizing that the law of the case may be revisited where the failure to do so would
work a fundamental miscarriage of justice).

22
Although the State also raises laches under NRS 34.800 and the equitable-laches doctrine of Hart v. State,
116 Nev. 558, 1 P.3d 969 (2000), the district court's order did not rely on laches to bar relief. Because we have
determined that appellants' claims are barred under the law of the case, NRS 34.726 and NRS 34.810, we need
not address whether NRS 34.800 may apply here. The equitable-laches doctrine recognized in Hart applies to
motions to withdraw a guilty plea and is inapplicable to petitions brought under NRS Chapter 34.

23
See NRS 34.726(1); NRS 34.810(3).
119 Nev. 615, 621 (2003) Clem v. State
[Headnotes 4-8]
To establish good cause, appellants must show that an impediment external to the
defense prevented their compliance with the applicable procedural rules.
24
A qualifying
impediment might be shown where the factual or legal basis for a claim was not reasonably
available at the time of any default.
25
In Kimmel v. Warden, this court opined, without
deciding, that new state-law claims might constitute good cause in this context.
26
However,
we now determine that proper respect for the finality of convictions demands that this ground
for good cause be limited to previously unavailable constitutional claims.
27
Further,
appellants cannot manufacture good cause, as they largely attempt to do here, by arguing that
this court's prior decisions were erroneous under the law that existed at the time of those
decisions.
28
Absent good cause, appellants may only defeat the statutory procedural bars by
showing that they have suffered a fundamental miscarriage of justice.
29
The fundamental
miscarriage of justice standard requires a colorable showing that constitutional error has
resulted in the conviction of one who is actually innocent.
30

Appellants primarily contend that this court erroneously held in Bridgewater that our
decision in Zgombic does not apply to their cases and that this error allows them to avoid the
procedural bars. Appellants rely mainly on Fiore v. White,
31
a recent opinion by the United
States Supreme Court. They assert that Fiore established new law and that this law governs
here. According to appellants, under Fiore retroactivity is not an issue here because Zgombic
simply clarified the law as it existed at the time of their convictions and therefore its stricter
definition of deadly weapon applies to their cases.
__________

24
See Passanisi v. Director, Dep't Prisons, 105 Nev. 63, 66, 769 P.2d 72, 74 (1989).

25
Harris v. Warden, 114 Nev. 956, 959-60 & n.4, 964 P.2d 785, 787-88 & n.4 (1998).

26
101 Nev. 6, 692 P.2d 1286 (1985).

27
See generally Engle v. Isaac, 456 U.S. 107 (1982). See also Reed v. Ross, 468 U.S. 1, 16 (1984) (holding
that where a constitutional claim is so novel that its basis was not reasonably available, a defendant has cause for
his default under state procedural rules). We note that whether a reasonable basis existed from which to develop
or construct a legal theory may involve reference to the tests for determining whether a rule is new for
retroactivity purposes, which is discussed infra. See Ross, 468 U.S. at 17-18.

28
See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003); Evans v. State, 117 Nev. 609,
643-44, 28 P.3d 498, 521 (2001); see also Isaac, 456 U.S. at 134.

29
See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001) (recognizing that a fundamental
miscarriage of justice will defeat the statutory procedural bars at NRS 34.726 and NRS 34.810).

30
See id.

31
531 U.S. 225.
119 Nev. 615, 622 (2003) Clem v. State
their cases. Appellants also argue that even if Zgombic announced new law that should be
subject to retroactivity analysis, our decision in Bridgewater failed to appreciate that Zgombic
made substantive law, requiring retroactive application under Bousley v. United States.
32

We conclude that appellants' efforts to overcome the procedural bars fail. As we
explain below, Fiore did not establish new law and does not govern here. Further, this court
did make new law in Zgombic, and our decision not to apply that law retroactively to final
convictions is sound.
33
Appellants' actual innocence claim fails because it mistakenly
assumes that constitutional error occurred and entitles appellants to Zgombic's definition.
The United States Supreme Court's decision in Fiore concerned a conviction for
violating a Pennsylvania statute that prohibited operating a waste facility without a permit.
The Pennsylvania Supreme Court declined review, and Fiore's conviction became final. Later,
the Pennsylvania Supreme Court reviewed the conviction of Fiore's codefendant, Scarpone,
interpreted the same state statutefor the first timeand held on nearly identical facts that
Scarpone had not violated the statute.
34
Based on the decision in Scarpone's case, Fiore
unsuccessfully sought collateral relief in state courts. He then brought a federal habeas corpus
action, and the federal district court granted the writ. But the Third Circuit reversed,
reasoning that state courts are under no [federal] constitutional obligation to apply their
decisions retroactively.'
35

The United States Supreme Court granted certiorari in part to decide when, or
whether, the Federal Due Process Clause requires a State to apply a new interpretation of a
state criminal statute retroactively to cases on collateral review.
36
To determine if that issue
was actually presented, the Court submitted a certified question to the Pennsylvania Supreme
Court asking whether its decision interpreting the statute not to apply to conduct like Fiore's
was a new interpretation, or whether it was, instead, a correct statement of the law when
Fiore's conviction became final.
37
The Pennsylvania Supreme Court replied:
Scarpone did not announce a new rule of law. Our ruling merely clarified the plain
language of the statute . . . . Our interpretation . . . in Scarpone
__________

32
523 U.S. 614.

33
We conclude that appellants' petitions are procedurally barred. We discuss the substance of the
retroactivity issues because they are integral to appellants' claims of good cause, prejudice and fundamental
miscarriage of justice.

34
531 U.S. at 226-27 (citing Commonwealth v. Scarpone, 634 A.2d 1109, 1112 (Pa. 1993)).

35
Id. at 227-28 (quoting Fiore v. White, 149 F.3d 221, 222 (3d Cir. 1998)).

36
Id. at 226.

37
Id.
119 Nev. 615, 623 (2003) Clem v. State
terpretation . . . in Scarpone furnishes the proper statement of law at the date Fiore's
conviction became final.
38

The United States Supreme Court then held that Fiore's case present[ed] no issue of
retroactivity because, in Scarpone's case, the state court merely clarified what the statute
meant at the time of Fiore's conviction. Thus, Scarpone was not new law.
39
But as a
consequence, Fiore stood convicted for conduct that the state criminal statute, as properly
interpreted, did not prohibit.
40
As the United States Supreme Court's precedents made clear,
Fiore's conviction violated the Federal Due Process Clause, which forbids a state to convict a
person of a crime without proving the elements of the crime beyond a reasonable doubt.
41

Although appellants strenuously argue that the law stated in Fiore was unavailable at
the time of their earlier petitions and thus provides good cause to overcome the procedural
bars, we disagree. The Supreme Court did not announce new law in Fiore; it merely held that,
consistent with the Court's precedents, Fiore could not be convicted without proof of each
element of a crime beyond a reasonable doubt.
42

[Headnotes 9, 10]
We read Fiore to hold only that constitutional due process requires the availability of
habeas relief when a state's highest court interprets for the first time and clarifies the
provisions of a state criminal statute to exclude a defendant's acts from the statute's reach at
the time the defendant's conviction became final.
43
Fiore does not undermine the rule that
[a] change of law does not invalidate a conviction obtained under an earlier law.
44
Even
considering Fiore, a change in the law properly remains subject to retroactivity rules.
__________

38
Id. at 228 (quoting Fiore v. White, 757 A.2d 842, 848-49 (Pa. 2000)).

39
Id.

40
Id.

41
Id. at 228-29 (citing Jackson v. Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364
(1970)).

42
Id.; see also Kleve v. Hill, 243 F.3d 1149, 1151 (9th Cir.) (Fiore does no more than to reiterate the
principle stated in Jackson, 443 U.S. 307), cert. denied, 534 U.S. 948 (2001).

43
We recognize that, in Nevada, relevant state procedural bars must be applied in these circumstances but
could be overcome by a showing of actual innocence under the statute, as properly interpreted. Cf. Pellegrini,
117 Nev. at 886 & n.116, 34 P.3d at 536 & n.116 (acknowledging that application of statutory procedural bars is
mandatory); Bousley, 523 U.S. at 621-24 (recognizing that where claim under new decision interpreting federal
statute has been defaulted, procedural bars apply but may be defeated by showing of actual innocence).

44
Kleve, 243 F.3d at 1151 (citing Pulley v. Harris, 465 U.S. 37, 42 (1984); Wainwright v. Stone, 414 U.S.
21, 23-24 (1973); LaRue v. McCarthy, 833 F.2d 140, 142-43 (9th Cir. 1987)).
119 Nev. 615, 624 (2003) Clem v. State
retroactivity rules.
45
We held in Bridgewater that Zgombic's definition of deadly weapon
did not apply to appellants' convictions, which were already final at the time we decided
Zgombic, because the definition was new, unforeseeable . . . [and] not of constitutional
moment.
46
Our decision that Zgombic announced new law is consistent with our
understanding of the definition of a new rule.
47
Moreover, by deciding that Zgombic
announced new law, we determined, a fortiori, that Zgombic announced a change in (versus a
clarification of) the law.
48

The lack of intervening substantive amendment to NRS 193.165 in the time between
our decisions in Clem and Zgombic does not bolster appellants' claim that under Fiore this
court could not have changed the law in deciding Zgombic. Indeed, in its certified question to
the Pennsylvania Supreme Court in Fiore, the United States Supreme Court explicitly
contemplated that a state supreme court could make new law even in interpreting a statute for
the first time.
49
And Bunkley v. Florida,
50
another recent United States Supreme Court
opinion, demonstrates that the lack of any substantive amendment to NRS 193.165 before we
decided Zgombic is not critical.
In Bunkley, the Supreme Court revisited the issues presented in Fiore. Bunkley had
been convicted of a 1986 armed burglary under a Florida statute that enhanced the degree of
burglary where a defendant is armed with a dangerous weapon. The statute excepted the
common pocketknife from the dangerous weapon definition. That language had remained
unchanged since 1901. On direct appeal, Bunkley specifically argued that a pocketknife with
a blade of less than four inches was a common pocketknife. In 1989, a Florida appellate
court affirmed his conviction and sentence.
51
In 1997, the Florida Supreme Court, in L.B. v.
State,
52
interpreted the meaning of the common pocketknife exceptionfor the first
timeand held that a pocketknife with a blade of 3 inches plainly fell within the
exception.
__________

45
See State v. Klayman, 835 So. 2d 248, 251 (Fla. 2002).

46
Bridgewater, 109 Nev. at 1161, 865 P.2d at 1167.

47
See Colwell v. State, 118 Nev. 807, 819, 59 P.3d 463, 472 (2002) (defining new rule for the purpose of
retroactivity analysis on collateral review, and noting previous definition includes when the decision
announcing [the rule] overrules precedent (citing Hubbard v. State, 112 Nev. 946, 948 n.1, 920 P.2d 991, 993
n.1 (1996))), cert. denied, ___U.S. ___, 124 S. Ct. 462 (2003).

48
Cf. Chapman v. LeMaster, 302 F.3d 1189, 1196-97 & n.4 (10th Cir. 2002) (equating creation of a new
rule with changing the law for purposes of Fiore analysis), cert. denied, 538 U.S. 980 (2003).

49
531 U.S. at 226.

50
538 U.S. 835 (2003).

51
Id. at 836-37; id. at 844-45 (Rehnquist, C. J., dissenting).

52
700 So. 2d 370, 373 (Fla. 1997).
119 Nev. 615, 625 (2003) Clem v. State
for the first timeand held that a pocketknife with a blade of 3 inches plainly fell within
the exception. Bunkley unsuccessfully sought state post-conviction relief, arguing that he was
entitled to the benefit of the L.B. decision. The Florida Supreme Court concluded that L.B.
did not apply retroactively because under Florida law only major changes of constitutional
law applied retroactively and L.B. was merely an evolutionary refinement in the law.
53

The United States Supreme Court granted certiorari and remanded, concluding that
the Florida courts erred by not addressing whether the L.B. decision means that at the time
Bunkley was convicted, he was convicted of a crimearmed burglaryfor which he may not
be guilty.
54

[A]s Fiore holds, retroactivity is not at issue if the Florida Supreme Court's
interpretation of the common pocketknife exception in L.B. is a correct statement of
the law when [Bunkley's] conviction became final. . . . Fiore requires that the Florida
Supreme Court answer whether, in light of L.B., Bunkley's pocketknife of 2 1/2 to 3
inches fit within [the Florida statute's] common pocketknife exception at the time his
conviction became final.
55

Notably, the United States Supreme Court recognized that even though Florida's statutory
language excepting common pocketknives had not been changed since 1901, the Florida
Supreme Court might have changed this law, not merely clarified it, when it construed the
statute. Specifically, the United States Supreme Court stated:
Ordinarily, the Florida Supreme Court's holding that L.B. constitutes a change
inrather than a clarification ofthe law would be sufficient to dispose of the Fiore
question. By holding that a change in the law occurred, the Florida Supreme Court
would thereby likewise have signaled that the common pocketknife exception was
narrower at the time Bunkley was convicted.
56

[Headnote 11]
Thus, it is clear that under Fiore and Bunkley, a state's highest court may, by its first
interpretation of a criminal statute's provisions, either change or clarify the law. It follows
that where a state's highest court departs from its own previous interpretation of a statute, the
new decision may also constitute either a change or a clarification of the law even though the
statutory language was not changed.
__________

53
Bunkley, 538 U.S. at 840.

54
Id. at 838 n.*.

55
Id. at 840 (citation omitted).

56
Id. at 841.
119 Nev. 615, 626 (2003) Clem v. State
changed.
57
Where a change in decisional law has occurred, the only question under Fiore is:
when did the change occur, before or after the defendant's conviction became final? Our
decision in Zgombic changed the law after appellants' convictions became final. Accordingly,
Fiore's due process considerations do not control here.
Finally, appellants contend that even if Zgombic announced new law and retroactivity
rules should determine that law's application, our decision in Bridgewater was wrong.
Specifically, appellants contend that Bridgewater erred in failing to distinguish between the
retroactivity analysis for new rules of procedural law and that for new rules of substantive
law. Appellants argue that because Zgombic's deadly-weapon definition made substantive
law, it must apply to their cases.
[Headnotes 12, 13]
We reject appellants' claim that the alleged error in Bridgewater is reason to depart
from the law of the case or constitutes good cause or a fundamental miscarriage of justice.
Appellants ignore the reality that, as a state court, we are free to choose the degree of
retroactivity or prospectivity which we believe appropriate to the particular rule under
consideration, so long as we give federal constitutional rights at least as broad a scope as the
United States Supreme Court requires.'
58
Therefore, this court is not required to make
retroactive its new rules of state law that do not implicate constitutional rights.
59
This is true
even where our decisions overrule or reverse prior decisions to narrow the reach of a
substantive criminal statute.
60
That is, we may determine that such decisions, though we
ultimately overrule them, were law none the less for intermediate transactions.'
61

__________

57
Cf. Chapman, 302 F.3d at 1197-98 & n.4 (holding that where New Mexico's highest court had interpreted
state criminal statute, and then later reinterpreted statute to add mens rea element, the reinterpretation could
properly be treated by the New Mexico courts as a change in the law, and distinguishing Fiore as involving the
decision of a state's highest court interpreting a statute for the first time); see also Dixon v. Miller, 293 F.3d 74,
79 (2d Cir.) (recognizing that Fiore addresses circumstance where state's highest court interprets state statute for
the first time), cert. denied, 537 U.S. 955 (2002).

58
Colwell, 118 Nev. at 818, 59 P.3d at 471 (quoting State v. Fair, 502 P.2d 1150, 1152 (Or. 1972)).

59
See Harris, 465 U.S. at 42; LaRue, 833 F.2d at 143.

60
See Stone, 414 U.S. at 23-24; Chapman, 302 F.3d at 1196-99; LaRue, 833 F.2d at 141-43; see also
Jackson v. State, 925 P.2d 1195, 1197 (N.M. 1996). But cf. Stevens v. Warden, 114 Nev. 1217, 1221, 969 P.2d
945, 948 (1998) (recognizing that retroactivity of judicial decisions which broaden the reach of criminal statutes
is limited by ex post facto guidelines); Hernandez v. State, 118 Nev. 513, 530, 50 P.3d 1100, 1112 (2002) ( A
judicial interpretation of a statute may be retroactively applied if it is both authoritative and foreseeable.'
(emphasis added) (quoting Kreidel v. State, 100 Nev. 220, 222, 678 P.2d 1157, 1158 (1984))).

61
Stone, 414 U.S. at 24 (quoting Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364
(1932)).
119 Nev. 615, 627 (2003) Clem v. State
At the time we decided Zgombic and Bridgewater, our retroactivity analysis followed
the multi-factored approach outlined by the United States Supreme Court in a series of
decisions led by Linkletter v. Walker.
62
Despite the procedural-rule focus of these decisions,
63
we applied the same analysis to determine the retroactivity of both procedural and
substantive law,
64
whether made before or after a conviction became final.
65
Consistent
with this approach, in Bridgewater, we applied the directive that [n]ew rules of law apply
prospectively unless they are rules of constitutional law, and then they are applied
retroactively only under certain circumstances.
66

We are mindful that our 1993 Bridgewater decision, with its continued reliance on the
Linkletter analysis, did not acknowledge that the United States Supreme Court had departed
from the Linkletter approach and adopted a retroactivity scheme that turned primarily on the
timing of the new rule in relation to the finality of the conviction.
67
But as we explain, this
reliance on Linkletter did not result in any error.
The Court's modern approach for cases not yet final, stated in Griffith v. Kentucky,
68
requires that new constitutional rules of criminal procedure, i.e., new rule[s] for the conduct
of criminal prosecutions, be applied retroactively to all cases, state or federal, pending on
direct review or not yet final. We have recognized that Griffith's approach applies to new
constitutional rules of criminal procedure made before a conviction becomes final.
__________

62
See, e.g., Franklin v. State, 98 Nev. 266, 269 & n.2, 646 P.2d 543, 544-45 & n.2 (1982) (citing Linkletter
v. Walker, 381 U.S. 618, 627 (1965); Tehan v. Shott, 382 U.S. 406 (1966)); Gier v. District Court, 106 Nev.
208, 212, 789 P.2d 1245, 1248 (1990) (relying on Franklin); Buffington v. State, 110 Nev. 124, 127, 868 P.2d
643, 645 (1994) (relying on Franklin and Gier).

63
See generally Johnson v. New Jersey, 384 U.S. 719, 726-27 (1966) (recognizing that Johnson v. New
Jersey, like Linkletter and Tehan v. Shott, involved retroactivity of constitutional rules of criminal procedure);
Stovall v. Denno, 388 U.S. 293, 296-97 (1967) (similar).

64
See, e.g., Gier, 106 Nev. at 212, 789 P.2d at 1248 (addressing new rule involving notice to target of grand
jury proceedings); Buffington, 110 Nev. at 127, 868 P.2d at 645 (addressing decision interpreting reach of
criminal restitution statute); Klosterman v. Cummings, 86 Nev. 684, 688, 476 P.2d 14, 17 (1970) (stating that
under Linkletter analysis, changes in law, whether substantive or procedural may be accorded prospective
application).

65
See generally Franklin, 98 Nev. at 269 & n.2, 646 P.2d at 544-45 & n.2 (discussing retroactivity in
relation to finality of conviction); see also Teague v. Lane, 489 U.S. 288, 302-03 (1989) (plurality opinion)
(discussing Supreme Court's application of Linkletter approach on direct and collateral review).

66
109 Nev. at 1161, 865 P.2d at 1167 (citing Gier, 106 Nev. at 212, 789 P.2d at 1248).

67
See United States v. Johnson, 457 U.S. 537 (1982); Griffith v. Kentucky, 479 U.S. 314 (1987); Teague,
489 U.S. 288; Sawyer v. Smith, 497 U.S. 227 (1990). See generally Colwell, 118 Nev. at 816-17, 59 P.3d at
469-70 (recognizing United States Supreme Court's replacement of retroactivity analysis).

68
479 U.S. at 328.
119 Nev. 615, 628 (2003) Clem v. State
criminal procedure made before a conviction becomes final.
69
In Richmond v. State,
70
we
also adopted Griffith's retroactivity requirement for new rules of state law made before a
conviction is final, providing the new-rule issue is preserved in district court.
[Headnote 14]
Teague v. Lane
71
sets forth the United States Supreme Court's current retroactivity
analysis for cases which became final before the new rule is made. Under Teague, new
constitutional rules of criminal procedure will not apply retroactively to cases that have
become final before the rules are announced unless they fall into one of two narrow
exceptions.
72
In Colwell v. State,
73
we adopted for Nevada a modified Teague approach,
which more strictly construes the meaning of a new rule and more liberally defines the two
exceptions to the usual rule of nonretroactivity. Under Colwell, when a constitutional rule
qualifies as new, it will apply retroactively in only two instances: (1) if the rule establishes
that it is unconstitutional to proscribe certain conduct as criminal or to impose a type of
punishment on certain defendants because of their status or offense; or (2) if it establishes a
procedure without which the likelihood of an accurate conviction is seriously diminished.
74
Therefore, on collateral review under Colwell, if a rule is not new, it applies retroactively; if it
is new, but not a constitutional rule, it does not apply retroactively; and if it is new and
constitutional, then it applies retroactively only if it falls within one of Colwell's delineated
exceptions.
We consider our current retroactivity approaches in Colwell and Richmond
appropriate to guide future questions on the retroactivity of our own new decisions, whether
they interpret substantive provisions of criminal statutes or announce procedural rules.
However, this evolution in retroactivity law is of no consequence to and provides no relief for
appellants. Although we decided Colwell after Zgombic (1990) and Bridgewater (1993), we
recognized in Colwell that Nevada is merely required to adhere to the minimum requirements
of Teague (1989). Both Teague and Colwell require limited retroactivity on collateral review,
but neither upset the usual rule of nonretroactivity for rules that carry no constitutional
significance.
__________

69
See, e.g., Johnson v. State, 118 Nev. 787, 801-02, 59 P.3d 450, 460 (2002); Doyle v. State, 116 Nev. 148,
157, 995 P.2d 465, 470-71 (2000).

70
118 Nev. 924, 929, 59 P.3d 1249, 1252 (2002).

71
489 U.S. 288.

72
See Sawyer, 497 U.S. at 241-42 (citing Saffle v. Parks, 494 U.S. 484, 486, 495 (1990); Penry v. Lynaugh,
492 U.S. 302, 330 (1989); Teague, 489 U.S. at 311-13 (plurality opinion)).

73
118 Nev. at 819-20, 59 P.3d at 470-72.

74
Id. at 820, 59 P.3d at 472.
119 Nev. 615, 629 (2003) Clem v. State
significance. Our decision in Zgombic did not create a new constitutional rule; consequently,
no error stemmed from our continued reliance on the Linkletter approach in Bridgewater.
75

Appellants mistakenly rely on the United States Supreme Court's decision in Bousley
v. United States
76
for the proposition that Nevada courts are bound to retroactively apply our
decisions interpreting substantive provisions of Nevada's criminal statutes. In Bousley, the
Court held that Bousley, who had been convicted of using a firearm in relation to a drug
trafficking crime in violation of 18 U.S.C. 924(c)(1), could pursue in habeas a claim under
Bailey v. United States,
77
which was decided after Bousley's conviction was final. Bailey
held that 18 U.S.C. 924(c)(1)'s use prong requires the government to show active
employment of the firearm.
78
The Court rejected the argument that Bousley's claim was
barred by Teague, stating that there was no new constitutional principle involved, and that
because Teague applies only to procedural rules, it is inapplicable to the situation in which
[the Supreme] Court decides the meaning of a criminal statute enacted by Congress.
79

Appellants do not demonstrate that Bousley provided a new basis upon which to
construct a claim. Further, we think Bousley's rule for United States Supreme Court decisions
interpreting federal statutes can be understood as correlative to the rule reiterated in Fiore for
state court decisions clarifying state statutes. That is, in Bousley, the Supreme Court
implicitly indicates that its decisions which interpret the substantive provisions of federal
statutes are to be regarded as clarifications of the law. However, we have already determined
that Fiore is not controlling here. Additionally, Bousley addresses only the retroactivity of
United States Supreme Court decisions interpreting the meaning of federal criminal statutes.
It does not bind this court. Nor does it undermine our choice to apply the same retroactivity
approach to both decisions announcing new procedural rules and decisions newly interpreting
the substantive provisions of state criminal statutes.
In sum, appellants have failed to demonstrate any error in the law of the case, and
have also failed to show good cause for their delayed and successive claims or a fundamental
miscarriage of justice. Thus, they cannot avoid the applicable state procedural bars.
__________

75
See Chapman, 302 F.3d at 1196-99 (upholding New Mexico's similar continued application of Linkletter
analysis).

76
523 U.S. 614.

77
516 U.S. 137, 144 (1995).

78
Bousley, 523 U.S. at 616-18.

79
Id. at 620.
119 Nev. 615, 630 (2003) Clem v. State
CONCLUSION
For the reasons stated above, we conclude that appellants' claims are precluded by the
law of the case and are procedurally barred pursuant to the provisions of NRS Chapter 34.
Accordingly, we affirm the district court's orders denying relief on appellants' petitions.
80

__________
119 Nev. 630, 630 (2003) Meridian Gold v. State, Dep't of Taxation
THE MERIDIAN GOLD COMPANY, Appellant, v. THE STATE OF NEVADA ex rel.
DEPARTMENT OF TAXATION; NEVADA TAX COMMISSION; COUNTY OF
NYE; and COUNTY OF MINERAL, Respondents.
No. 39596
December 30, 2003 81 P.3d 516
Appeal from a judgment of the district court affirming a Nevada Department of
Taxation tax deficiency determination. Second Judicial District Court, Washoe County;
Connie J. Steinheimer, Judge.
After Tax Commission revoked gold mining company's accelerated depreciation grant
because company continued to produce gold after proposed mine closure date, Commission
assessed company $860,628.57 in taxes. Gold mining company petitioned for judicial review.
The district court affirmed. Company appealed. The supreme court, Gibbons, J., held that (1)
cyanide heap leaching constituted mining operation, and (2) Commission did not abuse its
discretion in revoking mining company's accelerated depreciation.
Affirmed.
Paul D. Bancroft, Incline Village, for Appellant.
Brian Sandoval, Attorney General, and Joshua J. Hicks, Deputy Attorney General,
Carson City, for Respondents Department of Taxation and Nevada Tax Commission.
Cheri K. Emm, District Attorney, and Paul G. Yohey, Deputy District Attorney,
Mineral County, for Respondent Mineral County.
Robert S. Beckett, District Attorney, and Peter L. Knight and Marla Zlotek, Deputy
District Attorneys, Nye County, for Respondent Nye County.
__________

80
The Honorable Myron E. Leavitt, Justice, did not participate in the decision of this matter.
1. Taxation.
Cyanide heap leaching, a method of extracting precious metals from previously extracted ore, constituted a mining operation,
for purposes of statute requiring mining operators using accelerated depreciation schedules to pay additional taxes if they do not
cease their mining operations on date specified, in view of fact that mining company extracted roughly 45,000 ounces of gold from
about three billion pounds of ore during period after proposed mine closure date. NAC 362.100, 362.160.
2. Taxation.
Tax Commission did not act arbitrarily or capriciously in revoking gold mining company's accelerated depreciation under
regulation providing that mine operators who fail to cease operations on date of proposed closure pay difference between net
proceeds taxes using straight-line method of depreciation and amount paid using accelerated method, where mining company
applied for accelerated depreciation but failed to comply with regulations when it failed to cease mining operations on specified
date of closure, and Commission merely placed company on same depreciation schedule as rest of mining industry. NAC
362.160(2).
3. Taxation.
Tax Commission's depreciation regulations, which placed entire mining industry on twenty-year depreciation schedule, were
consistent with the statute's requirement that the Commission consider the property's probable life when calculating depreciation.
NAC 362.120(3)(g).
1

OPINION
By the Court, Gibbons, J.:
This is an appeal from a judgment of the district court affirming a Nevada Department
of Taxation tax deficiency determination. The Nevada Tax Commission originally granted
appellant Meridian Gold Company's application to use an accelerated depreciation schedule
based on Meridian's assertion that it was closing its mine. The Commission later revoked the
accelerated depreciation grant because Meridian continued to produce gold through cyanide
heap leaching after the closure date. The Commission assessed Meridian $860,628.57 in taxes
because Meridian failed to terminate its mining operations. Meridian argues that the district
court erred in affirming the Commission's decision to uphold the tax deficiency. To resolve
this issue, we must analyze the meaning of a mining operation under NAC 362.160, which
requires mining operators using accelerated depreciation schedules to pay additional taxes if
they do not cease their mining operations.
We conclude that the plain meaning of the phrase mining operation includes
extracting precious metals from earth. Thus, cyanide heap leaching is a mining operation,
and the district court did not err in affirming the requirement that Meridian pay additional
taxes.
__________

1
The Honorable Archie E. Blake, Judge of the Third Judicial District Court, was designated by the Governor
to sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4.
cyanide heap leaching is a mining operation, and the district court did not err in affirming the
requirement that Meridian pay additional taxes.
FACTS
Meridian is a mining company that operated Paradise Peak Mine. On March 7, 1991,
Meridian applied for accelerated depreciation of its assets under NAC 362.100 to 362.160,
which allow mining operators to accelerate their assets' depreciation if mining operations
cease. On several occasions, Meridian represented to the Commission that it would close the
mine in mid-1993. Based on Meridian's representations, the Commission granted Meridian
accelerated depreciation of all its leasehold improvements and fixed equipment over a
three-year period from 1990 to 1993.
In 1993, Meridian laid off most of its mine employees and shut down its mill.
However, from mid-1993 until 1995, Meridian produced 45,000 or 47,000 ounces of gold
through heap leach pads at the site. Discovering that Meridian continued to extract gold after
mid-1993, when Meridian reported that the mine would close, the Commission imposed
additional taxes, penalties, and interest on Meridian. The total assessed tax was
$1,257,993.75.
2

Meridian appealed the Commission's decision through the tax agency. After
considering the evidence and conducting a hearing, the hearing officer decided in the
Commission's favor and upheld the tax imposition. The Commission eventually waived the
interest and penalties. Then Meridian unsuccessfully appealed the hearing officer's decision
and ultimately filed a petition for judicial review.
The district court remanded the case to the Commission to determine the definition of
mine closure under NAC 362.160. The Commission responded as follows:
Mine closure for purposes of the accelerated depreciation contemplated in NAC
362.160 is the cessation of operations of the mine. Cessation of operations
contemplates no further production of minerals through operation, reduction,
beneficiation or any other treatment used by the mine operator . . . . The production and
reporting of any amount of gold (minerals) after the stated date of mine closure is
inconsistent with the cessation of operation of a mine.
The Commission also stated that the definition was to apply only to Meridian and not
to any other taxpayer. The district court adopted the Commission's definition and upheld the
deficiency tax.
__________

2
The base tax was $860,628.57 with a penalty of $58,849.31 and interest of $338,515.87.
DISCUSSION
Meridian's main argument on appeal is that the Commission's decision to revoke the
accelerated depreciation schedule was arbitrary and capricious. When we review an
administrative decision, we must review the evidence presented to the agency in order to
determine whether the agency's decision was arbitrary or capricious and was thus an abuse of
the agency's discretion.'
3
An abuse of discretion occurs when the decision is not supported
by substantial evidence.
4
Substantial evidence is that which a reasonable mind might
accept as adequate to support a conclusion.'
5

Mine closure
[Headnote 1]
Meridian argues that NAC 362.100 to 362.160 should be construed in Meridian's
favor because they contain no definition for mine closure. According to Meridian, it
understood mine closure not to include cyanide heap leaching for purposes of receiving
accelerated depreciation.
No specific definition of mining operations or mine closure exists in NAC
362.100 to 362.160. The construction of a statute is a question of law subject to de novo
review.'
6
We have stated that words in a statute will generally be given their plain
meaning, unless such a reading violates the spirit of the act, and when a statute is clear on its
face, courts may not go beyond the statute's language to consider legislative intent.
7
We
have further held that we must construe statutory language to avoid absurd or unreasonable
results.
8
Rules of statutory construction apply to administrative regulations.
9

NAC 362.160 states in part that [i]f a mining operator who has been allowed to
depreciate assets using the accelerated method fails to cease operations on the date of
closure specified in the notice required by NAC 362.100
__________

3
Secretary of State v. Tretiak, 117 Nev. 299, 305, 22 P.3d 1134, 1137-38 (2001) (quoting Clements v.
Airport Authority, 111 Nev. 717, 721, 896 P.2d 458, 460 (1995)).

4
Tighe v. Las Vegas Metro. Police Dep't, 110 Nev. 632, 634, 877 P.2d 1032, 1034 (1994).

5
Id. (quoting State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986)).

6
California Commercial v. Amedeo Vegas I, 119 Nev. 143, 145, 67 P.3d 328, 330 (2003) (quoting County of
Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998)).

7
Pellegrini v. State, 117 Nev. 860, 873-74, 34 P.3d 519, 528 (2001).

8
Id. at 874, 34 P.3d at 528.

9
Miller's Pond Co. v. Rocque, 802 A.2d 184, 190 n.7 (Conn. App. Ct. 2002); U.S. Outdoor Advertising Co.
v. Indiana D.O.T., 714 N.E.2d 1244, 1256 (Ind. Ct. App. 1999).
[i]f a mining operator who has been allowed to depreciate assets using the accelerated
method fails to cease operations on the date of closure specified in the notice required
by NAC 362.100 or at any time reopens the mining operation, he shall . . . [p]ay to the
department within 30 days after demand the difference between the net proceeds taxes
using the straight-line method of depreciation over a 20-year period and the amount
paid using the accelerated method for any year in which the accelerated method was
used.
(Emphases added.) We determine the question to be: what is the plain meaning of
operations or mining operation?
Mining is the process or business of working mines.
10
This definition suggests that
if the action performed is part of the process or business of working mines, it must be a part
of mining. Another definition of mining is [t]he process or business of extracting from the
earth the precious or valuable metals, either in their native state or in their ores.
11
Under the
definition, extracting gold from earth is mining. The American Law of Mining also considers
heap leaching to be mining because it explains the process under the heading Basic Mining
Technology.
12

We must understand what heap leaching is to determine whether it is within the
regulation's plain meaning. Cyanide heap leaching is a method of extracting precious metals
from previously extracted ore. The process involves moving large quantities of ore onto a
huge pad where cyanide placed over the ore removes the precious metals over a period of
time. In the instant case, approximately .03 ounces of gold were within each ton of ore. After
almost two years and moving about three billion pounds of ore, Meridian extracted 45,000 or
47,000 ounces of gold. This is the only process in which Meridian engaged from 1993 to
1995.
Traditional mining involves drilling into the earth and extracting precious metals. It
differs from heap leaching in two significant ways. First, traditional mining includes digging
into the ground and either stripping the ground of metals or tunneling deep within the earth.
Heap leaching entails moving previously extracted ore. Second, traditional mining requires
drilling machines and explosives, whereas heap leaching utilizes chemicals to remove the
precious metals from the ore. Although still a mining process, heap leaching does not involve
digging, tunneling, or explosives.
We conclude that heap leaching is a mining operation contemplated under NAC
362.160. Absent a specific definition, the plain meaning of mining operation must include
heap leaching because {1) heap leaching is a basic mining technology and
__________

10
Webster's Ninth New Collegiate Dictionary 756 (1985).

11
Black's Law Dictionary 898 (5th ed. 1979).

12
1 American Law of Mining 1.07[6] (The Rocky Mountain Mineral Law Foundation ed., 2d ed. 2003).
cause (1) heap leaching is a basic mining technology and (2) precious metal is extracted from
earth. Additionally, it would be absurd not to consider heap leaching as a mining operation
because it cannot be anything else but mining. Therefore, the district court properly affirmed
the Commission's decision to revoke Meridian's accelerated depreciation schedule for
continued mining operations after the specified date of closure.
13

Arbitrary and capricious
[Headnote 2]
Meridian contends that the Commission's decision to revoke its approval of
Meridian's application for accelerated depreciation was arbitrary and capricious. We have
stated that [w]hen determining the validity of an administrative regulation, courts generally
give great deference' to an agency's interpretation of a statute that the agency is charged with
enforcing.
14
However, we will not hesitate to declare a regulation invalid when the
regulation violates the constitution, conflicts with existing statutory provisions or exceeds the
statutory authority of the agency or is otherwise arbitrary and capricious.
15

NAC 362.160(2), part of the Commission's regulations, provides that a mine operator
who fails to cease operations on the date of closure shall pay the difference between the net
proceeds taxes using the straight-line method of depreciation over a 20-year period and the
amount paid using the accelerated method for any year in which the accelerated method was
used. Under this language, the Commission may change the depreciation schedule from an
accelerated schedule to a twenty-year schedule when the mining operator fails to cease
operations. As a standard, the regulations impose a twenty-year depreciation schedule on the
entire mining industry.
16
Accelerated depreciation is available only to mining operators that
comply with the provisions of NAC 362.100 to 362.160. Those regulations provide many
requirements that a mining operator must meet to qualify for accelerated depreciation of its
assets. Some of these requirements include filing a petition with the Commission, giving
public notice that the mine will close within thirty-six months, publishing the notice in the
company's annual report, providing copies of those notices to the Commission,
__________

13
The district court determined that NAC 362.100 to 362.160 contained no definition of mine closure and
remanded the case to the Commission for a hearing on the proper definition of mine closure. On December 24,
2001, the Commission defined mine closure. We hold that the district court erred in remanding the case for a
hearing since mining operation is unambiguous; however, the error was harmless because the Commission
defined mine closure consistently with mining operation.

14
State, Div. of Insurance v. State Farm, 116 Nev. 290, 293, 995 P.2d 482, 485 (2000).

15
Id.

16
NAC 362.040.
months, publishing the notice in the company's annual report, providing copies of those
notices to the Commission, filing a copy of a plan with the Commission for productive use of
the land after the mining has stopped, and ceasing mining operations on the date of closure
specified in the filed notice.
Companies that do not comply with NAC 362.100 to 362.160 remain on the standard
twenty-year depreciation schedule. Meridian applied for accelerated depreciation, but failed
to comply with the regulations. Specifically, Meridian failed to cease mining operations on
the specified date of closure.
17
The Commission then imposed the standard twenty-year
depreciation schedule on Meridian. In doing so, the Commission followed its regular practice.
Placing Meridian on the same depreciation schedule as the rest of the mining industry was not
an arbitrary or capricious act.
Administrative rulemaking
[Headnote 3]
Meridian argues that the Commission's twenty-year depreciation schedule is arbitrary
and is not authorized by its statutory mandate. Meridian contends that NRS 362.120(3)(g)
specifically requires the Commission to consider the probable life of a mine's equipment
when calculating depreciation. NRS 362.120(3)(g) states:
The net proceeds are ascertained and determined by subtracting from the gross yield . . .
[d]epreciation of the original capitalized cost of the machinery, equipment, apparatus,
works, plants and facilities mentioned in paragraph (e). The annual depreciation charge
consists of amortization of the original cost in a manner prescribed by regulation of the
Nevada tax commission. The probable life of the property represented by the original
cost must be considered in computing the depreciation charge.
The statute authorizes the Commission to prescribe the manner of depreciation by regulation
and also states that the probable life of the property must be considered in computing
depreciation. The Commission promulgated the twenty-year depreciation schedule that is
currently in use and the provisions for accelerated depreciation.
We will not readily disturb an administrative construction that is within the language
of the statute.
18
Great deference will be afforded to an administrative body's interpretation
when it is within the statutory language; moreover, the Legislature's acquiescence in an
agency's reasonable interpretation indicates that the interpretation is consistent with
legislative intent.
__________

17
NAC 362.160.

18
State ex rel. Tax Comm'n v. Saveway, 99 Nev. 626, 630, 668 P.2d 291, 294 (1983).
an agency's reasonable interpretation indicates that the interpretation is consistent with
legislative intent.
19

Giving appropriate deference to the Commission's construction of NRS 362.120(3)(g),
we conclude that the Commission's depreciation regulations are consistent with the statute's
requirement that the Commission consider the property's probable life when calculating
depreciation. First, the Commission has assigned different depreciation periods to different
types of property and equipment.
20
Second, the regulations provide that the Commission
may adjust the allowable depreciation period if the mining company petitions the
Commission and demonstrates that the property's expected life is other than that provided in
the general depreciation regulation.
21
It thus appears that the Commission does consider the
property's expected life in setting the depreciation schedules.
Moreover, the Legislature has acquiesced in the Commission's interpretation because
the statute remains unaltered.
22
The regulation Meridian contests has been in effect since
1991.
23
The regulation imposing a twenty-year depreciation schedule on the entire mining
industry has been in effect since 1980.
24

CONCLUSION
Heap leaching is a mining operation under NAC 362.100 to 362.160. The
Commission did not abuse its discretion by revoking Meridian's accelerated depreciation
when Meridian violated the provisions of NAC 362.160. We have reviewed all of Meridian's
other arguments, and we conclude that they are without merit. Accordingly, we affirm the
judgment of the district court.
Agosti, C. J., Rose and Becker, JJ., and Blake, D. J., concur.
Shearing, J., concurring:
I agree that the Nevada Department of Taxation is correct in determining that the
Meridian Gold Company owed additional taxes based on straight-line depreciation rather than
the accelerated depreciation originally approved. However, I disagree that the phrase mining
operation is unambiguous and clearly includes cyanide heap leaching. As the majority
acknowledges, traditionally, mining involves digging into the ground and extracting precious
metals.
__________

19
Id.

20
NAC 362.040(1)-(5).

21
NAC 362.040(8).

22
Saveway, 99 Nev. at 630, 668 P.2d at 294.

23
NAC 362.160.

24
NAC 362.040.
Cyanide heap leaching does not involve digging into the ground and extracting precious
metals. The material being treated is already above the earth. Meridian closed the mine itself
and concluded that its mining operation was completed.
However, considering the fact that the material being leached for precious metals was
originally extracted from the mine and was an integral part of the process of gaining the
precious metals, the Nevada Department of Taxation reasonably interpreted the heap leaching
process to be part of a mining operation. As the majority indicates, this court will give
deference to an administrative body's interpretation when it is within the statutory language.
1
Therefore, the judgment of the district court should be affirmed.
Maupin, J., concurring:
The Commission granted Meridian the right to accelerate its depreciation of Paradise
Peak Mine leasehold improvements and fixed equipment for state tax purposes based upon a
projected mine closure date in mid-1993. In its application for this tax treatment, Meridian
repeatedly stressed that exhaustion of ore bodies necessitated the 1993 closure. However,
between 1993 and 1995, Meridian continued gold production from previously extracted ore
through the cyanide heap leaching process. In my view, that process constituted mining
operations after the projected closure date; accordingly, Meridian was not entitled to
accelerated depreciation based upon closure in mid-1993, and the Commission properly
assessed an additional tax based upon straight-line depreciation.
1

__________
119 Nev. 638, 638 (2003) Harris Assocs. v. Clark County Sch. Dist.
HARRIS ASSOCIATES, a Nevada Corporation, Appellant, v. CLARK COUNTY SCHOOL
DISTRICT, a Political Subdivision of the State of Nevada, Respondent.
No. 38140
December 30, 2003 81 P.3d 532
Appeal from a district court order denying a motion to compel arbitration. Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
The supreme court held that: (1) state statute required arbitration of disputes under
public works contracts, and (2) the statute did not violate district's state constitutional right to
trial by jury.
__________

1
State ex rel. Tax Comm'n v. Saveway, 99 Nev. 626, 630, 668 P.2d 291, 294 (1983).

1
See NAC 362.160.
Morse & Mowbray and Christopher H. Byrd, Las Vegas, for Appellant.
Lefebvre & Associates, Chtd., and Brad R. Kohler II, Alan J. Lefebvre, and Richard A.
Prato, Las Vegas, for Respondent.
Supreme court reviews issues of statutory construction de novo.
2. Statutes.
Supreme court would not attach weight to county school district's interpretation of statute addressing arbitration of disputes
under public works contracts, where district was merely one public agency to which the statute applied; district was not impliedly
clothed with power to construe the statute. NRS 338.150(1) (2001).
3. Statutes.
When the words of the statute have a definite and ordinary meaning, the court will not look beyond the plain language of the
statute, unless it is clear that this meaning was not intended.
4. Statutes.
If a statute is ambiguous, the plain meaning rule of statutory construction is inapplicable, and the drafter's intent becomes the
controlling factor in statutory construction.
5. Statutes.
An ambiguous statutory provision should be interpreted in accordance with what reason and public policy would indicate the
legislature intended.
6. Statutes.
The court construes statutes to give meaning to all of their parts and language, and the court will read each sentence, phrase, and
word to render it meaningful within the context of the purpose of the legislation.
7. Statutes.
When construing a statute, no part of the statute should be rendered meaningless.
8. Statutes.
A statute's language should not be read to produce absurd or unreasonable results.
9. Arbitration.
Statute requiring state agencies, political subdivisions, and municipal corporations to include in public works contracts a
clause permitting arbitration of disputes with contractors mandates arbitration of disputes. NRS 338.150(1) (2001).
10. Jury.
Legislature, by enacting statute requiring state agencies, political subdivisions, municipal corporations, and districts to arbitrate
disputes under public works contracts, waived county school district's right to jury trial in dispute with construction contractor,
and thus, the statute did not violate district's state constitutional right to trial by jury. Const. art. 1, 3; NRS 338.150(1) (2001);
NRCP 38(a).
OPINION
Per Curiam:
Clark County School District (CCSD) contracted with appellant Harris Associates for
construction work. When disputes arose between the parties, Harris requested that those
disputes be submitted to arbitration. The CCSD rejected Harris's request, and Harris filed an
action to compel arbitration, arguing that NRS 338.150(1)
1
mandates that the parties
arbitrate their disputes. The district court denied Harris's motion to compel arbitration, and
Harris appeals. We reverse the district court's order.
FACTS
In 1998, the CCSD, a political subdivision of the State of Nevada, contracted with
Harris for the Basic High School Addition Project. Several disputes arose between the CCSD
and Harris. Harris submitted claims for additional compensation to the CCSD, but the CCSD
rejected the claims. Provision 4.5.1 of the parties' contract provided:
Any controversy . . . arising out of or related to the Contract, or the breach thereof shall
be settled by arbitration, unless the Owner, at it's [sic] sole option, within twenty (20)
days of receiving a request for arbitration rejects arbitration by notifying the
Contractor by certified mail, return receipt requested.
Pursuant to this provision, Harris sent the CCSD a letter requesting that their disputes be
arbitrated. The CCSD rejected arbitration.
Harris sought declaratory relief in the Clark County District Court to determine
whether the CCSD was obligated to arbitrate the claims in accordance with section 4.5.1 of
the parties' contract and NRS 338.150(1). After Harris's motion to compel arbitration was
denied by the district court, Harris appealed.
DISCUSSION
On appeal, Harris maintains that NRS 338.150(1) mandates arbitration as the means
to resolve disputes that arise in public works construction projects. The CCSD responds that
NRS 338.150(1) merely requires that public works contracts include a clause that allows
arbitration as a means of dispute resolution but does not require arbitration.
__________

1
NRS 338.150(1) requires the inclusion of a clause permitting arbitration of disputes arising between a state
agency or subdivision and a contractor in the construction, alteration or repair of public works. The
Legislature amended NRS 338.150(1) during the 2003 legislative session. 2003 Nev. Stat., ch. 401, 30, at
2438. The amendments took effect on July 1, 2003. Id. 47, at 2450. The 2003 amendments did not alter the
substantive effect of the provisions at issue in this case.
quire arbitration. The CCSD further contends that if NRS 338.150(1) does require arbitration,
then the statute violates its right to a jury trial under Article 1, Section 3 of the Nevada
Constitution and NRCP 38(a). Harris counters that the Nevada Legislature waived the
CCSD's right to a trial by jury.
Interpretation of NRS 338.150(1)
At the time that the parties entered their contract, NRS 338.150(1) provided:
Any agency of this state and any political subdivision, municipal corporation or
district and any public officer or person charged with the drafting of specifications for
the construction, alteration or repair of public works, shall include in the specifications
a clause permitting arbitration of a dispute arising between the agency and a contractor
if the dispute cannot otherwise be settled.
The CCSD argues that NRS 338.150(1) merely requires that it include a clause in its
public works contracts that permits it to arbitrate disputes at its sole discretion. Harris argues
that the statute requires the CCSD to submit to binding arbitration. Because the parties posit
two reasonable interpretations of the statute, we conclude that NRS 338.150(1) is ambiguous.
2
Therefore, we must attempt to discern the legislative intent behind the statute.
[Headnotes 1-8]
This court reviews issues of statutory construction de novo.
3
When the words of the
statute have a definite and ordinary meaning, this court will not look beyond the plain
language of the statute, unless it is clear that this meaning was not intended.
__________

2
Banegas v. SIIS, 117 Nev. 222, 225, 19 P.3d 245, 247 (2001) ([I]f a statute is susceptible to more than one
natural or honest interpretation, it is ambiguous.); McKay v. Bd. of Supervisors, 102 Nev. 644, 649, 730 P.2d
438, 442 (1986) (Where a statute is capable of being understood in two or more senses by reasonably informed
persons, the statute is ambiguous.).

3
State, Bus. & Indus. v. Granite Constr., 118 Nev. 83, 86, 40 P.3d 423, 425 (2002). The CCSD argues that
this court should attach weight to its statutory interpretation because the CCSD is impliedly clothed with the
power to construe it. The CCSD cites several cases for this proposition. However, these cases deal with agencies
such as the Gaming Control Board, the Department of Taxation, and the Employee-Management Relations
Board and their interpretation of statutes under which they operate. Folio v. Briggs, 99 Nev. 30, 33, 656 P.2d
842, 844 (1983); Sierra Pac. Power v. Department Taxation, 96 Nev. 295, 297, 607 P.2d 1147, 1148 (1980);
Clark Co. Sch. Dist. v. Local Gov't, 90 Nev. 442, 446, 530 P.2d 114, 117 (1974). Here, the CCSD is merely one
public agency to which NRS 338.150(1) applies and, thus, is not impliedly clothed with the power to construe
the statute. Further, even if the CCSD had authority to construe NRS 338.150(1), this court has held that
questions of statutory construction are purely legal issues to be reviewed without any deference whatsoever to
the conclusions of the agency.' State, Dep't Mtr. Veh. v. Jones-West Ford, 114 Nev. 766, 773, 962 P.2d 624,
629 (1998) (quoting Manke Truck Lines v. Public Service Comm'n, 109 Nev. 1034, 1036-37, 862 P.2d 1201,
1203 (1993)).
statute, unless it is clear that this meaning was not intended.
4
However, if a statute is
ambiguous, the plain meaning rule of statutory construction is inapplicable, and the drafter's
intent becomes the controlling factor in statutory construction.
5
An ambiguous statutory
provision should also be interpreted in accordance with what reason and public policy would
indicate the legislature intended.
6
Additionally, we construe statutes to give meaning to all
of their parts and language, and this court will read each sentence, phrase, and word to render
it meaningful within the context of the purpose of the legislation.
7
Further, no part of a
statute should be rendered meaningless
8
and its language should not be read to produce
absurd or unreasonable results.
9

[Headnote 9]
The legislative history of NRS 338.150 indicates that the Legislature intended it to
mandate arbitration. In 1971, the Legislature amended NRS 338.150 in several ways. The
Legislature changed the language of NRS 338.150(1) from may include in the specifications
a clause permitting arbitration to shall include in the specifications a clause permitting
arbitration.
10
The Legislature also added NRS 338.150(3), exempting the Department of
Transportation from the arbitration-clause requirement.
11
Changing may to shall and
simultaneously exempting the Department of Transportation from the requirements of NRS
338.150(1) are strong indications that the Legislature intended arbitration to be mandatory. If
the Legislature had intended that the contract provision would merely give other state
subdivisions the option to arbitrate at their discretion, it would have had no reason to exempt
any department, since each department would still be free to arbitrate or not.
The wording of NRS 338.150(2) and NRS 338.150(1) also supports the view that the
Legislature intended to require arbitration.
__________

4
State v. Quinn, 117 Nev. 709, 713, 30 P.3d 1117, 1120 (2001); see also Glover v. Concerned Citizens for
Fuji Park, 118 Nev. 488, 492, 50 P.3d 546, 548 (2002) (stating that [i]t is well established that when the
language of a statute is unambiguous, a court should give that language its ordinary meaning), overruled in part
by Garvin v. Dist. Ct., 118 Nev. 749, 59 P.3d 1180 (2002).

5
Harvey v. Dist. Ct., 117 Nev. 754, 770, 32 P.3d 1263, 1274 (2001); see also McKay, 102 Nev. at 649, 730
P.2d at 442.

6
McKay, 102 Nev. at 649, 730 P.2d at 442 (internal quotation marks and citations omitted).

7
Coast Hotels v. State, Labor Comm'n, 117 Nev. 835, 841, 34 P.3d 546, 550 (2001).

8
Banegas, 117 Nev. at 228, 19 P.3d at 249.

9
Glover, 118 Nev. at 492, 50 P.3d at 548.

10
1971 Nev. Stat., ch. 345, 1, at 621 (emphasis added).

11
Id.; see also Hearing on S.B. 471 Before the Senate Judiciary Comm., 56th Leg., at 2 (Nev., March 24,
1971).
NRS 338.150(2) provides that [a]ny dispute requiring arbitration must be handled in
accordance with the industry's rules for arbitration as administered by the American
Arbitration Association or the Nevada Arbitration Association. (Emphasis added.) The
Legislature's use of the phrase any dispute requiring arbitration suggests that the Legislature
intended NRS 338.150(1) to mandate arbitration as opposed to merely requiring the inclusion
of a clause giving the public entity responsible for the public works project discretion to
arbitrate.
The testimony of those appearing before the Legislature in support of the amendment
of NRS 338.150 in 1971 also indicates that the Legislature intended arbitration to be
mandatory under NRS 338.150(1).
12
Mr. Oakes, Manager, Associated General Contractors,
speaking to the Assembly Committee on Judiciary, discussed how arbitration would save the
state money.
13
Mr. Oakes further stated:
[T]he State Planning Board has failed to use the standard arbitration clause in its
contracts and specifications and this makes it difficult for building contractors. If the
specifications aren't clear and there is no arbitration clause, court action has to decide
the disagreement, which takes time. The insertion of the standard arbitration clause in
state building contracts would save the state money and the association would like to
see the bill passed.
14

The minutes also demonstrate that other persons testifying believed that arbitration
would be a faster and more efficient way to resolve disputes concerning public works
projects.
15
Mr. Oakes testified that he believed that arbitration would keep some contractors
from filing for bankruptcy protection.
16
Other contractors testified that they believed that
arbitration would be a much better means of resolving their disputes with the state than
litigation.
17
One of the contractors went as far as to say, [T]here wasn't a contractor in the
state that has not gotten burned by this section as it is now.
18

__________

12
See Lowe Enterprises v. Dist. Ct., 118 Nev. 92, 103-04, 40 P.3d 405, 412 (2002) (considering comments
solicited by the Legislature to determine the Legislature's intent in amending a statute).

13
Hearing on S.B. 471 Before the Assembly Comm. on Judiciary, 56th Leg., at 1 (Nev., April 5, 1971).

14
Id.

15
Hearing on S.B. 471 Before the Senate Judiciary Comm., 56th Leg., at 4 (Nev., March 23, 1971)
(contractor testimony).

16
Hearing on S.B. 471 Before the Assembly Comm. on Judiciary, 56th Leg., at 1 (Nev., April 5, 1971).

17
Hearing of S.B. 471 Before the Senate Judiciary Comm., 56th Leg., at 4 (Nev., March 23, 1971)
(contractor testimony).

18
Id. (testimony of Mr. Tom Donnels, owner of Walker-Boudwin Construction Company).
Since the Legislature passed the proposed amendments, the Legislature must have
accepted the proponents' comments and concluded that arbitration would be a more efficient
means of resolving public works disputes. The comments further indicate that the Legislature
intended arbitration to be mandatory under NRS 338.150(1). It is reasonable to conclude that
the Legislature would not enact a statute that makes dispute resolution easier and more
efficient and then, simultaneously, grant the disputants the authority to circumvent the
process and undermine the statute's purpose. Therefore, we conclude that the Legislature
intended NRS 338.150(1) to mandate binding arbitration.
Right to jury trial
[Headnote 10]
The CCSD contends that if NRS 338.150 requires binding arbitration, the statute
unconstitutionally denies the parties their right to trial by jury. Article 1, Section 3 of the
Nevada Constitution provides: The right of trial by Jury shall be secured to all and remain
inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the manner
to be prescribed by law . . . . NRCP 38(a) states: The right of trial by jury as declared by the
Constitution of the State or as given by a statute of the State shall be preserved to the parties
inviolate.
The CCSD contends that Williams v. Williams
19
supports its argument that NRS
338.150(1) violates its right to a jury trial. In Williams, this court held that former NRS
38.215 was an unconstitutional infringement on the right to trial by jury.
20
NRS 38.215
imposed compulsory arbitration on private parties wishing to pursue certain types of
automobile claims and limited their right to obtain a jury trial after arbitration. NRS
338.150(1) is distinguishable from former NRS 38.215 in that NRS 338.150(1) does not
require two private parties to arbitrate their claims. In this case, the private party is waiving a
jury trial, and the public agency is the one seeking to enforce the right to a jury trial. The
Legislature, on behalf of the CCSD, has waived its right to a jury trial. By enacting the
statute, the Legislature consented on behalf of the subdivisions of the state to waive the right
to a jury trial in certain disputes.
21

A similar issue was presented to the Supreme Court of North Dakota in Hjelle v.
Sornsin Construction Company.
22
In Hjelle, the court considered whether a statute that
mandated arbitration of "controversies arising out of any contract
__________

19
110 Nev. 830, 877 P.2d 1081 (1994).

20
Id. at 833-34, 877 P.2d at 1083.

21
The issue of whether the construction company has a right to a jury trial or whether it is waived by entering
into the public works contract is not before this court and is not being determined.

22
173 N.W.2d 431 (N.D. 1969).
court considered whether a statute that mandated arbitration of controversies arising out of
any contract for the construction or repair of highways entered into by the [highway]
commissioner
23
violated the highway commissioner's and private parties' constitutional
right to a jury trial.
24

The court determined that disputes between private parties should be distinguished
from suits between private parties and the state.
25
The court reasoned that by enacting the
mandatory arbitration statute, the Legislature consented on behalf of the State, and,
accordingly, on behalf of its agent, the Highway Commissioner, to such a mode of
settlement.
26
Furthermore, the private party was not raising its right to a jury trial; it was the
state seeking the jury trial.
27
The court stated that the highway commissioner could not assert
the constitutional rights of his opponents.
28

We agree with the Hjelle court's reasoning and conclusion. The CCSD, a political
subdivision of the state, pursuant to NRS 386.010(2), is attacking the mandatory arbitration
statute. By enacting NRS 338.150(1), the Nevada Legislature waived the CCSD's right to a
trial by jury. Because the Legislature waived the CCSD's right to trial by jury, NRS
338.150(1) does not violate its right to a trial by jury under either the Nevada Constitution or
NRCP 38(a).
Accordingly, we reverse the order of the district court and remand this case to the
district court for proceedings consistent with this opinion.
__________

23
N.D. Cent. Code 24-02-26 (1970) (amended 1995).

24
173 N.W.2d at 434.

25
Id. at 436-37.

26
Id. at 436.

27
Id. at 437.

28
Id. at 435.
__________
119 Nev. 646, 646 (2003) Matter of T.R.
In the Matter of T.R., a Minor.
T.R., Appellant, v. THE STATE OF NEVADA, DIVISION OF CHILD AND FAMILY
SERVICES, DEPARTMENT OF HUMAN RESOURCES, Respondent.
No. 38480
December 30, 2003 80 P.3d 1276
Appeal from an order adjudicating a juvenile delinquent for sexual assault of a victim
under the age of fourteen. Eighth Judicial District Court, Family Court Division, Clark
County; Cynthia Dianne Steel, Judge.
In a juvenile delinquency proceeding, the district court, adopting in part the hearing
master's findings and recommendations, found juvenile committed an act constituting sexual
assault of victim under age of fourteen, and adopting Probation Department's
recommendations, committed juvenile to correctional placement, required juvenile to submit
to juvenile sex offender community notification, and ordered a hearing, when juvenile
reached age twenty-one, to determine whether juvenile should be required to comply with
adult sex offender registration and notification statutes beyond his twenty-first birthday.
Juvenile appealed. The supreme court held that: (1) juvenile's facial due process vagueness
challenge to statute requiring future hearing to determine whether juvenile should be deemed
an adult sex offender for purposes of registration and community notification was ripe for
judicial review; and (2) the statute was facially vague, in violation of due process.
Affirmed in part and reversed in part.
Leavitt, J., dissented.
Marcus D. Cooper, Public Defender, and Susan K. Roske and Abel M. Yanez, Deputy
Public Defenders, Clark County, for Appellant.
David J. Roger, District Attorney, Clark A. Peterson, Chief Deputy District Attorney,
and Jonathan VanBoskerck, Deputy District Attorney, Clark County, for Respondent.
1. Infants.
When a juvenile challenges his delinquency adjudication for an offense that was established beyond a reasonable doubt, the
appellate court will affirm a judgment that is supported by sufficient evidence. Thus, the appellate court will consider whether,
when viewing all of the evidence in the State's favor, a rational fact finder could have found the offense's essential elements
beyond a reasonable doubt.
119 Nev. 646, 647 (2003) Matter of T.R.
2. Criminal Law.
Evaluating the credibility of witnesses and the weight to be given their testimony is within the fact finder's province.
3. Infants.
A sexual assault victim's uncorroborated testimony is sufficient evidence to support an adjudication of a juvenile as delinquent,
based on acts constituting sexual assault. NRS 200.366.
4. Infants.
Adjudicated juvenile delinquent's due process vagueness challenge to statute requiring a hearing when a juvenile sex offender
has reached age twenty-one without having been relieved of juvenile sex offender community notification requirements, to
determine whether juvenile should be deemed an adult sex offender for purposes of registration and community notification, was
ripe for judicial review. Although juvenile had not yet been subjected to such a hearing, district court's delinquency order had
required such a hearing, making application of the statute to juvenile inevitable and certain, delay would cause uncertainty
regarding how juvenile's current and future life choices might influence decision at future hearing, and record was sufficiently
developed to allow review of legal questions by supreme court. U.S. Const. amend. 14; NRS 62.590.
5. Action.
The factors to be weighed in deciding whether a case is ripe for judicial review include: (1) the hardship to the parties of
withholding judicial review, and (2) the suitability of the issues for review.
Substantive due process demands definitive laws and includes the void-for-vagueness doctrine. U.S. Const. amend. 14.
The vagueness doctrine is based upon the principle that a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first
essential of due process of law. U.S. Const. amend. 14.
When a statute is so unclear that vagueness pervades the law's content, it is subject to a facial attack on due process grounds.
To succeed on a facial due process challenge for vagueness, the complainant must demonstrate that the law is impermissibly
vague in all of its applications. U.S. Const. amend. 14.
A complainant who engages in some conduct that is clearly proscribed by the statute cannot complain of the vagueness of the
statute, for due process purposes, as applied to the conduct of others. U.S. Const. amend. 14.
11. Constitutional Law; Infants.
Statute requiring hearing, when a juvenile sex offender has reached age twenty-one without having been relieved of juvenile sex
offender community notification requirements, to determine whether juvenile should be deemed an adult sex offender for purposes
of registration and community notification, based on whether juvenile has been rehabilitated to the satisfaction of the
court"
119 Nev. 646, 648 (2003) Matter of T.R.
to the satisfaction of the court and whether juvenile is likely to pose a threat to the safety of others, was facially vague, in
violation of due process, because concepts of rehabilitation and recidivism were tenuous and difficult to define, statute provided
no guidance with respect to how a juvenile should conduct himself or herself to avoid lifetime registration, and statute's lack of
explicit standards to guide district court in reaching its decision authorized or encouraged arbitrary and discriminatory
enforcement. U.S. Const. amend. 14; NRS 62.590(3).
OPINION
Per Curiam:
This appeal challenges, as unduly vague, the application of Nevada's adult sex
offender registration and notification provisions to an adjudicated juvenile sex offender upon
reaching his twenty-first birthday pursuant to NRS 62.590. Because the statute fails to give
sufficient notice of what conduct is prohibited and authorizes or encourages arbitrary and
discriminatory enforcement, the statute is void for vagueness. We therefore reverse the
portion of the district court's judgment that requires appellant to submit to a hearing under
NRS 62.590. We affirm the portion of the district court's judgment that adjudicated appellant
a delinquent.
FACTS
The district attorney filed a petition for delinquency against appellant T.R., a
fourteen-year-old boy, alleging three counts of sexual assault against a victim under the age of
fourteen. Count I alleged that T.R. sodomized the four-year-old victim, Count II alleged that
T.R. forced the victim to orally copulate him, and Count III alleged that T.R. orally copulated
the victim.
An evidentiary hearing was conducted before a district court hearing master. The
master heard conflicting testimony from the victim, T.R., and their respective family
members. Additionally, the victim's grandmother testified to T.R.'s revelation to her that he
had been sexually assaulted. Following closing argument, the master concluded that the State
had proved Counts I and II by clear and convincing evidence and that Count III should be
dismissed. The district court then entered an order that adopted the master's findings and
recommendations.
T.R. timely moved for rehearing of the district court's order. He asserted that the State
had failed to prove beyond a reasonable doubt that he had committed the alleged sexual
assaults, and that the master inappropriately considered unreliable hearsay statements in
reaching its decision. The State opposed the motion, and the matter was scheduled for a
hearing.
119 Nev. 646, 649 (2003) Matter of T.R.
In the interim, the Juvenile Probation Department prepared a dispositional report
following its evaluation of T.R. The Department recommended that T.R. complete a
correctional program, submit to community notification under NRS 62.500 through 62.600
and, upon reaching his twenty-first birthday, be subject to a hearing under NRS 62.590 to
determine if he should be required to comply with the adult sex offender registration and
notification statutes beyond his twenty-first birthday.
Before the hearing was conducted on T.R.'s rehearing motion, he moved to strike the
Probation Department's recommendation that he comply with the community notification
statutes. The State opposed his motion, and the Attorney General's Office also filed an
opposition. After a hearing, the court upheld the master's decision as to Count I (sodomy), but
concluded that the State had failed to prove Count II (oral copulation of T.R.) beyond a
reasonable doubt. The district court adopted the Probation Department's recommendations,
adjudicated T.R. a delinquent child, and ordered him committed to correctional placement.
Subsequently, the district court entered a written order that denied T.R.'s motion to strike the
dispositional requirements for community notification. T.R. timely appealed.
On appeal, T.R. challenges his delinquency adjudication for sexual assault as not
supported by sufficient evidence. T.R. also contends that NRS 62.590, which imposes adult
sex offender registration and notification requirements on juvenile sex offenders, is
unconstitutionally vague and therefore cannot be applied to him.
DISCUSSION
I. Sufficiency of the evidence
[Headnotes 1-3]
When a juvenile challenges his delinquency adjudication for an offense that was
established beyond a reasonable doubt, this court will affirm a judgment that is supported by
sufficient evidence.
1
Thus, we will consider whether, when viewing all of the evidence in
the State's favor, a rational fact finder could have found the offense's essential elements
2
Additionally, evaluating the credibility of witnesses and the
weight to be given their testimony is within the fact finder's province.
__________

1
In re E.R.L., 109 S.W.3d 123, 127 (Tex. App. 2003) (providing that when a juvenile challenges the
sufficiency of [the] evidence to support an adjudication of a penal offense requiring proof by the State beyond a
reasonable doubt as the basis for the finding of delinquency, the appellate court applies a criminal standard of
review); see also In re Donald R., 796 N.E.2d 670, 677 (Ill. App. Ct. 2003) (applying criminal standard to
challenge the sufficiency of the evidence in juvenile sex offender proceedings); Davis v. State, 110 Nev. 1107,
881 P.2d 657 (1994) (stating that a judgment of conviction will be affirmed if supported by sufficient evidence).

2
Hutchins v. State, 110 Nev. 103, 107-08, 867 P.2d 1136, 1139 (1994).
119 Nev. 646, 650 (2003) Matter of T.R.
their testimony is within the fact finder's province.
3
Finally, a sexual assault victim's
uncorroborated testimony is sufficient evidence to support an adjudication.
4

Under NRS 200.366(1), [a] person who subjects another person to sexual penetration
. . . is guilty of sexual assault. T.R. contends that insufficient evidence was adduced at the
adjudication proceeding to prove that he committed sexual assault because the victim's
testimony was unreliable, the victim's grandmother's hearsay testimony was improperly
admitted, and no corroborating evidence was offered to establish sexual abuse. Based on
evidence presented during the adjudication hearing, the district court found that sufficient
evidence existed in the record to support the hearing master's findings and recommendations
as to Count I, sodomy. The district court also concluded that the master properly considered
the grandmother's admissible hearsay testimony concerning what the victim had told her
about the sexual assault.
5
Considering the evidence in the light most favorable to the State,
we conclude that a rational fact finder could have found beyond a reasonable doubt that T.R.
committed the offense of sexual assault. Accordingly, we affirm the district court's
delinquency adjudication.
II. Constitutional challenge
After a child has been adjudicated a delinquent for a sexual offense, he or she is
subject to community notification unless relieved of that duty by the district court.
6
If the
child has not been relieved of the duty to comply with community notification requirements
by the time he or she is twenty-one, the district court must determine whether the child
should be deemed an adult sex offender for the purposes of registration and community
notification.
7
More specifically, NRS 62.590 provides in relevant part:
1. If a child who has been adjudicated delinquent for a sexual offense or a sexually
motivated act is not relieved of being subject to community notification as a juvenile
sex offender before the child reaches 21 years of age, the court shall hold a hearing
when the child reaches 21 years of age to determine whether the child should be
deemed an adult sex offender for the purposes of registration and community
notification pursuant to NRS 179D.350 to 179D.800, inclusive.
. . . .
3. If the court determines at the hearing that the child has not been rehabilitated to the
satisfaction of the court or that the child is likely to pose a threat to the safety of
others,
__________

3
Lay v. State, 110 Nev. 1189, 1192, 886 P.2d 448, 450 (1994).

4
See Hutchins, 110 Nev. at 109, 867 P.2d at 1140.

5
NRS 51.385 (providing special provisions permitting the admission of hearsay statements by a child
sexual-assault victim).

6
See NRS 62.570; NRS 62.585(1), (2).

7
NRS 62.590(1).
119 Nev. 646, 651 (2003) Matter of T.R.
the child is likely to pose a threat to the safety of others, the court shall deem the child
to be an adult sex offender for the purposes of registration and community notification
pursuant to NRS 179D.350 to 179D.800, inclusive.
4. If a child is deemed to be an adult sex offender pursuant to this section, the court
shall notify the central repository, so the central repository may carry out the provisions
for registration of the child as an adult sex offender pursuant to NRS 179D.450.
A. Ripeness
[Headnote 4]
The State contends that T.R. lacks standing to challenge the application of NRS
62.590. Since T.R. has not yet been subject to a hearing regarding his possible duty to register
as an adult sex offender, the State insists that T.R. has not suffered any injury and that the
issues concerning NRS 62.590's future application are not ripe for this court's review.
[Headnote 5]
Although the question of ripeness closely resembles the question of standing, ripeness
focuses on the timing of the action rather than on the party bringing the action.
8
In the
present case, T.R. seeks pre-enforcement review of NRS 62.590; thus, ripeness, rather than
standing, is our focus.
9
The factors to be weighed in deciding whether a case is ripe for
judicial review include: (1) the hardship to the parties of withholding judicial review, and (2)
the suitability of the issues for review.
10
T.R. argues that NRS 62.590 contains vague and
arbitrary language and therefore violates the Fourteenth Amendment's Due Process Clause.
The district court's delinquency order requires T.R. to submit to a hearing under NRS 62.590
when he reaches twenty-one. Thus, application of NRS 62.590 is certain.
11
Moreover, delay
will harm T.R., as he is unsure how the statute applies to his current and future life choices;
those choices could well influence the district court's decision in any hearing under NRS
62.590. Nothing is gained from deferring review until T.R. is twenty-one. As for the issues'
suitability for review, the record is sufficiently developed to allow us to consider the legal
questions before us.
__________

8
See Smith v. Wisconsin Dept. of Agriculture, 23 F.3d 1134, 1141 (7th Cir. 1994) (noting the distinction
between standing and ripeness doctrines); see also 13 Charles Alan Wright et al., Federal Practice & Procedure
3531, at 350 (2d ed. 1984) (observing that ripeness could be seen as providing time-bound perspective[ ] on
the injury inquiry of standing).

9
See Smith, 23 F.3d at 1141; Erwin Chemerinsky, Federal Jurisdiction 2.4, at 100 (1989).

10
See Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977).

11
See Chang v. U.S., 327 F.3d 911, 922 (9th Cir. 2003) (recognizing that an issue is ripe for review when it
is inevitable that a regulation will be enforced against a plaintiff).
119 Nev. 646, 652 (2003) Matter of T.R.
record is sufficiently developed to allow us to consider the legal questions before us.
Applying these factors, we conclude that this case is ripe for our review.
B. Vagueness
With respect to T.R.'s facial challenge to NRS 62.590, he contends that under the Due
Process Clause, the statute's sex offender registration and notification requirement is
impermissibly vague on its face.
12
He asserts that NRS 62.590 provides no guidance or
standards for determining when a juvenile sex offender is rehabilitated, or a threat to the
community, and that the statute encourages arbitrary and discriminatory enforcement.
[Headnotes 6-10]
Substantive due process demands definitive laws and includes the void-for-vagueness
doctrine.
13
The vagueness doctrine is based upon the principle that a statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law.
14
Thus, when a statute is so unclear that vagueness
pervades the law's content, it is subject to a facial attack.
15
To succeed on a facial challenge
for vagueness, the complainant must demonstrate that the law is impermissibly vague in all
of its applications.
16
A complainant who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the conduct of others.
17

__________

12
T.R. also argues, but only in a cursory manner, that NRS 62.590 violates procedural due process. He
further contends that the statute violates equal protection guarantees by treating juvenile sex offenders differently
from adult offenders. We note that the United States Supreme Court has yet to address whether a sex offender
registration and notification statute implicates a constitutionally protected liberty or other interest. Recognition
of a constitutionally protected interest would require a state to demonstrate such statutes are supported by a
compelling interest under the Equal Protection or Due Process Clauses. See Connecticut Dept. of Public Safety
v. Doe, 538 U.S. 1 (2003). Because we conclude that the statute is unduly vague, we do not reach these
constitutional claims. Further, although T.R. states that NRS 62.500-.600 (which include juvenile sex offender
registration provisions) should not apply to him, he claims that they should not apply only because they trigger
the application of the adult registration and notification requirements. Consequently, our review is limited to
NRS 62.590, the adult registration and notification provisions.

13
Kolender v. Lawson, 461 U.S. 352, 357 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

14
Connally v. General Const. Co., 269 U.S. 385, 391 (1926).

15
See City of Las Vegas v. Dist. Ct., 118 Nev. 859, 863, 59 P.3d 477, 479 (2002).

16
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497 (1982); accord Sheriff v. Martin, 99 Nev.
336, 340, 662 P.2d 634, 637 (1983).

17
Hoffman, 455 U.S. at 495; Martin, 99 Nev. at 340, 662 P.2d at 637.
119 Nev. 646, 653 (2003) Matter of T.R.
In Grayned v. City of Rockford,
18
the United States Supreme Court announced the
standards for evaluating whether a law is vague. The Court explained that a law must give a
person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that
he may act accordingly.
19
The law must also provide explicit standards for those who apply
them to avoid arbitrary and discriminatory enforcement.
20
T.R. contends that NRS 62.590
encourages arbitrary and erratic decision-making and results in arbitrary enforcement. The
State contends that the statute provides sufficient standards to allow fair and evenhanded
application and, therefore, is not unconstitutionally vague.
[Headnote 11]
As set forth above, the statute provides that when a juvenile turns twenty-one, the
district court shall conduct a hearing to determine whether the child has been rehabilitated to
the satisfaction of the court and whether the child is likely to pose a threat to the safety of
others.
21
The concepts of rehabilitation and recidivism are tenuous and difficult to define.
Unfortunately, the statute provides no guidance with respect to how a child should conduct
himself or herself to avoid lifetime registration. Whether a child has participated in any
educational programs to understand the nature of sexual abuse, how it impacts victims, the
risks of relapse, as well as completing counseling and substance abuse treatment programs
may be relevant but not dispositive. A child might successfully complete such programs and
still be subject to lifetime supervision because the express language, rehabilitated to the
satisfaction of the court and likely to pose a threat to the safety of others,
22
is entirely
subjective, as it fails to provide the district court with any standards for determining whether
a child is rehabilitated or poses a continuing threat to society. Thus, even if a child favorably
completes relevant programs and refrains from troubling conduct, the resulting application of
NRS 62.590 at a hearing could vary significantly from judge to judge because of the statute's
lack of direction. In other words, since the statute lacks explicit standards to guide the district
court in reaching its decision, it is subject to arbitrary and discriminatory application.
23
Because NRS 62.590 provides no guidance for the child to act accordingly and authorizes
or encourages arbitrary and discriminatory enforcement, the statute is void for vagueness.
__________

18
408 U.S. at 108-09.

19
Id. at 108.

20
Id.

21
NRS 62.590(3).

22
Id.

23
We also note that the statute does not provide for the type of hearing to be conducted, what standard of
proof applies, and whether the State or the child bears the burden of proof. These omissions compound the
statute's vagueness.
119 Nev. 646, 654 (2003) Matter of T.R.
CONCLUSION
We reverse that portion of the district court's order requiring appellant to submit to a
hearing under NRS 62.590 when he reaches twenty-one years of age. We affirm that portion
of the district court's order adjudicating appellant a delinquent.
24

Leavitt, J., dissenting:
I would reverse because the State failed to prove T.R.'s guilt beyond a reasonable
doubt.
This matter involves the violation of a criminal statute, and though adjudications of a
delinquency are civil in nature, the State is still required to prove the elements of the offense
1
We review the evidence on appeal in the light most favorable to
the prosecution and must be convinced of a person's guilt beyond a reasonable doubt.
2

There is no requirement that the testimony of a sexual assault victim be corroborated,
and the victim's testimony, standing alone and if believed beyond a reasonable doubt, is
sufficient to sustain a verdict of guilty.
3
However, we have held that circumstances may exist
in a sexual assault case that would be sufficient, as a matter of law, to render the victim's
testimony incredible.
4
Such circumstances exist in this case.
The victim in this case was four years old when the alleged sexual assault took place.
He was asked by his grandmother to tell a story after she had told him the stories of the
three bears and the three little pigs. He responded that T.R. had put his pee-pee in my butt
and it hurt. He later told the same story to his aunt and a pediatric nurse. The nurse
examined his rectal area and noticed a small whitened area that could have been caused by
constipation. She could not say that the victim had been sexually abused. A subsequent
statement by the four-year-old that T.R.'s pee-pee got big and stuff came out seems to
demonstrate a knowledge of sexual anatomy beyond the victim's age. But other evidence was
introduced that the four-year-old had urinated on his sixteen-month-old cousin and that he
had been caught engaging in fellatio with another four-year-old child. These acts also indicate
knowledge beyond the normal knowledge of a four-year-old child.
__________

24
T.R. also argues that the juvenile court exceeded its jurisdiction under NRS 62.590, and that the rule of
lenity applies to the statute. We conclude that these arguments lack merit. See Kell v. State, 96 Nev. 791, 618
P.2d 350 (1980) (recognizing that the legislature provides jurisdiction for the juvenile justice system); United
States v. Bass, 404 U.S. 336, 348 (1971) (discussing the policies underlying the rule of lenity).

1
See NRS 62.193(1), (5).

2
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571,
573 (1992).

3
See Rembert v. State, 104 Nev. 680, 681, 766 P.2d 890, 891 (1988); Deeds v. State, 97 Nev. 216, 217, 626
P.2d 271, 272 (1981).

4
State v. Diamond, 50 Nev. 433, 437, 264 P. 697, 698-99 (1928).
119 Nev. 646, 655 (2003) Matter of T.R.
knowledge beyond the normal knowledge of a four-year-old child. Moreover, all questions
posed to the victim were leading and suggestive because of his age.
T.R., the fourteen-year-old defendant, denied any inappropriate sexual conduct and
disputed that even he had the opportunity to commit the alleged acts. The hearing master,
however, questioned T.R.'s credibility because T.R. himself had been the victim of previous
sexual abuse.
In examining the evidence introduced at the hearing in the light most favorable to the
prosecution, I cannot say that a rational trier of fact could conclude that T.R. is guilty beyond
a reasonable doubt.
5

Therefore, I would reverse the conviction.
__________
119 Nev. 655, 655 (2003) State, Div. Child & Fam. Servs. v. Dist. Ct.
THE STATE OF NEVADA DIVISION OF CHILD AND FAMILY SERVICES,
DEPARTMENT OF HUMAN RESOURCES, Petitioner, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE
COUNTY OF CLARK, and THE HONORABLE GERALD W. HARDCASTLE,
District Judge, Family Court Division, Respondents, and A.M.S., Real Party in
Interest.
No. 40269
December 30, 2003 81 P.3d 512
Original petition for a writ of mandamus or prohibition challenging a family court
order that granted a motion to compel release of names and addresses.
Child moved to compel Division of Child and Family Services (DCFS) to release
addresses and names of her siblings' adoptive and natural parents. The district court granted
the motion for the limited purpose of serving siblings' legal guardians with petition for sibling
visitation. DCFS petitioned for writ of mandamus or prohibition to challenge the order. The
supreme court, Agosti, C. J., held that: (1) child's failure to file petition for sibling visitation
before termination of parental rights did not preclude her from subsequently seeking sibling
visitation, (2) family court had jurisdiction to order DCFS to release names and addresses,
and (3) court did not manifestly abuse discretion in granting child's motion.
Petition denied.
__________

5
Hutchins v. State, 110 Nev. 103, 107-08, 867 P.2d 1136, 1139 (1994) (citing Koza, 100 Nev. at 250, 681
P.2d at 47); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Brian Sandoval, Attorney General, and Brigid J. Duffy, Deputy Attorney General,
Carson City, for Petitioner.
Clark County Legal Services Program, Inc., and Stacy L. Sallerson, Las Vegas, for
Real Party in Interest.
1. Infants.
Child's failure to file petition for sibling visitation before termination of parental rights did not preclude her from subsequently
seeking sibling visitation because family court had determined that sibling visitation was in children's best interests and,
accordingly, had ordered that a sibling visitation plan be in place before adoptions were finalized. NRS 125C.050(7).
2. Motions.
All court orders are presumptively valid on their face.
3. Infants.
Family court had jurisdiction to order Department of Child and Family Services (DCFS) to release names and addresses of legal
guardians of child's siblings for purposes of effecting service to facilitate sibling visitation, although information was confidential,
as information was necessary to bring the issue of sibling visitation before the family court, information was only to be disclosed
to child's attorney, court had retained jurisdiction over child, who also sought information from her own case, and visitation had
already been determined to be in siblings' best interests. NRS 3.223, 127.200, 432B.280, 432B.290(1)(e), (g).
4. Infants.
Family court did not manifestly abuse discretion in granting child's motion to compel Department of Child and Family Services
(DCFS) to disclose names of legal guardians of child's sisters in order to facilitate sibling visitation; names only allowed child to
serve petition for visitation so that hearing could be held, court protected guardians' privacy interest by ordering information
disclosed only to child's attorney and solely for effecting service, and best interests of siblings before adoption were that they be
allowed to maintain bond through regular contact. NRS 125C.050(7), 432B.290(1).
5. Mandamus.
A writ of mandamus may issue to control an arbitrary or capricious exercise of discretion.
OPINION
This original petition for a writ of mandamus or prohibition filed by the Division of
Child and Family Services (DCFS) challenges a family court order granting the motion of
A.M.S., a minor child, to compel the release of the names and addresses of A.M.S.'s siblings'
adoptive and natural parents. A.M.S. wants to effect service on them as she pursues a petition
to permit her to visit with her siblings. For the following reasons, we deny DCFS's petition.
In April 1998, A.M.S. and her three younger sisters became wards of the State of
Nevada, and custody of all four was awarded to DCFS. Because their mother's drug addiction
prevented her from fulfilling her maternal obligations, A.M.S., then nine, had assumed the
role of mother to the three younger girls, then five years, four years and an infant. As a result,
A.M.S. felt and continues to feel a strong bond with her siblings. Although the girls were
initially placed in foster care together, they were subsequently placed into separate homes.
The mother's parental rights were terminated in July 2000. In September 2000, during a
permanency review hearing, the family court was advised that adoption was a viable option
for two of the girls. The family court ordered that a visitation plan be established before final
adoption and that the girls be given unlimited unsupervised visitation. The girls' adult
caregivers, including DCFS, failed to comply with this order.
The youngest sister was adopted on November 13, 2001. Another sister was adopted
the next day by a different family. The order granting sibling visitation was not incorporated
into the adoption decrees. A third sister was reunited with her biological father on September
1, 2000, and remains with him. The state's wardship of the two adopted girls was terminated
on November 26, 2001, and the wardship of the sister who was reunited with her biological
father was terminated on July 10, 2001. A.M.S., now approximately thirteen years old, is the
only child remaining a ward of the state.
In January 2002, the family court appointed Clark County Legal Services' Children's
Advocacy Project (CAP) to address A.M.S.'s request for sibling visitation and to address her
permanency planning. A.M.S., through her counsel, first tried to obtain the names and
addresses of the adoptive and natural parents of her sisters from DCFS in order to reestablish
communication. DCFS refused to disclose the information.
On August 13, 2002, the family court granted A.M.S.'s motion to compel the release
of the addresses for the limited purpose of serving the siblings' legal guardians with a petition
for sibling visitation. The motion requested that the information only be released to A.M.S.'s
attorney, not to the child herself without the legal guardians' permission. The family court
denied DCFS's motion to reconsider. DCFS now petitions this court for a writ of mandamus
or prohibition to arrest the family court's order granting the motion to compel.
DCFS maintains that because the child never filed a petition for sibling visitation
under NRS 125C.050(7)
1
before the termination of parental rights, her right to seek such
visitation has expired.
__________

1
NRS 125C.050(7) provides:
If the parental rights of either or both natural parents of a child are relinquished or terminated, and the
child is placed in the custody of a public agency or a private agency licensed to place children in homes,
the
of parental rights, her right to seek such visitation has expired. DCFS also contends that NRS
127.171 cuts off visitation rights by the adoptee's natural relatives if visitation was not
previously granted under NRS 125C.050.
[Headnote 1]
DCFS's argument is specious. First of all, the child is a minor and a ward of the state.
DCFS has custody of her. If we were to concur with DCFS's argument, no minor sibling in
DCFS's custody would ever be granted sibling visitation unless DCFS petitioned, on behalf of
the siblings, for visitation before the termination of parental rights. DCFS, as the children's
only voice, could, for its own reasons, which may be inconsistent with its statutory mandate,
deny them the window of opportunity to maintain ties with their siblings by simply failing to
act when the window is open, and then claiming that, since the children did not request
visitation before parental rights were terminated, their opportunity to do so is foreclosed.
2

[Headnote 2]
Furthermore, DCFS ignores the fact that the family court determined that sibling
visitation was in the children's best interests and, accordingly, ordered that a sibling visitation
plan be in place before adoptions were finalized. While DCFS argues that the order was
invalid because it occurred after parental rights had been terminated, we observe that all
orders are presumptively valid on their face.
3
It was not in DCFS's discretion to unilaterally
decide whether or not to comply with the order.
[Headnote 3]
DCFS next argues that the family court lacked jurisdiction to order the release of
information for purposes of effecting service.
4

__________
district court in the county in which the child resides may grant to the great-grandparents and
grandparents of the child and to other children of either parent of the child a reasonable right to visit the
child during his minority if a petition therefor is filed with the court before the date on which the parental
rights are relinquished or terminated. In determining whether to grant this right to a party seeking
visitation, the court must find, by a preponderance of the evidence, that the visits would be in the best
interests of the child in light of the considerations set forth in paragraphs (a) to (i), inclusive, of
subsection 6.

2
We note that during oral argument, DCFS insisted that counsel had been appointed for A.M.S., so she had
representation to seek visitation. However, counsel was not appointed for her until January 2002, nearly two
years after parental rights to the girls had been terminated.

3
See Turner v. Dewco Services, Inc., 87 Nev. 14, 17, 479 P.2d 462, 465 (1971) (holding that the presumption
of validity attached to the referee's order).

4
A writ of prohibition may issue to arrest a district court's proceedings if the proceedings exceed the court's
jurisdiction. NRS 34.320.
DCFS contends that NRS 432B.280
5
and NAC 127.200
6
mandate the confidentiality of
adoption records unless an exception for disclosure is allowed under NRS 432B.290.
7

We conclude that the family court acted well within its jurisdiction in ordering DCFS
to disclose the information for the sole purpose of effecting service. Although the information
sought is confidential, there are two exceptions by which the family court may properly order
the disclosure of such information. NRS 432B.290(1)(e) and (g) allow the family court to
make the information available if it is necessary to determine an issue, or if it is sought by the
child's attorney or guardian ad litem. Here, the information is necessary to bring the issue of
sibling visitation before the family court, and by the family court's order, it is only to be
disclosed to A.M.S.'s attorney, and not to A.M.S. herself. Furthermore, A.M.S. seeks
information from her own abuse and neglect case, which includes the information regarding
the other girls' placements, and the family court retains jurisdiction over A.M.S. under NRS
3.223. Since visitation was already determined to be in the sisters' best interests, it was
DCFS's duty to bring this order to the adoption court's attention, which DCFS failed to do.
The child should not have to pursue a separate action before the adoption court to access
information from those files because she seeks information from her own case which falls
under two of the confidentiality exceptions, and because her predicament was caused by
DCFS's failure to bring the order to the adoption court's attention.
__________

5
NRS 432B.280 provides:
1. Reports made pursuant to this chapter, as well as all records concerning these reports and
investigations thereof, are confidential.
2. Any person, law enforcement agency or public agency, institution or facility who willfully releases
data or information concerning such reports and investigations, except:
(a) Pursuant to a criminal prosecution relating to the abuse or neglect of a child;
(b) As otherwise authorized or required pursuant to NRS 432B.290; or
(c) As otherwise required pursuant to NRS 432B.513, is guilty of a misdemeanor.

6
NAC 127.200(3) provides that [t]he documentation required pursuant to this section is confidential and
must be protected from unauthorized use.

7
NRS 432B.290 provides, in relevant part:
1. Except as otherwise provided in subsections 2, 5 and 6 and NRS 432B.513, data or information
concerning reports and investigations thereof made pursuant to this chapter may be made available only
to:
. . . .
(e) A court, for in camera inspection only, unless the court determines that public disclosure of the
information is necessary for the determination of an issue before it;
. . . .
(g) The attorney and the guardian ad litem of the child . . . .
[Headnote 4]
DCFS next argues that the family court abused its discretion because its order
compelling the disclosure of the legal guardians' names and addresses contravenes public
policy. DCFS argues that forcing them to disclose that information would have a chilling
effect on adoptions because adoptive families could not be secure in their right to privacy.
DCFS also argues that allowing sibling visitation now, in the absence of such an order
incorporated into the adoption decree, would undermine the children's permanency and
stability in their new homes.
[Headnote 5]
We conclude that the family court did not manifestly abuse its discretion.
8
First, we
note that the information sought will merely allow the child to serve a petition for sibling
visitation so that a hearing may be held to determine whether visitation would be in the best
interests of all of the children. Second, the family court adequately protected the privacy
interest of the legal guardians by ordering the information disclosed only to the child's
attorney, not to the child herself, and solely for effecting service. Third, and most importantly,
we observe that DCFS's responsibility to all of the children while they were in DCFS's
custody, and to A.M.S., who remains in DCFS's custody, is not merely permanency planning
and placement; DCFS is responsible for acting in the best interests of the children.
9
A.M.S.
was a mother figure for the other girls and the siblings' bond was very close. The best
interests of the children before adoption were that they be allowed to maintain that bond
through regular contact.
10
The family court's order of September 2000 specifically stated that
a visitation plan be established before final adoptions took place. DCFS, as the minor girl's
custodian, has a continuing obligation to act in her best interests. However, DCFS has acted
exactly to the contrary by myopically promoting the adoptive families' privacy rights at the
expense of the child's right of association with the only family that she has.
__________

8
A writ of mandamus may issue to control an arbitrary or capricious exercise of discretion. Round Hill Gen.
Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

9
See NRS 232.400 (providing, in pertinent part, that DCFS's purposes and duties include [p]rovid[ing] a
comprehensive state system for the coordination and provision of services to children and families who need
assistance relating to juvenile justice and the care, welfare and mental health of children). While this statute
does not use the term best interests of the child, providing for the care, welfare and mental health of children
requires a determination of a course of conduct that would be in the children's best interest. Also, when read in
context with NRS Chapter 432B and NRS Chapter 127, which provide that the termination of parental rights and
adoptions can only be done upon a finding that such action would be in the child's best interest, NRS 232.400
shows that DCFS's duties include ascertaining and furthering goals that are in the child's best interest.

10
We make no determination as to whether visitation is still in all of the girls' best interests. That is a factual
determination that must be made by the family court after presentation of evidence.
opically promoting the adoptive families' privacy rights at the expense of the child's right of
association with the only family that she has. The tragedy of DCFS's conduct is that it places
all of these girls in the position of knowing that they have sisters, but not being able to locate
them until the girls reach the age of majority,
11
and denying them that special bond of
sisterhood.
Accordingly, we deny the original petition challenging the family court's order
granting A.M.S.'s motion to compel release of the names and addresses of her siblings'
adoptive and biological parents.
Shearing, Rose, Leavitt, Becker, Maupin and Gibbons, JJ., concur.
__________
119 Nev. 661, 661 (2003) Barry v. Lindner
JEFFREY A. BARRY, Appellant, v. ROBYN LINDNER, Respondent.
No. 38177
December 31, 2003 81 P.3d 537
Appeal from a final divorce decree. Second Judicial District Court, Family Court
Division, Washoe County; Deborah Schumacher, Judge.
The supreme court held that: (1) witness who resided in Switzerland could not testify
via telephone, (2) default temporary child custody and allowances order was an interlocutory
order not subject to challenge under rule allowing for relief from default final judgment or
order, (3) evidence was sufficient to impute to husband an annual income of $35,000, (4) debt
from foreign company was not a valid community debt, (5) loan husband received from
mother for legal expenses and husband's credit card debt were not community debts, and (6)
sanctions of $500 against husband's attorney were warranted for attorney's failure to follow
Nevada Rules of Appellate Procedure.
Affirmed; sanctions imposed.
Jeffrey Friedman, Reno, for Appellant.
Skinner, Watson & Rounds and Gregory S. Skinner, Reno, for Respondent.
1. Appeal and Error; Witnesses.
The decision whether to permit a witness to testify is within the sound discretion of the district court, and that determination will
not be disturbed on appeal absent an abuse of discretion.
__________

11
See NRS 127.007.
2. Witnesses.
The district court has the authority to control the interrogation of witnesses at trial. NRS 50.115.
3. Witnesses.
Absent a showing of special circumstances, telephonic testimony is not permissible at trial. NRCP 43(a).
4. Witnesses.
Husband's witness, who resided in Switzerland, could not testify in divorce proceedings via telephone, where husband failed to
establish any exigent circumstances, and witness was not an expert witness who had submitted a report. NRS 50.115; NRCP
43(a).
5. Child Custody.
In cases determining custody rights between parents, orders granting temporary child custody made prior to trial are
interlocutory.
6. Child Custody.
District court's default temporary child custody and allowances order was an interlocutory order, and not a final judgment, as it
left final determinations to be made after the later bench trial in divorce, and thus default order was not subject to challenge under
rule allowing for relief from default final judgment or order. NRCP 60(b)(1).
The supreme court will uphold a district court's findings of fact if they are supported by substantial evidence.
8. Divorce.
Evidence was sufficient for trial court to impute to husband an annual income of $35,000 in divorce proceeding, for purposes of
awarding spousal support, where income was based on husband's previous income and continued expenses, husband continued to
receive income from consulting, and there was no evidence besides husband's own self-serving testimony that he was destitute.
9. Husband and Wife.
Debt from foreign company was not a valid community debt in divorce proceeding, where only husband's signature appeared on
the three promissory notes and the restructuring agreement, none of the documents provided an address, telephone number, or any
other information regarding the company, husband failed to provide court with any evidence that company existed, and wife
testified that she had no knowledge of debt.
10. Husband and Wife.
Loan husband received from mother for legal expenses and husband's credit card debt were not community debts in divorce
proceeding, where loan was not acquired for the benefit of the community, it was acquired after the parties separated, and husband
failed to establish his current credit card debt.
Sanctions of $500 against husband's attorney in divorce proceeding were warranted for attorney's failure to follow Nevada Rules
of Appellate Procedure, where brief prepared by attorney made assertions that were not supported by citations to the record,
attorney failed to provide adequate supporting law in brief, and brief failed to comply with form requirements in that it was not
double-spaced and the page numbers were handwritten. NRAP 28(a)(4), (e), 32(a).
CORRECTED OPINION
1

Per Curiam:
As the primary issues of this appeal, we consider whether telephonic testimony is
permitted at trial and whether the district court correctly imputed income to Jeffrey Barry. We
hold that telephonic testimony is only permissible under special circumstances and conclude
that the district court did not abuse its discretion when it imputed income to Barry.
FACTS
On May 16, 1993, Barry and Robyn Lindner were married. The following year, they
had a son.
In 1977, Barry created his own company, Savings and Development Corporation,
which developed insurance programs for credit cards. Between 1977 and 1988, Savings and
Development was very successful, as it earned over a million dollars. In the early 1990s,
Barry liquidated and transferred all of Savings and Development's assets to Gresham Group,
Inc. Gresham Group agreed to compensate Savings and Development on the operation of the
business.
Barry is the sole owner of Destra Risk Management Limited, another corporation he
created before his marriage. In early 1993, Savings and Development assigned its
compensation from Gresham Group to Destra. Between 1993 and January 2000, Gresham
Group paid Destra $716,955.32. During the marriage, Barry used Destra's income to pay the
household and community expenses, approximately $1,500 a month.
When Barry and Lindner married, Lindner was working part-time as a personal
trainer. Lindner quit working after she became pregnant, and after their son was born she was
his primary caregiver. In 1997, Lindner returned to working part-time as a personal trainer.
On March 8, 2000, Lindner filed a complaint for divorce. After Barry accepted service
of the divorce complaint, he went to Europe. Barry claims that before he went to Europe he
met Lindner and her attorney, and following the meeting he was under the impression that
Lindner would not file any documents while he was in Europe.
On March 20, 2000, Lindner filed a motion requesting temporary child custody, child
support, and spousal support. Lindner also requested exclusive possession of the marital
residence, attorney and accountant fees, and costs.
__________

1
This corrected opinion is issued in place of the opinion filed on August 29, 2003.
ney and accountant fees, and costs. Before Lindner filed her motion, Barry signed an
Acceptance of Service, indicating that he received a copy of Lindner's motion. On April 5,
2000, Lindner requested submission of her motion and served Barry with a copy of the
request. On April 12, 2000, Lindner's attorney filed an affidavit of service, stating that on
March 20, 2000, Barry was faxed a letter advising him that he had ten days to respond to
Lindner's motion. Barry did not file a response to Lindner's motion.
On April 19, 2000, the district court entered a default order granting Lindner's motion.
The district court granted Lindner temporary legal and physical custody of the couple's son,
and ordered that Barry would have reasonable visitation rights to be determined at mediation.
The district court ordered Barry to pay $500 a month in temporary child support, to pay
$4,000 a month in temporary spousal support, and to provide medical insurance for Lindner
and their son. The district court also ordered Barry to produce all his financial records, and to
pay Lindner $7,000 for preliminary attorney fees and $5,000 for interim accountant fees.
On May 11, 2000, Barry filed, among other things, a motion to set aside the default
order. The district court denied the motion. Thereafter, Barry filed a motion for visitation,
claiming that Lindner had denied him visitation with their son from the time the parties
separated. In denying Barry's motion, the district court noted that Barry was not granted
temporary visitation because Barry had failed to file an opposition to Lindner's motion
requesting temporary child custody and allowances or to request visitation. The district court
then ordered that Barry be awarded reasonable visitation rights to be determined through
mediation with the Washoe County Family Mediation Program.
Before trial, the district court appointed a special master to review Barry's financial
status because Lindner claimed that Barry was lying to the district court regarding his
finances. In his report, the special master noted that Barry's business transactions and claimed
present financial status were unusual, but stated that there was no evidence of fraudulent
concealment or misrepresentation. Because of Barry's lack of financial records, the special
master noted that Barry's financial status was full of flags.
A two-day bench trial commenced on March 29, 2001. At trial, Barry claimed that he
was destitute. He testified that at various times in 2000, he worked as a consultant, receiving
a total of $16,000 for consulting. Barry claimed that he had no other income, and that his
income from Destra was his separate property.
Barry claimed that he borrowed $375,000 from Glovill Enterprises, which is
incorporated in Panama and located in Switzerland. Barry was unable to produce any
documentation evidencing Glovill's existence. He explained that Carlos Tony Bauman, his
friend and business partner, was his only contact with Glovill.
Bauman, his friend and business partner, was his only contact with Glovill.
Barry produced three promissory notes that he signed for the Glovill debt: $150,000
on January 20, 1995; $125,000 on April 3, 1996; and $100,000 on January 27, 1997. Barry
explained that the loans were made based on his personal reputation, as he was not required
to provide any collateral for the loans. Barry signed each of the promissory notes, which
identified Glovill as the creditor and set forth the terms of repayment. On January 20, 2000,
the repayment terms for the three promissory notes were restructured. The restructuring
document stated that Lindner was jointly liable for the debt, but only Barry, not Glovill or
Lindner, signed the document. Barry testified that he paid Glovill $16,000 in accordance with
the terms of the restructuring document, but Barry could not produce any documentation that
the payment had been made. Barry claimed that he assigned Destra's income from Gresham
Group to Glovill, and had the payments sent to Bauman's address. Barry testified that he
owed Glovill $583,504, including interest.
Barry explained that Glovill had the moneyBrazilian currencydelivered to a
company in Brazil, and that Bauman would call and confirm the delivery; thus, no receipts or
documents were generated. Barry testified that Lindner was aware that he was borrowing
money in Europe to be used for developing a business plan in Brazil. Barry maintained that
Lindner knew that the community had borrowed the money, but he was not sure whether she
knew the amount or that Glovill was the lender.
Thus, Barry claimed that the Glovill debt was a community debt. Additionally, Barry
claimed that his credit card debt and the $18,000 he borrowed from his mother for legal
expenses were community debts.
On the other hand, Lindner maintained that she did not know about the Glovill debt.
Lindner explained that in 1996, she and Barry began having marital problems and she saw an
attorney. The attorney prepared a marital settlement agreement outlining each party's assets
and debts, but the Glovill debt was not included, as she was not aware of it. After Lindner
showed Barry the marital settlement agreement, they stopped the divorce proceedings and
attended marriage counseling. Barry claimed that he did not see the marital settlement
agreement until trial.
Lindner testified that Barry paid all the community expenses during the marriage. She
maintained that she did not know much about Barry's work, including his income. But, in July
1999, she discovered several of Barry's credit card bills, showing that he stayed in expensive
hotels and had expensive dinners. Because she did not know Barry's income and because
Barry claimed that he had no income but still had various expenditures,
had no income but still had various expenditures, Lindner requested the district court to
impute income to Barry. She claimed that Barry spent approximately $40,000-50,000
annually on his personal expenditures and spent an equivalent amount on the community
expenses, totaling $100,000.
Regarding their son, Lindner and Barry agreed that Barry should have visitation
rights. Because Barry had been absent from their son's life for a year, Lindner opined that
Barry should have supervised visitation until their son felt comfortable with Barry. Barry,
however, disagreed with supervised visitation, but agreed that his visitation rights should
gradually increase in time.
After trial, the district court entered its decision. The district court first denied Barry's
request for spousal support, finding that although Barry was not currently
employednotwithstanding his income from consultingBarry had earned a comfortable
living in the past. However, the district court granted Lindner's claim for spousal support,
finding that Lindner quit working to become their son's primary caregiver. Although Barry
claimed that he had no income, the district court imputed an annual income of $35,000 to
Barry based on his previous income and continued expenditures. Thus, the district court
awarded Lindner $350 a month in spousal support for thirty months.
The district court next addressed each party's request for attorney fees. The district
court found that neither party presented any evidence that they could not present their case
without an award of resources to do so. The district court also found that there was no
evidence that either party was guilty of misconduct during the divorce proceedings. The
district court further found that Barry's loan from his mother for legal expenses was not a
community debt.
The district court next addressed the issue of the Glovill debt. The district court first
noted that Barry failed to introduce any documentary evidence that he received the Glovill
money or that he made payments on the three promissory notes, and Barry failed to produce
any evidence that Glovill existed. The district court also noted that Lindner denied any
knowledge of the Glovill debt, and that Barry did not mention the debt on his first sworn
financial statement. Therefore, the district court found that Barry failed to establish that the
Glovill debt was a valid community debt.
Regarding the parties' property, the district court stated that there was no evidence of
personal property assets, and that the majority of the assets were each party's separate
property. The district court denied Barry's claim that his outstanding credit card debt was a
community debt.
The parties stipulated to joint legal custody of their son and that Lindner would have
primary physical custody. The district court set forth a progressive visitation schedule for
Barry, and ordered Barry to pay $500 a month for child support.
DISCUSSION
Telephonic testimony
[Headnotes 1, 2]
Barry contends that the district court erred when it refused to allow Carlos Tony
Bauman to testify at trial by telephone.
2
The decision whether to permit a witness to testify
is within the sound discretion of the district court, and that determination will not be
disturbed on appeal absent an abuse of discretion.
3
The district court has the authority to
control the interrogation of witnesses at trial under NRS 50.115, which provides in pertinent
part:
1. The judge shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence:
(a) To make the interrogation and presentation effective for the ascertainment of the
truth;
(b) To avoid needless consumption of time; and
(c) To protect witnesses from undue harassment or embarrassment.
Before trial, Barry requested that Bauman testify by telephone because Bauman lived
in Switzerland and was beyond the district court's jurisdiction and beyond subpoena power.
Barry argued that telephonic testimony was not unusual as many depositions are taken by
telephone, and the law only requires that testimony be given in open court, not in person.
Barry stated that the parties could fax Bauman the documents that he would testify about.
Lindner, who had no opportunity to depose Bauman before trial, argued that she
would be prejudiced if the district court allowed Bauman to testify by telephone because she
would not be able to confront him, as she would not be able to cross-examine him with
documents and observe his demeanor. The district court agreed, finding that the
Confrontation Clause issue weighed against permitting Bauman to testify by telephone. The
district court noted that there was no statutory authority for telephonic testimony at trial, and
expressed concern that it would lack contempt power over Bauman if he testified by
telephone. Therefore, the district court ruled that Bauman would not be permitted to testify by
telephone.
NRCP 43(a) provides: In all trials the testimony of witnesses shall be taken orally in
open court, unless otherwise provided by these rules or by statute.
__________

2
Barry also contends that the district court erred in not allowing the special master to testify. The special
master would have testified that it was his business practice to destroy business records after a business
transaction was complete. We conclude that the district court did not abuse its discretion on this issue because
the special master's business practices were not relevant.

3
See Petty v. State, 116 Nev. 321, 325, 997 P.2d 800, 802 (2000); Rippo v. State, 113 Nev. 1239, 1261, 946
P.2d 1017, 1031 (1997).
by these rules or by statute. No statute or rule provides for telephonic testimony at trial.
[Headnote 3]
Other jurisdictions have addressed the issue of telephonic testimony. Some
jurisdictions have issued guidelines and procedures governing telephonic testimony,
4
while
others have only permitted telephonic testimony under special circumstances, i.e., exigency or
consent and knowledge of the witness' identity and credentials.
5
However, in the absence of
such special circumstances, generally courts have not permitted telephonic testimony.
6
We
agree with the jurisdictions that use the special circumstances standard. Thus, absent a
showing of special circumstances, telephonic testimony is not permissible at trial.
[Headnote 4]
Using this standard, we conclude that the district court did not abuse its discretion in
not allowing Bauman to testify by telephone. Barry failed to establish any exigent
circumstances, and Bauman was not an expert witness who had submitted a report.
Default order
Barry filed a motion to set aside the default order granting Lindner temporary child
custody and allowances under NRCP 60(b)(1) on grounds of mistake, inadvertence, surprise
or excusable neglect.
7
The district court denied Barry's motion, finding that Barry's failure
to respond was not a result of any of the four Rule 60{b){1) grounds for setting aside an
order of default.
__________

4
See, e.g., The Florida Bar: In re Rules of Summary Proc., 461 So. 2d 1344, 1345 (Fla. 1985) (adopting rule
to allow telephonic testimony of nonparty witnesses at trial); Town of Geneva v. Tills, 384 N.W.2d 701, 705
(Wis. 1986) (noting that a trial court may permit telephonic testimony if the right to a fair trial is preserved).

5
See, e.g., Elson v. State, 633 P.2d 292, 302 (Alaska Ct. App. 1981) (affirming the district court's decision
allowing the state's chemist to testify at the sentencing hearing by telephone where defense counsel had a copy of
the chemist's report and the chemist was testifying to that report), aff'd, 659 P.2d 1195 (Alaska 1983); Ferrante
by Ferrante v. Ferrante, 485 N.Y.S.2d 960, 962 (Sup. Ct. 1985) (allowing a ninety-two-year-old plaintiff to
testify by telephone when she was unable to travel to New York from Florida); Matter of W.J.C., 369 N.W.2d
162, 163-64 (Wis. Ct. App. 1985) (concluding that a patient's due process rights were not violated when the
court-appointed psychiatrist and psychologist, each of whom had already filed a full report, testified by
telephone in a civil commitment hearing).

6
See, e.g., Rose v. State, 742 S.W.2d 901, 905 (Ark. 1988) (excluding a police officer's telephonic testimony
at a suppression hearing because it was not shown that he was unavailable); Aqua Marine Prod. v. Pathe
Computer, 551 A.2d 195, 200 (N.J. Super. Ct. App. Div. 1988) (concluding that the trial court erroneously
permitted telephonic testimony absent special circumstances).

7
Specifically, NRCP 60(b)(1) provides: On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect.
Barry's failure to respond was not a result of any of the four Rule 60(b)(1) grounds for setting
aside an order of default. On appeal, Barry contends that the district court erroneously denied
his motion to set aside the default order.
Preliminarily, we note that NRCP 60(b) applies only to final judgments. By its terms,
the rule allows parties to seek relief from a final judgment, order, or proceeding.
8
Federal
courts have interpreted identical language in the analogous federal rule as permitting a court
to grant relief only from a judgment, order, or proceeding that is final.
9
Our conclusion is
bolstered by this interpretation, because the Nevada Rules of Civil Procedure are based
closely on the federal rules.
10

[Headnote 5]
We have previously noted that orders for preliminary allowances pending litigation in
divorce cases, including counsel fees and support, are interlocutory, not final judgments.
11
Likewise, in cases determining custody rights between parents, orders granting temporary
child custody made prior to trial are also interlocutory.
12

[Headnote 6]
Here, the district court's default order was an interlocutory order, and not a final
judgment. The order merely granted temporary child custody and preliminary allowances,
leaving the final determinations, such as the ultimate awards of custody and spousal support,
to be made after the later bench trial. As this default order was not a final judgment, it was
not subject to challenge under NRCP 60(b).
13

__________

8
NRCP 60(b)(1) (emphasis added).

9
See Pierce v. Multnomah County, No. CV-90-917-ST, 2001 WL 34047079, at *1 (D. Or. May 23, 2001)
(The qualifying work [sic] final' applies to order,' as well as judgment' and proceeding.' Hence,
interlocutory judgments are not brought within the restrictions of the rule.' (emphasis added) (quoting Fed. R.
Civ. P. 60(b) advisory committee's note)).

10
Executive Mgmt., Ltd. v. Ticor Title Ins. Co., 118 Nev. 46, 53, 38 P.3d 872, 876 (2002) (stating that federal
decisions involving the Federal Rules of Civil Procedure provide persuasive authority when this court examines
its rules).

11
See, e.g., Engebretson v. Engebretson, 73 Nev. 19, 307 P.2d 115 (1957) (dismissing for lack of
jurisdiction an appeal of an order granting preliminary allowances of counsel fees and support in a divorce case
because such order is interlocutory); cf. Lee v GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000)
(noting that a final judgment disposes of the issues presented and leaves nothing but post-judgment issues for the
court's future consideration).

12
E.g., Lester v. Lennane, 101 Cal. Rptr. 2d 86, 101 (Ct. App. 2000) (A temporary custody order is
interlocutory by definition, since it is made pendente lite with the intent that it will be superseded by an award of
custody after trial.); In re Marriage of Denly, 590 N.W.2d 48 (Iowa 1999) (determining that temporary child
custody orders in marriage dissolution cases are interlocutory rather than final judgments).

13
See also Pinson v. Triplett, 458 N.E.2d 461 (Ohio Ct. App. 1983) (concluding that a default order
resolving liability but setting a future date for determining damages was not a final, appealable order).
Accordingly, the district court properly denied the motion to set aside the default
judgment, albeit for the wrong reasons.
14
We note that Barry could have moved the court to
reconsider its default order. Under NRCP 54(b), the district court may at any time before the
entry of a final judgment, revise orders which, like the one at issue, adjudicate fewer than all
of the claims or the rights and liabilities of all the parties.
15

Substantial evidence
[Headnote 7]
Barry contends that the district court made several erroneous findings, in particular,
imputing income to him and finding that the Glovill debt, the loan from his mother, and the
credit card debt were not community debts. This court will uphold a district court's findings
of fact if they are supported by substantial evidence.
16

[Headnote 8]
The district court imputed an annual income of $35,000 to Barry based on his
previous income and continued expenditures. We conclude that substantial evidence supports
this finding. There was no evidence besides Barry's self-serving testimony that he was
destitute. Barry received income from consulting, and he continued to spend money on
various expenditures. Also, Barry's previous income was significant.
[Headnote 9]
We next conclude that the district court's finding that Barry failed to establish that the
Glovill debt was a valid community debt is supported by substantial evidence. Granted, Barry
produced the three promissory notes and the restructuring agreement. However, only Barry's
signature was on each of the documents, and none of the documents provided an address,
telephone number, or any other information regarding Glovill. And, although Barry did not
know Glovill's address and other information by memory, Barry failed to provide the district
court with any documentation that Glovill existed. Furthermore, even though Barry testified
that Lindner knew about the Glovill debt,
__________

14
See, e.g., Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987) (concluding that this court
will affirm [an] order of the district court if it reached the correct result, albeit for different reasons); Attorney
General v. Board of Regents, 114 Nev. 388, 403, 956 P.2d 770, 780 (1998); Hotel Riviera, Inc. v. Torres, 97
Nev. 399, 403, 632 P.2d 1155, 1158 (1981).

15
NRCP 54(b) provides:
In the absence of [the entry of final judgment upon determination that there is no just reason for delay],
any order or other form of decision, however designated, which adjudicates fewer than all of the claims
or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the
claims or parties, and the order or other form of decision is subject to revision at any time before the
entry of judgment . . . .

16
See Gepford v. Gepford, 116 Nev. 1033, 1036, 13 P.3d 47, 49 (2000).
Lindner knew about the Glovill debt, the district court was at liberty to weigh this testimony,
which it did, ruling that Lindner had no knowledge about the Glovill debt as she had testified.
17

[Headnote 10]
Finally, we conclude that substantial evidence supports the district court's finding that
Barry's loan from his mother for legal expenses and credit card debt were not community
debts. First, contrary to Barry's assertion, the loan was not acquired for the benefit of the
community, and it was acquired after the parties separated. Next, as the district court noted,
Barry failed to establish his current credit card debt.
Sanctions
[Headnote 11]
This court expects all appeals to be pursued with high standards of diligence,
professionalism, and competence.
18
The Nevada Rules of Appellate Procedure impose
affirmative obligations on appellate counsel.
19
This court may impose sanctions against
appellate counsel for failing to comply with the Nevada Rules of Appellate Procedure.
20

Our review of the briefs prepared by attorney Jeffrey Friedman reveals that appellant's
opening and reply briefs are wholly deficient in that they fail to comply with the Nevada
Rules of Appellate Procedure. First, the briefs have failed to comply with NRAP 28(e), which
provides in part: Every assertion in briefs regarding matters in the record shall be supported
by a reference to the page of the transcript or appendix where the matter relied on is to be
found. Several assertions in the opening brief are not supported by citations to the record on
appeal, and the reply brief contains only one citation to the record on appeal. Although the
opening brief provides some citations to the record in the statement of facts, the citations are
often redundant and hard to follow. In some instances, the opening brief exaggerates the
record;
21
while in other instances, the citations fail to support the asserted allegations.
__________

17
See Rowland v. Lepire, 99 Nev. 308, 312, 662 P.2d 1332, 1334 (1983) (noting that it is exclusively within
the province of the trier of fact to weigh evidence and pass on credibility of witnesses and their testimony).

18
Cuzdey v. State, 103 Nev. 575, 578, 747 P.2d 233, 235 (1987).

19
See Moran v. Bonneville Square Assocs., 117 Nev. 525, 530 n.13, 25 P.3d 898, 901 n.13 (2001).

20
See NRAP 28A(b); see also Smith v. Emery, 109 Nev. 737, 743, 856 P.2d 1386, 1390 (1993).

21
For example, the opening brief states that Lindner removed Barry from their home by threatening him
with a gun and a verbal threat to call the police on him.' Although Lindner testified that she threatened to call
the police, Lindner did not testify that she threatened Barry with a gun and there is no other evidence in the
record to support that assertion.
Second, the opening and reply briefs fail to provide adequate supporting law. NRAP
28(a)(4) requires that arguments contain citations to the authorities, statutes and parts of the
record relied on. The opening brief lacks any supporting law in the argument section. Rather,
the opening brief contains a separate section titled Relevant Law, which is deficient
because the supporting law is only a list of general propositions with little, if any, analysis.
Additionally, many of the arguments in the reply brief lack any supporting law.
Finally, we note that the opening and reply briefs fail to comport with certain form
requirements. NRAP 32(a) requires any brief to be typed, numbered at the bottom, and
double-spaced. Here, the briefs are not double-spaced (35 lines on a 28-lined page) and the
page numbers have been handwritten.
In Smith v. Emery,
22
we imposed a one thousand dollar sanction for failing to comply
with NRAP 28, and in doing so, we stated: We intend to impress upon the members of the
bar our resolve to end the lackadaisical practices of the past and to enforce the Nevada Rules
of Appellate Procedure. We again must impress upon the practitioners appearing before this
court that we will not permit flagrant violations of the Nevada Rules of Appellate Procedure.
Thus, we sanction Friedman in the amount of five hundred dollars ($500) for his violations of
the Nevada Rules of Appellate Procedure. Friedman shall remit this sum within thirty days of
the filing of this opinion to the Nevada Supreme Court Law Library and shall file written
proof of payment with the clerk of this court within the same time frame.
CONCLUSION
We hold that telephonic testimony is not permissible except under special
circumstances. Because Barry failed to show any special circumstances, we conclude that the
district court did not abuse its discretion when it refused to allow Bauman to testify at trial by
telephone.
Barry's NRCP 60(b) motion to set aside the default order was improper. Although the
district court erroneously reached the merits, it correctly denied the motion. We also conclude
that substantial evidence supports the district court's findings of fact.
23

Accordingly, we affirm the district court's judgment.
__________

22
109 Nev. at 743, 856 P.2d at 1390.

23
Barry contends that the district court erred in awarding spousal support and visitation. We conclude that
Barry's arguments lack merit.
__________
119 Nev. 673, 673 (2003) Investiture Ceremony
INVESTITURE
OF
JUSTICE A. WILLIAM MAUPIN
JUSTICE MARK GIBBONS
Monday, January 6, 2003
2:00 p.m.
Old Assembly Chambers
Capitol Building
Carson City, Nevada
IN THE SUPREME COURT OF THE
STATE OF NEVADA
Chief Justice Deborah A. Agosti
Justice Miriam Shearing
Justice Robert E. Rose
Justice Myron E. Leavitt
Justice Nancy A. Becker
Justice A. William Maupin
Kenny C. Guinn, Governor of Nevada
Charles J. Short, Court Administrator,
Eighth Judicial District Court
INVESTITURE OF A. WILLIAM MAUPIN
INVESTITURE OF MARK GIBBONS
Michael Gibbons, District Judge
Nancy Oesterle, Justice Of The Peace
__________
INDEX
OF
CEREMONY PARTICIPANTS
PAGE
Invocation, Charles J. Short, Court Administrator, Eighth Judicial District Court ..............679
Opening Remarks, Chief Justice Agosti .............................................................................. 679
Pledge of Allegiance, Austen Walsh.................................................................................... 679
Remarks, Kenny C. Guinn, Governor of Nevada ................................................................ 682
.....................
Investiture of Justice A. William Maupin ............................................................................ 685
Remarks, Chief Justice Agosti ..............................................................................................685
Administration of Oath to Justice Maupin, Chief Justice Agosti..........................................685
Acceptance, Justice Maupin ................................................................................................ 686
.....................
Investiture of Justice Mark Gibbons .................................................................................... 687
Remarks, Michael Gibbons, District Judge ..........................................................................687
Remarks, Nancy Oesterle, Justice of the Peace ....................................................................691
Administration of Oath to Justice Gibbons, Chief Justice Agosti ........................................699
Acceptance, Justice Gibbons ................................................................................................699
Closing Remarks, Chief Justice Agosti ................................................................................702
INVESTITURE PROCEEDINGS
__________
Bailiff:
All rise. The Supreme Court of the State of Nevada convenes in special session for the
administration of the official oaths of office to the Honorables A. William Maupin and Mark
Gibbons, Chief Justice Deborah A. Agosti presiding. Please remain standing.
Chief Justice Agosti:
Good afternoon. The Nevada Supreme Court is in a special session to conduct the
investitures of William Maupin and Mark Gibbons. We will proceed with the invocation and
the pledge of allegiance. All please remain standing for the invocation to be given by Chuck
Short who is the Court Administrator for the Eighth Judicial District Court.
Charles J. Short:
Let us bow our heads. Lord, we ask Your blessing on all those gathered here today in
Nevada's capitol, home of our executive, legislative, and judicial branchesthe pillars of our
democracy. We thank You for the return of Bill Maupin as a justice of our supreme court, and
for the selection of the state's newest justice, Mark Gibbons. May his experience as a
respected attorney and highly regarded trial court judge serve him well as he embraces this
new opportunity. With his selection we are reminded of our retiring justice, Cliff Young, for
whom we ask Your blessing. We rejoice in the recognition that has been accorded to both
Justice Maupin and Justice-elect Gibbons by our state citizens. May they and all the members
of this esteemed court be blessed with wisdom, strength to find common ground, and years of
good health to pursue their arduous duties. For this we ask in Your holy name. Amen.
Thank you, Mr. Short. Ordinarily, the task of leading the pledge of allegiance falls
upon the Chief Justice of the Supreme Court of Nevada. But, I am going to reassign that task
today to an executive official who is here visiting us, a person for whom I have the highest
regardcapable, able, tough as nailsmy son, the president of the student body of Our Lady
of Snows Elementary School. Austen Walsh, if you'll step forward to lead us in the pledge.
Austen Walsh:
I pledge allegiance to the flag of the United States of America and to the Republic
for which it stands, one nation under God, indivisible, with liberty and justice for all.
Thank you, Austen. You may be seated.
It's a pleasure and privilege to be here today to celebrate the commitment of two
individuals to the Supreme Court of Nevada, the first being Justice Bill Maupin who has just
completed two years as the Chief Justice of the Nevada Supreme Court and I'm sure when
people start talking about the Chief, I'm going to look over to him before it occurs to me that
my head doesn't turn that way any more; and the second individual, of course, is Judge Mark
Gibbons of the Eighth Judicial District Court, soon to be Justice Mark Gibbons, our newest
associate justice. Echoing the sentiments of Mr. Short, the very, very able administrator of the
court in the Eighth Judicial District, this is almost a bittersweet moment because by honoring
and celebrating the investiture of Mark Gibbons, we are also saying goodbye to our good
friend and colleague, Justice Cliff Young. I've been proud and privileged to serve the past
four years with Justice Young, as have we all. He's been such an inspiration, a fountain of
wisdom, and a colleague in all the positive senses of the wordvery much the gentleman.
I would like to introduce the other members of the court who are here. Starting at my
left, Justice Nancy Becker; my immediate right, Justice Robert Rose, who was my first Chief
Justice. He presided over the swearing-in ceremony for Nancy, myself, and Myron. To my
right, Vice Chief Justice Miriam Shearing; and to her right, Justice Myron Leavitt; and to his
right, Justice William Maupin.
There are constitutional officers and dignitaries present who I would also like to
introduce at this time. First and foremost, of course, is, newly sworn in this morning,
Governor Kenny Guinn. And we have with us, and we are thrilled to have him here today,
along with his wife, Senior Justice Cliff Young. We also have the State Controller, Kathy
Augustine. And from the Ninth Judicial District Court, we have Judge Michael Gibbons. We
have with us the most dynamic Justice of the Peace in the State of Nevada, Judge Nancy
Oesterle. And performing the invocation, an individual that I would like to reintroduce to you
nowa man that I admire very much; he has a very difficult job managing the administrative
affairs of the largest district in the State of NevadaChuck Short, Court Administrator for
the Eighth Judicial District.
Aside from these, we also have with us individuals who have accompanied Justice
Maupin here today to celebrate his recommitment to the Supreme Court of Nevada. That
includes his daughter, Allison Maupin. And we have Sandy Placak, his niece. And then three
very close friends of Justice Maupin's. First is Liza Schumacher. Next, she's here today as
Justice Maupin's friend, but I think she's a friend to a great many of us, a woman who used to
come over to my house and play with my kids when they were babiesLucy Foley.
come over to my house and play with my kids when they were babiesLucy Foley. And
finally, May Mushkin.
Now, accompanying Justice-elect Gibbons, we have first and foremost, of course, his
wife, Sandy Gibbons. You know when I was invested, my mother traveled from Ohio to be
here, and I think she was more nervous than I was and that is saying a lot. I think moms take
these momentous events particularly to heart and I'm sure she's extremely proud of youI'd
like to introduce Justice-elect Gibbons' mother, Dorothy Gibbons. And a cast too numerous to
mention, so I've been told not to, but there are other members of Justice-elect Gibbons' family
here. If you would all stand and be recognized as a group, I'm sure everyone would like to
know who you are.
We will now introduce Justice-elect Gibbons' former staff members from the Eighth
Judicial District Court. This is a very pleasant task. These are the individuals that worked so
hard with Justice-elect Gibbons when he was in the trial court and also serving as the Chief
Judge for that very busy trial court. We have Tina Hurd, Jason Cook, Lisa Cologna, and
Renee Silvaggio. And then there is the small matter of the current staff. First, and we're so
happy that she will be working with Justice-elect Gibbons because she was the secretary and
assistant to Justice YoungJan Doescher. And the law clerks, we can't forget the law
clerksCory Watkins and Sonia Williams.
There are many members of the judiciary present, and I don't know that we will have
time to recognize everyone individually, but we did particularly want to mention the
presencebecause we're very honored to have his presence here todayJudge Howard
McKibben of the U.S. District Court. We have a number of district judges. Some have
traveled a great distance to be here; others have come down the road from Reno to be here,
but if all the district judges who are present would stand and be recognized at this time. If I
knew it was just going to be Jan and Deborah and Connie, I could have gotten away with
saying that instead of saying, I won't introduce all those judges. That would be Jan Berry,
Deborah Schumacher and Connie Steinheimer, women that I proudly worked with when I
was in the district court and who I'm glad to see here today and who I swore in this morning.
We have a number of justices of the peace, municipal court judges, and I believe in
the case of Judge Johnson, at least one retired member of that group of judges, so if all of you
would please stand and be recognized.
I understand that there are a number of state legislators present today; if all of you
would stand so that we know who you are. If there are any members of the Senate, members
of the Assembly, who would like to stand and be recognized.
There are, in addition to the many dignitaries who have been introduced so far, three
individuals who I would like to introduce to you at this time. We're very honored to have with
us today the president of the National Judicial College, a very prestigious organization
situated in Reno, Nevada, and that is the Honorable William Dressel. We also have present
on behalf of the State Bar of Nevada its executive director, Allen Kimbrough. And saving the
best for last, of course, because she said she has got the Queen Mum wave down, we'll get
a glimpse of it in a minute, is the president of the State Bar of Nevada, Gloria Sturman.
Our first speaker today is a man who needs no introduction, but he's going to get one
anyway. That is Governor Kenny Guinn, who begins today his second term as the Governor
of the State of Nevada. A man for whom I have the highest regard and I know I'm not alone in
that admiration. Governor Guinn has been beyond a politician. He has been a statesman who
has tried so hard to do what is right for Nevada, taking the road sometimes that is more
difficult in order to achieve the right and just result; an individual with dedication, integrity,
and compassion, and I know I'm not alone in those sentiments. I think Nevada is very
fortunate, particularly at this time with so much uncertainty as we face this next legislative
session, to have the leadership of Governor Guinn.
Governor Guinn:
Well, thank you very much. It is an honor to be here today. I do want to apologize
before I say anything. It's not that I'm going to say anything that you wouldn't like, but I do
want to apologize for the fact that we still have about four hundred guests over at the
mansion, and I told them I would be back. And as you remember, when you give your word
you need to follow through. So after I speak, knowing Mark and having listened to him, I
wished he was a speaker here today because I heard him at a couple of other swearing-in
ceremonies for judges. He did a phenomenal job, and he gave me that speech to use today. So
I will excuse myself after just a few minutes here.
And I want to say to you that if you are feeling sorry for me right now, please don't. If
you ever have to have somebody at your back, you would want this group of honesty,
integrity, friends, and great people at your back. It's all of you who are facing them that have
to worry. You never want to have to face this group. If you do, you'll need more help than I
can give you. But it is a pleasure because I've worked with the individuals here, along with
Justice Cliff Young, for the last four years. We spent about eight days in that period of
timetwo days a year roughlyat the pardons board, and it is one of the most difficult jobs.
And for me, as a nonlawyer, I must tell you that I learned a great deal about the difficulties
that I would have being every day in the positions they work.
work. It's an awesome responsibility when you are looking at someone who has been in
prison for maybe twenty-five or thirty years and you look at all the history of it, and you have
to make a quick decision: do they get a break or do they get out or do they stay in the rest of
their life. And those are difficult times. But I couldn't think of any other group I'd want to be
with outside of you, and I would say that to you publicly, because they've been very patient
with me, and I think it's been very good. And to you, Justice Young, thank you for not always
correcting me when I needed to be corrected. I really appreciate it.
But Madam Chief Justice, Honorable Justices of the Supreme Court, and Justice-elect
Mark Gibbons, and reelected past-Chief Justice Bill Maupin. What a fine man he is. He was
the Chief Justice and due to the fact that Justice Young was going to be retiring, it was kind
of a really great thing for him to do, along with the approval of the other justices, for him to
step down and allow Justice Young, after all of these many, many years, to go out of his
service as a Chief Justice of the Supreme Court of the State of Nevada, and for that I thank
you. I think it was a marvelous, humanistic thing to do and so thank all of you for doing that.
It certainly is a great pleasure and honor for me to be here to join with you in this very
special occasion, especially for those newly elected and reelected individuals. I'd like to first
recognize Justice-elect Mark Gibbons and his family and friends. And I want to thank all of
you for coming, because without a good family and without the support of a family, these
kinds of milestones in one's life could never be reached, and so I want to thank you for taking
the time and the effort to come and be with Mark today. (Speaking to Sandy Gibbons.) It's a
very special day and for you, as a spouse and the individual who I think has really helped him
tremendously, thank you for being a great supporter of Mark. I think that's wonderful. I know
that you must all be very proud to be here today also.
And Mark, I offer you my heartfelt congratulations on your success. A brief look at
your accomplishments shows why you are held in such high esteem by your colleagues and
the citizens of this state. I object to the fact that you were anointed. I know what it feels like
to not be anointed. You set the stage by your hard work and your courageousness so that
when people saw your name they knew what you stood for and therefore you were
overwhelmingly elected, of course, and you are the only person that got more votes than I did.
Some of you may not know this, but in 1998, Mark received a ninety-seven percent
recommended retention rating. That rating has not been exceeded by any district judge since
the Clark County Bar Association first began conducting surveys. That is a phenomenal feat
year after year handling the tough cases that one must take. I think it really speaks for itself.
Beyond the honors you have received, Mark, and your professional accomplishments,
is the manner in which you perform your work. You run your courtroom with the highest of
integrity and you treat each person with dignity and respect and understanding, which we all
should do no matter what level we attain.
Most noteworthy is your commitment to Nevada's senior citizens. As demonstrated by
your many years of service to the Senior Citizens Law Project, you have earned the respect of
all those with whom you work. I know that your diligence and commitment will continue in
your new role as a Justice of the Nevada Supreme Court.
Again, I offer you my congratulations, Mark, and I know that you will serve the
people of Nevada with dedication and distinction, and I know that you will serve well on
those two tough days every year that we have. You will do it with great humanistic
relationships for the cause of good for people.
Also, I offer my congratulations to my good friend, Justice Bill Maupin, immediate
past Chief Justice. And I want to welcome Bill's family here today. Bill, your knowledge of
the law and wisdom of the law, combined with your compassion for others, has earned you a
second term as a supreme court justice. I know you are proud of that, but I think I'm even
more proud of it. Your service on this court, as well as during your time as Chief Justice,
clearly demonstrates that you possess the experience, skills and personal qualities to be a
supreme court justice. It also indicates that you have all the means and the tools to meet the
special challenges you always face. It also says that you have sacred responsibilities you will
meet with great dignity and that that which a justice of this court faces on a daily basis, you
handle so well. Again, I want to congratulate Bill on a well-deserved second term.
In closing, I would like to thank all of the members of this court, the highest state
court in Nevada, for their hard work. I know what they do. They have really done a
tremendous job in the fastest growing state in America and some of the fastest growing urban
areas, especially in Clark County, to take on the number of cases they have that were
backlogged and to reduce them. That is an indication of intelligence, hard work, and
dedication to get the job done. As we continue to be the fastest growing state in the nation, I
know your caseloads will become more burdensome each day, and sometimes without more
staff and without more help. However, no matter how busy you are, each of you maintains the
integrity of this esteemed court and that's what courts are built on, the dignity and the esteem
with which they are held by the people who elect them. And it always considers, which is
essential, each issue in light of fairness and justice. If I ever had to be in front of a court
asking for a pardon, which I fully don't intend to do, I would choose this court because I've
watched them now for four yearsthey use toughness, fairness, and heart to make their
decisions.
yearsthey use toughness, fairness, and heart to make their decisions. I'm very proud of our
judicial branch and all Nevadans should feel blessed. We have a dedicated supreme court.
One which works to ensure that all citizens have equal access to the law, which is critical to a
successful court.
I want to thank you for making me a part of this special ceremony, and I want to say
God Bless to each of you, your families, and this great State of Nevada. And again, I would
only say I'm very proud to call each one of these individuals my peers in terms of a
professional role that we play for this state and also as friends, and I want to let them know
that they have the highest respect from me that anyone could possibly have. And I know that
the new member coming on, Mark, we're very excited about you coming on. You are taking
the place of a great man. They are hard shoes to fill, but I can't think of anybody who would
do a better job than you coming on to the Supreme Court for the State of Nevada. So thank
you for giving your time and effort out of your life to do this very important job for Nevada.
Thank you very much.
Governor Guinn, thank you very much. We know your time is very limited,
particularly today. We appreciate your time and your interest in being here. In a moment, we
will do the first of our investitures. We will swear in Justice Maupin. I will administer the
oath of office.
INVESTITURE OF JUSTICE A. WILLIAM MAUPIN
__________
Justice Maupin, because this will be the commencement of his second term, has
elected not to have individuals speak on his behalf. It will be a little bit different from the
presentation that we will have for Justice-elect Gibbons. And because Justice Maupin has
elected not to have anyone speak for him, he will make brief remarks himself. I'll just take it
upon myself to be his speaker for a minute or two and just say what a hard act he is going to
be to follow as the Chief Justice. Bill has worked tirelessly for the good of the court for the
past two years. To watch him as he gets to know peopleI call it working the crowdbut
Bill seems to know everybody, and everybody knows Bill and everybody likes him. He's
worked very hard. He's a wonderful representative for the court. His high intellectual effort is
always appreciated. His background as an attorney, I think especially lends to his expertise as
a very, very, very strong contributor to this court and I am honored to be his colleague
and honored to consider myself his friend.
as a very, very, very strong contributor to this court and I am honored to be his colleague and
honored to consider myself his friend. I also think he has wonderful taste in the people that he
has asked to hold the Bible, so we will at this time begin the oath of office for Justice
Maupin. (Chief Justice Agosti administered the oath of office to Justice Maupin.)
Congratulations. You are now duly installed. Ladies and gentlemen, I offer to you
Justice Bill Maupin.
Justice Maupin:
Six years ago I stood in this room, and I said at that moment that that was the most
important moment of my professional life. And I say it again today after having served on this
court for six years and having been blessed by a reelection by the people of this state: this is
truly the most important moment of my professional life, and I am very grateful for the
opportunity to serve another six years. That reelection would not have been possible if it was
not for the people sitting behind me and Justice Young, my colleagues on this court. What an
honor to be in the same room with them.
The new era that this court represents now makes it an effective, collegial, academic
court that does its very utmost to serve the people of this state. This reelection is also about
the commitment of the legal system in Nevadathe lawyers that come to court and represent
people with their real-life problems every day. It is the legal system that is symbolized by this
court and all the courts around this state that provides the great barrier between the power of
government and the governed, its people.
Let me say just a word about one of my colleagues who retires and is about to be
replaced by one of the most talented lawyers and judges in our state: a two-term
Congressman; years in the state Senate representing Washoe County; the eighteen years on
the Nevada Supreme Court. Let me tell you, when I first walked into my first conference with
him it was very intimidating, but he made me feel welcome and he has been my mentor.
Nevada is proud of him and I can speak for all of us Nevadans when I say that he has honored
us with his service. So I would like all of us to applaud Chief Justice Cliff Young. (Standing
ovation for former Chief Justice Young.)
Lucy; May; my niece, Sandy; Liza; and my daughter, Allison, thank you for being
with me today. And I want to thank one other person before we commence into his
investiture, Mark Gibbons. Thank you for the years of your friendship. Thank you for your
years of comradeship as fellow trial lawyers in the state bar in Clark County. Thank you for
representing my family when called upon to do so, and I couldn't have been more proud than
when you were elected to succeed me in Department Seven in the Eighth Judicial District
Court. And I am glad to see that you kept much of the staff there including Lisa, the bailiff
and Tina Hurd.
the staff there including Lisa, the bailiff and Tina Hurd. (Renee Silvaggio is a newer
addition.) And I couldn't be more pleased that a lawyer and a judge of your talent, your
dedication, and your ability is joining us here. So welcome. Ladies and gentlemen, you are
about to hear from some wonderful people, but please understand and appreciate this new
colleague of ours is really something special. Thank you very much for this moment, thank
you very much for this day, and thank you for attending.
INVESTITURE OF JUSTICE MARK GIBBONS
__________
We will now proceed with the investiture of Mark Gibbons. Mark comes from a
family where law seems to run just a little bit deep. His first speaker is his brother, Mike
Gibbons, who I actually knew before I met Mark. Mike is a judge and has been a judge in the
district court in the Ninth Judicial District Court in Minden and Gardnerville, a beautiful area.
He's a very well-regarded judge, a fine person, and a good friend. Before becoming a district
judge, Mike was a member of the district attorney's office. He was in private practice, and he
even did a term clerking for Judge McKibben, who is here today.
And it's wonderful always to have one brother speak favorably about another. It
doesn't happen as often as it used to in my family. Austen is not alone in the world, he has a
fifteen-year-old brother who is also a president. There's not enough storage room in our house
for all the extra ego going around, I tell you. But it's wonderfulnot just that we have
brothers who are so close, but brothers who share a love of the law and the profession of
judging. I think the profession of judging is a little bit different from being a lawyer, and I
think they would agree. So without further ado, Mike, come forward. Judge Gibbons.
Judge Michael Gibbons:
Madam Chief Justice, members of the court, other elected officials, and distinguished
guests, it is certainly an honor to be here today as a member of the Nevada judiciary, but more
important as Mark's brother. We are also very fortunate and privileged to have most of our
family here today too.
How many of you remember where you were on Friday, January 3, 1997? That was
the scheduled time for the investiture in Las Vegas of the newly elected district court judges
in Clark County, including Judge-elect Mark Gibbons. The supreme court justices were
planning on attending. I was scheduled to speak for Mark.
Mark. But do you remember what happened right before that? We had the one-hundred-year
flood here in northern Nevada. The streets were inundated with water, the airport was covered
too, and it was impossible to get to Las Vegas. Judge Bill Maupin was in Las Vegas because
his investiture as the newest supreme court justice was set for the following Monday in
Carson City. He assumed his duties early and presided over the Las Vegas investiture
proceedings without the assistance of any of us from here in northern Nevada. It was quite
appropriate though because Mark was succeeding Judge Maupin in Department Seven of the
district court. Now he'll be joining Justice Maupin as a colleague on the supreme court.
It was eight years ago in January 1995 that Mark was present at my investiture as a
district court judge in Minden. I had come to Nevada in 1980 at Mark's urging. Judge Howard
McKibben had offered me a position as his law clerk, and Judge McKibben was the primary
speaker at my investiture fourteen years later. It is certainly an honor to have him here today,
and he is now the Chief United States District Judge for the District of Nevada. And also, his
daughter, Susan Wilson, is working for the supreme court and so she'll be working now with
Mark. So, it's a pretty nice experience to see this go through like that. Eight years ago, Justice
Shearing also attended my investiture.
But the main reason I'm mentioning what happened on that day eight years ago is that
Chief Justice Cliff Young administered the oath of office to me. Mark has the honor of
succeeding Chief Justice Young. When Cliff Young was sworn in as a justice in 1985, he
joined his brother, Llewellyn Young, on the bench. Mark and I are proud to follow Chief
Justice Young and Judge Llewellyn Young in keeping the family-judge tradition alive here.
I've reminded Mark over the last six years that although he has more than five years in age
and a few pounds on me, I have two years of judicial seniority. But I will have to relent now
because after he takes the oath of office he will be one of my seven bosses.
Mark was raised in Whittier, California. As the oldest of three brothers, Mark was the
leader. He worked hard at whatever he tried. My parents always stressed the importance of
education. Mark graduated from the University of California at Irvine in three and one-half
years. I hated to see him leave early though because he gave up his home he rented in
Newport Beach where I liked to visit. But Mark had long been interested in the law, and so he
continued his education at Loyola University School of Law in Los Angeles. He graduated
from law school in two and one-half years and then immediately sat for the California bar
examination. He didn't wait for the results though because he recognized Nevada as a
promised land.
He journeyed to Las Vegas in February 1975 and decided to sit for the Nevada
summer bar exam. He worked as a law clerk, lived in a tiny place, and studied in his spare
time. You all know the results. Mark was admitted to both bars, and he began a very
successful civil law practice in state and federal courts.
In 1996, Judge Maupin announced that he would give up his seat and run for the
position of supreme court justice. Mark decided to try and fulfill a deeply held aspiration and
career goal and become a district court judge. Department Seven was an open seat, and a
long-time municipal court judge also decided to campaign for that position. Mark
demonstrated again that hard work will lead to success. In the vigorously contested campaign,
Mark scored what some considered to be an upset victory.
Mark began his judicial career on January 6, 1997. It did not take long for him to be
recognized by his peers and colleagues. Mark set a record in 1997 for the days in court on
jury trials at 137. He continued the work on implementing and improving the Mandatory
Arbitration Program started by Judge Maupin. He helped plan the revolutionary short trial
jury program from its inception. He recently served on the Jury Improvement Commission,
which proffered many important improvements for the jury trial process in Nevada. In 1998,
then-Chief Judge Myron Leavitt appointed Mark the presiding judge of the civil division of
the Eighth Judicial District Court in Las Vegas. Mark refined the overflow program to allow
judges, without a trial scheduled that week, to hear civil jury trials as well as criminal jury
trials. You can, I'm sure, guess what the reaction was to that.
Mark was a training judge for the attorneys working in the judge pro tem program. He
also taught numerous legal education programs at the request of the State Bar of Nevada, the
Clark County Bar Association, the Nevada Trial Lawyers Association, and the Administrative
Office of the Courts.
It was no surprise in the spring of 2001 that Mark was named by United States
Senator John Ensign as one of the Senator's four nominees to President Bush for the position
of U.S. District Judge for Nevada. Mark had a whirlwind trip to Washington, D.C., including
an interview in the White House. Mark did not receive the appointment, but the federal
court's loss was the state court's gain.
Mark was immediately elected Chief District Judge by unanimous vote of all the
district judges in Clark County. Mark served in that position for eighteen months, right up
until last week, supervising twenty-nine other district judges.
Many of us do not have the opportunity to see a judge at work. The whole nation was
able to observe Mark through the television network Court TV. He received many accolades
through that exposure.
posure. The network even conducted an instant poll on Mark's use of the technique of
allowing the jurors to ask questions of the witnesses. The respondents in that poll were
strongly in favor of the procedure. (I had learned it from Judge McKibben as his law clerk
and had recommended it to Mark.) And in 1998, the Nevada Supreme Court finally addressed
that issue and approved that procedure in the case of Flores versus State, which you can find
at 114 Nevada 910.
Allowing jurors to ask questions is an exampleit illustrates what being a judge is all
about: using a fair process in the search for the truth so justice can be done. Mark Gibbons
has consistently demonstrated he will use his intelligence, integrity, and common sense to
ensure justice is done.
It was no fortuity that his election to the supreme court came without opposition. As
you heard, in 1998, ninety-seven percent of the lawyers that participated in the Las Vegas
Review-Journal and Clark County Bar Association poll stated that Mark should be retained as
a district judge. Ninety-seven percent was the highest number in the history of the poll, and it
has never been exceeded.
Mark, you have earned your position on the Nevada Supreme Court. Congratulations,
keep up the hard work, and make your mark here.
The next speaker for Justice-elect Gibbons will be Judge Nancy Oesterle of the
justices' court in Las Vegas. If you have not before had the opportunity to hear Judge Oesterle
speak, I think you are in for a treat. She does a marvelous job. She always claims she's
nervous, but then she just gets up and wows you.
I'll tell you a little bit about Nancy. She doesn't know how to sit still. She's always up
to something. For the past eleven years, she has produced, directed, and starred in a TV
program in Las Vegas, Law for the Layman, which has been a wonderful program helping to
bring the history of the law to people in a way that they might hope to understand it. She's
also involved in a program called Keys to the Courthouse. It's a wonderful program, and I
think weekly she goes into the elementary schools, and she brings classes to the courtroom
and is very involved in making sure that the youth of the Las Vegas community understand
the judicial system.
She was an awesome trial attorney in the district attorney's office, from what I
understand. Got her undergraduate degree from UNLV and graduated in law from Cal
Western, as I understand it. But her real claim to fameand I know you won't believe it when
you look at her, she's so demurebut she was a cheerleader at UNLV for four years. Judge
Oesterle.
Judge Nancy Oesterle:
Good afternoon Chief Justice, members of the supreme court, fellow judges, members
of the bar, and honored guests. I should thank all of you for coming. This is really an
overflow crowd today, and it shows the number of people that admire, respect, and love Mark
Gibbons. I'm sure both Mark and Sandy are thrilled that you are here today to join with them
on this exciting occasion.
It was a real honor and a surprise to me that Mark asked me to speak. I'm not really
sure why he chose me. I mean, he knows everybody in our great state. He knows a lot more
influential people than me, more powerful people than me, and I'm just a Las Vegas Justice
Court judge. And the interesting thing is it shows what a brave soul he is because on previous
investiture speeches I have been censoredI'm talking serious censoring by the people I'm
swearing in. You know, a list of things you can say, a list of the things you can't say, and
please don't cursethings like that. And Mark gave me carte blanche to say whatever I
wanted to say.
Now, I've given his bravery a lot of thought. I was wondering why he would allow me
to speak without telling me what I can and cannot say. And I finally figured out the answer.
This guy is squeaky clean. There's really no good dirt that I can share with you on Mark. So,
you know, I hired a P.I. because I wanted to find out was there anything out there that I could
share with you because a little bit of roasting always makes an investiture speech way more
interesting. Unfortunately, all the P.I. revealed was what we already knewthat Mark is a
really nice guy, he's a genuinely great human being with high moral standards, ethical
standards, unbeatable and is extremely bright and very articulate. He's known around Clark
County as an outstanding civil litigatora force to be reckoned withand yet he's extremely
humble and down to earth. And I'm like, is that all there is? Is that all there is? That's all you
could find about Mark? Nothing juicy? Nothing enlightening to share with his new neighbors
in Carson City? After all, as the National Enquirer says, Inquiring minds need to know.
So I went on my own snoop-and-find investigation. I asked everybody I could finda
bunch of local attorneys, his past partners, court staff, other district court judgeshigh and
low. But the bottom line is that I know Mark as well as anyone, and I know exactly what they
know. That he's a caring and compassionate guy, one of the hardest workers on the district
court bench. He's admired by all, and I couldn't find one dissenting opinion on that issue.
Now, the problem is that doesn't make for great speeches. So I thought I'd just throw
in a few little tidbits that Mark won't be too embarrassed about because the bottom line is we
are so lucky that Mark has decided to be on the Nevada Supreme Court.
Mark and I were neighbors when I was on the Las Vegas court benchjust like a
common wall that divides Mark and I. Now before Mark and I, I had the privilege of having
Justice Maupin as my next-door neighbor, and before that I had Judge Carl Christensen. All
three of these fine jurists were always willing to stop their very busy day, be interrupted by
me as I came bombarding next door because I had some very difficult civil case I needed help
on. And they always knew exactly how to calm me down, what to tell methe perfect answer
every single time.
I wasn't pleased when Judge Maupin told me he was running for the supreme court.
After all, he would become a supreme, and I would have to have a new next-door neighbor.
They may not be quite as bright as Justice Maupin, and I had a vested interest in making sure
they were very bright. So I inquired from Justice Maupin, you know, about Mark Gibbons'
intellect. I asked him, What do you think? What do you think? And Maupin's response was,
Oh, you're going to like Mark. He's a smart attorney. He's almost as smart as I am. No, no,
he really didn't say that. He was probably thinking it. He wasn't thinking it. He was
surprisingly humble, really. And what he said was, Mark is really smart. I like him. You're
really going to like him. And Justice Maupin was right.
Now, one day Mark decided he'd try to sneak out and leave a little bit early from
work. And I said, You can't do that. I have a courtroom full of people. Where are you going?
I might have a problem. Mark calmly statedby the way he's always calm, he's one of the
calmest people I knowhe said, Well, take my home number. Call me anytime. Big
mistake. Big mistake. Why? I would call him at 11 p.m.: What? You're sleeping? But I
have I need your help. And he would wake up and answer my questionsuch a nice guy
and always had the right answer. And I'd call him at 5 a.m.: What? You're sleeping? God,
you sleep a lot! But I have a question. And he would always have the right answer. And one
time I called and his wife Sandy said, But he's in the shower; it's 6 a.m. I said, Sandy, go
get him. I need him. And she did because she is as fabulous as he is.
So, Mark would always come to the phone and give me the right answer, explain to
me why it was the right answer and then it was just amazinglike a photographic memory of
the NRS. Mark would tell me what statute, what subsection, and where to go, and every
single time he was right. And I looked it up and then I'd complain to him, How come you're
always right? How could you always know this stuff? What, do you have it memorized?
Who but Mark memorizes the NRS? I mean, what are you a brain trust or something? Well,
as the typical humble person that Mark is, he tried to convince me that he only has twenty
statutes memorized, and I just happen to ask him those twenty statutes. Not so. This guy right
here is extremely bright.
guy right here is extremely bright. He has a brain capacity that is amazing. We should all be
so lucky.
Now, plus the fact that he's so easygoing and so calm. I mean, nothing ruffles his
feathers. He's like having a dose of calming medicine right there at my disposal. He puts
everything in perspective. He takes everything in stride. He has the ability to deal with
obnoxious attorneys and obnoxious pro se litigants; he treats them courteously and
respectfully even when they are totally out of control. You would never know by looking at
his face from his demeanor that he disapproves of anything they have done. And I tell you
one thing, I would never play strip poker with this man because I'd be naked and he'd be fully
dressed. The guy is unbelievable.
Besides being a mellow, compassionate guy, he's also sort of a daredevil. Looking at
him you wouldn't think that but he's a daredevil. Why? Because when he was up for
reelectionI mean nobody would've ran against him for the district court, nobody in their
right mindhe decides to run for supreme court. I mean, it wasn't even an off year. What's up
with that? You're supposed to wait to an off year because if you lose, no big deal. You still
have a great job on the district court bench. But he decides to run for the supreme court. So I
went to him. I'm all upset. Why are you doing this? Why are you doing this? And with
quiet self-confidence, Mark said to me, I've given it a lot of thought. It's something I've
always liked to do, and I have the energy to do it, and I intend to win. Once again, Mark was
right. And then, like his esteemed colleagues before him, Justice Agosti and Justice Becker,
he runs an uncontested race for the Nevada Supreme Court on his first attempt. That speaks
volumes of the opinions of the state bar when no one chooses to run against you for the
highest seat on the bench. Everyone knew that he was extremely well respected, unbelievably
difficult to beat.
I mean, as has been mentioned by Governor Guinn as well as Judge Gibbons, if you
just look at the judicial survey results you would know why no one chose to run against Mark
Gibbons. Now, I don't know if they're a big deal in the north, but in the south, take it from
me, they are a huge deal. I mean, they comment about my hair in every survey. I mean, these
people, it's impossible to get a good score. And yet Mark, he has the highest retention
rateninety-seven percentafter being on the bench a year and a half. And, of course, that's
never been exceeded. I doubt it ever will be exceeded. And the next two surveys he had a
respectful ninety-seven percent retention rate. And then, of course, that brings with it a
photograph, or two or three, above the fold in the Review-Journal. That's a big deal too. The
envy of all the judges, Mark Gibbons.
Now, former-Chief Judge Myron Leavitt, now Justice Leavitt, had the keen foresight
to realize Mark's outstanding leadership ability.
ability. He appointed Mark as the first-ever presiding Chief Judge of the district court civil
division. Mark sprung right into action. He began adequate, accurate statistical reporting of
all southern Nevada's civil jury trial days and civil evidentiary days. He then convinced the
criminal court judges to do the same. He then convinced the family court judges to do the
same. And then he released these statistics publicly. These statistics were essential in showing
the public the huge caseload of the southern Nevada judges, as well as the desperate need for
additional judges in the south.
As Chief Judge, Mark has been a major consensus builder. Now he may not be like a
Tom Cruise in Mission Impossible, but believe me when I tell you this man is one smooth
operator right here. He has the ability to deal with thirty publicly elected district court judges
with all of their own opinions that must be heard all at the same time, and he gets them all
together with their egos just popping out of the room, and yet he gets these thirty judges to
agree upon things even when they don't like each other. These are thirty people who cannot
decide upon what soda should be served for lunch. Yet when Mark Gibbons speaks they
follow, they respond, they respect this man. So everyone looks up to him because he is a
leader, and he's willing to fight for what's best in our court system.
There's no doubt in my mind that Mark will go down as one of the most dynamic,
most insightful Chief District Court Judges in the history of the Eighth Judicial District
Court. He is an innovator and he's made so many positive changes on behalf of our justice
system. He mastered the fine art of consensus building. He managed to resolve things without
conflict so that people who are not happy about having to make the changes make the
changes anyway, and they're happy about it because Mark Gibbons made the changes.
He worked hard to create the special construction defect court, a court that is now
physically big enough to hear the large volume of construction defect cases. He is credited
with putting together the dream teamat least that's what they call each other, and actually
they are the dream team. It's three judges in southern Nevada who volunteered to do
construction defect cases and large medical malpractice cases, and it has proven to be a much
better way to serve the public in Clark County.
During his years on the district court bench, Mark was involved with many other
important innovations. He assisted Justice Maupin with improving the arbitration system by
going to the legislature and lobbying endlessly to continue efforts to use that program to
streamline the cases. He created the short jury program to move along the backlog of pending
cases. He actively participated in the Clark County Pro Bono Foundation Board. He promoted
it heavily because Mark truly believes that the bar should be involved in helping the public
who can't afford to hire their own attorney.
ily because Mark truly believes that the bar should be involved in helping the public who
can't afford to hire their own attorney. He is obviously a man of vision.
He'll be missed tremendously by the district court bench, as well as the members of
the Clark County Bar Association. But on the other hand, I'm not so sure how much he is
going to be missed by the district court administration. I mean I really can't speak for Chuck
Short, who is our very fine district court administrator, or Rick Loop, his assistant, but I can
tell you one thing he made their lives a whole bunch harder once he became Chief Judge,
and they have never, ever complained because they're workhorses too. Fact is Chuck Short
liked the fact that Mark was always able to make a difficult decision. But I have to warn Ron
Titus. I know Ron Titus is here someplace, Ron, where are you? Okay, Ron, I'm warning you
right now, brace yourself my friend, because around the courthouse Mark's nickname is Mr.
Memo. He likes memos; he likes memos with attachments. Look at Chuck laughing. He
knows this is true. He will keep you busy, Ron, he will keep you hopping. He wants to change
things. He is highly motivated to make the system even better. He is constantly tweaking
everything. He won't rest until it's the best that it can be. As good as it gets is not good
enough for Mark Gibbons.
I'm confident that he would be completely dedicated to make the supreme court even
more user friendly than it is already, help the public understand the court process to the best
of his ability. Mark has worked really hard to gain this position on the supreme court, and he
totally deserves it.
You're probably sitting there right now thinking oh my god this guy sounds like
vanilla ice cream. But let me tell you something. He is really more like rainbow sherbet.
There are many layers of Mark. He is many talented; he has many different colors; he doesn't
like to stand out in a crowd. He likes to blend with the crowd and that helps him to be a
master-of-the-world consensus maker.
Let me just tell you a few tidbits so you know that there's really more to Mark. He is
really more fun than I make him sound. He is very flexible. You know after you hit forty-five,
you start worrying about that weight thing, you know, that keep in shape thing. So I said to
Mark, You and I should start walking. I walk all the time. Walk with me. And Mark
volunteered, not knowing what he was getting into. So I started walking with Mark. He
walked anytime I wanted: nine or ten o'clock at night for an hour and a half, seven a.m. on a
Saturday morning. Anytime I asked him, we would walk. We walked hundreds of times.
There's one little problem thoughthose dogs of his. There's four, okay. Two are wiener dogs
and two are Shih Tzus. I'm talking little dogs, okay. Well, they ran the house and they ran
Mark. The four of them had to walk every single time.
walk every single time. Can you imagine this? Four little dogs on a leash? I looked like a bad
scene from a New York City movie. Every five minutes they had to mark the territory, and
I'm worried about breaking my ankle. And Mark thinks we're exercising. So, it took me
awhile to make him understand it's not exercising a dog, it's exercising us. So Mark, in his
very keen sense of justice, suggested that once around the block with all the dogs, then once
around the block with his alpha dog, Danny, and then we could walk without the dogs. As
always, he displayed a large amount of patience and understanding.
Mark is the type of person that never says no. He has helped me endless times with
various law-related projects. No matter what it is I ask him to speak on and help me with, he
always agreed, even the time we had to go to Pahrump, lovely Pahrump, to give a speech. He
didn't even complain. And every time he is involved, that guarantees the success of that
project.
Mark has the ability to adapt quickly. Once, at a Clark County Bar Association
baseball game, we had just given a speech with Justice Rose and were sitting at a table, and
all of a sudden I swear we became bombarded with foul balls. Now one of them came
screaming towards my head, so naturally I dived to the ground, brand new suit and all, camera
in hand to document, and after I hit the ground, I looked up. Mark had very quickly grabbed
my seat and put it over his head to shield his giant brain from any further assault. He was
grinning from . . . He looked like a goofball. I was laughing so hard. But the funny
thingeven funnierwas Justice Rose. Justice Rose is sitting there like a man of steel. He is
a few inches away. He is like no reaction, not even flinching. Now, I'm not sure if Justice
Rose has more testosterone than any man I know or, or if he was completely oblivious to the
fact that he almost got nailed in the forehead with a line drive. It was pretty funny.
Justice Rose:
I never saw the ball.
Judge Nancy Oesterle:
Yeah. I swear. What did I tell you. He was oblivious.
Both Mark and Justice Rose are titans of intellect, and they displayed qualities shown
that day that are needed on the Nevada Supreme Court. Innovation, courage, and the ability to
stand their ground. What really makes the story even funnier is, some of you may not have
known, but one of Mark's first lifetime dreams before he became interested in law was to
become a major league baseball player. Aren't we fortunate he is so skilled and other fine
qualities that we have him on the Nevada Supreme Court versus the baseball mound. Another
interesting tidbit is, you probably don't know, that he purchased one of his very first homes
after law school from Bob Rose
know, that he purchased one of his very first homes after law school from Bob Rosenone
other than the Bob Rose that he's now sharing a seat with on the Nevada Supreme Court. I
mean, what are the chances of that? Only in Nevada, that's for sure.
I predict Mark will be on the cutting edge. He is a cutting edge sort of guy. He was a
feminist long before it was p.c. (politically correct). Let me give you an example. As
evidenced by the fact that one of the very first issue campaigns that Mark became involved in,
he financially supported Justice Shearing. Where's she at? There she isJustice Shearing.
When Justice Shearing was running for justices' court in Las Vegas in the year 1976, Mark
became interested in her campaign, and he, of course, contributed. Now, he is a well-known
litigator, but he's also well known for his continued support of the judiciary. Isn't it funny how
things come full circle? He now is about to share the bench with the very first judicial
candidate he ever supported, the one that inspired him to pursue public service in the
judiciary, the first female supreme court justice of our fine state. The company doesn't get any
better than that.
To quote my idol, or actually, it's my American Idol now, Judge Jan Berry, from the
Reno district court bench: Judges are not born with the wisdom of Solomon or the patience
of Job or the brains of Einstein or the heart of Mother Theresa. These traits develop over a
long period of time.
I've had the privilege of watching Mark as he thoroughly and quickly honed his
judicial talents. He was a very quick study on the bench. He had it all, yet he maintained a
very dry sense of humor and a keen sense of fairness. An example of that would be one time
during a jury trial when he had a defendant that was trying to get out of custody. Well,
actually, they all try to get out of custody, every day, all day. But this one was a very sly
character because he decided to play upon Mark's well-known love of dogs, and he said that
he had to get out of custody because his dogs needed to be taken care of and he had more than
one dog. The dogs needed to be walked and they needed to be fed and his dogs were lonely.
And of course, the defense counsel, Craig Mueller, jumped on the bandwagon and told Mark
these dogs needed help right awaythey're going to die if you don't release him from
custody. Well Mark gave it a second thought or two and decided he wasn't gonna release that
defendant, he didn't deserve it. But he did order defense counsel, Craig Mueller, to go over to
the house every day and walk the dog. It's a true story. It's true, it's true, it's true.
I have to give you just a little B.S. before I end. (Now, that was a true story, that last
one.) B.S. stands for before Sandy because before Sandy there were four little dogs: the
dogs that allowed Mark to live in their home, the dogs that ran Mark's life, the dogs that
were totally unmindful of him.
dogs that were totally unmindful of him. And then Sandy, this beautiful, intelligent, spirited,
outgoing woman came into Mark's life and became his soul mate. She also became the major
dog disciplinarian. She quickly whipped those dogs into shape, unbelievably. Now, he's still a
dog lover, and he already has 999 dog-related gifts, so don't give him any, but Mark was
smart enough to know that he should let Sandy run his life, not the dogs. And she has done an
excellent job, and Mark is so happy both personally and professionally because of Sandy and
we thank you, Sandy, for that.
Now Mark, I believe you have the perfect blend of qualities to make you an all-star
supreme. You are a kind man with a brilliant legal mind, and you have a beautiful heart.
You are a true gentleman, and you are a scholar. And I must say from a selfish point of view,
I'm not happy about you becoming a supreme. I mean, I'm losing my next-door neighbor,
and I have to get a new one. Now my new onelucky for meis Stewart Bell. He's going to
be the district court judge in Department Seven. I've already gone to speak to him. I have his
home number. I'm not so sure his wife Jeannie will be as nice as Sandy about the midnight
phone calls, but he did tell me call me anytime, and I will.
Mark, I'm sure you're going to really assimilate to the supreme court. I know you can
handle the pressure of the supreme court. You handled the notorious Jessica Williams case so
superbly. It was the highest profile motor vehicle death case ever in the history of southern
Nevada. You handled the intensive media scrutiny with an impressive display of calmness,
dignity, and judicial fairness.
And I know that in the past you've given me grief that I publicly admitted that I don't
read the supreme court dissenting opinions. And it's true, I don't. I mean, I'm swamped. You
know I don't have time for that. But I did talk to you about this and since I believe that you're
the guru of consensus building, I decided that any time you write a supreme court dissenting
opinion, I will read it, okay. So before the ink is dry, just shoot me an e-mail. I'm going to
read it. I promise I'll squeeze it into the crazy schedule of justice court.
I'd like to thank you and Sandy for allowing me to share this special day with you. I'm
sure your career with the supremes will be as long and distinguished as your professional
background. The many impressive achievements that your brother, Judge Mike Gibbons, has
told us about, including your temperament, intelligence, and patience, will undoubtedly make
you a giant on the Nevada Supreme Court. This is the man whose seat you are filling today,
Justice Cliff Young, our very own distinguished and equally talented supreme before you.
I'm sure your tenure will be impressive and deserved.
Now, Janette Bloom is going to play a Vanna White right now. Janette? Because she
has something I'd like to give you. It's from Judge Jan Berry and I. It's a token of our esteem
to congratulate you on this special day. It's a framed copy of the signatures of those brave men
who signed the Declaration of Independence. Now, we selected this to go in that beautiful
new chambers of yours that I'm so jealous of, but you know you could put it in the bathroom
if you want because your bathroom's big too and that's where I put all my plaques. And I
know that your beautiful wife Sandy is so talented she's going to decorate your supreme court
office beautifully. So do what you want with it, but know it's from us, okay.
You also need to know that the men who signed the Declaration of Independence
were not crazy rebel rousers, and they were not troublemakers, but they were educated men of
means. Twenty-four were lawyers and jurists. Those brave leaders who fought and often died
to create a free, independent America continue to inspire great leaders of today such as
yourself. Jan and I believe that you will continue to uphold the vision of our founding fathers.
The liberties and rights of all Nevadans are safe in your hands. We know that you will do
nothing less than defend our liberties and pursue equal justice for all through your work on
the Nevada Supreme Court. Mark, I hope you have as much fun on the Nevada Supreme
Court as I've had on the Las Vegas Justice Court bench. Congratulations, and Godspeed, and
don't be a stranger, okay.
Thank you Nancy for those remarks, most of which were very positive. I am
concerned about one thing. Memos. Now do you have that little re line to them. You know,
re there's a problem. Are we going to be saying, Mark, thanks for the memories?
I really appreciate your remarks, Nancy. Aside from being a wonderful speaker, I
think you and Mike Gibbons have given us a marvelous introduction to Justice-elect Gibbons.
And it will now be my pleasure and my privilege to administer the oath of office. And the
Bible is going to be held by Justice-elect Gibbons' mother and his wife. (Chief Justice Agosti
administered the oath of office to Justice-elect Gibbons.)
You have been duly installed, and now you will be robed. Mark, you don't get to sit
down. Ladies and gentlemen, it is my pleasure to introduce to you Justice Mark Gibbons.
Justice Gibbons:
Thank you, Chief Justice Agosti and members of the supreme court, Governor Guinn,
for speaking here today. I also want to thank our State Controller, Kathy Augustine, for being
here this afternoon.
ternoon. Members of the legislature, members of the judiciary. I did see Judge Schumacher,
Judge Berry, Judge Steinheimer from Washoe County District Court; Judge Johnson, Judge
Finley, Judge Deriso, I appreciate all of you being here today very much.
Also, I want to thank my two speakers, Judge Michael Gibbons and Judge Nancy
Oesterle. I didn't know I was such a good person until after hearing all that. I think that Nancy
might have embellished just a little bit on some of those things, but I appreciate her good
thoughts. Also I want to thank our wonderful Court Administrator, Chuck Short, from the
Eighth Judicial District Court, for coming with his wife Theresa here today to give the
invocation.
Also, as Chief Justice Agosti also introduced my staff from the Eighth Judicial
District Court, we doJustice Maupin was correct, there's some familiar faces over
thereTina Hurd, our court clerk, also Lisa Cologna, were both with Justice Maupin for
years before I had the pleasure to serve in Department Seven of the Eighth Judicial District
Court. Also I have Jason Cook, who was my law clerk for the last couple of years, and Renee
Silvaggio, who is our court reporter. I can tell you they're the best staff in Las Vegas, and I
know that Jason is moving on to bigger and better things in private practice, but Tina, Renee,
and Lisa will be staying with Judge Stewart Bell, and I know they'll do a terrific job for him.
Also, I've just had a wonderful opportunity in working with our new staff at the
supreme court. I've had the pleasure of working with Jan Doescher who has worked for
Justice Young and Jane Young for many, many years, and Jan has agreed to stay and she has
just been wonderful together with the two terrific law clerks Sonia Williams and Cory
Watkins. I want to thank Jan and Sonia and Cory for all of the assistance they've given me in
the transition from district court to the supreme court. Also, I want to thank not only them but
Janette Bloom and Beth Mammen for helping me in planning this investiture. They've just
worked tirelessly, and I want to thank all of them very much for all their efforts.
Also, at this time we have Allen Kimbrough and Gloria Sturman from the State Bar of
Nevada. Gloria is our president and she has done a terrific job as the president of the state bar,
and Gloria thank you for coming up. And Allen, thank you for coming as well. Also, Cam
Ferenbach I saw here from the Clark County Bar Association. Cam, thank you for coming up
here and being here this afternoon.
Also, briefly, I mentioned my relatives that are here. I'd just like to go through them,
and I thank them for being here. First of all, my father, John, passed away about two years
ago, so he is here with us in spirit, and I know he would have loved to have been here today.
But my mother, Dorothy, whom you met previously, is here; my Aunt Peggy from
Harrisburg, Pennsylvania; Michael and his lovely wife, Barbara, are here with their three
children, Brooke, Bridget, and Michelle sitting in the back; and my brother Gregg from
Anaheim.
Brooke, Bridget, and Michelle sitting in the back; and my brother Gregg from Anaheim.
Gregg wasn't mentioned, but he is a very successful corporate attorney in Anaheim and he
makes all the money in the familyhe is a multimillionaire. So we have the two judges, but
he has done pretty well on his own, together with his lovely wife, April. Also, April's parents,
Scott and Joyce Porter, are here from California as well. Also, Sandy has many of her family
members present. Her mother Ann is here together with her brothers Mark and Craig and
Craig's wife Stephanie and their daughter Lauren are here visiting together with Sandy's
cousin, Preston, and his wife Rhonda. I want to thank you all for being here.
Also, I want to thank Judge McKibben for coming again today. I mean, it takes us
back many years when Michael first went to work for Judge McKibben. At that time, he was
a state district court judge in Douglas County, and I had the pleasure of meeting Judge
McKibben at that time, and I actually appeared and argued a couple of cases in front of him,
and I think he was as tough on me as anybody else even though Michael was working there.
But I appreciate what a tremendous judge he is, and he is certainly carrying on his great
tradition for the United States District Court as well.
But more than anything else, I'd like to thank my wife, Sandy. Sandy has been with
me through all this . . . through all of this campaign since we've been married. Her love,
patience, hard work, and support throughout the times since we've been married has just
never ended, and I tell you I couldn't do it without her, and I want to thank her very much for
that.
Also, today I would again like to recognize our retiring Chief Justice, Cliff Young,
and his wife, Jane, for their service to our state and country. Now, as was previously
mentioned, Chief Justice Young's service in our United States Congress goes back to 1952
when he was elected, and when you think about it, he first started in Congress in early 1953
and that was the last weeks of the Truman administration. Justice Young then served through
1956 in the House of Representatives. There is no question that retiring Chief Justice Young
is one of the most important figures in the 139-year history of our state. I can tell you one
thing, I'm not presumptuous enough to think that myself or any other justice can fill Chief
Justice Young's shoes, but I will do my best to carry on Chief Justice Young's innovations
and the work ethic that he has demonstrated throughout his eighteen years on the Nevada
Supreme Court.
I just want to tell you one story about retiring Chief Justice Young. I have many fond
memories of meetings and conversations with him, but I'm thinking back to about six years
ago. I was on a flight from Reno to Las Vegas, and I was sitting next to Chief Justice Young.
Justice Young. I'm sure he doesn't remember this, but he was flying down to Las Vegas on
some court business and we were talking about history. (I have a Bachelors Degree in
American History.) And I was talking to Chief Justice Young about issues, and we're talking
about meetings he had with President Eisenhower back in the 1950s and members of the
Eisenhower cabinet and administration and some of the very momentous items that took
place in our history in the mid-1950sin those very turbulent times. He gave me insight and
it was just wonderful to hear some of these stories about issues that the Congress had to deal
with and how he dealt with them representing Nevada and dealing with members of the
Eisenhower administration.
Now ladies and gentlemen, I'll be brief here. We've had a long afternoon, and we want
to get to the reception, but I just want to tell you what some of my goals are as a justice of the
supreme court. I'm looking forward to working with Chief Justice Agosti, Justice Maupin,
and the other justices to expand alternative dispute resolution in an effort to make litigation
less expensive and quicker to resolve. In Clark County, it costs approximately $5,000 per day
for a jury trial. I would like the court to consider making the one-day short-jury-trial program
mandatory. Also, ladies and gentlemen, I would like to continue working with Justice Rose in
developing a cost-effective plan to expand our Senior Judge Program in the district courts
throughout Nevada. The senior judges can assist us with our specialty courts and with lengthy
trials in areas such as construction defect and multiple-party medical malpractice. I plan to
promote a closer working relationship between the supreme court and all district judges,
municipal judges, and justices of the peace throughout our state.
I look forward to working with all the members of the court. I've known all of them
for many years, and I have the utmost respect for each of them. I will seek their advice as I
perform my duties as a justice. I was gratified to receive the support of eighty-two percent of
Nevada voters in the November election. Although I didn't earn the ninety-nine percent of the
vote that Saddam Hussein recently received in Iraq, I will do my best to serve all the people
of Nevada as a member of the supreme court. Thank you very much ladies and gentlemen.
Well, now we are complete. We're seven again. I hope you'll enjoy your tenure on the
bench, Mark. The work of the supreme court, especially coming from the trial bench, is
different. It's not as exciting really on a day-to-day basis. You don't deal with the witnesses,
the lawyers, the jurors, and the litigants. But what an opportunity to make a difference, and
it's an opportunity that I know you'll take and that I know you will enjoy, and your
contribution will certainly be great.
bution will certainly be great. We are looking forward to it and looking forward to working
with you. On behalf of my colleagues, I wish you all the best, and I say to you: welcome to
the supreme court.
A couple of very late introductions: I notice in the back of the roomhe must have
snuck inJudge Mike Griffin is there of Carson City, another district court judge. We also
have the State Court Administrator, Mr. Ron Titus, is here. And Senator Mark Amodei. I
received word that Justice Maupin wanted to have the floor one final moment, and so I'm
going to turn it over to Justice Maupin.
Justice Maupin:
Please forgive me for breaking the momentum of the adjournment, but it is an
opportunity to rectify what might have been one of the most important mistakes of my
professional life. I'd like to thank for the last five years my administrative assistant, Cassandra
Jackson, one of the most professional people I've ever worked with in my career.
Finally, I'd like to thank all of you on behalf of the court. Your attendance here today
celebrates so much more than the recommitment of Justice Maupin to the supreme court or
the idealism and dedication of our newest associate justice, Mark Gibbons. Your presence
here represents your own commitment to the judiciary, your own desire to see Nevada's
judiciary operating as best it can with the highest level of skills, scholarship, and integrity,
and we appreciate very much your presence here today and what it signifies to us, and so we
thank you. I would also like to let you know that there is a reception that will be hosted by
Justice and Mrs. Gibbons. This will be held in the supreme court rotunda immediately
following this session, which means I've got the power to say whether we're adjourned or not.
Okay, we're adjourned.
119 Nev. 705, 705 (2003) Special Session
SPECIAL SESSION COMMEMORATING
THE 75TH ANNIVERSARY OF THE
STATE BAR OF NEVADA
Friday, January 31, 2003
3:30 p.m.
Courtroom
Nevada Supreme Court
Carson City, Nevada
IN THE SUPREME COURT OF THE
STATE OF NEVADA
Chief Justice Deborah Agosti
Justice Miriam Shearing
Justice Robert E. Rose
Justice Myron E. Leavitt
Justice Nancy A. Becker
Justice A. William Maupin
Justice Mark Gibbons
David W. Hagen, United States District Court Judge
Gloria J. Sturman, President, State Bar Of Nevada
N. Patrick Flanagan, III, President-Elect, State Bar Of Nevada
Ann McCarthy, Vice President, State Bar Of Nevada
ALSO IN ATTENDANCE:
Howard McKibben, United States District Court Judge
Robert Estes, District Judge
Michael Gibbons, District Judge
Allen Kimbrough, Executive Director, State Bar Of Nevada
Richard Morgan, Dean, Boyd Law School, University Of Nevada, Las Vegas
__________
INDEX
OF
CEREMONY PARTICIPANTS
PAGE
Opening Remarks, Chief Justice Agosti .............................................................................. 711
Remarks, Gloria J. Sturman, President, State Bar of Nevada ..............................................712
Remarks, N. Patrick Flanagan, III, President-elect, State Bar of Nevada ............................713
Remarks, David W. Hagen, United States District Court Judge, Nevada ............................714
Remarks, Ann McCarthy, Vice President, State Bar of Nevada ..........................................715
Remarks, Justice Shearing ....................................................................................................717
Remarks, Justice Becker ...................................................................................................... 718
Remarks, Justice Maupin ......................................................................................................718
Remarks, Richard Morgan, Dean, Boyd Law School, UNLV ..............................................719
Closing Remarks, Chief Justice Agosti ................................................................................719
SPECIAL SESSION
__________
Bailiff:
All rise. The Supreme Court of the State of Nevada is now in session; the Honorable
Chief Justice Agosti presiding. The Court is now convened in special session to
commemorate the 75th Anniversary of the State Bar of Nevada. Please be seated.
This is a special day in the history of the judiciary and the legal profession in the State
of Nevada. Seventy-five years ago today, on January 31, 1928, the State Bar of Nevada was
established as a public corporation.
The Act creating the State Bar, Assembly Bill Number 12, was passed during a
Special Session of the Nevada Legislature. The bill was sponsored by the Joint Judiciary
Committee of the Senate and Assembly and provided for the State Bar's organization, its
governance and membership, and defined the Bar's powers and duties concerning the
regulation of the practice of law. I note that the State Bar was declared by the Legislature to
be an emergency measure, though the reason for this is not made clear in the bill. Makes one
wonder what was going on at the time. I would also note that the stock market crashed the
next year.
How the State Bar has changed in seventy-five years. Of the originalof the nine
original members of the Board of Bar Governors, Clark County was represented by only one
member and had to share that member with Lincoln County. They didn't have the population
for more than that. White Pine and Elko were represented each by a member. Two members
represented the counties of Ormsby, Eureka, Lander, Humboldt and Churchill. Lyon,
Douglas, Mineral, Nye, Esmeralda, Pershing and Storey shared a member and Washoe
County had four representatives on the Board. Active bar dues were $3 and inactive dues cost
a dollar. And 345 attorneys comprised the membership of the State Bar and that included
three supreme court justices and eleven district judges in the state.
Today there are fifteen board members, nine of them from Clark County; four from
Washoe County, so I guess not everything's changed that much. There's a representative from
Carson City and there's one to represent the other fourteen counties. In discussion with
President Gloria J. Sturman, the estimate, as of this afternoon, was around 7,500 members of
the Bar. Bar dues are up to $350; there are seven supreme court justices and sixty district
judges in this state.
I will now call on Gloria Sturman, the current President of the Bar, for her remarks.
Gloria Sturman:
Thank you, Mme. Chief Justice. Justices of the court and distinguished guests, the
Board of Governors of the State Bar of Nevada is honored to appear before this special
session of the court to commemorate the 75th Anniversary of the day the unified State Bar of
Nevada was created through a special act of the Nevada Legislature.
The State Bar was formed in order to regulate the practice of law under the authority
of the supreme court by administering the attorney admission and discipline functions.
Nevada was in the forefront of those states that established the practice of law as a
self-regulating profession. In 1928, the lawyers of Nevada were fortunate to be led by a
visionary President, Mr. H. R. Cooke. Today, his granddaughters are United States Magistrate
Judge Valerie Cooke and Washoe County Domestic Relations Master Carol Cooke. The early
members of the State Bar of Nevada recognized that membership in our profession placed
them in a unique position of public trust. By honoring this anniversary we are reminded of
their example of service to their clients, to their profession and to their communities.
The founders of the State Bar of Nevada recognized the differing needs of attorneys
who practice in such a geographically large and diverse state. As the practice of law has
developed and the population has grown, the State Bar of Nevada has evolved to serve the
needs of our members as well as the interests of the public. The attorneys in Clark County are
represented on the Board of Governors by Nancy Allf, Vince Consul, John Curtas, Kathleen
England, Dara Goldsmith, William Turner and Steve Wolfson. President-elect Pat Flanagan,
and Governors Bruce Beesley, James Bradshaw, Rew Goodenow and Bridget Robb Peck
represent our Washoe County members. The attorneys of Carson City are represented by Vice
President Ann McCarthy. And John Schlegelmilch, as you mentioned earlier, represents all of
those who practice in our remaining fourteen counties.
The day-to-day activities of the State Bar require the efforts of a highly professional
staff of over thirty employees who are led by our Executive Director, Allen Kimbrough. Bar
Counsel Rob Bare and his staff work with volunteer attorneys to ensure that attorneys who
practice in this state adhere to the highest ethical standards set by our Supreme Court Rules.
Meanwhile, the Board of Bar Examiners, under Director of Admissions Patrice Eichman and
her staff, work to ensure that attorneys admitted to practice in this state exemplify the highest
standards of professional competence.
The State Bar's commitment to helping its members maintain this high level of
professionalism and competence is evidenced by the innovative, inexpensive offerings of our
continuing education department led by Christopher Boadt. The Nevada Lawyer, our monthly
publication, facilitates communication among our members and the courts and is edited
by Marla Hockfeld.
monthly publication, facilitates communication among our members and the courts and is
edited by Marla Hockfeld. Audrey Bath, the Director of Bar Services, is responsible for a
myriad of services that we provide to our members. The State Bar's Controller and
Information Technology Manager, Marc Mersol, is working to create an even more effective
website for use by our staff and members, which can also be used to further our goal of
advancing the public understanding of the law. Recently, bar counsel represented the State
Bar in litigation concerning the public education efforts of our Bar. That case resulted in an
opinion by Judge Noonan of the Ninth Circuit that, as President-elect Pat Flanagan and I
learned at a recent ABA meeting, is viewed nationally as a template for public education
efforts by bar associations. I would like to quote from Judge Noonan's opinion:
The law, rightly understood, is not a business where the bottom line dictates the
conduct that is permissible. The law is a profession where a near monopoly of access to
the courts is granted to a trained group of men and women on the basis that they will
follow the profession's rules of conduct and in so doing serve the cause of justice.
. . . .
. . . More's Utopia has no lawyers, but in our real world, lawyers are not merely a
necessity but a blessing. If the public doesn't understand that . . . the justice system
itself will wither.
Today we honor the example of those attorneys who, seventy-five years ago,
understood these very same principles and recognized that an integrated bar would best serve
the needs not only of the legal profession but of the citizens of Nevada.
Earlier today we received a proclamation from Governor Kenny Guinn's office in
which he established today, January 31, 2003, as a day in honor of the State Bar of Nevada in
appreciation for outstanding service to our state and its people. At this time I would also
request that the court recognize President-elect N. Patrick Flanagan, III, of Washoe County,
who will present to the court greetings from the Chief Justice of the United States.
Thank you. Mr. Flanagan.
N. Patrick Flanagan, III:
Thank you very much. Chief Justice Agosti, members of the Court, President
Sturman, fellow Governors and distinguished guests. I'd like to read into the record a letter
from the Chief Justice of the United States Supreme Court. This letter is on the stationery
from the chambers of the Chief Justice of the Supreme Court of the United States in
Washington, D.C., dated January 16, 2003.
Supreme Court of the United States in Washington, D.C., dated January 16, 2003.
To the Members of the State Bar of Nevada:
Congratulations on the occasion of the 75th anniversary of the State Bar of Nevada.
During the last three-quarters of a century, the Nevada Bar has promoted the kind of
educational, professional and civic activity that should come naturally for every lawyer.
President Theodore Roosevelt once said that Every man owes some of his time to the
up-building of the profession to which he belongs. I commend the men and women of
the State Bar of Nevada for your contributions to our profession.
Sincerely,
William H. Rehnquist.
Mme. President.
Gloria Sturman:
Thank you. Now, Chief Justice, at this time we would request the court recognize
United States District Judge David Hagen. He is substituting for Magistrate Judge Valerie
Cooke, who is ill, and is going to present to the court a letter from Chief Judge Philip Pro.
Happily. I noticed Judge Hagen as I was looking for Magistrate Judge Cooke and I
think we have other distinguished guests that perhaps you will recognize. Federal District
Judge Howard McKibben is here along with Judge Hagen and from the state judiciary we also
have Judge Robert Estes of Churchill County and Judge Mike Gibbons from Douglas County.
We are very appreciative of their appearance today on this important occasion. Thank you all.
And thank you for being here today in place of Magistrate Judge Cooke.
Judge Hagen:
Thank you, Chief Justice Agosti. Members of the court, it's my honor to read the letter
of the Chief Judge of the United States District Court for the District of Nevada, Philip M.
Pro. It is dated January 31, 2003, and it reads:
Dear Colleagues:
On behalf of the judges of the United States District Court for the District of Nevada,
I am delighted to congratulate the State Bar of Nevada as it celebrates 75 years of
service to the citizens of our State.
The Diamond Anniversary of the Nevada Bar affords a wonderful opportunity to
reflect on many of the significant accomplishments of our colleagues over the past 75
years.
complishments of our colleagues over the past 75 years. The commemoration would be
squandered, however, if it did not inspire us to renew our commitment to the noble
ideals of the profession we are honored to serve.
As members of the Nevada Bar, we play a pivotal role in the fair and orderly
resolution of disputes. More importantly, we are the guardians of a system of justice
designed to uphold the law and to protect the rights and liberties of all citizens. Public
confidence in the justice system and access to the legal process depend upon our
stewardship. For 75 years the State Bar of Nevada has enhanced our ability to meet this
challenge.
Standing on the shoulders of our colleagues who for 75 years and more have fulfilled
their oaths to uphold the Constitution and laws of the United States and of the State of
Nevada, let us revitalize our commitment to do so. Together we can insure that when
the centennial of the State Bar is celebrated 25 years hence, we can look back with
pride in the knowledge that we have discharged our responsibilities as well as those
who have made the State Bar of Nevada what it is today.
Sincerely,
Philip M. Pro, Chief Judge.
Thank you, Judge Hagen.
Gloria Sturman:
Thank you. Mme. Chief Justice, at this time I would like to call on Vice President
Ann McCarthy, who would like to present a letter from our congressional delegation in honor
of the occasion.
Ann McCarthy:
Chief Justice Agosti, members of the Court, distinguished guests and friends. I have
the honor of reading to you a letter to the State Bar of Nevada from our great congressional
team of the State of Nevada. It's dated January 31, 2003, and it's addressed to Ms. Gloria J.
Sturman, President, State Bar of Nevada.
Dear Ms. Sturman and members of the State Bar of Nevada:
It gives me a great deal of pleasure to extend my warmest regards and congratulations
on the 75th Anniversary of the State Bar of Nevada.
The State Bar of Nevada has a long-standing commitment to the administration of
justice. The members of the association strive to promote integrity and encompass
ethical and moral responsibilities, while serving their profession and the community
with decency, civility, and excellence. The law profession is an integral part of
American freedom and a continual guardian of the Constitution,
profession is an integral part of American freedom and a continual guardian of the
Constitution, protecting our rights and enforcing the rule of law.
As you celebrate this anniversary, may you continue to bring respect and dignity to the
legal profession. As members of the State Bar of Nevada, you are a direct link to our
founding fathers whose vision to establish justice is the spirit that fills courtrooms
across this nation well over two hundred years later.
Thank you for 75 years of outstanding service.
Sincerely,
John Ensign, United States Senator; Harry Reid, United States Senator; Jim Gibbons,
Member of Congress; Shelley Berkley, Member of Congress; Jon Porter, Member of
Congress.
Thank you.
Gloria Sturman:
Thank you, Chief Justice Agosti. On February 18, the Nevada Legislature is scheduled
to consider a concurrent resolution which will honor the significance of the bill passed
seventy-five years ago today, creating the only public corporation in the State of Nevada and
the one that is assigned the duties of regulating the practice of law. On behalf of the Board of
Governors of the State Bar of Nevada, and the over 4,500 active members in the state that we
represent, I again thank the court for convening this special session in recognition of our 75th
anniversary and appreciate the opportunity to place on the record those matters that were just
read into the record.
To the clerk?
Thank you. Yes, please.
Gloria Sturman:
Thank you, Your Honor.
President Sturman, does the State Bar have anything further to present?
Gloria Sturman:
Not at this time, Your Honor.
Thank you. I would like to say that the remarks of the President of the State Bar of
Nevada, as well as the comments memorializing the letters which were read into the
record, reflect the sentiment, I think, of anyone associated with the legal community in
our state.
ing the letters which were read into the record, reflect the sentiment, I think, of anyone
associated with the legal community in our state. And that is that from the humble beginning
seventy-five years ago of an emergency measure at the Legislature, for reasons unknown, we
have now a very healthy, very well-functioning and robust bar association in this state.
At the informal meeting earlier today, the supreme court was favored to hear reports
from the Board of Bar Governors concerning such varied topics as the multi-jurisdictional
practice of law; the American Bar Association's model rules of ethics, called now Ethics 2000
and the plans of the State Bar to review Ethics 2000 with an eye towards the modification or
the recommended modification of Nevada's rules; the pro bono requirements that currently
exist in this state and the plans for the State Bar to increase attorney participation in the
delivery of pro bono services to the indigent of our community; the plans of the State Bar
concerning specialization and the testing of the attorneys who are members of the State Bar in
order to permit themselves to be called truly specialists in recognized fields; the admissions
to the practice of law in the State of Nevada; the more frequent administration of the bar
examination, and many other topics aside from that. Every member of the Board of Bar
Governors is to be congratulated for your energy, your enthusiasm, and your incredible level
of commitment to making this State Bar truly reflective of all the attorneys in this state and
moving forward always in the spirit of progress to better serve the community, to better serve
the lawyer community, to better serve the citizens that hire us to do our jobs. I thank all of
you for your measure of commitment to the State Bar. Without involvement of attorneys such
as yourself, all the different components, the focus that I just recently mentioned, wouldn't be
happening at the level of fairness that they are now.
I would also be remiss if I did not recognize on behalf of the court the very excellent
staff of the State Bar Association from the Executive Director, Allen Kimbrough, through all
the members of his staff, many of whom are present here today. Every member of the staff is
so impressive, so hard working, so dedicated and so interested in the finest possible product
and I'm personally so gratified and pleased to be associated with every one of you. I know I
echo the sentiments of all the court.
At this time I would like to call on my colleagues for any remarks they might wish to
make, if any there be. Justice Shearing?
Justice Shearing:
I'd just like to congratulate the State Bar and give recognition to the fact that our Bar
would not be where it is todayand would not have survived as long as it haswithout the
contribution of thousands of hours of busy attorneys as they serve as Board of Bar Governors
and other attorneys who serve on committees that help to set our ethical standards and to
help in all of the other aspects of the law that we have tried to improve.
to set our ethical standards and to help in all of the other aspects of the law that we have tried
to improve. I just wanted to express our thanks to you and to your predecessors.
Thank you. Justice Becker?
Justice Becker:
It has been my privilege to work with a number of the members of the current Board
of Governors as well as past Board of Governors towards the provision of access to the court
system to those who cannot necessarily always afford an attorney. One of the huge leaps that I
have seen, and because of the support of the Bar and more particularly the members of the
Bar, has been the vast increase in the access to the courts and the ability to provide those legal
services to those who can't afford them. I think it's important to remember that as a
profession, while we are sometimes the butt of humor, we have contributed our attorneys of
this Bar and millions of dollars in the last ten years to make sure that everyone has access to
justice. I'm extremely proud of the members of the Bar for this. Thank you.
Thank you. Is there anything else that anyone would like to say at this time? Justice
Maupin.
Justice Maupin:
Yes, I would. It was one of the great privileges of my legal career to be a colleague of
yours on the State Board of Bar Governors several years ago. I would like to make a couple of
comments because of my pride in your stewardship of the State Bar of Nevada.
The heart of America is the rights, privileges, and immunities of its citizens. It is our
lawyers that provide the protection and are, in true fact, the guardians of those rights,
privileges and immunities. It's only fitting that we should gather together today to honor
Nevada's lawyers on the 75th anniversary of the Bar.
The Board of Governors in the last ten years has presided over one of the most
important transition periods in the history of the Bar. Improvement of licensing of lawyers,
improvement of the discipline process, improvement of the education of lawyers, and other
bar services make the role of lawyers as guardians of our rights possible, and I'm very proud
of the stewardship that the current Board has over the Bar. I congratulate all of you.
Thank you. At this time I would like to acknowledge in particular the presence of
Dean Dick Morgan of the Boyd School of Law at UNLV. I've been very pleased in my
association with Dean Morgan.
Morgan. He's done so much for the School of Law; so much for the University of Nevada at
Las Vegas, for the University of Nevada system truly. He strives for a close working
relationship with the Bar Association and I think that's been healthy for the school, and I think
that's been very healthy for the Bar, and I think it's been very healthy for the judiciary. I know
that he cares deeply about the improvement of the delivery of legal services and the quality of
the practice of law in this state and I think it is very significant that on the anniversary, the
75th anniversary of the foundation of the State Bar Association that Nevada's one law school
will receive its ABA accreditation. We thank you for the timing and I'm wondering if you
might yourselfand don't feel put on the spot if you do notbut if you have a word or two
of congratulations of your own for the State Bar at this time.
Dean Morgan:
Thank you very much, Your Honor, for those very kind remarks and for all of the
support that you and the court have provided to our law school. The State Bar of Nevada is
certainly to be congratulated on becoming a splendid organization of lawyers doing what
lawyers are supposed to dooperating the system of justice in a fair and equitable way. The
State Bar of Nevada is also to be thanked for all of its efforts and support in establishing the
Boyd Law School at UNLV. This law school would not be where it is without the active
support of the organized Bar and the members of that Bar that this Board of Governors
represent. We thank them for all that they've done and extend heartiest congratulations on
behalf of all of my colleagues at the law school on the Bar's success. Thank you.
Thank you. On behalf of the court I also have a certificate that we would like to
present to the State Bar of Nevada. Ms. Sturman, if you'll come forward down here, I will
read the certificate and then deliver it to you as the President of the State Bar.
The Justices of the Supreme Court hereby honor and recognize the State Bar of Nevada
for seventy-five years of outstanding leadership of the legal profession in the State of
Nevada. The State Bar is commended for providing exemplary service to this Court, the
justice system, and the people of this State. The State Bar is further commended for
maintaining the highest standards of professionalism and steadfast devotion to the
cause of justice. Congratulations on a job well done and there are many exclamation
points behind the word done.
Witness the hands of the said Justices as of the 31st day of January, 2003 and signed by
all members of the Supreme Court of the State of Nevada and sealed by the clerk.
We're ready to bring these proceedings to a close. I thank all of you for attending
today and for your attention to these proceedings. In closing, I'd like to share with you an
excerpt from the original By-laws or Rules and Regulations for the State Bar of Nevada,
adopted by this court in September of 1928. Section one of the Bylaws sets forth the purposes
of the State Bar, namely:
To cultivate and advance the science of jurisprudence; to promote reform in the law and
in judicial procedure; to facilitate the administration of justice; to uphold and elevate
the standard of honor, of integrity and of courtesy in the legal profession; to encourage
higher and better education for membership in the profession; and to promote a spirit of
cordiality and true friendship among the members of the Bar.
The founders of the State Bar adopted lofty and laudable goals for their nascent
organization. In my tenure as a member of the State Barand I am certain I speak for all of
my colleagues on the supreme court benchI have found that the State Bar has not only met
but exceeded these goals set so very long ago. We are so proud of the State Bar's
achievements and professionalism; its reputation for service to the Bar and the public; its
insistence on excellence, honor, integrity, and courtesy in its members; and its dedication to
continuing legal education.
The Nevada Supreme Court extends its thanks to the State Bar, its Board of
Governors and staff, for their very hard work and assistance in governing the legal profession
and most of all for conducting their duties in a spirit of true cooperation with the members of
this court. If I may say so, that spirit of cooperation is deeply appreciated by all of us. I think
there is not a justice here who doesn't feel that we can pick up the phone to candidly and
happily discuss matters of mutual interest and concern and I know because I've gotten phone
calls that you all feel the same way.
I think Justice Shearing said it very well. The amount of hours that you, as members
of the Board of Bar Governors, volunteer because you care about the profession is very
inspiring and we thank you so much. We only ask that you keep it up because it's only the
best for the public that we serve, for the lawyers that we represent and for the judiciary that
the State Bar remain as vital and as robust and healthy as it is today. Thank you all. We will
be in adjournment.
Following this session there will be a reception and presentation of the pro bono
awards that will take place in the rotunda. Everyone is expected to stay. Everyone is
encouraged to stay. We will be so happy to visit with all of you.
Bailiff:
All rise please. The special session of the Supreme Court of the State of Nevada is
now adjourned.

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