Ivey v. Dist. Ct., 129 Nev. Adv. Op. 16 (March 28, 2013)

Before the Court en banc. Opinion by Justice Gibbons.
In this original petition for a writ of mandamus or prohibition, the Court considered whether the district court’s failure to order recusal of a family court judge in connection with certain campaign contributions by parties and attorneys involved in the action violated the petitioners due process rights or Nevada law. Petitioner Luciaetta Ivey and her then spouse, Phil Ivey, filed a joint petition for divorce in the Eighth Judicial District; the case was assigned to Judge William Gonzalez. The parties entered into a marital settlement agreement that set forth, among other things, the monthly alimony payment to Luciaetta. After entry of the divorce decree, Judge Gonzalez successfully ran for re-election. During the campaign for reelection, the Phil, his attorney, his attorney’s wife, and his attorney’s law partner and Luciaetta’s law firm made various cash donations exceeding $10,000 and in-kind contributions to Judge Gonzalez’s campaign. The total cash contributions represented approximately 14% of all contributions to the campaign; the in-kind contributions totaled 25% of all in-kind contributions; Phil’s cash contribution alone equaled 7% of all cash contributions. After the election, a dispute arose over the monthly alimony payments and Judge Gonzalez was assigned to hear Luciaetta’s motion to reopen discovery. Luciaetta sought Judge Gonzalez’s recusal from the new proceeding arguing that the campaign contributions created an appearance of impropriety that resulted in a denial of Due Process and violated Nevada law. Relying on Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009), the Court held that denial of the motion to disqualify did not violate Luciaetta’s due process rights because the size of the contributions at issue, compared to the total sum spent during the campaign, and the effect that contribution may have had on the election’s outcome, did not rise to a level “where the probability of actual bias is too high to ensure the protection of” Luciaetta’s rights. The Court concluded that the amount of donations by the spouse and attorney’s did not rise to the “exceptional” level that existed in Caperton, nor was the timing suspicious because the contributions were made after the entry of the divorce decree. Luciaetta also argued that Judge Gonzalez’s disqualification was required under NRS 1.230 and the Rule 2.11 of the Nevada Code of Judicial Conduct (NCJC) (now the Revised Nevada Code of Judicial Conduct). Because the contributions made were within the statutory limits for campaign contributions and the timing of the contributions was not suspicious, the Court rejected Luciaetta’s argument. In a concurring opinion, Justice Hardesty (joined by Chief Justice Pickering, and Justices Parraguirre and Douglas) wrote to address criticism of the NCJC. Justice Hardesty noted that the Nevada Supreme Court initiated a thorough review of the NCJC in 2009 which included a study on campaign finance rules in light of the Caperton decision. Despite public comments, the Court voted to adopt the RNCJC without inclusion of the committee’s recommendations on this issue. In a second concurring opinion, Justice Saitta wrote separately to voice concerns with the current judicial campaign contribution rules. Writ petition denied. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).

Stubbs v. Strickland, 129 Nev. Adv. Op. 15 (March 14, 2013)

Before the Court en banc. Opinion by Justice Gibbons.
In these consolidated appeals, the Court held that a defendant cannot file an anti-SLAPP (Strategic Lawsuit Against Public Participation) suit against a plaintiff who voluntarily dismisses the action before the defendant files either an initial responsive pleading or a special motion to dismiss pursuant to NRS 41.670. Mr. Strickland had filed a complaint against Mr. Stubbs for libel per se and negligent infliction of emotional distress based on content posted on the internet by Mr. Stubbs. Mr. Strickland voluntarily dismissed his complaint, however, before Mr. Stubbs had filed an answer or any other pleading. Subsequently, Mr. Stubbs filed a separate complaint based on Nevada’s anti-SLAPP statutes. NRS 41.635 et seq. The Court found that the plain language of NRS 41.670 only permits a defendant to bring an anti-SLAPP suit after the district court has granted a special motion to dismiss. The Court declined to penalize plaintiffs who opt to discontinue frivolous lawsuits so that a plaintiff has a window within which they may reconsider the wisdom of their actions without penalty and defendants can be extracted from a lawsuit quickly and inexpensively. Affirmed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)

I. Cox Constr. Co. v. CH2 Investments, 129 Nev. Adv. Op. 14 (March 7, 2013)

Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Chief Justice Pickering.
In this appeal from a district court order expunging a mechanic’s lien, the Court considered whether the district court erred in (1) relying on Vaughn Materials v. Meadowvale Homes to define the scope of a contract for a work of improvement and (2) finding that certain improvements to a project were outside the scope of the “work of improvement.” Respondents hired the Appellant to construct a shooting range, and after disagreement between the parties, the Appellant walked off the job, leaving the project incomplete but largely finished. Respondents opened the range before completing the project, and after some initial complaints by neighboring tenants, installed a soundproofing system. The Appellant recorded a mechanic’s lien more than 90 days after it had walked off the job but less than 90 days after Respondents installed the soundproofing. In affirming the district court on the first issue, the Court noted that mechanic’s lien statutes are remedial in nature and should be liberally construed to protect the rights of claimants. NRS 108.22188’s definition of “work of improvement” includes more than the particular claimant’s work on a project, and this definition existed before Vaughn; although the legislature has revised the mechanic’s lien statutes since Vaughn, the analysis of what constitutes a “work of improvement” has remained unchanged and so the district court did not err by relying on Vaughn. As to the second question, the Court noted that, because neither party had contemplated soundproofing the project, nor did the operating permits require it, the soundproofing was outside NRS 108.22188’s definition of “work of improvement.” Thus, Appellant’s lien was untimely under NRS 108.226’s requirement that a lien claimant record a notice of lien within 90 days after the completion of the work of improvement. Affirmed. (Rory Kay, Associate in the Las Vegas office of McDonald Carano Wilson.)