St. Mary v. Damon, 129 Nev. Adv. Op. 68 (Oct. 3, 2013)

Before the Court en banc. Opinion by Justice Saitta.
In this opinion, the Court considered issues relating to the custodial rights over a minor child born to two women who were formerly romantic partners. St. Mary gave birth to a child through in vitro fertilization using Damon’s egg and an anonymous donor’s sperm, and the child’s birth certificate originally listed only St. Mary as the mother; in 2009 Damon obtained an order establishing her maternity and adding her name to the child’s birth certificate. The couple also entered into a co-parenting agreement to share parental responsibilities, participate in child-rearing decisions, and pay for expenses. After St. Mary and Damon split, a dispute arose over St. Mary’s right to custody, visitation and child support. Damon contended that due to her biological connection, she was entitled to sole custody of the child, and in support of this contention, submitted the 2009 order. The Court held that the district court erred in using the 2009 order to conclude that St. Mary was a surrogate lacking any right to parent the child without giving St. Mary an evidentiary hearing. The Court reasoned that the Nevada Parentage Act permits a child to have two legal mothers, and establishes (through both the maternity and paternity provisions) various ways to determine a child’s legal mother. The Court remanded the case with instructions to the district court to conduct an evidentiary hearing on St. Mary’s legal right to parent the child. The Court further held that the co-parenting agreement was not void as unlawful or against public policy, indeed the Court stated that barring the enforceability of a co-parenting agreement simply because the parents were both of the same gender was contrary to the public policy of promoting a child’s best interest with the support of two parents. The Court held that the district court must consider the co-parenting agreement in determining custody should it determine after remand that both St. Mary and Damon are the child’s legal parents. Reversed and remanded for further proceedings. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson.)

City of Sparks v. Sparks Mun. Court, 129 Nev. Adv. Op. 38 (May 30, 2013)

Before the Court En Banc. Opinion by Justice Hardesty.
In this appeal from a district court order granting a preliminary injunction, the Court considered 1) whether the City of Sparks could interfere with the Sparks Municipal Court’s control over its own personnel decisions, and 2) what, if any, influence the city may exert over the budget the city allocates to the court. The dispute arose when the Sparks City Council asked the Municipal Court to reduce the salaries of its court administrator and judicial assistant. After unsuccessful attempts to resolve the dispute via proposed amendments to the city charter, the Municipal Court filed a complaint with the district court for injunctive relief, which the district court granted, and the city subsequently appealed. With respect to the first issue, the Court examined Article 15, Section 11 of the Nevada Constitution, which permits a municipality to enact charter provisions governing the tenure and dismissal of any municipal “officer or employee.” Finding that Section 11 was ambiguous on its face, the Court looked past the plain language of the provision to the intent of the voters who approved the provision, and concluded that the provision was meant to apply only to officers, not employees. The Court then held that the city’s interference with the municipal court’s personnel decisions violated the separation of powers doctrine and infringed upon the inherent power of the judiciary to manage its internal affairs free from intrusion from any other branch of government. Regarding the second issue, however, the Court found that the parties had failed to develop the record sufficiently enough for the Court to rule. The Court reversed the district court’s ruling with respect to this issue and remanded the case for further proceedings to develop the record and determine whether any actual controversy still existed. In a separate opinion, Chief Justice Pickering concurred with the majority’s decision to reverse and remand, but dissented with respect to the majority’s decision to look past a plain reading of Section 11, which on its face clearly gives the city the authority to determine the terms of employment of the employees at issue in this case. Affirmed in part, reversed in part, and remanded. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)

State v. Frederick, 129 Nev. Adv. Op. 27 (April 25, 2013)

Before the Court en banc. Opinion by Justice Parraguirre.
In this appeal, the Court considered whether justices of the peace may take felony pleas while serving as district court masters. The Court held that a lawfully appointed district court master, in accordance with EDCR 1.48, could accept a guilty plea. To address this question, the Court considered: (1) whether NRS 3.245 violates the separation of powers doctrine, and (2) whether EDCR 1.48 falls within the Legislature’s grant of authority under NRS 3.245. With respect to NRS 3.245, the Court concluded that it is a proper delegation of power to the judiciary to set forth the specific duties of district court masters. The Legislature explicitly delegated to the district court the authority to appoint masters for “criminal proceedings to perform certain subordinate or administrative duties that the Nevada Supreme Court has approved to be assigned to such master.” Further, the powers delegated to the judiciary pursuant to NRS 3.245 fall within the judicial function, which is defined as “the exercise of judicial authority to hear and determine questions in controversy that are proper to be examined in a court of justice.” Thus, NRS 3.245 is an appropriate delegation of ministerial power to the judiciary such that it does not violate Article 3, Section 1 of the Nevada Constitution. With respect to EDCR 1.48, the Court determined that this rule permits individuals who are qualified based on their judicial experience to be appointed to serve as district court masters. The fact that justices of the peace might also serve as district court masters is only incidental to their roles as justices of the peace and is not an unconstitutional judicial expansion of the justice court’s jurisdiction. Reversed. (Lisa M. Wiltshire Alstead, Associate in the Reno 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.)

Aspen Financial Services v. Dist. Ct., 128 Nev. Adv. Op. 57 (Dec. 6, 2012)

Before the Court en banc. Opinion by Justice Saitta.
In this original petition for a writ of mandamus or prohibition, the Court addressed the district court’s denial of petitioners’ motion to stay a civil proceeding during the pendency of a parallel criminal investigation. Real parties in interest Kenneth and Yvonna Gragson brought civil suit against Petitioners, alleging that Petitioners defrauded them by operating a real estate Ponzi scheme. During the course of discovery, Petitioners learned that the Federal Bureau of Investigation (FBI) had begun a criminal investigation into the criminality of the scheme, that real parties in interest were putatively funneling obtained discovery to the FBI, and that the FBI investigation began at the behest of the real parties in interest. Petitioners then moved the district court to stay all discovery that would require testimonial statements from their officers and employees, which the district court summarily denied. In reviewing stays in the context of parallel proceedings, the Nevada Supreme Court noted that parallel criminal and civil proceedings often put defendants in a Catch-22: waive the Fifth Amendment privilege during testimony in the civil proceeding, which may reveal incriminating information to criminal investigators, or assert Fifth Amendment privileges and forego the opportunity to deny allegations in the civil suit, with the practical effect of “forfeiting” the civil matter. But this Catch-22 does not mandate a stay. Instead, such situations require a “highly nuanced” balancing of defendants’ Fifth Amendment rights against the plaintiffs’ interest in swift resolution of the civil suit and the court’s efficient use of judicial resources. In applying the Ninth Circuit’s five-factor test to balance the interests of all parties, the Court noted that Petitioners’ interests were minor because they had not yet been indicted and the record did not support the charge that the real parties interest were mere conduits for the FBI investigation. The plaintiffs’ interests in a swift resolution were significant because many of the key witnesses were elderly, meaning a stay could prevent them from testifying, and because the complex nature of the fraud claims required difficult proof that often erodes over time. Moreover, the court’s interest in efficiency was strong because no indictments were present, meaning a stay would have an indefinite, and perhaps protracted, duration, nor did Petitioners present any evidence showing they were likely to be indicted. Thus, because the balance tipped away from the Petitioners, the district court did not abuse its discretion when it denied their motion for a stay. Writ denied. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).

Hernandez v. Bennett-Haron, 128 Nev. Adv. Op. 54 (Oct. 25, 2012)

Before the Court en banc. Opinion by Justice Hardesty.
In this appeal, the Court addressed the constitutionality of certain Clark County Code of Ordinance (“CCCO”) provisions that govern coroner’s inquests into officer-involved deaths. Appellants, five Nevada Highway Patrol Officers, filed complaints in connection with an incident that resulted in a man’s death and the ensuing coroner’s inquest proceeding. Appellants asserted that the inquest procedures and provisions put in place by the Clark County Board of Commissioners (1) violated their due process rights under the Nevada Constitution, and (2) the Board of County Commissioners unconstitutionally impinged on the Legislature’s authority to exclusively establish the jurisdiction of justices of the peace when it required justices of the peace to preside over the inquest process related to officer-involved deaths. In ruling on the appellants’ application for preliminary injunction, the district court rejected most of appellants’ claims and upheld all but one of the Clark County code sections related to inquest proceedings in connection with officer-involved deaths. On appeal, the Court examined the relevant CCCO provisions and due process considerations in determining whether the Clark County coroner’s inquest procedures for officer-involved death, as amended by the Board of Commissioners, is valid. The Court found that an inquest’s function is “purely investigative and fact-finding because no adjudication or determination of liability occurs,” thus, due process protections are not triggered by the process. On this point, the Court affirmed the district court’s ruling that rejected appellants’ due process arguments. Next, the Court considered whether the participation of justices of peace in the inquest proceedings violates the Nevada Constitution. In reaching its conclusion that participation by justices of the peace violates the Nevada Constitution, the Court noted that NRS 244.163(1) allows counties to appoint a coroner. Where a county, such as Clark County, has appointed a coroner, certain provisions of NRS Chapter 259 (Coroners) do not apply. Specifically, NRS 259.050 permits the use of justices of the peace where the sheriff serves as the de facto coroner. Because Clark County appointed a coroner, justices of the peace are not authorized to participate in Clark County inquest proceedings, thus, the Court determined that the Board of Commissioners impinged on the Legislature’s constitutionally delegated authority. Finally, the Court determined that striking only the offending provision would render the entire inquest scheme for officer-involved deaths ineffective because the proceedings could not go forward without a presiding officer. As a result, the Court struck the entire inquest scheme related to officer-involved deaths. Reversed. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).